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Cause Number 2017-66216
Kelly Coleman § In the District Court
Plaintiff,
§
versus
Emile Nassar, Robert Cummings, and §
The Board of Trustees of the Pines §
Condominium Association, Inc. §
Defendants, §
§ of Harris County, Texas
Action Premier Hauling, LLC,
Intervenor. §
versus
Robert Wolfe, Creative Management §
Company, Kelly Coleman and §
OmegaBuilders Group, LP
andLaska Santino
Third Party Defendants § 157 Judicial District
Action Premier Hauling, Inc.’s Response to Robert Wolfe and Laska Santino’s Motion to
Dismiss
To the Honorable District Judge:
Action Premier Hauling, LLC, Intervenor, files this Response to Robert Wolfe and Laska
Santino’s Motion to Dismiss:
Objection to Hearing and Mandatory Denial of Motion to Dismiss
The second stepin filing the Motion to Dismiss under the Texas Citizens
Participation Act (“TCPA”)is set a hearing within the mandatory time periods.
Grubbs v. ATW Investments, Inc, 544 S.W.3d 421 (Tex. App. – San Antonio, 2017); Morin v. Law Office of
Response to Motion to Dismiss - Page 1
hearing on the TCPA motion must be set not later than the 60 day after the
date of service of the motion. “The requirement that the hearing be set within the
specified time is mandatory Here, Movants set their motion well after the 60
day deadline. In fact, Movants notice of hearing was filed on day 59
The Court must deny Movants’ motion as required by the statute.
Further, Bob Wolfe first made an appearance in this lawsuit on March 2, 2018,
more than a year prior tothe TCPA hearing.
The Underlying Lawsuit
On October 5, 2017, Plaintiff sued Defendants for alleged violations of the Open
Meetings Act, fraud, breach of fiduciary duty, conversion, and sought injunctive
relief. Plaintiff did not sue Intervenor.
On October 5, 2017, Plaintiff obtained aex parteTemporary Restraining Order
in this Court. The order specifically prohibit any Defendant from paying
Intervenor, even though Intervenor s not a party to this lawsuit.
The parties attended a temporary injunction hearing, where this Honorable Court
denied Plaintiff’s temporary injunction and allowed the Association to pay
Intervenor. Shortly after the temporary injunction hearing, the board of the
Association was voted out and new board members were voted in. The new
board of the Association has refused to make any payments.
Kleinhans Gruber, PLLC , No. 03 00174 CV, 2015 WL 4999045, at *1 (Tex. App.Austin Aug. 21, 2015, no
pet.) (mem. op.)
Tex. Civ. Prac. & Rem. Code § 27.004(a).
See, Intervenor’s Second Amended Intervention, filed on December 13, 2017, and Bob Wolfe’s Motion for
Summary Judgment filed on March 2, 2018.
Response to Motion to Dismiss Page
On September 10, 2017, the Pines Condominium Association, Inc. (the
“Association”), through its president, Emile Nassar, entered into a contract wit
Intervenor to provide containers and cleanup of the entire condominium complex
after the devastation of Hurricane Harvey. Intervenor was one of many
companies to bid on the services for this work.
Intervenor provided all work at the agreed upon prices, but the Association was
unable to pay its final payment due to this lawsuit.
This job was a large scale cleanup for more than 250 units, for which Intervenor
provided many hours, labor and equipment. Intervenor was very efficient and
timely and had no complaints regarding Intervenor’s job performance.
On or about September 13, 2017, the Association, through its President,
Intervenor and Creative Management Company (“Creative Management”) met at
the offices of Creative Management. At that meeting , Creative Management
and the Association stated to Intervenor that the September 10, 2017, Contract
had been approved and ratified by the Association’s board.
On October 3, 2017, the Association, through an executive session, ratified the
contract and approved full payment to Intervenor. The Association made
See, Affidavit of Matthew Moody attached hereto as Exhibit “A.”
Id.
Id.
Id.
Id.
Id; Deposition of Emile Nassar is attached hereto as Exhibit “B”; emporary injunction transcript is attached
hereto as Exhibit “ .”
Id.
Id.
Response to Motion to Dismiss Page
payments to Intervenor for the first invoices sent to the Association.
Prior to this lawsuit, the Association, through Creative Management, approved
payment to Intervenor. However, Kelly Colema n, Robert Wolfe, Laska Santino
and other yet to be identified persons interfered with the payment and threated
litigation against Creative Management if the payment was sent to Intervenor.
Those threats led Creative Management to call Intervenor and inform Intervenor
that they put a stop payment on the last check.
