Thursday, April 12, 2018


Does it sound odd to you that Montoya fails to tell you that my Petition for Writ of Mandamus in the case has been pending for months before the Texas Supreme Court.  Mike has been unable to get it dismissed. The fact he does not tell you means, Mike Hernandez intended for you to be mislead.  Is it odd that the Texas Supreme Court gave me extra time to file my Petition for Review.  Mike's lawyer has had it since the 10th.  Did Mike's lawyer hide it from Mike, or is Mike desperate to mislead.

The problem with the lawsuit is, nowhere in the lawsuit  does it attribute to me any words either spoken or written.  So how have I defamed him?

Well you see, the federal court of appeals disagrees strongly with the Fort Worth Court of Appeals on this issue.  It is because of the conflict in the ruling by the Fort Worth Court of Appeals and the federal court of appeals the Texas Supreme Court is still working on the mandamus and will probably accept the Petition for Review.

Mike Hernandez and his drunk mouth piece fail to tell you that the Fort Worth Court of Appeals has been reversed on this law more than any other court of appeals.  Why did they not tell you this?  They are cons and liars.

The Fort Worth Court of Appeals refused to order I pay Mike's costs because they know his lawsuit is the only frivolous thing in this case. They can cite no case wherein I have ever been found to have filed a frivolous lawsuit.  The State Bar illegally on no evidence found a lawsuit I filed for a client was frivolous but failed to note the insurance company paid $25,000 to settle it.  You cannot collaterally attack the judgment of another court after settlement between the parties.  Mike just got the State Bar added to the federal lawsuit.  His claim is also defamation per se, because I do appellate and trial briefs through various law firms.  The false statement goes to the qualilty of my work.

The Fort Worth Court of appeals is so bad in one ruling on this law, the legislature moved immediately to reverse them making a point in the legislative record that the Fort Worth Court of Appeals just blatantly ignored the law.

But Mike paying for this lie and deception today means to me his lawyer told him he is screwed with the Texas Supreme Court because of the well established law as outline by the Federal Court of Appeals will hold Mike's lawsuit is frivolous.

In the federal case, the court of appeals found the failure to set the hearing on the Motion to Dismiss was meaningless because they have jurisdiction over cases which only involve questions of law.

If I were to sue Mike and Montoya without alleging any statements they made concerning me they would call it frivolous.  This is exactly what Mike did in his lawsuit, and Montoya and Hernandez would have you believe his lawyer is brilliant for failing to attribute one word spoken or written by me in his lawsuit for defamation.  They will be sued in federal court. That one is being amended to fix some problems and then my source in Austin will file it.

The federal trial judge is bound by the federal court of appeals unless the Texas Supreme Court reverses  the federal court of appeals.

From  Cuba v. Plyant, 814 F.3rd 701,709-10, 11 (5th Cir.2016).

Mind you after finding the trial court never set the matter for hearing, they found they still had jurisdiction and  dismissed part of the defamation claim.

"“Therefore, the appeal is timely, and this court has jurisdiction. We therefore turn to the merits of the Pylants' TCPA motion to dismiss.” Cuba v. Plyant, 814 F.3rd at 711.

“Because the motion to dismiss presents purely legal issues that were extensively briefed in the district court and would be subject to de novo review on appeal, we need not remand the TCPA issues. [footnote omitted] First, we review the analysis that a court is to perform under the TCPA. Second, we determine whether the TCPA applies to the conduct and claims at issue here. Because the TCPA does apply, the third portion of our analysis looks to each of Cuba's claims to decide whether it survives the motion to dismiss. We conclude that the motion should be denied as to the malicious-prosecution claim, granted in part and denied in part as to the defamation claim, and granted as to the tortious-interference-with-contract claim.” Cuba v. Plyant, 814 F.3rd at 711.
In reviewing this matter de novo, this Court must look to the elements of defamation. A claim for defamation under Texas law has three elements: The defendant (1) published a statement; (2) that was defamatory concerning the defendant; (3) while acting with actual malice (if the plaintiff was a public official or figure) or with negligence (if the plaintiff was a private individual) regarding the truth of the statement. WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998)"

I highlighted the above because it is key.  Mike Hernandez's lawyer never claimed in published or spoken statement by me anything I have ever said  As to a defamation suit, Mike fails on element one.  Montoya and Mike claim this to be brilliant lawyering.

Also the 13th Court of Appeals out of Corpus found the relevant section to be absurd based on its plain language and went with the intent of the law instead of the plain meaning of the limited wording in one part of the law.  The Fort Worth Court of Appeals refused to follow the section of the law that every provision is to be read to effectuate the law.  The Texas Supreme Court now has two opinions which differ from the Fort Worth Court of Appeals.  The Fort Worth Court of Appeals which is standard practice made no attempt to say why these other appellate courts are wrong.


The law provides the court has a date certain by which it must set the matter for hearing.  Endless phone calls and motions could not get the matter set.  This violates the Rules of Professional Conduct for Judges.  Mike and Montoya are AOK with judges violating the rules of professional conduct.

But what the Fort Worth Court of Appeal really said which Mike and Montoya left out is 

"(b) In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take judicial notice that the court's docket conditions required a hearing at a later date, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c)

There is no dispute the trial court refused to set the matter for hearing on a timely basis.  The black and white letter of the law says the judge must make judicial findings to extend its jurisdiction.  The Fort Worth Court of Appeals found the law puts the burden on the Defendant to make judicial findings , and therefore without me making findings from the  trial court to justify extending its jurisdiction, I was wrong for cancelling the hearing set by the court without the requisite findings.  Had I gone to the hearing and won, I would have lost on appeal, and been caught with Mike's costs.    

If you are so stupid as to believe a party can make findings on a judge's docket without any access to the docket, then you are just too stupid to understand.


No comments: