Motion for No Evidence Summary Judgment in COMMISSION FOR LAWYER DISCIPLINE vs. SIDNEY POWELL| Trellis.Law

On March 01, 2022 a Motion-Secondary was filed involving a dispute between Commission For Lawyer Discipline, Commission For Lawyer Dsicipline, and Powell, Sidney, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
1/13/2023 4:26 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Madison McCarrier DEPUTY

CAUSE NO. DC-22-02562

COMMISSION FOR LAWYER IN THE DISTRICT COURT

§§§§§§§§§§§§§§§
DISCIPLINE,

Plaintiff,

vs.

SIDNEY POWELL
(File Nos. 202006349, 202006347, DALLAS COUNTY, TEXAS
202006393, 202006599, 202100006,
202100652, 202101297, 202101300,
202101301, 202103520, 202106068,
202106284, 202106181)

Defendant. 116th JUDICIAL DISTRICT

SIDNEY POWELL’S REPLY TO BAR’S RESPONSE TO SIDNEY
POWELL’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
To THE HONORABLE ANDREA K. BOURESSA:

Sidney Powell (“Ms. Powell”) ﬁles her Reply to the Bar’s Response to her No-

Evidence Motion for Summary Judgment against the Commission for Lawyer

Discipline (“Bar”) on all Claims.

A. INTRODUCTION

The Bar’s claims against Ms. Powell boil down to the assertion that, for

whatever political reason, the freedoms of speech and petition are circumscribed

when attorneys make statements to courts in election fraud cases. Certainly in the

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 1
typical law suit, that holds some truth. “An election contest, however, is not a typical

lawsuit.” Moss v. Bush, 828 N.E.2d 994, 997 (Ohio 2005). Election cases must,

regardless of the particular statutory scheme involved, be litigated in “a very short

time after an election,” and therefore “a prospective contestor has limited time to

investigate all the facts surrounding an election, particularly where, as here, the

challenge is to a statewide election.” Id. at 998.

The Bar seeks to punish Ms. Powell for her conduct in representing the electors

in the ﬁling lawsuits in four states challenging the 2020 Presidential election. Those

suits sought to determine the true facts in statewide elections on behalf of persons

with a role deﬁned in the constitution, and the Bar treats them as if they were just
another ordinary run-of—the-mill car accident lawsuit. That is not the law not nor

should it be. Moss v. Bush, 828 N.E.2d 994, 997 (Ohio 2005).

Based on the Bar’s conduct in this case, let alone the two other lawsuits it filed

against the Attorney General of the State of Texas and one of his assistants for ﬁling

a suit to contest the 2020 Presidential election, the Bar has become the agent of the

far left in this country and is engaging in political “lawfare.”

Under Moss v. Bush, the court held that no attorney should be sanctioned for

ﬁling an election fraud case and that was a case where Republicans were seeking

sanctions against Democrats. Id. at 998.

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 2
B. OBJECTIONS To SUMMARY JUDGMENT PROOF

1. The Bar attaches the following pleadings or portions thereof as summary

judgment proof to it’s Second Amended Response to Respondent’s Hybrid Motion

for Summary Judgment and Respondent’s No-Evidence Motion for Summary

Judgment:

Exhibit B: The altered certiﬁcate attached to Respondent’ s pleading in the
1.1.
Georgia Election Fraud Suit as Exhibit 5;

1.2. Exhibit C: The altered report attached to Respondent’s pleading in the
Georgia Election Fraud Suit as Exhibit 6;

1.3. Exhibit D: Respondent’s pleading (without exhibits) in the Georgia
Election Fraud Suit . . . .” (Page 7, 1112.);

1.4. Exhibit E: Defendants’ Consolidated Brief in Support of their Motion to
Dismiss and Response in Opposition to Plaintiffs’ Motion for Injunctive Relief
in the Georgia Election Fraud Suit (without exhibits).

2. Ms. Powell objects to those exhibits as summary judgment proof and they

must be stricken from the record — they are not competent summary judgment proof.

