Levi Morin v. Law Office of Kleinhans Gruber, PLLC

Opinion

ACCEPTED 03-15-00174-CV 5648390 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/11/2015 9:15:36 PM JEFFREY D. KYLE CLERK No. 03-15-00174-CV

Third Court of Appeals FILED IN 3rd COURT OF APPEALS at Austin AUSTIN, TEXAS 6/12/2015 11:30:36 AM JEFFREY D. KYLE Clerk

Levi Morin, Appellant, v.

Law Office of Kleinhans Gruber, PLLC, Appellee.

Appeal from the 201st District Court of Travis County Trial Court No. D-1-GN-14-003874

Brief of Appellant Levi Morin

Leif A. Olson State Bar No. 24032801 leif@olsonappeals.com The Olson Firm, PLLC PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Appellant Levi Morin Oral Argument Requested

Identity of Parties and Counsel Defendant-appellant Levi Morin Leif A. Olson State Bar No. 24032801 leif@olsonappeals.com The Olson Firm, PLLC PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Defendant-appellee Law Office of Kimberly G. Kleinhans Kleinhans Gruber, State Bar No. 24062755 PLLC kim@lawofficeofkg.com Keith L. Kleinhans State Bar No. 24065565 keith@lawofficeofkg.com Law Office of Kleinhans Gruber, PLLC 12600 Hill Country Blvd., Suite R-275 Austin, Texas 78738 (512) 961-8512 (512) 623-7320 (fax)

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Table of Contents Identity of Parties and Counsel ............................................................ 1 Table of Contents ................................................................................ 2 Index of Authorities ............................................................................. 4 Statement of the Case .......................................................................... 8 Statement on Oral Argument ............................................................... 9 Citations and References ..................................................................... 9 Issue Presented .................................................................................. 10 Facts ................................................................................................... 11 A. Morin reviews the firm. ............................................................ 11 B. The firm responds to the review. ............................................. 12 C. The lawsuit. ............................................................................. 13 1. The petition and the discussions it provoked. .................... 13 2. Morin moves to dismiss. ..................................................... 14 D. Hearings and more firm filings. ............................................... 15 E. Trial court’s ruling. ................................................................. 16 Summary of Argument: The firm didn’t support its case with clear and specific evidence, and its claims should have been dismissed. .................... 17 Standard of Review ............................................................................ 18 Argument ........................................................................................... 20 A. The firm didn’t establish a prima facie case of discrimination. ......................................................................... 20 1. The firm has no evidence because its exhibits were inadmissible. ....................................................................... 22 2. The firm’s evidence was neither clear nor specific. ............ 25 B. Morin acted timely. ................................................................. 34

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1. The hearing was timely. ...................................................... 35 2. Morin’s exhibits were timely. ............................................. 37 C. Morin’s evidence of attorneys’ fees was uncontested, and he is entitled to additional fees and sanctions. .............................. 38 Conclusion ......................................................................................... 39 Certificate of Compliance .................................................................. 40 Certificate of Service ......................................................................... 40

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Index of Authorities Cases Barreca v. Nickolas 683 N.W.2d 111 (Iowa 2004) ........................................................ 27 Bently v. Bunton 94 S.W.3d 561 (Tex. 2002) ..................................................... 20, 21 Better Business Bureau of Metropolitan Houston, Inc. v. John Moore Services, Inc. 441 S.W.3d 345 (Tex. App. – Houston [1st Dist.] 2013, pet. denied) ..................... 19 Bexar Building & Loan Assn. v. Heady 50 S.W. 1079 (Tex. Civ. App. – San Antonio 1899, writ ref’d) ..... 23 Brown v. Moore 38 Tex. 645 (1873) ........................................................................ 23 Burbage v. Burbage 447 S.W.3d 249 (Tex. 2014) ......................................................... 28 Burrow v. Arce 997 S.W.2d 229 (Tex. 1999) ......................................................... 34 Carpenter v. Cimarron Hydrocarbons Corp.

98 S.W.3d 682 (Tex. 2002)........................................................... 34 Casso v. Brand 776 S.W.2d 551 (Tex. 1989) .......................................................... 30 City of Brownsville v. Alvarado 897 S.W.2d 750 (Tex. 1995). ......................................................... 22 City of San Antonio v. Pollock 284 S.W.3d 809 (Tex. 2009) ................................................... 19, 33 Dynamic Image Technologies, Inc., v. United States 221 F.3d 34 (1st Cir. 2000) ........................................................... 27

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Elliott v. Weatherman 396 S.W.3d 224 (Tex. App. – Austin 2013, no pet.) ..................... 19 Employers Insurance of Wausau v. Halton 792 S.W.2d 462 (Tex. App. – Dallas 1990, writ denied) ............... 35 Federal Deposit Ins. Corp. v. Hulsey 22 F.3d 1472 (10th Cir. 1994)........................................................ 27 Forbes, Inc. v. Granada Biosciences, Inc.

124 S.W.3d 167 (Tex. 2003) .................................................... 20, 21 Guevara v. Ferrer 247 S.W.3d 662 (Tex. 2007) ......................................................... 29 Hancock v. Variyam 400 S.W.3d 59 (Tex. 2013) ..................................................... 21, 27 Hearst Corp. v. Skeen 159 S.W.3d 633 (Tex. 2005) .......................................................... 30 HM Hotel Properties v. Peerless Indemnity Ins. Co.

874 F. Supp. 2d 850 (D. Ariz. 2012) ............................................. 28 Huckabee v. Time Warner Entertainment Co., L.P.

19 S.W.3d 413 (Tex. 2000) ................................................ 21, 30, 31 Hurlbut v. Gulf Atlantic Life Ins. Co.

749 S.W.2d 762 (Tex. 1987).......................................................... 21 In re Lipsky, No. 13-0928 __ S.W.3d __, 2015 WL 1870073 (Tex. Apr. 24, 2015) .................................................... 19, 21, 28, 30 In re M.N.

262 S.W.3d 799 (Tex. 2008) ......................................................... 34 Jelinek v. Casas 328 S.W.3d 526 (Tex. 2010) ......................................................... 29 Life Insurance Co. of Virginia. v.Gar-Dal, Inc.

570 S.W.2d 378 (Tex. 1978) .......................................................... 34

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New York Times Co. v. Sullivan 376 U.S. 254 (1964)....................................................................... 30 Owens-Corning Fiberglas Corp. v. Malone 972 S.W.2d 35 (Tex. 1998)............................................................ 19 Phillips v. Brazosport Savings & Loan Assn.

366 S.W.2d 929 (Tex. 1963).......................................................... 23 Rehak Creative Services, Inc. v. Witt 404 S.W.3d 716 (Tex. App. – Houston [14th Dist.] 2013, pet. denied) .................. 18 Serafine v. Blunt, No. 03-12-00726-CV __ S.W.3d __, 2015 WL 2061922 (Tex. App. – Austin May 1, 2015, n.p.h.)...................................... 18 St. Amant v. Thompson 390 U.S. 727 (1968)....................................................................... 31 Stelly v. Papania 927 S.W.2d 620 (Tex. 1996) ................................................... 34, 35 Walker v. Packer 827 S.W.2d 833 (Tex. 1992) ......................................................... 19 Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc.

434 S.W.3d 142 (Tex. 2014) ......................................................... 28 WFAA, Inc. v. McLemore 978 S.W.2d 568 (Tex. 1998) ......................................................... 21 Statutes Tex. Civ. Prac. & Rem. Code § 18.001 .................................. 39 Tex. Civ. Prac. & Rem. Code § 27.003 ........... 14, 24, 34, 35, 37 Tex. Civ. Prac. & Rem. Code § 27.005 ....................... 19, 20, 21 Tex. Civ. Prac. & Rem. Code § 27.006 ............................ 24, 36 Tex. Civ. Prac. & Rem. Code § 27.009 .................................. 39

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Tex. Govt. Code § 312.011(1) ..................................................... 22 Rules Tex. R. Civ. P. 13 .......................................................................... 25 Tex. R. Civ. P. 176.2(a) ................................................................ 24 Tex. R. Civ. P. 176.3 ..................................................................... 24 Tex. R. Civ. P. 191.5 ..................................................................... 24 Tex. R. Civ. P. 205.2 .................................................................... 24 Tex. R. Civ. P. 205.3 .................................................................... 24 Tex. R. Civ. P. 21(b) ..................................................................... 22 Tex. R. Civ. P. 215.2..................................................................... 25 Tex. R. Civ. P. 215.3 ..................................................................... 25 Tex. R. Discip. P. 1.06 ................................................................ 32 Tex. R. Discip. P. 2.10 ................................................................ 32 Other Authorities Tex. Lawyer’s Creed ............................................................... 35

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Statement of the Case Nature of the case Anti-SLAPP motion by former client against a law firm that sued him for defamation based on a review the client posted on Yelp

Trial court 201st District Court Judge Stephen Yelenosky presiding Trial court The firm sued Morin for defamation. CR 3–10. proceedings Morin moved to dismiss under the Texas Citizens Participation Act. CR 15–31, 32–93. The firm filed several responses and objected to some evidence as untimely. CR 98–119, 120–192, 206– 467, 468–729. Morin replied and objected that the firm’s evidence was inadmissible. CR 730– 732.

