WIGHTMAN CAN'T DUCK HERNANDEZ DEFAMATION LAWSUIT

By Juan Montoya

Partly as a result of his own legal skills shortcomings, and partly as a result of his failure to understand the law, the appeal of blogger (and disbarred lawyer) Robert Wightman to the Second District of Texas Court of Appeals for dismissal  of OP 10.33 Mike Hernandez's defamation lawsuit filed in Tarrant County has been denied.

Hernandez filed the lawsuit in the Texas 153 District Court after Wightman repeatedly posted in his blog Brownsville Voice that Hernandez was a "con man," among other things, and asked the appeals court to sanction Hernandez for allegedly "lying to the court and suborning perjury" and to order him to "compel any communications to the trial court from (him) as potential evidence of ex-parte communication."

The appeals court justices denied Wightman's appeal for dismissal of the defamation lawsuit and refused to consider his two other motions for sanctions and order to compel saying that since the trial court did not hold a hearing on the motion to dismiss, they lacked jurisdiction.

At the core of the issues raised by Wightman was the statutory obligations of the appeals court to hear interlocutory motions (when the trial court was still hearing the case) claiming that the trial court had not heard his motion to dismiss within the time proscribed by the Texas Citizens Participatory Act (TCPA).

Wightman asserted that his motion to dismiss Hernandez's lawsuit was denied by the trial "operation of the law" because it was not heard in the 30 days proscribed under the TCPA.

But the appeals court justices said that it was "undisputed that the trial court never signed an order denying the motion. (He) filed his motion of appeal believing that the motion was denied by operation of the law. But we conclude that it was not. It is undisputed that the court never held a hearing on the motion. And that fact is fatal to this appeal.

"Because Wightman's motion was never denied, we lack jurisdiction over this appeal."

In their memorandum opinion, the justices of the appeals court traced the beginning of the appeal since Hernandez had filed the defamation lawsuit against Wightan on March 3, 2017. Wightman contended that his motion for dismissal should be heard "by submission," and not during an oral argument. However, submission is an acceptable method only if the other party – Hernandez – agrees. The justices asserted that the trial court record show he had not agreed.

Wightman, believing that the trial court no longer had jurisdiction over the case because – to his way of thinking – it had already forfeited it because time had lapsed, then filed a notice of cancellation for a May 15, 2017 hearing saying the court had no jurisdiction because the motion has already been denied by "operation of law."

The appeals court ruled that although the TCPA does set a 60-day period for a motion to dismiss to be heard, it may be set more than 60 days after service of the motion if 1) trial court's docket conditions require a later hearing,  2) upon showing of good cause, 3) by agreement of the paries.

"But there is a limit: a hearing on a TCPA motion to dismiss may not occur more than 90 days after service of the motion except in cases where the trial court orders limited discovery...in which cases such a hearing may not occur more than 120 days after service of the motion."

The appeals court justices then listed the number of motions on record that Wightman had filed with the trial court, including the motion to cancel the hearing,  and concluded that "a hearing on Wightman's motion did not occur in the case because of Wightman's own conduct, not because the trial court flatly refused to set one."

Those of us who have put through the wringer by Wighman's legal "terrorism" are well acquainted by his tactics. Hernandez should be ready for these types of delays, calls for judges' (and defense attorneys) recusals for frivolous reasons, charges of homophobia, alleged impending fatal illnesses befalling him, etc., And, of course, there's always his writ of mandamus.

However, this time Wightman may not have counted on an adversary who is not about to roll over and play dead. It is doubtful that because he lost his appeal, the Texas Supreme Court will hear it. We hear that his adversaries are hoping he will file a suit in federal court next.

Wightman is, and as always been, a legal terrorist who has been terrorizing Brownsville people for over a decade by tying them up in court on frivolous suits. He could do it because they couldn’t afford to pay for a drawn out defense. Now the shoe is on the other foot and he’s out of options.

It would appear that his best option is to go terrorize some other community because Hernandez doesn't appear to be willing to go away.   

To read the Second Court of Appeals Memorandum Opinion, click on link: https://mail.google.com/mail/u/0/?ui=2&ik=643034ff4a&view=att&th=162b75979ee74d32&attid=0.1&disp=inline&safe=1&zw