On November 09, 2020 a
Motion-Secondary
was filed
involving a dispute between
Akpan, Aniedi E (As President Of Houston Chapter - Akwa Ibom State,
Houston Chapter - Akwa Ibom State Association Of Nigeria,
and
Adams, Lelia Nyong,
Akpan-Iquot, Itoro Efiong,
Enyong, Idara Udoeyop,
Essien, Lelia Adams,
Ikpe, Iniobong Friday,
Isaiah, Etimbuk Samuel,
Jack, Daniel Sunday,
Okon, Eric Effiong,
Okpon, Victor Nelson,
Udoh, Dara Ime,
Udoh, Glory Inyang,
for OTHER CIVIL
in the District Court of Harris County.
Preview
CAUSE NO. 202072145
HOUSTON CHAPTER AKWA IBOM IN THE DISTRICT COURT
STATE ASSOC. OF IGERIA (USA), INC
ET AL (Plaintiff
Vs. OF HARRIS COUNTY, T
VICTOR NELSON OKPON, ET AL
(Defendant 55 JUDICIAL DISTRICT
DEFENDANTS SUPPLEMENT TO REPLY TO RESPONSE TO OTION
FOR SUMMARY JUDGMENT
DEFENDANTS hereby file this supplement to its reply to the response to
Motion for Summary Judgment
Plaintiffs declaratory judgment claim is not justiciable
City of Terrell, etc. v. Edmunds, etc., 9/8/2020, 5th COA (unpublished
opinion; see attached memorandum of opinion Exhibit “A n applicant for a
declaratory judgment must demonstrate the trial court’s subject matter jurisdiction
relying on Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971
S.W.2d 439, 442 (Tex. 1998)
No ripeness, no jurisdiction where injury is contingent on future events or
remote Need for a concrete/imminent injury for claim to be justiciable No
ripeness where plaintiff has not suffered injury or imminent harm Patterson, 971
S.W.2d at 442
DefendantsSupplement to Reply to Response to Motion for Summary Judgment
Page of
3. In City of Terrell, residents sued City for DJ to stop annexation process and
got injunction at trial court. Held: Case is not ripe because the City annexation
process has not been adopted/concluded. City of Terrell, etc. v. Edmunds, etc.
4. The concerns addressed by the [justiciability] doctrine encompass more than
a question of constitutional prohibition. The doctrine has a pragmatic, prudential
aspect that is directed toward “[conserving] judicial time and resources for real and
current controversies, rather than abstract, hypothetical, or remote disputes.”
Patterson, 971 S.W.2d 439.
5. PPH sued TXDHS to declare unconstitutional the TX legislature’s Rider 14
which excluded state funding of healthcare in minor’s non-parental consent cases,
b/c of conflict with federal law:
• Parties agreed on facts and PPH sole witness was TXDHS employee
• Plan A, Rider 14 implementation would directly violate federal law
• Plan B, Rider 14 implementation would not directly violate federal law
• USDHHS letter stated Rider 14 implementation would violate federal law
The Court held the case is not nonjusticiable. This is precisely the kind of case in
which resolution of the claim presented depends on the occurrence of contingent
future events that may not occur as anticipated or may not occur at all. Patterson,
971 S.W.2d 439.
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 2 of 7
6. While PPH does not have to wait until its funds are revoked, its potential
injury must be more certain; the threat must be established by something more
definite than the USDHHS letter… Because its alleged injury remains contingent,
PPH's claim is not yet ripe for review. Patterson, 971 S.W.2d at 442.
7. In this case, statements by Defendants about Transition Team conducting
election are contingent; thus, Plaintiffs’ case not yet ripe
a) No competing election held
b) No competing Executive claiming control of Association
c) No competing power struggles
d) No action beyond debate (however ugly the words used)
Therefore, Plaintiffs are seeking advisory opinion on validity of Defendants’
actions.
8. Test for Declaratory Judgment is whether there is a real and substantial
conflict. Contrast Patterson v. Planned Parenthood of Houston & Se. Tex., Inc.,
971 S.W.2d 439, 442 (Tex. 1998) with Bonham State Bank v. Beadle, 907 S.W.2d
465, 467 (Tex.1995). In Bonham State Bank, DJ was needed to offset both
judgments
a) Bonhome Bank = $1.6M judgment against Beadle in one jurisdiction
b) Beadle = $75K judgment against Bank in another jurisdiction
9. Test for Advisory Opinion is whether the declaration sought is over a real
and substantial conflict - Bonham State Bank, 907 S.W.2d 465, (Tex.1995). To
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 3 of 7
determine that, the Court asks: Will Declaratory Judgement change the status quo?
That is, evaluate the status before DJ against status after DJ.
10. In this case,
- Before DJ
- Plaintiff withdrawn from AKISAN
- Houston Chapter Members suspended at the pleasure of Plaintiff
- After DJ
- Plaintiff withdrawn from AKISAN
- Houston Chapter Members suspended at the pleasure of Plaintiff
Defendants’ Affirmative Defenses of Privilege and Justification
11. Non-Member National Officers privilege and justification affirmative
defense is valid because (a) they were exercising their own rights in good faith or
(b) have a right that is equal to their conduct in the subject matter. The defense of
privilege or justification is question of law for the court to decide. Prudential Ins.
