Preview
FILED
DALLAS COUNTY
1/1 5/2020 6:04 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE N0. DC—18—05517 Debra Clark
JASON MARTINEZ § IN THE DISTRICT COURT
PLAINTIFF §
§
§
V. § 101st JUDICIAL DISTRICT
§
§
JOHN SHERMAN §
Defendant. § 0F DALLAS COUNTY, TEXAS
FOR DE NOVO HEARING ON DEFENDANT’S NO EVIDENCE MOTION FOR
SUMMARY JUDGMENT PURSUANT TO OMNIBUS ORDER OF REFERAL
Plaintiff, Jason Martinez, again asks the Court t0 deny defendant John Sherman’s n0 evidence
motion for summary judgment.
INTRODUCTION
1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious
Interference with Existing Contract and Malicious Criminal Prosecution.
2. Defendant answered asserting a general denial and the following affirmative defenses and
specific denials; plaintiff’s claims are completely 0r partially barred as the damages, if any, were
caused by his own actions or omissions, plaintiff’s claims are precluded by the Texas Citizens
Participation Act (“TCPA”), plaintiff fails to state a claim upon Which relief can be granted, no act
or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained.
3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’ s response to
this motion, plaintiff included/attached 26 pages 0f documents/evidence, attached to this response as
Plaintiff’s Exhibit A. Defendant’s Motion was denied 0n August 21, 2018, see this Court’s Order
Attached as Exhibit B.
PAGE 1
4. Defendant in yet another attempt to delay this case has filed a baseless counter-claim, which
contains additional false and defamatory statements regarding Jason.
5. Defendant also filed a No Evidence Motion for Summary Judgment that was heard and
concluded by Judge McFarlin on December 17, 2019 and her decision was rendered on December 20,
2019. In her decision she denied defendant’s no evidence summary judgment motion as to Plaintiff’s
claims for defamation and tortious interference with a contract after denying defendant’s additional
motions to strike plaintiff’s response and the affidavits of plaintiff, Elan Zonis and Chris Stone,
Defendant’s counsel, who happens to also be his spouse, then filed this request for a de novo hearing
on their failed No Evidence motion for summary judgment.
BACKGROUND
6. On April 7, 2016, Plaintiff and Elan Zonis (“Zonis”) entered into a LLC
membership agreement in which they were 50/50 equity members in Bavarian AS, LLC d/b/a
Bavarian Auto Sports (“Bavarian”). Plaintiff was named as President for this business and was the
day to day manager of this auto dealership. Bavarian began business and in November, 2016
Plaintiff and Zonis began discussions of a potential buyout of Zonis. (see plaintiff’s Exhibit A, pgs.
8, 13-17.)
7. At that same time Plaintiff had discussions with Defendant concerning Defendant
contributing $350,000.00 into Bavarian’s operating account, in return Defendant would be given a
15% equity share of Bavarian. It was further agreed that after this contribution by Defendant, Zonis
would be bought out of his membership share of Bavarian, resulting in Plaintiff having a 85%
membership share and defendant a 15% membership share in Bavarian. However, Defendant failed
to deposit the agreed $350,000.00 into the operating bank account of Bavarian, Defendant only
deposited $150,000.00 into the Bavarian operating account, and deposited the other $200,000.00
into Defendant’s personal account.(see affidavit of Elan Zonis
PAGE 2
in plaintiff’s Exhibit A. pg. 32).
8. Plaintiff began training Defendant in the operations of the dealership and
Defendant was added as a signatory on Bavarians’ operating bank account. By March of 2017,
Zonis was having second thoughts of being bought out and leaving Bavarian. On April 1, 2017
Defendant wrote an unauthorized check in the amount of $20,000.00 drawn on Bavarian’s
operating account. In order to cover up this unauthorized check, Defendant made multiple
defamatory statements to Zonis, company investors and others that Plaintiff had written this
check and embezzled the funds. Plaintiff of course denied these false and malicious accusations
made by defendant, see affidavits of plaintiff, Elan Zonis and copy of check and bank records
in plaintiff’s Exhibit A, pgs. 8-12, 23-24, and affidavit of Chris Stone, attached as Plaintiff’s
Exhibit C., pgs. 35-38)
9. Based on these intentional, malicious defamatory statements, without fully
investigating these false accusations, Zonis expelled Plaintiff from Bavarian on 4/11/2017 with
no compensation for Plaintiff’s membership interest in Bavarian, or for Plaintiff’s and Angela
Yaun’s sweat equity that had greatly benefitted Bavarian, see plaintiff’s affidavit in Plaintiff’s
Exhibit A. pgs. 18-19).
10. Compounding Plaintiff’s wrongful expulsion from Bavarian, based on the false
statements of defendant, was the filing of malicious unfounded criminal charges against Plaintiff
in May, 2017. Defendant also intentionally and with malice made these same false allegations
against Plaintiff directly to the District Attorney’s office. Defendant has also continued to harass
Plaintiff with threatening calls and messages since the time he made the false criminal allegations
against Plaintiff. These false criminal charges remained pending and hanging over Plaintiff and
PAGE 3
his family until his recent full exoneration, see plaintiff’s affidavit and affidavit of Elan Zonis in
Plaintiff’s Exhibit A, pgs. 8-12, 32-33, and affidavit of Chris Stone in Plaintiff’s Exhibit C. pgs.
35-38.
11. But the defendant did not stop with providing the basis for false criminal charges
against Plaintiff, defendant throughout 2017 and into 2018 has continued to publish his false,
malicious defamatory statements against plaintiff throughout the local auto dealer community,
including false statements to individual dealerships that plaintiff had applied to and had initial
positive interviews, only to be denied the positions without any explanation, see plaintiff’s
affidavit, affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12 and 32-33 and affidavit of Chris
Stone in Plaintiff’s Exhibit C, pgs. 35-38.. These continued defamatory statements by defendant
regarding the plaintiff made it impossible for plaintiff to find gainful employment for a substantial
period of time, thus causing plaintiff to lose wages and benefits (including medical benefits, vital
for the care of his special needs daughter, see affidavit of plaintiff in Plaintiff’s Exhibit A, pgs. 8-
12.
12. Defendant both perjured himself and further defamed plaintiff with false
statements and allegations against Jason, contained within his affidavit that was attached to his
failed motion to dismiss under the TCPA., see plaintiff’s Exhibit D. pgs. 39-40. His allegations of
Jason making an unauthorized purchase of a BMW being clearly refuted by plaintiff, Elan Zonis and
Chris Stone, see Exhibits A, pgs. 32-33 and Exhibit C., pgs. 35-38 Defendant admits to making
statements against Jason within defendant’s affidavit, attached as Exhibit D, pgs. 39-40.
PAGE 4
ARGUMENT
13. Plaintiff/respondent would first incorporate by reference to be included in this
response, his Second Amended Response to Defendant’s No-Evidence Motion for Summary
Judgment and has attached it to this response as Plaintiff’s Exhibit A. All arguments, exhibits and
evidence respondent again offers it to be entered by the Court and considered by the Court in their
rendering their decision.
14. Plaintiff/respondent objects to the six pages of “relevant facts” submitted by
defendant/movant on the grounds that it was not part of their original No Evidence Motion for
Summary Judgment and cannot now be entered, furthermore it is all improper hearsay lacking proper
foundation, authentication and is irrelevant as to defendant/movant’s No Evidence Motion for
Summary Judgment, and therefore should be stricken and not considered by the Court.
15. Plaintiff/movant also objects to the exhibits attached to Defendant/movant’s Motion for
De Novo hearing also on the basis of inadmissible hearsay, documents that are lacking foundation a
and authentication and are improper to be attached to a No Evidence Motion for Summary Judgment.
16. Plaintiff/movant and their counsel would vehemently deny defendant/movant and their
counsel’s further defamatory and baseless allegations of intentionally manipulation and deceiving the
Court, as contained within paragraph 20 of their motion, where they state the following; “ the act of
intentionally manipulating and deceiving the Court should not be overlooked. Disciplinary Rule
8.04(a)(3) states: "[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.". The email they reference was not intentionally redacted, as the copy of the same
PAGE 5
exact check, dated 4/ 1/2017 that was omitted from this email was included, (see page 23 of
Plaintiff/respondent’s 2nd Amended Response attached t0 this response as Plaintiff’ s Exhibit A) and is
fully addressed by Elan Zonis, Chris Stone, and Plaintiff in their affidavits. As was the fact that
plaintiff was fully exonerated of any misconduct in his time With Bavarian, as also established by the
affidavits of Elan Zonis, Chris Stone and the plaintiff.
