Ronald G. Hole v. William L. Hubbard

ACCEPTED
13-14-00617-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/1/2015 11:44:14 AM
DORIAN RAMIREZ
CLERK
CASE NO. 13-14-000617-CV FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
__________________________________________________________________
4/1/2015 11:44:14 AM
DORIAN E. RAMIREZ
In the Court of Appeals for the Clerk
Thirteenth Court of Appeals District
Corpus Christi-Edinburg, Texas
__________________________________________________________________
RONALD G. HOLE,
APPELLANT
V.
WILLIAM L. HUBBARD,
APPELLEE
__________________________________________________________________
APPELLEE'S BRIEF
__________________________________________________________________
On Appeal from the 94th Judicial District Court of Nueces County, Texas
Hon. Bobby Galvan, Presiding Judge
Cause No. 2013DCV-4177-C
__________________________________________________________________
WILLIAM L. HUBBARD
Texas Bar No. 10142000
62 Vista San Juan
Pagosa Springs, Colorado 81147
956-778-6692
FAX - 877-512-6720
ORAL ARGUMENT Email - hubbard43@gmail.com
CONDITIONALLY REQUESTED
IN PROPRIA PERSONA
IDENTITYOF PARTIES AND COUNSEL
Appellee
William L. Hubbard
62 Vista San Juan
Pagosa Springs, Colorado 81147-7004
956-778-6692
FAX - 877-512-6720
Email - hubbard43@gmail.com
Trial Counsel for Appellee
C.M. Henkel, III
Attorney at Law
50 North Shoreline, Suite 901
Corpus Christi, Texas 78401
361-883-1500
FAX - 361-888-9149
Email - skip@cmhenkel.com
Audrey M. Vicknair
Attorney at Law
801 North Carancuhua, Suite 1350
Corpus Christi, Texas 78401
361-888-8413
FAX - 361-887-6207
Email - avicknair@vicknairlaw.com
ii
Appellate Counsel for Appellee
William L. Hubbard
62 Vista San Juan
Pagosa Springs, Colorado 81147-7004
956-778-6692
FAX - 877-512-6720
Email - hubbard43@gmail.com
IN PROPRIA PERSONA
Trial and Appellate Counsel for Appellee
Ronald G. Hole
Attorney at Law
P.O. Box 720547
McAllen, Texas 78504
956-631-2891
FAX - 956-631-2415
Email - mail@holealvarez.com
Trial Judge
Hon. Bobby Galvan, District Judge
94th Judicial District
Nueces County Courthouse
901 Leopard Street
Corpus Christi, Texas 78401
361-888-0320
FAX - 361-888-0730
iii
TABLE OF CONTENTS
Page
Number
Identity of Parties and Counsel ii
Table of Contents v
Index of Authorities vi
Statement of the Case viii
Statement Regarding Oral Argument ix
Reply Points Presented x
Appellee's First Reply Point x
[Reply to Appellant's Issue No. Two]
The trial court correctly denied Appellant's Motion
for Summary Judgment alleging that the statement that
Appellant has no aversion to filing a lawsuit without
merit was defamatory because the statement is true - the
lawsuit had no merit.
Appellee's Second Reply Point x
[Reply to Appellant's Issue No. One]
The trial court correctly granted Appellee's motion
for summary judgment because the statement that
Appellant has no aversion to filing a suit without merit
was made in anticipation of threatened litigation and was
privileged.
Statement of Facts 1
Summary of the Argument 1
iv
Appellee's First Reply Point Restated 3
Appellee's Second Reply Point Restated 9
Prayer for Relief 14
Certificate of Service 15
Certificate of Compliance 16
v
INDEX OF AUTHORITIES
Page
Number
CASES
Chard v. Galton, 277 Or. 109, 559 P.2d 1280 (1977) 13
Crain v. Smith, 22 S.W.3d 58 (Tex.App.-- 10,11
Corpus Christi 2000, no pet.)
Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472 7
(Tex.1995)
James v. Brown, 637 S.W.2d 914 (Tex. 1982) 9
Krishnan v. Law Offices of Preston Henrichson, P.C., 11,12,13
83 S.W.3d 295 (Tex. App.-Corpus Christi 2002,
pet. denied)
Musser v. Smith Protective Services, 723 S.W.2d 653 6
(Tex.1987)
Neely v. Wilson, 418 S.W.3d 52 (Tex.2013) 5
New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex.2004) 6
Russell v. Clark, 620 S.W.2d 865, 870 (Tex.Civ. App.-- 12
Dallas 1981, writ ref’d n.r.e.)
