                                                                                ACCEPTED
                                                                            02-15-00239-CV
                                                                SECOND COURT OF APPEALS
                                                                      FORT WORTH, TEXAS
                                                                      9/24/2015 10:30:44 AM
                                                                             DEBRA SPISAK
                                                                                     CLERK

            Appeal No. 02-15-239-CV

IN THE SECOND DISTRICT COURT OF APPEALS FILED IN
                                  2nd COURT OF APPEALS
          AT FORT WORTH, TEXAS      FORT WORTH, TEXAS
                                                   9/24/2015 10:30:44 AM
                 
                                                        DEBRA SPISAK
                                                            Clerk
                  JAY W. HAND
              – Appellants/Defendants

                           v.

                HARRIS HUGHEY
                – Appellee/Plaintiff

  On Appeal from the 367th Judicial District Court
              Denton County, Texas,
       The Hon. Vickie Isaacks presiding
                 
             BRIEF OF APPELLANT
                 JAY W. HAND
                 

                        JOHNSTON LEGAL GROUP PC
                        Michael W. Johnston
                        State Bar No. 10840300
                        Nathan Schattman
                        State Bar No. 00791606
                        4200 Airport Freeway
                        Fort Worth, Texas 76117
                        Telephone: (713) 830-4816
                        Facsimile: (713) 830-4815

                        ATTORNEYS FOR APPELLANT



 **APPELLANT REQUESTS ORAL ARGUMENT**


         Brief of Appellant Jay W. Hand – Page 1
                            Appeal No. 02-15-239-CV

            IN THE SECOND DISTRICT COURT OF APPEALS
                      AT FORT WORTH, TEXAS

                                 


                                 JAY W. HAND
                             – Appellants/Defendants

                                            v.

                               HARRIS HUGHEY
                               – Appellee/Plaintiff

                On Appeal from the 367th Judicial District Court
                            Denton County, Texas,
                     The Hon. Vickie Isaacks presiding

                                 


                  IDENTITY OF PARTIES AND COUNSEL
                                 


      The undersigned counsel of record certifies that the following listed persons

are either interested parties or counsel.    These representations are made in order

that the Judges of this Court may evaluate possible disqualification or recusal.

1)    Jay W. Hand
      Defendant – Appellant

2)    Michael W. Johnston
      Nathan Schattman
      JOHNSTON LEGAL GROUP PC
      Attorneys for Jay W. Hand on appeal

3)    Donald Shields
      Defendant – Not participating in Appeal
                        Brief of Appellant Jay W. Hand – Page 2
4)   Albert Filidoro, Jr.
     Filidoro Law Firm, PLLC
     Attorneys for Jay W. Hand and Donald Shields at trial

5)   Carol Kohankie
     Defendant – Not participating in Appeal

6)   Greg Hargrove
     McDonald Sanders PC
     Attorney for Carol Kohankie at trial

7)   Harris Hughey
     Plaintiff – Appellee

8)   Mr. Scott Doody
     LAW OFFICES OF SCOTT R. DOODY
     Attorney for Harris Hughey at trial and on appeal

9)   Andrew Hawkins
     Hawkins & Walker PC
     Attorney for Harris Hughey at trial

                                     Respectfully submitted,
                                     JOHNSTON LEGAL GROUP PC

                                 By: _/s/ MICHAEL JOHNSTON_______
                                     Michael W. Johnston
                                     State Bar No. 10840300
                                     Nathan Schattman
                                     State Bar No. 00791606
                                     4200 Airport Freeway
                                     Fort Worth, Texas 76117
                                     Telephone: (713) 830-4816
                                     Facsimile: (713) 830-4815

                                     ATTORNEYS FOR JAY W. HAND



                      Brief of Appellant Jay W. Hand – Page 3
                              TABLE OF CONTENTS

Identity of Parties and Counsel ..……………………………………..… 2

Table of Contents ……………………………………………………… 4

Table of Authorities …………………………………………………… 6

Statement of the Case………………………………………………….. 9

Request for Oral Argument …………..……………………………….. 10

Issues Presented on Appeal …………………………………………… 11

Statement of Facts.……………………………………………………. 11

I.        Procedural Summary…………………………………………… 11

II.       Standard of Review……………………………………………                          11

III.      Factual Summary……………………………………………… 12

Summary of the Argument …………………………………………… 15

Argument………………………………………….………..…………. 15

ISSUE 1:        The Trial Court erred in finding that Hughey
                presented a prima facie case for any of his
                claims against Hand.…………………………………… 15
       A. The Texas Citizens’ Participation Act applies to this case. … 15

       B. The elements of a cause of action for defamation.…………… 18

       C. The statements are not defamatory as a matter of law.………19

       D. The statements are not defamation per quod. .……………… 21

       E. The statements are substantially true.……………………… 22

                          Brief of Appellant Jay W. Hand – Page 4
  F. Hughey failed to show causation or damages.……………… 23

Prayer………………………………………………………………… 24

Certificate of Service ………………………………………………… 25

Certificate of Compliance…………………………………………… 26

                              APPENDIX

LIST OF DOCUMENTS                                           TAB

Order Denying Motion to Dismiss (CR 655) …………………………… 1

Order Granting Motion to Dismiss (CR 576 …………………………… 2

The Hand Campaign Flyer (CR 165)……….…………………………… 3

Hughey Affidavit (CR 252) ………….…….…………………………… 4




                  Brief of Appellant Jay W. Hand – Page 5
                        TABLE OF AUTHORITIES

TEXAS CASES

A.H. Belo & Co. v. Looney,……………………………………………… 19
246 S.W.2 762 (Tex. App. – Texarkana 1916),
aff’d, 246 S.W. 777 (Tex. 1922)

Bentley v. Bunton,…………………………………………………… 18, 22
94 S.W.3d 561 (Tex. 2002)

Casso v. Brand,…………………………………………………………                              22
776 S.W.2d 551 (Tex. 1989)

Durckel v. St. Joseph Hospital,…………………………………………… 21
78 S.W. 3d 576 (Tex. App. – Houston [14th Dist.] 2002, no pet.)

Exxon Mobil Corp. v. Hines,……………………………………………… 19
252 S.W.3d 496 (Tex. App. – Houston [14th District] 2008, pet. denied)

Gartman v. Hedgepeth,…………………………………………………… 20
157 S.W.2d 139 (Tex. 1941)

Guinn v. Texas Newspapers, Inc.,………………………………………… 19
738 S.W.2d 303 (Tex. App. Houston [14th] 1987, writ denied)

Leyendecker & Assoc. v. Wechter,……………………………………… 20
683 S.W.2d 369 (Tex. 1984)

In re Lipsky,……………………………………………………………… 12
460 S.W.3d 579 (Tex. 2015)

Marshall v. Mahaffer,…………………………………………………… 20
974 S.W.2d 842 (Tex. App. – Beaumont 1998, pet. denied)

Morrill v. Cisek,………………………………………………………… 20
226 S.W.3d 545 (Tex. App. – Houston [1st Dist.] 1989, writ den’d)

Neely v. Wilson,…………………………………………………………                             22
418 S.W.3d 52 (Tex. 2013)
                     Brief of Appellant Jay W. Hand – Page 6
Rehak Creative Servs. v. Witt,…………………………………………… 19
404 S.W.3d 716 (Tex. App. – Houston [14th Dist.] 2013, pet. den.)

Schimmel v. McGregor,…………………………………………………… 12
438 S.W.3d 847 (Tex. App. – Houston [1st. Dist.] 2014, pet. denied)

Turner v. KTRK TV, Inc.,………………………………………………… 18
38 S.W.3d 103 (Tex. 2000).

Villasenor v. Villasenor,………………………………………………… 19
911 S.W.2d 411 (Tex. App. – San Antonio 1995, no writ)

FEDERAL CASES

Henry v. Lake Charles Am. Press, LLC,………………………………… 15
566 F.3d 164 (5th Cir. 2009)

Monitor Patriot Co. v. Roy, ……………………………………………… 19
401 U.S. 265 (1971)

TEXAS STATUTES

Tex. Civ. Prac. & Rem. Code Ann. § 27.001-27.011………………… 16, 17


TREATISES AND LEGISLATIVE MATERIALS

H. Comm. on Judiciary & Civil Jurisprudence, Bill Analysis,…………… 16
Tex. H.B. 2973, 82d Leg., R.S. (2011)

S. Research Ctr., Bill Analysis,…………………………………………… 16
Tex. H.B. 2973, 82d Leg., R.S. (2011)




                     Brief of Appellant Jay W. Hand – Page 7
                            Appeal No. 02-15-239-CV

            IN THE SECOND DISTRICT COURT OF APPEALS
                      AT FORT WORTH, TEXAS

                                 


                                 JAY W. HAND
                             – Appellants/Defendants

                                          v.

                               HARRIS HUGHEY
                               – Appellee/Plaintiff

                On Appeal from the 367th Judicial District Court
                            Denton County, Texas,
                     The Hon. Vickie Isaacks presiding

                                 
                            BRIEF OF APPELLANT
                                JAY W. HAND
                                 


      Appellant/Defendant submits this Brief. Appellant will be referred to as

“Hand.” Appellee Harris Hughey will be referred to as “Hughey.”              The co-

defendants at trial, who are not participating on appeal, will be referred to by name.

References to the Clerk’s Record will be enclosed in parentheses and abbreviated

(CR ##) with paragraph or line references where appropriate. References to the

Appendix will be enclosed in parentheses and abbreviated (App. ##). References

to the Reporter’s Record will be enclosed in parentheses and abbreviated (CR ##)

with volume, and paragraph and line references where appropriate.


                        Brief of Appellant Jay W. Hand – Page 8
                                      

                              STATEMENT OF THE CASE
                                      


Nature of the Case:

       Harris Hughey sued Jay W. Hand, Donald Shields, and Carol Kohankie for
libel and slander arising out of allegedly defamatory statements made during a
Republican Party Primary Run Off for Denton County Justice of the Peace,
Precinct 4. (CR 7-14). Kohankie was later voluntarily non-suited. (CR 43).
Shields is not participating in this appeal.

       Hand filed a Motion to Dismiss pursuant to the Texas Citizens Participation
Act commonly known as an anti-SLAPP (“Strategic Lawsuit Against Public
Participation”) statute. The proper application of the Act to the facts and
circumstances presented by this case is the controlling legal question.

Course of Proceedings:

      On November 24, 2014, Judge Margaret Barnes voluntarily recused herself
from the case (CR 30). On December 1, 2014, the Hon. Vicki Isaacks was
appointed to preside over the case (CR 40).

       The case was presented to the 367th District Court in Denton County, Texas
via a Motion to Dismiss, the Hon. Vicki Isaacks presiding.        The Court heard
Hand’s Motion to Dismiss on March 20, 2015. (RR. V. 3 p. 6). The Court
originally granted the Motion to Dismiss on April 20, 2015. (CR 576)1. Hughey
filed a Motion for New Trial and Motion to Reconsider in the trial court on or
about May 8, 2014. (CR 463-493). On May 14, 2015, Hughey also filed Appeal
No. 2-15-161 before this honorable court. (CR 498-499).

      Hughey’s Appeal No. 2-15-161 was dismissed as moot following the
granting of Hughey’s Motion for New Trial and The Motion to Reconsider.




1
 Due to technical issues involved in a visiting judge electronically filing orders, the Order was
not filed by the Clerk’s Office until May 18, 2015. (CR 577).
                             Brief of Appellant Jay W. Hand – Page 9
Trial Court Disposition:

      On June 30, 2015, the Court considered Hughey’s Motion for New Trial and
Request for Reconsideration of the Defendant’s Motions to Dismiss. On July 2,
2015 the Trial Court entered an Order granting Hughey’s Motion to Reconsider
and denying Hand’s Motion to Dismiss. (CR 655).

       After the July 2, 2015 granting of the Motion to Reconsider and the Entry of
the Denial of Hand’s Motion to Dismiss, this interlocutory appeal filed by Hand
followed. (CR 658-660). This interlocutory appeal is authorized by Texas Civil
Practice & Remedies Code §§27 and 51.
                                

                     REQUEST FOR ORAL ARGUMENT
                                


       Appellant requests oral argument because the “Citizens” Participation Act,”
(the “Act”) commonly known as an anti-SLAPP (“Strategic Lawsuit Against
Public Participation”) statute was enacted in 2011. As a result, it still has a
relatively underdeveloped body of case law - despite the critical social protections
that it offers. Therefore oral argument will assist the Court of Appeals in
determining the future application of this law.