CONCLUSION
17. Plaintiff has provided evidence more than sufficient t0 raise a fact issue of each
element of his three claims against defendant and therefore defendant’s No Evidence Motion
for Summary Judgment in this requested De Novo review should again be denied.
PRAYER
16. For these reasons, plaintiff asks the Court to again deny defendant’s no evidence motion
for summary Judgment under the Court’s De Novo review
Respectfully submitted, By:s//Bradlev D. Harrison
Bradley D. Harrison
Texas Bar No.24042345
83 1 8 Trail Lake Dr.
Rowlett, Texas 75088
Tel. (972) 412-5041
Fax. (214) 607-1729
rowlettattorney@gmail.com
Attorney for Plaintiff Jason Martinez
Certificate of Service
I copy 0f the above was served on Plaintiff’ s attorney of
certify that a true
record 0r party in accordance with the Texas Rules 0f Civil Procedure 0n January 15, 2020
/s/Bmdley D. Harrison
Bradley D. Harrison
Attorney for Plaintiff, Jason Martinez
PAGE 6
CAUSE NO. DC-18-05517
JASON MARTINEZ § IN THE DISTRICT COURT
PLAINTIFF §
§
§
V. § 101st JUDICIAL DISTRICT
§
§
JOHN SHERMAN §
Defendant. § OF DALLAS COUNTY, TEXAS
PLAINTIFF’S SECOND AMENDED RESPONSE TO DEFENDANT’S
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Jason Martinez, asks the Court to deny defendant John Sherman’s n0 evidence motion
Plaintiff,
for summary judgment.
INTRODUCTION
1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious
Interference with Existing Contract and Malicious Criminal Prosecution.
2. Defendant answered asserting a general denial and the following affirmative defenses and
specific denials; plaintiffs claims are completely 0r partially barred as the damages, if any, were
caused by his own actions 0r omissions, plaintiff’s claims are precluded by the Texas Citizens
Participation Act (“TCPA”), plaintiff fails to state a claim upon which relief can be granted, n0 act
or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained.
3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’s response to
this motion, plaintiff included/attached 26 pages of documents/evidence, attached t0 this response as
Plaintiff’s Exhibit A. Defendant’s Motion was denied on August 21, 2018, see this Court’s Order
Attached as Exhibit B.
PLAINTIFF’S 2NDt. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 1
PLAINTIFFS EXHIBIT A
BACKGROUND
4. On April 7, 2016, Plaintiff and Elan Zonis (“Zonis”) entered into a LLC
membership agreement in which they were 50/50 equity members in Bavarian AS, LLC d/b/a
Bavarian Auto Sports (“Bavarian”). Plaintiff was named as President for this business and was
the day to day manager of this auto dealership. Bavarian began business and in November, 2016
Plaintiff and Zonis began discussions of a potential buyout of Zonis. (see plaintiff’s Exhibit A,
pgs. 8, 13-17.)
5. At that same time Plaintiff had discussions with Defendant concerning Defendant
contributing $350,000.00 into Bavarian’s operating account, in return Defendant would be given
a 15% equity share of Bavarian. It was further agreed that after this contribution by Defendant,
Zonis would be bought out of his membership share of Bavarian, resulting in Plaintiff having a
85% membership share and defendant a 15% membership share in Bavarian. However,
Defendant failed to deposit the agreed $350,000.00 into the operating bank account of Bavarian,
Defendant only deposited $150,000.00 into the Bavarian operating account, and deposited the
other $200,000.00 into Defendant’s personal account.(see affidavit of Elan Zonis
in plaintiff’s Exhibit A. pg. 32).
6. Plaintiff began training Defendant in the operations of the dealership and
Defendant was added as a signatory on Bavarians’ operating bank account. By March of 2017,
Zonis was having second thoughts of being bought out and leaving Bavarian. On April 1, 2017
Defendant wrote an unauthorized check in the amount of $20,000.00 drawn on Bavarian’s
operating account. In order to cover up this unauthorized check, Defendant made multiple
defamatory statements to Zonis, company investors and others that Plaintiff had written this
PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 2
check and embezzled the funds. Plaintiff of course denied these false and malicious accusations
made by defendant, see affidavits of plaintiff, Elan Zonis and copy of check and bank records
in plaintiff’s Exhibit A, pgs. 8-12, 23-24, and affidavit of Chris Stone, attached as Plaintiff’s
Exhibit C., pgs. 35-38)
7. Based on these intentional, malicious defamatory statements, without fully
investigating these false accusations, Zonis expelled Plaintiff from Bavarian on 4/11/2017 with
no compensation for Plaintiff’s membership interest in Bavarian, or for Plaintiff’s and Angela
Yaun’s sweat equity that had greatly benefitted Bavarian, see plaintiff’s affidavit in Plaintiff’s
Exhibit A. pgs. 18-19).
8. Compounding Plaintiff’s wrongful expulsion from Bavarian, based on the false
statements of defendant, was the filing of malicious unfounded criminal charges against Plaintiff
in May, 2017. Defendant also intentionally and with malice made these same false allegations
against Plaintiff directly to the District Attorney’s office. Defendant has also continued to harass
Plaintiff with threatening calls and messages since the time he made the false criminal allegations
against Plaintiff. These false criminal charges remained pending and hanging over Plaintiff and his
family until his recent full exoneration, see plaintiff’s affidavit and affidavit of Elan Zonis in
Plaintiff’s Exhibit A, pgs. 8-12, 32-33, and affidavit of Chris Stone in Plaintiff’s Exhibit C. pgs.
35-38.
9. But the defendant did not stop with providing the basis for false criminal charges against
Plaintiff, defendant throughout 2017 and into 2018 has continued to publish his false, malicious
defamatory statements against plaintiff throughout the local auto dealer community, including false
statements to individual dealerships that plaintiff had applied to and had initial
PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 3
positive interviews, only to be denied the positions without any explanation, see plaintiff’s
affidavit, affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12 and 32-33 and affidavit of Chris
Stone in Plaintiff’s Exhibit C, pgs. 35-38.. These continued defamatory statements by defendant
regarding the plaintiff made it impossible for plaintiff to find gainful employment for a substantial
period of time, thus causing plaintiff to lose wages and benefits (including medical benefits, vital
for the care of his special needs daughter, see affidavit of plaintiff in Plaintiff’s Exhibit A, pgs. 8-
12.
10. Defendant both perjured himself and further defamed plaintiff with false statements and
allegations against Jason, contained within his affidavit that was attached to his failed motion to
dismiss under the TCPA., see plaintiff’s Exhibit D. pgs. 39-40. His allegations of Jason making an
unauthorized purchase of a BMW being clearly refuted by plaintiff, Elan Zonis and Chris Stone,
see Exhibits A, pgs. 32-33 and Exhibit C., pgs. 35-38 Defendant admits to making statements
against Jason within defendant’s affidavit, attached as Exhibit D, pgs. 39-40.
SUMMARY-JUDGMENT EVIDENCE
11. To support the facts in this response, plaintiff offers the following summary-judgment
evidence attached to this response and incorporates the evidence into this response by reference.
Exhibit A: affidavit of Plaintiff, copy of check executed by John Sherman for $20,000.00
and respective bank records, affidavit of Elan Zonis.
Exhibit B: Order denying defendant’s motion to dismiss under the TCPA.
Exhibit C: affidavit of Chris Stone
Exhibit D: affidavit of defendant filed in his unsuccessful motion to dismiss under the
TCPA.
PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 4
ARGUMENT
Plaintiff has sufficient evidence to raise fact issue on his cause of action.
12. In a no-evidence motion for summary judgment, a defendant can challenge a plaintiff to
produce evidence to support one or more elements of the plaintiff’s cause of action on which the
plaintiff would have the burden of proof at trial after an adequate time for discovery has passed.