Super Future Equities, Inc. v. Wells Fargo Bank 5
Minnesota, N.A., 553 F.Supp.680 (N.D.Tex.2008)
Swate v. Schiffers, 975 S.W.2d 70, Tex.App.-- 6
San Antonio 1988m pet. denied)
vi
Wansey v. Hole, 379 S.W.3d 334 (Tex. App.-- viii,1,4,7,8
Corpus Christi-Edinburg 2011), aff’d in part and
and rev’d in part, Wansey v. Hole, 379 S.W.3d 246
(Tex. 2012)
RESTATEMENT OF TORTS (SECOND)
§ 586 10-11
vii
STATEMENT OF THE CASE
Appellant filed suit alleging that Appellee had defamed him by saying that
Appellee had no aversion to filing a suit without merit and that the statement was
false. The reference to a "suit without merit" was to Wansey v. Hole, 379 S.W.3d
334 (Tex.App.--Corpus Christi-Edinburg 2011, rev'd in part, aff'd in part, Wansey
v. Hole, 379 S.W.3d 246 (Tex.2012), a lawsuit filed by Appellant, which he
ultimately lost.
Appellee's motion for summary judgment asserted privilege -- a statement
made during or in contemplation of litigation. Appellee's motion was granted.
Appellant filed a motion for summary judgment alleging that the statement
was false and defamatory. Appellant's motion for summary judgment was denied.
viii
STATEMENT REGARDING ORAL ARGUMENT
Appellant has requested oral argument basing his request in part on his
theory that the case is "convoluted." It is not. Appellant has alleged that he has
been defamed. The statement made is subject to two absolute defenses that are
well-supported by a significant body of legal precedent -- truth and privilege. The
issues were correctly decided by the trial judge and that judgment should be
affirmed.
However, should the Court desire oral argument, Appellee requests the
opportunity to participate.
ix
REPLY POINTS PRESENTED
Appellee's First Reply Point
[Reply to Appellant's Issue No. Two]
The trial court correctly denied Appellant's Motion for Summary Judgment
alleging that the statement that Appellant has no aversion to filing a lawsuit
without merit was false and defamatory because the statement is true - the lawsuit
had no merit.
Appellee's Second Reply Point
[Reply to Appellant's Issue No. One]
The trial court correctly granted Appellee's motion for summary judgment
because the statement that Appellant has no aversion to filing a suit without merit
was made in anticipation of threatened litigation and was privileged.
x
STATEMENT OF FACTS
SUMMARY OF ATHE ARGUMENT
Appellee filed a motion for summary judgment based on privilege -- a
statement made in relation to pending or threatened litigation. Appellant filed a
response asserting that the claimed privilege did not apply and a motion for
summary judgment asserting that the statement was false and defamatory. The
statement was both true and privileged.
Appellee's motion was granted; Appellant's was denied.
STATEMENT OF FACTS
Appellant's intent in bringing a defamation lawsuit is to effectually set aside
the loss of the Wansey1 lawsuit. By prevailing on a claim that a statement made
that the Wansey suit was without merit, Appellant can choose to ignore the rulings
of the Court of Appeals and the Supreme Court to boast that he won the
defamation suit. The effect of allowing Appellant to prevail on the defamation
claim is to overrule Mr. Wansey's victory sub silentio. Either the Wansey lawsuit
had merit or it did not. This Court in part and the Supreme Court on all issues said
1
Wansey v. Hole, 379 S.W.3d 334 (Tex.App.-Corpus Christi-Edinburg 2011), rev'd in part, aff'd
in part, 379 S.W.3d 246 (Tex.2012).
1
that it did not. Appellant is still trying the Wansey suit, which was over when the
Supreme Court issued its judgment and mandate.
The second issue is whether the statement made is privileged. The statement
was contained in a letter to Bill Gault dated March 7, 2013, an attorney whose firm
had entered an appearance in the Wansey appeal. The statement was:
However, as shown by the Supreme Court opinion [in the
Wansey case], Ron[ald G. Hole, the Appellant] has no aversion
to filing a suit without merit.