                       Brief of Appellant Jay W. Hand – Page 10
                                

                    ISSUES PRESENTED FOR REVIEW
                                


ISSUE 1:    The Trial Court erred in finding that Hughey presented a prima
            facie case for any of his defamation claims against Hand.
                                

                           STATEMENT OF FACTS
                                


I.    Procedural Summary

      The Court conducted the hearing on Hand’s Motion to Dismiss on March 20,

2015. Defendants requested that the Reporter’s Record of that hearing, if any, be

prepared for the Court, but have been informed there is no such Reporter’s Record.

      On April 20, 2015, Judge Isaacks e-mailed the attorneys for all parties her

decision. (CR 578).      She initially signed her Order granting the Dismissal on

April 20, 2015. (CR 576). However, as a visiting judge, the Electronic Filing

System initially rejected her Order because her signature was not entered into the

Denton County District Clerk’s e-filing system. (CR 579-580). Eventually on

May 18, 2015 a signed Order was entered, but the entered Order did not contain

the April 20, 2015 date of signing. (CR 577). A Motion for Judgment nunc pro

tunc to correct the date of the Judgment of Dismissal was pending when the

Plaintiff’s Motion for New Trial and Reconsideration of the Dismissal was

granted. (CR 572-575).

                       Brief of Appellant Jay W. Hand – Page 11
II.    Standard of Review

       A de novo standard governs review of the trial court's determination

regarding the propriety of a dismissal under section 27.005 of the Texas Citizens

Participation Act. See, e.g., Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 727-

728 (Tex. App. – Houston [14th Dist.] 2013, pet. den.). Thus, the appellate court

makes an independent determination and applies the same standard used by the

trial court. Id. The ultimate question is whether the record contains a prima facie

case for the plaintiff shown by minimum quantum of clear and specific evidence

and rational inferences drawn from circumstantial evidence that would establish

each essential element of the claims in question if no contrary evidence is offered.

See, e.g., In re Lipsky, 460 S.W.3d 579, 589-90 (Tex. 2015); Schimmel v.

McGregor, 438 S.W.3d 847, 855 (Tex. App. – Houston [1st. Dist.] 2014, pet.

denied).

III.   Factual Summary

       Harris Hughey brought a defamation case alleging that Jay W. Hand, Donald

Shields, and Carol Kohankie had made libelous and slanderous communications

about Hughey during the course of an election campaign. Hughey voluntarily non-

suited his claims against Kohankie.         Shields is not a party to the appellate

proceedings, but is still a party in the trial proceedings in Denton County that are

stayed by this appeal.

                         Brief of Appellant Jay W. Hand – Page 12
      The following facts were undisputed below:

      In May of 2014, Hughey and Hand were in a runoff race in the Republican

Primary for the office of Justice of the Peace, Precinct 4, Denton County, Texas.

Hand was the incumbent Justice of the Peace. The runoff was necessary because

when the Republican Primary was held on February 25, 2014 no candidate

received fifty percent (50%) of the vote. Hand and Hughey received the highest

vote totals; and, therefore qualified for the runoff. The runoff election was held

May 17, 2014. With 2,834 votes, Hand won by a narrow margin over Hughey’s

2,784 votes.

      The disputed factual issues in this case concern the content of and

subsequent interpretations of a single piece of campaign literature.         Hughey

complains that during the runoff Hand published a defamatory flyer by mail to the

voters of Precinct 4, and then repeated the information verbally at various time on

the campaign trail. (Plaintiff’s Response to Defendants’ Motions to Dismiss CR

61-63). Hughey also complains that Shields republished the flyer by posting it (a

legal distance) from a polling place on election-day and discussing the contents of

the flyer with voters. (CR 63). A color copy of the flyer is attached as App. 3.

      The flyer identifies Hughey’s date of registration (DOR) as a voter as May

28, 2006. (App. 3 CR 165). The flyer asserts that Hughey doesn’t vote. (Id.) The

flyer contains the following statements:

                        Brief of Appellant Jay W. Hand – Page 13
      “Prior to his own election two months ago Mr. Hughey had NEVER voted in
      a Republican Primary Election.
      The only election Mr. Hughey ever voted in was 2008, when Barrack
      Obama won the presidency… Don’t you wonder what brought him out to
      vote that year?” (Emphasis in Original)(App. 3 CR 165).