Trial court The trial court sustained the firm’s objections to disposition Morin’s evidence, overruled Morin’s objections to the firm’s evidence, and denied the motion to dismiss. CR 738, Appx. 4.

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Statement on Oral Argument

Oral argument would benefit the Court. This case concerns how

evidentiary standards are interpreted under the Texas Citizens Partic-

ipation Act, which is an issue that Texas courts have largely not ad-

dressed. It also involves procedural issues under the Act that do not

appear to have been addressed.

Citations and References the Act Texas Citizens Participation Act Appx. x Appendix at Tab x CR xx–yy Clerk’s record at pages xx through yy RR aa:bb–cc Reporter’s record at page aa, lines bb through cc SR xx Supplemental clerk’s record at page xx

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Issue Presented

Did the trial court err in finding that a statement in a Yelp review of a law firm was defamatory and thus err in denying a former client’s motion to dismiss under the Texas Citizens Participation Act?

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Facts

A. Morin reviews the firm.

Levi Morin hired the Law Offices of Kleinhans Gruber to represent

him in a family-law matter. CR 87. He became unhappy with the

firm’s work, particularly after a hearing when, as he stated under oath, a firm associate came to court with a hangover. CR 88–89. In June

2014 he posted a review of the firm on the business-review site Yelp:

You will be doing the majority of the work you’ll be paying Kimberly $400 and hour to do for you. I am all for being involved in the process but Kimberly only cares about her paycheck and not at all about me, or her clients presumably. For someone so expensive her legal “counsel” consist of her arguing with you or sending hung over “associates” to court dates [Michael Seigler].

As well as almost doing nothing for me, in the way of leading me through an overly complex legal system and helping to understand what’s going on within it, she does not even know the basics of the laws she claims to specialize in. She told me to call the police and that they would make my ex give me my son for our court appointed time. Anyone who’s had to deal with the cops when they show up knows that they can’t force anyone to give children to someone else. Any good fathers , or moms, out there who are trying to get a fare shake should steer clear of Kim. On multiple occasions she has proven her worth, or lack thereof, with shitty

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legal advice, questionable associates, and sub-par management .

I’m a great dad with a crappy ex and in Texas that means playing the long game when it comes to getting what you should have as a father. That means that in the here and now you’re paying a lawyer for piece of mind and to set yourself up for success later on down the road. You’re not going to get that with Kimberly and that’s really surprising given the recommendation from Blake Erskine.

Appx. 1.

B. The firm responds to the review.

Eight weeks later, Kimberly Kleinhans, half of the firm’s husband-

and-wife partnership, emailed Morin. She asked him to delete the review , which she called “business slander,” that he had posted. CR 55;

CR 710. The sole statement that she identified as “slanderous” was

that her billing rate wasn’t $400 per hour. Id. In response, Morin edit-

ed the review to remove that statement:

Original Edited You will be doing the majority of You will be doing the majority of the work you’ll be paying Kim- the work you’ll be paying Kimberly $400 and hour to do for berly an exorbitant rate to do for you. you.

Appx. 1.

Kleinhans wasn’t satisfied. She said so in another email late that af-

ternoon. This time, she claimed that five specific statements weren’t

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true. One of those was that Siegler had appeared in court hungover.

CR 53–54; CR 707–709. Morin refused to remove the review. See CR 707.

A month later, the firm posted on Yelp to reply to Morin’s review.

It suggested strongly that the firm had fired Morin as its client because

he was disrespectful and refused to follow the firm’s advice. It added

that this invalidated Morin’s opinion; he had been fired, so his review

was “clearly misplaced.” The firm closed by touting that lawyers were on the “Rising Star” list put out by Thomson Reuters. CR 58.

The firm sued Morin the next day. CR 3.

C. The lawsuit.

1. The petition and the discussions it provoked.

The firm alleged that Morin was liable for business disparagement,

defamation, and defamation per se. CR 5–7. Morin answered that his review was a statement of opinion protected by the Texas Citizens

Participation Act, Texas’s anti-SLAPP statute, and that the claims

should be dismissed. CR 12.

Before answering, Morin’s lawyer wrote to Kleinhans to discuss

the firm’s dropping the suit rather than have the parties go through an

anti-SLAPP proceeding. Kleinhans demurred. Appx. 2 at 18. Morin’s

lawyer also informed Kleinhans that Morin wouldn’t be responding to

the discovery that the firm had propounded with the petition because

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he planned to move to dismiss which, under the Act, would put all

discovery on hold. Appx. 2 at 18–19. In further discussions, Morin’s lawyer offered to furnish a smaller set of agreed-upon discovery that

would be relevant to the arguments in the motion to dismiss, but

Kleinhans insisted that Morin answer the firm’s requests in full.

Appx. 2 at 19–20.

2. Morin moves to dismiss.

On December 1, the last day for him to do so, Morin filed his mo-

tion to dismiss. CR 15–31; see Tex. Civ. Prac. & Rem. Code § 27.003. Two days later, he filed the exhibits that had been cited in,

but not attached to, the motion. CR 32–93. The motion stated three

bases for dismissal:

• The firm didn’t establish a prima facie case against Morin,

• The statements were substantially true, and

• The statements were privileged.

CR 21, 24, 28. The first argument and third arguments were solely le-

gal; the second was supported by Morin’s declaration. CR 87–89.

The firm nonsuited its claims. CR 96. Morin did not. Following

further, extended attempts to reach an agreement on discovery, see

Appx. 2 at 19–20, Morin set the motion for hearing on February 26,

the 90th day after the motion had been filed. See, e.g., CR 116.

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The firm responded with a flurry of papers. It set a hearing on a re-

quest for a continuance for Tuesday morning. CR 105. (Morin had filed and served his notice of hearing on a Friday.) It also filed a mo-

tion to strike, 1 which it amended twice before the Tuesday-morning

hearing. CR 98–119, 120–192.

D. Hearings and more firm filings.

The trial court denied the continuance and heard the motion on

February 26. It recessed the hearing until March 5 because of an ongo-

ing jury trial. No one objected to the recess. RR 3:1–9.

While the hearing was recessed, the firm filed an amended petition

(how it amended claims that it had nonsuited wasn’t explained), CR

195–205; a response to Morin’s motion, CR 206–467; and, the day before the hearing resumed, a supplemental response. CR 468–729.

Among the exhibits to the supplement were an affidavit from Klein-

hans, CR 487–726, and two other affidavits. One was from Michael

Siegler, the lawyer whom Morin had identified as hungover. CR 727–

728. The other was from Martin Garza, the lawyer who had been op-

posite Siegler at that hearing. CR 729. Both affidavits had problems.

1 Actually, it was “Plaintiff’s Motion to Strike or Deny Morin’s Motion to Dismiss and Motion for Nonsuit or in the Alternative Motion for Continuance and Motion to Withdraw Notice of Nonsuit and Motion for Sanctions.” But “motion to strike” captures the essence of it.

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Garza’s affidavit. Garza had originally refused to furnish testimo-

ny unless compelled to do so. CR 467. In response, Kleinhans concocted a document she entitled “Subpoena for Affidavit Testimony.”

Appx. 2 at 15–16. It mimicked the form of an actual subpoena, but ra-

ther than demand presence before a court or at a deposition, it “com-

manded [Garza] to give testimony via affidavit….” Appx. 2 at 15. Gar-

za didn’t sign the affidavit until Kleinhans had dropped that document

on him; Kleinhans didn’t furnish a copy of the “subpoena” to Morin until the day before the hearing resumed. CR 729 (March 3 subpoena);

Appx. 2 at 16 (March 3 receipt); Appx. 2 at ¶ 9 (untimely service).

The issue with Siegler’s affidavit was simpler: It was notarized by Kleinhans. CR 727.

Morin objected to all three affidavits. CR 730–732.

E. Trial court’s ruling.

Following the hearing, the trial court denied the motion to dismiss.

It memorialized its rulings in a written order. That order concerned

both matters of timing and matters of substance. As to timing, the

court found no good cause to extend Morin’s deadline to file his mo-

tion or have the motion heard. It struck Morin’s exhibits, which were

filed after the motion deadline, and overruled Morin’s objections to

the firm’s exhibits. Its substantive basis for denying the motion to

dismiss was that the firm had made a prima facie case for defamation

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based on Morin’s statement that Siegler was hungover, and Morin

hadn’t established an affirmative defense by a preponderance of the evidence. Appx. 4.

Morin now appeals.

Summary of Argument:

The firm didn’t support its case with clear and specific evidence, and its claims should have been dismissed.

Morin has the liberty to speak his mind and to do so even when it

hurts someone’s feelings. He did so when he posted a negative review

of his former lawyers. The firm sued him for defamation, but Texas

protects Morin from such suits through the Texas Citizens Participa-

tion Act. The Act required the firm to establish a prima facie case on

each element of its claims by clear and specific evidence. It didn’t do so. The trial court’s contrary conclusion was error.

The trial court erroneously permitted the firm to support its case

with inadmissible affidavits — affidavits that were filed too late, that

weren’t properly solemnized, and that were obtained through false

pretenses. Putting that inadmissibility to the side, the firm still didn’t

support each element of its claims. It furnished no evidence of damag-

es and no clear, specific evidence of malice.

The finding that there wasn’t good cause for Morin’s timing is also

reversible error. Morin had good cause to file his motion when he did

and to set a hearing date for the date he did. His doing so was neither

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deliberately indifferent toward or directly in contravention of the case

schedule, and his doing so had no negative effects on the firm.

Finally, Morin’s evidence of his pre-motion legal fees was uncon-

troverted. The trial court didn’t reach that issue because it didn’t

grant Morin’s motion, but the firm’s decision not to file controverting

affidavits establishes Morin’s reasonable and necessary legal fees as a

matter of law. Morin is also entitled to his post-motion fees and to a

sanction against the firm in an amount that the trial court must determine .

The trial court erred. It should have dismissed the firm’s suit and

awarded fees and sanctions to Morin under the Act. The Court should reverse the trial court’s order, render judgment dismissing the case

and awarding Morin his pre-motion legal fees, and sever and remand

the question of Morin’s post-motion fees and an appropriate sanction against the firm.

Standard of Review

The Court reviews questions of law, such as whether evidence

meets the standards established in the Act, de novo. Serafine v. Blunt,

No. 03-12-00726-CV, __ S.W.3d __, 2015 WL 2061922, at *2 (Tex.

App. – Austin May 1, 2015, n.p.h.), citing Rehak Creative Svcs., Inc. v.

Witt, 404 S.W.3d 716, 725 (Tex. App. – Houston [14th Dist.] 2013,

pet. denied). Here, that means that the Court conducts a de novo re-

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view of whether (1) the firm established, by clear and specific evi-

dence, a prima-facie case on each element of each of its claims; and (2) Morin established an affirmative defense by a preponderance of the

evidence. Tex. Civ. Prac. & Rem. Code § 27.005(c), (d).

As in other sufficiency-of-the-evidence contexts, conclusory state-

ments constitute no evidence. Serafine, 2015 WL 2061922 at *2, citing

Better Bus. Bureau of Metro. Hou., Inc. v. John Moore Svcs., Inc., 441

S.W.3d 345, 355 (Tex. App. – Houston [1st Dist.] 2013, pet. denied); In re Lipsky, No. 13-0928, __ S.W.3d __, 2015 WL 1870073, at *9

(Tex. Apr. 24, 2015), citing City of San Antonio v. Pollock, 284 S.W.3d

809, 816 (Tex. 2009).

The Court reviews the trial court’s evidentiary and procedural rul-

ings — whether there was good cause for an extension; whether evi-

dence should be excluded or not — for abuse of discretion. Owens- Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). That

standard results in reversible error in two scenarios: The trial court

acted without reference to guiding rules of principles, or the trial court

didn’t analyze or apply the law correctly. Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992); Elliott v. Weatherman, 396 S.W.3d 224,

228 (Tex. App. – Austin 2013, no pet.).

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Argument

There is no question that Morin’s review constitutes a public

commentary on services offered in the marketplace. It is thus an exer-

cise of his liberty of free speech that the Act protects. He is entitled to

dismissal unless the firm established a prima facie case of defamation

by clear and specific evidence. Even if it does so, Morin is still entitled

to have the case dismissed if he establishes an affirmative defense.

The firm didn’t meet its burden. Even if it had, Morin met his. The

trial court should have dismissed the case and awarded Morin his legal

fees. The Court should render judgment doing just that.

A. The firm didn’t establish a prima facie case of discrimination.

To avoid dismissal, the firm had to demonstrate a prima facie case

on each element of each of its claims, and it had to do so by clear and specific evidence. Tex. Civ. Prac. & Rem. Code § 27.005(c).

The trial court found that it had done so regarding one statement,

Morin’s assertion that Siegler had come to court hungover. Appx. 4.

The firm’s three claims were for defamation, defamation per se,

and business disparagement. CR 5–7.

• Falsity. Each of those required the firm to show that Morin made a false statement of fact. Bently v. Bunton, 94 S.W.3d 561, 580 (Tex. 2002) (defamation); Forbes, Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 170 (Tex. 2003) (business disparagement ).

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• Malice. The disparagement and defamation per se claims required the firm to show that Morin acted maliciously. Forbes, 124 S.W.3d at 170 (disparagement); Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987) (same); WFAA, Inc. v. McLemore, 978 S.W.2d 568, 571–72 (Tex. 1998) (defamation per se). In this context, “malice” means that he had a significant doubt about the statement’s truth. Bently, 94 S.W.3d at 591, 596.

Because it must establish malice by clear and convincing evidence to prevail at trial, Forbes, 124 S.W.3d at 172, the firm must make a prima facie showing that it can prove malice by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code § 27.005(c). When unpacked, this unusual standard requires that the firm produce evidence that would, if unrebutted, be sufficient as a matter of law to create a firm belief in a factfinder’s mind that the allegation was true. Bently, 94 S.W.3d at 597 (clear-and-convincing standard); Lipsky, 2015 WL 1870073, *6 (meaning of “prima facie”). But see Huckabee v. Time Warner Entmt. Co., L.P., 19 S.W.3d 413, 423 (Tex. 2000) (even though proof at trial would require clear and convincing evidence, mere fact issue defeats summary judgment on defamation claim).

• Damages. The firm must demonstrate actual damages to establish its defamation and disparagement claims. See Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013) (“[T]he plaintiff must always prove special damages to recover them.”) For its disparagement claim, it had to show evidence of actual, realized pecuniary loss. Hurlbut, 749 S.W.2d at 762. For its defamation claim, it needed to show actual injury — actual mental anguish or loss of reputation.

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The firm missed all three. The trial court’s ruling to the contrary was

error as a matter of law.

1. The firm has no evidence because its exhibits were inadmissible .

The only evidence of the falsity of the Siegler’s-hangover state-

ment came from the affidavits of Siegler and Garza. CR 727, 729. Nei-

ther affidavit was admissible because both were fatally flawed. Remov-

ing those affidavits removes the only evidence of falsity, mandating re-

versal. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54

(Tex. 1995).

a. Untimeliness.

Both affidavits — and Kleinhans’s, too — were untimely. They

weren’t filed until the hearing was already underway, and even then

only the day before it resumed. This gave Morin essentially no notice

of the firm’s arguments so that he could formulate a reply. The firm

was required to furnish at least three days’ notice. Tex. R. Civ. P.

21(b). That late filing alone required exclusion.

b. Lack of oath.

Siegler’s affidavit was inadmissible because it was unsworn — it

was unsworn because Kleinhans wasn't fit to administer an oath and

notarize the affidavit. See Tex. Govt. Code § 312.011(1) (docu-

ment not an “affidavit” unless “sworn to before an officer authorized

to administer oaths”). A person with an interest in an underlying mat-

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ter can’t notarize documents related to that matter. See Phillips v.

Brazosport Sav. & Loan Assn., 366 S.W.2d 929, 931–32 (Tex. 1963). This is for the same reason that judges aren’t allowed to sit over cases

in which they have an interest: It eliminates the temptation to rule for

one’s own interests and promotes public faith in the independence

and accuracy of public works. See Bexar Building & Loan Assn. v.

Heady, 50 S.W. 1079, 1080 (Tex. Civ. App. – San Antonio 1899, writ

ref’d) (quasi-judicial nature of notary’s office disqualifies notary from acting “where he has any interest”). This rule is not some surprise or

trap; it is ancient and consistent. Almost 150 years ago, the Supreme

Court disposed of a case in less than a paragraph on the basis that a notary couldn’t solemnize a document for a transaction in which he

would receive a commission. Brown v. Moore, 38 Tex. 645, 648 (1873).

Its full discussion of the matter:

Authorities are sufficiently referred to in the able briefs of counsel to this point. We think the law is well settled ….

Id.

Kleinhans, a partner in the plaintiff law firm and one of the lawyers

mentioned by name in Morin’s review, has an unquestionable interest

in the outcome of the lawsuit. The rule was “well settled” in the

1870s: Kleinhans’s notarization of Siegler’s affidavit nullified the doc-

ument. The trial court erred in overruling Morin’s objection.

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c. Violation of the law and the Rules.

Garza was induced to sign an affidavit only because Kleinhans served upon him a “Subpoena for Affidavit Testimony.” There is no

such thing, and the affidavit procured through it was inadmissible.

The affidavit was false on its face and ineffective to demand compliance . A person can be compelled to testify only at “a deposition,

hearing, or trial[.]” Tex. R. Civ. P. 176.2(a). An affidavit is none of

those; a “subpoena” to compel “affidavit testimony” would essential-

ly command, “Come to my office and sign this, or else a court will

hold you in contempt.” This destroys the adversary system in place to

assure that the truth comes to light through examination and cross-

examination. This is why subpoenas on third parties must be served on

the target and on the opposing counsel simultaneously. Tex. R. Civ.

P. 191.5, 205.2, 205.3. Kleinhans didn’t bother with even that;

Morin’s counsel didn’t receive a copy of the “subpoena” until Klein-

hans emailed it to him with Garza’s affidavit. Appx. 2 at 2.

Even if such a subpoena existed, this subpoena would be barred. Subpoenas can’t be used to dodge discovery limitations. Tex. R.

Civ. P. 176.3(b). That is the only thing that this “subpoena” was de-

signed to do: Discovery wasn’t just limited once Morin moved to dismiss , it was arrested altogether. Tex. Civ. Prac. & Rem. Code

§§ 27.003(c), 27.006(b).

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The firm procured Garza’s “testimony” by faking a command

from a court. There was no basis in law for it to do so. Excluding the affidavit was the least the trial court was required to do. Tex. R.

Civ. P. 215.2, 215.3; cf. Tex. R. Civ. P. 13. Overruling Morin’s ob-

jection was reversible error.

2. The firm’s evidence was neither clear nor specific.

Even assuming that the firm’s affidavits were admissible, their at-

tempts to support a prima-facie case on the firms claims was a failure.

In many instances, the firm adduced not just unclear or unspecific evidence , but no evidence whatsoever.

a. The claim of falsity is unsupported.

Once Siegler’s and Garza’s affidavits are excluded, the only state-

ment about Siegler is from Kleinhans’s affidavit. CR 493. But Kleinhans has nothing to say about Siegler’s presence, or physical state

while appearing, in court with Morin. She states that there have never

been other reports of Siegler being drunk or hungover in court — but

that is only evidence that there haven’t been reports of it before, or

that the incident with Morin was the first time.

Her only other statement is that she “corresponded” with Siegler

on the day of and the day before the hearing and that he didn’t seem to

be intoxicated or sweating off the effects of it; “his speak was clear, he

was alert[,] and his thoughts were well organized.” Assuming that

26

Kleinhans means “communicate” instead of “correspond” — a lack

of clarity and specificity in and of itself — this is no evidence about Siegler’s state. Kleinhans doesn’t say when the day before she spoke

with Siegler; if it was during work hours, that is meaningless, because

a hangover in the morning implies that drinking occurred at night.

Nor does she say when on the hearing day she spoke with Siegler.

One assumes that he wasn’t speaking with her during his court ap-

pearance; judges frown, to put it mildly, on phone calls in open court. If he wasn’t speaking with her in the morning, that leaves the after-

noon and the evening — but one does recover from a hangover. At any

rate, the physical effects of a hangover aren’t necessarily apparent over the phone or in writing. Speaking with Siegler over the phone or

writing him by text message or email wouldn’t necessarily reveal a

hangover, either.

Even if it constituted some evidence that Siegler wasn’t hung over,

it isn’t clear, and it isn’t specific. We don’t know when Kleinhans

spoke with Siegler. We don’t know what was said. We don’t know

how else they communicated, or when those communications were.

We don’t even know if the communications were of the sort that

might reveal a hangover — brief text messages, for instance, instead of

in-depth research memos; short voicemails instead of extemporaneous

27

discussion of recent legal decisions. 2 Indeed, Kleinhans isn’t even

consistent in describing her interactions with Siegler — she states that she corresponded with him, which means communicating in writing,

but she also states that his speech was clear, which requires that they

have communicated orally. Kleinhans’s testimony is neither clear nor

specific, and it cannot support a case for falsity.

b. The mental-anguish claims are legally impossible.

Damages for mental anguish — the only non-economic damage that Kleinhans proffers — require evidence of “a substantial disrup-

tion in daily routine” or “a high degree of mental pain and distress.”

Hancock, 400 S.W.3d at 68. A company cannot, by its very nature, suf-

fer those damages; they can be borne only by a natural person. A com-

pany has no daily routine; its employees and agents do. A company

has no mental acuity or stress centers; its employees and agents do. Because this lawsuit is by a company, it is a lawsuit where mental-

anguish damages are unrecoverable. Research uncovers no court that

has held to the contrary. See Barreca v. Nickolas, 683 N.W.2d 111, 124

(Iowa 2004); Dynamic Image Techs., Inc., v. U.S., 221 F.3d 34, 37 fn.2

(1st Cir. 2000); FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994).

2 The Supreme Court had just decided Marvin M. Brandt Revocable Trust v. U.S., 134 S. Ct. 1257 (March 10, 2014) that morning. No doubt discussion of railroads’ abandonment of government-granted easements over private lands was all that could be overheard at 1000 Guadelupe that day.

28

There is no exception for businesses that organize as limited-liability

companies rather than incorporate. See HM Hotel Props. v. Peerless Indem . Ins. Co., 874 F. Supp. 2d 850, 853–54 (D. Ariz. 2012).

c. The economic-injury claims are unsupported.

Neither is there evidence of damage to the firm’s reputation. As

the Supreme Court held recently in Waste Management v. Texas Dis-

posal Systems, general testimony about the need for a clean reputation,

the impact of a statement on one’s good name, or an estimated value of the impact on the business is too little. Waste Mgmt. of Tex., Inc. v.

Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 160 (Tex. 2014). And

as it said in Burbage v. Burbage shortly afterward, even identifying that

customers have cancelled contracts, or not entered into contracts, is

insufficient. 447 S.W.3d 249, 261–262 (Tex. 2014). Following that

standard, the Supreme Court held just a few weeks ago that testimony that a plaintiff’s statements caused “direct pecuniary and economic

losses and costs, lost profits, loss of its reputation, and loss of good-

will” was not just insufficient to support a claim under the Act — it

was insufficient, period. Lipsky, 2015 WL 1870073 at *9.

The firm doesn’t have evidence that rises even to those rejected

levels. What it does have is this statement from Kleinhans:

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

29

LEVI MORIN’s posting [on Yelp]. The decline is reflected in our overall business income from the date of the posting to the present….

CR 494. That isn’t evidence of damages; it is raw, unadulterated falla-

cy. It is pure post hoc ergo propter hoc, and, “[s]imply stated, correlation

does not imply causation.” Jelinek v. Casas, 328 S.W.3d 526, 533

(Tex. 2010). In other words, if something happens closely on the heels

of an event, that raises suspicion that the event was the cause. “But

suspicion has not been and is not legally sufficient to support a finding of legal causation.” Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex.

2007).

That suspicion is all Kleinhans has. She doesn’t know any particu-

lars that might support a claim for special damages:

• She doesn’t know how many clients the firm used to get from Yelp.