After the temporary injunction hearing, in good faith, Intervenor finished the
cleanup of the condominium complex, and sent a final bill.
Despite repeated demands, and the fact that the Association had previously
approved payment to Intervenor, the Association has refused to pay Intervenor.
Intervenor’s Lawsuit is not ba ed on, or related to Defendant’s Rights
Robert Wolfe and Laska Santino (“Movants”)must prove that this action is based
related to, or in response to the Movant’s exercise of the right of free speech,
the right to petition, or the right of association. Movants have provided no
evidence, no affidavits and no documents to support their claims. Movants’ entire
Motion is based upon hearsay and speculation.
It is important to note that Intervenors have not sued Movants under any type of
defamationcause of action. In fact, Intervenors have no idea what Movants
Exhibit A; Affidavit of Emile Nassar attached hereto as Exhibit “B.”
Exhibit
Id.
Id.
Exhibit A.
Id.
Response to Motion to Dismiss Page
actually said or wrote to Creative Management
Exercise of the right of free speech According to the TCPA statute, exercise of
the right of free speech means a communication made in connection with a matter
of public concern. Movants communication was not a public writing. Movants
communications did not involve amatter of public concern. Movants
communication was made towards Creative Management. Movants
communication was to disrupt the contract between two private parties.Despite
Movants own admissions, Movants are not responsible for the payment of the
contract between Action and the Association.
Exercise of the right to petitionMovants meet no definition under the statute.
Movants never threatened litigation against Intervenors. Movants havenever
sued Intervenor Intervenor had no idea that there was any type of lawsuit being
threatened against anybody. This lawsuit began as a fight between residents and
the board of the Association. Intervenor was caught in the middle.
Exerciseof the right of association Movants made no argument for the right o
association.
The TCPAprotects free speech directed toward the government, but it also
includes a person’s right to communicate review or evaluations of services in the
marketplace. None of those things occurred in this instance. Movants have not
Affidavit of Robert Cernosek attached hereto as Exhibit “ .” The emails to Creative Management have not been
produced.
Tex. Civ. Prac. & Rem. Code 27.001(3).
Cernosek Affidavit.
Id.
Better Bus. Bur. Of Metro. Houston, Inc. v. John Moore Servs., 500 S.W.3d 26, (Tex. App. Houston [1 Dist.]
Response to Motion to Dismiss Page
complained about Intervenor’s work or services. Movants have not
communicated unfavorable review or services of Intervenor. Even if Movants
had made unfavorable reviews of Itervenor, Intervenor has not sued upon any
negative communications from Movants.
Movants communication (whatever communication it was) is not being criticized
under Movants right to free speech. Movants can say whatever they want to say.
However, ovants cannot purposefully interfere with a third partycontract
Movants’ motion is frivolous.
Intervenor has a prima facie case
In the event that the Court finds Movant’sTCPA hearing was timely and
Movant’s Motion is covered by the TCPA, Intervenorcan establish by clear and
specific evidence a prima facie case for each essential element of the claim in
question. The Legislature’s use of the term ‘prima facie case’ implies a minimal
factual burden: ‘prima facie’ evidence is the ‘minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true
The Court should examine the evidence in a light most favorable to Intervenor
to each element of its cause of action.The elements for this claim are: (1) an
existing contract subject to interference, (2) a willful and intentional act of
interference with the contract, (3) that proximately caused the plaintiff's injury,
2013, pet. denied).
Exhibit A; Exhibit B.
Exhibit A.
Tex. Civ. Prac. & Rem. Code § 27.005
Better Bus. Bur. Of Metro. Houston, Inc. v. John Moore Servs., 500 S.W.3d 26, (Tex. App. Houston [1 Dist.]
2013, pet. denied).
Response to Motion to Dismiss Page
and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Financial
Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000)
Movants failed to provide any evidenceas to any elements of tortious interference
with existing contract. Movants faileto make any argument as to any defense
they may have regarding this cause of action.
An existing contract. Attached heretois a written contract between Intervenor
and the Association. The Association’s president, Emile Nassar, admits there is
a written contract. The Association admitted at the injunction hearing th the
Association ratified the contract in an executive session. This is also confirmed
by the Association’s president Emile Nassar. The Association also made
payments on the contract.
A Willful and intentional act of interference.At the temporary in junction hearing
Jeffrey Douglas, owner andcorporate representative of Creative Management
testified thatthe board approved a final payment to Intervenor, but Creative
Management held the check because of emails and phone calls directed to
Creative Managementto prevent the payment from being sent to In ervenor. If
there was no threat of a temporary restraining order, Creative would have made
the payment to Intervenor. Kelly Coleman, Robert Wolfe and Laska Santino
Cernosek Affdavit. Contract attached hereto as Exhibit “C,:
Exhibit D
Exhibit F at 107:9 109:2
Nassar Affidavit.