In contending that the foregoing paragraphs were false and defamatory, Hughey

obtained certified copies of his voting records in Denton (CR 90) and Tarrant

Counties (CR 86). Mr. Hughey also provided an affidavit in which he stated that

he spoke at a candidate’s forum, and made available to Mr. Hand a copy of his

voting records that showed he had voted in some other elections after 2006 besides

the 2008 General Election. (App. 4 CR 252).

      While Mr. Hughey contends that the flyer unfairly portrays him as an

Obama voter in 2008, he does not specifically testify that he did not vote for

Obama. (App. 4 CR 252). Knowing only that he voted in the general election in

2008, it is possible under Texas law that he “undervoted” his presidential vote or

voted for the Republican nominee (McCain), for Obama, for a write-in, or for one

of four other minor party candidates.

      Nor does Mr. Hughey testify that he voted in any other Republican primaries

prior to the 2014 primary. (App. 4 CR 252).




                       Brief of Appellant Jay W. Hand – Page 14
                                 

                       SUMMARY OF THE ARGUMENT
                                 


      The Trial Court erred when it reversed itself and denied the Motion to

Dismiss. The Texas Citizens’ Participation Act clearly applies to the issues in this

case. Hughey failed to present a prima facie shown by minimum quantum of clear

and specific evidence that would establish each essential element of his defamation

claims against Hand if no contrary evidence is ultimately offered at trial.

      As a result, the Trial Court’s original decision dismissing Hughey’s claims

against Hand was the correct decision and should be reinstated by this Court.

                                 

                                   ARGUMENT
                                 


ISSUE 1:     The Trial Court erred in finding that Hughey presented a prima
             facie case for any of his defamation claims against Hand.

   A. The Texas Citizens’ Participation Act applies to this case.

      Concerned over the growth of meritless lawsuits that have the purpose or

effect of chilling the exercise of First Amendment rights, a number of state

legislatures have created a method for better striking the balance between interests

in individual reputation and freedom of speech. See Henry v. Lake Charles Am.

Press, LLC, 566 F.3d 164, 167-68 (5th Cir. 2009). In September of 2011, Texas


                        Brief of Appellant Jay W. Hand – Page 15
enacted the “Citizens Participation Act,” (the “Act”) commonly known as an anti-

SLAPP (“Strategic Lawsuit Against Public Participation”) statute. See Tex. Civ.

Prac. & Rem. Code Ann. § 27.001-27.011; H. Comm. on Judiciary & Civil

Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011).

      The Act’s purpose is to encourage the involvement of citizens in the

exchange of ideas and to stop abuses of the legal system, including filing of

frivolous claims aimed at silencing citizens. See H. Comm. on Judiciary & Civil

Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011). The Act

encourages greater public participation of Texas citizens through safeguarding the

constitutional rights of persons to petition, speak freely, and associate freely, by

providing for an expedited motion to dismiss frivolous lawsuits aimed at retaliating

against someone who exercised those rights. See id. The Legislature has found that

frivolous, meritless lawsuits aimed at silencing involved citizens are becoming

more common and a great threat to the growth of our democracy, and the Act

allows these cases to be dismissed earlier than would otherwise be possible,

limiting the costs and fees associated with defending against such a claim. See S.

Research Ctr., Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011).

      The Act allows a court to dismiss a legal action based on, relating to, or in

response to a party’s exercise of the right of free speech, right to petition, or right

of association. Tex. Civ. Prac. & Rem. § 27.003. The right to free speech is

                        Brief of Appellant Jay W. Hand – Page 16
defined as a communication made in connection with a matter of public concern.

Tex. Civ. Prac. & Rem. § 27.001. A matter of public concern is an issue relating to

health or safety, environmental, economic, or community well-being, the

government, a public official or public figure, or a good, product, or service in the

marketplace. Id.

      The Act establishes a burden-shifting procedure for weeding out frivolous

lawsuits aimed at silencing a citizen’s right to free speech. To succeed on a motion

to dismiss the movant must show that the legal action is based on, relates to, or is

in response to the party’s exercise of free speech. Tex. Civ. Prac. & Rem. §

27.005(b)(1). If the movant makes this showing, the burden then shifts to the

claimant to establish by clear and specific evidence a prima facie case for each

essential element of the claim in question. Tex. Civ. Prac. & Rem. § 27.005(c). If

the claimant fails to make this showing, the trial court must dismiss the claim. Tex.

