                                                                                ACCEPTED
                                                                            03-15-00174-CV
                                                                                    5914794
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       7/2/2015 10:31:39 AM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                        No. 03-15-00174-CV
________________________________________________________________
                     IN THE COURT OF APPEALS            FILED IN
                                                 3rd COURT OF APPEALS
                 FOR THE THIRD DISTRICT OF TEXAS     AUSTIN, TEXAS
                                                 7/2/2015 10:31:39 AM
                             AT AUSTIN
                                                   JEFFREY D. KYLE
       _________________________________________________ Clerk


                          LEVI MORIN,
                                   Appellant,
                               v.
             LAW OFFICE OF KLEINHANS GRUBER, PLLC,
                                   Appellee.


    From Cause No. D-1-GN-14-003874; 201st Judicial District Court
                       Travis County, Texas
   _________________________________________________________

    BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC
                 A/K/A LAW OFFICE OF KG, PLLC
   _________________________________________________________

                         Kimberly G. Kleinhans
                         State Bar No. 24062755
                         Keith L. Kleinhans
                         State Bar No. 24065565
                         12600 Hill Country Blvd., Ste. R-275
                         Austin, TX 78738
                         512.961.8512 (telephone)
                         512.623.7320 (facsimile)

                         ATTORNEYS FOR APPELLEE,
                         LAW OFFICE OF KLEINHANS GRUBER, PLLC

                  ORAL ARGUMENT NOT REQUESTED
                              No. 03-15-00174-CV

                              LEVI MORIN,
                                       Appellant,
                                   v.
                 LAW OFFICE OF KLEINHANS GRUBER, PLLC,
                                       Appellee.


                         IDENTITY OF PARTIES & COUNSEL


Appellant:                              Levi Morin

Counsel for Appellant:                  Leif Olson
                                        State Bar No. 24032801
                                        leif@olsonappeals.com
                                        The Olson Firm
                                        4830 Wilson Road, Suite 300
                                        Humble, Texas 77396
                                        281.849.8382

Appellee:                               Law Office of Kleinhans Gruber, PLLC

Counsel for Appellee:                   Kimberly G. Kleinhans
                                        State Bar No. 24062755
                                        Keith L. Kleinhans
                                        State Bar No. 24065565
                                        Law Office of Kleinhans Gruber, PLLC
                                        12600 Hill Country Blvd., Ste. R-275
                                        Austin, Texas 78738




                                     ―1―
                           TABLE OF CONTENTS

Identity of Parties………………………………………………………...... ― 1 ―

Table of Contents………………………………………………………...…― 2 ―

Index of Authorities……………………………………………………….. ― 5 ―

Abbreviations and Record References…………………………………..…..― 8 ―

Summary of Appellee’s Brief………...………………………………….…..― 9 ―

I.     Oral Argument Not Requested…………………..………………......― 11 ―

II.    Statement of the Case………………………………………….…… ― 11 ―

III.   Issues Presented……………………...…….……..……………….... ― 13 ―

IV.    Standard of Review……………………………………………….…― 13 ―

V.     Statement of Facts…………………………………………….……. ― 14 ―

         a. Representation of Morin………………………….………..... ― 14 ―

         b. KG’s Withdraw and Morin’s Retaliation……….………….... ― 15 ―
               i. Morin’s Bar Complaint against KG and Siegler
                  Dismissed Immediately Without Investigation ― 15 ―
              ii. In Response, Morin Attacks KG on Yelp…..... ― 15 ―

         c. KG’s Discovery of Morin’s Yelp Post……….………….…... ― 16 ―

         d. The Lawsuit……….…………………………….……....….... ― 16 ―
                i. No Order to Nonsuit KG Claims…….…......... ― 17 ―
               ii. Morin’s Discovery Responses Due
                   Before Motion to Dismiss Filed…….……...... ― 17 ―
                         1st Missed Deadline………………….... ― 17―
                         2nd Missed Deadline……….………...... ― 18 ―
                         No Ongoing Discovery Discussions...... ― 18 ―
             iii. Morin Fails to Timely File His Motion to Dismiss……―19 ―
                         3rd Missed Deadline……….………...... ― 19 ―
              iv. Morin Fails to Timely Set His Motion to Dismiss……―19 ―
                                  ―2―
                        4th Missed Deadline……….………...... ― 19 ―
                        5th Missed Deadline……….………...... ― 19 ―
              v. No Hearing was Held on February 26, 2015……..……― 21 ―
             vi. Trial Court’s Ruling………………………..……..……― 22 ―

        e. The Appeal……….…………………………….……....…... ― 23―
                     6th Missed Deadline………………….... ― 23 ―
                     7th Missed Deadline……….………...... ― 24 ―
                     8th Missed Deadline……….………...... ― 24 ―

VI.   Summary of Argument: KG’s response to Morin’s motion to
      dismiss was not only supported by clear and specific evidence on
      each and every element, Morin’s motion was also denied on
      countless other procedural levels due to Morin’s habitual inability
      to meet deadlines………………………………………………….…― 24 ―

VII. Argument………...…………………………………………………. ― 26 ―

      A. Trial Court Specifically Found that KG Established by Clear
         and Specific Evidence, a Prima Facie Case of Defamation
         and Business Disparagement……………….………………...…. ― 27 ―
            Falsity………………………………………….…. ― 28 ―
            Malice………………………………………….…. ― 29 ―
            Damages……………………………………….…. ― 30 ―

        1. Trial Court Specifically Found KG’s Exhibits Were Timely
           and Admissible……………………………………..……..…. ― 32 ―
              a. KG’s Evidence Timely Filed 19 Days and
                  3 Days Prior to Motion to Dismiss Setting..... ― 33 ―
              b. KG’s Affidavits Properly Authenticated.…... ― 35 ―
              c. Garza Emailed Affidavit Testimony &
                  Waived Formal Service….…………………. ― 37 ―

        2. Trial Court Specifically Found KG’s Evidence was
           Clear and Specific……………….………………………..…. ― 39 ―
              a. Falsity Supported by 4 Evidentiary Items…. ― 40 ―
              b. Damages….……………………..…………. ― 41 ―
                    1. Noneconomic Damages to
                        Reputation are Presumed…. ― 42 ―
                    2. Economic Damages to
                                  ―3―
                     KG Earning Capacity
                     and Lost Income………….. ― 45 ―

            c. Malice Supported by Motive and
               Intentional Acts……………………………. ― 47 ―

    B. Trial Court Specifically Found Hearing was Untimely…..…. ― 51 ―

    C. Trial Court Specifically Found Morin Exhibits to be
       Untimely and No Good Cause Substantiated …………………. ― 53 ―

    D. Morin’s Attorney Fees Contested in Affidavit as Clearly
       Unreasonable and Logically Unnecessary……………….....…. ― 55 ―

    E. KG Fees Uncontested and KG Entitled to Fees……………..…. ― 56 ―

Conclusion………...……………………………………....………………. ― 56 ―
Certificate of Compliance………………………………...…….…………. ― 56 ―
Certificate of Service……………..…………………………………….…. ― 57 ―
Appendix………………………………..……………………...…………. ― 58 ―




                                 ―4―
                            INDEX OF AUTHORITIES

Statutes:

Tex. Civ. Prac. & Rem. Code § 27.002

Tex. Civ. Prac. & Rem. Code § 27.003

Tex. Civ. Prac. & Rem. Code § 27.004

Tex. Civ. Prac. & Rem. Code § 27.009

Tex. Civ. Prac. & Rem.Code § 41.001(4)

Tex. Civ. Prac. & Rem.Code § 41.001(12)

Tex. Civ. Prac. & Rem. Code §121.002

Tex. Fin. Code §199.002

State Cases:

American Broad. Cos v. Gill, 6 S.W.3d 19, 29 & n.3 (Tex.App.-San Antonio 1999,
pet. Denied)

Astoria Indus. V. SNF, Inc., 223 S.W.3d 616, 628 (Tex.App.-Fort Worth 2007, pet.
denied)

Bell Publ'g Co. v. Garrett Eng'g Co., 154 S.W.2d 885, 887 (Tex.Civ.App.-
Galveston 1941) aff'd, 170 S.W.2d at 197.

Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2003)

Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex.App. 1990)

Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014
WL 411672, at *10 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.)

Connick v. Myers, 461 U.S. 138, 148 n.7 (1983)

Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex.App.-Waco 1997, writ
denied)


                                       ―5―
Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (TexApp.-Houston [14th
Dist.] 1998, pet. Denied)

Flamm v. American Association of University Women, 201 F.3d 144, 151 (2d
Cir.2000)

Gainsco County Mutual Insurance Co. v. Martinez, 27 S.W.3d 97, 104 (Tex.
App.—San Antonio 2000), review granted, (Oct. 12, 2000))

Gertz v. Robert Welch, Inc., 418 U.S. 323, 373, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974) (White, J., dissenting)

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(internal citations
omitted).

Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005)

Hurlbut v. Gilf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987)

In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig.
proceeding) (internal quotation marks and citation omitted)

In re Lipsky, ___ S.W.3d ___, 6, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24,
2015)

Johnson v. Hospital Corp., 95 F.3d 383, 391 (5th Cir.1996)

Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam)

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.)

Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 655 (Tex.1987)

Newsome v. brod, 89 S.W.3d 732, 735 (Tex. App.-Houston [1st Dist.] 2002, no
pet.)

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80
(Tex. App.—Houston [1st Dist.] 2013, pet. denied)

Phillips v. Brazosport Sav. & Loan Ass'n, 366 S.W.2d 929 (Tex. 1963).
                                      ―6―
Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam)

Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus
Christi 1991, writ dism'd w.o.j.)

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)

Rehak Creative Servs v. Witt, 404 S.W.3d 716, 726 (Tex. App. 2013)

Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 160
(Tex. 2014).

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571(Tex. 1998)

Wortham Indep. Sch. Dist. v. State, 244 S.W.2d 838 (Tex. Civ. App.—Waco
1951).

Rules

Texas Rule of Civil Procedure 21(b)

Texas Rule of Civil Procedure 176.6(d) and (e)

Other Authorities

2 Dan B. Dobbs, Law of Remedies § 8.1(4) (2d ed.1993)

Black’s Law Dictionary 307, 1616 (10th ed. 2014)

Restatement (Second) of Torts § 621 cmt. a (1977)

Restatement (Second) of Torts § 905 cmt. i. (1979).

Restatement (Second) of Torts § 906 (1979).

Webster’s Third New Int’l Dictionary 419, 2187 (2002)




                                       ―7―
                   ABBREVIATIONS AND RECORD REFERENCES

“the Act" refers to Texas Citizen Participation Act

“Appx. ___" followed by a number refers to that certain page in the Appendix Tab
following Appellee’s Brief.

“A.B. ___” followed by a number refers to a certain page in the Appellate Brief
that is the subject of this response.

“C.R. ___" followed by a number refers to that certain page of the Clerk's Record
filed in the case.

“Morin” refers to Appellant, Levi Morin.

“KG” refers to Appellee, Law Office of Kleinhans Gruber, PLLC




                                       ―8―
                       SUMMARY OF APPELLEE'S BRIEF

  i.   TRIAL COURT SPECIFICALLY FOUND THAT KG ESTABLISHED BY CLEAR
       AND SPECIFIC EVIDENCE, A PRIMA FACIE CASE OF DEFAMATION AND
       BUSINESS DISPARAGEMENT

       1.   Trial Court Specifically Found KG’s Exhibits Were Timely and
            Admissible
                   a.    KG’s Evidence Timely Filed 19 Days and 3 Days Prior
                         to Setting
                   b.    KG’s Affidavits Properly Authenticated
                   c.    Garza Emailed Affidavit Testimony & Waived Formal
                         Service

       2.   Trial Court Specifically Found KG’s Evidence was Clear and Specific
                   a.    Falsity Supported by 4 Evidentiary Items
                   b.    Damages
                         i.     Noneconomic Damages to Reputation are
                                Presumed
                         ii.    Economic Damages to KG Earning Capacity and
                                Lost Income
                   c.    Malice Supported by Motive and Intentional Acts

 ii.   TRIAL COURT SPECIFICALLY FOUND HEARING WAS UNTIMELY

iii.   TRIAL COURT SPECIFICALLY FOUND MORIN EXHIBITS WERE UNTIMELY
       AND NO GOOD CAUSE SUBSTANTIATED

iv.    MORIN’S ATTORNEY FEES CONTESTED IN AFFIDAVIT AS CLEARLY
       UNREASONABLE AND LOGICALLY UNNECESSARY

 v.    KIMBERLY KLEINHANS’ AFFIDAVIT FOR FEES IS UNCONTESTED AND
       THEY ARE ENTITLED TO FEES




                                    ―9―
                             No. 03-15-00174-CV

 ________________________________________________________________
                      IN THE COURT OF APPEALS
                  FOR THE THIRD DISTRICT OF TEXAS
                              AT AUSTIN
        _________________________________________________

                                 LEVI MORIN,
                                         Appellant,
                                      v.

                 LAW OFFICE OF KLEINHANS GRUBER, PLLC,
                                       Appellee.


      From Cause No. D-1-GN-14-003874; 201st Judicial District Court
                         Travis County, Texas
     _________________________________________________________

      BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC
     _________________________________________________________


TO THE HONORABLE THIRD COURT OF APPEALS:

      Comes now Law Office of Kleinhans Gruber, PLLC (herein after, referred to
as “KG”), Appellee, and files this response to Brief of Appellant, Levi Morin
(herein after, referred to as, “Morin”).




                                    ― 10 ―
                                 I.
                    STATEMENT ON ORAL ARGUMENT

      Oral argument would not benefit the Court.

       This appeal is frivolous and not based on law. Morin admits that this appeal
in large part is not based on law by stating in his Statement on Oral Argument that
the Act doesn’t address evidentiary standards and procedure. (A.B. 9). Rather, the
issue is not that the Act doesn’t address these areas of contention; the issue is that
the Act doesn’t support Morin’s argument. The Act’s black letter law provided
clear deadlines that Morin repeatedly missed. Likewise, the dispositive issues have
been authoritatively decided.

       Furthermore, there are no new facts and/or legal arguments that would come
to light by oral argument and therefore, there is no reason to cause further delay by
scheduling this to be heard for oral argument.

                                   II.
                          STATEMENT OF THE CASE

      Nature of the case. This is an appeal over the trial court’s ruling on Morin’s
Motion to Dismiss the business disparagement, defamation, and defamation per se
claims made by KG against Morin, following Morin’s false and damaging online
Yelp review made on KG’s Yelp page.

      Trial court. The lawsuit was filed in the 201st Judicial District Court, in
Travis County, Texas with the Honorable Judge Steven Yelenoski presiding.

       Proceedings in the trial court. Following Morin’s refusal to remove the
false and damaging online Yelp review made on KG’s Yelp page, KG filed claims
for business disparagement, defamation, and defamation per se. (C.R. 3-11, 195-
205). Morin moved to dismiss under the Act, but filed the motion without
attaching any exhibits. (C.R. 15-31). After the deadline, Morin untimely refiled
the motion with exhibits. (C.R. 32-95). The trial court found that the date of filing


                                       ― 11 ―
was the date that the filing was made with exhibits and ruled that the filing was
untimely. (739).

       Morin untimely set the hearing for the Motion to Dismiss. KG filed a
Motion to Strike or Deny Morin’s Motion to Dismiss on the basis that Morin’s
filing was untimely, and the setting for the hearing was untimely. (C.R. 120-192).
The trial court again agreed and ruled that there was no good cause for the
untimeliness of both the Motion to Dismiss and the setting of the hearing. (739).

      In response to Morin’s unilateral setting around KG’s noticed unavailability,
KG filed for a continuance and in response the trial court reset the case to March 5,
2015. (C.R. 120-192). Following the Court’s ruling that KG’s Motion to Strike
would be heard on the same day as Morin’s Motion to Dismiss, KG filed a
Response to Morin’s Motion to Dismiss and objected to Morin’s evidence. (C.R.
206-467, 468-729).

      On date of setting Morin untimely filed objections and more attorney fee
testimony. (C.R. 730-734). The trial court overruled the objections to KG
affidavits amongst 6 other rulings set forth below that all support denial of the
Motion to Dismiss on countless grounds.

       The judgment of the trial court. Honorable Judge Steven Yelenoski (C.R.
739), (Appx. 1):

   - Found no good cause to extend the deadline for Morin to file his Motion to
     Dismiss.
   - Found Morin did not set the hearing on his Motion to Dismiss within 60
     days after service of the motion, and did not meet any of the exceptions
     indicating the hearing can be set later than the 60th day.
   - Struck the Exhibits to Morin’s Motion to Dismiss as being untimely filed.
   - Overruled Morin’s objections to the affidavits of Kimberly Kleinhans,
     Martin Garza, and Michael Siegler.
   - Found that KG established by clear and specific evidence, a prima facie case
     for defamation and business disparagement.
   - Found that Morin did not establish each element of an affirmative defense
     by a preponderance of the evidence.
   - Denied Morin’s Motion to Dismiss.

                                       ― 12 ―
                                       III.
                               ISSUES PRESENTED

ISSUE NO. 1:       The trial court did not err denying a former client’s Motion to
      Dismiss under the Act in finding that the business established by clear and
      specific evidence, a prima facie case for defamation and business
      disparagement.

ISSUE NO. 2:      The trial court did not err denying a former client’s Motion to
      Dismiss under the Act in finding that the former client failed to timely file
      the Motion to Dismiss in accordance with Act Deadlines and Act
      Requirements.

ISSUE NO. 3:       The trial court did not err denying a former client’s Motion to
      Dismiss under the Act in finding that the former client failed to timely hold
      the hearing on the Motion to Dismiss in accordance with Act Deadlines.


                                   IV.
                            STANDARD OF REVIEW

     Appellant has properly addressed the standard of review, but for leaving out a

key portion noting that only a minimum amount of evidence is needed to support a

prima facie case, as set forth in appellant’s reference case, Serafine v. Blunt. Id.