A party cannot rely on other pleadings attached as exhibits to its own motion or

response as summary-judgment evidence, even if the pleadings are veriﬁed. Laidlaw

Waste Sys. v. City 0f Wilmer, 904 S.W.2d 656, 660-61 (Tex.1995). Even if it could,

they show nothing material and nothing more than the equivalent of a typographical

error — about which

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 3
C. RESPONSE To ARGUMENTS AND AUTHORITIES

3. The nonmovant has the entire burden of proof once the movant ﬁles a

no-evidence motion. See Tex. R. CiV. P. 166a(i); JLB Builders, L.L. C. v. Hernandez,

622 S.W.3d 860, 864 (TeX.2021); see, e.g., Town ofDiSh v. Atmos Energy Corp. , 519

S.W.3d 605, 608 (Tex.2017).

4. To defeat a no-evidence motion for summary judgment, the nonmovant must

prove there is a genuine issue of material fact on the elements challenged by the

movant. See TeX. R. CiV. P. 166a(i); JLB Builders, L.L. C. v. Hernandez, 622 S.W.3d

860, 864 (TeX.2021); KMS Retail Rowlett, LP v. City ofRowlett, 593 S.W.3d 175,

181 (Tex.2019); Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex.2014).

5 . TeX.R.CiV.P. 166a(i) requires the trial court to grant the no-evidence motion

for summary judgment; therefore, if the nonmovant does not produce evidence that
raises a genuine issue of material fact, the court may grant a no-eVidence summary

judgment by default if the nonmovant does not ﬁle a response and the motion states

sufﬁcient grounds for a ﬁnal summary judgment. Roventini v. Ocular Sci, Inc. , 111

S.W.3d 719, 722 (TeX.App.—Houston [1st Dist] 2003, no pet.); see Town ofDish v.

Atmos Energy Corp, 519 S.W.3d 605, 608 (TeX.2017). TRCP 166a(i) requires the

trial court to grant the motion for no-evidence summary judgment if the nonmovant

does not produce summary-judgment evidence that raises a genuine issue of material

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 4
fact. Dolceﬁno v. Randolph, 19 S.W.3d 906, 917 (TeX.App.—Houston [14th Dist]

2000, pet. denied); Saenz v. Southern Un. Gas C0,, 999 S.W.2d 490, 493

(Tex.App.—E1Paso 1999, pet. denied).

6. The Bar has no evidence that Ms. Powell violated the Disciplinary Rule of

Professional Conduct. The Bar has no witnesses, the Complainants can offer nothing

more that hearsay. The Court must grant Ms. Powell’s Motion for No-Evidence

Summary Judgment. Dolceﬁno, 19 S.W.3d at 917.

D. DISCOVERY ISSUES

7. On October 10, 2022, the Court held a hearing on the Bar’s Motion to

Compel. On November 18, 2022, the Court entered an order granting in part the

Mar’s Motion to Compel (“Order”).

8. Ms. Powell fully complied with the Order. Prior to the Order being entered,

to wit: on November 1 1, 2022, before the Order was entered Ms. Powell provided the

identity, by bates-label which documents produced were responsive to each request;

then on November 23, 2022, provided the privilege log between Ms. Powell and non-

client afﬁants. On November 23, 2022 an email was sent to the Bar stating:

“Regarding the Order signed by Judge Bouressa, dated November 18,
2022 - while the order provides Ms. Powell has until December 19,
2022, to comply, we believe Ms. Powell has fully and completely
complied with the items in the Order with the document attached to this
communication.

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 5
Interrog. I I .' list is attached showing: name, date, location and type of
communication between Ms. Powell and any non-client Aﬁiant
exchanged prior to the entry of a ﬁnal order in the litigation in which
the non-client Aﬁiant’s affidavit was used is on the Privilege Log.

Req. Prod. I I .' You were provided a list identl'ﬁ/ing by hates-label the
documents produced by Ms. Powell responsive to each request for
production.

Req. Prod. 3: all communications between Ms. Powell and any non-
client Aﬁiant during the period described are listed in the attachment,
all are being withheld under core work-product privilege and were
listed in the Privilege Log produced.

Req. Prod. 5, 6, 7, 8: these were all produced in the initial production
in this case (in addition t0 providing them during the hearing process)
and identified in the list sent to you, identl'ﬁ/ing by bates-label the
documents produced by Ms. Powell responsive to each request for
production.