Civ. Prac. & Rem. § 27.005(b).

      The Act only exempts enforcement actions by the State, actions brought

against sellers and lessors of goods and services under specific circumstances, and

actions seeking recovery for bodily injury, wrongful death, or survival. Tex. Civ.

Prac. & Rem. § 27.010. The extremely limited scope of this exemption makes the

Legislatures intent that the Act would apply broadly to both governmental and

individual concerns.

                        Brief of Appellant Jay W. Hand – Page 17
      In his Response to Hand’s Motion to Dismiss, Hughey concedes that the

Texas Citizen’s Participation Act applies to the statements at issue in this case.

(CR 59). It is undisputed that as a candidate Hand was exercising his right to free

speech in interacting with the voters of Denton County Precinct 4.

   B. The elements of a cause of action for defamation.

      In general, a plaintiff must establish the following elements to prevail on a

claim of defamation:

      1. The defendant published a statement of fact;

      2. The statement referred to the plaintiff;

      3. The statement was defamatory;

      4. The statement was false;

      5. With regard to the truth of the statement, the defendant was:

            a. Acting with malice,

            b. Negligent; or

            c. Strictly liable.

      6. The plaintiff suffered pecuniary injury or was defamed per se allowing a

         presumption of pecuniary injury.

See, e.g., Bentley v. Bunton, 94 S.W.3d 561, 579-590 (Tex. 2002). However,

causes of action for written defamation (libel) and oral defamation (slander) are

distinct and have slightly different elements. Exxon Mobil Corp. v. Hines, 252

                       Brief of Appellant Jay W. Hand – Page 18
S.W.3d 496, 501 (Tex. App. – Houston [14th District] 2008, pet. denied). In

addition, defamatory statements are broken down into those that are actionable in

themselves (per se) and those that are only actionable following an allegation and

proof of special damages (per quod). Id.

      In his Response to the Motion to Dismiss, Hughey pleads defamation on

defamation per se, not per quod. (CR 77). Therefore this brief will focus primarily

on libel and/or slander per se.

      The court should also be aware of the consequences of Hughey’s concession

that he is a “public official” for the purposes of the defamation analysis because

the statements concern his fitness for a public office he sought. See, e.g., Monitor

Patriot Co. v. Roy, 401 U.S. 265, 273-274 (1971); Guinn v. Texas Newspapers,

Inc., 738 S.W.2d 303, 305 (Tex. App. Houston [14th] 1987, writ denied).

   C. The statements are not defamatory as a matter of law.

      Whether the statement at issue is capable of defamatory meaning initially is

a question of law for the court. A statement is only defamatory as a matter of law

if its defamatory meaning is unambiguous in the minds of ordinary readers,

without referring to any meaning attributed to it by the plaintiff or defendant. A.H.

Belo & Co. v. Looney, 246 S.W.2 762, 768-69 (Tex. App. – Texarkana 1916),

aff’d, 246 S.W. 777 (Tex. 1922). To determine whether the words are used are

reasonably capable of a defamatory meaning, the publication must be construed as

                        Brief of Appellant Jay W. Hand – Page 19
a whole in light of the surrounding circumstances based on how a person of

ordinary intelligence would perceive it. Turner v. KTRK TV, Inc., 38 S.W.3d 103,

113 (Tex. 2000).

      Read in compliance with Turner, the statements at issue are not simply

defamatory per se. These statements do not:

      1. Injure his personal reputation and clearly expose him to public hatred,
         contempt, ridicule, or financial injury - Gartman v. Hedgepeth, 157
         S.W.2d 139, 140-141 (Tex. 1941);

      2. Impeach his honesty - Gartman v. Hedgepeth, 157 S.W.2d 139, 140-141
         (Tex. 1941);

      3. Expose natural defects and clearly expose him to public hatred, contempt,
         ridicule, or financial injury - Gartman v. Hedgepeth, 157 S.W.2d 139,
         140-141 (Tex. 1941);

      4. Injure his business reputation – Morrill v. Cisek, 226 S.W.3d 545, 549
         (Tex. App. – Houston [1st Dist.] 1989, writ den’d);

      5. Impute his performance of a crime – Leyendecker & Assoc. v. Wechter,
         683 S.W.2d 369, 374 (Tex. 1984);

      6. State he has a loathsome disease – Villasenor v. Villasenor, 911 S.W.2d
         411, 418 (Tex. App. – San Antonio 1995, no writ); or,

      7. Impute sexual misconduct. Marshall v. Mahaffer, 974 S.W.2d 842, 949
         (Tex. App. – Beaumont 1998, pet. denied).