No. 03-12-00726-CV. ____ S.W.3d__, 2015 WL 2061922 (Tex. App. – Austin

May 1, 2015, n.p.h.:


     A prima facie standard generally “requires only the minimum quantum of
     evidence necessary to support a rational inference that the allegation of fact is
     true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.
     2004) (orig. proceeding) (internal quotation marks and citation omitted); see,

                                        ― 13 ―
     e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
     S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying
     standard in Chapter 27 case and explaining that Legislature’s use of “prima
     facie case” implies imposition of minimal factual burden). “Prima facie
     evidence is evidence that, until its effect is overcome by other evidence, will
     suffice as proof of a fact in issue. In other words, a prima facie case is one
     that will entitle a party to recover if no evidence to the contrary is offered by
     the opposite party.” Rehak Creative Servs v. Witt, 404 S.W.3d 716, 726 (Tex.
     App. 2013); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per
     curiam) (explaining that summary-judgment movant’s presentation of prima
     facie evidence of deed’s validity established his right to summary judgment
     unless nonmovants presented evidence raising fact issue related to validity).



                                  V.
                           STATEMENT OF FACTS

      A.    Representation of Levi Morin

      KG represented Morin in a family law case from May 1, 2012 to March 15,

2013. (C.R. 196). On March 15, 2013, Morin called KG and requested that his

case be placed on hold and that all work on his case cease. (C.R. 196).

      On May 30, 2013 to June 6, 2014, Morin called and emailed with Kimberly

Kleinhans and requested that work be continued on his case. (C.R. 196).

Likewise, representation continued from May 30, 2013 to June 4, 2014. (C.R.

196). After May 30, 2013, Mr. Morin continued to act in an unprofessional and

threatening manner, which left KG with no other choice but to withdraw off his




                                       ― 14 ―
case. Mr. Morin would write profane and enticing emails to which KG continued

to respond in a professional manner.

      B.     KG’s Withdraw and Morin’s Retaliation

      On June 4, 2014, Kimberly Kleinhans obtained a signed Order of Withdraw

from representation and emailed it to Morin. (C.R. 196, 664). (Appx. 3). On June

4, 2014, in response to receipt of the Order of Withdraw, Morin emailed Kimberly

Kleinhans an email stating, “You’re a horrible person, a predator, and I will make

sure that’s known on as many fronts as I can.” (C.R. 197, 704). (Appx. 4).

             i.    Morin’s Bar Complaint against KG and Siegler Dismissed
                   Immediately Without Investigation

      Approximately between the dates of June 6, 2014 and June 24, 2014, Morin

attempted to file a bar complaint against KG’s of counsel attorney, Michael

Siegler, and managing partner, Kimberly Kleinhans. (C.R. 197). On or prior to

June 24, 2014, Morin received notice from the State Bar of Texas that his bar

complaint was immediately dismissed without investigation whatsoever for lacking

basis on its face. (C.R. 197).

             ii.   In Response, Morin Attacks KG on Yelp

      In response, on or around June 24, 2014, Morin posted a false and damaging

review on an internet website called Yelp, which is located at the web address:

http://www.yelp.com/biz/law-office-of-kleinhans-gruber-pllc-

austin?osq=law+office+of+kg. (C.R. 197). The review contained several false
                                       ― 15 ―
statements made by Morin about KG and of-counsel, Michael Siegler, and

managing partner, Kimberly Kleinhans, amongst others, including: false

allegations regarding professional and/or unethical conduct. (C.R. 197).

Specifically, the following false statements were made, “… her legal ‘counsel’

consists of…sending hung over ‘associates’ to court dates [Michael Siegler]

…”(C.R. 197-198).

      C.     KG’s Discovery of Morin’s Yelp Post

      On or around August 20, 2014, Kimberly Kleinhans was notified by a

business contact about the negative review of KG posted on Yelp by Morin. (C.R.

198). Upon review, KG requested Morin to remove the posting, and in response,

Morin sent several emails to Kimberly Kleinhans stating, “go fuck yourself,” and

“biggest piece of shit lawyer I’ve ever not met,” and “wait ten days and see if I’m

as big of a pussy as you.” (C.R. 198, 706, 713, 717). (Appx.5) Morin’s December

1, 2014 affidavit, Morin admits that he never attempted to verify the truth or falsity

of these statements at time of publishing. (C.R. 89, 198). To date, these

statements remain posted.

      D.     The Lawsuit

      At the time of filing the Amended Petition for this lawsuit, KG had suffered

general and special damages in the past and will continue to suffer general and

special damages in the future as the posting is still active. (C.R. 198). KG’s


                                       ― 16 ―
damages include but are not limited to: damage to reputation, loss of reputation,

and pecuniary loses (lost sales, and loss of potential clients) of $52,971.25 to

$120,000 depending on preferred method of calculation. (C.R. 198). Likewise,

this lawsuit was necessary to cease daily ongoing reputational harm and pecuniary

harm to KG. (C.R. 468).

      On September 24, 2014, KG filed Plaintiff’s Original Petition, Request for

Equitable Relief & Request for Disclosure. (C.R. 3-11, 120).

             i.     No Order to Nonsuit KG’s Claims

      Although a Notice of Nonsuit was filed by KG in an attempt to avoid having

to defend a motion to dismiss due to personal circumstances, KG withdrew the

Notice of Nonsuit before an Order of Nonsuit was filed. (C.R. 96-97, 738-739).

Although Morin eludes in his brief that KG’s claims were nonsuited―this is

simply untrue. There is no order of nonsuit, and although it was discussed by the

trial court, the trial court refused to make any findings or rulings without further

motion by Morin. Furthermore, this issue is not before this Court.

             i.     Morin’s Discovery Responses Due
                    Before Motion to Dismiss Filed

      On September 30, 2014, Morin was personally served with the Original

Petition and Request for Disclosure. (C.R. 121, 131-132).

      On October 28, 2014, KG served Morin with Requests for Admission,

Request for Production, and First Set of Interrogatories. (C.R. 121, 132-154).
                                        ― 17 ―
      1st deadline missed by Morin: On November 19, 2014, Morin’s Response to

Request for Disclosure was due. Morin failed to respond until February 13, 2015,

nearly 3 past the deadline. (C.R. 121).

      2nd deadline missed by Morin: On November 27, 2014, Morin’s Response

to Request for Admissions, Response to Request for Production, and Response to

First Set of Interrogatories was due. Morin failed to respond until February 13,

2015, nearly 3 past the deadline. (C.R. 121). When Morin finally responded, he

sent over a self-serving subset of documents and responses that primarily consisted

of objections which were only beneficial to his case. (C.R. 122, 159-187).

      No On-going Discovery Discussions: Although Morin alludes that the

reason for all his missed deadlines were because there were ongoing discovery

discussions, the evidence supports otherwise. (A.B. 14). (Appx. 6). Despite

Morin’s requests for limited discovery, KG always clearly responded that full

discovery responses would be necessary, or KG would seek a hearing on the

matter. (C.R. 122, 155-158). (Appx. 6). Knowingly, Morin set and noticed his

motion to dismiss around KG’s noticed unavailability simultaneously sending KG

and email stating his intent to prevent KG from obtaining discovery, “that [the

motion to dismiss setting] will leave you with no time for discovery even if the

judge thinks you deserve it. (Appx. 7).




                                          ― 18 ―
              ii.    Morin Fails to Timely File His Motion to Dismiss

        3rd deadline missed by Morin: On December 1, 2014, the Monday following

the 60th day to file a Motion to Dismiss by Morin pursuant to Section 27.003 of

the Texas Participation Act (the “Act”) ran. (C.R. 121). In accordance with the

Act, Morin is limited, “not later than the 60th day after the date of service of the

legal action” (Date of Service: September 30, 2014). (C.R. 121).

        December 3, 2014, Morin refiled his Motion to Dismiss, this time, with

exhibits and affidavits; therefore, this is the date the District Court considered the

Motion to Dismiss to be untimely filed, and likewise, the trial court found no good

cause to extend this deadline beyond December 1, 2015, which was the 60th day

from the date of service of the legal action. (C.R. 739).

              iii.   Morin Fails to Timely Set His Motion to Dismiss

        On December 30, 2014, KG filed a Notice of Address Change and Notice of

Unavailability and on January 28, 2015, KG filed an Amended Notice of

Unavailability which noticed Morin that KG would be out of the country and

unavailable for a setting on February 18, 2015 through February 25, 2015. (C.R.

121).

        4th and 5th deadline missed by Morin: On January 30, 2015, the 60th day

ran from the date that Morin’s Motion to Dismiss would have been timely filed

(December 1, 2014). In accordance with Section 27.004 of the Act, “A hearing on


                                        ― 19 ―
a motion under Section 27.004 must be set not later than the 60th day after the date

of service of the motion unless:

                     [1] the docket conditions of the court require a later hearing,
                     [2] upon a showing of good cause,
                     [3] or by agreement of the parties
                     … but in no event shall the hearing occur more than 90 days
                     after service of the motion under Section 27.003…” (C.R. 121-
                     122).

        As required by Section 27.004, there were: [1] no Travis County docket

conditions that would require a later hearing, [2] no timely finding of good cause

by the court prior to running of the 60-day deadline (January 30, 2015) and [3] no

agreement by the parties to extend the 60-day deadline to a 90-day deadline. (C.R.