Tex. R. Civ. P. 166a(i). To avoid a no-evidence summary judgment, the plaintiff is not required to
marshal its proof; the plaintiff only needs to point out evidence that raises a fact issue on the
elements challenged in the defendant’s motion. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.
2008). To raise a genuine issue of material fact, the plaintiff must produce more than a scintilla of
evidence in support of the challenged elements. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.
2009); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of
evidence is produced if the evidence is sufficient to allow reasonable and fair-minded people to
differ in their conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In evaluating whether more than a scintilla of
evidence exists, the court must view the evidence in the light most favorable to the plaintiff,
crediting evidence favorable to the plaintiff if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009).
13. Defendant alleged that there is no evidence supporting essential elements of plaintiff’s
cause of action for defamation. The elements of the cause of action are the following: defendant
published a statement of fact, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25
in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone,
paragraphs 3,5,6,8 and 10 pg.s 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 39-40,
the statement referred to the plaintiff, see affidavit of Jason Martinez, paragraphs, 2, 8, 12,
PLAINTIFF’S 2nd. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 5
14,16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of
Chris Stone, paragraphs 3,5,6,8 and 10 pgs. 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6
pgs. 39-40, the statement was defamatory, see affidavit of Jason Martinez, paragraphs, 2, 8, 12,
14. 16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of
Chris Stone, paragraphs 3,5,6,8 and 10 pgs.35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6
pgs. 38-40, the statement was false, see affidavit of Jason Martinez, paragraphs 2,3,4,6,8,21,22, 24
and 25, pgs.8-11, $20,000.00 check, pg.23, company bank statement, pg.24, affidavit of Elan Zonis,
paragraphs 2, pg. 32, affidavit of Chris Stone, paragraph 10, pgs. 37-38, with regard to the truth of
the statement, the Defendant was acting with actual malice, negligent or liable without regard
to fault, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25 in pages 8-11, affidavit
of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10
pgs.35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 39-40, plaintiff suffered pecuniary
injury, see affidavit of Jason Martinez, paragraphs 2 and 25, pgs. 8-11, affidavit of Elan Zonis,
paragraph 2, pg.32, see affidavit of Chris Stone, paragraph 6, pg. 36, minutes of company expelling
Jason Martinez, pg. 18. Defendant alleged that there is no evidence supporting elements of
plaintiff’s cause of action for tortious interference with a contract claim. The elements of this cause
of action are the following; plaintiff had a valid contract,, see affidavit of Jason Martinez,
paragraph 2, pg.8, Certificate of Formation for Bavarian AS, LLC, pgs.15-17, defendant willfully
and intentionally interfered with the contract, see affidavit of Jason Martinez, paragraphs, 2, 8,
12, 14. 16 and 25 in pgs. 8-11 affidavit of Elan Zonis, paragraphs 2 and 4, pgs.32-33, affidavit of
Chris Stone, paragraphs 3,5,6,8 and 10 pg.s 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6
pgs.39-40, the interference proximately caused the Plaintiff’s injury, see affidavit of Jason
Martinez, paragraphs, 2 and 25, pgs.8-11 , see company minutes expelling Jason,
PLAINTIFF’S 2nd. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 6
pgs.18-19, see affidavit of Elan Zonis, paragraph 2, pg. 32, plaintiff incurred actual damages or
loss. see affidavit of Jason Martinez, paragraph 2 and paragraph 25, pgs. 8-11. Once again
Defendant contends that there is no evidence to support any of these elements.
Defendant alleged that there is no evidence supporting essential elements of plaintiff’s claim for
criminal malicious prosecution. Plaintiff/Respondent would ask that this element of Defendant’s No
Evidence motion for summary judgment be denied on its face. Defendant mistakenly states there is
no evidence as to the elements of malicious prosecution for a civil proceeding, where it is clear
within Plaintiff’s pleadings that Jason is claiming malicious prosecution for a criminal proceeding,
which has different elements than malicious prosecution within a civil proceeding. If however the
Court allows this portion of defendant’s motion to proceed, plaintiff/respondent would argue that
based on the above discussed evidence and the copy of the criminal complaint against plaintiff,
attached to Defendant’s motion to strike, that plaintiff has provided much more than a scintilla of
evidence for each element of malicious prosecution of a criminal proceeding.
The Court should deny defendant’s no-evidence motion for summary judgment because plaintiff has
produced sufficient evidence, as laid out above, to raise a fact issue on each element of all claims of
plaintiff challenged by defendant. The evidence discussed above by plaintiff and attached to his
response and incorporated by reference to his response, is more than sufficient evidence to raise a
fact issue on all elements of each claim made by plaintiff.
14. Defendant/movant in their Motion to Strike Plaintiff’s entire response, also included a motion to
strike the affidavits of Jason Martinez, Elan Zonis and Chris Stone, and the copy of the check
executed by Defendant. Excluding Chris Stone’s affidavit all evidence and exhibits offered by
plaintiff/respondent has been previously offered and accepted by the Court and is now a part of the
official Court records of this case as Plaintiff/Respondent in their response to defendant’s
PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 7
unsuccessfiJI motion to dismiss plaintiff’ s claims under the Texas Citizen Participation Act that was
heard and denied back in August of 2018, offered this exact evidence, Without obj ection by defendant.
Therefore is should be accepted by the Court in this latest proceeding. In addition,
plaintiff/respondent’s affidavits verify and corroborate the substance of the other affidavit. If there is
any obj ectionable hearsay, the remaining statements contained Within each affidavit, pertaining to each
element of plaintiff’s claims provide a factual base for each element of plaintiff/respondent’s claims
and therefore should be considered by the Court, see Moya . v.O’brien, 618 S.W.2d at 893.
CONCLUSION
15. Plaintiff has provided evidence more than sufficient t0 raise a fact issue of each element of
his three claims against defendant and therefore defendant’s N0 Evidence Motion for
Summary Judgment should be denied.
PRAYER
16. For these reasons, plaintiff asks the Court to deny defendant’s n0 evidence motion for summary
judgment.
Respectfully submitted, By:s//
Bradley D. Harrison
firm HWVW D.
Texas Bar N0. 24042345
83 1 8 Trail Lake Dr.
Rowlett, Texas 75088
Tel. (972) 412-5041
Fax. (214) 607-1729
rowlettattorney@gmail.com
Attorney for Plaintiff Jason Martinez
Certificate 0f Service
I copy 0f the above was served on Plaintiff s attorney of record or
certify that a true
party in accordance with the Texas Rules 0f Civil Procedure 0n December 16, 2019
/s/ 31/01de D. flm/nzon/
Bradley D. Harrison
Attorney for Plaintiff, Jason Martinez
PLAINTIFF’S 2NDt. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 8
CAUSE N0. DC-18-055 17
JASON MARTINEZ § IN THE DISTRICT COURT
PLAINTIFF §
§
§
V- § l l t
§
§
JOHN SHERMAN §
Defendant. § OF DALLAS COUNT Y, TE XAS
AFFIDAYIT QF ,IASQ N MARTINEZ
Before Me, the undersigned notar y, 0n this day appeared Jason Martinez, and after being
duly sw orn, did state as follow s:
1. "M.y 11am e is Jason Martinez. 1 am over the age of (18) yea rs of age ,
am under no c i Vil
dis a bil i tie s ,
a 11d am in a ll respects competent to make this affidavit. Eac h of the s tatem ents ma de in
this a ffidavit is made from my persona 1 knowled ge, and is trne and correct.
2. I w as a 50% own er/membe r 0f Bava rian .A S LLC, "
Bavarian" and was the acting president.
Ela n Zo nis was the only other owner/membe r of this L LC, see attached Certificat e offilin g Jolul .
"
She rm an, John" was just an employee ofBaV arian. I did not abandon my respons ibi lit ies and
duties as Presiden t and co-m em ber 0f Ba vari an as fa lse 1y s tate d in John' s a f fidavit a ttached t0 h is
motion t0 dismiss ,
but was forced out due t0 the false statements and allega tio ns by John t0 E lan Zo
nis, see attac hed min utes of LLC meeting in wh ic h r was wron g full y removed .