CR-80, Exhibit 3-F, Defendant's [Appellee's] Motion for Partial Summary
Judgment - letter from Appellee to William Gault.
The statement cannot be taken out of context. The first paragraph in the
letter states:
If there is anything you can do to try to keep Ron from
taking some kind of action with regard to what I consider to be
an ill-advised lawsuit, I think we will all benefit.
CR-80, Exhibit 3-F, Defendant's [Appellee's] Motion for Partial Summary
Judgment -- letter from Appellee to William Gault.
At this point, Appellant has threatened litigation against Appellee in his
letter dated March 5, 2013:
Accordingly, please be advised that this letter is to put
you on notice of a claim against you and your client for
violations of Chapter 12 of the Texas Civil Practice and
Remedies Code. When a defendant knows or should have
2
known at the time of filing or recording, that the abstract of
judgment was a fraudulent lien, §12.002 of the Texas Civil
Practice and Remedies Code provides that "a person who
violates Subsection (a) of that section is also liable to each
injured person for the greater of $10,000.00 or the actual
damages, together with court costs, reasonable attorney's fees
and exemplary damages to be determined by the court. You
and your client have damaged both Cheryl and me - that's two
"Injured parties."
Please put your malpractice carrier on notice and
immediately have the two fraudulent liens removed. Ms. Garza
and I already have over $1,125 in attorney's fees that have been
incurred by Cheryl D. Hole, because of these fraudulent liens.
If we have to take steps, In accordance with §§51.901 and
51.902 of the Texas Government Code, to have these liens
removed by judicial action, that will only increase the attorney's
fees dramatically. I will give you seven (7) days before we take
steps to have these fraudulent liens judicially removed, and
before I file suit against you. Please have your attorney or
malpractice carrier give me a call to discuss the remaining
claims.
CR-80, Exhibit 3-C, Correspondence from Appellant dated March 5, 2013,
threatening litigation.
APPELLEE'S FIRST REPLY POINT RESTATED
[Reply to Appellant's Issue No. Two]
The trial court correctly denied Appellant's Motion for Summary Judgment
alleging that the statement that Appellant has no aversion to filing a lawsuit
without merit was defamatory because the statement is true - the lawsuit had no
merit.
3
Factual Background
In his brief, Appellant states that the statement made by Appellee that
Appellant has no aversion to filing a lawsuit without merit was false and
defamatory.
The actual statement was, "However, as shown by the Supreme Court
opinion, Ron has no aversion to filing a suit without merit." CR, page 35
(correspondence to William Gault). Appellant's assertion in his brief that an
assertion was made that Appellant has filed "suits without merit" is not correct.
Appellant's Brief, page 24. The reference in Appellee's letter was solely to the
Wansey Lawsuit.2
The pleadings, Plaintiff's Original Petition in the Wansey Lawsuit, alleged:
However, on or about January 11, 2005 at about 8:00
p.m., one of Defendants' employees, an instructor, was found
with Patricia alone, in the dark, outside of Rio Grande
Defensive Driving School. Defendants' employee was
knowingly engaging in inappropriate conduct, which, based
upon information and belief, included physical contact with
Patricia.
CR, page 134.
2
As used herein, "Wansey Lawsuit" refers to the trial court proceeding, Cause No. CL-06-2449-
B in County Court at Law No. Two of Hidalgo County, Texas, the Court of Appeals opinion
reported at 379 S.W.3d 334, and the Supreme Court opinion reported at 379 S.W.3d 246.
4
For a cause of action, Appellant alleged:
2. Grossly Negligent or Malicious Hiring,
Supervision, Training, or Retention
Defendants are liable for the grossly negligent hiring,
supervision, training or retention of its employees. Defendants
owed Plaintiff a duty to hire, supervise, train or retain
competent employees. Defendants owed Plaintiff a duty to
hire, supervise, train or retain competent employees. As shown
by the incident that occurred on January 11, 2005, Defendants
breached that duty and such behavior was the proximate cause
of Plaintiff's damages and injuries, for which Plaintiff hereby
sues.
CR, page 136.
The crux of this allegation is that an incident occurred and therefore there is
liability. This is not a correct statement of fact or law.
Argument and Authorities
Truth is an absolute defense to an action for defamation. Neely v. Wilson,
418 S.W.3d 52, 62 (Tex.2013). In this proceeding, Appellant filed a motion for
summary judgment alleging that the statement was false. CR, page 114. The trial
court's order denying the summary judgment did not specify a reason for the
denial. CR, page 254.
Truth as a defense to a libel action is an affirmative defense and the
defendant bears the burden of proof to show that the statement was true. Super
Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A., 553 F. Supp. 680, 691
5
(N.D.Tex.2008). The opinion of the Texas Supreme Court establishes that there
were no facts to support these allegations.
The first test for whether a statement is defamatory is whether is whether the
words used were capable of a defamatory meaning. Musser v. Smith Protective
Services, 723 S.W.2d 653, 654-55 (Tex.1987). "The court construes the statement
as a whole in light of surrounding circumstances based upon how a person of
ordinary intelligence would perceive the entire statement." Musser, supra. "[T]he
reviewing court must look at the entire publication rather than at indivudual
sentences or portions of the communication." Swate v. Schiffers, 975 S.W.2d 70,
75 (Tex.App.--San Antonio 1998, pet. denied).
The surrounding circumstances are the lack of evidence to support the
allegations to support the suit filed against Mr. Wansey and Mr. Wansey's ultimate
victory at the Texas Supreme Court. "The appropriate inquiry is objective, not
subjective." New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004). Any
objective evaluation of the facts surrounding this case would reveal the truth of the
statement. It is only "when the court determines the language is ambiguous or of
doubtful import should the jury then determine the statement's meaning and the
effect the statement's publication has on an ordinary reader." Musser, supra.
6
Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472 (Tex.1995),
which sets out the elements that must be proved to establish a negligent hiring
case, was decided ten years before the incident alleged by Appellant.3 The
required facts, if they existed, and the law to be followed were known many years
prior to the date of the alleged incident.
The Wansey case, which was partially reversed and partially affirmed by
this Court, was appealed to the Texas Supreme Court. The Supreme Court held:
In this case, we must decide whether a plaintiff may
recover on a claim for negligent hiring and supervision despite
suffering no harm at the hands of the employee who was
allegedly negligently hired. We hold that a negligent hiring
claim requires that some harmful or negligent conduct of an
employee—one hired pursuant to the defendant's negligent
hiring or supervision practices—proximately caused the injury
complained of.
Wansey v. Hole, 379 S.W.3d 246, 246-47 [emphasis added].
The court of appeals reasoned that Hole sustained harm
in the form of the un-refunded cost of the driving course, and
that Wansey's negligent hiring practices proximately caused
those damages. We disagree.
Wansey, 379 at 247.
3
This Court did not discuss the Doe case in its opinion. Wansey v. Hole, 379 S.W.3d 334
(Tex.App.--Corpus Christi-Edinburg 2011, rev'd in part, aff'd in part, Wansey v. Hole, 379
S.W.3d 246 (Tex.2012). Nor did Appellant (Appellee in the Wansey appeals).
7
The court of appeals reasoned that Hole sustained harm
in the form of the un-refunded cost of the driving course, and
that Wansey's negligent hiring practices proximately caused
those damages. We disagree.
Wansey, 379 at 247.
In this case, Hole did not present legally sufficient
evidence of any harm caused by an employee of Wansey's
driving school. Even had Cheryl Hole sued on behalf of her
daughter, she presented no evidence that the driving instructor
actually engaged in inappropriate behavior—indeed, Ronald
Hole conceded in his trial testimony that he does not know that
anything illegal happened, but rather just thought the situation
was inappropriate. Hole also presented no evidence that proper
hiring and supervision policies would have prevented the
incident, or that her daughter suffered any harm.
Wansey, 379 S.W.3d at 248 [emphasis added].
Because Hole presented no evidence of harm caused by
an employee hired pursuant to Wansey's hiring policies, we
hold she did not present legally sufficient evidence of damages
proximately caused by Wansey's alleged negligence.
Wansey, 379 S.W.3d at 248.
Conclusion
There are no facts to support Appellant's claim that the statement made was
false. His first issue should be overruled.
8
APPELLANT'S SECOND REPLY POINT RESTATED
[Reply to Appellant's Issue No. One]
The trial court correctly granted Appellee's motion for summary judgment
because the statement that Appellant has no aversion to filing a suit without merit
was made in anticipation of threatened litigation and was privileged.
Argument and Authorities
The Texas Supreme Court made clear 30 years ago:
Communications in the due course of a judicial proceeding will
not serve as the basis of a civil action for libel or slander,
regardless of the negligence or malice with which they are made.
This privilege extends to any statement made by the judge, jurors,
counsel, parties or witnesses, and attaches to all aspects of the
proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other
papers in the case.
James v. Brown, 637 S.W.2d 914, 916-917 (Tex.1982) [citations omitted]. In
James, Marguerite James was hospitalized under the Texas Mental Health Code at
the insistence of her son and daughter. Id. at 916. Several doctors examined her
and filed reports, and one sent a letter to the children’s attorney, stating that Ms.
James “was not of sound mind.” Id. Ms. James obtained a release from custody
and all proceedings were dismissed. She then sued the doctors for defamation.
The Supreme Court held she had no claim for defamation arising from the letter
sent, because it was absolutely privileged, having been made in contemplation of a
9
legal proceeding. Id. at 917. The summary judgment granted for the defendant
was affirmed.
This Court of Appeals, in Crain v. Smith, 22 S.W.3d 58 (Tex.App.--Corpus
Christi 2000, no pet.) similarly applied the absolute privilege to a letter written by
one attorney to another in anticipation of litigation. Ray Crain, who was not an
attorney, prepared and recorded mechanics’ and materialman’s liens for Airtron.
Smith, the attorney for the owner of the property on which the liens were placed,
investigated Crain and spoke with the Chair of the Unauthorized Practice of Law
Committee (“UPL”). Id. at 59. Smith sent a letter to counsel for Airtron and stated
what she knew about Crain, with whom she had spoken, and that charges were
pending against Crain before the UPL. Smith demanded damages from Airtron
arising from the wrongful filing of the lien. Id. Crain sued Smith for defamation
for the letter sent to Ramsey. Smith asserted the defense of absolute privilege. Id.
Summary judgment was granted.
This Court held the letter was not actionable and affirmed the summary
judgment, quoting the Restatement (Second) of Torts §586 (1977):
An attorney at law is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a
proposed judicial proceeding, or in the institution of, or during the
course and as a part of, a judicial proceeding in which he
participates as counsel, if it has some relation to the proceeding.
10
Crain, 22 S.W.3d at 62.
This Court went on to quote Comment a to Section 586:
The privilege stated in this Section is based upon a public
policy of securing to attorneys as officers of the court the utmost
freedom in their efforts to secure justice for their clients.
Therefore the privilege is absolute. It protects the attorney from
liability in an action for defamation irrespective of his purpose in
publishing the defamatory matter, his belief in its truth, or even
his knowledge of its falsity. * * * The publication of defamatory
matter by an attorney is protected not only when made in the
institution of the proceedings or in the conduct of litigation before
a judicial tribunal, but in conferences and other communications
preliminary to the proceeding.
Crain, 22 S.W.3d at 62 [emphasis in original].
This Court cited several cases in which the absolute privilege was applied to
letters written by lawyers prior to suit. Crain, 22 S.W.3d at 62-63 (citations
omitted, but including James, supra). All doubts are resolved in favor of the
relevancy of the communication to the proposed judicial proceeding. Id. at 63.
The Court held that Smith’s letter to Ramsey stated her factual allegations and
legal conclusions surrounding proposed legal action against Ramsey’s client. The
letter was absolutely privileged and “cannot constitute the basis for litigation.” Id.
at 63.
Two years later, in Krishnan v. Law Offices of Preston Henrichson, P.C., 83
S.W.3d 295 (Tex. App.--Corpus Christi 2002, pet. denied), this Court reiterated the
foregoing principles in another case in which pre-suit correspondence was held to
be absolutely privileged. Of note in Krishnan is the fact that Ron Hole, the
Appellant in this action alleging defamation, was the attorney for Krishnan, the
appellant who unsuccessfully alleged she’d been defamed by pre-suit
11
correspondence. Appellant is seeking to have this Court overrule the Krishnan
case along with a long line of cases supporting that decision so he can now claim
victory.
This Court was exhaustive in its review of that legal precedent, applicable to
correspondence sent preliminarily to litigation. The Court held that letters sent by
the law office to another doctor and the medical center where Krishnan worked,
alleging she had committed medical malpractice, were not actionable. Id. at 299,
302-303. The Court made clear,
whether an attorney’s out-of-court statement is related to a
proposed or existing judicial proceeding is a question of law to be
determined by the trial court. When deciding the issue, the trial
court must consider the entire communication in its context and
extend the privilege to any statement that bears some relationship
to an existing or proposed judicial proceeding. All doubt should
be resolved in favor of the communication’s relevancy to the
proceeding.
Krishnan, 83 S.W.3d at 302 [emphasis added]. Summary judgment for the
defendant on absolute privilege grounds was affirmed.
The rule applies equally whether the letter is written by the putative plaintiff
to the putative defendant, or vice versa. See, Russell v. Clark, 620 S.W.2d 865,
870 (Tex.Civ.App.--Dallas 1981, writ ref’d n.r.e.). Similar to this case, attorney
Clark was counsel for certain parties who won their case in the Texas Supreme
Court. Russell and his company Gulf States were the losing parties in the Supreme
12
Court. The case was remanded for a new trial. Clark wrote a letter to several of
Russell’s investors stating “The Supreme Court of Texas has ruled in favor of my
clients . . . .” Id. at 866. The letter stated in several places Clark’s perception of
the Supreme Court’s holdings, none of which was favorable to Russell. Id. at 866-
868. Clark states in the letter that he tried to settle the case but Russell refused,
and he seeks information from the investors that will be necessary on retrial of the
case, which he says Russell would not give him. Id.
Russell sued for defamation. Id., 620 S.W.2d at 868. The Dallas Court held
the communication, made by an attorney preliminary to a judicial proceeding (the
re-trial), was absolutely privileged. Id. at 868-869. The Court discussed, among
others, the decision reached in Chard v. Galton, 277 Or. 109, 559 P.2d 1280
(1977), in which “the defendant's attorney had written a letter [preliminary to
possible litigation] to a representative of plaintiff's insurer seeking to settle an
automobile accident case. The letter contained statements that plaintiff had been
previously involved in a fatal accident while in a drunken stupor.” Russell, 620
S.W.2d at 870. The statement was held to be privileged because it had some
relation to the possible litigation. Id. “The court must consider the entire
communication in its context, and must extend the privilege to any statement that
bears some relation to an existing or proposed judicial proceeding.” Id. “[U]ndue
13
restrictions would make the privilege meaningless.” Id. Sustaining Appellant's
point related to privilege would require this Court to overrule its decision in
Krishnan and numerous other authorities.
Conclusion
Appellee's statement was absolutely privileged. The trial court correctly
granted Appellee's motion for summary judgment.
PRAYER FOR RELIEF
Wherefore, premises considered, Appellee prays:
A. That the judgment of the trial court be in all things affirmed;
B. That all costs be assessed against Appellant; and
C. For such other and further relief to which Appellee may be justly
entitled.
14
Respectfully submitted,
LAW OFFICE OF WILLIAM L.
HUBBARD
62 Vista San Juan
Pagosa Springs, Colorado 81147-7004
956-778-6692
FAX - 877-512-6720
hubbard43@gmail.com
By: /s/ Wm. L. Hubbard .
Texas State Bar No. 10142000
IN PROPRIA PERSONAM
CERTIFICATE OF SERVICE
On the 1st day of April, 2015, a copy of APPELLEE'S BRIEF was served
on:
Ronald G. Hole By E-Service
Attorney at Law
PRO SE
/s/ Wm. L. Hubbard .
William L. Hubbard
Attorney at Law
15
CERTIFICATE OF COMPLIANCE
The total number of words in the brief is 4,148 based on the determination of
the word processing program.
Appellee's Brief was prepared using Microsoft Word. The typeface, except
as noted, is Times New Roman. The body of the brief is in 14 point type. The
footnotes are in 12 point type. The case number on the first page is 20 point type.
The court title on the front page is Canterbury typeface in 18 point type. The name
of the brief on the first page is Bookman Old Style in 18 point type. Counsel's
electronic signatures are in MT Script Bold typeface in 20 point type.
/s/ Wm. L. Hubbard .
William L. Hubbard
Attorney at Law
16