122).

        Likewise, the trial court found no good cause to extend this deadline beyond

January 30, 2015, which was the 60th day from the date Motion to Dismiss would

have been timely filed. (C.R. 739).

        Therefore, the trial court found that the 90-day deadline doesn’t apply by

holding that Morin, “did not meet any of the exceptions indicating that the hearing

can be set later than the 60th day,” but even if it did, Morin failed to hold the

hearing by the 90th day, which would have been February 26, 2015 (C.R. 121-123,

739).




                                        ― 20 ―
             iv.    No Hearing Was Held on February 26, 2015


      On February 17, 2015, the District Court heard KG’s Motion for

Continuance and the parties reached an agreement with the trial court. The trial

court acknowledged that Morin had improperly scheduled the Motion to Dismiss

on the jury week, rather than a nonjury week, and likewise, the trial court knew

that it couldn’t hear Morin’s Motion to Dismiss on February 26, 2015 because the

trial court had scheduled jury trials the entire day.

       There is no written order on the matter because the parties were given the

option to proceed with KG’s Motion to Strike in the afternoon on February 17,

2015, or have all the pending motions heard on the same day on March 5, 2015.

After some discussion, the parties agreed in open court that all motions would be

reset to March 5, 2015, and likewise, that KG’s presence was not necessary on

February 26, 2015 because the case would simply be called by the court and reset.

(C.R. 110-111, 120-192).

      Morin improperly states that a hearing was held February 26, 2015. (A.B.

15) and states that KG should have objected. KG was not in a position to object,

given the nature of the agreement set forth above. Further, KG could not object

because KG was not present on February 26, 2015. It is clear by the court

reporter’s record that no hearing was held and neither party even announced ready

or acknowledged they were present. (R.R. 3:1-9).
                                         ― 21 ―
      On March 5, 2015, the trial began and concluded the hearing on: (1) Morin’s

Motion to Dismiss, (2) KG’s Second Amended Motion to Strike or Deny Morin’s

Motion to Dismiss and (3) the responses and replies to those motions; and (4) the

parties objections. (C.R. 739).

      Based on Morin’s improper allegation that the hearing began on February

26, 2015, Morin improperly concludes that KG’s response to the Motion to

Dismiss was untimely filed. (A.B. 15). However, it was clearly timely filed on

March 2, 2015 and hand-delivered by personal service on Morin. (C.R. 206-467).

      Furthermore, consistent with the trial court’s ruling that, “finds that

Kleinhans Gruber established, by clear and specific evidence, a prima facie case

for defamation and business disparagement…” and “overrules Morin’s objections

to the affidavits of Kimberly Kleinhans, Martin Garza and Michael Siegler,” the

trial court finds these filings were timely and proper and further supports that the

above facts concerning the agreement made between the parties and the trial court

(that the motions would not be heard February 26, 2015, but rather, that the

motions would be heard March 5, 2015). (C.R. 739).

             v.     Trial Court’s Ruling

      The trial court not only denied Morin’s motion to dismiss on the basis that it

found that KG had established by clear and specific evidence, a prima facie case

for defamation and business slander, it also denied Morin’s motion on various


                                        ― 22 ―
other levels―all dealing with Morin’s habitual failure to meet deadlines as

underlined and set forth above on pages 17-19. (C.R. 739). Further, the trial court

also found that Morin did not establish each element of an affirmative defense by

preponderance of the evidence. (C.R. 739).

      E.     Appeal

      It is relevant to mention Morin’s continued disregard of the rule of law in the

appellate court and his habitual failure to meet deadlines.

      6th deadline missed by Morin: As Morin admits, pursuant to Tex. Civ. Prac.

& Rem. Code § 27.008(a), the Act deems a motion denied if the deadline passes

without a hearing (Appx. 2). As no good cause extension was granted, it is clear

that January 30, 2015 was the deadline for the hearing on Morin’s Motion to

Dismiss and it is undisputed that no hearing occurred on the Motion to Dismiss on

or prior to the January 30, 2015 deadline. (C.R. 739). Likewise, the motion is

denied by operation of law and a Notice of Appeal must be filed within 20 day

unless a proper Motion to Extend time is filed within 15 days after the deadline.

The 20th day from January 30, 2015 ran on February 19, 2015, and the additional

15-day deadline to file for an extension ran on March 6, 2015. As Morin further

admits that, “if the written order states that there is no good cause for extension,

then Morin’s right to appeal is lost retroactively.” (Appx. 2). The Order clearly

states that there was no good cause for extension and therefore, it is abundantly


                                        ― 23 ―
clear that this Court is without jurisdiction to rule on LEVI MORIN’s Motion

because it is outside the time allowed to file a motion for extension to file for an

appeal.

      7th deadline missed by Morin: Morin’s brief was due on May 27, 2015.

(Appx. 2). Rather than filing for an extension before the deadline ran, Morin

waited for the court to expend its resources on June 1, 2015, to notice Morin that

the brief was late, before bothering to file a Motion for Extension. (Appx. 2).

      8th deadline missed by Morin: After the extension was granted to June 10,

2015, Morin again disregarded the new deadline of June 10, 2015, and failed to file

the brief or request for extension by June 10, 2015. (Appx. 2).



                                       VI.
                               SUMMARY OF ARGUMENT

      KG’s response to Morin’s Motion to Dismiss was not only supported by

clear and specific evidence on each and every element, Morin’s Motion to Dismiss

was also denied on countless other procedural levels due to Morin’s habitual

inability to meet deadlines.

      Morin’s pursuit of the appeal is frivolous as the Motion to Dismiss was

denied on various grounds that preclude his argument and are not issues of his

appeal, but rather he tries to keep them hidden as sub-points when they are equally

as important as the issue concerning clear and specific evidence.
                                        ― 24 ―
      There is no question that Morin habitually missed deadlines necessary to

bring a Motion to Dismiss that are clearly established by the Act. In fact, Morin

failed to file any exhibits by the filing deadline for the Motion to Dismiss and later

failed to set any hearing within 60 days of filing, and still didn’t have the case

heard within the 90 day deadline.


      In the event that this Court looks past all the clearly missed deadlines

dictated by the Act, and gets to the only issue on appeal―that KG allegedly did

not present a prima facie case of each element of the case by clear and specific

evidence, this Court should recognize KG clearly did so.

      KG’s response was timely filed 3 days prior to the hearing.

      KG’s affidavits were timely and proper, most importantly; Garza’s was

drafted by him and notarized by his staff.

      KG clearly evidenced damages in their petition and in Kimberly Kleinhans

affidavit naming the various resources used to calculate specific numbers.

      Morin’s legal fees are readily controverted in Kimberly Kleinhans’ affidavit

as being unreasonable because Morin is being charged $75.00 an hour by Lief

Olson and is actually paying $75.00 an hour for the services that are being

rendered yet Mr. Olson is requesting that KG pay $275.00 an hour.

      KG is entitled to their fees and post-motion fees as sanctions against counsel

for Morin for filing this frivolous appeal.

                                        ― 25 ―
      The trial court was correct on each and every of its 7 findings against Morin.

The Court should reaffirm the trial court’s decision and render judgment awarding

KG pre-motion fees and an appropriate sanctions against Morin and/or counsel for

Morin.



                                          VII.
                                      ARGUMENT


      The purpose of a Motion to Dismiss pursuant to the Act is to safeguard the

constitutional right to free speech. It is not intended to deprive litigants of their

right to a full hearing on the merits concerning real issues of fact. In fact, The

Act’s published purpose is, “…to protect the rights of a person to file meritorious

lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002.


      Sites like Yelp give ordinary people the power to write reviews that have a

major impact on other people’s reputations and livelihoods. But it also means that

they can be held legally responsible if what they write is defamatory. Yelp will not

remove the false and damaging online posting by Morin unless there is an order

from the trial court requiring Morin to do so. As such, a lawsuit for defamation and

business disparagement was filed against Morin for his false and defamatory

statements about KG and the attorneys working for KG. Not only did the trial

court find that KG properly establish a prime facie case for both defamation and

                                         ― 26 ―
business disparagement claims by clear and specific evidence, the trial court also

denied Morin’s Motion to Dismiss on various other grounds, all having to do with

his habitual failure to meet deadlines.

      KG is entitled to denial of Morin’s Motion to Dismiss based solely on the

missed deadlines, yet the trial court still went beyond just a denial of the motion

for procedural issues, to clearly point out 7 findings/rulings for concluding that the

Motion to Dismiss should be denied.


A.    TRIAL COURT SPECIFICALLY FOUND THAT KG ESTABLISHED BY CLEAR
      AND SPECIFIC EVIDENCE, A PRIMA FACIE CASE OF DEFAMATION AND
      BUSINESS DISPARAGEMENT

      It is unexplained why Morin continues to reference discrimination as

discrimination has nothing to do with this lawsuit or with this appeal.


      This is a case involving defamation, defamation per se, and business

disparagement only.


      The trial court found that KG clearly met the burden to avoid dismissal of

the prima facie case by clear and specific evidence of all elements of both

defamation and business disparagement. Although the trial court clearly found that

KG had met its burden based on the statement that KG, “sent hung over associates

to court dates [Michael Siegler]”―that was not specified by the trial court as being




                                          ― 27 ―
the only basis for the trial court’s findings, it was simply the most convincing to

the trial court.


       The elements for a claim of defamation are: (1) published a statement (2)

that was defamatory concerning the plaintiff (3) of false facts or verifiable opinion

(4) while acting with negligence, if the plaintiff was a private individual, regarding

the truth of the statement, Hearst Corp. v. Skeen, 130 S.W.3d 910 (Tex. App.

2004) review granted, judgment rev’d, 159 S.W.3d 633 (Tex. 2005); Musser v.

Smith Protective Services, Inc., 723 S.W.2d 653, 655 (Tex. 1987).

       While an action for defamation protects the personal reputation of the

plaintiff, an action for business disparagement is intended to protect the economic

interests of the plaintiff. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d

167, 170 (Tex.2003); Hurlbut v. Gulf Atl. Life Insur. Co., 749 S.W.2d 762, 766

(Tex.1987); Newsom v. Brod., 89 S.W.3d 732, 735 (Tex.App.-Houston [1st Dist.]

2002, no pet.). The elements for a claim of business disparagement are: (1) the

defendant published false and disparaging information, (2) with malice, (3) without

privilege, (4) that resulted in special damages to the plaintiff. Forbes, Inc, 124

S.W.3d at 170; Hurlbut, 749 S.W.2d at 766.


   - Falsity. To prove an action for defamation and business disparagement, the

       statement must be false. Musser v. Smith Protective Services, Inc., 723


                                        ― 28 ―
       S.W.2d 653, 655 (Tex.1987)1. The statement must therefore expressly or

       implicitly assert facts that are objectively verifiable. Milkovich v. Lorain

       Journal Co., 497 U.S. 1 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580

       (Tex. 2003) . In Milkvich, the U.S. Supreme Court said the First

       Amendment does not mandate an inquiry into whether a statement is opinion

       or fact because when the speaker states the facts on which they base their

       opinion, and those facts used to base their opinion are either incorrect or

       incomplete, or their assessment of those facts is erroneous, the statement

       may still imply a false assertion of fact. Id., 497 U.S. at 182. The decision in

       Bentley overrules earlier decisions that held that all assertions of opinion are

       protected under Article 1, Section 8, of the Texas constitution. See Bentley,

       94 S.W.3d at 580-1 (overruling Associated Press v. Cook, 17 S.W.3d 477,

       454 (Tex.App.-Houston [1st Dist.] 2000, no pet.); American Broad. Cos v.

       Gill, 6 S.W.3d 19, 29 & n.3 (Tex.App.-San Antonio 1999, pet. Denied); Falk

       & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (TexApp.-Houston [14th

       Dist.] 1998, pet. Denied); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422,

       426 (Tex.App.-Waco 1997, writ denied). In summary, opinion is not exempt




1
  Musser, 723 S.W.2d at 655. (A written statement calling Musser a strong and successful
competitor is not false and therefore not defamatory).
2
  Milkvich , 497 U.S. at 18 (For example, when a speaker says, ‘In my opinion, Jones is a liar,’
she implies knowledge of facts that lead to a conclusion that Jones lied).
                                             ― 29 ―
   from causes of action in defamation, however, the opinion must be provable

   as true or false in order to create liability in the defendant.

- Malice. While the defamation claim only requires a lesser showing of

   negligence, business disparagement requires a showing of malice. Connick

   v. Myers, 461 U.S. 138, 148 n.7 (1983); Bentley at 561, 586 & n.62. A

   defendant acts with malice when it (1) knows the statement in question is

   false, or (2) acts with reckless disregard for whether the statement is true, or

   (3) acts with ill will, or (4) intends to interfere in the plaintiff’s economic

   interest. Hurlbut v. Gilf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987).

   Furthermore, “…care and motive are factors to be considered.” Hearst

   Corp., 130 S.W.3d 910; Bentley, at 596.

- Damages. The defamation claim damages are presumed when the false

   statement is about a person in his/her office, profession or occupation.

   Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006,

   no pet.); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922

   (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.);  Bradbury v. Scott, 788

   S.W.2d 31, 38 (Tex.App. 1990); Flamm v. American Association of

   University Women, 201 F.3d 144, 151 (2d Cir.2000).

         The damages for the business disparagement claim require a showing

   of special damages that were realized or lost, such as specific lost sales, loss


                                     ― 30 ―
      of trade, or loss of other dealings. Hurlbut, 749 S.W.2d at 767; Astoria

      Indus. V. SNF, Inc., 223 S.W.3d 616, 628 (Tex.App.-Fort Worth 2007, pet.

      denied); Newsome v. brod, 89 S.W.3d 732, 735 (Tex. App.-Houston [1st

      Dist.] 2002, no pet.). To prove causation, the disparagement doesn’t have to

      be the sole, exclusive factor causing the plaintiff’s damages, but must play a

      substantial part in inducing others not to deal with the plaintiff. Johnson v.

      Hospital Corp., 95 F.3d 383, 391 (5th Cir.1996); Hurlbut at 767.


   The trial court appropriately found that, “KG established by clear and specific

evidence, a prima facie case for defamation and business disparagement,”

specifically stating during his ruling that not only was malice found, but exceeded

by finding actual malice. (C.R. 739). Further, the trial court overruled, “Morin’s

objections to the affidavits of Kimberly Kleinhans, Martin Garza and Michael

Siegler.” Id.


      1.        Trial Court Specifically Found KG’s Exhibits Were
                Timely and Admissible

      Morin improperly states in his brief that the only evidence of the falsity of

Morin’s Yelp statement (alleging that KG sent hungover associates to court) came

from affidavits of Siegler and Garza only. (A.B. 22:2). However, additional

evidence of the falsity of this Yelp statement came from Kimberly Kleinhans

affidavit as well. (C.R. 493-494).

                                        ― 31 ―
      The admission and exclusion of evidence is committed to the trial court's

sound discretion. City of Brownsville v. Alvarado3, 897 S.W.2d 750, 753 (Tex.

1995); citing Gee v. Liberty Mut. Fire Ins. Co. 765 S.W.2d 394, 396 (Tex.1989). A

successful challenge to evidentiary rulings usually requires the complaining party

to show that the judgment turns on the particular evidence excluded or admitted.

Id. At 753-754; See GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257

(Tex.App.— Houston [1st Dist.] 1991, writ denied); Atlantic Mut. Ins. Co. v.

Middleman, 661 S.W.2d 182, 185 (Tex.App.—San Antonio 1983, writ ref'd n.r.e.).


      Here, the judgment [or rulings], do not just turn on the exclusion of evidence.

In the case at hand, the trial court’s ruling turns on denying Morin’s Motion to

Dismiss, whether it was found to be timely filed or not. (739). Further, another of

the trial court’s ruling turns on denying Morin’s objections to KG’s affidavits

whether the filing of the objections were found to be timely or not. (739).


      Therefore, the trial court found that all 3 affidavits submitted by KG as

evidence were found by the trial court to be admissible and timely and proper,

whether or not Morin’s objections were considered in making this determination.




3
 We conclude that the trial court did not abuse its discretion by excluding all evidence relating to
negligent training and supervision based on discretionary powers under the Tort Claims Act. City
of Brownsville v. Alvarado3, 897 S.W.2d 750, 753 (Tex. 1995).
                                              ― 32 ―
                   a.    KG’s Evidence Timely Filed 19 Days and 3 Days
                         Prior to Motion to Dismiss Setting

     The Act only sets deadlines for the filer of the Motion to Dismiss (Tex. Civ.

Prac. & Rem. Code).


            September 30, 2014―Morin served with this lawsuit

            December 1, 2014― Section 27.003(b) deadline for Morin to file
            Motion to Dismiss (failed to file until December 3, 2014)

            January 30, 2015― Section 27.004(a) deadline for Morin’s Hearing
            on the Motion to Dismiss (no Hearing noticed by this date)

            February 13-14, 2015―Morin unilaterally notices setting for
            February 26, 2015 and KG files Motion to Strike setting based on
            unavailability notice for February 18, 2015-February 25, 2015 and
            deposition on another case on February 26, 2015

            February 17, 2015―Setting on Motion to Strike and no ruling from
            judge, rather agreement reached between the parties and the court to
            March 5, 2015 reset date

            February 26, 2015 ―KG not present, no parties announced (R.R.
            3:1-9).

            March 2, 2015―KG’s response filed and supplemented March 4,
            2015

            March 5, 2015―Hearing began and ended on Motion to Dismiss



     Morin attempts to confuse this Court with his references to setting dates. It is

important to point out that no hearing was announced or called on February 26,




                                       ― 33 ―
2015 because Morin had improperly set the Motion to Dismiss on a jury week

docket, rather than on a non-jury week docket. (Appx. 8).


     KG timely filed on February 17, 2015 and amended February 18, 2015 all

documents requesting the court to strike the Motion to Dismiss based on Morin’s

missed deadlines. (C.R. 98-119, 120-192). Further, a response to the Motion to

Dismiss was timely filed and hand-delivered on March 2, 2015 and supplemented

on March 4, 2015, all before the hearing date. (C.R. 206-467, 468-729).


