Levi Morin v. Law Office of Kleinhans Gruber, PLLC

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 <kim@lawofficeofkg .com>

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<inlberly G. Kleinhans

From: Levi Morin [mallto:le\llmQrin@Qm~l~

Sent: Wednesday, February 261 2014 2:12 PM

To: Kjmberly G. Kleinhans

Subject: Re~ August 7th email

Frustrated with you~ professionally, should be the lust thing that I feel. I need to start nluking plans to

Hnd somt!one else I need to know if that should be now or after thi~ hearing thing.

Levi Morin

M WD Engineer

TIn: Dircc!iunt:ll Orilling Cumpany

11390 FM ~30

Willis, TX 77318

Office: 936~856-4Jj2

Fax: 936-856·8678

Mobile: R30-45(}·3342

L~..Y..i.l.M.p.r"J~{~£.)ir.~t·licHlillJ)I:~"f.~!':~~~Qm

.L.l·\'iM9J:lt)i{t£.l)J(1j.Lt~nl}1 .

TAB 4

Email between KG and Morin Showing Morin's

Malice Motive, dated June 5, 2015

C.R.704

Klmberly G. Kleinhans

From: Kimberly G. Kleinhans <kim@fawofficeofkg.com>

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" <kim{t/)!mvofticeofkg,com> 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 <levirnorin@gmaU,com>

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 <kimfilllaworlieeorkg.cnm> 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 <Ievimarin@gmail.com>

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<! )irt'cti{lllall )l'ill\:'I'~ ,~lH'T\

1.e\'i~·I.()rin'/iIL·tnptl."·!.\ll\

0" ..._· ........._.. "k"~.' .•

This e~maill includmg ony ottoched files, may contain confidential and privileged information for the sole use of the

intended recipient. Any review, use, distribution. or disclosure by others is strictly prohibited. If you nrc not the intended

recipient (or authorized to receive: information for the intended recipient), please contact the sender by reply e-mail and

delete all copies of Ihis messDge,

On \Ved~ Aug 20; 2014 at 4:24 PM, Kimberly G. Kleinhans <kimfll)lowofficeofkg.cnm> 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. <kim@lawofficeofkg.com>

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. <kim@lawofficeofkg.com>

Date: MOIl , Jan 5, 2015 at 11 :26 AM

-Subject Re: Offer declined; potential hearIng dates

To: Leif Olson <Ieif@olsonappeals.com>

':"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<LEtNHANS GRUBER 1 PLLC

- - - - - - --_. __ ..... ---_._._ .... ----_ .... . __

... ... __ ... _-._._---._------------------

=ield 4_4_~. _ _ _... _ _ ~ ____ "'·_~ - .. - .•.•.• ........... ..,-.. - - - - - -

~

.....

~ecord

;

Type .. -.---~

Jate

rime

Duration (;:00:00

Status d

Description ::z:iJ with opposing counsel and email about settings/discovery.

~lient 10 1'::·'J·184.00

Contact

User ID

Sent/Received

To/From !A~ f~fy(!rSO!1appeals. co m

Subject .. ;.'h C;f;~ce c;f KG: PLLC v. Morin M Settings

Spoke With

Returned Call

Left Message

Voice Message

First Date ;i'1mlddfy'yYY

Last Date ~nm!ddjyyy'1

First Time hhJllr:'u;s AM

Last Time ~'~h.rnm:ss AM

Duration

Research URL

Research File

E-mail Body

:--{c ::;ur discussion today, in reviewing amaHs, I noticed that J am stm

:_;~;;jUn{] r-;r you to let me know when you will get us discovery responses

·:',:lfid provide me with the complaints that Levi Morin filed on myself and

,\!:!c.h3ei Seigler) so I know whether I need to set a Motion to

Cornpel!Motion for Discovery along with our Motion to Determine

:\JoilSt:ltfStrike Any Future Setting and in alt. to Revoke Notice of Nonsuit

\;'ih,::~el.:~;1 Th1S motion may end up being called, we discussed this as

'hF;!I).

