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Cummins v. Lollar

Court of Appeals of Texas, Seventh District, Amarillo

May 3, 2018

MARY CUMMINS, APPELLANT
v.
AMANDA LOLLAR, APPELLEE

          On Appeal from County Court at Law Number Three Tarrant County, Texas Trial Court No. 2015-002259-3; Honorable Mike Hrabal, Presiding

          Before CAMPBELL, PIRTLE, and PARKER, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         This appeal is round two of an Internet defamation suit filed by Appellee, Amanda Lollar, against Appellant, Mary Cummins. Lollar is President of Bat World Sanctuary, Inc., a non-profit corporation located in Mineral Wells, Texas, dedicated to the rehabilitation of bats. Cummins is a California resident who champions herself as an animal advocate and an investigator of animal cruelty.

         In the first defamation suit, which was tried without a jury, Lollar obtained a multimillion-dollar judgment in actual and exemplary damages against Cummins. Cummins appealed the judgment to the Second Court of Appeals. In a lengthy opinion, that court affirmed the award of actual and exemplary damages for defamation, affirmed that potion of the trial court's judgment ordering Cummins to remove from the Internet the web pages and defamatory statements specified in the judgment, but reversed that portion of the judgment permanently enjoining Cummins from making similar statements in the future, and reversed the award for damages for breach of contract and attorney's fees. See Cummins v. Bat World Sanctuary, No. 02-12-00285-CV, 2015 Tex.App. LEXIS 3472, at *36, *90 (Tex. App.-Fort Worth April 9, 2015, pet. denied).

         Soon after the Second Court of Appeals issued its opinion, Cummins resumed posting statements about Lollar and a video with captions added by Cummins of Lollar performing an episiotomy on a pregnant bat. Relying on that part of the Second Court's opinion that reversed the permanent injunction as being an unconstitutional prior restraint;[1] id. at *78, Cummins posted, "I am not prohibited from posting anything on the internet. I will be reposting all of the videos and photos." Her understanding of the opinion ignored that portion which provides, "[t]hough Cummins can be held responsible for any defamatory statements she may make about Lollar in the future, the trial court could not issue an order prohibiting her from making them." Id. (Emphasis added).

         Two days after Cummins began reposting statements, on April 15, 2015, Lollar filed her second defamation suit against Cummins. This time, Cummins availed herself of legislative enactments which did not exist at the time of the first suit, filing a motion to dismiss Lollar's suit pursuant to the Texas Citizens Participation Act[2] and the Texas Defamation Mitigation Act.[3] Following a brief hearing at which Cummins represented herself, the trial court entered an order denying her motion without specifying a reason. Cummins then filed this appeal challenging the denial of her motion to dismiss.[4]

         Proceeding pro se on appeal, Cummins presents six issues challenging the trial court's order. She asserts the trial court erred in denying her motion to dismiss on the following grounds: (1) the Texas Citizens Participation Act (TCPA); (2) the Texas Defamation Mitigation Act (TDMA); (3) a lack of clear and convincing evidence that she allegedly defamed Lollar with malice; (4) Lollar and her attorney, Randy Turner, committed fraud, forgery, and perjury; (5) the one-year statute of limitations for defamation had expired; and (6) the trial court did not have personal or subject matter jurisdiction. Lollar responded by asserting that the TCPA was inapplicable to the facts of this case, or alternatively, by alleging that she had established a prima facie case for each element of her cause of action by clear and specific evidence. She further alleged that she had properly complied with the TDMA and that her suit was brought within the one-year statute of limitations. By reply brief, Cummins defends the position she has taken on her issues. We affirm the trial court's denial of Cummins's motion to dismiss.

         Background

         Lollar founded the Bat World Sanctuary (BWS) in 1994 in Mineral Wells, Texas, to protect a bat colony and rescue injured bats. According to Lollar, she and a local veterinarian worked together to treat and rehabilitate injured bats.

         In 2000, BWS began offering internships for people to learn about bat rescue and rehabilitation. In June 2010, Cummins accepted a two-week internship at BWS and entered into an internship contract with BWS. Cummins left BWS before completing her internship and returned to California.

         Disenchanted with her internship, Cummins sought out information from government agencies about whether BWS had a permit to operate and she reported the "less than optimal" conditions she had witnessed while at BWS to certain local, state, and federal organizations. She complained that Lollar was mistreating her dogs and the bats at BWS. She made online accusations that Lollar failed to treat two dogs for specific ailments. One of the dogs, who was nineteen years old and in poor health, was eventually euthanized, an act Cummins characterized as cruel.