     Furthermore, Morin failed to present trial testimony or argument alleging any

facts showing how he was prejudice by anything supplemented in the March 4,

2015 filing of the response to the Motion to Dismiss, likely because there wasn’t

any undue surprise because there were no substantive changes that would cause

Morin undue prejudice.


     Therefore, KG’s Motion to Strike was filed and served 19 days before the

hearing and KG’s response was filed and served 3 days before the hearing. (C.R.

98, 206). Further, Morin’s reference to Texas Rule of Civil Procedure 21(b) is

misleading as this rule applies to pleadings requesting relief, not responsive

pleadings. If Texas Rule of Civil Procedure 21(b) applied to responses, most

counsel would wait to file pleadings requesting relief until 3 days prior to the




                                        ― 34 ―
hearing so that it would preclude a response. Therefore, it is clear Rule 21(b) was

not intended to apply to responses.


     Finally, there is no deadline to file a response pursuant to the Act.


     In contrast, there is a clear deadline pursuant to the Act, for Morin to file the

Motion to Dismiss. Not only did he miss the initial filing deadline of the entire

Motion, he also tries to argue that KG pleadings were late, even though KG

pleadings were filed 3 days before his affidavits and objections. Morin was over 2

hours late to the motion to dismiss hearing on March 5, 2015. In addition to being

this obscenely late, he pulled over to efile affidavits and objections after the time

the hearing was set to begin (filings KG couldn’t access because they were already

waiting at the courthouse for Morin). Clearly, with facts such as these, it is hard to

comprehend how he can argue KG filings were late when his weren’t even filed

until after the time the hearing was scheduled to begin.


     Therefore, there is no reversible error as the trial court acted within guiding

principles of the Texas Rules of Civil Procedure and the Act.


                    b.     KG Affidavits Properly Authenticated

     Seigler’s affidavit is properly authenticated because a notary can clearly

notarize a document in which his or her employer has an interest. Tex. Civ. Prac.

& Rem. Code §121.002. Further, a notary public is not disqualified from

                                        ― 35 ―
performing a notarization of a document, solely because of the notary public's

ownership of stock or participation in or employment that has an interest in the

underlying transaction. Tex. Fin. Code §199.002.

      In Phillips, articles of association were signed by 52 employees, 51 of which

had theirs notarized by another employee of the company. The employee who

notarized the other employees’ articles of association had her own notarized by a

different person. The court there held that because the Legislature’s intent in

requiring those items to be notarized was to ensure genuine identity of the persons

associated with the documents, and to prevent fraud, there was no bad faith.

Therefore “the fact that one of the associates happened to be the notary who took

the acknowledgements of the other 51 associates does not render invalid the

character granted pursuant thereto.” Phillips v. Brazosport Sav. & Loan Ass'n, 366

S.W.2d 929 (Tex. 1963).


      Similarly, in Wortham, a relator who was also a notary public, authenticated

a verification for the petition filed for another relator in the case. The court stated

“the interest of Watson in the subject matter of the suit was such as to disqualify

him from administering the oath which he administered to Kirgin or to render

Kirgin's affidavit void or defective.” Wortham Indep. Sch. Dist. v. State, 244

S.W.2d 838 (Tex. Civ. App.—Waco 1951). This holding has been cited and

supported by Ex Parte Karedia.
                                         ― 36 ―
     Here, like in both Phillips and Wortham, Kimberly Kleinhans is an employee

of the company, which does not disqualify her from taking the acknowledgement

of a written instrument in which KG has an interest. The trial court properly ruled

that Morin’s objections to the affidavit of Siegler were overruled. (C.R. 739). The

acknowledgement is valid and lawful and likewise, this Court should affirm the

trial court’s ruling as based in law as set forth above.


     Furthermore, both Kleinhans and Garza’s affidavits were sworn by an outside

notaries (Appx. 9, 12), so even if Seigler’s affidavit isn’t considered, there is

enough evidence from Kleinhans and Garza’s affidavit to support the trial court’s

ruling concerning Morin’s Motion to Dismiss so the one allege issue is irrelevant

to overturn this case.


                    c.     Garza Emailed Affidavit Testimony & Waived
                           Formal Service

     Morin holds out that Garza’s affidavit testimony was forced by fake

command of the court. (A.B. 24-25). The record clearly supports otherwise. (C.R.

467, 729) (Appx. 9).


     The February 24, 2015 email from Garza was voluntarily written and emailed

to Kleinhans and states, verbatim, the statements authenticated in an affidavit by

Garza. (C.R. 467, 729) (Appx. 9). There is no evidence that anyone other than

Garza typed up this email and sent it to Kleinhans. Id. Furthermore, in this same

                                        ― 37 ―
email Garza requests that KG subpoena the testimony so that Garza could paper his

file. Id.


       Garza was not served by constable or process server with the affidavit. He

voluntarily accepted service of the subpoena. Garza could object to the timing or

form of the subpoena, as he is the party such rules cited by Morin were meant to

protect. Tex. R. Civ. Pro. 176.6(d) and (e). Garza, an attorney himself, did not

object or quash the subpoena. Rather, he waived formal service of the subpoena

by signing showing his acceptance of service and notarized and returned the

affidavit simultaneously (Appx. 10). Kleinhans abided by all rules concerning

subpoenas because Garza was not formally served and Kleinhans did not know if

Garza would voluntarily accept the subpoena. As soon as Kleinhans received the

signed affidavit and testimony (all in the same email), she immediately forwarded

it to counsel for Morin. (Appx. 10).


      Morin objected for similar reasons in trial court and the trial court properly

ruled that Morin’s objections to the affidavit of Martin Garza were overruled. (C.R.

739), and likewise, this Court should affirm the trial court’s ruling.




                                        ― 38 ―
     2.     Trial Court Specifically Found KG’s Evidence was
            Clear and Specific

     The decision from the Serafine v. Blunt case already dealt with this issue. Id.

No. 03-12-00726-CV. ____ S.W.3d__, 2015 WL 2061922 (Tex. App. – Austin

May 1, 2015, n.p.h.:


           The Act does not define “clear and specific” evidence; consequently,
     we give these terms their ordinary meaning. See TGS-NOPEC Geophysical
     Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “Clear” means “free from
     doubt,” “sure,” or “ unambiguous.” Black’s Law Dictionary 307 (10th ed.
     2014); Lipsky II, 2015 WL 1870073, at *6 (approving this definition of
     “clear”); see also Webster’s Third New Int’l Dictionary 419 (2002) (“easily
     understood,” “without obscurity or ambiguity,” “easy to perceive or
     determine with certainty”). “Specific” means “explicit” or “relating to a
     particular named thing.” Black’s Law Dictionary, at 1616; In re Lipsky, ___
     S.W.3d ___, 6, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015)
     (approving this definition of “specific”); see also Webster’s Third New Int’l
     Dictionary, at 2187 (“being peculiar to the thing or relation in question,”
     “characterized by precise formulation or accurate restriction,” or “free from
     such ambiguity as results from careless lack of precision or from omission of
     pertinent matter”). We conclude that the term “clear and specific evidence”
     refers to the quality of evidence required to establish a prima facie case,
     while the term “prima facie case” refers to the amount of evidence required
     to satisfy the nonmovant’s minimal factual burden. See Combined Law
     Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL
     411672, at *10 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.).




                                      ― 39 ―
                   a. Falsity Supported by 4 Evidentiary Items

     Three affidavits containing 4 quality pieces of evidence, clearly and

specifically support that Michael Siegler was not drunk or hung over: 1) the

testimony of Michael Siegler, 2) the testimony of opposing counsel, Martin Garza,

3) the testimony of Kimberly Kleinhans, and 4) the State Bar’s findings.


     First, the affidavit of Siegler himself proves that, “I was not intoxicated nor

was I hung over…at no time did LEVI MORIN ever ask me if I was drunk or

hung-over,” (C.R. 727) (Appx. 11).


     Second, the affidavit of Garza proves that, “Michael Siegler handled the

matter professionally and to a high ethical standard. We conferred and negotiated

for over 6 hours on the day of the hearing. At no time did I even suspect or see any

signs of intoxication,” (C.R. 729) (Appx. 9).


     Third, the affidavit of Kimberly Kleinhans proves that Siegler, “never had

previous reports that Siegler reported to work drunk or hung-over and has not had

any reports since the false allegation of Morin stating that Siegler was hung-over at

the March 10, 2014 setting. Furthermore, I corresponded with Michael Siegler on

the day prior and on the date of the hearing and at no time did he ever appear to be

drunk or hung-over. His speech was clear, he was alert and his thoughts were well

organized.” (C.R. 493). (Appx. 9).

                                       ― 40 ―
     Forth, Kimberly Kleinhans affidavit proves that Morin attempted to file a bar

complaint against Siegler with similar allegations to the Yelp posting. (C.R. 494-

495). Morin’s complaint containing the same allegations that were found to be

meritless on the face of the complaint, which were immediately thrown out without

even an initial investigation by the State Bar, “LEVI MORIN received notice that

his complaints were dismissed only days or weeks prior to posting his Yelp review.