/\:.; S(;(~n ~s

you get me dates when I will have discovery responses I can l

'f:.r;l~ ;It H:8

c:alendar to see the workload that I have at that time and to

(,::u.·':~·1i;1~ bow long it will take me to review the discovery and allow me

:.: ':'c:uQh time to draft a Motion to Compel if needed prior to the settings on

)[';1' ~·;iotkm to Compel/Motion for Discovery along with our Motion to

;):~icnj"line honsuit/Strike Any Future Setting and in alt. to Revoke Notice

---~-----~-~-------

Sunday 0211512015 VSfO am

TAB 7

Email to KG from Counsel for Morin Re Discovery

C.R.158

_____

Kim Kleinhans ------:IdO=-!ii.;-~~ . ..:~i~:..;t~,J,.U~.~,=T ;MIEDl,..,.,._ _ _ _ _ _ _ _ _ _- -_ _ _ _ _ __

From:

Sent:

To: Kilrb;o:-lj Kif:inhons Gruber {kim@lawofficeofkg.com)

Subject: KG v. ;'Aoriii: Dis.:overy; hearings

Attachments: 1S0 ..:1:'.?re-ll)otion disco resps.pdf; Morin0001-Morin0014.pdf; 150213.NOH on TePA

mo~icm.[}df

JournalPM:

Kim,

1. I believe that I told you over the phone a while ago that the disciplinary counsel's

office destroyed the fHe as part of their file-retention policy_ (I may be confusing that

with a discussion I was havinQ \fvith someone else on an unrelated bar-association

event.) Levi doesntt have a copy.

2. My position on discovery hasn't changed: I dontt think youtre entitled to it. When we

spoke over the phone, you \Neren't willing to fimit your requests or identify the ones that

you thought most important. So 1 put together responses that appear to address the

arguments that \.AliI! CO~-Ylf~ up:.::t the he.::1ring on the rnotion to dismiss, They're attached.

You should also be getting an e-served copy.

3. And, speaking of the hearing: The absolute drop-dead date for the court to hear the

motion to dismiss is Thursday, February 26, so I've set a hearing for that morning. That

will leave you with no time for discovery even if the judge thinks you deserve it. I can

reset the hear'ing for SOrTletirn(;! next vieek, which \,vDuld give you at least a bit of time. I

would prefer to have the hearing fh:~xt Thursday, anyvvay, but according to your

amended vacation letter, you'd already be out of town. If you would rather have the

chance to see the judge befon:: the hearing deadline, I'll reset it for Tuesday (whichever

J1- ...~,·.. :f- f:~'!- rne ~ ........ ou.r

of a1m' ' ' or P• rn.. • \you pt-e'Fe"\ i..la.::.... ... ~_l_ ;; y,..

.. ~i'

LEIF A. OLSON

THE OLSON F[E~·~, Pl..LC:

LEI F@OLSONAPI"J~.~.!..5!.cnh:1

(28J) 849,8382

PlviB 188 • 4830 Wi,isl en R!.~;I;1. .51!=:-- \~\-.~

Hllmblc~ TeX<l5 77 )t)f)

158

TABS

Travis County District Court Jury Docket Schedule

2015 SCHEDULE

TRAVIS COUNTY CIVIL DISTRICT COURTS

Honorable Lora J. Livingston Warren Vavra

Local Administrative Judge Court Administrator

Januarv Julv

5 Non-Jury 6 Jury

12 Jury 13 Non-Jury

19 Non-Jury 20 Jury

26 Jury 27 Non-Jury

Februan: August

2 Non-Jury 3 Non-Jury

9 Jury 10 Jury

16 Non-Jury 17 Non-Jury

23 Jury 24 Non-Jury

31 Jury

March September

2 Non-Jury 7 Non-Jury

9 Non-Jury 14 Jury

16 Settlement 21 Non-Jury

23 Jury 28 Settlement

30 Non-Jury

April

6 Jury October

13 Non-Jury 5 Non-Jury

20 Jury 12 Jury

27 Non-Jury 19 Non-Jury

26 Jury

~{ay November

4 Jury 2 Non-Jury

11 Non-Jury 9 Non-Jury

18 Jury 16 Jury

25 Non-Jury 23 Non-Jury

30 Jury

December

June 7 Non-Jury

1 Jury 14 Jury

8 Non-Jury

This text is long and has been trimmed here. Open the source document for the complete record.