Levi Morin v. Law Office of Kleinhans Gruber, PLLC

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ACCEPTED 03-15-00174-CV 5914794 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/2/2015 10:31:39 AM JEFFREY D. KYLE CLERK No. 03-15-00174-CV ________________________________________________________________ IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS 7/2/2015 10:31:39 AM AT AUSTIN JEFFREY D. KYLE _________________________________________________ Clerk LEVI MORIN, Appellant, v. LAW OFFICE OF KLEINHANS GRUBER, PLLC, Appellee. From Cause No. D-1-GN-14-003874; 201st Judicial District Court Travis County, Texas _________________________________________________________ BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC A/K/A LAW OFFICE OF KG, PLLC _________________________________________________________ Kimberly G. Kleinhans State Bar No. 24062755 Keith L. Kleinhans State Bar No. 24065565 12600 Hill Country Blvd., Ste. R-275 Austin, TX 78738 512.961.8512 (telephone) 512.623.7320 (facsimile) ATTORNEYS FOR APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC ORAL ARGUMENT NOT REQUESTED No. 03-15-00174-CV LEVI MORIN, Appellant, v. LAW OFFICE OF KLEINHANS GRUBER, PLLC, Appellee. IDENTITY OF PARTIES & COUNSEL Appellant: Levi Morin Counsel for Appellant: Leif Olson State Bar No. 24032801 leif@olsonappeals.com The Olson Firm 4830 Wilson Road, Suite 300 Humble, Texas 77396 281.849.8382 Appellee: Law Office of Kleinhans Gruber, PLLC Counsel for Appellee: Kimberly G. Kleinhans State Bar No. 24062755 Keith L. Kleinhans State Bar No. 24065565 Law Office of Kleinhans Gruber, PLLC 12600 Hill Country Blvd., Ste. R-275 Austin, Texas 78738 ―1― TABLE OF CONTENTS Identity of Parties………………………………………………………...... ― 1 ― Table of Contents………………………………………………………...…― 2 ― Index of Authorities……………………………………………………….. ― 5 ― Abbreviations and Record References…………………………………..…..― 8 ― Summary of Appellee’s Brief………...………………………………….…..― 9 ― I. Oral Argument Not Requested…………………..………………......― 11 ― II. Statement of the Case………………………………………….…… ― 11 ― III. Issues Presented……………………...…….……..……………….... ― 13 ― IV. Standard of Review……………………………………………….…― 13 ― V. Statement of Facts…………………………………………….……. ― 14 ― a. Representation of Morin………………………….………..... ― 14 ― b. KG’s Withdraw and Morin’s Retaliation……….………….... ― 15 ― i. Morin’s Bar Complaint against KG and Siegler Dismissed Immediately Without Investigation ― 15 ― ii. In Response, Morin Attacks KG on Yelp…..... ― 15 ― c. KG’s Discovery of Morin’s Yelp Post……….………….…... ― 16 ― d. The Lawsuit……….…………………………….……....….... ― 16 ― i. No Order to Nonsuit KG Claims…….…......... ― 17 ― ii. Morin’s Discovery Responses Due Before Motion to Dismiss Filed…….……...... ― 17 ― 1st Missed Deadline………………….... ― 17― 2nd Missed Deadline……….………...... ― 18 ― No Ongoing Discovery Discussions...... ― 18 ― iii. Morin Fails to Timely File His Motion to Dismiss……―19 ― 3rd Missed Deadline……….………...... ― 19 ― iv. Morin Fails to Timely Set His Motion to Dismiss……―19 ― ―2― 4th Missed Deadline……….………...... ― 19 ― 5th Missed Deadline……….………...... ― 19 ― v. No Hearing was Held on February 26, 2015……..……― 21 ― vi. Trial Court’s Ruling………………………..……..……― 22 ― e. The Appeal……….…………………………….……....…... ― 23― 6th Missed Deadline………………….... ― 23 ― 7th Missed Deadline……….………...... ― 24 ― 8th Missed Deadline……….………...... ― 24 ― VI. Summary of Argument: KG’s response to Morin’s motion to dismiss was not only supported by clear and specific evidence on each and every element, Morin’s motion was also denied on countless other procedural levels due to Morin’s habitual inability to meet deadlines………………………………………………….…― 24 ― VII. Argument………...…………………………………………………. ― 26 ― A. Trial Court Specifically Found that KG Established by Clear and Specific Evidence, a Prima Facie Case of Defamation and Business Disparagement……………….………………...…. ― 27 ― Falsity………………………………………….…. ― 28 ― Malice………………………………………….…. ― 29 ― Damages……………………………………….…. ― 30 ― 1. Trial Court Specifically Found KG’s Exhibits Were Timely and Admissible……………………………………..……..…. ― 32 ― a. KG’s Evidence Timely Filed 19 Days and 3 Days Prior to Motion to Dismiss Setting..... ― 33 ― b. KG’s Affidavits Properly Authenticated.…... ― 35 ― c. Garza Emailed Affidavit Testimony & Waived Formal Service….…………………. ― 37 ― 2. Trial Court Specifically Found KG’s Evidence was Clear and Specific……………….………………………..…. ― 39 ― a. Falsity Supported by 4 Evidentiary Items…. ― 40 ― b. Damages….……………………..…………. ― 41 ― 1. Noneconomic Damages to Reputation are Presumed…. ― 42 ― 2. Economic Damages to ―3― KG Earning Capacity and Lost Income………….. ― 45 ― c. Malice Supported by Motive and Intentional Acts……………………………. ― 47 ― B. Trial Court Specifically Found Hearing was Untimely…..…. ― 51 ― C. Trial Court Specifically Found Morin Exhibits to be Untimely and No Good Cause Substantiated …………………. ― 53 ― D. Morin’s Attorney Fees Contested in Affidavit as Clearly Unreasonable and Logically Unnecessary……………….....…. ― 55 ― E. KG Fees Uncontested and KG Entitled to Fees……………..…. ― 56 ― Conclusion………...……………………………………....………………. ― 56 ― Certificate of Compliance………………………………...…….…………. ― 56 ― Certificate of Service……………..…………………………………….…. ― 57 ― Appendix………………………………..……………………...…………. ― 58 ― ―4― INDEX OF AUTHORITIES Statutes: Tex. Civ. Prac. & Rem. Code § 27.002 Tex. Civ. Prac. & Rem. Code § 27.003 Tex. Civ. Prac. & Rem. Code § 27.004 Tex. Civ. Prac. & Rem. Code § 27.009 Tex. Civ. Prac. & Rem.Code § 41.001(4) Tex. Civ. Prac. & Rem.Code § 41.001(12) Tex. Civ. Prac. & Rem. Code §121.002 Tex. Fin. Code §199.002 State Cases: American Broad. Cos v. Gill, 6 S.W.3d 19, 29 & n.3 (Tex.App.-San Antonio 1999, pet. Denied) Astoria Indus. V. SNF, Inc., 223 S.W.3d 616, 628 (Tex.App.-Fort Worth 2007, pet. denied) Bell Publ'g Co. v. Garrett Eng'g Co., 154 S.W.2d 885, 887 (Tex.Civ.App.- Galveston 1941) aff'd, 170 S.W.2d at 197. Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2003) Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex.App. 1990) Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *10 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.) Connick v. Myers, 461 U.S. 138, 148 n.7 (1983) Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex.App.-Waco 1997, writ denied) ―5― Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (TexApp.-Houston [14th Dist.] 1998, pet. Denied) Flamm v. American Association of University Women, 201 F.3d 144, 151 (2d Cir.2000) Gainsco County Mutual Insurance Co. v. Martinez, 27 S.W.3d 97, 104 (Tex. App.—San Antonio 2000), review granted, (Oct. 12, 2000)) Gertz v. Robert Welch, Inc., 418 U.S. 323, 373, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (White, J., dissenting) Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(internal citations omitted). Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005) Hurlbut v. Gilf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987) In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks and citation omitted) In re Lipsky, ___ S.W.3d ___, 6, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015) Johnson v. Hospital Corp., 95 F.3d 383, 391 (5th Cir.1996) Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.) Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 655 (Tex.1987) Newsome v. brod, 89 S.W.3d 732, 735 (Tex. App.-Houston [1st Dist.] 2002, no pet.) Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) Phillips v. Brazosport Sav. & Loan Ass'n, 366 S.W.2d 929 (Tex. 1963). ―6― Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam) Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.) TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) Rehak Creative Servs v. Witt, 404 S.W.3d 716, 726 (Tex. App. 2013) Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 160 (Tex. 2014). WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571(Tex. 1998) Wortham Indep. Sch. Dist. v. State, 244 S.W.2d 838 (Tex. Civ. App.—Waco 1951). Rules Texas Rule of Civil Procedure 21(b) Texas Rule of Civil Procedure 176.6(d) and (e) Other Authorities 2 Dan B. Dobbs, Law of Remedies § 8.1(4) (2d ed.1993) Black’s Law Dictionary 307, 1616 (10th ed. 2014) Restatement (Second) of Torts § 621 cmt. a (1977) Restatement (Second) of Torts § 905 cmt. i. (1979). Restatement (Second) of Torts § 906 (1979). Webster’s Third New Int’l Dictionary 419, 2187 (2002) ―7― ABBREVIATIONS AND RECORD REFERENCES “the Act" refers to Texas Citizen Participation Act “Appx. ___" followed by a number refers to that certain page in the Appendix Tab following Appellee’s Brief. “A.B. ___” followed by a number refers to a certain page in the Appellate Brief that is the subject of this response. “C.R. ___" followed by a number refers to that certain page of the Clerk's Record filed in the case. “Morin” refers to Appellant, Levi Morin. “KG” refers to Appellee, Law Office of Kleinhans Gruber, PLLC ―8― SUMMARY OF APPELLEE'S BRIEF i. TRIAL COURT SPECIFICALLY FOUND THAT KG ESTABLISHED BY CLEAR AND SPECIFIC EVIDENCE, A PRIMA FACIE CASE OF DEFAMATION AND BUSINESS DISPARAGEMENT 1. Trial Court Specifically Found KG’s Exhibits Were Timely and Admissible a. KG’s Evidence Timely Filed 19 Days and 3 Days Prior to Setting b. KG’s Affidavits Properly Authenticated c. Garza Emailed Affidavit Testimony & Waived Formal Service 2. Trial Court Specifically Found KG’s Evidence was Clear and Specific a. Falsity Supported by 4 Evidentiary Items b. Damages i. Noneconomic Damages to Reputation are Presumed ii. Economic Damages to KG Earning Capacity and Lost Income c. Malice Supported by Motive and Intentional Acts ii. TRIAL COURT SPECIFICALLY FOUND HEARING WAS UNTIMELY iii. TRIAL COURT SPECIFICALLY FOUND MORIN EXHIBITS WERE UNTIMELY AND NO GOOD CAUSE SUBSTANTIATED iv. MORIN’S ATTORNEY FEES CONTESTED IN AFFIDAVIT AS CLEARLY UNREASONABLE AND LOGICALLY UNNECESSARY v. KIMBERLY KLEINHANS’ AFFIDAVIT FOR FEES IS UNCONTESTED AND THEY ARE ENTITLED TO FEES ―9― No. 03-15-00174-CV ________________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _________________________________________________ LEVI MORIN, Appellant, v. LAW OFFICE OF KLEINHANS GRUBER, PLLC, Appellee. From Cause No. D-1-GN-14-003874; 201st Judicial District Court Travis County, Texas _________________________________________________________ BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC _________________________________________________________ TO THE HONORABLE THIRD COURT OF APPEALS: Comes now Law Office of Kleinhans Gruber, PLLC (herein after, referred to as “KG”), Appellee, and files this response to Brief of Appellant, Levi Morin (herein after, referred to as, “Morin”). ― 10 ― I. STATEMENT ON ORAL ARGUMENT Oral argument would not benefit the Court. This appeal is frivolous and not based on law. Morin admits that this appeal in large part is not based on law by stating in his Statement on Oral Argument that the Act doesn’t address evidentiary standards and procedure. (A.B. 9). Rather, the issue is not that the Act doesn’t address these areas of contention; the issue is that the Act doesn’t support Morin’s argument. The Act’s black letter law provided clear deadlines that Morin repeatedly missed. Likewise, the dispositive issues have been authoritatively decided. Furthermore, there are no new facts and/or legal arguments that would come to light by oral argument and therefore, there is no reason to cause further delay by scheduling this to be heard for oral argument. II. STATEMENT OF THE CASE Nature of the case. This is an appeal over the trial court’s ruling on Morin’s Motion to Dismiss the business disparagement, defamation, and defamation per se claims made by KG against Morin, following Morin’s false and damaging online Yelp review made on KG’s Yelp page. Trial court. The lawsuit was filed in the 201st Judicial District Court, in Travis County, Texas with the Honorable Judge Steven Yelenoski presiding. Proceedings in the trial court. Following Morin’s refusal to remove the false and damaging online Yelp review made on KG’s Yelp page, KG filed claims for business disparagement, defamation, and defamation per se. (C.R. 3-11, 195- 205). Morin moved to dismiss under the Act, but filed the motion without attaching any exhibits. (C.R. 15-31). After the deadline, Morin untimely refiled the motion with exhibits. (C.R. 32-95). The trial court found that the date of filing ― 11 ― was the date that the filing was made with exhibits and ruled that the filing was untimely. (739). Morin untimely set the hearing for the Motion to Dismiss. KG filed a Motion to Strike or Deny Morin’s Motion to Dismiss on the basis that Morin’s filing was untimely, and the setting for the hearing was untimely. (C.R. 120-192). The trial court again agreed and ruled that there was no good cause for the untimeliness of both the Motion to Dismiss and the setting of the hearing. (739). In response to Morin’s unilateral setting around KG’s noticed unavailability, KG filed for a continuance and in response the trial court reset the case to March 5, 2015. (C.R. 120-192). Following the Court’s ruling that KG’s Motion to Strike would be heard on the same day as Morin’s Motion to Dismiss, KG filed a Response to Morin’s Motion to Dismiss and objected to Morin’s evidence. (C.R. 206-467, 468-729). On date of setting Morin untimely filed objections and more attorney fee testimony. (C.R. 730-734). The trial court overruled the objections to KG affidavits amongst 6 other rulings set forth below that all support denial of the Motion to Dismiss on countless grounds. The judgment of the trial court. Honorable Judge Steven Yelenoski (C.R. 739), (Appx. 1): - Found no good cause to extend the deadline for Morin to file his Motion to Dismiss. - Found Morin did not set the hearing on his Motion to Dismiss within 60 days after service of the motion, and did not meet any of the exceptions indicating the hearing can be set later than the 60th day. - Struck the Exhibits to Morin’s Motion to Dismiss as being untimely filed. - Overruled Morin’s objections to the affidavits of Kimberly Kleinhans, Martin Garza, and Michael Siegler. - Found that KG established by clear and specific evidence, a prima facie case for defamation and business disparagement. - Found that Morin did not establish each element of an affirmative defense by a preponderance of the evidence. - Denied Morin’s Motion to Dismiss. ― 12 ― III. ISSUES PRESENTED ISSUE NO. 1: The trial court did not err denying a former client’s Motion to Dismiss under the Act in finding that the business established by clear and specific evidence, a prima facie case for defamation and business disparagement. ISSUE NO. 2: The trial court did not err denying a former client’s Motion to Dismiss under the Act in finding that the former client failed to timely file the Motion to Dismiss in accordance with Act Deadlines and Act Requirements. ISSUE NO. 3: The trial court did not err denying a former client’s Motion to Dismiss under the Act in finding that the former client failed to timely hold the hearing on the Motion to Dismiss in accordance with Act Deadlines. IV. STANDARD OF REVIEW Appellant has properly addressed the standard of review, but for leaving out a key portion noting that only a minimum amount of evidence is needed to support a prima facie case, as set forth in appellant’s reference case, Serafine v. Blunt. Id. No. 03-12-00726-CV. ____ S.W.3d__, 2015 WL 2061922 (Tex. App. – Austin May 1, 2015, n.p.h.: A prima facie standard generally “requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks and citation omitted); see, ― 13 ― e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in Chapter 27 case and explaining that Legislature’s use of “prima facie case” implies imposition of minimal factual burden). “Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue. In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party.” Rehak Creative Servs v. Witt, 404 S.W.3d 716, 726 (Tex. App. 2013); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) (explaining that summary-judgment movant’s presentation of prima facie evidence of deed’s validity established his right to summary judgment unless nonmovants presented evidence raising fact issue related to validity). V. STATEMENT OF FACTS A. Representation of Levi Morin KG represented Morin in a family law case from May 1, 2012 to March 15, 2013. (C.R. 196). On March 15, 2013, Morin called KG and requested that his case be placed on hold and that all work on his case cease. (C.R. 196). On May 30, 2013 to June 6, 2014, Morin called and emailed with Kimberly Kleinhans and requested that work be continued on his case. (C.R. 196). Likewise, representation continued from May 30, 2013 to June 4, 2014. (C.R. 196). After May 30, 2013, Mr. Morin continued to act in an unprofessional and threatening manner, which left KG with no other choice but to withdraw off his ― 14 ― case. Mr. Morin would write profane and enticing emails to which KG continued to respond in a professional manner. B. KG’s Withdraw and Morin’s Retaliation On June 4, 2014, Kimberly Kleinhans obtained a signed Order of Withdraw from representation and emailed it to Morin. (C.R. 196, 664). (Appx. 3). On June 4, 2014, in response to receipt of the Order of Withdraw, Morin emailed Kimberly Kleinhans an email stating, “You’re a horrible person, a predator, and I will make sure that’s known on as many fronts as I can.” (C.R. 197, 704). (Appx. 4). i. Morin’s Bar Complaint against KG and Siegler Dismissed Immediately Without Investigation Approximately between the dates of June 6, 2014 and June 24, 2014, Morin attempted to file a bar complaint against KG’s of counsel attorney, Michael Siegler, and managing partner, Kimberly Kleinhans. (C.R. 197). On or prior to June 24, 2014, Morin received notice from the State Bar of Texas that his bar complaint was immediately dismissed without investigation whatsoever for lacking basis on its face. (C.R. 197). ii. In Response, Morin Attacks KG on Yelp In response, on or around June 24, 2014, Morin posted a false and damaging review on an internet website called Yelp, which is located at the web address: http://www.yelp.com/biz/law-office-of-kleinhans-gruber-pllc- austin?osq=law+office+of+kg. (C.R. 197). The review contained several false ― 15 ― statements made by Morin about KG and of-counsel, Michael Siegler, and managing partner, Kimberly Kleinhans, amongst others, including: false allegations regarding professional and/or unethical conduct. (C.R. 197). Specifically, the following false statements were made, “… her legal ‘counsel’ consists of…sending hung over ‘associates’ to court dates [Michael Siegler] …”(C.R. 197-198). C. KG’s Discovery of Morin’s Yelp Post On or around August 20, 2014, Kimberly Kleinhans was notified by a business contact about the negative review of KG posted on Yelp by Morin. (C.R. 198). Upon review, KG requested Morin to remove the posting, and in response, Morin sent several emails to Kimberly Kleinhans stating, “go fuck yourself,” and “biggest piece of shit lawyer I’ve ever not met,” and “wait ten days and see if I’m as big of a pussy as you.” (C.R. 198, 706, 713, 717). (Appx.5) Morin’s December 1, 2014 affidavit, Morin admits that he never attempted to verify the truth or falsity of these statements at time of publishing. (C.R. 89, 198). To date, these statements remain posted. D. The Lawsuit At the time of filing the Amended Petition for this lawsuit, KG had suffered general and special damages in the past and will continue to suffer general and special damages in the future as the posting is still active. (C.R. 198). KG’s ― 16 ― damages include but are not limited to: damage to reputation, loss of reputation, and pecuniary loses (lost sales, and loss of potential clients) of $52,971.25 to $120,000 depending on preferred method of calculation. (C.R. 198). Likewise, this lawsuit was necessary to cease daily ongoing reputational harm and pecuniary harm to KG. (C.R. 468). On September 24, 2014, KG filed Plaintiff’s Original Petition, Request for Equitable Relief & Request for Disclosure. (C.R. 3-11, 120). i. No Order to Nonsuit KG’s Claims Although a Notice of Nonsuit was filed by KG in an attempt to avoid having to defend a motion to dismiss due to personal circumstances, KG withdrew the Notice of Nonsuit before an Order of Nonsuit was filed. (C.R. 96-97, 738-739). Although Morin eludes in his brief that KG’s claims were nonsuited―this is simply untrue. There is no order of nonsuit, and although it was discussed by the trial court, the trial court refused to make any findings or rulings without further motion by Morin. Furthermore, this issue is not before this Court. i. Morin’s Discovery Responses Due Before Motion to Dismiss Filed On September 30, 2014, Morin was personally served with the Original Petition and Request for Disclosure. (C.R. 121, 131-132). On October 28, 2014, KG served Morin with Requests for Admission, Request for Production, and First Set of Interrogatories. (C.R. 121, 132-154). ― 17 ― 1st deadline missed by Morin: On November 19, 2014, Morin’s Response to Request for Disclosure was due. Morin failed to respond until February 13, 2015, nearly 3 past the deadline. (C.R. 121). 2nd deadline missed by Morin: On November 27, 2014, Morin’s Response to Request for Admissions, Response to Request for Production, and Response to First Set of Interrogatories was due. Morin failed to respond until February 13, 2015, nearly 3 past the deadline. (C.R. 121). When Morin finally responded, he sent over a self-serving subset of documents and responses that primarily consisted of objections which were only beneficial to his case. (C.R. 122, 159-187). No On-going Discovery Discussions: Although Morin alludes that the reason for all his missed deadlines were because there were ongoing discovery discussions, the evidence supports otherwise. (A.B. 14). (Appx. 6). Despite Morin’s requests for limited discovery, KG always clearly responded that full discovery responses would be necessary, or KG would seek a hearing on the matter. (C.R. 122, 155-158). (Appx. 6). Knowingly, Morin set and noticed his motion to dismiss around KG’s noticed unavailability simultaneously sending KG and email stating his intent to prevent KG from obtaining discovery, “that [the motion to dismiss setting] will leave you with no time for discovery even if the judge thinks you deserve it. (Appx. 7). ― 18 ― ii. Morin Fails to Timely File His Motion to Dismiss 3rd deadline missed by Morin: On December 1, 2014, the Monday following the 60th day to file a Motion to Dismiss by Morin pursuant to Section 27.003 of the Texas Participation Act (the “Act”) ran. (C.R. 121). In accordance with the Act, Morin is limited, “not later than the 60th day after the date of service of the legal action” (Date of Service: September 30, 2014). (C.R. 121). December 3, 2014, Morin refiled his Motion to Dismiss, this time, with exhibits and affidavits; therefore, this is the date the District Court considered the Motion to Dismiss to be untimely filed, and likewise, the trial court found no good cause to extend this deadline beyond December 1, 2015, which was the 60th day from the date of service of the legal action. (C.R. 739). iii. Morin Fails to Timely Set His Motion to Dismiss On December 30, 2014, KG filed a Notice of Address Change and Notice of Unavailability and on January 28, 2015, KG filed an Amended Notice of Unavailability which noticed Morin that KG would be out of the country and unavailable for a setting on February 18, 2015 through February 25, 2015. (C.R. 121). 4th and 5th deadline missed by Morin: On January 30, 2015, the 60th day ran from the date that Morin’s Motion to Dismiss would have been timely filed (December 1, 2014). In accordance with Section 27.004 of the Act, “A hearing on ― 19 ― a motion under Section 27.004 must be set not later than the 60th day after the date of service of the motion unless: [1] the docket conditions of the court require a later hearing, [2] upon a showing of good cause, [3] or by agreement of the parties … but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003…” (C.R. 121- 122). As required by Section 27.004, there were: [1] no Travis County docket conditions that would require a later hearing, [2] no timely finding of good cause by the court prior to running of the 60-day deadline (January 30, 2015) and [3] no agreement by the parties to extend the 60-day deadline to a 90-day deadline. (C.R. 122). Likewise, the trial court found no good cause to extend this deadline beyond January 30, 2015, which was the 60th day from the date Motion to Dismiss would have been timely filed. (C.R. 739). Therefore, the trial court found that the 90-day deadline doesn’t apply by holding that Morin, “did not meet any of the exceptions indicating that the hearing can be set later than the 60th day,” but even if it did, Morin failed to hold the hearing by the 90th day, which would have been February 26, 2015 (C.R. 121-123, 739). ― 20 ― iv. No Hearing Was Held on February 26, 2015 On February 17, 2015, the District Court heard KG’s Motion for Continuance and the parties reached an agreement with the trial court. The trial court acknowledged that Morin had improperly scheduled the Motion to Dismiss on the jury week, rather than a nonjury week, and likewise, the trial court knew that it couldn’t hear Morin’s Motion to Dismiss on February 26, 2015 because the trial court had scheduled jury trials the entire day. There is no written order on the matter because the parties were given the option to proceed with KG’s Motion to Strike in the afternoon on February 17, 2015, or have all the pending motions heard on the same day on March 5, 2015. After some discussion, the parties agreed in open court that all motions would be reset to March 5, 2015, and likewise, that KG’s presence was not necessary on February 26, 2015 because the case would simply be called by the court and reset. (C.R. 110-111, 120-192). Morin improperly states that a hearing was held February 26, 2015. (A.B. 15) and states that KG should have objected. KG was not in a position to object, given the nature of the agreement set forth above. Further, KG could not object because KG was not present on February 26, 2015. It is clear by the court reporter’s record that no hearing was held and neither party even announced ready or acknowledged they were present. (R.R. 3:1-9). ― 21 ― On March 5, 2015, the trial began and concluded the hearing on: (1) Morin’s Motion to Dismiss, (2) KG’s Second Amended Motion to Strike or Deny Morin’s Motion to Dismiss and (3) the responses and replies to those motions; and (4) the parties objections. (C.R. 739). Based on Morin’s improper allegation that the hearing began on February 26, 2015, Morin improperly concludes that KG’s response to the Motion to Dismiss was untimely filed. (A.B. 15). However, it was clearly timely filed on March 2, 2015 and hand-delivered by personal service on Morin. (C.R. 206-467). Furthermore, consistent with the trial court’s ruling that, “finds that Kleinhans Gruber established, by clear and specific evidence, a prima facie case for defamation and business disparagement…” and “overrules Morin’s objections to the affidavits of Kimberly Kleinhans, Martin Garza and Michael Siegler,” the trial court finds these filings were timely and proper and further supports that the above facts concerning the agreement made between the parties and the trial court (that the motions would not be heard February 26, 2015, but rather, that the motions would be heard March 5, 2015). (C.R. 739). v. Trial Court’s Ruling The trial court not only denied Morin’s motion to dismiss on the basis that it found that KG had established by clear and specific evidence, a prima facie case for defamation and business slander, it also denied Morin’s motion on various ― 22 ― other levels―all dealing with Morin’s habitual failure to meet deadlines as underlined and set forth above on pages 17-19. (C.R. 739). Further, the trial court also found that Morin did not establish each element of an affirmative defense by preponderance of the evidence. (C.R. 739). E. Appeal It is relevant to mention Morin’s continued disregard of the rule of law in the appellate court and his habitual failure to meet deadlines. 6th deadline missed by Morin: As Morin admits, pursuant to Tex. Civ. Prac. & Rem. Code § 27.008(a), the Act deems a motion denied if the deadline passes without a hearing (Appx. 2). As no good cause extension was granted, it is clear that January 30, 2015 was the deadline for the hearing on Morin’s Motion to Dismiss and it is undisputed that no hearing occurred on the Motion to Dismiss on or prior to the January 30, 2015 deadline. (C.R. 739). Likewise, the motion is denied by operation of law and a Notice of Appeal must be filed within 20 day unless a proper Motion to Extend time is filed within 15 days after the deadline. The 20th day from January 30, 2015 ran on February 19, 2015, and the additional 15-day deadline to file for an extension ran on March 6, 2015. As Morin further admits that, “if the written order states that there is no good cause for extension, then Morin’s right to appeal is lost retroactively.” (Appx. 2). The Order clearly states that there was no good cause for extension and therefore, it is abundantly ― 23 ― clear that this Court is without jurisdiction to rule on LEVI MORIN’s Motion because it is outside the time allowed to file a motion for extension to file for an appeal. 7th deadline missed by Morin: Morin’s brief was due on May 27, 2015. (Appx. 2). Rather than filing for an extension before the deadline ran, Morin waited for the court to expend its resources on June 1, 2015, to notice Morin that the brief was late, before bothering to file a Motion for Extension. (Appx. 2). 8th deadline missed by Morin: After the extension was granted to June 10, 2015, Morin again disregarded the new deadline of June 10, 2015, and failed to file the brief or request for extension by June 10, 2015. (Appx. 2). VI. SUMMARY OF ARGUMENT KG’s response to Morin’s Motion to Dismiss was not only supported by clear and specific evidence on each and every element, Morin’s Motion to Dismiss was also denied on countless other procedural levels due to Morin’s habitual inability to meet deadlines. Morin’s pursuit of the appeal is frivolous as the Motion to Dismiss was denied on various grounds that preclude his argument and are not issues of his appeal, but rather he tries to keep them hidden as sub-points when they are equally as important as the issue concerning clear and specific evidence. ― 24 ― There is no question that Morin habitually missed deadlines necessary to bring a Motion to Dismiss that are clearly established by the Act. In fact, Morin failed to file any exhibits by the filing deadline for the Motion to Dismiss and later failed to set any hearing within 60 days of filing, and still didn’t have the case heard within the 90 day deadline. In the event that this Court looks past all the clearly missed deadlines dictated by the Act, and gets to the only issue on appeal―that KG allegedly did not present a prima facie case of each element of the case by clear and specific evidence, this Court should recognize KG clearly did so. KG’s response was timely filed 3 days prior to the hearing. KG’s affidavits were timely and proper, most importantly; Garza’s was drafted by him and notarized by his staff. KG clearly evidenced damages in their petition and in Kimberly Kleinhans affidavit naming the various resources used to calculate specific numbers. Morin’s legal fees are readily controverted in Kimberly Kleinhans’ affidavit as being unreasonable because Morin is being charged $75.00 an hour by Lief Olson and is actually paying $75.00 an hour for the services that are being rendered yet Mr. Olson is requesting that KG pay $275.00 an hour. KG is entitled to their fees and post-motion fees as sanctions against counsel for Morin for filing this frivolous appeal. ― 25 ― The trial court was correct on each and every of its 7 findings against Morin. The Court should reaffirm the trial court’s decision and render judgment awarding KG pre-motion fees and an appropriate sanctions against Morin and/or counsel for Morin. VII. ARGUMENT The purpose of a Motion to Dismiss pursuant to the Act is to safeguard the constitutional right to free speech. It is not intended to deprive litigants of their right to a full hearing on the merits concerning real issues of fact. In fact, The Act’s published purpose is, “…to protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. Sites like Yelp give ordinary people the power to write reviews that have a major impact on other people’s reputations and livelihoods. But it also means that they can be held legally responsible if what they write is defamatory. Yelp will not remove the false and damaging online posting by Morin unless there is an order from the trial court requiring Morin to do so. As such, a lawsuit for defamation and business disparagement was filed against Morin for his false and defamatory statements about KG and the attorneys working for KG. Not only did the trial court find that KG properly establish a prime facie case for both defamation and ― 26 ― business disparagement claims by clear and specific evidence, the trial court also denied Morin’s Motion to Dismiss on various other grounds, all having to do with his habitual failure to meet deadlines. KG is entitled to denial of Morin’s Motion to Dismiss based solely on the missed deadlines, yet the trial court still went beyond just a denial of the motion for procedural issues, to clearly point out 7 findings/rulings for concluding that the Motion to Dismiss should be denied. A. TRIAL COURT SPECIFICALLY FOUND THAT KG ESTABLISHED BY CLEAR AND SPECIFIC EVIDENCE, A PRIMA FACIE CASE OF DEFAMATION AND BUSINESS DISPARAGEMENT It is unexplained why Morin continues to reference discrimination as discrimination has nothing to do with this lawsuit or with this appeal. This is a case involving defamation, defamation per se, and business disparagement only. The trial court found that KG clearly met the burden to avoid dismissal of the prima facie case by clear and specific evidence of all elements of both defamation and business disparagement. Although the trial court clearly found that KG had met its burden based on the statement that KG, “sent hung over associates to court dates [Michael Siegler]”―that was not specified by the trial court as being ― 27 ― the only basis for the trial court’s findings, it was simply the most convincing to the trial court. The elements for a claim of defamation are: (1) published a statement (2) that was defamatory concerning the plaintiff (3) of false facts or verifiable opinion (4) while acting with negligence, if the plaintiff was a private individual, regarding the truth of the statement, Hearst Corp. v. Skeen, 130 S.W.3d 910 (Tex. App. 2004) review granted, judgment rev’d, 159 S.W.3d 633 (Tex. 2005); Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 655 (Tex. 1987). While an action for defamation protects the personal reputation of the plaintiff, an action for business disparagement is intended to protect the economic interests of the plaintiff. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex.2003); Hurlbut v. Gulf Atl. Life Insur. Co., 749 S.W.2d 762, 766 (Tex.1987); Newsom v. Brod., 89 S.W.3d 732, 735 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The elements for a claim of business disparagement are: (1) the defendant published false and disparaging information, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff. Forbes, Inc, 124 S.W.3d at 170; Hurlbut, 749 S.W.2d at 766. - Falsity. To prove an action for defamation and business disparagement, the statement must be false. Musser v. Smith Protective Services, Inc., 723 ― 28 ― S.W.2d 653, 655 (Tex.1987)1. The statement must therefore expressly or implicitly assert facts that are objectively verifiable. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2003) . In Milkvich, the U.S. Supreme Court said the First Amendment does not mandate an inquiry into whether a statement is opinion or fact because when the speaker states the facts on which they base their opinion, and those facts used to base their opinion are either incorrect or incomplete, or their assessment of those facts is erroneous, the statement may still imply a false assertion of fact. Id., 497 U.S. at 182. The decision in Bentley overrules earlier decisions that held that all assertions of opinion are protected under Article 1, Section 8, of the Texas constitution. See Bentley, 94 S.W.3d at 580-1 (overruling Associated Press v. Cook, 17 S.W.3d 477, 454 (Tex.App.-Houston [1st Dist.] 2000, no pet.); American Broad. Cos v. Gill, 6 S.W.3d 19, 29 & n.3 (Tex.App.-San Antonio 1999, pet. Denied); Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (TexApp.-Houston [14th Dist.] 1998, pet. Denied); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex.App.-Waco 1997, writ denied). In summary, opinion is not exempt 1 Musser, 723 S.W.2d at 655. (A written statement calling Musser a strong and successful competitor is not false and therefore not defamatory). 2 Milkvich , 497 U.S. at 18 (For example, when a speaker says, ‘In my opinion, Jones is a liar,’ she implies knowledge of facts that lead to a conclusion that Jones lied). ― 29 ― from causes of action in defamation, however, the opinion must be provable as true or false in order to create liability in the defendant. - Malice. While the defamation claim only requires a lesser showing of negligence, business disparagement requires a showing of malice. Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); Bentley at 561, 586 & n.62. A defendant acts with malice when it (1) knows the statement in question is false, or (2) acts with reckless disregard for whether the statement is true, or (3) acts with ill will, or (4) intends to interfere in the plaintiff’s economic interest. Hurlbut v. Gilf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987). Furthermore, “…care and motive are factors to be considered.” Hearst Corp., 130 S.W.3d 910; Bentley, at 596. - Damages. The defamation claim damages are presumed when the false statement is about a person in his/her office, profession or occupation. Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.);  Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex.App. 1990); Flamm v. American Association of University Women, 201 F.3d 144, 151 (2d Cir.2000). The damages for the business disparagement claim require a showing of special damages that were realized or lost, such as specific lost sales, loss ― 30 ― of trade, or loss of other dealings. Hurlbut, 749 S.W.2d at 767; Astoria Indus. V. SNF, Inc., 223 S.W.3d 616, 628 (Tex.App.-Fort Worth 2007, pet. denied); Newsome v. brod, 89 S.W.3d 732, 735 (Tex. App.-Houston [1st Dist.] 2002, no pet.). To prove causation, the disparagement doesn’t have to be the sole, exclusive factor causing the plaintiff’s damages, but must play a substantial part in inducing others not to deal with the plaintiff. Johnson v. Hospital Corp., 95 F.3d 383, 391 (5th Cir.1996); Hurlbut at 767. The trial court appropriately found that, “KG established by clear and specific evidence, a prima facie case for defamation and business disparagement,” specifically stating during his ruling that not only was malice found, but exceeded by finding actual malice. (C.R. 739). Further, the trial court overruled, “Morin’s objections to the affidavits of Kimberly Kleinhans, Martin Garza and Michael Siegler.” Id. 1. Trial Court Specifically Found KG’s Exhibits Were Timely and Admissible Morin improperly states in his brief that the only evidence of the falsity of Morin’s Yelp statement (alleging that KG sent hungover associates to court) came from affidavits of Siegler and Garza only. (A.B. 22:2). However, additional evidence of the falsity of this Yelp statement came from Kimberly Kleinhans affidavit as well. (C.R. 493-494). ― 31 ― The admission and exclusion of evidence is committed to the trial court's sound discretion. City of Brownsville v. Alvarado3, 897 S.W.2d 750, 753 (Tex. 1995); citing Gee v. Liberty Mut. Fire Ins. Co. 765 S.W.2d 394, 396 (Tex.1989). A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Id. At 753-754; See GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.— Houston [1st Dist.] 1991, writ denied); Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.—San Antonio 1983, writ ref'd n.r.e.). Here, the judgment [or rulings], do not just turn on the exclusion of evidence. In the case at hand, the trial court’s ruling turns on denying Morin’s Motion to Dismiss, whether it was found to be timely filed or not. (739). Further, another of the trial court’s ruling turns on denying Morin’s objections to KG’s affidavits whether the filing of the objections were found to be timely or not. (739). Therefore, the trial court found that all 3 affidavits submitted by KG as evidence were found by the trial court to be admissible and timely and proper, whether or not Morin’s objections were considered in making this determination. 3 We conclude that the trial court did not abuse its discretion by excluding all evidence relating to negligent training and supervision based on discretionary powers under the Tort Claims Act. City of Brownsville v. Alvarado3, 897 S.W.2d 750, 753 (Tex. 1995). ― 32 ― a. KG’s Evidence Timely Filed 19 Days and 3 Days Prior to Motion to Dismiss Setting The Act only sets deadlines for the filer of the Motion to Dismiss (Tex. Civ. Prac. & Rem. Code). September 30, 2014―Morin served with this lawsuit December 1, 2014― Section 27.003(b) deadline for Morin to file Motion to Dismiss (failed to file until December 3, 2014) January 30, 2015― Section 27.004(a) deadline for Morin’s Hearing on the Motion to Dismiss (no Hearing noticed by this date) February 13-14, 2015―Morin unilaterally notices setting for February 26, 2015 and KG files Motion to Strike setting based on unavailability notice for February 18, 2015-February 25, 2015 and deposition on another case on February 26, 2015 February 17, 2015―Setting on Motion to Strike and no ruling from judge, rather agreement reached between the parties and the court to March 5, 2015 reset date February 26, 2015 ―KG not present, no parties announced (R.R. 3:1-9). March 2, 2015―KG’s response filed and supplemented March 4, 2015 March 5, 2015―Hearing began and ended on Motion to Dismiss Morin attempts to confuse this Court with his references to setting dates. It is important to point out that no hearing was announced or called on February 26, ― 33 ― 2015 because Morin had improperly set the Motion to Dismiss on a jury week docket, rather than on a non-jury week docket. (Appx. 8). KG timely filed on February 17, 2015 and amended February 18, 2015 all documents requesting the court to strike the Motion to Dismiss based on Morin’s missed deadlines. (C.R. 98-119, 120-192). Further, a response to the Motion to Dismiss was timely filed and hand-delivered on March 2, 2015 and supplemented on March 4, 2015, all before the hearing date. (C.R. 206-467, 468-729). Furthermore, Morin failed to present trial testimony or argument alleging any facts showing how he was prejudice by anything supplemented in the March 4, 2015 filing of the response to the Motion to Dismiss, likely because there wasn’t any undue surprise because there were no substantive changes that would cause Morin undue prejudice. Therefore, KG’s Motion to Strike was filed and served 19 days before the hearing and KG’s response was filed and served 3 days before the hearing. (C.R. 98, 206). Further, Morin’s reference to Texas Rule of Civil Procedure 21(b) is misleading as this rule applies to pleadings requesting relief, not responsive pleadings. If Texas Rule of Civil Procedure 21(b) applied to responses, most counsel would wait to file pleadings requesting relief until 3 days prior to the ― 34 ― hearing so that it would preclude a response. Therefore, it is clear Rule 21(b) was not intended to apply to responses. Finally, there is no deadline to file a response pursuant to the Act. In contrast, there is a clear deadline pursuant to the Act, for Morin to file the Motion to Dismiss. Not only did he miss the initial filing deadline of the entire Motion, he also tries to argue that KG pleadings were late, even though KG pleadings were filed 3 days before his affidavits and objections. Morin was over 2 hours late to the motion to dismiss hearing on March 5, 2015. In addition to being this obscenely late, he pulled over to efile affidavits and objections after the time the hearing was set to begin (filings KG couldn’t access because they were already waiting at the courthouse for Morin). Clearly, with facts such as these, it is hard to comprehend how he can argue KG filings were late when his weren’t even filed until after the time the hearing was scheduled to begin. Therefore, there is no reversible error as the trial court acted within guiding principles of the Texas Rules of Civil Procedure and the Act. b. KG Affidavits Properly Authenticated Seigler’s affidavit is properly authenticated because a notary can clearly notarize a document in which his or her employer has an interest. Tex. Civ. Prac. & Rem. Code §121.002. Further, a notary public is not disqualified from ― 35 ― performing a notarization of a document, solely because of the notary public's ownership of stock or participation in or employment that has an interest in the underlying transaction. Tex. Fin. Code §199.002. In Phillips, articles of association were signed by 52 employees, 51 of which had theirs notarized by another employee of the company. The employee who notarized the other employees’ articles of association had her own notarized by a different person. The court there held that because the Legislature’s intent in requiring those items to be notarized was to ensure genuine identity of the persons associated with the documents, and to prevent fraud, there was no bad faith. Therefore “the fact that one of the associates happened to be the notary who took the acknowledgements of the other 51 associates does not render invalid the character granted pursuant thereto.” Phillips v. Brazosport Sav. & Loan Ass'n, 366 S.W.2d 929 (Tex. 1963). Similarly, in Wortham, a relator who was also a notary public, authenticated a verification for the petition filed for another relator in the case. The court stated “the interest of Watson in the subject matter of the suit was such as to disqualify him from administering the oath which he administered to Kirgin or to render Kirgin's affidavit void or defective.” Wortham Indep. Sch. Dist. v. State, 244 S.W.2d 838 (Tex. Civ. App.—Waco 1951). This holding has been cited and supported by Ex Parte Karedia. ― 36 ― Here, like in both Phillips and Wortham, Kimberly Kleinhans is an employee of the company, which does not disqualify her from taking the acknowledgement of a written instrument in which KG has an interest. The trial court properly ruled that Morin’s objections to the affidavit of Siegler were overruled. (C.R. 739). The acknowledgement is valid and lawful and likewise, this Court should affirm the trial court’s ruling as based in law as set forth above. Furthermore, both Kleinhans and Garza’s affidavits were sworn by an outside notaries (Appx. 9, 12), so even if Seigler’s affidavit isn’t considered, there is enough evidence from Kleinhans and Garza’s affidavit to support the trial court’s ruling concerning Morin’s Motion to Dismiss so the one allege issue is irrelevant to overturn this case. c. Garza Emailed Affidavit Testimony & Waived Formal Service Morin holds out that Garza’s affidavit testimony was forced by fake command of the court. (A.B. 24-25). The record clearly supports otherwise. (C.R. 467, 729) (Appx. 9). The February 24, 2015 email from Garza was voluntarily written and emailed to Kleinhans and states, verbatim, the statements authenticated in an affidavit by Garza. (C.R. 467, 729) (Appx. 9). There is no evidence that anyone other than Garza typed up this email and sent it to Kleinhans. Id. Furthermore, in this same ― 37 ― email Garza requests that KG subpoena the testimony so that Garza could paper his file. Id. Garza was not served by constable or process server with the affidavit. He voluntarily accepted service of the subpoena. Garza could object to the timing or form of the subpoena, as he is the party such rules cited by Morin were meant to protect. Tex. R. Civ. Pro. 176.6(d) and (e). Garza, an attorney himself, did not object or quash the subpoena. Rather, he waived formal service of the subpoena by signing showing his acceptance of service and notarized and returned the affidavit simultaneously (Appx. 10). Kleinhans abided by all rules concerning subpoenas because Garza was not formally served and Kleinhans did not know if Garza would voluntarily accept the subpoena. As soon as Kleinhans received the signed affidavit and testimony (all in the same email), she immediately forwarded it to counsel for Morin. (Appx. 10). Morin objected for similar reasons in trial court and the trial court properly ruled that Morin’s objections to the affidavit of Martin Garza were overruled. (C.R. 739), and likewise, this Court should affirm the trial court’s ruling. ― 38 ― 2. Trial Court Specifically Found KG’s Evidence was Clear and Specific The decision from the Serafine v. Blunt case already dealt with this issue. Id. No. 03-12-00726-CV. ____ S.W.3d__, 2015 WL 2061922 (Tex. App. – Austin May 1, 2015, n.p.h.: The Act does not define “clear and specific” evidence; consequently, we give these terms their ordinary meaning. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “Clear” means “free from doubt,” “sure,” or “ unambiguous.” Black’s Law Dictionary 307 (10th ed. 2014); Lipsky II, 2015 WL 1870073, at *6 (approving this definition of “clear”); see also Webster’s Third New Int’l Dictionary 419 (2002) (“easily understood,” “without obscurity or ambiguity,” “easy to perceive or determine with certainty”). “Specific” means “explicit” or “relating to a particular named thing.” Black’s Law Dictionary, at 1616; In re Lipsky, ___ S.W.3d ___, 6, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015) (approving this definition of “specific”); see also Webster’s Third New Int’l Dictionary, at 2187 (“being peculiar to the thing or relation in question,” “characterized by precise formulation or accurate restriction,” or “free from such ambiguity as results from careless lack of precision or from omission of pertinent matter”). We conclude that the term “clear and specific evidence” refers to the quality of evidence required to establish a prima facie case, while the term “prima facie case” refers to the amount of evidence required to satisfy the nonmovant’s minimal factual burden. See Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *10 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.). ― 39 ― a. Falsity Supported by 4 Evidentiary Items Three affidavits containing 4 quality pieces of evidence, clearly and specifically support that Michael Siegler was not drunk or hung over: 1) the testimony of Michael Siegler, 2) the testimony of opposing counsel, Martin Garza, 3) the testimony of Kimberly Kleinhans, and 4) the State Bar’s findings. First, the affidavit of Siegler himself proves that, “I was not intoxicated nor was I hung over…at no time did LEVI MORIN ever ask me if I was drunk or hung-over,” (C.R. 727) (Appx. 11). Second, the affidavit of Garza proves that, “Michael Siegler handled the matter professionally and to a high ethical standard. We conferred and negotiated for over 6 hours on the day of the hearing. At no time did I even suspect or see any signs of intoxication,” (C.R. 729) (Appx. 9). Third, the affidavit of Kimberly Kleinhans proves that Siegler, “never had previous reports that Siegler reported to work drunk or hung-over and has not had any reports since the false allegation of Morin stating that Siegler was hung-over at the March 10, 2014 setting. Furthermore, I corresponded with Michael Siegler on the day prior and on the date of the hearing and at no time did he ever appear to be drunk or hung-over. His speech was clear, he was alert and his thoughts were well organized.” (C.R. 493). (Appx. 9). ― 40 ― Forth, Kimberly Kleinhans affidavit proves that Morin attempted to file a bar complaint against Siegler with similar allegations to the Yelp posting. (C.R. 494- 495). Morin’s complaint containing the same allegations that were found to be meritless on the face of the complaint, which were immediately thrown out without even an initial investigation by the State Bar, “LEVI MORIN received notice that his complaints were dismissed only days or weeks prior to posting his Yelp review. So Morin knew that his complaints were found by the State Bar of Texas to have no basis, yet he went on to make the same false and baseless claims online to attempt to make it appear as if licenses were in jeopardy when that was not the truth.” Id. Therefore, there is no reversible error as the trial court properly analyzed the evidence presented and found that the affidavits contained quality testimony that equates to clear and specific evidence, and likewise, its ruling should be upheld. b. Damages The KG amended petition and Kimberly Kleinhans affidavit clearly and specifically supported damages claimed (C.R. 198-199, 494). The KG amended petition states: “LAW OFFICE OF KG, PLLC has suffered general and special damages in the past and will continue to suffer general and special damages ― 41 ― in the future as the posting is still active. LAW OFFICE OF KG, PLLC damages include but are not limited to: damage to reputation, loss of reputation, mental anguish, and pecuniary loses (lost sales, and loss of potential clients) of $52,971.25 to $120,000 depending on preferred method of calculation.” (C.R. 198-199). Further, Kimberly Kleinhans affidavit states: “On average, LAW OFFICE OF KLEINHANS GRUBER, PLLC earns roughly $10,000 per client. This is a conservative average because our personal injury settlements on average range in attorney fees from $30,000 to $3,000 and our family law cases usually average about $10,000. This average is based on my knowledge as the primary partner of the firm that handles all the billing and financials of the firm. Additionally, this number is based on my review of cases and income off of cases. Furthermore, Keith Kleinhans handles the firm’s intake calls and retains roughly 40-50% of all calls we get to the firm that are interested in retaining our services. We do not pay for advertisement, we obtain our business from referrals and online traffic, therefore, it is without question that our business has declined since LEVI MORIN’s posting. The decline is reflected in our overall business income from the date of the posting to the present and supported by Quickbooks that accounts for all of our firm income, which shows that from July 2013- December 2013, our income was $149,303.03, however for the similar months the following year after LEVI MORIN’s June 2014 posting, our income was $96,331.78, which is $52,971.25 lower. Therefore, based on my review of financial documents and client billing, the current Yelp posting (see Exhibit A-2) and the Yelp activity reports (see Exhibit A-3 ), minimally, LAW OFFICE OF KLEINHANS GRUBER, PLLC lost income ranging from $52,971.25 to $120,000 depending on method of calculation.” (C.R. 494, 502-507, 508-542). i. Noneconomic Damages to Reputation Are Presumed “Noneconomic damages” means damages awarded for the purpose of compensating a claimant for … injury to reputation.... Tex. Civ. Prac. & Rem.Code ― 42 ― § 41.001(12). Similar to general damages, these non-economic damages do not require certainty of actual monetized loss. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014), citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 373, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (White, J., dissenting); 2 Dan B. Dobbs, Law of Remedies § 8.1(4) (2d ed.1993); Restatement (Second) of Torts § 621 cmt. a (1977); id. § 905 cmt. i (1979). Instead, they are measured by an amount that “a reasonable person could possibly estimate as fair compensation.” Id., citing Restatement (Second) of Torts § 905 cmt. i. “Non- economic damages like these [mental anguish, character, and reputation damages] cannot be determined by mathematical precision; by their nature, they can be determined only by the exercise of sound judgment.” Bentley, 94 S.W.3d at 605. Further, “[L]anguage which concerns a person engaged in a lawful occupation ‘will be actionable, if it affects him therein in a manner that may as a necessary consequence, or does as a natural or proximate consequence, prevent him deriving therefrom that pecuniary reward which probably he might otherwise have obtained.’ Bell Publ'g Co. v. Garrett Eng'g Co., 154 S.W.2d 885, 887 (Tex.Civ.App.-Galveston 1941) aff'd, 170 S.W.2d at 197. “Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.” Bentley at 604. Even in the Waste Mgmt. of Tex., Inc. case where the ― 43 ― court found that the non-economic damages were not the sort of general damages that necessarily flow from such a defamatory publication, nominal damages were still upheld. Id. at 162. The plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se. In re Lipsky, ___ S.W.3d ___, 6, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015), citing Waste Mgmt. of Tex., Inc. at 162. KG clearly fits in the category of defamation per se as Morin was clearly trying to injure KG’s profession by holding out that KG’s attorneys are incompetent drunks and thus, damages are presumed. (C.R. 195-205). However, even if damages are not presumed, KG clearly sets forth necessary facts to support damage to reputation in Kimberly Kleinhans’ affidavit: - Yelp webpages showing 2 users gave it a thumbs up that Morin’s review was helpful, and given it is all negative reviews of KG, it is clear that 2 potential clients did not choose to use KG for legal services. (C.R. 494, 502-507) - Yelp emails showing 193 people that have visited the Yelp site, only 14 have turned into leads (C.R. 494, 508-542) Therefore, the amount of damages that KG should be awarded is an issue for the jury to determine at a later date, but for purposes of this inquiry, it is presumed that KG has suffered nominal damages, so minimally, for the purposes of inquiry ― 44 ― nominal damages are clearly supported by the law. Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex. 2013) (Remarks that adversely reflect on a person's fitness to conduct his or her business trade are also deemed defamatory per se.); Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam) (Texas law presumes nominal damages when the defamation is per se); In re Lipsky at 34 (“pleading and proof of particular damage is not required to prevail on a claim of defamation per se, and thus actual damage is not an essential element of the claim to which the TCPA's burden of clear and specific evidence might apply.”) ii. Economic Damages to KG Earning Capacity and Lost Income “Economic damages” means compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages. Tex. Civ. Prac. & Rem.Code § 41.001(4). Economic damages do require proof of pecuniary loss for either harm to property, harm to earning capacity, or the creation of liabilities. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014), citing Restatement (Second) of Torts § 906. KG has clearly identified pecuniary loses and harms to earning capacity. There are 2 potential clients that were seeking attorney services and on KG’s Yelp site, when they noticed Morin’s false review, as 2 users gave it a thumbs up that it ― 45 ― was helpful, and likewise, it is reasonable to conclude that Morin’s positing is a substantial part in inducing those 2 potential clients not to use KG for legal services. (C.R. 502-507). Furthermore, Yelp Activity reviews support the same as explained above that of the 193 people that have visited the Yelp site, only 14 have turned into leads, and given the fact that all the other reviews posted on the Yelp page are positive, raving, 5-star reviews, the only conclusion that can be drawn is that Morin’s Yelp posting is causing the low number of leads generated from the high number of views. (C.R. 508-542). In conclusion, the estimated damages caused have been summarized and documented by Kimberly Kleinhans in her attached affidavit to be lost income ranging from $52,971.25 to $120,000 depending on method of calculation. (C.R. 494). All the above statements directly from the referenced affidavits point to clear and specific evidence by referencing: - $52,971.25 to $120,000 estimated damages from date of posting from June 24, 2014 through February 27, 2015 points to specific monetary figures and dollar amounts calculated by KG’s Quickbook software (C.R. 494) - we obtain our business from referrals and online traffic (clearly showing that KG tracks and knows where they get their business) (C.R. 494) - on average, LAW OFFICE OF KLEINHANS GRUBER, PLLC earns roughly $10,000 per client….based review of cases and income off of cases (shows KG knows how profitable the cases are) (C.R. 494) ― 46 ― - references lost profits of $2,500 incurred by having to respond to the frivolous Motion to Dismiss (C.R. 495) As one would expect, the court in Burbage denied finding economic damages when those damages claimed were for the sale of the funeral home in its entirety and when asked the cost of the funeral home, trial testimony contained statements such as, “if I had to throw something out there….” However, in contrast, Kimberly Kleinhans affidavit supports she has thoroughly reviewed QuickBooks, financial documents, client billing, the current Yelp posting and the Yelp activity reports to calculate a specific figure based on the review of these documents, likewise supporting a finding that clear and specific evidence exists to support economic damages. (C.R. 494, 502-507, 508-542). Therefore, there is no reversible error as the trial court acted within guiding principles of case law that hold that KG only has to prove that the harm is a substantial part in causing the damages, not that it is the exclusive factor in causing the damages, and therefore, this Court should uphold the trial court’s ruling. Johnson at 391; Hurlbut at 767. c. Malice Supported by Motive and Intentional Acts A defendant acts with malice when it (1) knows the statement in question is false, or (2) acts with reckless disregard for whether the statement is true, or (3) ― 47 ― acts with ill will, or (4) intends to interfere in the plaintiff’s economic interest. Hurlbut, 749 S.W.2d 762, 766. Furthermore, “…care and motive are factors to be considered.” Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005); Bentley, 94 S.W.3d at 596. Morin had motive to harm KG’s economic interest. On June 4, 2014, in response to receipt of the Order of Withdraw, Morin emailed Kimberly Kleinhans an email stating, “You’re a horrible person, a predator, and I will make sure that’s known on as many fronts as I can.” (C.R. 197). When KG requested Morin to remove the posting, Morin responded sending several emails to Kimberly Kleinhans stating, “go fuck yourself,” and “biggest piece of shit lawyer I’ve ever not met,” and “wait ten days and see if I’m as big of a pussy as you.” (C.R. 198) (Appx. 4-5). Morin’s acts were intentional to harm KG’s economic interest. Morin’s acts show ill will; actually supporting a higher standard of the type of malice required for a media plaintiff, even though KG is a non-media plaintiff and only requires a showing of negligence. In re Lipsky at 25, citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571(Tex. 1998) (A private individual need only prove negligence, whereas a public figure or official must prove actual ― 48 ― malice). The trial court agreed by denying Morin’s Motion to Dismiss against the business disparagement claim that requires the higher finding of malice. (739). Morin never attempted to verify the truth or falsity of these statements at time of publishing, even though the statements could have easily been verified by asking Michael Siegler if he was hung over or by sending an email following the hearing to KG requesting that they investigate whether Michael Siegler was hung over at the setting. (C.R. 88-89). Additionally, the Texas State Bar further alerted Morin that his statements were unsubstantiated by notifying him that his bar complaint was found on its face, to be without merit and would not be investigated. (C.R. 197, 494-495). Morin knew at the time of posting that his complaints were found by the State Bar of Texas to have no basis, yet he went on to make the same false and baseless claims online to attempt to make it appear as if licenses were in jeopardy when that was not the truth. Id. Morin’s argument on this point is misplaced as the malicious act is not that Morin sent a complaint to the State Bar as Morin argues―rather, the malicious act is that Morin knew his complaint was found by the bar to be without merit, and that after being noticed, Morin disregarded that notice and posted on Yelp. ― 49 ― Further, “given the conduct and dishonesty and disrespect that I have seen him display in the course of the 2+ years that I represented him, there is no doubt in my mind, his intent to do harm to myself and the firm on as many fronts as is possible.” (C.R. 495) (Appx. 12). Further, support of Morin’s dishonesty is corroborated in Kimberly Kleinhans affidavit supporting his dishonest conduct during the course of her representation in which Morin attempted to get out of 2 settlement agreements after written settlement was reached and approved by him. (C.R. 495, 690, 728) (Appx. 12). Finally, the controverting affidavits by Michael Siegler (C.R. 727) and Martin Garza (C.R. 729) and Kimberly Kleinhans (C.R. 493-495) stating that Michael Siegler support that Morin was fabricating statements in his affidavit about the condition of Michael Siegler as each affidavit provides a basis for the statements, most notably, opposing counsel states that Michael Sigler negotiated 6 hours with him and at no time showed signs of being intoxicated. (Appx. 9, 11-12). Therefore, it is clear as stated in the paragraphs immediately above, Morin had motive and did not act with care―which are factors supporting a finding of malice. Morin did not make any attempt to verify the truth of the statements made, and further, now that he knows statements posted are false, he has failed to take any remedy. Additionally, the affidavit testimony and emails further support Morin’s intent to cause harm to the firm’s reputation and pecuniary interest in ― 50 ― retaliation for being denied representation and for being corrected, and likewise, this Court should find that clear and specific evidence supports that Morin had malice, and likewise uphold the trial court’s ruling. At No Time Did Morin Act Timely It is undisputed that Morin habitually missed deadline after deadline as set forth on pages 18-20 above. Such defiant disregard for the law clearly does not support a good cause finding. B. TRIAL COURT SPECIFICALLY FOUND HEARING WAS UNTIMELY Morin’s plea to the Court that he was trying to reach an agreement concerning discovery is without merit. Despite Morin’s requests for limited discovery, KG always clearly responded in the referenced emails that full discovery responses would be necessary, or KG would seek a hearing on the matter, “Please advise whether you are in agreement to answer the discovery that was served on you nearly 45 days ago, and if so, by what date you will be answering the discovery…” (C.R. 122 a-d, 155-158) (Appx. 6). As KG stated to Morin in these emails, KG was holding off on setting a discovery hearing as Morin alluded that he may not be going forward with his Motion to Dismiss, and further, KG was waiting for Morin to answer whether he was going to respond to the full discovery served, “This [discovery] hearing will need to be set prior to your ― 51 ― requested [Motion to Dismiss] setting on a date dependent on your response about whether you are in agreement to [answer all] discovery.” (C.R. 155) (Appx. 6). Thereafter the Motion to Dismiss was scheduled, without any agreement, Morin unilaterally sent over a self-serving subset of documents of his choosing that were only beneficial to his case and objected to anything relevant or of use to KG’s case. (C.R. 122) (Appx. 6). Morin’s refusal to respond to KG about whether he was going to fully comply with discovery does not constitute discovery discussions. The only reason that KG did not seek a discovery hearing is because Morin unilaterally set the Motion to Dismiss immediately after KG’s noticed unavailability and noticed her of the setting immediately before the noticed unavailability, making it impossible for KG to get a hearing on such matter. (C.R. 101). Morin’s email to KG reflects the same, “that [the Motion to Dismiss setting] will leave you with no time for discovery even if the judge thinks you deserve it. (Appx. 7). KG presented testimony to the trial court of how it was prejudiced by Morin’s habitual failure to comply with deadlines’ imposed by the Act, which include but are not limited to the following: KG’s noticed unavailability was planned to occur following the Motion to Dismiss setting to allow KG adequate ― 52 ― time to prepare a response, if Morin actually decided to go forward with the Motion to Dismiss (as Morin was considering KG’s offer to dismiss the case with Morin’s agreement to remove the Yelp post). (C.R. 190). Since Morin’s Motion to Dismiss was scheduled well after the January 30, 2015 hearing deadline, and noticed immediately before KG’s noticed unavailability to occur immediately following KG’s noticed unavailability, KG was prejudice by not having time to properly respond to the Motion to Dismiss, “I am spending all my time taking case of preliminary issues there is no time for me to review the Motion to Dismiss and respond.” (C.R. 188). The trial court took KG’s testimony concerning discovery and prejudice caused by Morin’s delay and properly found no good cause for an extension because as the facts stated herein support, there were no on-going discovery discussions, and therefore the trial court’s ruling should be upheld as they are in the best position to judge credibility of testimony. C. TRIAL COURT SPECIFICALLY FOUND MORIN EXHIBITS TO BE UNTIMELY AND NO GOOD CAUSE SUBSTANTIATED Just as Morin’s excuses for missing the above hearing deadline, there is no record and Morin failed to file any pleadings on the issue. Morin now asserts excuses not presented to the trial court. This is the first time KG is hearing Morin’s argument that he forgot to attach the exhibits. However, this argument is ― 53 ― flawed as his invoice attached to the brief this is in response to, stated on the date 2 days after the filing deadline, “Finalize and file revised motion with attachment and proposed order.” (A.B. 56). The term finalize does not support refiling because one “forgot” ―it supports that one is still working after the deadline to complete something that hasn’t been completed by the deadline. Likewise, the trial court is well-known to be the best facility to evaluate testimony and that is all we have here, testimony the trial court heard and is not available for the Appellate Court to review, “[A]ppellate courts should show almost total deference to a trial court’s findings of fact especially when those findings are based on an evaluation of credibility and demeanor—i.e...” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(internal citations omitted). Findings relating to whether there is a good enough excuse to have good cause are the exact type of findings that are based on the trial court’s evaluation of the credibility and demeanor of Morin v. credibility and demeanor of KG. There was no good cause for the trial court to permit the exhibits or a late hearing setting, and its ruling should be upheld. ― 54 ― D. MORIN’S ATTORNEY FEES CONTESTED IN AFFIDAVIT AS CLEARLY UNREASONABLE AND LOGICALLY UNNECESSARY KG clearly contests Morin’s lawyer fees in length in Kimberly Kleinhans’ affidavit naming 6 reasons for why they are unreasonable and unnecessary, most notably in that Morin’s lawyer is charging at a rate higher ($285/hour is the range Morin alleges is his rate) than the rate he is billing Morin ($75/hour). (C.R. 91, 495-496) (Appx. 13). Additionally, KG objected to Morin’s fee affidavit in the response to the Motion to Dismiss as not being reasonably incurred as set forth in Kleinhans’ affidavit and for failing to produce attorney fee invoices to support charges. (C.R. 483-484). KG objects to Morin’s attempt to supplement attorney fee evidence by attaching an appendix with additional attorney fee testimony that wasn’t part of the trial court’s evidence. (A.B. 52-53). “The trial court’s ruling will not be disturbed absent evidence that it acted unreasonably, arbitrarily, or without reference to any guiding legal principles.” Gainsco County Mutual Insurance Co. v. Martinez, 27 S.W.3d 97, 104 (Tex. App.—San Antonio 2000), review granted, (Oct. 12, 2000)). The trial court’s ruling concerning denying Morin’s Motion to Dismiss on 7 various grounds should be upheld, and likewise, the trial court properly found that ― 55 ― Morin is not entitled to attorney fees pursuant to the Act when his motion is denied, and likewise, the trial court’s ruling should be upheld. E. KG’S FEES UNCONTESTED AND KG ENTITLED TO FEES To the contrary, KG presented sufficient evidence of attorney fees for preparation in trial court of $2,500, which is substantially less than the amount incurred in responding to the Motion to Dismiss or dealing with all of Morin’s missed deadlines, and thus, clearly reasonable and necessary and awardable pursuant to the Act. (C.R. 127-128, 484, 492-493). “If the court finds that a Motion to Dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.” Tex. Civ. Prac. & Rem. Code § 27.009. Furthermore, KG is entitled to post-motion fees as sanctions against counsel for Morin for filing this frivolous appeal. The court should sever and remand only on issue of awarding KG fees so that the trial court can determine the proper fee and sanction award. Conclusion KG prays that the Court affirm the trial court’s ruling denying Morin’s Motion to Dismiss and remanding only the issue of attorney fees payable by Morin to KG. ― 56 ― Respectfully submitted, LAW OFFICE OF KLEINHANS GRUBER, PLLC By: /s/ Kimberly G. Kleinhans Kimberly G. Kleinhans kim@lawofficeofkg.com State Bar No. 24062755 Keith L. Kleinhans keith@lawofficeofkg.com State Bar No. 24065565 12600 Hill Country Blvd, Ste. R-275 Austin, Texas 78738 Telephone: 512.961.8512 Facsimile: 512.623.7320 CERTIFICATE OF COMPLIANCE This Brief of Appellee, Law Office of Kleinhans Gruber, PLLC, was prepared with Microsoft Word. According to that program’s word-count function, the sections covered by all sections contain 12,962 words for the entire brief. ― 57 ― CERTIFICATE OF SERVICE I certify that a true copy of this pleading was served on each attorney of record or party in accordance with the Texas Rules of Appellate Procedure on July 1, 2015. The Olsen Firm, PLLC Leif Olsen 4830 Wilson Road, Ste. 300 Humble, Texas 77396 Telephone: 281.849.8382 Facsimile: 281.248.2190 Email: leif@olsonappeals.com VIA ESERVICE /s/ Kimberly G. Kleinhans ― 58 ― No. 03-15-00174-CV ________________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _________________________________________________ LEVI MORIN, Appellant, v. LAW OFFICE OF KLEINHANS GRUBER, PLLC, Appellee. From Cause No. D-1-GN-14-003874; 201st Judicial District Court Travis County, Texas _________________________________________________________ BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC A/K/A LAW OFFICE OF KG, PLLC _____________________________________________________ APPENDIX TO BRIEF OF APPELLANT _____________________________________________________ Kimberly G. Kleinhans State Bar No. 24062755 Keith L. Kleinhans State Bar No. 24065565 12600 Hill Country Blvd., Ste. R-275 Austin, TX 78738 512.961.8512 (telephone) 512.623.7320 (facsimile) ATTORNEYS FOR APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC ― 59 ― Appendix Contents Document Tab l. Trial Court's Judgment, dated March 26,2015 TABl 2. Filings Concerning Morin's Missed Appellate Deadlines TAB 2 3. Email between KG and Morin re KG's Withdraw TAB 3 4. Email between KG and Morin Showing Morin's TAB 4 Malice Motive, dated June 5, 2015 5. Emails between KG and Morin Showing Morin's TABS Malice Motive, dated September 24, 2014 6. Emails between KG and Counsel for Morin Showing TAB 6 No On-Going Discovery Negotiations 7. Email to KG from Counsel for Morin Re Discovery TAB 7 8. Travis County District Court Jury Docket Schedule TAB 8 9. Garza Email with Affidavit Content and Affidavit TAB 9 10. Emails Showing Counsel for Morin Received TABlO Notice of Subpoena of Garza II. Siegler Affidavit TABll 12. Kleinhans Affidavit TABl2 13. Morin's Fee Contract at $751hr. TABl3 TAB 1 Trial Court's Judgment, dated March 26, 2015 C.R.739 DC BK15090 PG998 Filed in The District Court of Travis County, Texas (/) MAR 26 2015 v () No. D-1-GN-14-003874 At 4;?/) PM. Velva L. Price, District dlerk Law Office of Kleinhans Gruber, PLLC 201 sf District Court v. Travis County. Texas Levi Morin Amended Order on Motion to Dismiss The Court has considered Morin's motion to dismiss; Kleinhans Gruber's Second Amended Motion to Strike or Deny Morin's Motion to Dismiss; the responses and replies on those motions; the parties' objec- tions; the evidence; and counsel's argument. Based upon that considera- tion, the Court: 1. Finds no good cause to extend the deadline for Morin to file his motion to dismiss; 2. Finds Morin did not set the hearing on his motion to dismiss within 60 days after service of the motion, and did not meet any of the ex- ceptions indicating the hearing can be set Jater than the 60th day; 3. Strikes the exhibits to Morin's motion to dismiss, which were filed after the deadline for Morin to file his motion; 4. Overrules Morin's objections to the affidavits of Kimberly Klein- hans, Martin Garza, and Michael Siegler; 5. Finds that Kleinhans Gruber established, by clear and specific evi- dence, a prima facie case for defamation and business disparage- ment based upon Morin's statement that Kleinhans Gruber "sen[t] hung over 'associates' to court dates [Michael Seigler];" 6. Finds that Morin did not establish each erement of an affirmative defense by a preponderance of the evidence; and 7. Denies Morin's motion to dismiss. Signed on March 26th , 2015, at Austin, Texas. ~ Case # D-1-GN-14-003874 ~£9 11111111111111111111111111111111111111111111111 WIIIIII 003954108 TAB 2 Filings Concerning Morin's Missed Appellate Deadlines ACCEPTED 03-15-00174-CV 4598458 THIRD COURT OF APPEAU AUSTIN. TEXAS 3/23/201511:59:27 AM JEFFREY D. KYLE CLERK No.03-IS-00I74-CV LEVI MORIN, Appellant., V. Third Court of Appeals LAW OFFICE OF KLEINHANS Austin, Texas GRUBER, PLLC, Appellee. Morin's Motion to Extend Time to Notice Appeal Defendant-Appellant Levi Morin moves for an extension of his time to notice his appeal. He has already filed his notice. Exh. A. The case is pending in the 20Ist District Court of Travis County as No. D- I-GN-I4-003874, Law Office ofKleinhans Gruber PLLC v. Levi Morin. A. Factual and statutory background. On December 1) Morin filed his motion to dismiss under the Texas Citizens Participation Act. That made January 30 - Day 60 - the deadline for a hearing on the motion. TEX. CIV. PRAC. & REM. CODE § 27.004(a). There was no hearing by then. However, the Act extends the hearing deadline from 60 to 90 days if the trial court finds good cause. Id. The motion was set for hearing on Day 90, February 26. The TCPA deems a motion denied if the deadline passes without a hearing. Id at § 27.008(a). The district court began the hearing on February 26. It recessed the hearing until March 5, when it orally denied the motion. Morin impliedly requested an extension when he filed his notice of appeal the next day; he now follows that implied request with a formal motion. B. Appellate deadlines. The TCP A sets no timetable for a court's finding of good cause to extend the hearing deadline. There are two possible deadlines for a no- tice of appeal. They depend on whether the trial court must find good cause for an extension before the 60-day hearing deadline or whether it can do so later. 1. If the law requires an early finding. The law firm - the plaintiff below; the appellee here - has ar- gued that the good-cause finding must come before the 60-day hearing deadline runs. Otherwise, it argues, the motion is denied by operation of law. If the firm is correct, then Morin) s deadline to notice the ap- peal was February 19, and his deadline to request an extension was March 6. TEX. R. App. P. 26.1(b), 26.3. The trial court hasn't yet signed a written order denying Morin's motion; if that written order states that there is no good cause for extension, then Morin's right to appeal is lost retroactively. 2. If the law permits a later finding. On the other hand, the lack of a timetable and the requirement that the TCPA) s language be read (( liberally to effectuate its purpose and intent fully," TEX. CIV. PRAC. & REM. CODE § 27.011(b), sug- Case 03-1S-0017 4-CV) Morin 1>. Kleinhans Gruber Page 20f6 Morin's Motion for Extension of Time to Notice Appeal gest that there is no pre-deadline requirement. This is supported by the procedural posture of a case: If a TCPA motion is denied as a mat- ter of law) it remains before the trial court. A trial court's management of its docket is accorded wide discretion. It retains that discretion until the defendant - the TCPA movant - invokes the jurisdiction of the appellate court. As long as the trial court hears the motion on (or be- fore) Day 90, as permitted by the statute, there is no persuasive reason for limiting its discretion by requiring a good-cause finding as of Day 60. This interpretation is practical, as well. The TCPA) s deadlines are intended to protect defendants by affording them a rapid resolution to a potential threat to their rights to expression. See TEX. CIV. PRAC. & REM. CODE § 27.002. If a trial court doesn't, or can't, hear the motion by Day 60, defendants who insist on a more-rapid resolution can treat that lack of hearing as a denial by operation of law and invoke the appellate court's jurisdiction. Id. at § 27.008. But defendants who prefer to try to reach an accord with plaintiffs can continue to do so and have their motions heard through Day 90, a date on which a resist- ing plaintiff can argue that the motion should be denied because there was no good cause for the extension. If a trial court finds no good cause, then the defendants) appellate deadlines would begin running not retroactively) but as of the ruling that there was no good cause. Case 03-1S-00174-CV) Morin P. Kleinhans Gruber Page 30f6 Morin's Motion for Extension of Time to Notice Appeal 3. -Deadline confusion. But the Act doesn't make clear which of these two interpretations applies. Nor have Texas's appellate courts interpreted the Act to put a more-certain judicial gloss on its tenns . Thus, Morin is faced with a choice. He can wait until a written ruling from the trial court and risk losing his chance to appeal altogether. Or he can file his notice his ap- peal before the district court signs a written order of denial, protecting his right to appeal and avoiding the expense and burden (to himself and the courts) of appealing twice. c. Good cause for extension. 1. Avoiding procedural forteiture. Extending Morin's deadline to appeal will enable him to protect his legal interests in two ways. One, if the notice-of-appeal deadline began to run on Day 60, he has timely invoked the Court) s jurisdiction. Two, if the district court's written order denying Morin's motion includes a fmding that there was no good cause, and if the Act is construed to re- quire a good-cause finding before Day 60, Morin would lose his right to appeal - and lose it retroactively. Either alternative would countenance a procedural default over a resolution on the merits, which Texas law has long disfavored. Se~ e.g.~ Sutherland v. Spencer, 376 S. W.3d 752, 756 (Tex. 2012). Extending Morin's deadline satisfies our state's preference for decisions on the Case 03-1S-00174-CV, Morin v. Kleinhans Gruber Page 4 of6 Morin's Motion for Extension of Time to Notice Appeal merits and enables Morin to avoid not just a procedural default, but the possibility of a procedural default that applies retroactively. 2. Efforts to reach agreement. There is good cause to extend the time for Morin to notice his ap- peal. Morin's counsel attempted to reach an agreement with the firm regarding the need for discovery. Those attempts proved unfruitful, but pursuing them took Morin past Day 60. See Exh. B. He contacted the trial court and requested that it set a hearing on Day 90, the only day remaining in the 90-day window that wasn't covered by the firm) s counsel's vacation letter. Extending Morin's appellate deadline will see that he isn't punished for his pursuit of an amicable resolution - a resolution that Texas has long preferred because of its greater likeli- hood of creating peaceful and harmonious relations. See Wright v. Sydow, 173 S.W.3d 534, 551-52 (Tex. App. - Houston [14th Dist.] 2004, pet. denied); see also TEX. CIV. PRAC. & REM. CODE §§ 154.002, 154.003. Conclusion and Prayer The Court should extend Morin's time to notice his appeal through March 6, 2015. Morin further prays for all other relief to which he may be entitled. Respectfully submitted, THE OLSON FIRM PLLC I sI Leif A. Olson Case 03-15-0017 4-CV) Morin P. Kleinhans Gruber Page 5 of6 Morin's Motion for Extension of Time to Notice Appeal Leif A. Olson leif@olsonappeals.com State Bar No. 24032801 PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Appellant Levi Morin Certificate of Conference I conferred with Kimberly Kleinhans regarding this motion. She in- formed me that the firm opposes it. /s/ Leif A. Olson Certificate of Service On March 23, 2015, I served a copy of this Morin J s Motion for Ex- tension o/Tinle to Notice Appeal upon counsel for KG by electronic ser- VIce: LAW OFFICE OF KLEINHANS GRUBER, PLLC Kimberly G. Kleinhans kiln@lawofficeofkg.com 700 Lavaca, Suite 1400 Austin, Texas 78701 /s/ Leif A. Olson Case 03-15-0017 4-CV) Morin v. Kleinhans Gnlber Page 6 of6 Morin's Motion for Extension of Time to Notice Appeal 3/6/20158:40:06 PM Velva L. Price District Clerk Travis County No. D-I-GN-14-003874 D-1-GN-14-003874 LAW OFFICE OF KLEINHANS GRUBER, PLLC, Plaintift 201st District Court V. Travis County, Texas LEVI MORIN, Defendant. Morin's Notice of Appeal The district court denied defendant Levi Morin) s motion to dismiss in an oral ruling on March 5, 2015. In the alternative, Morin) s motion was de- nied by operation oflaw on January 30. He appeals the denial, on whichever date it was rendered, to the Third Court of Appeals. This appeal is accelerated. Respectfully submitted, THE OLSON FIRM PLLC /s/ Leif A. Olson Leif A. Olson leif@olsonappeals.com State Bar No. 24032801 PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Defendant Levi Morin Certificate of Service I certify that on March 6, 2015, I served a copy of this Morin's Notice of Appeal upon counsel for KG by electronic service: LAW OFFICE OF KLEINHANS GRUBER, PLLC Kimberly G. Kleinhans kim@lawofficeofkg.com 12600 Hill Country Blvd., Ste. R275 Austin, Texas 78738 (512) 961-8512 /s/ Leif A. Olson Exhibit A No. 03-15-- - - - - --CV LEVI MORIN, Appellant, v. Third Court of Appeals LAW OFFICE OF KLEINHANS Austin, Texas GRUBER, PLLC, Appellee. Declaration of Leif A. Olson in Support of Morin's Motion to Extend Time to Notice Appeal 1. I represent Levi Morin, the appellant, in this case, and I did so in the trial court. I am in all ways competent to make a declaration, and the facts in this declaration are within my personal knowledge. 2. The Law Office of Kleinhans Gruber, PLLC, is the plaintiff be- low and the appellee here. Kim Kleinhans is a partner in that firm and has represented the firm throughout this case. 3. The timeline that follows my signature is a true and accurate representation of my communications with Kleinhans and the firm throughout this case. It is based on my personal recollections as well as the records I make in the usual course of business, which are made at roughly the same time as the activity they document and on which I rely in my practice. My name is Leif Alexander Olson. I was born on October 10, 1975. My mailing address is PMB 188, 4830 Wilson Road, Suite 300, Humble, Texas 77396. I declare under the penalty of perjury that the statements in this declara- tion are true and correct. SIGNED in Harris County, Texas, on March 20, 2015. Exhibit B Date Event 10/27/14 Olson calls the firm to introduce himself and state that he is representing Morin. He leaves a voice message ask- ing if the firm would consider putting a hold on discov- ery so the parties can negotiate. Kleinhans replies by email agreeing to do so. Kleinhans emails that she can't retrieve Morin's answer from the e-filing system. Olson emails it to her. Olson emails Kleinhans a letter proposing that the firm nonsuit the case rather than spend actual cost and op- portunity cost pursuing claims that Morin will ask be dismissed under the Act. He notes that a TePA motion will stay discovery. He closes by asking for a quick re- sponse and quick negotiations because the deadline to file a TePA motion is December 1. 