• She doesn’t know how many clients it gets from Yelp now.

• She doesn’t know what types of cases those clients brought to the firm.

• She doesn’t know how profitable those cases were compared to non-Yelp cases or to the firm’s average case.

• She doesn’t testify to potential clients who turned down the firm because of Morin’s posting.

30

• She doesn’t testify to hearsay from other lawyers that they picked up clients who were turned off from the firm by Morin’s posting.

• She doesn’t testify to how her workload, or the firm’s profitability , changed because of changes to her schedule due to her contemporaneous pregnancy. Cf. CR 494 (Kleinhans’s self-described “fragile state” and the “rest and relaxation recommended by [her] doctor” due to her pregnancy).

“Bare, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence re-

quired to establish a prima facie case under the [Act].” Lipsky, 2015

WL 1870073 at *9. Bare opinion based on suspicion is all the firm has.

That bare opinion is less than clear, less than specific, less than would

permit a finding of injury — it is no evidence at all.

d. The malice claims are unsupported.

In the defamation context, “malice” isn’t spite or ill will. Rather, it is a term of art: Morin acted with malice only if he knew that what he

wrote was false or he recklessly disregarded the possibility it was false.

Huckabee, 19 S.W.3d at 420, citing Casso v. Brand, 776 S.W.2d 551,

558 (Tex. 1989), and New York Times Co. v. Sullivan, 376 U.S. 254,

279–80 (1964). Not investigating as much as the subject would like

isn’t evidence of malice; only evidence that the speaker purposely

avoided the truth rises to that level. Hearst Corp. v. Skeen, 159 S.W.3d

633, 637 (Tex. 2005) The trial court found only one potentially false

31

statement: that Siegler came to court hung over. Thus, the firm must

show that Morin knew (or entertained serious concerns that) that statement was false. Huckabee, 19 S.W.3d at 420, citing St. Amant v.

Thompson, 390 U.S. 727, 731 (1968).

Kleinhans claims three clear and specific evidences of malice:

• Morin filed bar complaints about her and Siegler.

• Morin sent her crass and angry emails.

• Kleinhans has a low opinion of Morin — she thinks him dishonest , disrespectful, and of poor conduct — and believes that he “intends to do harm to [her] and the firm[.]”

CR 495. Whether taken together or separately, these do not create a

prima facie case.

First, filing grievances with the State Bar isn’t malicious. It may

show spite or ill will; it may even show a desire to create trouble for

the lawyer who is being grieved. But this is malice in the world of def-

amation law; the act of filing a grievance doesn’t show a knowing or

reckless disregard for the truth. It shows that the speaker sent a com-

plaint to the State Bar’s Chief Disciplinary Council claiming that a

lawyer violated the Disciplinary Rules of Professional Conduct. The

firm couldn’t even create a circumstantial case of malice based on

statements in the grievances: Kleinhans doesn’t know what they said

and admits that she is guessing at their contents based on Morin’s

Yelp review. CR 495.

32

Second, the Disciplinary Counsel’s dismissal of Morin’s grievanc-

es didn’t inform Morin that the statements in those grievances were false. Kleinhans’s conclusion to the contrary, CR 495, is wrong. The

Disciplinary Counsel can dismiss grievances for at least two reasons:

the “grievance” doesn’t appear to be an attempt to complain about

professional misconduct, and the grievance actually doesn’t allege ac-

tions that, if true, would constitute professional misconduct. Tex. R.

Discip. P. 1.06(R), (S) (definitions of “grievance” and “inquiry”); 2.10 (disciplinary counsel must sort grievances into complaints and

inquiries and dismiss inquiries with notice to griever and lawyer). A

dismissal on either basis tells Morin only that his phrasing didn’t appear to allege a violation of the disciplinary rules. It doesn’t tell him

that what he observed never happened; it doesn’t tell him that his

statements — here, statements about Siegler’s hangover, if he even made them in the grievance — are “false” or “baseless.” See CR 495.

Third, Morin’s emails don’t show a disregard for the truth. They

show what might be called “traditional” malice — antipathy, ill will,

and spite. Several of them are overtly hostile. They make clear his

opinion of Kleinhans and the firm and suggest that he plans to broad-

cast that opinion of the firm far and wide. They state his hope that his

broadcasts will inform a lot of people of that opinion. But none sug-

gests that Morin intends to lie about the firm. They don’t suggest that

he will concoct a story about Siegler. They don’t suggest that he will

33

think back on his court date with Siegler and throw out doubts he had

about Siegler’s condition. They don’t suggest that Morin was avoiding people who he knew could confirm or deny Siegler’s condition. They

don’t, simply, allege malice.

Finally, the Court can disregard Kleinhans’s opinion of Morin.

That is no more evidence of malice than Morin’s opinion that Klein-

hans is a “shi**y lawyer,” see Appx. 1 & 3, is evidence of malpractice.

But let’s assume that Kleinhans isn’t simply opining; let’s assume she is stating that Morin is, as a matter of fact, of poor conduct, dishonest,

and disrespectful. Those aren’t admissible evidence; they are naked,

conclusory assertions. The most Kleinhans does to develop a basis for her statement is a footnote. She claims there that unspecified emails

demonstrate Morin’s dishonesty by showing that he tried to get out of

a mediated settlement agreement and a Rule 11 agreement after they were signed. CR 495 at fn.2. Let’s assume again, this time that the

emails exist (Morin’s counsel can’t find them in the 100ish pages of

emails attached to Kleinhans’s affidavits): So what? Changing one’s

mind is no evidence of dishonesty. Having second thoughts is so

common an occurrence that it has spawned multiple turns of phrase

— “second thoughts,” for one; “cold feet,” “takebacks,” “buyer’s

remorse,” “l’esprit d’escalier,” for others.

“Trust me; this is right” doesn’t get testimony in when it’s from

an expert. See Pollock, 284 S.W.3d at 818, citing Burrow v. Arce, 997

34

S.W.2d 229, 235 (Tex. 1999). Nor does it get testimony in from lay-

men. See Life Ins. Co. of Va. v.Gar-Dal, Inc., 570 S.W.2d 378, 381–82 (Tex. 1978). It doesn’t get Kleinhans’s testimony in here.

B. Morin acted timely.

Morin’s papers were filed on time, and he set the hearing on his

motion on time — his actions were made timely because he had good

cause for making them when he did. The trial court’s rulings to the

contrary were an abuse of discretion.

If there is good cause to do so, a court can extend deadlines under

the Act. Tex. Civ. Prac. & Rem. Code §§ 27.003, 27.004(a),

(c). While the Act doesn’t define “good cause” for an extension, the Supreme Court has held in similar contexts that “good cause” exists

when even the party’s act or omission “was not intentional or the re-

sult of conscious indifference” and the other party will suffer “no undue delay or otherwise” be injured. In re M.N., 262 S.W.3d 799, 804

(Tex. 2008), quoting Carpenter v. Cimarron Hydrocarbons Corp., 98

S.W.3d 682, 687–88 (Tex. 2002), citing in turn Stelly v. Papania, 927

S.W.2d 620, 622 (Tex. 1996). This test has also been phrased as find-

ing good cause when “a slight excuse” exists and the opposing party

“is not injured[.]” Employers Ins. of Wausau v. Halton, 792 S.W.2d

35

462, 466 (Tex. App. – Dallas 1990, writ denied), cited with approval in

Stelly, 927 S.W.2d at 622 (Tex. 1996).

Morin meets that test for both the exhibits and the hearing. In nei-

ther instance was he intentionally or indifferently disregarding the

case schedule; in both instances, the firm suffered no prejudice.

1. The hearing was timely.

A motion to dismiss under the Act has to be heard by the 60th day

after it is filed, a deadline that good cause allows to be extended to 90

days. Tex. Civ. Prac. & Rem. Code § 27.003(a). While the motion is pending, discovery is stayed. Tex. Civ. Prac. & Rem.

Code § 27.003(c). Morin’s attempts to resolve the parties’ discovery

disputes amicably was good cause to permit that extension here.