As a result –Hughey has not met his statutory burden to prove that a per se

defamatory statement was made by Hand.

      Something brought Hughey to the General Election polls in 2008 when he

had not voted in the 2008, 2010, and 2012 Republican primaries or the 2006, 2010,
                       Brief of Appellant Jay W. Hand – Page 20
and 2012 general elections. Hand is entitled to offer his opinion as to what the

motivation might have been. Voters are free to have their own opinion. But,

whether Hughey voted for Obama in 2008 or undervoted or voted for a different

candidate cannot serve as the basis for a defamation per se case. The act of voting

in a general election is simply not something that damages a person’s character and

reputation in the community.

   D. The statements are not defamation per quod.

      When a statement has an ambiguous meaning – that is one defamatory and

one non-defamatory, innuendo or implication can be used to explain the

statement’s true meaning. Turner v. KTRK TV, Inc., 38 S.W.3d 103, 113 (Tex.

2000). Again, the statements are considered in their entire context.

      The test for actionable defamation by innuendo is not how the statement

might be construed by the plaintiff, but how the statement would be construed by

the average person or the general public. Durckel v. St. Joseph Hospital, 78 S.W.

3d 576, 585 (Tex. App. – Houston [14th Dist.] 2002, no pet.).

      Here the complained of statements are not “ambiguous” as defined by the

Turner court. One candidate is clearly offering an opinion that he has participated

more in the relevant political party than the other.              Read in context, the

complained of flyer and campaign statements are opinions like “I am a more active

Republican than you based on your voting record” or “I am a more involved

                       Brief of Appellant Jay W. Hand – Page 21
citizen than you based on your voting record.”

      Even if these statements were false, which they were not, they are simply not

defamatory.

   E. The complained of statements are substantially true.

      To prove an action for defamation, the complained of statements must be

false. See, e.g., Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013). When a plaintiff

is required to prove malice, the burden to prove falsity lies on the plaintiff. Bentley

v. Bunton, 94 S.W.3d 561, 586 & n. 62 (Tex. 2002); Casso v. Brand, 776 S.W.2d

551, 554 (Tex. 1989). Here Plaintiff admits that he has the burden to prove malice.

(CR 65).

      In all defamation cases the courts use the substantial truth test to determine if

a statement was false. Neely, 418 S.W.3d at 63. Under the substantial truth test a

statement is not considered false unless it would have a different effect on the mind

of a listener than the true statement would. Id. at 63-63. If the document or

statement correctly conveys the gist of a story or situation, but is incorrect in some

details, then it is substantially true. Turner v. KTRK, Inc., 38 S.W.3d 103, 115

(Tex. 2000).

      Here the “gist” of the flyer is substantially correct based on the Plaintiff’s

own evidence. According to the certified records from Denton County produced

by Plaintiff, since 2006 Plaintiff voted in only one general election – 2008 – out of

                        Brief of Appellant Jay W. Hand – Page 22
four. (CR 84) The same record shows that since his 2006 registration, Plaintiff had

not voted in a Republican Primary until 2014. (CR 84). Going further back, while

Plaintiff had voted in 3 general elections between 1990 and 2005 – out of 8. (CR

86). And, there is still no record of Plaintiff voting in a Republican primary from

1990 to 2013. (CR 84, 86).

      So, while Plaintiff is correct that he had voted in some other elections, under

the Turner test, the gist of the flyer and subsequent conversations pointed to by

Plaintiff are substantially correct. Plaintiff failed to even offer his own testimony

that “he did not vote for Obama” in 2008, explain his failure to vote in the 2012

general election, explain his failures to vote in the other general elections, or offer

evidence that he had voted in a Republican Primary at some point in his life prior

to 2014.

      Hughey simply has no evidence of the substantive falsity of the statements.