Cernosek Affidavit.
Injunction transcript at 142:6 143:16.
Id.
Response to Motion to Dismiss Page
were some of the people that contacted Creative Managementto prevent the
payments.
Creative Management called Action to let them know they had a check ready but
could not honor the check because of the interference of Movants.
But for Movants interference, Intervenors would have been paid The failure of
the Association to pay Intervenor has caused damages well in excess of
Even the Association’s president at the time of the transaction
admits that the Association owes Intervenor $327,575.00, plus 15% interest.
Motion for Sanctions under TCPA § 27.009(b)
Movants’ Motion to Dismiss is frivolous. Movants provided no evidence, no
affidavits and no explanation as to howa tortious interference, on its own, would
apply to a TCPA claim. Movants failed to set a hearing during the mandatory
time period. Movants filed a motion on a party that first made his appearance
over 14 months ago, even though the statute says the motion must be filed in 60
days.
Movant’s Motion has stymiedthe discovery process by the filing of this Motion
and is simply attempting to waste more time and run up more fees. If a court
finds that a motion to dismiss under the TCPA is frivolous or solely intended to
delay, the Court may award court costs and reasonable attorney’s fees to the
Id. See, Exhibit ” is a true and correct copy of the email from Laska Santino to Creative Management.
Cernosek Affidavit.
Cernosek Affidavit.
Id.
Nassar Affidavit.
Response to Motion to Dismiss Page
responding party
Action Premier Hauling, LLC, Intervenor, prays that, the Court deny Movant’s Motion to
Dismiss and sanction Movant’scourt costs and reasonable attorney’s feesand grant such other
relief to which Action Premier Hauling, LLC may show itself entitled.
Respectfully submitted,
________/s Travis Owens
Travis Owens
Texas Bar Number 24065859
Owens Law Group, P.L.L.C.
P.O. Box 8605
The Woodlands, TX 77387
Tel. (936) 828
Fax. (832) 327
travis@owens lawgroup.com
Attorney for Intervenor
CERTIFICATE OF SERVICE
I certify that on April 25, 2019a true and correct copy of the foregoing was served to
each person listed below, via e file, pursuant to Texas Rules of Civil Procedure 21 and 21a.
Mitchel Katine
mkatine@lawkn.com
Gregory Godkin
ggodkin@rmwbh.com
Allan Goldstein
allang@mlhs.net
________/s Travis Owens
Travis Owens
Response to Motion to Dismiss Page
Preview
Cause Number 2017-66216 Kelly Coleman § In the District Court Plaintiff, § versus Emile Nassar, Robert Cummings, and § The Board of Trustees of the Pines § Condominium Association, Inc. § Defendants, § § of Harris County, Texas Action Premier Hauling, LLC, Intervenor. § versus Robert Wolfe, Creative Management § Company, Kelly Coleman and § OmegaBuilders Group, LP andLaska Santino Third Party Defendants § 157 Judicial District Action Premier Hauling, Inc.’s Response to Robert Wolfe and Laska Santino’s Motion to Dismiss To the Honorable District Judge: Action Premier Hauling, LLC, Intervenor, files this Response to Robert Wolfe and Laska Santino’s Motion to Dismiss: Objection to Hearing and Mandatory Denial of Motion to Dismiss The second stepin filing the Motion to Dismiss under the Texas Citizens Participation Act (“TCPA”)is set a hearing within the mandatory time periods. Grubbs v. ATW Investments, Inc, 544 S.W.3d 421 (Tex. App. – San Antonio, 2017); Morin v. Law Office of Response to Motion to Dismiss - Page 1 hearing on the TCPA motion must be set not later than the 60 day after the date of service of the motion. “The requirement that the hearing be set within the specified time is mandatory Here, Movants set their motion well after the 60 day deadline. In fact, Movants notice of hearing was filed on day 59 The Court must deny Movants’ motion as required by the statute. Further, Bob Wolfe first made an appearance in this lawsuit on March 2, 2018, more than a year prior tothe TCPA hearing. The Underlying Lawsuit On October 5, 2017, Plaintiff sued Defendants for alleged violations of the Open Meetings Act, fraud, breach of fiduciary duty, conversion, and sought injunctive relief. Plaintiff did not sue Intervenor. On October 5, 2017, Plaintiff obtained aex parteTemporary Restraining Order in this Court. The order specifically prohibit any Defendant from paying Intervenor, even though Intervenor s not a party to this lawsuit. The parties attended a temporary injunction hearing, where this Honorable Court denied Plaintiff’s temporary injunction and allowed the Association to pay Intervenor. Shortly after the temporary injunction hearing, the board of the Association was voted out and new board members were voted in. The new board of the Association has refused to make any payments. Kleinhans Gruber, PLLC , No. 03 00174 CV, 2015 WL 4999045, at *1 (Tex. App.Austin Aug. 21, 2015, no pet.) (mem. op.) Tex. Civ. Prac. & Rem. Code § 27.004(a). See, Intervenor’s Second Amended Intervention, filed