Randy Horton's Answer to Vashi Washington's lawsuit against him

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS )

COUNTY OF JASPER ) CIVIL ACTION NO: 2014-CP-27-00155

VASHTI K. WASHINGTON, ) )

Plaintiff, ) ) ANSWER

vs. ) r'" "j AN D c_ L_ ' ) :r : r_

-

RANDY HORTON, ) COUNTERCLA'Ifvf : ( . )

: !. .,..._ . . I

Defendant. ) (--- l;_) --- ..

, __ rl-:

TO: JAMES H. MOSS, ESQUIRE, ATTORNEY FOR PLAINTIFF: c;

Defendant Randy Horton, specifically reserving all rights pursuant to any

and all motions previously served, answering the Complaint of the Plaintiff and

asserting a counterclaim, would allege unto this Honorable Court as follows:

FOR A FIRST DEFENSE (Specific Denial)

1. That Defendant denies each and every allegation of Plaintiff's Complaint

not specifically admitted hereinafter.

2. That, upon information and belief, Defendant admits the allegations

contained in Paragraph 1 of Plaintiff's Complaint.

3. That Defendant admits the allegations contained in Paragraph 2 of

Plaintiff's Complaint.

4. That, upon information and belief, Defendant admits only so much of the

allegations contained in Paragraph 3 of Plaintiff's Complaint as allege that

the Plaintiff is the Superintendent of Education for the County of Jasper,

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5.

6.

7.

8.

9.

10.

State of South Carolina, and has been for a period of over three (3) years;

and that she has been certified by the State of South Carolina. Defendant

lacks sufficient knowledge or information with which to form a belief as to

the truth of the remaining allegations contained in said Paragraph and,

accordingly, demands strict proof thereof.

That Defendant denies the allegations contained in Paragraph 4 of












11. That Defendant lacks sufficient knowledge or information with which to

form a belief as to the truth of the allegations contained in Paragraph 10 of

Plaintiff's Complaint and, accordingly, denies the same and demands strict

proof thereof.

12. That Defendant denies the allegations as stated in Paragraph 11 of


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Plaintiff's Complaint and, accordingly, denies the same and demands strict

proof thereof.

14. That Defendant denies the allegations contained in Paragraph 13 of




Plaintiff's Complaint and, accordingly, demands strict proof thereof.

16. That Defendant denies the allegations contained in Paragraph 15 of


FOR A SECOND DEFENSE

17. That the allegations contained in Paragraphs 1 through 16 above, are

realleged and adopted the same as if repeated verbatim herein.

18. That Plaintiff's Complaint fails to state a claim upon which relief can be

granted against Defendant and, therefore, should be dismissed with

prejudice pursuant to Rule 12(b )(6) of the South Carolina Rules of Civil

Procedure.

FOR A THIRD DEFENSE



20. That Plaintiff's Complaint fails to state a claim upon which relief can be

granted because, inter alia, it fails to allege that the Defendant made any

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statements with "constitutional" or "actual malice," a First Amendment

Constitutional term of art and standard that is not defined as ill-will as

plead by the Plaintiff and, therefore, causes the Plaintiff's Complaint to fail

to state a claim for which relief can be granted. Rather, Plaintiff pleads

common law malice and, therefore, the Complaint must be dismissed.

See Sanders v. Prince, 304 S. C. 236, 403 S.E.2d 640 (1991) (holding "[i]n

cases involving the defamation of a public official, the plaintiff must prove

that the defendant acted with constitutional actual malice, that is, with

knowledge that the statement was false or with reckless disregard of its

falsity . . . 'Instructions [on common law malice], which permit the jury to

impose liability on the basis of the defendant's hatred, spite, ill will, or

desire to injure are clearly impermissible.' 'Ill will toward the plaintiff, or

bad motives, are not elements of the New York Times standard.' (citing

New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11

L.Ed.2d 686, 706 (1964)).

FOR A FOURTH DEFENSE

2 1. That the allegations contained in Paragraphs 1 through 20 above, are


22. That the Defendant specifically pleads the affirmative defense of truth and

because this involves First Amendment protections, Plaintiff must prove

falsity.

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FOR A FIFTH DEFENSE



24. That the Defendant is entitled to absolute and/or qualified and/or

conditional privilege for any and all speech made during the course and

scope of his duties as a citizen and Trustee of the Jasper County Board of

Education.

FOR A SIXTH DEFENSE



26. That Defendant is entitled to the well-recognized privilege of "fair

comment." Further, Defendant is entitled to the recognition of the privilege

of "public duty," whereby the law entitles a qualified or conditional privilege

to statements made in the discharge of a public duty to one who may act

in the public interest.

FOR A SEVENTH DEFENSE



28. Plaintiffs alleged injuries and damages may have been the result of an

independent, intervening, and superseding cause over which Defendant has

no control; further, that any alleged action or alleged omission on the part of

Defendant was not the proximate cause of the alleged damages.

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FOR AN EIGHTH DEFENSE



30. That Plaintiffs alleged injuries, if any, may have been caused in whole or in

part by Plaintiffs own comparative negligence, as may be proven through

discovery and/or at trial, and, therefore, Plaintiff's claim for damages should

be diminished proportionally and/or excluded according to South Carolina

law.

FOR A NINTH DEFENSE

3 1. That the allegations contained in Paragraphs 1 through 30 above, are


32. That any recovery by Plaintiff must be reduced or offset by amounts Plaintiff

has received or will receive from others for the same injuries to Plaintiff

claimed in this lawsuit.

FOR A TENTH DEFENSE



34. That Plaintiff's claims should be barred or reduced to the extent Plaintiff

failed to mitigate her damages.

FOR AN ELEVENTH DEFENSE



36. That Plaintiffs claims are barred because the Defendant did not breach any

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legal duty owed to the Plaintiff.

FOR A TWELFTH DEFENSE



38. That Defendant hereby gives notice that he intends to rely upon such other

defenses as may become available or appear through discovery or

otherwise, or as may be raised by any other party, and hereby reserves the

right to amend this Answer to assert furher defenses.

COUNTERCLAIM

Defendant Randy Horton, by and through his undersigned counsel, Joshua S.

Whitley, hereby asserts the following counterclaim against Plaintiff Vashti

Washington for Causes of Action One through Two as set forth below:

39. That the Plaintiff is a public official and/or figure as the appointed

Superintendent of Education of Jasper County, South Carolina, and reports

to the Board of Trustees of Jasper County, South Carolina, a duly elected

board of nine Trustees elected by the citizens of Jasper County.

40. That the Defendant is a duly elected Trustee of the Board of Trustees of

Jasper County.

41. That it is the right and/or privilege of a duly elected Trustee to ask questions

of the Superintendent.

42. That the Board of Trustees must hire, supervise, evaluate, and even

terminate the Superintendent as the only entity responsible in that regard.

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43. That Plaintiff did file a lawsuit solely intended to harass the Defendant and/or

intimidate the Defendant as a critic of her actions as Superintendent of

Jasper County.

44. That upon information and belief, the State Department of Education only

reflects that Vashti Washington holds a Master's Degree plus 30.

45. That upon information and belief, Vashti Washington has never achieved

obtaining her full doctorate.

46. That upon information and belief, Vashti Washington applied to be

Superintendent and represented to the Defendant and other Trustees that

she held a doctorate degree.

47. That upon information and belief, Vashti Washington has continuously held

herself out as having a doctorate degree and continues to do so to the

present.

48. That upon information and belief, Vashti Washington filed this lawsuit

claiming she had a doctorate degree but knowing that to be false.

49. That at no time has Plaintiff Vashti Washington presented true and accurate

credentials demonstrating she indeed has a doctorate.

50. That even if she has a doctorate, Defendant never made knowingly false

accusations regarding the same and is absolutely protected in his speech

under the First Amendment and New York Times v. Sullivan, 376 U.S. 254,

297-298 (1964) (holding "[t]he Court today announces a constitutional

standard which prohibits 'a public official from recovering damages for a

defamatory falsehood relating to his official conduct unless he proves that

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the statement was made with 'actual malice' -- that is, with knowledge that

it was false or with reckless disregard of whether it was false or not"') and

under the rights and privileges afforded elected officials in this state.

51. That Plaintiff in her lawsuit likens malice to ill will, see Campi. 9 (stating

"[t]his, in addition to the other statements made by the Defendant,

demonstrate substantial malice and ill will toward this Plaintiff"), and

clearly misunderstands an established fifty year precedent of the United

States Supreme Court that malice is not defined or synonymous to ill will

in the First Amendment context but rather "actual malice" is a term of art

and requires proof that the Defendant made the statement knowing it was

false or with reckless disregard to the same.

52. That the First Amendment protects school board members (and even non-

elected citizens) from critiquing a Superintendent or for holding an opinion

that the Superintendent should be fired, retained, demoted, or whatever

the criticism may be.

53. That the filing of this lawsuit on false or otherwise protected grounds is

meant to harass the Defendant and silence him as a critic - effectively

silencing the district of citizens for which he represents on the Board of

Trustees.

FIRST CAUSE OF ACTION (Abuse of Process)

54. The Defendant incorporates by reference the allegations of Paragraphs 39

through 53 of the Counterclaim as fully as if repeated herein, as well as, the

Defenses asserted in Paragraphs 1 through 38 of his Answer.

