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Good morning, #threadnought - time for the livetweet of the Appellant's brief in Mignogna v People Who Hurt Mignogna's Feelings.

The brief still isn't publicly available, but I'll be posting screenshots. Absolutely don't trust me and do check my work when it becomes available.
I'm going to grab a cup of tea, and give y'all a chance to do the same, and then we'll get rolling on this for real.
Right. So let's review what this document needs to accomplish:

(1) It needs to get the affidavits - at least Vic's and Slatosch's - in as evidence. (Huber's was basically useless.)
(2) It needs to clearly identify why the court was wrong on each claim.
(3) It needs to make that case more clearly and more specifically than the hellfiling did. Evidence is needed for every element of every claim for every defendant.
(4) It needs to make some coherent legal arguments, particularly in the TI section, where they need to argue for a change in the applicable law. This involves (a) identifying the clearly applicable law; (b) explaining why it's not 100% mandatory in this case; and
(c) arguing for the change using existing cases.

(5) It needs to deal explicitly with apparent contradictions between Vic's affidavit and deposition testimony.
(6) Ideally, it should try to get the decision on whether the TCPA applies reversed. That's a clearly losing argument.
But it's also one of those where if you're successful, you win the whole thing, so if there's even a slim chance you kind of have to try.

There are others, but those are the big ones.
I'm not an appellate expert, so I will not dig into procedural questions. Instead, I'll assume that nothing they are arguing was waived below, and address things on the merits. (There may be exceptions if there are some glaring issues.)
The prayer for relief isn't something I'd usually jump to when reading an appellate brief, but I do want to look for their word count, which should be at the end. I thought they might need more than 15k, and this seems short - the whole pdf is only 60 pages.
And, sure enough, it's 11.6k, not 15.

So if I'm complaining later that they left arguments on the field, it's not because they didn't have space to make them. It's because they didn't bother.
Moving back to the top - I started scrolling past the Table of Authorities pretty quickly, but this jumped out. That's a lot of citations to the Rules of Evidence. This is strange, because even if you throw out everything the defense offered, the outcome probably doesn't change.
The statement of the case is a little weak, but serviceable. The placement of references in footnotes doesn't seem (at least based on the limited sample of 2nd CoA briefs I reviewed) to be common practice.
And most seemed to put the stuff about the abbreviations in a section above the line, not buried in footnotes.
Here's the statement of the issues presented. I'll give y'all a minute or two to look at it while I take care of something.
These are - not wonderful. For contrast, here's one prepared earlier. (It's from the brief submitted in a recently-decided 2nd CoA case.)

Notice the difference? These give a reason that specific decisions were in error. Vic's brief doesn't bother.
The issues presented in this brief are -

Honestly, they could have written "everything Judge Chupp did was wrong" and it would have conveyed exactly the same amount of information.

Except - no, it wouldn't. Because this list omits some things I would have expected.
Two particularly big omissions:
(1) They don't seem to be arguing that it was error to exclude the withdrawn affidavits, or to refuse to accept substitutes.
(2) They don't seem to be explicitly arguing that Vic isn't a public figure.
Also, while it might be covered in "Defendants didn't meet their burden," they don't seem to be explicitly arguing that the finding that the TCPA applies was in error.

Those are, IMO, pretty big omissions.
OK. The statement of facts doesn't read badly, but many of the facts are clearly derived from the excluded affidavits and/or 2nd Amended Petition. This is not disclosed. Going to be interesting to see how they handle it in the argument section.
They do disclose that the court refused to consider the 2nd Amended Petition, but there is no mention of the debacle with the affidavits.

I do not know why and that is not snark. I think there was a not-great, but not-terrible argument to be made on exclusion.
The argument that the conspiracy claim is not subject to the TCPA could be interesting, although: (1) I'm not sure why it wouldn't be, given the broad wording of the statute; but also (2) did they argue that in the hellfiling?
That first paragraph of the statement of the case wasn't entirely abysmal. But the rest just wasn't trying.

By the way, I seriously doubt that BHBC bothered to start on this before last week. And the 24 hour extension definitely wasn't just to 'polish' the brief.
This is not a terrible start to the argument section. They are citing cases (yes, I know that's a low bar, but they've tripped on it before) and the cases are even from the 2nd CoA.
This paragraph also isn't terrible, although I suspect that the plaintiff still doesn't totally get the "if the inference drawn is reasonable" part.

I'll come back to some of these citations in a bit, I suspect. They're recent cases from the 2nd CoA.
Moving on, we're into the defamation section.

Something I should stop and note, though - I'm not sure it's common in Texas to state the standard of review, but it's pretty common elsewhere. I just searched the document for the word "novo" - here's the result.
Anyway -

Their outline for the elements of defamation is a bit longer than necessary, I think, but, again, not awful.
Moving on, they start with Marchi's tweets. This time, unlike the hellfiling, they are at least not conflating her and Monica together for the purposes of the argument. This should be the fun argument, given the deposition. Let's see what they've got.