Morin’s lawyer attempted, on several occasions over several

months, to reach a discovery agreement so that the parties wouldn’t

have to ask the trial court to referee a discovery fight. See Tex. Lawyer’s Creed, art. III, preamble (“A lawyer owes to opposing

counsel … courtesy, candor, [and] cooperation….); id. at ¶ 8 (“I will

attempt to resolve by agreement my objections to … discovery requests and responses.”). The firm insisted that it was entitled to, and

needed, answers to every request it had propounded. It couldn’t have

been surprised that Morin didn’t send discovery responses; Morin’s

36

counsel said repeatedly that the firm wasn’t entitled to them, so

Morin wasn’t going to give them.

Despite this, the firm never asked the trial court for permission to

take discovery, which the Act specifically allows. Tex. Civ. Prac.

& Rem. Code § 27.006(b). Nor, contrary to its argument that

Morin should have answered the discovery before he filed his motion,

did it ever move to compel Morin’s responses. Even once Day 60

came and went — and, according to the firm’s theory, Morin’s motion (and the attendant stay) went kaput — the firm did nothing.

Morin nonetheless willingly — indeed, voluntarily and gratuitously —

furnished discovery responses on his own that were related to the issues raised in the motion to dismiss. CR 159–173. It wasn’t until

Morin obtained a hearing date for the motion (and the firm detonated

a paperwork bomb of exactly the sort that Morin had hoped to avoid) that the discovery became important enough for the firm to do any-

thing but send emails. Morin’s attempts to reach an amicable resolu-

tion, coupled with the lack of activity from the firm, gave no reason for

Morin to believe that the firm’s discovery stance was anything other

than a negotiating ploy.

And even once Morin set the motion for a hearing on Day 90, the

firm identified no prejudice it would suffer from a hearing after Day

60. The extension — not to mention the extra week that passed be-

cause of the trial court’s recess — in fact gave the firm extra time. The

37

circumstances suggest no prejudice, either; the firm was able to secure

affidavits from the two controverting witnesses on what it claims was to-short notice, and it identified no other testimony that it would have

(or could have) gotten had it had more time. Even if it had done so,

Morin offered to give the firm the time it thought it needed to muster

a response under the Act as long as doing so wouldn’t waive his own

rights under the Act. CR 189.

This behavior — attempts at concord rather than dragging discovery disputes before the court; offers to extend deadlines — is not de-

liberate indifference toward the law’s requirements; it is diligence in

attempting to maintain a professional and courteous relationship. Texas encourages parties to reach agreements rather than subject disputes

to litigation whenever possible; she will not discourage litigants in her

courts from doing the same thing, especially when her legal profession has enjoined its members to do so. The firm took no action. It suffered

nothing. There was good cause to permit the hearing on Day 90, and

the trial court’s ruling to the contrary was error.

2. Morin’s exhibits were timely.

The same reasoning applies to Morin’s exhibits. The motion to

dismiss was due on December 1, the 60th day after Morin was served

with citation and the day that he filed it. Tex. Civ. Prac. & Rem.

Code § 27.003(b). The motion referred to and described Morin’s

38

exhibits; many of them were copies of web pages to which he also fur-

nished hyperlinks. See, e.g., CR 26–27. For Morin to intend to secret the exhibits from examination while simultaneously discussing them,

citing to them, and hyperlinking to them would be odd, to say the

least. It is no wonder that the reason the exhibits were filed two days

later instead of with the motion is simply, as Morin’s counsel attested,

that Morin’s counsel forgot to attach them to the motion. Appx. 2 at

18. This is neither deliberate disregard on conscious indifference.

And, as with the hearing date, the firm wasn’t prejudiced because

the exhibits were filed on December 3 instead of December 1. It had

three months to examine the exhibits before the hearing, two of those months before the firm’s own self-described hearing deadline. Forget-

ting to attach the exhibits and not seeing them for 48 hours did noth-

ing to surprise the firm or prevent it from preparing a response. There was good cause for the trial court to permit the exhibits, and its ruling

to the contrary was error.

C. Morin’s evidence of attorneys’ fees was uncontested, and he is entitled to additional fees and sanctions.

Morin’s lawyer attested to the reasonableness and necessity of his

fees. His affidavit doing so included an itemized statement and was on

file for more than 30 days before the trial court heard the motion to

dismiss. CR 90–93. The firm didn’t file a controverting affidavit with-

in those 30 days. Morin’s evidence of his legal fees as of the time of his

39

motion — fees of $7,723.50 3 — was therefore uncontroverted and suf-

ficient to support a judgment awarding those fees. Tex. Civ. Prac. & Rem. Code § 18.001. The Act requires that he be awarded those

fees. Tex. Civ. Prac. & Rem. Code § 27.009(a)(1). The court

should render judgment doing so.

Morin’s other fees weren’t contested, either, but expecting them

to be contested when they were reported only on the day that the hear-

ing resumed would be unreasonable. See Appx. 2 at 2. The Court should remand so the trial court can determine the appropriate fee to

award. Similarly, the trial court didn’t decide on an appropriate mone-

tary sanction against the firm to deter it (and other subjects of disliked speech) from filing similar suits in the future. That sanction is manda-

tory. Tex. Civ. Prac. & Rem. Code § 27.009(a)(2). The Court

should sever and remand so the trial court can determine the proper fee and sanction awards.

Conclusion

Morin prays that the Court reverse the trial court’s denial of his

motion to dismiss, render judgment dismissing the case and awarding

him $7,723.50 in legal fees, and sever and remand the issue of Morin’s

3 The declaration attested to more fees, but it includes an error: Morin’s lawyer billed for 6.8 hours on December 1. See CR 93.

40

post-motion legal fees and the appropriate sanction to impose against

the firm for filing this suit.

Respectfully submitted, The Olson Firm, PLLC /s/ Leif A. Olson Leif A. Olson State Bar No. 24032801 leif@olsonappeals.com PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 Counsel for appellant Levi Morin

Certificate of Compliance This Brief of Appellant Levi Morin was prepared with Microsoft Word 2013. According to that program’s word-count function, the sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 6,801 words.

/s/ Leif A. Olson

Certificate of Service On June 11, 2015, I served this Brief of Appellant Levi Morin and its Appendix upon the appellee’s counsel by e-filing: Kimberly G. Kleinhans kim@lawofficeofkg.com Law Office of Kleinhans Gruber, PLLC 12600 Hill Country Blvd., Suite R-275 Austin, Texas 78738 (512) 961-8512 /s/ Leif A. Olson

No. 03-15-00174-CV

Third Court of Appeals at Austin

Levi Morin, Appellant, v.

Law Office of Kleinhans Gruber, PLLC, Appellee.

Appeal from the 201st District Court of Travis County Trial Court No. D-1-GN-14-003874

Appendix to Brief of Appellant Levi Morin

Leif A. Olson State Bar No. 24032801 leif@olsonappeals.com The Olson Firm, PLLC PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Appellant Levi Morin

Appendix Contents Document Tab Original and amended Yelp reviews ..................................................... 1 Supplemental Declaration of Leif Olson .............................................. 2 Texas Citizens Participation Act .......................................................... 3 Amended Order on Motion to Dismiss ................................................ 4 Notice of Appeal .................................................................................. 5

Tab 1 Original and amended Yelp reviews CR 49–51; CR 498–500 (original) CR 57–59; CR 503–506 (amended)

Tab 2 Supplemental Declaration of Leif Olson SR __–__ 3/5/2015 12:48:48 PM Velva L. Price District Clerk Travis County No. D-1-GN-14-003874 D-1-GN-14-003874

Law Office of Kleinhans Gruber, PLLC 201st District Court v. Travis County, Texas Levi Morin

Supplemental Declaration of Leif Olson in Support of Morin’s Motion to Dismiss 1. I am in all ways competent to make a declaration, and the facts in this declaration are within my personal knowledge.

2. My State Bar of Texas webpage profile doesn’t mention “defamation ” or “constitutional law” as areas of practice because those aren’t available options. Exhibit N-1 is a true and correct screenshot that I took of the State Bar’s webpage showing the options available to check.

3. I didn’t mention defamation on my campaign website because I didn’t believe that experience in defamation law was an important enough factor to primary voters to spend time on. I didn’t mention my experience with constitutional-law cases because my experience is that people who boast that they are “constitutional lawyers” are simply puffing.

4. I have handled more than a half-dozen defamation and business disparagement claims in my private practice. One of them proceeded to trial, where we dropped the defamation claim before the case was submitted to the jury. Each of the others was disposed of before trial; two of those were disposed of before suit was filed.

5. I live in Humble, not Dallas. I practice in Houston, not Dallas. 6. I don’t produce “form answers” or any other “form” pleadings.

