Richard Fawcett, Kevin Roberts, Darrin Pitts, George Lillard, Christopher Matthews, Armando Florido, Billy Moreno, David Vukovic, Ken Kirkpatrick, James Lemons, Douglas Hissong and Salomon Lahana v. Robert J. Rogers

ACCEPTED 01-15-00121-CV FIRST COURT OF APPEALS Appellate Docket Number: 01-15-00121-CV HOUSTON, TEXAS 2/18/2015 9:11:44 AM Richard Fawcett, Kevin Roberts, Darrin Pitts, George Lillard, Christopher Matthews, CHRISTOPHER Armando Florido, Billy PRINE Appellate Case Style: CLERK Moreno, David Vukovic, Ken Kirkpatrick, James Lemons, and Douglas Hissong Vs. Robert J. Rogers Companion Case No.: N/A FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/18/2015 9:11:44 AM Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE Clerk Appellate Court:1st Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32) I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Richard Middle Name: L. Middle Name: Last Name: Miller Last Name: Fawcett Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Kevin Middle Name: L. Middle Name: Last Name: Miller Last Name: Roberts Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: Page 1 of 13 City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Darrin Middle Name: L. Middle Name: Last Name: Miller Last Name: Pitts Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: George Middle Name: L. Middle Name: Last Name: Miller Last Name: Lillard Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 Page 2 of 13 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Christopher Middle Name: L. Middle Name: Last Name: Miller Last Name: Matthews Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Armondo Middle Name: L. Middle Name: Last Name: Miller Last Name: Florido Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Billy Middle Name: L. Middle Name: Last Name: Miller Last Name: Moreno Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: Page 3 of 13 City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: David Middle Name: L. Middle Name: Last Name: Miller Last Name: Vukovic Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Ken Middle Name: L. Middle Name: Last Name: Miller Last Name: Kirkpatrick Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 Page 4 of 13 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: James Middle Name: L. Middle Name: Last Name: Miller Last Name: Lemons Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Douglas Middle Name: L. Middle Name: Last Name: Miller Last Name: Hissong Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: City: Houston State: Texas Zip+4: 77007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: dmiller@msc-lawyer.com SBN: 14067300 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: Luke First Name: Middle Name: C. Middle Name: Last Name: Carrabba Last Name: Suffix: Suffix: Law Firm Name: Miller, Scamardi & Carrabba, PC Pro Se: Address 1: 6525 Washington Ave Address 2: Page 5 of 13 City: Houston State: Texas Zip+4: 770007 Telephone: 713-861-3595 ext. Fax: 713-861-3596 Email: lcarrabba@msc-lawyer.com SBN: 03869050 I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: David First Name: Saloman Middle Name: N. Middle Name: Last Name: Harvey Last Name: Lahana Suffix: Suffix: Law Firm Name: Harvey & Associates, P.L.L.C. Pro Se: Address 1: 6121 Cypress Creek Parkway Address 2: Suite 200 City: Houston State: Texas Zip+4: 77069 Telephone: 281-203-0022 ext. Fax: 281-203-0024 Email: david@drhvlaw.com SBN: 24040049 III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: Keith First Name: Robert Middle Name: Middle Name: J. Last Name: Grady Last Name: Rogers Suffix: Suffix: Law Firm Name: The Grady Law Firm, P.C. Pro Se: Address 1: 801 Congress Address 2: Suite 250 City: Houston State: Texas Zip+4: 77002 Telephone: 713-228-2200 ext. Fax: 713-228-2210 Email: SBN: 00786853 Page 6 of 13 V. Perfection Of Appeal And Jurisdiction Nature of Case (Subject matter or type of case): Personal Injury Date order or judgment signed: January 20, 2015 Type of judgment: Interlocutory Order Date notice of appeal filed in trial court: February 6, 2015 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): Texas Civil Practice & Remedies Code Section 27.008 Accelerated appeal (See TRAP 28): Yes No If yes, please specify statutory or other basis on which appeal is accelerated: Texas Civil Practice & Remedies Code Section 27.008 Parental Termination or Child Protection? (See TRAP 28.4): Yes No Permissive? (See TRAP 28.3): Yes No If yes, please specify statutory or other basis for such status: Agreed? (See TRAP 28.2): Yes No If yes, please specify statutory or other basis for such status: Appeal should receive precedence, preference, or priority under statute or rule: Yes No If yes, please specify statutory or other basis for such status: Does this case involve an amount under $100,000? Yes No Judgment or order disposes of all parties and issues: Yes No Appeal from final judgment: Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No VI. Actions Extending Time To Perfect Appeal Motion for New Trial: Yes No If yes, date filed: Motion to Modify Judgment: Yes No If yes, date filed: Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law: Yes No If yes, date filed: Motion to Reinstate: Yes No If yes, date filed: Motion under TRCP 306a: Other: Yes No If other, please specify: VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.) Affidavit filed in trial court: Yes No If yes, date filed: Contest filed in trial court: Yes No If yes, date filed: Date ruling on contest due: Ruling on contest: Sustained Overruled Date of ruling: Page 7 of 13 VIII. Bankruptcy Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No If yes, please attach a copy of the petition. Date bankruptcy filed: Bankruptcy Case Number: IX. Trial Court And Record Court: 113th Judicial District Court Clerk's Record: County: Harris County Trial Court Clerk: District County Trial Court Docket Number (Cause No.): 2014-51782 Was clerk's record requested? Yes No If yes, date requested: February 9, 2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Michael Were payment arrangements made with clerk? Middle Name: Yes No Indigent Last Name: Landrum (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: 113th Judicial District Address 2 : 201 Caroline St, 10th Floor City: Houston State: Texas Zip + 4: 77002 Telephone: 713-368-6113 ext. Fax: Email: Reporter's or Recorder's Record: Is there a reporter's record? Yes No Was reporter's record requested? Yes No Was there a reporter's record electronically recorded? Yes No If yes, date requested: February 9, 2015 If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? Yes No Indigent Page 8 of 13 Court Reporter Court Recorder Official Substitute First Name: Sheila Middle Name: Last Name: Skidmore Suffix: Address 1: 201 Caroline Address 2: 10th Floor City: Houston State: Texas Zip + 4: 77002 Telephone: 713-368-6123 ext. Fax: Email: sheila_skidmore@justex.net X. Supersedeas Bond Supersedeas bond filed: Yes No If yes, date filed: Will file: Yes No XI. Extraordinary Relief Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request: XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes No If no, please specify:This appeal involves only a legal question and occurs relatively early in the underlying matter. Has the case been through an ADR procedure? Yes No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? Pre-Trial Post-Trial Other If other, please specify: Type of case? Personal Injury Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): The issue on appeal is whether the trial court erred in failing to apply Chapter 27 of the Texas Civil Practice & Remedies Code to this defamation action. How was the case disposed of? Other Summary of relief granted, including amount of money judgment, and if any, damages awarded. N/A If money judgment, what was the amount? Actual damages: Punitive (or similar) damages: Page 9 of 13 Attorney's fees (trial): Attorney's fees (appellate): Other: If other, please specify: Will you challenge this Court's jurisdiction? Yes No Does judgment have language that one or more parties "take nothing"? Yes No Does judgment have a Mother Hubbard clause? Yes No Other basis for finality? n/a Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5 Please make my answer to the preceding questions known to other parties in this case. Yes No Can the parties agree on an appellate mediator? Yes No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement: Counsel for Defendants XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style. Docket Number: n/a Trial Court: Style: Vs. Page 10 of 13 XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals) The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court. The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? Yes No Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program. If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml. Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances. Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary). This is an appeal from the trial court's denial of Defendants' Motion to Dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code. The issue is whether the trial court erred in failing to find that this legal action was based on, related to, or in response to the Defendants' exercise of the rights of free speech, right to petition, or right of association and therefore, erred by not applying the dismissal procedure found in Texas Civil Practice & Remedies Code Chapter 27. XV. Signature Signature of counsel (or pro se party) Date: February 17, 2015 Printed Name: David L. Miller State Bar No.: 14067300 Electronic Signature: David L. Miller (Optional) Page 11 of 13 XVI. Certificate of Service The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on February 17, 2015 . Signature of counsel (or pro se party) Electronic Signature: David L. Miller (Optional) State Bar No.: 14067300 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney Please enter the following for each person served: Date Served: February 17, 2015 Manner Served: eServed First Name: Keith Middle Name: Last Name: Grady Suffix: Law Firm Name: The Grady Law Firm, PC Address 1: 801 Congress Address 2: Suite 250 City: Houston State Texas Zip+4: 77002 Telephone: 713-228-2200 ext. Fax: 713-228-2210 Email: If Attorney, Representing Party's Name: Robert Rogers Please enter the following for each person served: Page 12 of 13 Date Served: February 17, 2015 Manner Served: eServed First Name: David Middle Name: Last Name: Harvey Suffix: Law Firm Name: Harvey & Associates, P.L.L.C. Address 1: 6121 Cypress Creek Parkway Address 2: Suite 200 City: State Texas Zip+4: 77069 Telephone: 281-203-0022 ext. Fax: 281-203-0024 Email: David@drhvlaw.com If Attorney, Representing Party's Name: Saloman Lahana Page 13 of 13