As you’ll see if you read the transcript, the TCPA hearing was largely a rehash of the arguments that Tommy and I had been lobbing at each other for more than six weeks.
Here are some of the highlights.
Mitch Makes His Case
Attorney Mitch Little’s main point was that, even if his clients’ charge that I had exposed myself were completely dishonest and libelous, Judge Bouressa would have to dismiss the case because they had made those charges as part of a lawsuit. And they were lawyers, so they could say anything they wanted to say. In case you think I’m exaggerating to make Mitch look bad, here are his exact words:
“The case law makes it clear that even if the allegations in Ms. Bryant’s counterclaim were not true, even if they were exaggerated or hyperbolic, even if they were made up, it wouldn’t matter. Attorney immunity still covers these potential claims against Mr. Garrett and our law firm and Ms. Bryant.” – Mitch Little
I Make My Case
In opposition to Mitch’s claim that his clients could do anything they wanted to do and I just had to shut up and take it, I made several counterarguments:
- I noted that Tommy had claimed that his statement wasn’t defamatory, but he wouldn’t admit what he had actually said. “They have said, for example,” I pointed out, “that ‘the allegation in the counterclaim is that Mr. Mishkoff not only trespassed on Ms. Bryant’s real property but seemed to do so while evincing conspicuousness.’ If that was what they said, we wouldn’t be here today. I wouldn’t have to sue them for libel. But what they said is that I simply seem to enjoy exposing myself to her security cameras.”
- Tommy contended that I hadn’t provided evidence that I had not exposed myself. I pointed out that the Texas Supreme Court had ruled that circumstantial (indirect) evidence was every bit as admissible as direct evidence. The fact that Tommy had presented absolutely no evidence that I had exposed myself was powerful circumstantial evidence that I had done no such thing.
- I admitted that Texas courts have ruled that defamatory statements are protected if they are part of a judicial proceeding. And if that were the entire rule, I added, Tommy would be right. “But then there is a comma,” I pointed out. “And it says, ‘if it has some relation to the proceeding.’” And in another case, the court maintained that “the challenged defamatory statement must bear some relation to the subject matter of the underlying proceeding.” I argued that charging me with exposing myself bore no relation to trespassing, so Tommy’s defamation was not protected.
Finally, I reminded the judge that malice was an important element of libel. (In other words, an offhand statement is less likely to be seen as libelous than a malicious one.) In support of that, I cited a Texas court decision that held that even attorneys can be liable for defamation when their conduct is fraudulent or malicious. “I am certainly not accusing them of fraud,” I generously conceded. “But I am absolutely accusing them of malice.”
I suggested that, when they accused me of exposing myself, the defendants must have either been illiterate (so they hadn’t understood what they were saying), incredibly sloppy (so they had accidentally said something they didn’t mean), or malicious. “I would never accuse them of being illiterate,” I said, resisting the temptation to do exactly that. And if they had just been sloppy, I pointed out, they would have issued a retraction, but “I’ve asked them twice to retract their statement, and they’ve refused.” So that left malice as the only option.
And if they were malicious, I maintained, they were liable for defamation. In spite of being lawyers.
Money Matters
Finally, to my surprise, Judge Bouressa asked Mitch to let her know how much money they wanted from me. Mitch said he’d send her that information in the form of an affidavit (a written statement of facts that you swear are true) later that day. I took this as a bad sign, so the judge and I had this exchange:
Me: “Your Honor, should I take that to mean that you have already decided to rule against me and now you are just looking for the amount of money involved?”
Judge Bouressa: “I have not ruled on the motion, but if the motion is to be granted, fees are a mandatory award, and so I need to receive evidence in order to make that award, if that’s the ruling.”
That sounded less than convincing to me. At that point, I believed that I had lost the case, and I was extremely disappointed.
Decision Time
The last two times I had been in hearings in this very court, the judge had issued rulings (against me, both times) before I had even left the room. But maybe Judge Bouressa wasn’t able to do that because Mitch hadn’t yet told her how much of my money he wanted.
And sure enough, her final words were: “I would imagine I’ll have a ruling for the parties probably by the end of the day on Wednesday.” This was Thursday, August 25, so Judge Bouressa was definitively telling us that she imagined she would probably issue a decision by Wednesday, August 31. Labor Day was only a few short days after that, so I was pleased that the judge imagined that I’d probably learn of her decision before the long holiday weekend.
Document Links
Transcript of the TCPA hearing
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