The forms I use in my practice furnish a shell in which I place substance and include reminders of important topics to be included in the particular document. The issues that clients bring to me don’t lend themselves to “form” practice; I individually craft each document that I produce for them. When that crafting consumes time that I consider to be unproductive or in excess of a client’s expectations, I write it off.

7. The invoices attached to this declaration as Exhibits N-2 through N-5 are, save for the redactions, true and correct copies of the invoices I created and sent to Morin in this case. I create these invoices based on rec-

ords I keep in the usual course of my business. It is my practice to make those records at roughly the same time as I perform the tasks. I regularly rely on these records in running my law firm.

8. Each charge listed on each invoice was reasonable and necessary for me to represent Morin in this matter. The only exception is the charge on February 23, 2015, which was for work that was reasonably necessary to represent Morin but wasn’t necessary to achieve a dismissal. The invoices thus reflect reasonable and necessary fees and expenses through February 28, 2015, of $12,195.54. This amount has increased between March 1 and today by my usual hourly rate of $285 per hour.

9. I never got a copy of the “subpoena” that the firm sent to Martin Garza until March 3, 2015, when Kim Kleinhans emailed it to me attached to his affidavit. A true and correct copy of the subpoena and affidavit I received from her are attached as Exhibit N-6.

10. The timeline attached to this declaration as Exhibit N-7 is a true and accurate representation of my communications with Kim Kleinhans and the KG firm throughout this case. It is based on my personal recollections as well as the records I make in the usual course of business of my practice, 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 declaration are true and correct.

Signed in Harris County, Texas, on March 5, 2015.

Leif A. Olson

D-1-GN-14-003874, Kleinhans Gruber v. Morin Page 2 Supplemental Decl. of Leif Olson Supporting Morin’s Mot. to Dismiss

Exhibit N-1

Invoice No. 036-1

December 4, 2014

Levi Morin Matter: SLAPP case by Kleinhans Gruber 165 South Guadalupe #222 Firm matter number: 1419 San Marcos, Texas 78666

for services through December 3, 2014

Legal work

Date Task Hours Amount

10/7/2014 Review petition; review correspondence; draft initial letter 1.8 513.00 responding to lawsuit; correspond with client regarding interactions with KG firm; set deadlines on calendar; outline special motion to dismiss.

10/27/2014 Draft answer and special exceptions; telephone conference with 3.3 940.50 K. Kleinhans regarding special exceptions; edit answer to delete special exceptions; research local rules regarding filings, submissions, and assignment of proceeding to single judge; revise letter regarding response to lawsuit; file and serve answer; review correspondence from K. Kleinhans; send letter response to lawsuit.

11/25/2014 Research cases on business disparagement and defamation per se; 3.1 883.50 draft fact section of motion to dismiss; begin to draft standard section of motion.

11/26/2014 Research additional defamation and disparagement cases; draft 2.8 798.00 argument, fact, and standards section of motion.

11/29/2014 Research damages available in defamation cases and standards for 5.1 1453.50 awards; revise fact section; continue drafting argument section.

11/30/2014 Continue drafting argument section; begin revisions and editing; 4.2 1197.00 draft affidavits.

PMB 188 • 4830 WILSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396 INVOICING@OLSONAPPEALS.COM • (281) 849-8382

Exhibit N-2

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-1 For services through December 3, 2014

12/1/2014 Complete first round of revisions to brief; continue revisions to 6.8 1938.00 brief; gather exhibits to motion; finalize affidavits; finalize, file, and serve brief.

12/3/2014 Finalize and file revised version of motion with attachments and 0.3 85.50 proposed order.

write off of fees for refiling motion to dismiss -0.3 -85.50

Total legal work this invoice 27.1 $7,723.50

Expenses

Date Expense Amount

10/27/2014 Filing fee (answer) 2.21

12/1/2014 Filing fee (motion to dismiss) 2.21

12/3/2014 Filing fee (motion to dismiss) 2.21

write off of fee for refiling motion to dismiss -2.21

Total expenses for this invoice $ 4.42

Totals Items Date Amount Balance Total for this invoice 12/5/2014 7,727.92 7,727.92 Outstanding balance 0 0 Payments received 0 0 Payments deducted from 12/4/2014 2,032.50 5,695.42 trust account Total amount now due $ 1,032.50

Please note on your check that your payment is for Invoice 036-1.

DECEMBER 4, 2014 PAGE 2 OF 3

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-1 For services through December 3, 2014

Trust Statement

Date Transaction Amount 11/6/2014 Deposit of retainer 2,500.00

12/4/2014 Payment of fees for Invoice 36-1 -2,032.50

Trust account balance $ 467.50

Payment required to replenish deposit $ 1,032.50

DECEMBER 4, 2014 PAGE 3 OF 3

Invoice No. 036-2

January 5, 2015 Levi Morin Matter: SLAPP case by Kleinhans Gruber 165 South Guadelupe #222 Firm matter number: 1419 San Marcos, Texas 78666

for services from December 4, 2014, through December 31, 2014

Legal work

Date Task Hours Amount 12/8/2014 Telephone conference with client ;

compose email to client . 0.3 85.50 12/18/2014 Follow-up emails with client . 0.1 28.50

12/22/2014 Correspond with K. Gruber on response to settlement offer, counter-offer, dates for hearing, client's outstanding fees, discovery responses, KG's nonsuit, and results of nonsuit. 1.4 399.00

12/30/2014 Respond to KG settlement offer; check court schedule for dates to argue motion to dismiss; send email to K. Gruber seeking dates for motion to dismiss. 0.3 85.50

12/31/2014 Review correspondence from KG regarding dates unavailable for trial or hearings. 0.1 28.50

Total legal work this invoice 2.2 $ 627.00

Totals Items Date Amount Balance Total for this invoice 1/4/2015 627.00 627.00 Outstanding balance Invoice 036-1: 12/5/2014 5,695.42 6,322.42 Payments deducted from 1/4/2015 165.00 6,157.42 trust account Total amount now due $ 0.00

PMB 188 • 4830 WILSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396 INVOICING@OLSONAPPEALS.COM • (281) 849-8382

Exhibit N-3

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-2

Trust Statement Date Transaction Amount 12/4/2014 Balance as of Invoice 036-1 467.50 12/11/2014 Deposit replenishment 1032.32 1/4/2015 Payment for Invoice 036-2 -165.00 Trust account balance $1,334.82 Payment required to replenish deposit $ 165.18

Please mail payment to:

The Olson Firm, PLLC Tax ID No. XX-XXXXXXX

PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396

JANUARY 5, 2015 PAGE 2 OF 3

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-2

JANUARY 5, 2015 PAGE 3 OF 3

Invoice No. 036-3

February 3, 2015 Levi Morin Matter: SLAPP case by Kleinhans Gruber 165 South Guadelupe #222 Firm matter number: 1419 San Marcos, Texas 78666

for services from January 1, 2015, through January 31, 2015

Legal work

Date Task Hours Amount

1/6/2015 Telephone conference with Disciplinary Counsel’s office regarding complaints against KG; correspond with client regarding ; review correspondence from K. Kleinhans regarding discovery and hearing dates. 0.3 85.50

1/19/2015 Schedule telephone conference with K. Kleinhans. 0.1 28.50

1/28/1930 Telephone conference with K. Kleinhans regarding hearings and discovery. 0.3 85.50

1/30/2015 Draft responses to discovery requests. 1.5 427.50

Total legal work this invoice 2.2 $ 627.00

Totals Items Date Amount Balance Total for this invoice 2/3/2015 627.00 627.00 Total amount due $75/hr * 165.00 2.2hr Payments deducted from 2/3/2015 165.00 462.00 trust account Outstanding balance January 4, 2015 6,157.42 6,619.42 Invoice 036-2 Total remaining balance 6,619.42

PMB 188 • 4830 WILSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396 INVOICING@OLSONAPPEALS.COM • (281) 849-8382

Exhibit N-4

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-3

Trust Statement Date Transaction Amount 1/4/2015 Balance as of Invoice 036-2 1,334.82 1/16/2015 Deposit replenishment 165.18 2/3/2015 Payment for Invoice 036-3 -165.00 Trust account balance $1,335.00 Payment required to replenish deposit $ 165.00

Please mail payment to:

The Olson Firm, PLLC Tax ID No. XX-XXXXXXX

PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396

FEBRUARY 3, 2015 PAGE 2 OF 2

Invoice No. 036-4

March 3, 2015 Levi Morin Matter: SLAPP case by Kleinhans Gruber 165 South Guadelupe #222 Firm matter number: 1419 San Marcos, Texas 78666

for services from February 1, 2015, through February 28, 2015

Legal work

Date Task Hours Amount 2/13/2015 Compile discovery responses; redact privileged information from bills; finalize edits to discovery responses; compose correspondence to K. Kleinhans; confirm available dates for hearing on motion; review local rules for hearing dates and announcements; check KG vacation letter to discover several dates are off-limits; draft notice of hearing; file and serve notice of hearing; serve discovery on opposing counsel; complete revisions to correspondence to K. Kleinhans and send. 4.0 1140.00 2/13/2015 Write-off for additional time expended because of unfamiliarity with local rules -1.3 -370.50

2/15/2015 Correspondence with K. Gruber regarding settings and motions. 1.1 313.50

2/17/2015 Hearing on KG’s motion for continuance. 3.5 997.50

2/18/2015 Review KG’s first and second amended motions to strike etc.;

review correspondence from K. Kleinhans; compose and send response to K. Kleinhans. 5.6 532.00

2/18/2015 Review KG’s first and second amended motions to strike etc.;

review correspondence from K. Kleinhans; compose and send response to K. Kleinhans. 2.1 598.50 2/18/2015 Write off — excess time editing correspondence. -0.4 -114.00

2/23/2015 ; send case update and settlement offer to client. 2.5 712.50

2/23/2015 Write-off: No charge for case updates -0.5 -142.50

PMB 188 • 4830 WILSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396 INVOICING@OLSONAPPEALS.COM • (281) 849-8382

Exhibit N-5

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-4

Date Task Hours Amount 2/27/2015 Travel to/from Austin for hearing on motion to dismiss. 5.6 532.00 2/27/2015 Write off: No billing for travel when work conducted during travel. -5.6 -532.00

Total legal work this invoice 16.6 $3,667.00

Expenses

Date Expense Amount 2/17/2015 Mileage to/from Austin for hearing on KG’s motion for continuance. 193.20 2/17/2015 Tolls to/from Austin for hearing on KG’s motion for continuance. 2.90

2/17/2015 Meals for travel to/from Austin for KG’s motion for continuance. 23.20

2/17/2015 Write off: No travel expenses when travel is billed. -219.30

2/17/2015 Parking for hearing on KG’s motion for continuance. 10.00

2/27/2015 Mileage to/from Austin for hearing on KG’s motion for continuance. 193.20 2/27/2015 Tolls to/from Austin for hearing on motion to dismiss. 2.90

2/27/2015 Parking for hearing on motion to dismiss. 2.00

2/27/2015 Other clients’ share of travel expenses. -98.05 Total expenses for this invoice $ 110.05

Totals Items Date Amount Balance Total for this invoice 3/3/2015: Fees 3,667.00 3,783.62 3/3/2015: Expenses 110.05 Total amount due Fees: $75/hr * 16.6/hr 1,245.00 1,355.05 Expenses 110.05 Payments deducted from 3/3/2015 1,355.05 2,428.57 trust account Outstanding balance February 3, 2015 6,619.42 9,047.99 Invoice 036-3 Total remaining balance 9,047.99

MARCH 3, 2015 PAGE 2 OF 3

THE OLSON FIRM, PLLC Levi Morin Tax ID No. XX-XXXXXXX Invoice No. 036-4

Trust Statement Date Transaction Amount 2/3/2015 Balance as of Invoice 036-2 1,335.00 2/15/2015 Deposit replenishment 165.00 2/3/2015 Payment for Invoice 036-4 -1,355.05 Trust account balance $ 164.95 Payment required to replenish deposit $ 1,355.05

Please mail payment to:

The Olson Firm, PLLC Tax ID No. XX-XXXXXXX

PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396

MARCH 3, 2015 PAGE 3 OF 3

Exhibit N-6

Date Event 10/27/14 Olson calls the firm to introduce himself and state that he is representing Morin. He leaves a voice message asking if the firm would consider putting a hold on discovery 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 opportunity cost pursuing claims that Morin will ask be dismissed under the Act. He notes that a TCPA motion will stay discovery . He closes by asking for a quick response and quick negotiations because the deadline to file a TCPA 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 serious 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 TCPA dismissal.

10/31/14 Olson informs Kleinhans that Morin declines the settlement offer. He states that he will look over the discovery to see if there will be objections and asks Kleinhans for dates in December when a TCPA hearing 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.

D-1-GN-14-003874, Kleinhans Gruber v. Morin Page 1 Timeline Exhibit N-7 12/4/14 Kleinhans emails that the recent circumstances and the firm’s incredibly full docket have led it to agree to a nonsuit 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 TCPA 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 nonsuits 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 responds to disagree and sends citations to cases to support 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.

D-1-GN-14-003874, Kleinhans Gruber v. Morin Page 2 Timeline 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 January 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 reschedule 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 discovery and that Morin doesn’t intend to respond to it, but he is happy to discuss an agreement for limited production. Kleinhans follows up the conversation with an email 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 February 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 papers. It sets a hearing for February 17.

D-1-GN-14-003874, Kleinhans Gruber v. Morin Page 3 Timeline 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.

D-1-GN-14-003874, Kleinhans Gruber v. Morin Page 4 Timeline

Tab 3 Texas Citizens Participation Act Chapter 27, Texas Civil Practices & Remedies Code

Chapter 27. Actions involving the exercise of certain constitutional rights

Sec. 27.001. Definitions. In this chapter:

(1) “Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.

(2) “Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests. (3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern. (4) “Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding; (ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity; (vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or (ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and (E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

(5) “Governmental proceeding” means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government. (6) “Legal action” means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief. (7) “Matter of public concern” includes an issue related to:

(i) health or safety; (ii) environmental, economic, or community well-being; (iii) the government; (iv) a public official or public figure; or (v) a good, product, or service in the marketplace.

(8) “Official proceeding” means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant. (9) “Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person’s duties: (A) an officer, employee, or agent of government; (B) a juror; (C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; (D) an attorney or notary public when participating in the performance of a governmental function; or (E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

Sec. 27.002. Purpose. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Sec. 27.003. Motion to dismiss. (a) If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.

(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

Sec. 27.004. Hearing. (a) A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, 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, except as provided by Subsection (c).

(b) In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take judicial notice that the court’s docket conditions required a hearing at a later date, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).

(c) If the court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than 120 days after the service of the motion under Section 27.003.

Sec. 27.005. Ruling. (a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. (c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.

(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim.

Sec. 27.006. Evidence. (a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.

(b) On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

Sec. 27.007. Additional findings. (a) At the request of a party making a motion under Section 27.003, the court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that subsection is made.

Sec. 27.008. Appeal. (a) If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.

(c) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1042, Sec. 5, eff. June 14, 2013.

Sec. 27.009. Damages and costs. (a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

(b) 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.

Sec. 27.010. Exemptions. (a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.

(b) This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

(c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.

(d) This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract.

Sec. 27.011. Construction. (a) This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.

(b) This chapter shall be construed liberally to effectuate its purpose and intent fully.

Tab 4 Amended Order on Motion to Dismiss CR 739

DC BK15090 PG998 Filed in The District Court of Travis County, Texas ( /} MAR 26 2015 v ()

No. D-1-GN-14-003874 At Lf; 2/){J M.

Velva L. Price, District dlerk Law Office of Kleinhans Gruber, PLLC 201 st 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' objections ; the evidence; and counsel's argument. Based upon that consideration , 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 exceptions indicating the hearing can be set later 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 Kleinhans , Martin Garza, and Michael Siegler; 5. Finds that Kleinhans Gruber established, by clear and specific evidence , a prima facie case for defamation and business disparagement 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 element of an affirmative defense by a preponderance of the evidence; and

7. Denies Morin's motion to dismiss.

Signed on March 261h, 2015, at Austin, Texas.

Case# D-1-GN-14-003874

11111111111111111 111111111111111 IIIII 11111111111111 1111 003954108 739

Tab 5 Notice of Appeal CR 735

735

3/6/2015 8:40:06 PM Velva L. Price District Clerk Travis County No. D-1-GN-14-003874 D-1-GN-14-003874

LAW OFFICE OF KLEINHANS GRUBER, PLLC' Plaintiff, 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 denied 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

/sf Leif A. Olson Leif A. Olson

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

/sf Leif A. Olson