         Cummins also posted statements about mistreatment of bats that included extraction of teeth and performing episiotomies without local anesthesia. While an intern at BWS, Cummins made a video of Lollar performing an episiotomy on a bat giving birth. She posted the video with misleading captions on the Internet, on Twitter, and on her Facebook page. Lollar acknowledged what the video portrayed but took issue with the captions that Cummins added which accused Lollar of various forms of "graphic animal cruelty."

         Cummins posted statements, videos, and photographs accusing Lollar of animal cruelty, practicing veterinary medicine without a license, fraud, violations of laws, rules, regulations, or standards, and illegal possession of a controlled substance. Non-criminal accusations further portrayed Lollar as uneducated and unintelligent. Cummins also posted negative statements on a blog about Lollar's attorney.

         Following Cummins's postings, Lollar asserted that donations to BWS had decreased and it was near bankruptcy.[5] She sued Cummins for defamation and BWS sued for breach of the internship contract. Following a bench trial at which Cummins represented herself and at which Lollar and BWS had pro bono representation, BWS was awarded $10, 000 for breach of contract plus attorney's fees of $176, 700 and Lollar was awarded $3, 000, 000 in actual damages for defamation and $3, 000, 000 in punitive damages. The trial court's judgment ordered that Cummins "immediately and permanently remove from the internet the following statements" from several different websites:

• They breed animals in the facility.
• Pretty ironic for this group to certify Bat World Sanctuary when the health department told her to leave town and they had to gut the building and remove her belongings.
• Vet recommended blood and stool tests. Lollar declined. She just wants empirical therapy. If that [sic] doesn't work, she wants to euth [sic] the dog. She refused treatment. When I was at Bat World June 19, 2010 to June 28, 2010 I saw her use her fingers to pull out one of the dog's teeth, i.e., oral surgery on dogs.
• The current method she suggests is also inhumane. The bats die of suffocation. She also forgets to mention that the drugs she suggests must be used under the direction of a veterinarian. She doesn't even administer the gas legally, humanely, or safely.
• He should not be working for free for someone who commits animal cruelty.
• I doubt he'll be speaking about this embarrassing little case where he is actually representing someone who commits animal cruelty and neglect.
• She took the money that came from the dissolution of Bonnie Bradshaw's group and bought a new silver Honda Eclipse. That money was supposed to go for animals. This is what Lollar does with money that is given to Bat World.
• Lollar never even washed her hands before surgery, you can see dirty finger nails in the photos, no surgical garments, no mask, hat, nothing. Night and day.
• Just confirmed that Amanda Lollar of Bat World Sanctuary is illegally obtaining human and animal rabies vaccinations. . . . Again, breaking the law. I'm amazed she admitted to having the vaccine and buying it when she is doing it illegally.
• She does not state that it died from neglect of care. She also chose to euth [sic] it instead of treating it as her vet suggested. She'd previously turned down care which her vet suggested.
• When I was at Bat World she told me the place where she buys her rabies vaccine thinks she's a doctor.
• Earlier in the year the vet noted the dog had major dental issues yet she didn't have the vet treat them. You know how painful it would be to have a mouth full of rotten teeth? That's animal neglect.
• BREAKING NEWS!!! Amanda Lollar of Bat World Sanctuary admits in writing that she and Bat World Sanctuary are being forced to leave Mineral Wells because of all the complaints to the City and Health Department.
• The dogs rear claws are super long. There is no way she could stand. . . . She has to drag herself on cement.
• She tells people to use Isoflurane illegally, inhumanely and unsafely in her book.
• He didn't care that she admitted to illegally having the human rabies vaccination, admitted to using drugs not according to the label that she "proudly" admitted to performing surgery.
• ln the video Lollar takes tweezers and just pulls out the molars of a conscious bat that is fighting and biting her while it bleeds. Lollar is proud of this and posted this video in her book and online. Bat experts know that bats must be unconscious and intubated to remove molars. Can you imagine the pain that bat felt?
• Pulling molars out of conscious bats is not "cutting-edge" though cutting open conscious bats might fall into that "category." Operating on bats using the drop anesthesia technique or amputating wings instead of pinning them is also not ...

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