The only people in Courtroom 471 on August 22, 2022, for the hearing on Tommy’s Motion for Summary Judgment (MSJ) were Judge Wheless, Tommy, Robert (my lawyer), and me. Robert and Tommy stood at a lectern in front of the judge’s bench, while I sat a few rows back in the cheap seats. (Because I was the only spectator, I had an unobstructed view.)
I’m not going to describe the lawyers’ arguments in detail – for one thing, I didn’t entirely understand some of the arcane legal theories that Robert presented. I’ve posted a complete transcript if you want to make sure you don’t miss anything important, but I’ll go into detail about only a couple of memorable exchanges.
The Case of the Missing Affidavit
Less than 10 minutes into Tommy’s argument, I was surprised to hear this exchange between him and the judge:
Tommy: I think it’s worth noting there’s not even an affidavit attached, not even a self-serving affidavit, that said, “Hey, I’ve exclusively used this for ten years.”
Judge Wheless: I saw that. I think it’s the first time I’ve ever seen a response to a summary judgment that didn’t have an affidavit attached.
Unfortunately, the record doesn’t reflect the fact that Judge Wheless chuckled when he made his observation. That’s a perfect example of why recording devices should be mandated in every courtroom in every courthouse in the United States. But that’s a subject for another rant.
It sounded to me like Tommy and Judge Wheless (before whom Tommy has probably appeared dozens, if not hundreds, of times) were commiserating about the pitiable ineptitude of one-man law firms. Tommy was gently suggesting that lawyers who know what they’re doing work for large and prestigious law firms – firms that regularly donate to Republican candidates. Although judges and Super Lawyers (like Tommy) have to tolerate the pissant lawyers who work alone, that doesn’t mean they have to respect them.
I’ve since learned that although affidavits are commonly used by both sides in summary judgment hearings, they are not required. (“The adverse party, not later than seven days prior to the day of hearing, may file and serve opposing affidavits.” – Texas Rule of Civil Procedure 166a). In any event, the lack of an affidavit shouldn’t have elicited scorn from the supposedly impartial judge who’s hearing the case.
Me as Tommy’s Prop
One of the elements of proving that I had an easement across Sonia’s property was the concept of “hostility.” This doesn’t mean that Sonia was “hostile” to me in an informal sense; in a legal sense, it simply means that I had stepped onto Sonia’s property without her permission (in other words, it was “hostile” access as opposed to “consensual” access). But…
When it suited him, Tommy reverted to the non-legal definition of “hostility,” using it to characterize my relationship with Sonia. “It probably couldn’t be much more hostile,” he claimed, which had a measure of truth, but which had nothing to do with the case. But then I realized that he was cleverly setting up another irrelevant point that he wanted to make sure he got in front of the judge:
Tommy: We are back here Thursday of this week because Mr. Mishkoff has sued me and my law firm and her for a statement that I made in a pleading.
What is not apparent in the transcript is that Tommy turned and pointed to me in the audience as he delivered this line to the judge. I can’t say that I was thrilled to serve as a convenient prop for Tommy’s theatrics, but there I was.
Is it proper for an attorney to point to a spectator to help make a point? I was a party to the case, but the judge didn’t know that, because I hadn’t been officially introduced in the proceedings. (Tommy recognized me only because I had been a witness in the Temporary Injunction hearing a few months earlier.)
But what he did is less important than why he did it: Tommy went out of his way to raise an issue that was totally irrelevant to the easement case as an underhanded way of trying to convince the judge that I was a serial litigator who went around filing frivolous lawsuits, and that this lawsuit should be dismissed to discourage me from doing it again.
According to the Texas Rules of Evidence, Tommy’s arguments had to be relevant to the case being heard so as not to unfairly prejudice the judge against me. And according to the Texas Disciplinary Rules of Professional Conduct, it was unethical for Tommy to have made a statement in court with the sole purpose of prejudicing the judge.
The fact that Tommy and I were scheduled for a hearing on my libel case in a few days had no relevance to the subject of this hearing, which was whether to dismiss my easement case. The only reason Tommy mentioned the libel case was to prejudice the judge against me, a subliminal technique that I’ve learned is an important component of Tommy’s legal toolkit.
Also, you may have noticed that Tommy told the judge that I was suing him for something he’d said “in a pleading.” So, what does that have to do with the easement case, you ask? Nothing. But it has everything to do with a legal theory that lawyers are free to say anything they want, even if it’s libelous, as long as it’s wrapped in a lawsuit. Tommy was not only telling the judge that I was in the habit of filing frivolous lawsuits, he was making sure the judge knew that I was attacking the right of lawyers to lie in lawsuits, which lawyers believe to be their inalienable right.
The Ruling
Even if you had been sitting in the courtroom, you might have missed the ruling if you had blinked:
Judge Wheless [to Robert]: Does that conclude your argument?
Robert: Yes, Your Honor.
Judge Wheless [to Tommy]: Anything else, sir?
Tommy: No, Your Honor.
Judge Wheless: Motion for summary judgment is granted.
And just like that, it was over. Judge Wheless didn’t formally issue an order for a couple of months, but when he pronounced that the “motion for summary judgment is granted,” my easement case was effectively over. (Unless I decided to appeal the decision. Stay tuned.)
So, you’re wondering, why did Judge Wheless rule against me?
I’ve wondered about that myself. To this day, Judge Wheless has not provided even a glimmer of a rationale for his decision.
When I mention that to people, they invariably say: “But if a judge rules against you, he has to tell you why he ruled that way!” People have that reaction because it is totally inconsistent with American concepts of justice and fair play to think that judges, in whom society invests awesome power, can exercise that power capriciously. We instinctively believe that judges should have to justify their decisions – because if judges’ decisions are not justifiable, then those decisions are not just. And if that’s what’s happening, then justice has become no more than a fleeting hope, an aspiration rather than an actual fact.
However, when I did some research, I discovered that there did appear to be a way in which I could force Judge Wheless to explain his decision. But before I get into that, I’d like to bring you up to date on my libel case. If you think the easement case kept me busy in July and August of 2022, I have to tell you that the libel case was infinitely more intense for me, mostly because I had to figure out how to do everything by myself.
I had to fasten my seat belt, because I knew it was going to be a bumpy summer.
Document Links
Transcript of the summary judgment hearing
Order granting summary judgment
Leave a Reply