All documents withheld in response to any of the items in the order for
work-product privilege have been included in the Privilege Log and the
list provided today.”

See Exhibit “1” attached hereto.

9. On December 7, 2022, the Traditional Motion was re-set on the submission

docket for January 13, 2022. This was, after it was initially set on the submission

dockets on August 18, 2022, and then again on November 28, 2022, to accommodate

the Bar.

10. On the eve of the submission date, January 12, 2023 , the Bar ﬁles a Second

Motion to Compel, claiming that Ms. Powell had failed to comply with the Order

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 6
when on November 23 , 2022, Ms. Powell sent the email referenced above to the Bar

stating she had complied.

11. The Order was speciﬁc about matters listed in the Privilege Log, it holds:

“The Court considered the parties’ arguments concerning attorney-client
and work—product privilege and ﬁnds as follows: Respondent’s clients
have not waived privilege; Respondent has not waived any client’s
privilege on behalf of that client; and the Commission has not shown
itself entitled to invade such privilege.

Then the Court inserted in handwriting:

“Documents withheld exclusively on the basis ofwork-product privilege
should be included in Respondent’s privilege log. No ruling is made re:
those documents, pending any further hearing.”

12. The Bar has had over 30 days to prepare it response and provide evidence

to controvert Ms. Powell’s No-E Motion. The Court should not consider the Bar’s

belated arguments Ms. Powell failed to comply with the Order because she, in fact,

complied with the Order. It was the Bar who did neither conferred with Ms. Powell

nor ﬁled a motion about Ms. Powell’s compliance with the Order until the eve of the

hearings on Ms. Powell’s motions for summary judgment. The reason the bar has not

even alleged the existence of any evidence to support its opposition to the No-E

Motion is because there is none. The Bar raises arguments at this late stage because

it does not have more than a scintilla of evidence to defeat the No-E Motion. The

Court must grant the No-E Motion, in all things.

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 7
13. The Bar has not speciﬁcally identiﬁed defects in the nonmovant's pleading,

response, or evidence, so the Bar’s request for a continuance must fail. See

Peerenboom v. HSP Foods, Ina, 910 S.W.2d 156, 160 (TeX.App.—Waco 1995, no

writ); Webster v. Allstate Ins, 833 S.W.2d 747, 750 (TeX.App.—Houston [1st Dist]

1992, no writ).

14. The Bar’s Motion for Continuance fails because the Bar failed to state

under oath, TeX. R. CiV. P. 251; see, e.g., Rhima v. White, 829 S.W.2d 909, 912

(TeX.App.—Fort Worth 1992, writ denied):

(i) it needs additional time to secure afﬁdavits or conduct discovery as

required, TeX. R. Civ. P. 166a(g); Joe v. Two Thirty Nine Jt. V., 145 S.W.3d

150, 161 (Tex.2004); see Elizondo v. Krist, 415 S.W.3d 259, 267 (Tex.2013);

Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662 (TeX.2009);

(ii) since the discovery period ends on January 20, 2023, the Bar has not

ask the court to enlarge the discovery period, as required, Tex. R. Civ. P.

190.5(a),191.1;

(iii) described the speciﬁc discovery sought, as required, Wal-Mart

Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (TeX.App.—Da11as 2009, pet.

denied); see, e.g., Martinez v. Flores, 865 S.W.2d 194, 197—98

(TeX.App.—Corpus Christi 1993, writ denied) (request for more time “to

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 8
complete discovery” was not sufﬁcient);

(iv) described the procedure it intends to use to obtain discovery sought,

as required, State v. Wood Oil Distrib, 751 S.W.2d 863, 865 (Tex.1988)

(depositions); Tri-Steel Structures, Inc. v. BaptistFound, 166 S.W.3d 443 , 447

(TeX.App.—Fort Worth 2005, pet. denied) (same); Verkin v. Southwest Ctr.

One, Ltd. , 784 S.W.2d 92, 94 (TeX.App.—Houston [1st Dist.] 1989, writ denied)

(requests for production and interrogatories). If a continuance is sought to

depose a Witness, the motion must include the witness’s name and address

(street, county, and state of residence). Tex. R. CiV. P. 252;

(V) described the substance of the evidence needed, as required, See Tex.