10/28/14 Kleinhans emails Olson asking for his fax number. Olson responds that he consents to email service of anything the firm wants to send. Kleinhans insists on the number. Olson furnishes it. The firm serves requests for production, requests for admission) and interrogatories. Kleinhans emails Olson that the firm refuses to nonsuit its case because it is se- rious about pursuing the case, up to and including a jury trial. She proposes a settlement that would require a payment from Morin and states that the firm will need discovery if Morin persists in seeking a TePA dismissal. 10/31/14 Olson informs Kleinhans that Morin declines the set- tlement offer. He states that he will look over the dis- covery to see if there will be objections and asks Kleinhans for dates in December when a TePA hearing Morin P. Kleinhans Gruber) 03-15-- --CV Page 1 Timeline could be set. Kleinhans responds with three dates. 12/1/14 Morin files his motion to dismiss. 12/3/14 Morin refiles his motion to dismiss, this time attaching the exhibits that his counsel forgot to attach the first time. 12/4/14 Kleinhans em ails that the recent circumstances and the firm's incredibly full docket have led it to agree to a non- suit if Morin will remove his review. Kleinhans also asks for a copy of Morin's complaint to the State Bar. Olson responds that Morin doesn't have a copy. 12/5/14 Olson emails Kleinhans that he is seeking a response for the firm's settlement offer. 12/22/14 Olson emails Kleinhans that Morin declines her offer. He furnishes Morin's counter-offer. Kleinhans emails Olson that she never received Morin's discovery responses. Olson reminds her that the TePA motion stayed all discovery. He asks if there are specific items the firm would like so he can attempt to reach an agreement on discovery rather than having to seek court intervention. Kleinhans states that she thought that Morin would be furnishing discovery despite the stay. Olson apologizes for giving that impression. The firm non suits its claims. Kleinhans tells Olson to disregard her comment about discovery because of the nonsuit and the firm's settlement offer: It will dismiss with prejudice if Morin deletes his review. In a series of emails, Kleinhans expresses her belief that Morin's motion is rendered moot by the nonsuit. Olson Morin v. Kleinhans Gruber) 03-15-- --CV Page 2 Timeline responds to disagree and sends citations to cases to sup- port his view. Kleinhans expresses her disagreement, noting that one case, in particular, wasn't decided until after the firm filed its suit. 12/30/15 Olson emails Kleinhans that Morin declines the firm's offer. He asks for dates in January for a hearing on the motion. 1/5/15 Kleinhans responds that the firm will need discovery if Morin intends to pursue his motion to dismiss. She asks for a date by which the discovery will be served and states that the firm will need a hearing on its nonsuit. 1/19/15 Olson calls to discuss whether the parties can agree to discovery and a hearing date. He reaches Kleinhans at home on her cell phone. Kleinhans expresses doubt that there is anything to discuss, but they set a call for Janu- ary 21. 1/21/15 Olson emails to apologize for not being able to call and asking for a time to schedule another call. 1/26/15 Kleinhans) s office leaves a voicemail asking to resched- ule the conference. Olson returns the call and later emails that a Wednesday conference is fine. 1/28/15 Olson and Kleinhans confer by telephone regarding the motion to dismiss and the firm's discovery requests. Kleinhans states that she doesn't think there is anything to discuss; the firm needs the discovery, and it needs all of the discovery, and it won't agree to limit its requests. Olson again states that the firm isn't entitled to discov- ery and that Morin doesn't intend to respond to it, but he is happy to discuss an agreement for limited produc- tion. Kleinhans follows up the conversation with an email Morin v. Kleinhans Gruber) 03-15-- --CV Page 3 Timeline asking for the discovery and stating that she will need time to review it, draft a motion to compel, and have a hearing on the motion and firm's nonsuit. 2/13/15 Olson sets a hearing on the motion to dismiss for Febru- ary 27, which is the last day that a hearing can be held unless the Court orders discovery. He emails Kleinhans that he still believes that the firm isn't entitled to any discovery, but attaches a set of voluntary responses that address what appear to be the firm's main contentions. He attaches a copy of the notice of hearing to the email. 2/14/15- Kleinhans and Olson exchange emails disagreeing over 2/15/15 whether deadlines were met, whether there is good cause to extend the hearing deadline, and other matters. Kleinhans states that she will file a motion to continue if Olson doesn't agree to a continuance. Olson doesn't agree. 2/15/15 The firm moves to continue and to strike Morin's pa- pers. It sets a hearing for February 17. 2/17/15 The Court hears the motion to continue. Later, Olson, at Kleinhans's request, emails her the cases that were discussed. Olson declines the firm's requests to reveal his attorney-client communications. Morin P. Kleinhans Gruber, 03-15-_ _ _-CV Page 4 Timeline FILE COPY COURT OF ApPEALS THIRD DISTRICT OF TEXAS P.o. BOX 12547, AUSTIN, TEXAS 787l1-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DA VlD PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, mSTICE CINDY OLSON BOURLAND, JUSTICE June 1,2015 Mr. Leif A. Olson The Olson Firm PLLC PMB 188 4830 Wilson Road, Suite 300 Humble, TX 77396 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 03-15-00174-CV Trial Court Case Number: D-I-GN- I 4-003 874 Style: Levi Morin v. Law Office of Kleinhans Gruber, PLLC Dear Counsel: Appellant's brief was due in this Court on May 27, 2015 and is overdue. See Tex. R. App. P. 38.6(a). If appellant fails to file a brief, the Court may dismiss the appeal for want of prosecution unless appellant reasonably explains the failure and appellee is not significantly injured by that failure. If this Court does not receive a satisfactory response to this notice on or before Thursday, June 11, 2015, the Court may dismiss the appeal for want of prosecution. Motions for extension must be accompanied by the $10.00 filing fee and a certificate of conference. See Tex. R. App. P. 5 and 10.1 (a)(5). Very truly yours, JEFFREY D. KYLE, CLERK C0- /L d BY: ~"'pJnlt f&/tr-lit/ter d Amy Strother, Deputy Clerk cc: Ms. Kimberly G. Kleinhans No.03-15-00174-CV LEVI MORIN, Appellant., v. Third Court of Appeals LAW OFFICE OF KLEINHANS Austin, Texas GRUBER, PLLC, Appellee. Morin's Motion for 14-day Briefing Extension Because of his counsel's health issues and professional commit- ments, defendant-appellant Levi Morin moves for a 14-day extension of the deadline to file his opening brief. This is his first motion for an ex- tension. The brief was originally due on May 27; the extension would make it due on June 10. Morin's counsel has been fighting bronchitis since late April. From the week of April 20 through the week of May 11, he was in the office for not even a full week. He spent most of that time attempting to rest to get healthy. The time that he was able to work was dominated by other profes- sional commitments, many of them demanding his court presence on an emergency basis. These included: • Client meetings related to emergency proceedings and condi- tions of the client's detention in In re CTL~ LLC, No 4:14-bk- 33564 in the U.S. Bankruptcy Court for the Southern District of Texas; • Preparation of an emergency motion to stay pending appeal in the appeal of the contempt order, No. 4:15-cv-l063 in the U.S. Dis- trict Court for the Southern District of Texas; • An April 29 status hearing on the client) s detention conditions in CTLI, set on fewer than 24 hours) notice; • Designation of the record and issues on appeal and coordinating the transcription of electronically recorded proceedings in CTLI, which was due on May 7; • An emergency hearing on May 19, set on roughly 36 hours) no- tice, on the CTLI client) s attempt to purge himself of contempt, which, unbeknownst to counsel, turned out to be a request to change the conditions of the contempt order to conditions with which he would prefer to comply; • An emergency client meeting on May 26 following the court's order, issued that afternoon, setting a 10:30 hearing the next day on the cliene s statement to the marshals that he wished to purge himself of contempt; • Further client meetings and the hearing on May 27, at which the client purged himself of contempt; • Speaking on federal appeals at the TexasBarCLE/Texas Young Lawyers Association annual Federal Court Practice seminar in Dallas on May 15; Case 03-1S-00174-CV, Morin 1>. Kleinhans Gruber Page 20f4 Morin's Motion for 14-day Briefing Extension • Preparing the appellant's brief in Samaniego v. Aliseda, No. 03- 14-00795-CV in the Third Court of Appeals, due on May 11; and • Counseling a client on potential rehearing and petition issues in Mahoney v. Slaughter, No. 01-14-00471-CV in the First Court of Appeals, which the court decided on May 7. These obligations and his illness have prevented Morin's counsel from preparing a brief that will properly present Morin) s appellate issues and arguments. Morin seeks this extension not for delay, but so justice can be done. The plaintiff-appellee law firm won)t be prejudiced by this extension, which moves Morin) s obligation to file from the accelerated-appeal deadline to just after the standard deadline. Conclusion and Prayer Morin prays that the Court set June 10,2015, as the deadline for him to file his opening brief. He further prays for all other relief to which he may be entitled. Respectfully submitted, THE OLSON FIRM PLLC /s/ Leif A. Olson Leif A. Olson leif@olsonappeals.com State Bar No. 24032801 PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 Case 03-15-00174-CV, Monn v. Kleinhans Gruber Page 3 of 4 Morin'8 Motion for 14-day Briefing Extension (281) 849-8382 Counsel for Appellant Levi Morin Certificate of Conference I contacted the appellees about this motion by telephone on May 28 and June 5 and by email on May 27, May 28) and June 5. At 4:38 p.m. onJune 5, Keith Kleinhans informed me by email that the firm opposes the requested extension. /s/ Leif A. Olson Certificate of Service On June 6, 2015, I served a copy of this Morin)s Motion for 14-day Briefing Extension upon the firm) s counsel by electronic service: LAW OFFICE OF KLEINHANS GRUBER, PLLC Kimberly G. Kleinhans kim@la\vofficeofkg.com 700 Lavaca, Suite 1400 Austin, Texas 78701 /s/ Leif A. Olson Case 03-15-00174-CV, Morin v. Kleinhans Gruber Page 4 of 4 Morin's Motion for 14-day Briefing Extension ACCEPTED 03-15-00174-CV 5648394 THIRD COURT OF APPEALS AUSTIN. TEXAS 6/11/20159:18:09 PM JEFFREY D. KYLE CLERK No.03-1S-00174-CV LEVI MORIN, AppellantJ v. Third Court of Appeals LAW OFFICE OF KLEINHANS Austin, Texas GRUBER, PLLC, Appellee. Morin's Motion for l-day Briefing Extension The bronchitis of Morin's counsel is apparently impervious to anti- biotics; it flared up again, requiring that he be in bed to recover for most of June 10 and 11. He was thus unable to complete Morin's opening brief, and he asks the Court to extend the filing deadline by one more day. This is Morin's second request for an extension; it would move the briefing deadline from yesterday, June 10, to today,June 11. This extension won't prejudice the appellee. Morin seeks this exten- sion not for delay, but so justice can be done. Morin prays that the Court setJune 11,2015, as the deadline for him to file his opening brief. He further prays for all other relief to which he may be entitled. Respectfully submitted, THE OLSON FIRM PLLC /s/ Leif A. Olson Leif A. Olson leif@olsonappeals.com State Bar No. 24032801 PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Appellant Levi Morin Certificate of Conference I attempted to confer on this motion with Keith Kleinhans, counsel for the appellee) by sending him a draft copy of it at 5:07 p.m. on June 11. By 9:00 p.m.) I hadn't received a response. Because it has opposed other extension requests, I presume that the firm also opposes this one. /s/ Leif A. Olson Certificate of Service On June 6, 2015, I served a copy of this Morin)s Motion for 14-day Briefing Extension upon Kimberly Kleinhans by electronic service with a courtesy copy to Keith Kleinhans (keith@la\vofficeofkg.com) by email. LAW OFFICE OF KLEINHANS GRUBER, PLLC Kimberly G. Kleinhans kinl@la\vofficeofkg.conl 700 Lavaca, Suite 1400 Austin, Texas 78701 Counsel for appellee /s/ Leif A. Olson Case 03-IS-00174-CV, Morin v. Kleinhans Gruber Page 2of2 Morin's Motion for I-day Briefing Extension TAB 3 Email between KG and Morin re KG's Withdraw C.R.664 Kimberly G. Kleinhans From: Kimberly G. Ktoinhans Sent: Wednesday, February 26. 2014 3:35 PM To: 'Levi Morin (levimorin@gmail.com), Subject: FW: August 7th email Attachments: 14-02.25_First Amended Motion for Enforcement.doc JournalPM: J Levi· Please find alternative counsel now as t do not feel that I can properly represent you given your current frustration that dearly we were unilbl~ to resolve today. I have asked so many times for the information to calculate the child support so that we could g~t the order entered with the court so that then we could proceed with a proper enforcement that would be more likely to be enforced, and to date, f still don't have that information. Further~ as part of our conttClct l the client has the obligation to provide information timely and to confer to make sure we have included all information requesl~d in pleadings. The fact that you are frustrated that you have to take part in yaur own case 45 not something I can change. Therefore, I think it is best for you to find alternative counsel as soon as possible so that they have time to prepar~ and attend the hearing. Unless t hear from you otherwise, I am going to me the attached amended enforcement to include the May violations. Best regards, I Sent: Tuesday, June 10.2014 11:03 AM To: 'Levi MorIn (Levimorin@gmail.com), Subject: FW: Copy of Withdraw Documents JournalPM: J levi- Wll5 this email intQnded to be sent to m~? Best regards; Kimherly G. Kleinhi1l1S From: LeVI Morin [maUtQ;leVlmorlo@gmall.cQm) Sent: Thursday, June OS, 2014 9:57 AM To: Kimberly G. Kleinhans Subject: Re: Copy of Withdraw Documents My grf!HteS[ wish is rhat you would have to go through something like this. You're Q horrible pt:rson. H predator. and 1 wiJI make sure that1s known on as many fronts as I Can. nest rcgl1rds. On Jun 4. 2014 2:34 PM, "Kimberly G. Kleinhans" wrote: Levi· Please keep the uttached for your records. We arc just waiting (or lhcjudgc to signlhe withdl'aw order nnJ 1 will forward the signed order to you upon receipt. Thank you. Kimberly G. Kleinhans, Attorney at Law Law Ofl1ccs of KG, PLLC Fucsin1i1c: 512.62.~.7~20 Office: 512.CJ61.R512 ki m@lawQfficcQfl«(!.com 1 704 TAB 5 Emails between KG and Morin Showing Morin's Malice Motive, dated September 24, 2014 C.R. 713, 717, 706 Kimberly G. Kleinhans FT From: Levi Morin Sont: Wednesday. September 24. 2014 1;42 PM To: Kimberly G. Kleinhans Subject: Re; Yelp Review Removal JoumillPM: J My response was in regard to you trying tu suppre~~ my t1.'st amendment. rjghts~ and for that you an: the biggest piece of shit lawyer I've ever nol met. You say you hold yourscJrlo a code or ethic" und then do that. You Can surely go fuck yourself as those t:\vo arc separate issues which, as you arc claiming in your respunse. aloe not. Therdore it is not representative ofLhc fueL,\. SecondJy you need to acquire permission lo use Illy copyrighted material. So no, evet'}1hing in my order is correcL Wait ten days and see if Itm being as big ura pussy us you. [ don'llhrcalcn pcoplc t like you do, Kim. Levi Morin MWf) Enginc:er The Directional Driltin£ Company 11390 f:M 830 Willis. TX 77318 Oflicc~ 936-856-4332 Fa~: 9;t(i&ftS(i-8678 Mohile: }(J0.-4S6·3342 L.!;yi-<.~;ls~d.~~21.C~.9Jl(!!~\}illd!L~~I,:..Q!.}'! 1.~\'i~·fc.\rin';'I)lln1..ai I.~l)tn [!J ~,. -_.- -- .... --_.. -_.- Thi$ e-mail, including ony attached files, may contain confidential and privileged informotion for Ihe sora use of the intended recipient Any review, use, distribution, or disclosure by others fs strictly prohibited. If you are not the intended recipient (or authorized to receive information for the intended tecipitmt)1 pl@ase contact the sender by reply e-mail and delete all copies of this message. On Wed, S~p 24, :2014 ul 1:23 I>M, Kimberly G. Klcinh~ms wrote: It appears that you copfed and pasted a cease and desist letter from the internet as it do~sn/t apply to tnj!; situation. Furthermore} the factually accurate and true respons.e we posted In respons~ to your defamatory and slanderous per s~ posting about our firm (to attempt to mitigate damages to our flrmls reputiltlofl) will be automaticallv remov~d when you remove: your defamatory and slanderous per se posting about our firm. Per the law~ we have to attempt to mitigate damaR.f.tsJ which Is why that response: is necessary. 713 Kimberly G. Kleinhans From: Kimberty G. Kleinhans ..:kim@lawofficeofkg.com> Sent; Wednesday. September 24. 20144:05 PM To: 'Keith L. Kleinhans (keith@lawofficeofkg.com)' Subject! FW: FW: Yelp Review Removal Best rega rds. Kimberly G. Kleinhans From: Levi Morin [mallto:levlmorin@gmall.com] Sent: Wednesday, September 24, 2014 3;52 PM To: Kimberly G. Klelohtins Subject: Re: FW: Yelp Review Removal My cmail~ arc a fixcd intellectual pruperly lhal J have nul given con~cnt for you to redistribute in any way shape or form, 11(10 fuck yourselfu is an expression and in the context of this email is my Intellectual property theretore copyrighted. You have used excerpts without pcrmission~ yuu arc not in compliance with federal law. I have not dt:famcd or slandered anyone so good luck with Lhat. Your stfltcmcnt. however. is taking bits and pieces of a conversation and stitching them together to create snmelhing Lhal is wholly not whal r said and pawning it on' as if it were ... I'm nil for lJ'ying out Lhis new AnLi ..SLA PP deat so youtre more than welcome to spend all the money you'd like trying to suppress free speech with some frivolous lawsuit. I'm right here ir you'd lik.e to senti someone before I gel back- Levi 1V1or;n MWD EnJ.tin~er The: DircclionaJ DriJling Compnny II:WO FM 8:l0 Willis:rx 7731 H Office: 936-B56-4332 Fax: 936·856-&678 Mohile: 83(]-45(j·3~4.2 1.C vi.,:Yl ~~r!.ll!!1: I).i.t~t.;,ti~~f1I!.U2dll~r5Ll;Jlnl .r .1,' vi\1orin 1ii'L· mrIH.c()In l!J -- ..... ~- ~---.