3. On 12 -1-16 ,
I did not make an unauthorize d pur chase 0 f a B M W from Emp ire Exoti cs, as
false 1y sta ted by John. He decided t0 purchase a $108,000, 2012 A udi R8 conve rti ble ,
f0 r h im d J
for his benefit for his personal use, and use d his BMW \!\‘lth ntzgative equity as a tr ade in (O wed
$60K+). John :financed tha t car in Decem ber prior t0 him coming 0n boa ril t0 work at Ba va rian.
Bavar ia n wrot e a ch e c k t0 E mpire buying J0 hn Sherman
'
s trade-in (a 20 l J BM\V MS) per J0 hn' s
request, du e t0 th e fa ct that he was not offe red enough money f0 r his BM W trade in at ::.m pirc.
Bavar ia n hel ped John out.That purchase was ini ti ated by John for his ben fi t when he cho se to buy a
$ | 08,000 Audi R 8. J0 h n S hemJa n benefited not Ba va rian Au to Spo rts .
4. On 3- 18- 17 1 sent John a text asking him if I could use Amex to charge a hotel room at a tl-ie
Oklaho ma casino due to me forgetting my debit card, his response Via tex was "n0 won ies-'. John t
continues t0 text me the same night, sending me pictures of himself having fun, drin king at his ranch
up until 10 :55 pm., see attached text stream between J0 hn an d mysd f. This disproving yet another
defamatory statemen t 0f John that he has stat ed for the past ye ar and a half and incl uded in his
affi davit attached to his motion t0 dismi ss
AFFIDAVIT OF .JASON MART INEZ PAGE l
P INTIFFS' fl
E THIBIT N0. --tIIIL-
P5 Q
5. On 3-29-17 John drove to our house uninvited to intimidate Angela and
I, and fish for
information. He scared our baby by bangiug 0n the door for 5 minutes. When we arrived in
sitter
our car, we stood outside our car asking a bunch 0f odd questions, this would be tbe last time we
ever saw him.
6. On 4-1 -1 7 John wrote a check for $20,000 to himself as a partial refund that he wasn‘ t
entitled to. (see attached copy of check) John wrote this $20,000 check out of the Bavarian AS
Wells Fargo account made out to "Bavaiian AS" account located at Bank of America (the account
owned by John and John writes "Partial refund for his MS"
formally myselt) and deposited there.
on the check but he was not due a refund. On 4-3-17 John Shemlan depo its the $20,000 check into
the Bavarian BOA account that only John is now on, he had wrongfully removed me from this bank
account.(see copy of bank statement)
7. On 4-13-17 Elan infonned me that he and John notified the Carro llto n police depaitment
along With pursuing multiple legal angles to insure justice would be served (see attached text
tlu-ead).
8. On 4-17-17 John tells Elan and multiple employees at Bavarian I have a gambling problem,
yet another false statement intended t0 defame my character.
9. On 4-25-17 John went on Facebook live regarding a potential break in at Bavarian. Police
were called and Elan and John showed up at 1 :30 AM
to see Who was in the building. They were
under the impression that I had entered the building since Elan and John had previously informed
me that I was no longer allowed 0n the propelty. John and Elan gave the police my phone number
and as I was on the phone with the police for three minutes at 1 :30 am While trying t0 slee p at home.
During this time John continuously films a live Video on Facebook at the dealership in the hopes of
capturing me coming out of the building and being possibly detained by police. I am unceltain if
John mentions my name on Facebook or let people 0n Facebook phone call the polke
listen into the
made to me asking me to raise Jzny hands and come out of the building. Elan told John t0 cease and
desist filming and to remove the Video from Facebook immediately due to bad publicity for the
dealership.
10. On 5-5- 1 7 I had to send a demand letter t0 release my personal belongings to John Who was
holding my personal belongings from my office (ie football helmets, sports memorabi lia, personal
up in his office as "evidence". A report was filed with the Carrollton police
items, etc.), locked
dept, detective Bryan Turner, badge #527 took the report. The Can—ollton police depaxtmcnt
planned 0n filing criminal charges iflle did not release the items, Which he eventually did after
report was filed.
11. On 5-8-17 I was informed about criminal charges that were pmportedly being leveled
against me, (see email from my attorney and text thread from John.)
AFFIDAVIT OF ,JASON MARTINEZ PAGE2
«>M—
12. On 5-17- 1 7, John tells Elan Zonis that I stole money from the company and its inve s tors th at
a DA investigation was needed, yet another lie and defaming allegation.
13. On 5- 1 9- 1 7, a withdrawal/transfer of $28,500. 00 was made from the Bavarian AS Bank of
America account (John was the only signer 0n the account at this point) t0 what appears to be an
account owned by John (see attached copy of bank statement).
14 . 5/30/ 17 John texted me at home and accuses me of stealing from his Amex card. It was
linked to Bavarian AS eBay account that was charging the card for advertising car auctions for the
company. John wrongfully accused me and I quote, U are trying to steal from me once again. They
"
are sending me all the records. Enjoy prison mother filcker." (see attached text from John). .
15. In 5/17, John goes with Elan Zanis to Visit the District Attorney' s office in downtown
Dallas to report the 20k check th.at was supposed] y Wiitten by me and deposited in my account. Elan
Zo..nis filed with the DA's office to investigate the check. Never at any point did John kill the
concern that I wrote the check, he took a blind eye. He was included in all correspondenc e With
company lawyers and the DA investigators regardi ng the check and said nothing. J0 hn
'
Bavarian s
intended to harm me with actions that he did. Ibelieve that John wanted me to take the blame 0f
writing a check that he wrote and deposited into his personal account and wanted me to be charged
with a crime that I didn't commit.
16. From 6/17 to the Present, John has continued to perpetuate his lie s t hat I was a thief and that
1 stole money from my company. These false claims and allegations have been slated by J0h.n not
only t0 Elan, and other investors 0f Bavaraian and employees but t0 prospective emplo yers
its
throughout the local Auto industry. An industry that ve worked in for 25 years He even has the
I'
.
audacity t0 include these false claims and allegations in his affidavit attached t0 his motion t0
dismiss. All allegations of any crimes 0r fraud are false. John is not part 0f the automotive
community/industry as he only worked in it for a very short time before he wa s forced to lea ve ,
Bavarian 0n December 8, 2017 having failed t0 perform his respon s.ibil ities under his contract(s)
with Bavarian. I learned this directly from John as he called me that night as if we were best
friends.
17. 8/17 John tells Chris Stone I am a thief and I am under criminal in vestigation With the DA
while Chris was working at Land rover of Dallas. A place I had applied to for a mana gement
was denied work, due to John’ s false statements about me that Chris rela yed to the
position but
management of the dealership. Chris Stone has agreed t0 testif y as to this fact on my behalf.
18. 9—1.3 -1 7 Elan sent an email to Charles Taylor a prosecutor at the Dallas County that DA
John was CC'd 0n, Where they were following up with a face t0 face conve rsat ion with the DA and
were trying to bave me inves tigated for stealing $20,000 dollars from the Bavarian AS We lls Fargo
bank acct. John never spoke up and admitted that he wrote and deposited that check.
(see attached copy of email).
AFFIDAVIT OFJASON MARTINEZ PAGE 3
93.! D-
20. 12 / 17 t0 I/ 18- John reaches out to me multiple times and we speak about everythin g tha t
happened at Bavarian only now John is blaming Elan for the whole ruse, not knowing that I have
overwhelming evidence that it was John.
21. 2/1 8-Elan Zonis contacts me about discussing the company taxes for 2017 and request a
meeting With him and Bavarians attorney Justin Kendall. I meet with Elan and the Bavari an' s
attorney Justin Kendall. They confronted me about the $20K check and I told them John wrote it.
They both had assumed based on John' s false statements and wrongful allegations over the last len
,
months 1 wrote it. They were shocked to learn that it tru 1y was John who had written this check but ,
had attempted t0 cover his tracks by wrongfully blaming me .
22. 3/1 8 - Present — Elan and 1 go through the company expenses, to prepare the 2017 compan y
taxes and he fully realizes that I did nothing illegal or fraudulent and that John manipulated the
whole situation to his nanative to cover his wrongful actions.