Hughey’s simple disagreement with Hand about the flyer and the truthfulness of

the statements in it or relying on it is not enough to meet this standard. As a result,

Hughey’s claim for defamation fails. Although, Hughey may be disappointed that

he lost a close race, the fact he does not like losing does not make the flyer illegal.

   F. Hughey failed to show evidence of causation or damages.

      Since Hughey failed to provide evidence to support a prima facie finding

that the statements he complains about were false, let alone defamatory, he has

                        Brief of Appellant Jay W. Hand – Page 23
failed to show that any wrongful acts by Hand were a proximate cause of his defeat

in the primary election or his alleged damage of the lost office of Justice of the

Peace.

                                

                                      PRAYER
                                


       WHEREFORE, PREMISES CONSIDERED, Jays W. Hand prays that the

Denial of the Motion to Dismiss be reversed, and a take-nothing judgment be

rendered in his favor extinguishing the claims brought by Harris Hughey against

him. The Court should also direct the trial court to award Hand his costs and

attorney’s fees and the statutorily mandated sanction to deter such frivolous claims

in the future.

                                       Respectfully submitted,

                                       JOHNSTON LEGAL GROUP PC

                                By:    _/s/MICHAEL JOHNSTON__________
                                       Michael W. Johnston
                                       State Bar No. 10840300
                                       Nathan Schattman
                                       State Bar No. 00791606
                                       4200 Airport Freeway
                                       Fort Worth, Texas 76117
                                       Telephone: (713) 830-4816
                                       Facsimile: (713) 830-4815

                                       ATTORNEYS FOR JAY W. HAND



                       Brief of Appellant Jay W. Hand – Page 24
                               

                        CERTIFICATE OF SERVICE
                               


This is to certify that pursuant to the Applicable Rules of Civil Procedure, the
above document, including attachments, was served upon the following attorney(s)
of record and pro se parties on the ___24th_____ day of __September__________,
2015, by the method indicated:


_____ In Person to:
_____ By Regular U.S. Mail to:
_____ By Courier Delivery to:
_____ By Certified Mail, Return Receipt, Requested to:
_____ As directed by the Court via e-filing to:
__X__       By facsimile to:
__X__       By E-Mail to:

      VIA Facsimile: (888) 743-5203
      VIA E-MAIL: SRD@srdesq.com
      Scott R. Doody
      LAW OFFICES OF SCOTT R. DOODY
      420 Throckmorton Street, Suite 200
      Fort Worth, Texas 76102




                               _/s/Michael Johnston_________________
                               Michael W. Johnston




                      Brief of Appellant Jay W. Hand – Page 25
                           Appeal No. 02-15-239-CV

            IN THE SECOND DISTRICT COURT OF APPEALS
                      AT FORT WORTH, TEXAS

                                


                                JAY W. HAND
                            – Appellants/Defendants

                                         v.

                               HARRIS HUGHEY
                               – Appellee/Plaintiff

               On Appeal from the 367th Judicial District Court
                           Denton County, Texas,
                    The Hon. Vickie Isaacks presiding

                               
                     CERTIFICATE OF COMPLIANCE
                                


This is to certify that this Brief complies with the word count limit of Texas Rule
Appellate Procedure 9.4(i)(3). Utilizing the word count feature of Microsoft
Office Word 2007 this Brief contains _4,762_ words.

                                _/s/Michael Johnston_______________________
                                Michael W. Johnston




                       Brief of Appellant Jay W. Hand – Page 26
                      Appeal No. 02-15-239-CV

         IN THE SECOND DISTRICT COURT OF APPEALS
                   AT FORT WORTH, TEXAS

                           


                           JAY W. HAND
                       – Appellants/Defendants

                                    v.

                          HARRIS HUGHEY
                          – Appellee/Plaintiff

           On Appeal from the 367th Judicial District Court
                       Denton County, Texas,
                The Hon. Vickie Isaacks presiding

                           

                   APPENDIX OF APPELLANT
                           


LIST OF DOCUMENTS                                             TAB

Order Denying Motion to Dismiss (CR 655)…………………………… 1

Order Granting Motion to Dismiss (CR 576)…………………………… 2

The Hand Campaign Flyer (CR 165)……….…………………………… 3

Hughey Affidavit (CR 252) ………….…….…………………………… 4




                  Brief of Appellant Jay W. Hand – Page 27
