On August 27, 2012 a
Motion,Ex Parte
was filed
involving a dispute between
Albert, Laurence,
Brinsdon, Beth,
Swamplot Industries Llc,
Thuesen, Mark,
Thuesen, Mark L,
and
2520 Robinhood At Kirby Condominium Association Inc,
Albert, Laurence David,
Amerisure Insurance Company,
Brinsdon, Beth Anne,
Creative Management Company Inc,
Doyle, Michael Patrick,
Doyle Raizner Llp,
Malisow, Craig Phillip,
Raizner, Jeffrey Lewis,
Swamplot Industries Llc,
Thuesen, Mark L,
Carpenter, Aaron Neil,
Garcia, Candace,
Schoolar, Catherine E,
for MALICIOUS PROSECUTION
in the District Court of Harris County.
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CAUSE NO, 2012-49262
SWAMPLOT INDUSTRIES LLC, IN THE DISTRICT COURT OF
LAURENCE ALBERT, BETH
BRINSDON
Plaintiffs,
Vv.
2520 ROBINHOOD AT KIRBY
CONDOMINIUM ASSOCIATION, INC.
ET AL
HARRIS COUNTY, TEXAS
Defendanis,
v
CATHERINE SCHOOLAR, Individually
and CANDACE GARCIA, Individually
and AARON NEIL CARPENTER,
Individually
Third-Party Defendants 151" JUDICIAL DISTRICT
THIRD-PARTY DEFENDANTS CATHERINE SCHOOLAR AND CANDACE
GARCIA’S RESPONSE IN OPPOSITION TO MOTION FOR RECONSIDERATION.
MOTION TO STAY, AND MOTION TO REOPEN FOR ADDITIONAL EVIDENCE
TO THE HONORABLE MIKE ENGELHART:
The Court was correct to grant the Motion to dismiss of Third-Party Defendants
Catherine Schoolar and Candace Garcia. Third-Party Plaintiff Mark Thuesen’s motion for
reconsideration of dismissal should be denied.
I Introduction
14 As showed by a preponderance of the evidence in Schoolar and Garcia’s Motion
to Dismiss, Thuesen’s claims against them are all based on Schoolar and Garcia’s exercise of
their rights of free speech and petition. As such, pursuant to Texas Civil Practice and Remedies
Code Chapter 27, the burden shifted to Thuesen to establish by clear and specific evidence a
Third-Party Defendants Catherine Schoolar and Candace Garcia's Response In Opposition to Motion for Reconsideration,
Motion to Stay and Motion to Reopen for Additional Evidence Page t
03/22/2013 02:01:26 PM 713-755-1451 Page 2/5
prima facie case for each essential element of the claims in question. Rather than providing any
evidence in support of any of his allegations, Thuesen amended his pleadings in an attempt to
avoid the requirements of Chapter 27. However, while Thuesen changed the wording of his
pleadings, he is still making claims against Schoolar and Garcia based on, related to and/or in
response to Schoolar and Garcia’s exercise of rights of free speech and petition. As such, the
Court was justified in granting the Motion to Dismiss. ,
Hl. Argument
2.1 Thuesen’s initial claims against Schoolar and Garcia were based on Schoolar and
Garcia’s relationship with Swamplot.com, a local Houston website that covers real estate and
related issues. See Exhibits A — AG to Schoolar and Garcia’s Motion to Dismiss. As has been
well documented in this litigation, Thuesen (individually and as president of 2520 Robinhood at
Kirby Condominium Association, Inc.) has had well publicized, ongoing litigation and disputes
against several businesses in the community since 2009. See id. Swamplot.com reported on the
litigation. See id. As a result, Swamplot and its owner/operator, Laurence Albert, Catherine
Schoolar and ultimately Candace Garcia were sued because of Swamplot.com’s reporting!
Thuesen’s changing of the words in his petition doesn’t change the fact that his allegations
against both Catherine Schoolar and Candace Garcia still directly relate to communications they
allegedly made related to the above-referenced disputes and litigation.
2.2 Thuesen’s amended claims against Schoolar allege that Schoolar defamed him in
the course and scope of her attempting to sell advertising for Swamplot.com. He specifically
alleges that Schoolar accused Thuesen of interfering with Swamplot.com’s business, resulting in
Thuesen having to defend himself against claims of tortuous interference.