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55. That the Plaintiff has employed a legal process - the filing of a civil action -

for some purpose other than which it was intended by law to effect - namely,

to silence a critic and duly elected official.

56. That although the mere filing of a complaint may not constitute abuse of

process, the filing of a knowingly false Complaint for unlawful purposes -

i.e., silencing a critic and retribution against a critic for the discharge of his

public duties - does constitute abuse of process.

57. That the Plaintiff has an ulterior purpose in the filing of this legal process

namely harassment, retribution, discrediting his reputation, or to silence the

Defendant.

58. That the filing of this process is a willful act by Plaintiff not proper in the

regular conduct of the proceeding as the Plaintiff is willfully, intentionally or

with reckless disregard using the process to make false allegations about

Defendant's medical condition that are neither necessary nor authorized by

the South Carolina Rules of Civil Procedure in asserting her claims against

Defendant.

59. Plaintiff's willful acts of filing this process and improperly using the process

as described above are aimed at the illegitimate collateral objectives of

harassment, retribution, discrediting his reputation, and I or to silence the

Defendant.

60. That the Plaintiff's abuse of process has proximately caused damage to the

plaintiff as a natural result of this wrong, including compensatory damages

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including, but not limited to, costs of attorney fees, mental anguish, loss of

time, and injury to property or financial standing.

61. That the Defendant is entitled to an award of punitive damages against the

Plaintiff.

SECOND CAUSE OF ACTION (Defamation)

62. The Defendant incorporates by reference the allegations of Paragraphs 39

through 61 of the Counterclaim as fully as if repeated herein, as well as,

Paragraphs 1 through 38 of his Answer to Plaintiff's Complaint as if fully

repeated herein.

63. That in the Plaintiff's Complaint she states that, "the Defendant suffers from

some medical problems that do not enable him to logically conclude the truth

of many matters with which he is confronted." This statement is libel per se.

64. That the Plaintiff's allegation has a defamatory meaning in that it tends to

impeach the Defendant's honesty, integrity, virtue, reputation, or publish the

natural or alleged defects, and subjects him to public contempt, hatred, and

ridicule and injures him in his office as a public official and as a private

business owner.

65. This statement is false because Defendant has never been diagnosed or

treated for a medical condition that does not allow him to logically conclude

the truth of many matters with which he is confronted.

66. The Defendant suffers from no medical problem that does not "enable him to

logically conclude the truth of many matters with which he is confronted."

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67. Plaintiff made this statement with actual malice because she made the

statement knowing it was false or with reckless disregard of its truth.

68. The Plaintiffs making of the statement regarding the Defendant's medical

condition was absolutely intended as defamation.

69. That the statement is false.

70. That the Plaintiff made publication of the defamatory statement in this

lawsuit and, upon information and belief, in other venues to be determined in

discovery.

71. That the Plaintiffs statement concerns the Defendant.

72. The statements are neither relevant nor pertinent to the claims asserted in

Plaintiffs Complaint.

73. That as a result of Plaintiffs defamatory statements, the Defendant has

suffered presumed damages along with actual and special economic or

material loss and other damages including embarrassment, humiliation, and

mental suffering as a result of the Plaintiffs defamatory statements.

Moreover, Defendant is entitled to punitive damages based on Plaintiffs

willful, reckless, and malicious statement.

WHEREFORE, having fully answered the Plaintiff's Complaint and

asserted the foregoing defenses, Defendant respectfully requests:

(1) a trial by jury of twelve;

(2) this Court to dismiss this matter with prejudice as to

Defendant and enter judgment in his favor and against

Plaintiff; and

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(3) the Defendant be awarded damages, compensatory,

presumed, punitive, and any other damages the Defendant is

entitled to under the law.

(4) this Court to award Defendant his costs and expenses,

including attorney's fees incurred in this matter and grant

whatever additional relief the Court deems appropriate.

WHEREFORE, the Defendant prays this Honorable Court inquire into the

matters set forth herein, and enter its Order dismissing this matter, with an award

of attorneys fees and costs to the Defendant.

Beaufort, South Carolina

June 6, 2014

HOWELL, GIBSON & HUGHES, P.A.

Byu 2 . -{:Sc . . t -, David S. Black Post Office Box 40 Beaufort, SC 29901 (843) 522-2400 [email protected]

-and-

SMYTH WHITLEY, LLC

Joshua S. Whitley, Esquire Todd W. Smyth, Esquire Claude 0. Tackett, Esquire 234 Seven Farms Drive BB&T Plaza, Suite 215 Charleston, SC 29492 Phone: 843-606-5635 Fax: 843-654-4095 tsmyth@smythwh itley. com [email protected] ctackett@smythwh it ley. com

Attorneys for Defendant Randy Horton

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Documents

Randy Horton's Answer to Vashi Washington's lawsuit against him