23. 4/1 8- My previous employer 0f 6 years prior t0 Bavarian, called me while he was out 0f
town, saying that he just received the good news and elated that the crimi nal charges never came
(because there were none and there was never going to be any charges). He said he always beli e ved
in me, that he knew deep down everything he was he aring, all the me were not true.
rnmors about
When | ended the call, | was so distur bed because 1 finally realized how bad my name had been
drugged through the mud and I knew the time for action was needed now to prevent my name from
sustaining any further damage.
24. As of J uly 2018, all accounting documents have been completed for tax purposes and aud it
purposes and every penny was accounted for, hence no criminal or fraudulent acts were committed
by me nor was I ever an "economic risk" t0 Bavarian, as falsely alleged by John.
25. John was fillly aware for months that the company was paying for health insurance and had
even approached Angela about getting his family 0n the policy as well because Stephan
Preview
FILED DALLAS COUNTY 1/1 5/2020 6:04 PM FELICIA PITRE DISTRICT CLERK CAUSE N0. DC—18—05517 Debra Clark JASON MARTINEZ § IN THE DISTRICT COURT PLAINTIFF § § § V. § 101st JUDICIAL DISTRICT § § JOHN SHERMAN § Defendant. § 0F DALLAS COUNTY, TEXAS FOR DE NOVO HEARING ON DEFENDANT’S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT PURSUANT TO OMNIBUS ORDER OF REFERAL Plaintiff, Jason Martinez, again asks the Court t0 deny defendant John Sherman’s n0 evidence motion for summary judgment. INTRODUCTION 1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious Interference with Existing Contract and Malicious Criminal Prosecution. 2. Defendant answered asserting a general denial and the following affirmative defenses and specific denials; plaintiff’s claims are completely 0r partially barred as the damages, if any, were caused by his own actions or omissions, plaintiff’s claims are precluded by the Texas Citizens Participation Act (“TCPA”), plaintiff fails to state a claim upon Which relief can be granted, no act or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained. 3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’ s response to this motion, plaintiff included/attached 26 pages 0f documents/evidence, attached to this response as Plaintiff’s Exhibit A. Defendant’s Motion was denied 0n August 21, 2018, see this Court’s Order Attached as Exhibit B. PAGE 1 4. Defendant in yet another attempt to delay this case has filed a baseless counter-claim, which contains additional false and defamatory statements regarding Jason. 5. Defendant also filed a No Evidence Motion for Summary Judgment that was heard and concluded by Judge McFarlin on December 17, 2019 and her decision was rendered on December 20, 2019. In her decision she denied defendant’s no evidence summary judgment motion as to Plaintiff’s claims for defamation and tortious interference with a contract after denying defendant’s additional motions to strike plaintiff’s response and the affidavits of plaintiff, Elan Zonis and Chris Stone, Defendant’s counsel, who happens to also be his spouse, then filed this request for a de novo hearing on their failed No Evidence motion for summary judgment. BACKGROUND 6. On April 7, 2016, Plaintiff and Elan Zonis (“Zonis”) entered into a LLC membership agreement in which they were 50/50 equity members in Bavarian AS, LLC d/b/a Bavarian Auto Sports (“Bavarian”). Plaintiff was named as President for this business and was the day to day manager of this auto dealership. Bavarian began business and in November, 2016 Plaintiff and Zonis began discussions of a potential buyout of Zonis. (see plaintiff’s Exhibit A, pgs. 8, 13-17.) 7. At that same time Plaintiff had discussions with Defendant concerning Defendant contributing $350,000.00 into Bavarian’s operating account, in return Defendant would be given a 15% equity share of Bavarian. It was further agreed that after this contribution by Defendant, Zonis would be bought out of his membership share of Bavarian, resulting in Plaintiff having a 85% membership share and defendant a 15% membership share in Bavarian. However, Defendant failed to deposit the agreed $350,000.00 into the operating bank account of Bavarian, Defendant only deposited $150,000.00 into the Bavarian operating account, and deposited the other $200,000.00 into Defendant’s personal account.(see affidavit of Elan Zonis PAGE 2 in plaintiff’s Exhibit A. pg. 32). 8. Plaintiff began training Defendant in the operations of the dealership and Defendant was added as a signatory on Bavarians’ operating bank account. By March of 2017, Zonis was having second thoughts of being bought out and leaving Bavarian. On April 1, 2017 Defendant wrote an unauthorized check in the amount of $20,000.00 drawn on Bavarian’s operating account. In order to cover up this unauthorized check, Defendant made multiple defamatory statements to Zonis, company investors and others that Plaintiff had written this check and embezzled the funds. Plaintiff of course denied these false and malicious accusations made by defendant, see affidavits of plaintiff, Elan Zonis and copy of check and bank records in plaintiff’s Exhibit A, pgs. 8-12, 23-24, and affidavit of Chris Stone, attached as Plaintiff’s Exhibit C., pgs. 35-38) 9. Based on these intentional, malicious defamatory statements, without fully investigating these false accusations, Zonis expelled Plaintiff from Bavarian on 4/11/2017 with no compensation for Plaintiff’s membership interest in Bavarian, or for Plaintiff’s and Angela Yaun’s sweat equity that had greatly benefitted Bavarian, see plaintiff’s affidavit in Plaintiff’s Exhibit A. pgs. 18-19). 10. Compounding Plaintiff’s wrongful expulsion from Bavarian, based on the false statements of defendant, was the filing of malicious unfounded criminal charges against Plaintiff in May, 2017. Defendant also intentionally and with malice made these same false allegations against Plaintiff directly to the District Attorney’s office. Defendant has also continued to harass Plaintiff with threatening calls and messages since the time he made the false criminal allegations against Plaintiff. These false criminal charges remained pending and hanging over Plaintiff and PAGE 3 his family until his recent full exoneration, see plaintiff’s affidavit and affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12, 32-33, and affidavit of Chris Stone in Plaintiff’s Exhibit C. pgs. 35-38. 11. But the defendant did not stop with providing the basis for false criminal charges against Plaintiff, defendant throughout 2017 and into 2018 has continued to publish his false, malicious defamatory statements against plaintiff throughout the local auto dealer community, including false statements to individual dealerships that plaintiff had applied to and had initial positive interviews, only to be denied the positions without any explanation, see plaintiff’s affidavit, affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12 and 32-33 and affidavit of Chris Stone in Plaintiff’s Exhibit C, pgs. 35-38.. These continued defamatory statements by defendant regarding the plaintiff made it impossible for plaintiff to find gainful employment for a substantial period of time, thus causing plaintiff to lose wages and benefits (including medical benefits, vital for the care of his special needs daughter, see affidavit of plaintiff in Plaintiff’s Exhibit A, pgs. 8- 12. 12. Defendant both perjured himself and further defamed plaintiff with false statements and allegations against Jason, contained within his affidavit that was attached to his failed motion to dismiss under the TCPA., see plaintiff’s Exhibit D. pgs. 39-40. His allegations of Jason making an unauthorized purchase of a BMW being clearly refuted by plaintiff, Elan Zonis and Chris Stone, see Exhibits A, pgs. 32-33 and Exhibit C., pgs. 35-38 Defendant admits to making statements against Jason within defendant’s affidavit, attached as Exhibit D, pgs. 39-40. PAGE 4 ARGUMENT 13. Plaintiff/respondent would first incorporate by reference to be included in this response, his Second Amended Response to Defendant’s No-Evidence Motion for Summary Judgment and has attached it to this response as Plaintiff’s Exhibit A. All arguments, exhibits and evidence respondent again offers it to be entered by the Court and considered by the Court in their rendering their decision. 14. Plaintiff/respondent objects to the six pages of “relevant facts” submitted by defendant/movant on the grounds that it was not part of their original No Evidence Motion for Summary Judgment and cannot now be entered, furthermore it is all improper hearsay lacking proper foundation, authentication and is irrelevant as to defendant/movant’s No Evidence Motion for Summary Judgment, and therefore should be stricken and not considered by the Court. 15. Plaintiff/movant also objects to the exhibits attached to Defendant/movant’s Motion for De Novo hearing also on the basis of inadmissible hearsay, documents that are lacking foundation a and authentication and are improper to be attached to a No Evidence Motion for Summary Judgment. 