! Catherine Schoolar’s only role with Swamplot was that she attempted to sell advertising for the website on a part
time, contractual basis. Candace Garcia’s only role with Swamplot was that she submitted photographs to the
website on a part time, volumteer basis. See Motion to Dismiss Exhibits B and C.
Third-Party Defendants Catherine Schoolar and Candace Garcia’s Response In Opposition to Motion for Reconsideration,
Motion to Stay and Motion to Reopen for Additional Evidence Page 2
03/22/2013 02:01:26 PM 713-755-1451 Page 3/5
2.3 These newest allegations clearly are still based on, relate to and/or are in response
to Schoolar’s right of free speech as laid out in Chapter 27. Exercise of the right of free speech
means a communication made in connection with a matter of public concern. TEX. Civ. PRAC. &
REM. CODE § 27.001(3). Matters of public concern include issues related to environmental,
economic or community well-being; and/or goods, products, or services in the marketplace.
Tex. Civ. Prac. & REM. CODE § 27.001(7)(B) & (B). All of Thuesen and 2520 Robinhood’s
public disputes and litigation with neighboring businesses, including Swamplot, involve issues
related to economic and community well being. Further, the 2520 Robinhood building itself,
Swamplot.com, Catherine Schoolar’s advertising sales services and the other business litigating
against Thuesen and 2520 Robinhood are goods, products or services in the marketplace. In
short, the Court had before it ample evidence upon which it could conclude that the alleged
communications at issue were made in connection with issues related to economic or community
well being and issues related to good, products or sevices in the marketplace.
24 Thuesen’s amended claims against Candace Garcia directly relate to her
photographing the 2520 Robinhood condominium building for Swamplot.com’s website.
According to Chapter 27, a communication specifically includes “a statement or document in any
form or medium, including oral, visual, written, audiovisual or electronic.” TEx. Cry. PRAc. &
Rem. Cone § 27.001(1). As such, no matter how Thuesen chooses to change the wording in his
pleadings, he is still suing Garcia for a communication she allegedly made regarding a matter of
public concern (Thuesen and the 2520 Robinhood’s well publicized disputes and litigation with
neighboring businesses and Swamplot.com) and regarding goods, products and services in the
market place as laid out above.
‘Third-Party Defendants Catherine Schoolar and Candace Garcia's Response In Opposition to Motion for Reconsideration,
Motion to Stay and Motion to Reopen for Additional Evidence Page3
03/22/2013 02:01:26 PM 713-755-1451 Page 4/5
2.5 Finally, the alleged communications made by both Schoolar and Garcia were also
made “in or pertaining to a judicial proceeding.” As such, even if true, they were made in
exercise of Schoolar and Garcia’s rights to petition. Tex. Civ. Prac. & REM. CODE § 27.001(4).
2.6 Having established that Thuesen’s allegations targets speech and petition, the
burden shifted to Thuesen to “establish by clear and specific evidence a prima facie case for each
essential element of his claim in question.” TEX. Civ. PRAc. & REM. CoDE § 27.005(c). The
record is clear that Thuesen has not produced a scintilla of evidence supporting any element of
his claims. As such, the Court was correct in granting Schoolar and Garcia’s Motion to Dismiss.
iid.
CONCLUSION AND PRAYER
3.1 WHEREFORE, PREMISES CONSIDERED, Third-Party Defendants respectfully
pray that this Court DENY Third Party Plaintiff's Motion for Reconsideration and for all other
relief, at law or in equity, to which they may be justified.
Respectfully submitted,
-ERDBN LAW FI , PLLC
M. Andrew Seerden
State Bar No, 24008007
2311 Canal, Suite 214
Houston, Texas 77007
713.526.6700
713.526.6704 Facsimile
ATTORNEY FOR THIRD PARTY
DEFENDANTS CATHERINE
SCHOOLAR and CANDACE GARCIA
ee A SSE er EN
Third-Party Defendants Catherine Schoolar and Candace Garcia’s Response In Opposition to Motion for Reconsideration,
Motion to Stay and Motion to Reopen for Additional Evidence Page 4
03/22/2013 02:01:26 PM 713-755-1451 Page 5/5
CERTIFICATE OF SERVICE
Pursuant to Rule T.R.C.P 21, I certify that a true and correct copy of the above and
foregoing instrament has been sent to all counsel of record by mail, telecopy, hand delivery
and/or certified mail, return receipt requested, on this ay oes 2013.