on December 13, 2017, and Bob Wolfe’s Motion for Summary Judgment filed on March 2, 2018. Response to Motion to Dismiss Page On September 10, 2017, the Pines Condominium Association, Inc. (the “Association”), through its president, Emile Nassar, entered into a contract wit Intervenor to provide containers and cleanup of the entire condominium complex after the devastation of Hurricane Harvey. Intervenor was one of many companies to bid on the services for this work. Intervenor provided all work at the agreed upon prices, but the Association was unable to pay its final payment due to this lawsuit. This job was a large scale cleanup for more than 250 units, for which Intervenor provided many hours, labor and equipment. Intervenor was very efficient and timely and had no complaints regarding Intervenor’s job performance. On or about September 13, 2017, the Association, through its President, Intervenor and Creative Management Company (“Creative Management”) met at the offices of Creative Management. At that meeting , Creative Management and the Association stated to Intervenor that the September 10, 2017, Contract had been approved and ratified by the Association’s board. On October 3, 2017, the Association, through an executive session, ratified the contract and approved full payment to Intervenor. The Association made See, Affidavit of Matthew Moody attached hereto as Exhibit “A.” Id. Id. Id. Id. Id; Deposition of Emile Nassar is attached hereto as Exhibit “B”; emporary injunction transcript is attached hereto as Exhibit “ .” Id. Id. Response to Motion to Dismiss Page payments to Intervenor for the first invoices sent to the Association. Prior to this lawsuit, the Association, through Creative Management, approved payment to Intervenor. However, Kelly Colema n, Robert Wolfe, Laska Santino and other yet to be identified persons interfered with the payment and threated litigation against Creative Management if the payment was sent to Intervenor. Those threats led Creative Management to call Intervenor and inform Intervenor that they put a stop payment on the last check. After the temporary injunction hearing, in good faith, Intervenor finished the cleanup of the condominium complex, and sent a final bill. Despite repeated demands, and the fact that the Association had previously approved payment to Intervenor, the Association has refused to pay Intervenor. Intervenor’s Lawsuit is not ba ed on, or related to Defendant’s Rights Robert Wolfe and Laska Santino (“Movants”)must prove that this action is based related to, or in response to the Movant’s exercise of the right of free speech, the right to petition, or the right of association. Movants have provided no evidence, no affidavits and no documents to support their claims. Movants’ entire Motion is based upon hearsay and speculation. It is important to note that Intervenors have not sued Movants under any type of defamationcause of action. In fact, Intervenors have no idea what Movants Exhibit A; Affidavit of Emile Nassar attached hereto as Exhibit “B.” Exhibit Id. Id. Exhibit A. Id. Response to Motion to Dismiss Page actually said or wrote to Creative Management Exercise of the right of free speech According to the TCPA statute, exercise of the right of free speech means a communication made in connection with a matter of public concern. Movants communication was not a public writing. Movants communications did not involve amatter of public concern. Movants communication was made towards Creative Management. Movants communication was to disrupt the contract between two private parties.Despite Movants own admissions, Movants are not responsible for the payment of the contract between Action and the Association. Exercise of the right to petitionMovants meet no definition under the statute. Movants never threatened litigation against Intervenors. Movants havenever sued Intervenor Intervenor had no idea that there was any type of lawsuit being threatened against anybody. This lawsuit began as a fight between residents and the board of the Association. Intervenor was caught in the middle. Exerciseof the right of association Movants made no argument for the right o association. The TCPAprotects free speech directed toward the government, but it also includes a person’s right to communicate review or evaluations of services in the marketplace. None of those things occurred in this instance. Movants have not Affidavit of Robert Cernosek attached hereto as Exhibit “ .” The emails to Creative Management have not been produced. Tex. Civ. Prac. & Rem. Code 27.001(3). Cernosek Affidavit. Id. Better Bus. Bur. Of Metro. Houston, Inc. v. John Moore Servs., 500 S.W.3d 26, (Tex. App. Houston [1 Dist.] Response to Motion to Dismiss Page complained about Intervenor’s work or services. Movants have not communicated unfavorable review or services of Intervenor. Even if Movants had made unfavorable reviews of Itervenor, Intervenor has not sued upon