So Morin knew that his complaints were found by the State Bar of Texas to have

no basis, yet he went on to make the same false and baseless claims online to

attempt to make it appear as if licenses were in jeopardy when that was not the

truth.” Id.

      Therefore, there is no reversible error as the trial court properly analyzed the

evidence presented and found that the affidavits contained quality testimony that

equates to clear and specific evidence, and likewise, its ruling should be upheld.


                   b.     Damages

     The KG amended petition and Kimberly Kleinhans affidavit clearly and

specifically supported damages claimed (C.R. 198-199, 494).


     The KG amended petition states:


         “LAW OFFICE OF KG, PLLC has suffered general and special
     damages in the past and will continue to suffer general and special damages

                                       ― 41 ―
     in the future as the posting is still active. LAW OFFICE OF KG, PLLC
     damages include but are not limited to: damage to reputation, loss of
     reputation, mental anguish, and pecuniary loses (lost sales, and loss of
     potential clients) of $52,971.25 to $120,000 depending on preferred method
     of calculation.” (C.R. 198-199).

     Further, Kimberly Kleinhans affidavit states:


            “On average, LAW OFFICE OF KLEINHANS GRUBER, PLLC earns
     roughly $10,000 per client. This is a conservative average because our
     personal injury settlements on average range in attorney fees from $30,000 to
     $3,000 and our family law cases usually average about $10,000. This
     average is based on my knowledge as the primary partner of the firm that
     handles all the billing and financials of the firm. Additionally, this number is
     based on my review of cases and income off of cases. Furthermore, Keith
     Kleinhans handles the firm’s intake calls and retains roughly 40-50% of all
     calls we get to the firm that are interested in retaining our services. We do not
     pay for advertisement, we obtain our business from referrals and online
     traffic, therefore, it is without question that our business has declined since
     LEVI MORIN’s posting. The decline is reflected in our overall business
     income from the date of the posting to the present and supported by
     Quickbooks that accounts for all of our firm income, which shows that from
     July 2013- December 2013, our income was $149,303.03, however for the
     similar months the following year after LEVI MORIN’s June 2014 posting,
     our income was $96,331.78, which is $52,971.25 lower. Therefore, based on
     my review of financial documents and client billing, the current Yelp posting
     (see Exhibit A-2) and the Yelp activity reports (see Exhibit A-3 ), minimally,
     LAW OFFICE OF KLEINHANS GRUBER, PLLC lost income ranging from
     $52,971.25 to $120,000 depending on method of calculation.” (C.R. 494,
     502-507, 508-542).


                         i.     Noneconomic Damages to Reputation Are
                                Presumed

     “Noneconomic damages” means damages awarded for the purpose of

compensating a claimant for … injury to reputation.... Tex. Civ. Prac. & Rem.Code

                                       ― 42 ―
§ 41.001(12). Similar to general damages, these non-economic damages do not

require certainty of actual monetized loss. Waste Mgmt. of Tex., Inc. v. Tex.

Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014), citing Gertz v. Robert

Welch, Inc., 418 U.S. 323, 373, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (White, J.,

dissenting); 2 Dan B. Dobbs, Law of Remedies § 8.1(4) (2d ed.1993); Restatement

(Second) of Torts § 621 cmt. a (1977); id. § 905 cmt. i (1979). Instead, they are

measured by an amount that “a reasonable person could possibly estimate as fair

compensation.” Id., citing Restatement (Second) of Torts § 905 cmt. i. “Non-

economic damages like these [mental anguish, character, and reputation damages]

cannot be determined by mathematical precision; by their nature, they can be

determined only by the exercise of sound judgment.” Bentley, 94 S.W.3d at 605.


     Further, “[L]anguage which concerns a person engaged in a lawful

occupation ‘will be actionable, if it affects him therein in a manner that may as a

necessary consequence, or does as a natural or proximate consequence, prevent

him deriving therefrom that pecuniary reward which probably he might otherwise

have obtained.’ Bell Publ'g Co. v. Garrett Eng'g Co., 154 S.W.2d 885, 887

(Tex.Civ.App.-Galveston 1941) aff'd, 170 S.W.2d at 197. “Our law presumes that

statements that are defamatory per se injure the victim's reputation and entitle him

to recover general damages, including damages for loss of reputation and mental

anguish.” Bentley at 604. Even in the Waste Mgmt. of Tex., Inc. case where the

                                       ― 43 ―
court found that the non-economic damages were not the sort of general damages

that necessarily flow from such a defamatory publication, nominal damages were

still upheld. Id. at 162.

      The plaintiff must plead and prove damages, unless the defamatory

statements are defamatory per se. In re Lipsky, ___ S.W.3d ___, 6, No. 13-0928,

2015 WL 1870073 (Tex. Apr. 24, 2015), citing Waste Mgmt. of Tex., Inc. at 162.


      KG clearly fits in the category of defamation per se as Morin was clearly

trying to injure KG’s profession by holding out that KG’s attorneys are

incompetent drunks and thus, damages are presumed. (C.R. 195-205).


      However, even if damages are not presumed, KG clearly sets forth necessary

facts to support damage to reputation in Kimberly Kleinhans’ affidavit:


         - Yelp webpages showing 2 users gave it a thumbs up that Morin’s
           review was helpful, and given it is all negative reviews of KG, it is
           clear that 2 potential clients did not choose to use KG for legal
           services. (C.R. 494, 502-507)

         - Yelp emails showing 193 people that have visited the Yelp site, only
           14 have turned into leads (C.R. 494, 508-542)


     Therefore, the amount of damages that KG should be awarded is an issue for

the jury to determine at a later date, but for purposes of this inquiry, it is presumed

that KG has suffered nominal damages, so minimally, for the purposes of inquiry


                                        ― 44 ―
nominal damages are clearly supported by the law. Hancock v. Variyam, 400

S.W.3d 59, 65 (Tex. 2013) (Remarks that adversely reflect on a person's fitness to

conduct his or her business trade are also deemed defamatory per se.); Salinas v.

Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam) (Texas law presumes

nominal damages when the defamation is per se); In re Lipsky at 34 (“pleading and

proof of particular damage is not required to prevail on a claim of defamation per

se, and thus actual damage is not an essential element of the claim to which the

TCPA's burden of clear and specific evidence might apply.”)


                          ii.    Economic Damages to KG Earning Capacity
                                 and Lost Income

      “Economic damages” means compensatory damages intended to compensate

a claimant for actual economic or pecuniary loss; the term does not include

exemplary damages or noneconomic damages. Tex. Civ. Prac. & Rem.Code §

41.001(4). Economic damages do require proof of pecuniary loss for either harm

to property, harm to earning capacity, or the creation of liabilities. Waste Mgmt. of

Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014), citing

Restatement (Second) of Torts § 906.


     KG has clearly identified pecuniary loses and harms to earning capacity.

There are 2 potential clients that were seeking attorney services and on KG’s Yelp

site, when they noticed Morin’s false review, as 2 users gave it a thumbs up that it

                                       ― 45 ―
was helpful, and likewise, it is reasonable to conclude that Morin’s positing is a

substantial part in inducing those 2 potential clients not to use KG for legal

services. (C.R. 502-507). Furthermore, Yelp Activity reviews support the same as

explained above that of the 193 people that have visited the Yelp site, only 14 have

turned into leads, and given the fact that all the other reviews posted on the Yelp

page are positive, raving, 5-star reviews, the only conclusion that can be drawn is

that Morin’s Yelp posting is causing the low number of leads generated from the

high number of views. (C.R. 508-542). In conclusion, the estimated damages

caused have been summarized and documented by Kimberly Kleinhans in her

attached affidavit to be lost income ranging from $52,971.25 to $120,000

depending on method of calculation. (C.R. 494).


     All the above statements directly from the referenced affidavits point to clear

and specific evidence by referencing:


         - $52,971.25 to $120,000 estimated damages from date of posting from
           June 24, 2014 through February 27, 2015 points to specific monetary
           figures and dollar amounts calculated by KG’s Quickbook software
           (C.R. 494)

         - we obtain our business from referrals and online traffic (clearly
           showing that KG tracks and knows where they get their business)
           (C.R. 494)

         - on average, LAW OFFICE OF KLEINHANS GRUBER, PLLC earns
           roughly $10,000 per client….based review of cases and income off of
           cases (shows KG knows how profitable the cases are) (C.R. 494)

                                        ― 46 ―
         - references lost profits of $2,500 incurred by having to respond to the
           frivolous Motion to Dismiss (C.R. 495)
      As one would expect, the court in Burbage denied finding economic

damages when those damages claimed were for the sale of the funeral home in its

entirety and when asked the cost of the funeral home, trial testimony contained

statements such as, “if I had to throw something out there….” However, in

contrast, Kimberly Kleinhans affidavit supports she has thoroughly reviewed

QuickBooks, financial documents, client billing, the current Yelp posting and the

Yelp activity reports to calculate a specific figure based on the review of these

documents, likewise supporting a finding that clear and specific evidence exists to

support economic damages. (C.R. 494, 502-507, 508-542).