--.-- .. 717 Kimberly G. Kleinhans From: Levi Morin Sent: Wednesday. August 20. 2014 5:25 PM To: Kimberly G. Kleinhans Subject: Re: FW: URGENT - Yelp Review Removal Pretty sure yuu should a) read the article as opposed to trying to mOVe me to do :mmcthing based on fCQr. I did 4J google search as welJ and lhi!{ was one of the If"st articles that came up, b) look up libel then c) go 1iJck yourself tor trying usc strong arm t.'lctics with me because i don't think you're a guod luwycr. You should rt!-re'ld my review again because appnrcnt)y you don't understand thal nothing in there is false or slamlcrous, and givcn Ihal you don't understand Lhe definilion of slander - even libel. Thcre is nOLhing lhut r wanl from you Kim!> this I'cview has nothing to do with your weird urcspccl mel! isslles. it has everything to do with you not. being a very good lawyer fur me and the hopes that my experience will help someone muke a beuer decision ahout what family lawyer to get. Levi Murin I\:IWD Engineer The: Directiomtl Drilling Compimy 11390 I'M 830 Willis, TX 77.118 Oflicc: 9;l6-&56-·U:12 Fn:<: 936-856-8.678 Mohile: 8:W·4Sti-.H4:! .r ,t;"\'j ,\r{11'IWji wrote: Levi- Plense set! the :lunched. lfyou don't remove the rcvicw~ We will be dmfling the petition tomorrow. Best regards, 706 TAB 6 Emails between KG and Counsel for Morin Showing No On-Going Discovery Negotiations C.R. 122-123, 155-157 motiol1 under Section 27.004 mllst be set not later thall the 60th day after the date of sen'ice of the motion unless [1J the docket conditions oJthe COllrt require a later hearing, [2} upon a showing ofgood cause, [3] Dr by agreement ofthe parties _.. but ill no event shall the hearing occur J110re than 90 days after service of the motion under Section 27.003 ... " 15. As required by Section 27.004, to date, there has been [1] no Travis County docket conditions, [2] no timely finding of good cause by the court prior to running of the 60- day deadli ne (January 30, 2015) and [3 J no agreement by the parties to extend the 60-day deadline to a 90-day deadline. The foHowing email correspondence documents the same: a) On January 5, 20 ISs LAW OFFICE OF KLEINHANS GRUBER, PLLC sent the attached email to counsel for LEVI MORIN requesting the following infonnation, attached hereto an incorporated herein by reference as EX/lib;t C; i) \vhether he was going to answer discovery served 45 days prior, if not, a hearing would be necessary; ii) a date on which discovery would be provided, ifnot, hearing availability PRIOR to any setting on the Motion to Dismiss; and iii) a foHow-up request for a copy of the bar complaints that LEVI MORIN filed against Kimberly Kleinhans and Michael Siegler (which were automatkaHy dismissed without further review) that counsel for LEVI MORIN had repeated countless times, he \vas in agreement to provide. b) On January 28,2015, LAW OFFICE OF KLEINHANS GRUBER, PLLC sent the attached email to counsel for LEVI MORIN requesting the same information as requested in the January 5, 2015 email. Both the January 5, 2015 email and the January 28, 2015 email were ignored by counsel for LEVI MORIN) attached hereto an incorporated herein by reference a<; EX/libit D. c) On Friday, February 13, 2015, at about 9:00 p.m., counsel for LEVI MORIN unilaterally sent over a self-serving subset of documents never discussed but solely of his choosing that are only beneficial to his case. Likewise, counsel for LEvr lvfORlN unilaterally decided that the setting for his Motion to Dismiss \vould be Febnlary 26, 2015, and there would be no time for any of LAW OFFICE OF KLEINHANS GRUBER, PLLC's motions that LAW OFFICE OF KLEINHANS GRUBER, PLLC had clearly noticed counsel for LEVI MORIN would be necessary prior to any setting for a Motion to Dismiss, attached hereto an incorporated herein by reference as Exhibit E. LAW OFFICE OF KLEINHANS GRUBER. PLLC V. LEVI MORIN SECOND AJ'vtENDED/SUPPLEMENTED MOTION TO STRIKE SETTING, ET. AL. PAGE 3 OF 12 122 d) On February 14, 2015, upon receipt, LAW OFFICE OF KLEINHANS GRUBER, PLLC noticed counsel for LEVI MORIN of LA W OFFICE OF KLEINHANS GRUBER, PLLC~s conflict for February 26, 2015 and counsel for LEVI MORIN refused to reschedule to a time and date which would provide proper notice of setting to LAW OFFICE OF KLEINHANS GRUBER, PLLC, attached hereto an incorporated herein by reference as Exhibit F. ] 6. On Febnlary 17, 20) 5, this Court found that an announcement for LEVI MORIN's Motion to Dismiss setting \vould be made on February 26,2015, but that the case shall be recessed to March 5, 2015, at which time this Court shall hear the issues surrounding whether there is good cause to extend the time to allow the Motion to Dismiss past the 60-day deadline, whether there is good cause for discovery, et. a1. 17. 6th deadline missed by LEVI lVIORIN: On February 26~ 2015, the 90th day ran from the date that LEVI MORIN's Motion to Dismiss \vould have been timely filed (December 1, 2014). 18. On March 5, 2015, it has been noticed that LEVI MORIN's Motion to Dismiss is set for hearing on the 97th day folto\ving a tinlely filing of a Motion to Dismiss. 19. Likewise, LAW OFFICE OF KLEINHANS GRUBER, PLLC seeks this Court's relief to hear this Motion and award the requested relief, primarily that LEVI MORIN's Motion to Dismiss be denied and fees or sanctions be awarded to encourage counsel for LEVI MORIN \vilI comply with rules and deadlines in the future. C.l\'fotion to Strike or Deny Morin's Motion to Dismiss 20. 4 Missed Statutory Deadlines: This Court should strike LEVI MORlN's Motion to Dismiss setting as not being timely as counsel for LEVI MORIN has not missed just one, but four critical deadlines as follows: a. file and serve the Motion to Dismiss in accordance with the Texas Participation Act (the ~~Ace)) as the deadline was December 1, 20J4 and it wasn't fiJed or served with exhibits on LAW OFFICE OF KLEINHANS GRUBER, PLLC until December 3) 2014. b. set a hearing in accordance with the Act as the 60-day deadline was January 30, 2015. c. request a good cause extension PRIOR to the expiration of the January 30, 2015 60-day deadline. d. set a hearing in accordance with the Act, \vith a timely finding of good cause within the 90-day deadline of February 26, 2015~ as the Motion to Dismiss setting is not seluntil March 5) 2015 (97 days after the filing of the Motion to Dismiss). LAw OFFICE OF KLEINHANS GRUBER, PLLC V. LEVI MORIN SECOND AMENDED/SUPPLEMENTED MOTION TO STRIKE SETIING, ET. AL. PAGE40Fll 123 Jate: 02/15/2015 Record Report Page: 1 Lo..VV OFFiCE OF KLEINHANS GRUBER, PLLC ..- ... -. _. ---- . -_ - ... .. .. - ,. ~------~------------------- Field VCllue Record Type Date Time Duration Status Description Client 10 140184.00 Contact User 10 KG SenUReceived R To/From Kimberly A. Gruber, Esq. Subject Fwd: Offer declined; potential hearing dates Spoke With N Returned Call hi Left Message N Voice Message N First Date n1 mfddhlYY'i Last Date rnm/ddiyyyy First Time hh.-mm:ssAM Last Time hh:mm:ssAM Duration Research URL Research File E-mail Body ---------- Forwarded message ------ From: Kimberly A. Gruber, Esq. Date: MOIl , Jan 5, 2015 at 11 :26 AM -Subject Re: Offer declined; potential hearIng dates To: Leif Olson ':"eif- ! hope :fOlI had a good holiday. -::\12 are 3tm in the process of moving offices and in addition I am Sitlllificantly decreasing my hours in the offices to care for our daughter and our son on the way (one of the primary reasons amoungst other personal reasons that we need to nonsuit this case). However, if you are :~oing to push forward and make us present these facts to a judger despite our ctgreernent to nonsuit, we will need discovery. ~Iease advise whether you are in agreement to answer the discovery that was served on you nearly 45 days ago, and if so, by what date you will be ans\i'Jefing the discovery and physically providing us production (this is the r1tit£: you win physically have the production in the office NOT a date you \l'!iII respond that we can send a copy service to Dallas). Additionally. we ";i-!iB need a hearing on our Notice of Nonsuit (and discovery or discovery dl::fidencies, if necessary). This hearing will need to be set prior to your -·e-:~lle;..ted setting on a date depende about whether 'fO~; 2i{::: i:;-; ai]reemeni to discovery. --~------- .....-..... ------.--- ..... -----_._.... .....- •..--.- . _ - - - - - - - - - _ am e: 02/15/2015 ;~ecord Report Page: 2 LA~· ..-· ::':-f'+k'~t:~ OF KLEiNHANS GRUBER PLLC J -------~ .. -- .. -- .- .. ~~~- ......... _----.- -~------------~--------- d -_.---.-- -.-~ .......• ~.- --.. .. -.. --.-- .... --.~------ -~----~-----~--------- .~:i('a~h/ f i am still waiting on you to provide the documents that you told me ·j',.:il w(Juiti prnvide relating to the bar complaint filed by Levi Morin against '>':;i-;:Il and Michael Seigler. Please let me know when I can expect ) 156 )ate: 02/15/2015 f(ecord Report Page: 1 LAV,j ,,)~:'f'lC.E Of I Sent Tuesd~y. FebrUlll)' 24, 2015 4:~4 PM To: Kim Kleinhans Subject: Re: Strange Request on Morin - 3/10/14 hearing Mr Siegler handled the math:r professionally and to a high ethicnl stnndnrd. \Ve conferred and negotiated for over 6 hours, including on the phone prior to the hearing. At no time did I even suspect or see any signs of inloxicarion. I wiJllcavc it a[ [hac. Its your fighL not mine and I have my client's needs to consider. I would not be inclined to volunturi Iy sign un affidavit, however, if compelled to do so, I would cooperate. The Garza Law Firm IG01 North Alamo~ Suite 200 San Anton io_ Texo:l 78215 210 354-4949 2 I () 56H-4278 fax m[ll·tin@mrtrtin~g:l rZil.com rMPORTANT/CONF[DENTIAL: 'rhis message f)'om the Law Offieu of Martin S. Gar/.a" is intended onJy 10r the usc of the addressees shown above. It contains informaLion thal may be privileged, confidcnlial and/or exempt from disclosure under applicabJe Jaw. If you nre not the intended recipient of this message~ you arc hereby notified that tbe copying, usc at distribution o[uny information or materials transmitted in or with this message is strictly prohibited. If you received this message by mistake, pJcllse immediately call us 210.354.4949 and dcstroy the original mcs~agc. Thank you. ') 467 / ST A TE OF TEXAS § BEXAR COUNTY § Before tne~ the undersigned notary, on this day personally appeared MARTIN GARZA~ the uffiant, a person whose identity is known to nlC. Af1cr r administered an oath to affiant, affiant tcslifi<:d: 1. UMy name is MARTIN GARZA~ I am conlpelcnt to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are truc und correct. 2. On March 10~ 2014, I Was the opposing counsel for the setting on LEV] MORIN's Motion for Enfbrct:mcntIMotion to Enter hearing. 3. Michael SeigJer represented LEV] MORIN. J spoke with Michael Seigler prior to the hearing from about 8: 15AM to 8:45AM on the phone and then throughout the day on March 1O~ 2014. Michael Seigler handled the maUer professionaHy and to a high ethical standard. We confeITed ;lnd n\!gothlLt!d for approximately 6 hours on the day of the hearing. At no time: did f even suspect or sec any signs of intoxication. SWORN TO and SUBSCRIBED before me by MARTIN GARZA on ~~ ~, 1..0(5; ~~~~ Notary Public in an a the State of Texas ' d'$}~ CONNIE GARZA . I~~)\ Notary Public. Stote Of Te~al \ ...~.~IJI My Commission ExplhJl ~fi~ JUIV 16,2016 729 TAB 10 Emails Showing Counsel for Morin Received Notice of Subpoena of Garza Date: 06/23/2015 Record Report Page: 1 LAW OFFICE OF KLEINHANS GRUBER, PLLC Field Value Record Type E Date 03/03/2015 Time 01:40:00 PM Duration 0:00:00 Status U Description Garza signed affidavit and subpoena in. Client 10 140184.00 Contact Garza/Martin User 10 KG SentlRece ived R To/From Martin Garza Subject Re: Strange Request on Morin - 3/10/14 hearing Spoke With N Returned Call N Left Message N Voice Message N First Date mm/dd/yyyy Last Date mm/dd/yyyy First Time hh:mm:ssAM Last Time hh:mm:ssAM Duration Research URL Research File E-mail Body Please find as attached: The Garza Law Firm 1601 North Alamo, Suite 200 San Antonio, Texas 78215 210 354-4949 210568-4278 fax martin@martinsgarza.com IMPORTANT/CONFIDENTIAL: This message from the Law Office of Martin S. Garza, is intended only for the use of the addressees shown above. It contains information that may be privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message by mistake, please immediately call us 210.354.4949 and destroy the original message. Thank you. E-mail Attachments A TTOOOO 1. htm Garza Affidavit and Subpoena Acceptance. pdf To kim@Jawofficeofkg.com From Martin Garza CC BCC Phone # - ~ -~--- - - - - - - - - ------------------------==--------,-- --------------- Tuesday 0612312015 2:16 pm CAUSE NO.D-I-GN-14-003874 LA W OFFICE OF § IN THE DISTRICT COURT KLEINHANS GRUBER, PLLC § Plaintiff, § v. § 20I S• JUDICIAL DISTRICT § LEVI MORlN, § Defendant. § TRA VIS COUNTY, TEXAS SUBPQENA FOR AFI~lDA.YIr TESTIMONY THIS SUBPOENA IS DIRECTED TO: Martin Garza The Garza Law Firm 1601 North Alamo! Suite 200 San Antonio~ Texas 78215 21 () 354-4949 210 568-4278 fax 111art i n~~martinsgarza. CO III Greetings: You are hereby conlnlanded to give testilllony via atlidavit in the above-nan led case. You are further instructed that theF AlLURE TO OBEY IfHIS SUBPOENA MAY Bit: TREATED AS A CON'fEMPT OF COUR'I'. Texas Rules of Civil Procedure 176.8(a), states, "Failure by any person \vithout adequate excuse to obey a subpoena served upon that person Inay be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is servcd~ and 111aybe punished by fine or confinelnent~ or both.'~ This subpoena is issued at the request of Plaintiff~ LAW OFFICE OF KLEINHANS GRlJBER .. PLLC .. attorney ofrecord~ Kinlberly G. Kleinhans. Date Subpoena Issued: February 26,2015. By fTIy signature beLow~ I hereby acknow'ledge thatI accepted service of a copy of this subpoena. onyilL _ _ _ ~ 2015 and I confirnl I \vill make any appropriate changes to the attached affidavit and fax the signed copy back to 512.623.7320. SIGNED BY: Martin Garza STATE OF TEXAS § BEXAR COUNTY § AFEIDA. VIT.OF MARTIN G~RZA Before me, the undersigned notary, on this day personally appeared MARTIN GARZA, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified: 1. "My name is MARTIN GARZA. lam competent to make this affidavit. The facts stated in this affidavit are within my personal· knowledge and are true and con'ect. 2. On March 10, 2014, I was the opposing counsel for the setting on LEVI MORIN's Motion for Enforcement/Motion to Enter hearing. 3. Michael Seigler represented LEVI MORlN. I spoke with Michael Seigier prior to the hearing from about 8:15AMlb 8:45AM on the phone and then throughout the day on March 10, 20 14. Michael Seigler handled the matter professionally and to a high ethical standard. We conferred and negotiated for approximately 6 hours on the day of the hearing. At no time did I even suspect or see any signs of intoxication. ~ MARTIN GARZA JAC)RN TO and SUBSCRIBED before nle by MARTIN GARZA on '-"I--'-j ~ :$, :Lot.b. Notary Publ ic ill an the State of Texas l ,.~1.r;:::I.~CONNIE GARZA i";~.~i ~~ ... a. NO.tarYPubJiC.• state ot Tex.as \~~~~~~! My CommissIon expires ~~:t~j:~ July J6;2016 Date: 06/23/2015 Record Report Page: 1 LAW OFFICE OF KLEINHANS GRUBER, PLLC Field Value Record Type E Date 03/03/2015 Time 02:33:00 PM Duration 0:00:00 Status U Description EMAIL OUT - to opposing counsel with Garza aff Client 10 140184.00 Contact OlsenlLief User 10 KG SentlRece ived S TolFrom feif@olsonappeals.com Subject KG v Morin - supp to exhibits (attached Garza Affidavit) Spoke With N Returned Call N Left Message N Voice Message N First Date mm/dd/yyyy Last Date mm/dd/yyyy First Time hh:mm:ssAM Last Time hh:mm:ssAM Duration Research URL Research File E-mail Body Please confirm receipt. Best regards, Kimberly G. Kleinhans, Attorney at Law Law Offices of KG, PLLC 12600 Hill Country Blvd.} Ste. R-275 Austin, Texas 78738 Facsimile: 512.623.7320 Office: 512.961.8512 kim@lawofficeofkg.com www.lawofficeofkg.com Tuesday 06/23/2015 2:20 pm Date: 06/23/2015 Record Report Page: 2 LAW OFFICE OF KLEINHANS GRUBER, PLLC Field Value Please take notice that as of 12/31/14 we are no longer receiving any mail at any address other than as set forth in this email. Please update our address in your records accordingly. This message is intended only for the personal and confidential use of the recipient(s) named above. If you are not the intended recipient of this message you are hereby notified that any review, dissemination, distribution or copying of this message is strictly prohibited. This communication is for information purposes only_ Email transmission cannot be guaranteed to be secure or error-free. As long as recipient{s) named above have signed an attorney-client fee agreement with Law Office of KG PLLC, this e-mail correspondence may be attorney-client 1 privileged. Law Office of Kleinhans Gruber, PLLC, is registered in the state of Texas and the county of Travis to do business as Law Office of KG, 1 PLLC. E-mail Attachments image001 (3).gif image003(1 ).png Garza Affidavit and Subpoena Acceptance.pdf To leif@olsonappeafs.com From Kim Kleinhans CC BCC Phone # Tuesday 0612312015 2:20 pm CAUSE NO. D-J-GN-14-003874 LA W OFFICE OF § IN THE DISTRICT COURT KLEINHANS GRUBER, PLLC § Plaintiff, § v. § 20I S' JUDICIAL DISTRICT § LEVI MORIN, § Defendant. § TRA VIS COUNTY, TEXAS THIS SUBPOENA IS DIRECTED TO: Martin Garza The Garza Law Firm 1601 North Alanl0~ Suite 200 San Antonio~ Texas 78215 210 354-4949 210 568-4278 fax Blart i nUv'111artinsgarza. '/ con1 Greetings: You are hereby C0l11111anded to give testitnony via affidavit in theabove-natned case. You are further instructed that the FAILURE TO OBEY THIS SUBPOENA MAY BJi: TREATED AS A CONrfEMPT OF COUH.T. Texas Rules of Civil Procedure 176.8(a), states~ "Failure by any person \vithout adequate excuse to obey a subpoena served upon that person Inay be deelned a contempt of the court from w'hich the subpoena is issued or a district court in the county in which the subpoena is served, and 111ay be punished by fine or confinenlent, or both." This subpoena is issued at the request of Plaintiff. LAW OFFICE OF KLEINHANS GRUBER~ PLLC. attorney of record, Kinl berly G. Kleinhans. Date Subpoena Issued: February 26, 2015. By rny signature below~ I hereby ackno\vledge that I accepted service of a copy of this subpoena. _ _ _ ~ 2015 and I confirnl I \vill n1ake any appropriate changes to the attached affidavit and fax the signed copy back to 512.623.7320. SIGNED BY; Martin Garza STATE OF TEXAS § BEXAR COUNTY' § AFFIDA VIT OF MARrLN GAltZA Before me, the undersigned notary,on this day personally appeared MARTIN GARZA, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified: 1. "My name is MARTIN GARZA. I am conlpetent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. On March 10, 2014~ I was the opposing counsel for the setting on LEVI MORIN's Motion for Enforcement/Motion to Enter hearing. 