any negative communications from Movants. Movants communication (whatever communication it was) is not being criticized under Movants right to free speech. Movants can say whatever they want to say. However, ovants cannot purposefully interfere with a third partycontract Movants’ motion is frivolous. Intervenor has a prima facie case In the event that the Court finds Movant’sTCPA hearing was timely and Movant’s Motion is covered by the TCPA, Intervenorcan establish by clear and specific evidence a prima facie case for each essential element of the claim in question. The Legislature’s use of the term ‘prima facie case’ implies a minimal factual burden: ‘prima facie’ evidence is the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true The Court should examine the evidence in a light most favorable to Intervenor to each element of its cause of action.The elements for this claim are: (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff's injury, 2013, pet. denied). Exhibit A; Exhibit B. Exhibit A. Tex. Civ. Prac. & Rem. Code § 27.005 Better Bus. Bur. Of Metro. Houston, Inc. v. John Moore Servs., 500 S.W.3d 26, (Tex. App. Houston [1 Dist.] 2013, pet. denied). Response to Motion to Dismiss Page and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) Movants failed to provide any evidenceas to any elements of tortious interference with existing contract. Movants faileto make any argument as to any defense they may have regarding this cause of action. An existing contract. Attached heretois a written contract between Intervenor and the Association. The Association’s president, Emile Nassar, admits there is a written contract. The Association admitted at the injunction hearing th the Association ratified the contract in an executive session. This is also confirmed by the Association’s president Emile Nassar. The Association also made payments on the contract. A Willful and intentional act of interference.At the temporary in junction hearing Jeffrey Douglas, owner andcorporate representative of Creative Management testified thatthe board approved a final payment to Intervenor, but Creative Management held the check because of emails and phone calls directed to Creative Managementto prevent the payment from being sent to In ervenor. If there was no threat of a temporary restraining order, Creative would have made the payment to Intervenor. Kelly Coleman, Robert Wolfe and Laska Santino Cernosek Affdavit. Contract attached hereto as Exhibit “C,: Exhibit D Exhibit F at 107:9 109:2 Nassar Affidavit. Cernosek Affidavit. Injunction transcript at 142:6 143:16. Id. Response to Motion to Dismiss Page were some of the people that contacted Creative Managementto prevent the payments. Creative Management called Action to let them know they had a check ready but could not honor the check because of the interference of Movants. But for Movants interference, Intervenors would have been paid The failure of the Association to pay Intervenor has caused damages well in excess of Even the Association’s president at the time of the transaction admits that the Association owes Intervenor $327,575.00, plus 15% interest. Motion for Sanctions under TCPA § 27.009(b) Movants’ Motion to Dismiss is frivolous. Movants provided no evidence, no affidavits and no explanation as to howa tortious interference, on its own, would apply to a TCPA claim. Movants failed to set a hearing during the mandatory time period. Movants filed a motion on a party that first made his appearance over 14 months ago, even though the statute says the motion must be filed in 60 days. Movant’s Motion has stymiedthe discovery process by the filing of this Motion and is simply attempting to waste more time and run up more fees. If a court finds that a motion to dismiss under the TCPA is frivolous or solely intended to delay, the Court may award court costs and reasonable attorney’s fees to the Id. See, Exhibit ” is a true and correct copy of the email from Laska Santino to Creative Management. Cernosek Affidavit. Cernosek Affidavit. Id. Nassar Affidavit. Response to Motion to Dismiss Page responding party Action Premier Hauling, LLC, Intervenor, prays that, the Court deny Movant’s Motion to Dismiss and sanction Movant’scourt costs and reasonable attorney’s feesand grant such other relief to which Action Premier Hauling, LLC may show itself entitled. Respectfully submitted, ________/s Travis Owens Travis Owens Texas Bar Number 24065859 Owens Law Group, P.L.L.C. P.O. Box 8605 The Woodlands, TX 77387 Tel. (936) 828 Fax. (832) 327 travis@owens lawgroup.com Attorney for Intervenor CERTIFICATE OF SERVICE I certify that on April 25, 2019a true and correct copy of the foregoing was served to each person listed below, via e file, pursuant to Texas Rules of Civil Procedure 21 and 21a. Mitchel Katine mkatine@lawkn.com Gregory Godkin ggodkin@rmwbh.com Allan Goldstein allang@mlhs.net ________/s Travis Owens Travis Owens Response to Motion to Dismiss Page