R. Civ. P. 252; Wal—Mart Stores, 295 S.W.3d at 356;

(vi) stated that the discovery sought is material and show why it is

material, Tex. R. Civ. P. 252; J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668,

676 (Tex.App.—Houston [lst Dist.] 1996, no writ); Celotex Corp. v. Gracy

Meadow Owners Ass’n, 847 S.W.2d 384, 388 (Tex.App.—Austin 1993, writ

denied) (appellate court decided deposition testimony was immaterial);

(vii) showed that it used due diligence to obtain the discovery before

requesting the continuance, Tex. R. Civ. P. 252; Risner v. McDonald’s Corp. ,

18 S.W.3d 903, 909 (Tex.App.—Beaumont 2000, pet. denied); Stierwalt v. FFE

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 9
Transp. Servs. , 499 S.W.3d 1 81, 192 (TeX.App.—E1Paso 2016, no pet.) (motion

for continuance of summary-judgment hearing); Rhima, 829 S.W.2d at 912.

Moreover, the Bar has neither stated why the Bar was unable to obtain the discovery

earlier, TeX. R. CiV. P. 252 (party must state “cause of failure, if known”); Risner, l8
S.W.3d at 909 (party did not explain Why afﬁdavits could not have been timely

obtained) nor “The continuance is not sought for delay only, but so that justice may

be done.” TeX. R. Civ. P. 252. The Bar simply has no case against Ms. Powell. Its

delays and this political prosecution of Ms. Powell must end.

D. PRAYER

For these reasons, Ms. Powell asks the Court to grant her No-E Motion and

sign an order for summary judgment denying all Claims and all theories of law under

or through those claims. Alternatively, Ms. Powell asks for an order specifying the

facts that are established as a matter of law by this motion.

Respectfully submitted,
HOLMES LAWYER, PLLC

By: /s/ Robert H. Holmes
Robert H. Holmes
State Bar No. 09908400
19 St. Laurent Place
Dallas, Texas 75225
Telephone: 214-384-3182
Email: rhholmes@swbell.net

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 10
S. MICHAEL MCCOLLOCH PLLC
S. Michael McColloch
State Bar No. 13431950
6060 N. Central Expressway
Suite 500
Dallas, Texas 75206
Tel: 214—643-6055
Fax: 214-295-9556
Email: smm@mccolloch-1aw.com

and

KAREN COOK, PLLC
Karen Cook
State Bar No. 12696860
6060 N. Central Expressway
Suite 500
Dallas, Texas 75206
Tel: 214-643—6054
Fax: 214-295-9556
Email: karen@karencooklaw.com

COUNSEL FOR POWELL

CERTIFICATE 0F SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been
delivered, by eﬁleTexas.gov to all attorneys of record on January 13, 2023.

/s/ Robert H. Holmes
Robert H. Holmes

Sidney Powell’s Reply to Bar’s Response to Sidney Powell’s No-evidence Motion for Summary Judgment, Page 11
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Robert Holmes on behalf of Robert Holmes
Bar No. 9908400
rhholmes@swbell.net
Envelope ID: 71802020
Status as of 1/17/2023 10:26 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status
Kristin Brady 24082719 kristin.brady@texasbar.com 1/13/2023 4:26:31 PM SENT
S. Michael McColloch 13431950 smm@mccolloch-law.com 1/13/2023 4:26:31 PM SENT
Brittany Paynton brittany.paynton@texasbar.com 1/13/2023 4:26:31 PM SENT
Karen Cook 12696860 karen@karencooklaw.com 1/13/2023 4:26:31 PM SENT
Robert H.Holmes rhholmes@swbell.net 1/13/2023 4:26:31 PM SENT
Rachel Craig rachel.craig@texasbar.com 1/13/2023 4:26:31 PM SENT
Todd Hill thill@collincountytx.gov 1/13/2023 4:26:31 PM SENT

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PARKER, TONYA Track Judge’s New Case

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Document Filed Date

January 13, 2023

Case Filing Date

March 01, 2022

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Motion-Secondary: COMMISSION FOR LAWYER DISCIPLINE vs. SIDNEY POWELL

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