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Tuesday, October 21, 2014

Mary Cummins v crazy lady in Texas appeal submitted to Second Court of Appeals in Texas

Mary Cummins v crazy lady in Texas appeal of the 352nd district court case for defamation and breach of contract was submitted to the Second Court of Appeals in Texas. The Court is expected to release their opinion by the end of the year.


Mary Cummins was sued by crazy lady in Texas for defamation and breach of contract September 2010. The trial took place June 2012. Defendant Cummins lost at trial and appealed to the Second Court of Appeals.

Cummins' appeal states that appellees did not show the elements of defamation or malice. Appellees also did not show the elements of breach of contract. Lastly appellees did not show any evidence for any damages.

Cummins' defamation case is almost identical to the appeal of Carla Main v H. Walker Royall appeal # 05–09–01503–CV. Cummins who is not an attorney wrote her appeal as a pro se. Cummins' defamation argument and citations are almost identical to those of Carla Main. Cummins never crazy lady in Texas. Because they are public figures they would also have to show malice which they did not show. They also did not show any evidence of any damage.

Two attorneys for two animal rights organizations and a freedom of speech organization Public Citizen wrote amicus briefs on behalf of Cummins. Their argument mirrored Cummins' appeal, i.e. there was no proof of defamation, malice or damages. One attorney went so far as to state that the court should have referred the case to a criminal court to file charges against crazy lady in Texas for animal cruelty. In video which was presented at the trial ...can be seen operating on a bat without pain relief when she is not a veterinarian and has not gone past the eighth grade in school.

In Cummins' appeal she proves that appellees showed no proof of defamation for the 45 alleged defamatory statements. In fact Cummins never even knew what phrases appellees considered to be defamation until after the trial in the form of the court order. Cummins noted that appellees did not even reply to the points she raised in her appeal or to the specific items. No one wrote an amicus brief on behalf of appellees.

The appeals court opinion should reverse the 352nd District Court case final order. Retired visiting Judge William Brigham oversaw the trial though Judge Bonnie Sudderth is the Judge for that court.

Below are the actual documents in the appeal.


Below are the documents for my appeal. It was submitted to the judges yesterday. They should issue an opinion in two weeks to two months.

Motion to strike court order in the trial court
http://marycummins.com/motion_strike_order.pdf

Petition for Review for Supreme Court of Texas
http://animaladvocates.us/petition_review_supreme_court.pdf

My Appellant's appeal brief

Appellees' reply brief

My Appellant's reply to their reply brief

Amicus brief submitted on my behalf by Public Citizen attorney Paul Alan Levy

Amicus brief submitted on my behalf by The Cambodia Wildlife Sanctuary and Elephants in Crisis.org attorney David Casselman


Below is ann article about Carla Main winning her appeal against H. Walker Royall.

Texas Appeals Court Rejects Developer's Defamation Claims
Jul. 26, 2011 4:10 pm

"This week a Texas appeals court threw out nearly all of Dallas developer H. Walker Royall's defamation lawsuit against Carla Main, author of Bulldozed, a 2007 book about eminent domain abuse, and her publisher, Encounter Books. Royall—who initially sued not only Main and Encounter but also a newspaperthat that published a review of the book, along with University of Chicago law professor Richard Epstein, who provided a blurb for it—did not like the way he was portrayed in Main's discussion of a marina project in Freeport, Texas, that involved seizing land from a local shrimping business. In November 2009, the trial court rejected Main and Encounter's argument that Royall's lawsuit should be dismissed because Bulldozed is protected by the First Amendment. But Texas law allows the immediate appeal of such decisions, and yesterday the Court of Appeals for the 5th District of Texas ruled that Royall had failed to specify anything in the book that defamed him. "We have examined the 79 grounds in the no-evidence motion that address statements in the book and have concluded that Royall did not raise a genuine issue of material fact regarding any of the grounds," the court said.

That conclusion is remarkable given the highly favorable standard that Royall enjoyed at this stage of the case. He would have been allowed to proceed if he had offered "more than a scintilla of evidence" on each of three points required to win: 1) that the defendant published a statement of fact, 2) that the statement was defamatory, and 3) that the defendant acted with "actual malice" regarding the truth of the statement (in a case involving a public figure). Furthermore, Royal was entitled to "every reasonable inference" and the benefit of any doubt. Yet in the appeals court's judgment, he had essentially no chance of prevailing on any of his allegations concerning the book. The only remaining issues, which were sent back to the trial court for further consideration, relate to whether Main and Encounter "aided, abetted, and ratified others' defamatory statements" about Royall.

"Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics," says Dana Berliner, a senior attorney at the Institute for Justice, which is representing Main and Encounter.  "The appeals court has exposed the frivolity of Royall's lawsuit, holding that Royall failed to prove that a single word of Bulldozed defames him."

That is the positive spin. Here is the negative spin: In our system of justice, rich people with thin skins don't need any evidence to drag their critics into an expensive, time-consuming, anxiety-provoking legal process that lasts for years. For any journalist who has ever wondered whether he could be sued over something he wrote that reflected badly on someone (which some of us do several times a day), the answer is yes: You can be sued over anything. The suit may not be legally successful, but if the plaintiff's goal is to punish you for the offense you caused him and make you (and everyone else) think twice before writing about him again, he wins whether or not he ultimately can prevail in court.

Below is the opinion in the Carla Main, The Encounter for Culture and Education, Inc appeal

Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game and the USDA. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.



Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game and the USDA. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.


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