16. Plaintiff/movant and their counsel would vehemently deny defendant/movant and their counsel’s further defamatory and baseless allegations of intentionally manipulation and deceiving the Court, as contained within paragraph 20 of their motion, where they state the following; “ the act of intentionally manipulating and deceiving the Court should not be overlooked. Disciplinary Rule 8.04(a)(3) states: "[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.". The email they reference was not intentionally redacted, as the copy of the same PAGE 5 exact check, dated 4/ 1/2017 that was omitted from this email was included, (see page 23 of Plaintiff/respondent’s 2nd Amended Response attached t0 this response as Plaintiff’ s Exhibit A) and is fully addressed by Elan Zonis, Chris Stone, and Plaintiff in their affidavits. As was the fact that plaintiff was fully exonerated of any misconduct in his time With Bavarian, as also established by the affidavits of Elan Zonis, Chris Stone and the plaintiff. CONCLUSION 17. Plaintiff has provided evidence more than sufficient t0 raise a fact issue of each element of his three claims against defendant and therefore defendant’s No Evidence Motion for Summary Judgment in this requested De Novo review should again be denied. PRAYER 16. For these reasons, plaintiff asks the Court to again deny defendant’s no evidence motion for summary Judgment under the Court’s De Novo review Respectfully submitted, By:s//Bradlev D. Harrison Bradley D. Harrison Texas Bar No.24042345 83 1 8 Trail Lake Dr. Rowlett, Texas 75088 Tel. (972) 412-5041 Fax. (214) 607-1729 rowlettattorney@gmail.com Attorney for Plaintiff Jason Martinez Certificate of Service I copy 0f the above was served on Plaintiff’ s attorney of certify that a true record 0r party in accordance with the Texas Rules 0f Civil Procedure 0n January 15, 2020 /s/Bmdley D. Harrison Bradley D. Harrison Attorney for Plaintiff, Jason Martinez PAGE 6 CAUSE NO. DC-18-05517 JASON MARTINEZ § IN THE DISTRICT COURT PLAINTIFF § § § V. § 101st JUDICIAL DISTRICT § § JOHN SHERMAN § Defendant. § OF DALLAS COUNTY, TEXAS PLAINTIFF’S SECOND AMENDED RESPONSE TO DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT Jason Martinez, asks the Court to deny defendant John Sherman’s n0 evidence motion Plaintiff, for summary judgment. INTRODUCTION 1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious Interference with Existing Contract and Malicious Criminal Prosecution. 2. Defendant answered asserting a general denial and the following affirmative defenses and specific denials; plaintiffs claims are completely 0r partially barred as the damages, if any, were caused by his own actions 0r omissions, plaintiff’s claims are precluded by the Texas Citizens Participation Act (“TCPA”), plaintiff fails to state a claim upon which relief can be granted, n0 act or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained. 3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’s response to this motion, plaintiff included/attached 26 pages of documents/evidence, attached t0 this response as Plaintiff’s Exhibit A. Defendant’s Motion was denied on August 21, 2018, see this Court’s Order Attached as Exhibit B. PLAINTIFF’S 2NDt. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 1 PLAINTIFFS EXHIBIT A BACKGROUND 4. On April 7, 2016, Plaintiff and Elan Zonis (“Zonis”) entered into a LLC membership agreement in which they were 50/50 equity members in Bavarian AS, LLC d/b/a Bavarian Auto Sports (“Bavarian”). Plaintiff was named as President for this business and was the day to day manager of this auto dealership. Bavarian began business and in November, 2016 Plaintiff and Zonis began discussions of a potential buyout of Zonis. (see plaintiff’s Exhibit A, pgs. 8, 13-17.) 5. At that same time Plaintiff had discussions with Defendant concerning Defendant contributing $350,000.00 into Bavarian’s operating account, in return Defendant would be given a 15% equity share of Bavarian. It was further agreed that after this contribution by Defendant, Zonis would be bought out of his membership share of Bavarian, resulting in Plaintiff having a 85% membership share and defendant a 15% membership share in Bavarian. However, Defendant failed to deposit the agreed $350,000.00 into the operating bank account of Bavarian, Defendant only deposited $150,000.00 into the Bavarian operating account, and deposited the other $200,000.00 into Defendant’s personal account.(see affidavit of Elan Zonis in plaintiff’s Exhibit A. pg. 32). 6. Plaintiff began training Defendant in the operations of the dealership and Defendant was added as a signatory on Bavarians’ operating bank account. By March of 2017, Zonis was having second thoughts of being bought out and leaving Bavarian. On April 1, 2017 Defendant wrote an unauthorized check in the amount of $20,000.00 drawn on Bavarian’s operating account. In order to cover up this unauthorized check, Defendant made multiple defamatory statements to Zonis, company investors and others that Plaintiff had written this PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 2 check and embezzled the funds. Plaintiff of course denied these false and malicious accusations made by defendant, see affidavits of plaintiff, Elan Zonis and copy of check and bank records in plaintiff’s Exhibit A, pgs. 8-12, 23-24, and affidavit of Chris Stone, attached as Plaintiff’s Exhibit C., pgs. 35-38) 7. Based on these intentional, malicious defamatory statements, without fully investigating these false accusations, Zonis expelled Plaintiff from Bavarian on 4/11/2017 with no compensation for Plaintiff’s membership interest in Bavarian, or for Plaintiff’s and Angela Yaun’s sweat equity that had greatly benefitted Bavarian, see plaintiff’s affidavit in Plaintiff’s Exhibit A. pgs. 18-19). 8. Compounding Plaintiff’s wrongful expulsion from Bavarian, based on the false statements of defendant, was the filing of malicious unfounded criminal charges against Plaintiff in May, 2017. Defendant also intentionally and with malice made these same false allegations against Plaintiff directly to the District Attorney’s office. Defendant has also continued to harass Plaintiff with threatening calls and messages since the time he made the false criminal allegations against Plaintiff. These false criminal charges remained pending and hanging over Plaintiff and his family until his recent full exoneration, see plaintiff’s affidavit and affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12, 32-33, and affidavit of Chris Stone in Plaintiff’s Exhibit C. pgs. 35-38. 9. But the defendant did not stop with providing the basis for false criminal charges against Plaintiff, defendant throughout 2017 and into 2018 has continued to publish his false, malicious defamatory statements against plaintiff throughout the local auto dealer community, including false statements to individual dealerships that plaintiff had applied to and had initial PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 3 positive interviews, only to be denied the positions without any explanation, see plaintiff’s affidavit, affidavit of Elan Zonis in Plaintiff’s Exhibit A, pgs. 8-12 and 32-33 and affidavit of Chris Stone in Plaintiff’s Exhibit C, pgs. 35-38.. These continued defamatory statements by defendant regarding the plaintiff made it impossible for plaintiff to find gainful employment for a substantial period of time, thus causing plaintiff to lose wages and benefits (including medical benefits, vital for the care of his special needs daughter, see affidavit of plaintiff in Plaintiff’s Exhibit A, pgs. 8- 12. 10. Defendant both perjured himself and further defamed plaintiff with false statements and allegations against Jason, contained within his affidavit that was attached to his failed motion to dismiss under the TCPA., see plaintiff’s Exhibit D. pgs. 39-40. His allegations of Jason making an unauthorized purchase of a BMW being clearly refuted by plaintiff, Elan Zonis and Chris Stone, see Exhibits A, pgs. 32-33 and Exhibit C., pgs. 35-38 Defendant admits to making statements against Jason within defendant’s affidavit, attached as Exhibit D, pgs. 39-40. SUMMARY-JUDGMENT EVIDENCE 11. To support the facts in this response, plaintiff offers the following summary-judgment evidence attached to this response and incorporates the evidence into this response by reference. Exhibit A: affidavit of Plaintiff, copy of check executed by John Sherman for $20,000.00 and respective bank records, affidavit of Elan Zonis. Exhibit B: Order denying defendant’s motion to dismiss under the TCPA. Exhibit C: affidavit of Chris Stone Exhibit D: affidavit of defendant filed in his unsuccessful motion to dismiss under the TCPA. PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 4 ARGUMENT Plaintiff has sufficient evidence to raise fact issue on his cause of action. 