Ahhh. Ah. erm. Yeah.

I need a second.
I try hard to assume the best of people. I also try hard not to make accusations of deliberate bad conduct when there are alternatives available. And I certainly do not ever accuse someone - particularly another attorney - of dishonesty lightly.

This section lies to the court.
There is no way to sugar coat that. A lie by omission is still a lie. And this omits A LOT.

(1) It buries the record cites. And - Jesus Wept! - I think it screws them up, too.
Because Fn 12 doesn't seem to line up with anything relevant; 43 may or may not.

But, more importantly, neither of those footnotes is exactly what you'd call a pinpoint citation. They want the judges, it seems, to crawl through a lot of unnecessary stuff.
But back to the lies to the court.

(2) The only place that Vic denied the allegations is in the affidavit/unsworn declaration. *Which* *the* *court* *did* *not* *consider.* They do not inform the Court of Appeals of this minor triviality - not even in a footnote.
(3) They do not acknowledge the existence of - much less confront - anything Vic said about the incident in the deposition.

Given the contents of the deposition, that is blatantly dishonest. And clearly deliberately so.
Beard Harris Bullock Christie is a disgrace of a law firm. An utter disgrace. Martinez Hsu as well - unless that was done without their knowledge, in which case they should speak up soon.
My flabber is officially gasted, y'all.

I thought Beard and Bullock were incompetent. I did not think they would dive to that level of utter shenanigans with the court of appeal.
I just took a minute to walk that one off. Didn't succeed. And it's not just the *dishonesty* - although that's for damn sure a part of it - it's the utter stupidity.

Do these people think that the law clerks aren't going to spot this? For reals?
Do they think that the law clerks take their word for what is in the record? Do they think that burying citations is going to make the court give up and take them at their word? Do they think that Sam Johnson is going to let that slide?

Do they know how to think at all?
And it gets better - you KNOW that if they did this with the Marchi claim that we're about to see the same thing with the hotel room one, which is a little stronger.

So naturally they lead by sacrificing 110% of their credibility on the very first argument of the brief.
But let's go ahead and see them argue what we know they're going to argue.

Oh look, they do. What a surprise.
Right. Moving on to Ron's tweets.

(1) They're clearly relying on the Slatosch affidavit. Again, no attempt to mention or confront the issues surrounding those that affidavit.
(2) I'm not sure they were suing over those statements - they weren't in the Petition or TDMA letter.
(3) The highlighted bit is great - gives Defendants another reason to fill in a court on prostitutes and twincest. Way to work the reputation management on that one, folks.
Oh - one more thing. The law clerks are really, really going to love how some of the footnotes give record cites while most refer them back up to other footnotes that contain multiple record cites, some of which may or may not be on point.
Moving on to Funimation -

Not a lot to say on this one. It's not the worst argued of the lot because it's less dishonest. But I'm pretty sure the highlighted bit relies entirely on affidavits not considered by the lower court. Which, yet again, is not disclosed to the tribunal.
Moving on to TI - and HOLY FORKING SHIRTBALLS! I missed this the first time through. I was skimming and just assumed the case cite was to the same federal case for the "breach is not necessary" thing.

They cited Khan - which says the *exact opposite* - and nothing else.
OK. Blue is stuff that is cited in things that the court below explicitly declined to consider, a fact which they're STILL failing to disclose to the court in their argument. Pink is for stuff that falls into "wait wut where was that ever shown."
I mean, that might be somewhere in the totally-not-a-surprise 2nd Amended Petition, but was that "shown" anywhere else? I literally have no memory of contracts being shown for those cons, or there being testimony about them. What am I missing?
I mean, maybe there's a legal argument to be made that con cancellations as a result of defamation damages are TI in addition to being defamation damages. But if there is such an argument, it's not made here AT ALL. There is NO attempt to show how those facts fulfill TI elements.
There was also no mention of the novation issue, no mention that Ty admitted that breach had been repaired, no citation to any of the cases from any jurisdiction that say that breach might not be required, no attempt to apply facts to the law, there's just nothing here.
They could have made an argument here - but they totally failed to do so. Just spectacularly bad.
Moving on to TI w/ prospective. I'm not expecting much here, because this is a lost cause from start to finish.

And I'm not disappointed. We get rational inferences. We get no attempt to argue why TI w/ prospective doesn't require showing *specific* possible contracts.
Seriously, if this is in any way different from the argument in the Hellfiling, I'm not sure how. There's no attempt to explain - well, anything really.

This is really awful.
OK. The vicarious liability section is comically long in comparison with everything else. I'm only skimming it, really, but it looks like it's by far the best argued of all the sections so far.

That should be taken as an assessment of relative, not absolute, quality.
This is absolutely comical. They spend like a page on defamation, and like 7 on vicarious liability. That's so funny to me, because guess what happens if Vic wins on vicarious liability but loses on everything else?
That's right - NOTHING. Because if he loses on everything else, there's nothing for Funi to be vicariously liable FOR, so that claim stays dismissed, too.