3. Michael Seigler represented LEVI MORIN. 1 spoke with Michael Seigler prior to the hearing from about 8: 15AM to 8:45AM on the phone and then throughout the day on March 10, 2014. Michael Seigler handled the matter professionally and to a high ethical standard. We conferred and negotiated for approximately 6 hours on the day of the hearing. At nO tinle did I even suspect or see any signs of intoxication. ~ MARTIN GARZA SWORN TO and SUBSCRIBED before nle by MARTIN GARZA on ~ltACf& 5, UJf5: Notary Public in an the State of Texas ' ,.40~;"Fi11. CONNIE GARZA §O'rR" I~:' "~"1. ~'f\ Notary PubJic. State of Texas ~ PACil:J 489 rL!garding the llmltcr Wl:fC cnluilcd to Kimberly Kleinhans ~o it is reasonable (0 conclude lhm Kimberly Kleinhans fully addressed LEVI MORIN"s concerns, auachcd hereto and incorporated herein by reference as Exhibit A-5.8. x1) On October 26~ 20 J 3 and on November 16, 2013 and on Dccembt:r 27. 2013 and on December 28, 2014 and on Junuary 6, 2014 and on February 19, 2014 and on February 21, 2014, Kinlberly Kleinhans provided LEVI MORIN with the proposed order and advised LEVI MORIN that sh~ wa~ still wailing for the nect!ssary financial docunlenls in order to be able to ca1cularc rhe child support figure. No response was receivt!d from LEVI MORIN. ilUached hereto and incorporaled herein by reference as IJxllilJil A-S. 9. xii) On December 27-28, 2013, Kitnbcrly Kleinhans responded to LEVI MORIN's request 10r advise on what 10 do since his chlId's nlOlhcf was threatening to deny him Christn13S possession, and likewise Kimberly KJcinhan~ rc~pondcd with advi~e to call Lhe cops to document her rtdi..uml for the Motion to Enforce but that, Uthere is a chance that the cops wiH not follow the MSA---it all depends on the cops and their kno\vlcdgc of the Jaw. This again is why J suggest that we need to get a. signed order in this casco .. No response was received frofn LEV) MORIN and no 1'1 other correspondence was had with LEVI MORIN other tlnm this email, aU3chcd herolo and incorporated herein by reierence as Ex/Jibit A-5.l0. xiii) On February I) 2014, Kirrtbcrly Kleinhans responded to LEVl MORIN's request for 3 further explanation concerning a ca:;e update that KinlberJy Kleinhans provided to LEVI MORIN on January 31, 2014.No response was received from LEVr MORlN~ attached hereto and incnrr)(.lraled herein by reference as Exhibit A-S.II. xiv) On Febmary 21 ~ 2014 and on February 26, 2014, Kimberly Kleinhans responded [0 LEVI MORIN's request for advice about whether he needed [0 attend the March 2014 setting on the Motion to Enforce/MoLton to EnLer. De~p1te lh~ advice provided letting hirn kno\v how impottance his ~lttendance wa~ for the hearing, LEVI MORIN responded on March 2S\ 2014 that he refused to take off work for the seuing t attached hereLo and incorporated herein by reference as Exltihit A-S.l1. xv) In two email s on rcbruary 26\ 20] 4, Kim herr y Klein h(lns respon lied to LEVr MORIN~s concerns that there were nlisslng June violation dates that needed to be included in the Motion for Enforcement with an explanatjon on what would be needed to add those dates and support them with evidence in court, attached hereto and incorporated hcrein by reference as Exhibit A-SI/). LAW OfFICE Or KU~INHA~S GRUDI!R. PLLCV. LEV! MORIN AlTIDAVIT 01' KJlt.lIl1~rtU· Ku:.fNHANS 490 xvi) Further, on Ft!bnmry 26, 2014. LEVI MORIN forwarded Kitnbcrly Kleinhans 4 cmails in which he hold!i out that he previously provided Kimberly Kldnhans with lhe June violation dates~ and Kimberly Kleinhans responded to each stating the conLent of the cnlail and showing that there wasn '{ any reference to June violation dates. LEVr MORIN retuHated by threatening to tcnninate the attorney-client relationship and Kimberly Kleinhans responded thal she would advise LEVI MORIN [0 dll so given (hal she can not properly rcprcscnl LEVI MORIN without the child support infonnation she hau requested over 7 times, altachcd hereto and incorporated herein by reference as Exhibit A-5614. xvjj) On Febnl"ry 28, 2014, while waiting for LEVY MORrN to provide allcrnmivc: counsel infonnaLl0n for substitution, Kimberly Kleinhans received a notice of deposition for LEVI MORTN~~ deposition prior to the March setting ~U1d advised T....EVT MOR TN accordingly that the besf next S[CP is to proceed with quashing the dcpositioll~ attached llCrC[O and incorporated herein by rererence (lS Exhibit A-S.IS. xviii) Likewise, on March 5, 2014, while still waiting for LEVI MORIN to provide alternative counsel information f(lr subMtiluliun, Kimberly Kleinhans advised LE.VI MORIN that rather th;']'1l cancel the March scuing it would be in his best interest to proceed with the hearing so that t there would nol be t;nle prior to the next hearing lor LEVI MORIN's deposition, attnchcd hereto and incorporated herein by reference us Exhibit A-S.IJ. xix) On May 20, 2014, in reKpon:;e to LEVI MORIN's requested changc~ to the proposed order draft from the March hearing, Kinlberly Kleinhans advi9cd LEVI MORIN of the requested changes that the court \vould not likely acc~pL as requeslt!d by LEVI MORIN, but yet stHI agreed to reque:-;l abJfeCtllenl rronl the ()ppo~ing party, attached hereto and incorporated herein by rererence as Exhibit A ..S./6. xix) On May 22, 2014 and May 23, 2014, in response to LEVI MORIN receiving advise from Kin1berly K]einhan~ that he didn't want to hear, LEV1 MORIN, for the second tiluc, chose to close lhe case prior to Kimberly Kleinhans completing the draft or the order and likewisc~ Kimberly Kleinhans advised LEVl MOR m- of the withdraw/substitution process, altachcd hereto and jncorporated herein by reference as £-.:/,i/Jil A-S.17. xx) Finally, June 10~ 2014. Kitnbcrly Kleinhans advised LEVI MOT~TN that a ~igncd Order for the tirm's withdraw h..d been entered and therefore. he represented himselr and should contact opposing counsel directly, attached hereto and incorporated herein by rererence as Exlrihit A ..S./R. _------ ................... LAW OI'TILI.!. or KLEINHANS GIU.IHER. PLLC v. Lt!Vl MORlN AFFIf>AVITOF KIMUEKJS KLI'!INHA~S 491 7. It:nluil usMorin~s Prhnary FornI of Conununication: Furthermore. I attest that LEVI MOR TN·s primary form of commuoiCllLion with the nnn was via ernail and Iikc\visc, confirm that any culls made by LEVI MORIN were dOCUlncntcd in his billing invokes (sec E~"ltibit A-4) and rcnlrncd in a titncly Inanncr to promptly answer any and all questions that l ..EVT MORIN held about his cast!. In fact, • cmall corrcxpondence generally toJlowed up the calls to verify that LEVI MORIN wus clear about the explanation and/or content or Lhe call (See EX/Jihir... A-5). 8. Attorncy ..Clicnt Fce Contract: A(su attached heret(l is a true and correct copy of the attorney fce contract between LEVI MORIN AND LAW OFFICE OF KLE.INHANS GRUBER, PLLS that wa~ signed by LEVI MORIN on May 1, 2() 12, auached hereto and incorporated herein by reference as Exhibit A-6'. I anest that this contracl is 11 true and correcl copy and that LEVr MORIN was provided a copy or the contract on the dOle thm he signed the contract. 9. Billing: 1 am an attorney and one of the managing partners of LAW OFFICE OF KLEINHANS GRUBERi PLLC and T primarily handled or oversaw the handling of LEVI M01{ JN~s family law casco As set torth in LEVI MORIN"s attorney fec contract that LEVI MORIN signed on May I, 2012, I billed at $350.00 an hour, and our (l~s()ciatc~ (,)1" of~coun~cl attomcy~ were instructed to biJI at $225.0n to $250.00 an hl')ur~ attached hereto and incorporated herein by reference ,LS Ex/,ibit A-6 at page 2. The rates were reasonable and nccc~~ary given my knowledge of family la\V and or rees charged for similar services for a case of this type and complexity. My 1l1cmal impressions and opinion~ regarding ~uomey fees and expen~es aNfl(lclalcd with the tria) or thi.. ,· case and are also based upon my knowledge and understanding of Rule 1.04 of the Texas Rules of Disciplinary which sets forth the foHowing non-exclusive list of (helOTS to bt! considered in dClcnnining the reasonableness of fees charged by atrorneys: the tirnc and Jabor required, the novelty ~nd di fficulty of the questions invo Ived!o and (he skill required to perform the legal services properly; the Likelihood Hmt the ucceptullce of the particular enlploymenl will preclude (lLht!r employment by the lawycr~ the tcc custnmarHy charged in the locality for sitnilar legal services: the amount involved and the results obtained; (he time limitations imposed by the client or by the circllIllsmnces; the nature and lenglh or the prolcs~innal rcla[ion~hip with the client; the expcricncc~ reputation, and ability of the lawyer or la.wyers perfonl1ing t.he services: whether the fee is fixed or contingent on results obtained or llnccnainty of collection before the legal services hnve been rendered; the time and labor required. lht! novelty and di l1iculty of the questions involved, and the skiff required to perfonn the legal services properly: the likelihood that the acceptance of the pmticuInr Clup(oyment will predude other employment by the lawyer; the fee customarily charged in the locality lilr sinlilar legal serviCf!H~ the amount involved and the results obtained; the thlle limimtions ilnposcd by the client or by the circumstances; the nature and length or the professional relationship with the client; the experience, rcputation\ and ability of the lawyer or lu\\rycrs performing the;! services; and whether the fce h: fixed or contingenr on results ob(aincd or uncertainly (,)f collection beiorc the legal sClVlces have been rendered. 1 mll also familiar with the Supreme Court C:l~m of Arthur Antler'sell & Co. v Perry Equipment Curporation, 945 S.W. 2d 812 and other sinlilar cases which discuss the relevant -------_..• ,. __. - - - - - - - - - - - - - - - LAW OfFICE OF K I.EINl1ANS GRunER, PLLC V. LEVi MORIN AI'FlUi\VIT Ol~ KI~III1:RL\, KLElr.;UA.~S 492 r41clors[0 be considered in determining the reasonableness of attorneys fees. FUl1he1\ IUY mental ilnpTcssions and opinioo:{ arc ba~cd in part on my education and experience as an attorney licensed ro practice hlW in the SLale of Texa~. I gradualed front Penn Slale UnivcrsilY with a decree in Criminal Justice in January of 2003 and I graduated from Thomas Cooley Law School in January 2008 and passed the Texas Rar Exam in May of 2008. Additionally~ J was admitrcd into the U.S. District Court of the Western District of Texa~ in May of 2010. Thave been practicing prinlarHy in fa n1 ily I,lw and litigation in Austin, Texas for seven years. I have been billing and ciients have been paying the hourly rate or $350.00 an hour for Lhe la~t three years, f have perrbnlled over 100 hearings, bench trials and jury trials in various courts around the state of Texas. r have been named as a Super Lawyer Rising Star for the past two years of 2014 and 20 IS, of which only 2.5% of utrorneys nation-\vidc nrc named to the Ri~dng Star list Additionally, I haVe! been part of the College or the Slate Bar of Texas and maintained membership sincc 2012. 10. Representation: LAW OFF1CE OF KLEINHANS GRUBER, PLLC represented LEVI MORrN from May I, 2012 to March 15~ 2013. On March 15, 2013, LEVT MORIN callt!d LAW OFFICE OF KLEINHANS GRUBER, Pl..LC and requested that his cnsc be placed on hQld and that all work on his case cease. On May 30, 2013 to June 6~ 2014, LEVI MORIN called and emailed \vith Kimberly Kleinhans and rcquc~ucd thal work be continued on his case. Likewise, representation continued from May 30, 2013 to June 4, 2014. On June 4, 2014, Kinlhcrly Kleinhans obtained a signed Order of \Vithdraw rrom repreSenl(llion and emailed it to LEVT MORIN" attached hereto and incurporated herein by reference as E~"ihil A-4 and Exhibit A-S. During this tinle~ based on rny tt!Vlt;;w of our practice nlunagemeni systenl, enlails and billing invoices, r can attest that LAW OFFICE OF KLEINl-LANS GRUBER, I)LLC thoroughly answered every question that they understood LEVI MORIN to have. 1 I. Siegler: LAW OFFICE OF KLEINHANS GRUBER, PLLC has never had previous rcpons that Michael Siegler reported to work drunk or hung-over and has not had llny reporLs .~ince the Ihlsc allegation of LEV] MORrN stating that Michael Seigler was hungMovcr at the March 10, 2014 setting. Furthcm'lorc, I corresponded with Michael Seigler on the day prior :;md on the date or the hearing and at no lime did he ever appear tt) be dnmk or hung-over. His speak was clear, he was alert and his thoughts were well organized. 12 No Family Law Spcciali:t.ation: J U(l not specialize in latnily law and have never held out to any clicnCs thnt I specialize in fanlily law. 1 understand this to be 41 special term reserved ~o]ely lor n1eaning thai one has received a Texas Bar Certification in the area of tamily hlW. On AugusL 20.. 2014\ T emailed LEVI MORIN requesting the subject langungc (See /"EVT ,WORIN's Molioll To TJis",;ss E.xhihit B) be relnoved, however, LEVI MORIN refused and his eurrcnt Yelp posting stiH holds out th'lt T claillled to specialize in family law even though LEVI MORIN admits in his Dcccluber l, 20 [4 affidavit that he is aware lhaL uSPCCi;llizcd" hax II "special mcaning~n and yet cnntinuc~ to refu~c to remove or amend his Yelp posting accordingly {See LEVI MORTN',\< Motioll To Dismi."'" Exhibit KJ. I would never hold out thnt I specialize in fnnlily law ------------~ .. .... ""- ~- ..... ~~... ._-------------- LAW OFFICE Of. KlEJNHA.\lS GRUI-\ER, PLLC V. lEVI MOklN AI-'FHlAVITOF KIMllERL ...• KUlINIIt\!-JS 493 without being board certified as I know the consequences of doing so could etTect my professional license) which is why it concerns nlC greatly that vic\vcrs of LEV] Mon TN's po~( will inL~rprCL hi~ pO~ling as being a factual verified offense in which my Ucense is in jel.)pardy ror inlproperly holding out that I specialized in Ihmily law. 13. Economics: On average, LA \V OFFICE OF KLEINHANS GRUBER, PLLC eams roughly $1 O~OOO per client. This is a conservative average because our personal injury seLtlements on average range in attorney feet{ n'om $30)O()() to $3,000 and our Hmli1y law cases usually average about $10,000. This average is based on Illy knowkdgc as the primary panner of the timl that handle~ all lhe billing and financiu,ls of the firm. Additionally, this number is based on Illy review of cases and income off of cases. FurlhcmlorC Keith Kleinhans handles the finn's intake culls and retains roughly 40- i 50% of all calls we get t.o the firm that arc interested in retaining our services. We do nol pay ror advertisement, we Obrilin our business from referrals and online traffic, thcrcibre, it is without question that our ba"incss has declined since LEVI MORIN's posting. The dec1ine is reneCleu in our overall business income fronl the date of the posting to the present and supported by Quickbooks that accounts fbr all of our firm incomC!, which shows that frOill July 2013- December 2013, our income \vas $149,303,03~ however for (he similar nlonths the following year after LEVI MORIN's June 2014 posting, our income \V LLC: Texas Board of legai Spedalizalio" October 8, 2014 Levi Morin By email to levimorin@gmaiLcorn C/O The Directional Drilling Company 11390 FM 830 Willis, Texas 77318 Re: Lawsuit by Kleinhans Gruber PLLC Representation agreement Dear Levi: This letter confirms the terms of my representation of you in the lawsuit that Kleinhans Gruber filed against you. If you agree to these terms, please sign at the bottom of this agreement and return it to me. A. Scope of representation. I will represent you in Law Office of Kleinhans Gruber PLLC v. Levi Morin, Case D-I-GN-14-003874 in the 201st District Court of Travis County, which this letter will call lethe Lawsuit." The represen- tation will begin once I have received a signed copy of this agreement and you have paid the retainer described in Section C. It will end when the trial court's judgment becomes final. My representation is limited to the Lawsuit. If you would like me to give you additional legal help or represent you in another problem or dispute, even one involving Kleinhans Gruber, we will need to sign another Representation Agreement covering that dispute. I have the final authority regarding procedural matters and the scope and content of all communications and correspondence to courts and to other parties about the Lawsuit. B. Fees and expenses. My fee for this representation is $285 per hour. I will defer billing all but $75 per hour of that amount until the end of the representation. PMB 188 • 4830 \NlLSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396 LEIF@OlSONAPPEAlS.COtv\ • (281) 849-8382 Morin0001