12. In a no-evidence motion for summary judgment, a defendant can challenge a plaintiff to produce evidence to support one or more elements of the plaintiff’s cause of action on which the plaintiff would have the burden of proof at trial after an adequate time for discovery has passed. Tex. R. Civ. P. 166a(i). To avoid a no-evidence summary judgment, the plaintiff is not required to marshal its proof; the plaintiff only needs to point out evidence that raises a fact issue on the elements challenged in the defendant’s motion. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). To raise a genuine issue of material fact, the plaintiff must produce more than a scintilla of evidence in support of the challenged elements. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence is produced if the evidence is sufficient to allow reasonable and fair-minded people to differ in their conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In evaluating whether more than a scintilla of evidence exists, the court must view the evidence in the light most favorable to the plaintiff, crediting evidence favorable to the plaintiff if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). 13. Defendant alleged that there is no evidence supporting essential elements of plaintiff’s cause of action for defamation. The elements of the cause of action are the following: defendant published a statement of fact, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10 pg.s 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 39-40, the statement referred to the plaintiff, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, PLAINTIFF’S 2nd. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 5 14,16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10 pgs. 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 39-40, the statement was defamatory, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10 pgs.35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 38-40, the statement was false, see affidavit of Jason Martinez, paragraphs 2,3,4,6,8,21,22, 24 and 25, pgs.8-11, $20,000.00 check, pg.23, company bank statement, pg.24, affidavit of Elan Zonis, paragraphs 2, pg. 32, affidavit of Chris Stone, paragraph 10, pgs. 37-38, with regard to the truth of the statement, the Defendant was acting with actual malice, negligent or liable without regard to fault, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25 in pages 8-11, affidavit of Elan Zonis, paragraphs 2 and 4, pgs. 32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10 pgs.35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs. 39-40, plaintiff suffered pecuniary injury, see affidavit of Jason Martinez, paragraphs 2 and 25, pgs. 8-11, affidavit of Elan Zonis, paragraph 2, pg.32, see affidavit of Chris Stone, paragraph 6, pg. 36, minutes of company expelling Jason Martinez, pg. 18. Defendant alleged that there is no evidence supporting elements of plaintiff’s cause of action for tortious interference with a contract claim. The elements of this cause of action are the following; plaintiff had a valid contract,, see affidavit of Jason Martinez, paragraph 2, pg.8, Certificate of Formation for Bavarian AS, LLC, pgs.15-17, defendant willfully and intentionally interfered with the contract, see affidavit of Jason Martinez, paragraphs, 2, 8, 12, 14. 16 and 25 in pgs. 8-11 affidavit of Elan Zonis, paragraphs 2 and 4, pgs.32-33, affidavit of Chris Stone, paragraphs 3,5,6,8 and 10 pg.s 35-38, affidavit of defendant, paragraphs 2, 4, 5 and 6 pgs.39-40, the interference proximately caused the Plaintiff’s injury, see affidavit of Jason Martinez, paragraphs, 2 and 25, pgs.8-11 , see company minutes expelling Jason, PLAINTIFF’S 2nd. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 6 pgs.18-19, see affidavit of Elan Zonis, paragraph 2, pg. 32, plaintiff incurred actual damages or loss. see affidavit of Jason Martinez, paragraph 2 and paragraph 25, pgs. 8-11. Once again Defendant contends that there is no evidence to support any of these elements. Defendant alleged that there is no evidence supporting essential elements of plaintiff’s claim for criminal malicious prosecution. Plaintiff/Respondent would ask that this element of Defendant’s No Evidence motion for summary judgment be denied on its face. Defendant mistakenly states there is no evidence as to the elements of malicious prosecution for a civil proceeding, where it is clear within Plaintiff’s pleadings that Jason is claiming malicious prosecution for a criminal proceeding, which has different elements than malicious prosecution within a civil proceeding. If however the Court allows this portion of defendant’s motion to proceed, plaintiff/respondent would argue that based on the above discussed evidence and the copy of the criminal complaint against plaintiff, attached to Defendant’s motion to strike, that plaintiff has provided much more than a scintilla of evidence for each element of malicious prosecution of a criminal proceeding. The Court should deny defendant’s no-evidence motion for summary judgment because plaintiff has produced sufficient evidence, as laid out above, to raise a fact issue on each element of all claims of plaintiff challenged by defendant. The evidence discussed above by plaintiff and attached to his response and incorporated by reference to his response, is more than sufficient evidence to raise a fact issue on all elements of each claim made by plaintiff. 14. Defendant/movant in their Motion to Strike Plaintiff’s entire response, also included a motion to strike the affidavits of Jason Martinez, Elan Zonis and Chris Stone, and the copy of the check executed by Defendant. Excluding Chris Stone’s affidavit all evidence and exhibits offered by plaintiff/respondent has been previously offered and accepted by the Court and is now a part of the official Court records of this case as Plaintiff/Respondent in their response to defendant’s PLAINTIFF’S 2ND. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 7 unsuccessfiJI motion to dismiss plaintiff’ s claims under the Texas Citizen Participation Act that was heard and denied back in August of 2018, offered this exact evidence, Without obj ection by defendant. Therefore is should be accepted by the Court in this latest proceeding. In addition, plaintiff/respondent’s affidavits verify and corroborate the substance of the other affidavit. If there is any obj ectionable hearsay, the remaining statements contained Within each affidavit, pertaining to each element of plaintiff’s claims provide a factual base for each element of plaintiff/respondent’s claims and therefore should be considered by the Court, see Moya . v.O’brien, 618 S.W.2d at 893. CONCLUSION 15. Plaintiff has provided evidence more than sufficient t0 raise a fact issue of each element of his three claims against defendant and therefore defendant’s N0 Evidence Motion for Summary Judgment should be denied. PRAYER 16. For these reasons, plaintiff asks the Court to deny defendant’s n0 evidence motion for summary judgment. Respectfully submitted, By:s// Bradley D. Harrison firm HWVW D. Texas Bar N0. 24042345 83 1 8 Trail Lake Dr. Rowlett, Texas 75088 Tel. (972) 412-5041 Fax. (214) 607-1729 rowlettattorney@gmail.com Attorney for Plaintiff Jason Martinez Certificate 0f Service I copy 0f the above was served on Plaintiff s attorney of record or certify that a true party in accordance with the Texas Rules 0f Civil Procedure 0n December 16, 2019 /s/ 31/01de D. flm/nzon/ Bradley D. Harrison Attorney for Plaintiff, Jason Martinez PLAINTIFF’S 2NDt. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 8 CAUSE N0. DC-18-055 17 JASON MARTINEZ § IN THE DISTRICT COURT PLAINTIFF § § § V- § l l t § § JOHN SHERMAN § Defendant. § OF DALLAS COUNT Y, TE XAS AFFIDAYIT QF ,IASQ N MARTINEZ Before Me, the undersigned notar y, 0n this day appeared Jason Martinez, and after being duly sw orn, did state as follow s: 1. "M.y 11am e is Jason Martinez. 1 am over the age of (18) yea rs of age , am under no c i Vil dis a bil i tie s , a 11d am in a ll respects competent to make this affidavit. Eac h of the s tatem ents ma de in this a ffidavit is made from my persona 1 knowled ge, and is trne and correct. 2. I w as a 50% own er/membe r 0f Bava rian .A S LLC, " Bavarian" and was the acting president. Ela n Zo nis was the only other owner/membe r of this L LC, see attached Certificat e offilin g Jolul . " She rm an, John" was just an employee ofBaV arian. I did not abandon my respons ibi lit ies and duties as Presiden t and co-m em ber 0f Ba vari an as fa lse 1y s tate d in John' s a f fidavit a ttached t0 h is motion t0 dismiss , but was forced out due t0 the false statements and allega tio ns by John t0 E lan Zo nis, see attac hed min utes of LLC meeting in wh ic h r was wron g full y removed . 3. On 12 -1-16 , I did not make an unauthorize d pur chase 0 f a B M W from Emp ire Exoti cs, as false 1y sta ted by John. He decided t0 purchase a $108,000, 2012 A udi R8 conve rti ble , f0 r h im d J for his benefit for his personal use, and use d his BMW \!\‘lth ntzgative equity as a tr ade in (O wed $60K+). John :financed tha t car in Decem ber prior t0 him coming 0n boa ril t0 work at Ba va rian. Bavar ia n wrot e a ch e c k t0 E mpire buying J0 hn Sherman ' s trade-in (a 20 l J BM\V MS) per J0 hn' s request, du e t0 th e fa ct that he was not offe red enough money f0 r his BM W trade in at ::.m pirc. Bavar ia n hel ped John out.That purchase was ini ti ated by John for his ben fi t when he cho se to buy a $ | 08,000 Audi R 8. J0 h n S hemJa n benefited not Ba va rian Au to Spo rts . 