So they invested nearly as much effort (more, actually, given the quality of the arguments) on this as the rest combined.
For a claim which makes absolutely no difference unless they win on something else. (And not anything involving Ron, because they seem to have conceded that Funi can't be vicariously liable for a non-employee non-contractor.)


Moving on - conspiracy.
The argument that civil conspiracy isn't subject to the TCPA is interesting, novel (in the common law sense), and dumb.
It's dumb for the very reason that is outlined in this footnote: it's not a stand-alone tort. It's entirely dependent on the underlying tort. If the underlying torts are subject to the TCPA, it logically follows that the conspiracy must be as well.
Also, if everything else is dismissed, the conspiracy has to go too - there's no longer a viable allegation of conspiracy to do anything.
The rest of the conspiracy rests on the same "reasonable inferences" as the original, with the addition of a discord server, which definitely only was brought up in the 2nd Amended Petition. That one wasn't in any of the affidavits.

Again, no disclosure of that.
Moving on, we get to the Second Amended Petition. To get the 2AP in along with the affidavits, at a minimum they must successfully argue that:
(1) The court's decision to rely on the case from the analogous act and exclude any post-TCPA amendment was in error;
(2) There was no unfair surprise in admitting the 2AP;
(3) The 7-day rule didn't apply;
(4) It was acceptable to attach the affidavits, despite Rule 59;
(5) The affidavits should not be excluded due to defects in form.

This section of the brief is 2 pages long.
So right at the start they raise the 7-day thing, but that wasn't the reason given by the court; the court ruled based on how an analogous (in the court's view) statute functions.
Ah - it seems that they're addressing the judge's primary argument entirely in a footnote, which is quaint. They're also glossing over the part of Rule 63 about how you need leave of the judge - which wasn't exactly sought - within 7 days.
Also, the case in the footnote wasn't exactly on point. And one of the other cases is a case about trial amendments to conform to arguments, not written ones. And you can bet that Ty's statements about intending to amend after submitting the response will come up in a few weeks.
But here's the big one. There's no attempt to argue the Rule 59 issue. They just totally missed it.

So even if the 2AP comes in, it probably comes in without any of the attachments.
They also didn't argue the form defect issue, but that's just icing on the cake at this point.

#oof #howembarrassing
The bulk of the rest of the brief is arguing that defense evidence should be excluded. This is a nearly-inexplicable waste of time. You could exclude all the defense evidence, rely entirely on the plaintiff's submissions, and the outcome will not change.
So we've got a few pages of evidentiary objections before we get to the punchline.

Yellow is "LOL" and green is "no, seriously, LOL."
The public figure and public interest arguments did not rest entirely on that evidence, and this isn't an area where the whole thing has to go away if some evidence is excluded. Both the public figure and interest arguments are adequately supported by Vic's deposition.
And the Plaintiff included Vic's deposition as evidence. So that section is a waste of time; I didn't bother reading all that deeply. This is a "seriously, nobody cares" area of the brief. There's nothing about this that could change the outcome.
There's a bunch more of this going on here with the next bit, which addresses Ron and Monica's evidence. Most of their objections are wrong - the evidence isn't offered for the claimed purpose; it's to show the quality of Vic's existing reputation.
Honestly, I'm not even really trying to highlight all the spots that are wrong. This is really freaking dumb.
And it's pages and pages - and it's all assertion. There's no attempt at anything even argument-like for any of this. Just assertion after assertion after assertion.

And for what??
This - between this and Funimation - is the only argument presented for why the TCPA doesn't apply.

No attempt to engage with the facts. No attempt to explain any of the other evidence from their own pleadings. Just this.

And guess what else they forgot?
Yup - no argument that Marchi's arguments on TCPA applying and public figure were wrong.

And that was literally everything they've offered for the TCPA applies and for the "Vic isn't a public figure" argument. No attempt to engage with the law.

Not even a single cite to Lane v Phares.
This is a fair argument, and their best of the bunch in terms of simplicity combined with accuracy. It's a shame it's not going to matter, since the requisite conditions aren't going to happen.
And that's about it for this one.

A nearly half-decent ending to a far less than half-decent brief.
I believe my initial view was that everything except a handful of claims were 99% certain to be affirmed, and the rest were in the 90% range.

I'll put everything at 99% now. No hesitation.
I am making no prediction on whether there will be oral argument, but Vic's whole team should be praying that there won't be. (Despite their formal request for it.) If there is, it will not go very well for them at all.
I'll have some more thoughts later - gonna take a long walk, clear my head, get some dinner. I'll check back in later on, probably in a couple of hours.
I occasionally get the impression that nobody at KiwiFarms has mastered the art of the shoelace. This isn't helping that impression.
This is something I noticed, too. When I wanted to see how most briefs are formatted in the 2nd CoA, I pulled a bunch of examples. Wasn't hard. Took 3 minutes to pull briefs, 10 more to skim through them.

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