V. Financial Rev. Servs. 29 S.W.3d 74, 77-78 (Tex.2000).
12. A defendant’s conduct maybe privileged when the defendant is so closely
aligned with the plaintiff that they are considered one entity. See Schoelikopf v.
Pledger, 778 S.W.2d 897, 903 (Tex.Dallas 1989, writ. denied). American Med.
Int’l v. Giurintano, 821 S.W.2d 331, 336 (Tex.App.-Houston [14th Dist.] 1991, no
writ) (parent and subsidiary cannot be liable for interfering with each other).
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 4 of 7
13. A defendant who intentionally interferes in a third party’s performance of
contract is not liable for interference if the defendant gives truthful information or
honest advice within the scope of a request for advice. Restatement (2d) of Torts
772; see Robles v. Consolidated Graphics, Inc., 965 S.W.2d 552, 561 (Tex.App.-
Houston [14th Dist.] 1997, pet. denied).
14. A defendant is justified in interfering in a plaintiff’s affairs if it exercises (a)
its own legal rights or (b) a good faith claim to a colorable legal right, even if that
claim ultimately proves to be mistaken. Prudential Ins., 29 S.W.3d at 80;
Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex.1996).
Justification is established as a matter of law when the acts that the plaintiff
complains about are merely the defendant’s exercises of its own contractual rights.
Prudential Ins., 29 S.W.3d at 81. The motivation for asserting its legal rights is not
relevant. Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully
request the Court to enter a take-nothing judgment against Plaintiffs and award
Defendants their reasonable and necessary attorney’s fees incurred in the defense
of this lawsuit, and enter any and all other relief, both at law and in equity, general
and special, to which Defendants are justly entitled to.
***SIGNATURE BLOCK ON NEXT PAGE***
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 5 of 7
Respectfully Submitted,
THE LAW OFFICE OF DEREK U OBIALO
/s/Derek U Obialo________
Derek U. Obialo
SBN 24060354
1415 North Loop West, Suite 1140
Houston, Texas 77008
Tel. 346-406-4040
Fax. 281-806-5449
Email: derekobialo@obialo.com
ATTORNEY FOR DEFENDANTS
NKOLI STELLA UWECHIA, PATRICIA UGWU
and VIVIEN IWEANYA
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 6 of 7
CERTIFICATE OF SERVICE
I certify that a true copy of the above document was served pursuant to Rule
21a of the Texas Rules of Civil Procedure by electronic transmission on Plaintiffs’
counsel of record below on March 14, 2021:
Gogo UK Owor
SBN. 24026105
Law Office of Gogo UK Owor & Associates
6420 Hillcroft Avenue, Suite 307
Houston, TX 77081
Tel. 713-778-8000
Fax. 713-778-0305
Email: attorney@gogolaw.net
ATTORNEY FOR PLAINTIFFS
/s/Derek U Obialo
Derek U Obialo
Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 7 of 7
Preview
CAUSE NO. 202072145 HOUSTON CHAPTER AKWA IBOM IN THE DISTRICT COURT STATE ASSOC. OF IGERIA (USA), INC ET AL (Plaintiff Vs. OF HARRIS COUNTY, T VICTOR NELSON OKPON, ET AL (Defendant 55 JUDICIAL DISTRICT DEFENDANTS SUPPLEMENT TO REPLY TO RESPONSE TO OTION FOR SUMMARY JUDGMENT DEFENDANTS hereby file this supplement to its reply to the response to Motion for Summary Judgment Plaintiffs declaratory judgment claim is not justiciable City of Terrell, etc. v. Edmunds, etc., 9/8/2020, 5th COA (unpublished opinion; see attached memorandum of opinion Exhibit “A n applicant for a declaratory judgment must demonstrate the trial court’s subject matter jurisdiction relying on Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998) No ripeness, no jurisdiction where injury is contingent on future events or remote Need for a concrete/imminent injury for claim to be justiciable No ripeness where plaintiff has not suffered injury or imminent harm Patterson, 971 S.W.2d at 442 DefendantsSupplement to Reply to Response to Motion for Summary Judgment Page of 3. In City of Terrell, residents sued City for DJ to stop annexation process and got injunction at trial court. Held: Case is not ripe because the City annexation process has not been adopted/concluded. City of Terrell, etc. v. Edmunds, etc. 4. The concerns addressed by the [justiciability] doctrine encompass more than a question of constitutional prohibition. The doctrine has a pragmatic, prudential aspect that is directed toward “[conserving] judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes.” Patterson, 971 S.W.2d 439. 5. PPH sued TXDHS to declare unconstitutional the TX legislature’s Rider 14 which excluded state funding of healthcare in minor’s non-parental consent cases, b/c of conflict with federal law: • Parties agreed on facts and PPH sole witness was TXDHS employee • Plan A, Rider 14 implementation would directly violate federal law • Plan B, Rider 14 implementation would not directly violate federal law • USDHHS letter stated Rider 14 implementation would violate federal law The Court held the case is not nonjusticiable. This is precisely the kind of case in which resolution of the claim presented depends on the occurrence of contingent future events that may not occur as anticipated or may not occur at all. Patterson, 971 S.W.2d 439. Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 2 of 7 6. While PPH does not have to wait until its funds are revoked, its potential injury must be more certain; the threat must be established by something more definite than the USDHHS letter… Because its alleged injury remains contingent, PPH's claim is not yet ripe for review. Patterson, 971 S.W.2d at 442. 7. In this case, statements by Defendants about Transition Team conducting election are contingent; thus, Plaintiffs’ case not yet ripe a) No competing election held b) No competing Executive claiming control of Association c) No competing power struggles d) No action beyond debate (however ugly the words used) Therefore, Plaintiffs are seeking advisory opinion on validity of Defendants’ actions. 8. Test for Declaratory Judgment is whether there is a real and substantial conflict. Contrast Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998) with Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). In Bonham State Bank, DJ was needed to offset both judgments a) Bonhome Bank = $1.6M judgment against Beadle in one jurisdiction b) Beadle = $75K judgment against Bank in another jurisdiction 9. Test for Advisory Opinion is whether the declaration sought is over a real and substantial conflict - Bonham State Bank, 907 S.W.2d 465, (Tex.1995). To Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 3 of 7 determine that, the Court asks: Will Declaratory Judgement change the status quo? That is, evaluate the status before DJ against status after DJ. 10. In this case, - Before DJ - Plaintiff withdrawn from AKISAN - Houston Chapter Members suspended at the pleasure of Plaintiff - After DJ - Plaintiff withdrawn from AKISAN - Houston Chapter Members suspended at the pleasure of Plaintiff Defendants’ Affirmative Defenses of Privilege and Justification 11. Non-Member National Officers privilege and justification affirmative defense is valid because (a) they were exercising their own rights in good faith or (b) have a right that is equal to their conduct in the subject matter. The defense of privilege or justification is question of law for the court to decide. Prudential Ins. V. Financial Rev. Servs. 29 S.W.3d 74, 77-78 (Tex.2000). 12. A defendant’s conduct maybe privileged when the defendant is so closely aligned with the plaintiff that they are considered one entity. See Schoelikopf v. Pledger, 778 S.W.2d 897, 903 (Tex.Dallas 1989, writ. denied). American Med. Int’l v. Giurintano, 821 S.W.2d 331, 336 (Tex.App.-Houston [14th Dist.] 1991, no writ) (parent and subsidiary cannot be liable for interfering with each other). Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 4 of 7 13. A defendant who intentionally interferes in a third party’s performance of contract is not liable for interference if the defendant gives truthful information or honest advice within the scope of a request for advice. Restatement (2d) of Torts 772; see Robles v. Consolidated Graphics, Inc., 965 S.W.2d 552, 561 (Tex.App.- Houston [14th Dist.] 1997, pet. denied). 14. A defendant is justified in interfering in a plaintiff’s affairs if it exercises (a) its own legal rights or (b) a good faith claim to a colorable legal right, even if that claim ultimately proves to be mistaken. Prudential Ins., 29 S.W.3d at 80; Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex.1996). Justification is established as a matter of law when the acts that the plaintiff complains about are merely the defendant’s exercises of its own contractual rights. Prudential Ins., 29 S.W.3d at 81. The motivation for asserting its legal rights is not relevant. Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996). PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request the Court to enter a take-nothing judgment against Plaintiffs and award Defendants their reasonable and necessary attorney’s fees incurred in the defense of this lawsuit, and enter any and all other relief, both at law and in equity, general and special, to which Defendants are justly entitled to. ***SIGNATURE BLOCK ON NEXT PAGE*** Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 5 of 7 Respectfully Submitted, THE LAW OFFICE OF DEREK U OBIALO /s/Derek U Obialo________ Derek U. Obialo SBN 24060354 1415 North Loop West, Suite 1140 Houston, Texas 77008 Tel. 346-406-4040 Fax. 281-806-5449 Email: derekobialo@obialo.com ATTORNEY FOR DEFENDANTS NKOLI STELLA UWECHIA, PATRICIA UGWU and VIVIEN IWEANYA Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 6 of 7 CERTIFICATE OF SERVICE I certify that a true copy of the above document was served pursuant to Rule 21a of the Texas Rules of Civil Procedure by electronic transmission on Plaintiffs’ counsel of record below on March 14, 2021: Gogo UK Owor SBN. 24026105 Law Office of Gogo UK Owor & Associates 6420 Hillcroft Avenue, Suite 307 Houston, TX 77081 Tel. 713-778-8000 Fax. 713-778-0305 Email: attorney@gogolaw.net ATTORNEY FOR PLAINTIFFS /s/Derek U Obialo Derek U Obialo Defendants’ Supplement to Reply to Response to Motion for Summary Judgment. Page 7 of 7