eerd
eee Sse pee
Third-Party Defendants Catherine Scholar and Candace Garcia's Response In Opposition to Motion for Reconsideration,
Motion to Stay and Motion to Reopen for Additional Evidence Page S
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03/22/2013 02:01:26 PM 713-755-1451 Page 1/5 CAUSE NO, 2012-49262 SWAMPLOT INDUSTRIES LLC, IN THE DISTRICT COURT OF LAURENCE ALBERT, BETH BRINSDON Plaintiffs, Vv. 2520 ROBINHOOD AT KIRBY CONDOMINIUM ASSOCIATION, INC. ET AL HARRIS COUNTY, TEXAS Defendanis, v CATHERINE SCHOOLAR, Individually and CANDACE GARCIA, Individually and AARON NEIL CARPENTER, Individually Third-Party Defendants 151" JUDICIAL DISTRICT THIRD-PARTY DEFENDANTS CATHERINE SCHOOLAR AND CANDACE GARCIA’S RESPONSE IN OPPOSITION TO MOTION FOR RECONSIDERATION. MOTION TO STAY, AND MOTION TO REOPEN FOR ADDITIONAL EVIDENCE TO THE HONORABLE MIKE ENGELHART: The Court was correct to grant the Motion to dismiss of Third-Party Defendants Catherine Schoolar and Candace Garcia. Third-Party Plaintiff Mark Thuesen’s motion for reconsideration of dismissal should be denied. I Introduction 14 As showed by a preponderance of the evidence in Schoolar and Garcia’s Motion to Dismiss, Thuesen’s claims against them are all based on Schoolar and Garcia’s exercise of their rights of free speech and petition. As such, pursuant to Texas Civil Practice and Remedies Code Chapter 27, the burden shifted to Thuesen to establish by clear and specific evidence a Third-Party Defendants Catherine Schoolar and Candace Garcia's Response In Opposition to Motion for Reconsideration, Motion to Stay and Motion to Reopen for Additional Evidence Page t 03/22/2013 02:01:26 PM 713-755-1451 Page 2/5 prima facie case for each essential element of the claims in question. Rather than providing any evidence in support of any of his allegations, Thuesen amended his pleadings in an attempt to avoid the requirements of Chapter 27. However, while Thuesen changed the wording of his pleadings, he is still making claims against Schoolar and Garcia based on, related to and/or in response to Schoolar and Garcia’s exercise of rights of free speech and petition. As such, the Court was justified in granting the Motion to Dismiss. , Hl. Argument 2.1 Thuesen’s initial claims against Schoolar and Garcia were based on Schoolar and Garcia’s relationship with Swamplot.com, a local Houston website that covers real estate and related issues. See Exhibits A — AG to Schoolar and Garcia’s Motion to Dismiss. As has been well documented in this litigation, Thuesen (individually and as president of 2520 Robinhood at Kirby Condominium Association, Inc.) has had well publicized, ongoing litigation and disputes against several businesses in the community since 2009. See id. Swamplot.com reported on the litigation. See id. As a result, Swamplot and its owner/operator, Laurence Albert, Catherine Schoolar and ultimately Candace Garcia were sued because of Swamplot.com’s reporting! Thuesen’s changing of the words in his petition doesn’t change the fact that his allegations against both Catherine Schoolar and Candace Garcia still directly relate to communications they allegedly made related to the above-referenced disputes and litigation. 2.2 Thuesen’s amended claims against Schoolar allege that Schoolar defamed him in the course and scope of her attempting to sell advertising for Swamplot.com. He specifically alleges that Schoolar accused Thuesen of interfering with Swamplot.com’s business, resulting in Thuesen having to defend himself against claims of tortuous interference. ! Catherine Schoolar’s only role with Swamplot was that she attempted to sell advertising for the website on a part time, contractual basis. Candace Garcia’s only role with Swamplot was that she submitted photographs to the website on a part time, volumteer basis. See Motion to Dismiss Exhibits B and C. Third-Party Defendants Catherine Schoolar and Candace Garcia’s Response In Opposition to Motion for Reconsideration, Motion to Stay and Motion to Reopen for Additional Evidence Page 2 03/22/2013 02:01:26 PM 713-755-1451 Page 3/5 