4. On 3- 18- 17 1 sent John a text asking him if I could use Amex to charge a hotel room at a tl-ie Oklaho ma casino due to me forgetting my debit card, his response Via tex was "n0 won ies-'. John t continues t0 text me the same night, sending me pictures of himself having fun, drin king at his ranch up until 10 :55 pm., see attached text stream between J0 hn an d mysd f. This disproving yet another defamatory statemen t 0f John that he has stat ed for the past ye ar and a half and incl uded in his affi davit attached to his motion t0 dismi ss AFFIDAVIT OF .JASON MART INEZ PAGE l P INTIFFS' fl E THIBIT N0. --tIIIL- P5 Q 5. On 3-29-17 John drove to our house uninvited to intimidate Angela and I, and fish for information. He scared our baby by bangiug 0n the door for 5 minutes. When we arrived in sitter our car, we stood outside our car asking a bunch 0f odd questions, this would be tbe last time we ever saw him. 6. On 4-1 -1 7 John wrote a check for $20,000 to himself as a partial refund that he wasn‘ t entitled to. (see attached copy of check) John wrote this $20,000 check out of the Bavarian AS Wells Fargo account made out to "Bavaiian AS" account located at Bank of America (the account owned by John and John writes "Partial refund for his MS" formally myselt) and deposited there. on the check but he was not due a refund. On 4-3-17 John Shemlan depo its the $20,000 check into the Bavarian BOA account that only John is now on, he had wrongfully removed me from this bank account.(see copy of bank statement) 7. On 4-13-17 Elan infonned me that he and John notified the Carro llto n police depaitment along With pursuing multiple legal angles to insure justice would be served (see attached text tlu-ead). 8. On 4-17-17 John tells Elan and multiple employees at Bavarian I have a gambling problem, yet another false statement intended t0 defame my character. 9. On 4-25-17 John went on Facebook live regarding a potential break in at Bavarian. Police were called and Elan and John showed up at 1 :30 AM to see Who was in the building. They were under the impression that I had entered the building since Elan and John had previously informed me that I was no longer allowed 0n the propelty. John and Elan gave the police my phone number and as I was on the phone with the police for three minutes at 1 :30 am While trying t0 slee p at home. During this time John continuously films a live Video on Facebook at the dealership in the hopes of capturing me coming out of the building and being possibly detained by police. I am unceltain if John mentions my name on Facebook or let people 0n Facebook phone call the polke listen into the made to me asking me to raise Jzny hands and come out of the building. Elan told John t0 cease and desist filming and to remove the Video from Facebook immediately due to bad publicity for the dealership. 10. On 5-5- 1 7 I had to send a demand letter t0 release my personal belongings to John Who was holding my personal belongings from my office (ie football helmets, sports memorabi lia, personal up in his office as "evidence". A report was filed with the Carrollton police items, etc.), locked dept, detective Bryan Turner, badge #527 took the report. The Can—ollton police depaxtmcnt planned 0n filing criminal charges iflle did not release the items, Which he eventually did after report was filed. 11. On 5-8-17 I was informed about criminal charges that were pmportedly being leveled against me, (see email from my attorney and text thread from John.) AFFIDAVIT OF ,JASON MARTINEZ PAGE2 «>M— 12. On 5-17- 1 7, John tells Elan Zonis that I stole money from the company and its inve s tors th at a DA investigation was needed, yet another lie and defaming allegation. 13. On 5- 1 9- 1 7, a withdrawal/transfer of $28,500. 00 was made from the Bavarian AS Bank of America account (John was the only signer 0n the account at this point) t0 what appears to be an account owned by John (see attached copy of bank statement). 14 . 5/30/ 17 John texted me at home and accuses me of stealing from his Amex card. It was linked to Bavarian AS eBay account that was charging the card for advertising car auctions for the company. John wrongfully accused me and I quote, U are trying to steal from me once again. They " are sending me all the records. Enjoy prison mother filcker." (see attached text from John). . 15. In 5/17, John goes with Elan Zanis to Visit the District Attorney' s office in downtown Dallas to report the 20k check th.at was supposed] y Wiitten by me and deposited in my account. Elan Zo..nis filed with the DA's office to investigate the check. Never at any point did John kill the concern that I wrote the check, he took a blind eye. He was included in all correspondenc e With company lawyers and the DA investigators regardi ng the check and said nothing. J0 hn ' Bavarian s intended to harm me with actions that he did. Ibelieve that John wanted me to take the blame 0f writing a check that he wrote and deposited into his personal account and wanted me to be charged with a crime that I didn't commit. 16. From 6/17 to the Present, John has continued to perpetuate his lie s t hat I was a thief and that 1 stole money from my company. These false claims and allegations have been slated by J0h.n not only t0 Elan, and other investors 0f Bavaraian and employees but t0 prospective emplo yers its throughout the local Auto industry. An industry that ve worked in for 25 years He even has the I' . audacity t0 include these false claims and allegations in his affidavit attached t0 his motion t0 dismiss. All allegations of any crimes 0r fraud are false. John is not part 0f the automotive community/industry as he only worked in it for a very short time before he wa s forced to lea ve , Bavarian 0n December 8, 2017 having failed t0 perform his respon s.ibil ities under his contract(s) with Bavarian. I learned this directly from John as he called me that night as if we were best friends. 17. 8/17 John tells Chris Stone I am a thief and I am under criminal in vestigation With the DA while Chris was working at Land rover of Dallas. A place I had applied to for a mana gement was denied work, due to John’ s false statements about me that Chris rela yed to the position but management of the dealership. Chris Stone has agreed t0 testif y as to this fact on my behalf. 18. 9—1.3 -1 7 Elan sent an email to Charles Taylor a prosecutor at the Dallas County that DA John was CC'd 0n, Where they were following up with a face t0 face conve rsat ion with the DA and were trying to bave me inves tigated for stealing $20,000 dollars from the Bavarian AS We lls Fargo bank acct. John never spoke up and admitted that he wrote and deposited that check. (see attached copy of email). AFFIDAVIT OFJASON MARTINEZ PAGE 3 93.! D- 20. 12 / 17 t0 I/ 18- John reaches out to me multiple times and we speak about everythin g tha t happened at Bavarian only now John is blaming Elan for the whole ruse, not knowing that I have overwhelming evidence that it was John. 21. 2/1 8-Elan Zonis contacts me about discussing the company taxes for 2017 and request a meeting With him and Bavarians attorney Justin Kendall. I meet with Elan and the Bavari an' s attorney Justin Kendall. They confronted me about the $20K check and I told them John wrote it. They both had assumed based on John' s false statements and wrongful allegations over the last len , months 1 wrote it. They were shocked to learn that it tru 1y was John who had written this check but , had attempted t0 cover his tracks by wrongfully blaming me . 22. 3/1 8 - Present — Elan and 1 go through the company expenses, to prepare the 2017 compan y taxes and he fully realizes that I did nothing illegal or fraudulent and that John manipulated the whole situation to his nanative to cover his wrongful actions. 23. 4/1 8- My previous employer 0f 6 years prior t0 Bavarian, called me while he was out 0f town, saying that he just received the good news and elated that the crimi nal charges never came (because there were none and there was never going to be any charges). He said he always beli e ved in me, that he knew deep down everything he was he aring, all the me were not true. rnmors about When | ended the call, | was so distur bed because 1 finally realized how bad my name had been drugged through the mud and I knew the time for action was needed now to prevent my name from sustaining any further damage. 24. As of J uly 2018, all accounting documents have been completed for tax purposes and aud it purposes and every penny was accounted for, hence no criminal or fraudulent acts were committed by me nor was I ever an "economic risk" t0 Bavarian, as falsely alleged by John. 25. John was fillly aware for months that the company was paying for health insurance and had even approached Angela about getting his family 0n the policy as well because Stephan