2.3 These newest allegations clearly are still based on, relate to and/or are in response to Schoolar’s right of free speech as laid out in Chapter 27. Exercise of the right of free speech means a communication made in connection with a matter of public concern. TEX. Civ. PRAC. & REM. CODE § 27.001(3). Matters of public concern include issues related to environmental, economic or community well-being; and/or goods, products, or services in the marketplace. Tex. Civ. Prac. & REM. CODE § 27.001(7)(B) & (B). All of Thuesen and 2520 Robinhood’s public disputes and litigation with neighboring businesses, including Swamplot, involve issues related to economic and community well being. Further, the 2520 Robinhood building itself, Swamplot.com, Catherine Schoolar’s advertising sales services and the other business litigating against Thuesen and 2520 Robinhood are goods, products or services in the marketplace. In short, the Court had before it ample evidence upon which it could conclude that the alleged communications at issue were made in connection with issues related to economic or community well being and issues related to good, products or sevices in the marketplace. 24 Thuesen’s amended claims against Candace Garcia directly relate to her photographing the 2520 Robinhood condominium building for Swamplot.com’s website. According to Chapter 27, a communication specifically includes “a statement or document in any form or medium, including oral, visual, written, audiovisual or electronic.” TEx. Cry. PRAc. & Rem. Cone § 27.001(1). As such, no matter how Thuesen chooses to change the wording in his pleadings, he is still suing Garcia for a communication she allegedly made regarding a matter of public concern (Thuesen and the 2520 Robinhood’s well publicized disputes and litigation with neighboring businesses and Swamplot.com) and regarding goods, products and services in the market place as laid out above. ‘Third-Party Defendants Catherine Schoolar and Candace Garcia's Response In Opposition to Motion for Reconsideration, Motion to Stay and Motion to Reopen for Additional Evidence Page3 03/22/2013 02:01:26 PM 713-755-1451 Page 4/5 2.5 Finally, the alleged communications made by both Schoolar and Garcia were also made “in or pertaining to a judicial proceeding.” As such, even if true, they were made in exercise of Schoolar and Garcia’s rights to petition. Tex. Civ. Prac. & REM. CODE § 27.001(4). 2.6 Having established that Thuesen’s allegations targets speech and petition, the burden shifted to Thuesen to “establish by clear and specific evidence a prima facie case for each essential element of his claim in question.” TEX. Civ. PRAc. & REM. CoDE § 27.005(c). The record is clear that Thuesen has not produced a scintilla of evidence supporting any element of his claims. As such, the Court was correct in granting Schoolar and Garcia’s Motion to Dismiss. iid. CONCLUSION AND PRAYER 3.1 WHEREFORE, PREMISES CONSIDERED, Third-Party Defendants respectfully pray that this Court DENY Third Party Plaintiff's Motion for Reconsideration and for all other relief, at law or in equity, to which they may be justified. Respectfully submitted, -ERDBN LAW FI , PLLC M. Andrew Seerden State Bar No, 24008007 2311 Canal, Suite 214 Houston, Texas 77007 713.526.6700 713.526.6704 Facsimile ATTORNEY FOR THIRD PARTY DEFENDANTS CATHERINE SCHOOLAR and CANDACE GARCIA ee A SSE er EN Third-Party Defendants Catherine Schoolar and Candace Garcia’s Response In Opposition to Motion for Reconsideration, Motion to Stay and Motion to Reopen for Additional Evidence Page 4 03/22/2013 02:01:26 PM 713-755-1451 Page 5/5 CERTIFICATE OF SERVICE Pursuant to Rule T.R.C.P 21, I certify that a true and correct copy of the above and foregoing instrament has been sent to all counsel of record by mail, telecopy, hand delivery and/or certified mail, return receipt requested, on this ay oes 2013. eerd eee Sse pee Third-Party Defendants Catherine Scholar and Candace Garcia's Response In Opposition to Motion for Reconsideration, Motion to Stay and Motion to Reopen for Additional Evidence Page S