      Therefore, there is no reversible error as the trial court acted within guiding

principles of case law that hold that KG only has to prove that the harm is a

substantial part in causing the damages, not that it is the exclusive factor in causing

the damages, and therefore, this Court should uphold the trial court’s ruling.

Johnson at 391; Hurlbut at 767.


                    c. Malice Supported by Motive and Intentional Acts

     A defendant acts with malice when it (1) knows the statement in question is

false, or (2) acts with reckless disregard for whether the statement is true, or (3)


                                        ― 47 ―
acts with ill will, or (4) intends to interfere in the plaintiff’s economic interest.

Hurlbut, 749 S.W.2d 762, 766. Furthermore, “…care and motive are factors to be

considered.” Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005); Bentley, 94

S.W.3d at 596.


      Morin had motive to harm KG’s economic interest.


      On June 4, 2014, in response to receipt of the Order of Withdraw, Morin

emailed Kimberly Kleinhans an email stating, “You’re a horrible person, a

predator, and I will make sure that’s known on as many fronts as I can.” (C.R.

197). When KG requested Morin to remove the posting, Morin responded sending

several emails to Kimberly Kleinhans stating, “go fuck yourself,” and “biggest

piece of shit lawyer I’ve ever not met,” and “wait ten days and see if I’m as big of

a pussy as you.” (C.R. 198) (Appx. 4-5).


      Morin’s acts were intentional to harm KG’s economic interest.

      Morin’s acts show ill will; actually supporting a higher standard of the type

of malice required for a media plaintiff, even though KG is a non-media plaintiff

and only requires a showing of negligence. In re Lipsky at 25, citing WFAA-TV,

Inc. v. McLemore, 978 S.W.2d 568, 571(Tex. 1998) (A private individual need

only prove negligence, whereas a public figure or official must prove actual



                                         ― 48 ―
malice). The trial court agreed by denying Morin’s Motion to Dismiss against the

business disparagement claim that requires the higher finding of malice. (739).


        Morin never attempted to verify the truth or falsity of these statements at time

of publishing, even though the statements could have easily been verified by

asking Michael Siegler if he was hung over or by sending an email following the

hearing to KG requesting that they investigate whether Michael Siegler was hung

over at the setting. (C.R. 88-89).


        Additionally, the Texas State Bar further alerted Morin that his statements

were unsubstantiated by notifying him that his bar complaint was found on its face,

to be without merit and would not be investigated. (C.R. 197, 494-495). Morin

knew at the time of posting that his complaints were found by the State Bar of

Texas to have no basis, yet he went on to make the same false and baseless claims

online to attempt to make it appear as if licenses were in jeopardy when that was

not the truth. Id. Morin’s argument on this point is misplaced as the malicious act

is not that Morin sent a complaint to the State Bar as Morin argues―rather, the

malicious act is that Morin knew his complaint was found by the bar to be without

merit, and that after being noticed, Morin disregarded that notice and posted on

Yelp.




                                         ― 49 ―
      Further, “given the conduct and dishonesty and disrespect that I have seen

him display in the course of the 2+ years that I represented him, there is no doubt

in my mind, his intent to do harm to myself and the firm on as many fronts as is

possible.” (C.R. 495) (Appx. 12). Further, support of Morin’s dishonesty is

corroborated in Kimberly Kleinhans affidavit supporting his dishonest conduct

during the course of her representation in which Morin attempted to get out of 2

settlement agreements after written settlement was reached and approved by him.

(C.R. 495, 690, 728) (Appx. 12).


     Finally, the controverting affidavits by Michael Siegler (C.R. 727) and

Martin Garza (C.R. 729) and Kimberly Kleinhans (C.R. 493-495) stating that

Michael Siegler support that Morin was fabricating statements in his affidavit

about the condition of Michael Siegler as each affidavit provides a basis for the

statements, most notably, opposing counsel states that Michael Sigler negotiated 6

hours with him and at no time showed signs of being intoxicated. (Appx. 9, 11-12).


     Therefore, it is clear as stated in the paragraphs immediately above, Morin

had motive and did not act with care―which are factors supporting a finding of

malice. Morin did not make any attempt to verify the truth of the statements made,

and further, now that he knows statements posted are false, he has failed to take

any remedy. Additionally, the affidavit testimony and emails further support

Morin’s intent to cause harm to the firm’s reputation and pecuniary interest in
                                       ― 50 ―
retaliation for being denied representation and for being corrected, and likewise,

this Court should find that clear and specific evidence supports that Morin had

malice, and likewise uphold the trial court’s ruling.


     At No Time Did Morin Act Timely

     It is undisputed that Morin habitually missed deadline after deadline as set

forth on pages 18-20 above. Such defiant disregard for the law clearly does not

support a good cause finding.


B.    TRIAL COURT SPECIFICALLY FOUND HEARING WAS UNTIMELY

      Morin’s plea to the Court that he was trying to reach an agreement

concerning discovery is without merit. Despite Morin’s requests for limited

discovery, KG always clearly responded in the referenced emails that full

discovery responses would be necessary, or KG would seek a hearing on the

matter, “Please advise whether you are in agreement to answer the discovery that

was served on you nearly 45 days ago, and if so, by what date you will be

answering the discovery…” (C.R. 122 a-d, 155-158) (Appx. 6). As KG stated to

Morin in these emails, KG was holding off on setting a discovery hearing as Morin

alluded that he may not be going forward with his Motion to Dismiss, and further,

KG was waiting for Morin to answer whether he was going to respond to the full

discovery served, “This [discovery] hearing will need to be set prior to your


                                       ― 51 ―
requested [Motion to Dismiss] setting on a date dependent on your response about

whether you are in agreement to [answer all] discovery.” (C.R. 155) (Appx. 6).


      Thereafter the Motion to Dismiss was scheduled, without any agreement,

Morin unilaterally sent over a self-serving subset of documents of his choosing that

were only beneficial to his case and objected to anything relevant or of use to KG’s

case. (C.R. 122) (Appx. 6). Morin’s refusal to respond to KG about whether he

was going to fully comply with discovery does not constitute discovery

discussions.

      The only reason that KG did not seek a discovery hearing is because Morin

unilaterally set the Motion to Dismiss immediately after KG’s noticed

unavailability and noticed her of the setting immediately before the noticed

unavailability, making it impossible for KG to get a hearing on such matter. (C.R.

101). Morin’s email to KG reflects the same, “that [the Motion to Dismiss setting]

will leave you with no time for discovery even if the judge thinks you deserve it.

(Appx. 7).


      KG presented testimony to the trial court of how it was prejudiced by

Morin’s habitual failure to comply with deadlines’ imposed by the Act, which

include but are not limited to the following: KG’s noticed unavailability was

planned to occur following the Motion to Dismiss setting to allow KG adequate


                                       ― 52 ―
time to prepare a response, if Morin actually decided to go forward with the

Motion to Dismiss (as Morin was considering KG’s offer to dismiss the case with

Morin’s agreement to remove the Yelp post). (C.R. 190). Since Morin’s Motion to

Dismiss was scheduled well after the January 30, 2015 hearing deadline, and

noticed immediately before KG’s noticed unavailability to occur immediately

following KG’s noticed unavailability, KG was prejudice by not having time to

properly respond to the Motion to Dismiss, “I am spending all my time taking case

of preliminary issues there is no time for me to review the Motion to Dismiss and

respond.” (C.R. 188).


      The trial court took KG’s testimony concerning discovery and prejudice

caused by Morin’s delay and properly found no good cause for an extension

because as the facts stated herein support, there were no on-going discovery

discussions, and therefore the trial court’s ruling should be upheld as they are in

the best position to judge credibility of testimony.


C.    TRIAL COURT SPECIFICALLY FOUND MORIN EXHIBITS TO BE UNTIMELY
      AND NO GOOD CAUSE SUBSTANTIATED

      Just as Morin’s excuses for missing the above hearing deadline, there is no

record and Morin failed to file any pleadings on the issue. Morin now asserts

excuses not presented to the trial court. This is the first time KG is hearing

Morin’s argument that he forgot to attach the exhibits. However, this argument is

                                        ― 53 ―
flawed as his invoice attached to the brief this is in response to, stated on the date 2

days after the filing deadline, “Finalize and file revised motion with attachment

and proposed order.” (A.B. 56). The term finalize does not support refiling

because one “forgot” ―it supports that one is still working after the deadline to

complete something that hasn’t been completed by the deadline.


      Likewise, the trial court is well-known to be the best facility to evaluate

testimony and that is all we have here, testimony the trial court heard and is not

available for the Appellate Court to review, “[A]ppellate courts should show

almost total deference to a trial court’s findings of fact especially when those

findings are based on an evaluation of credibility and demeanor—i.e...” Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(internal citations omitted).


      Findings relating to whether there is a good enough excuse to have good

cause are the exact type of findings that are based on the trial court’s evaluation of

the credibility and demeanor of Morin v. credibility and demeanor of KG.


      There was no good cause for the trial court to permit the exhibits or a late

hearing setting, and its ruling should be upheld.




                                        ― 54 ―
D.    MORIN’S ATTORNEY FEES CONTESTED IN AFFIDAVIT AS CLEARLY
      UNREASONABLE AND LOGICALLY UNNECESSARY


     KG clearly contests Morin’s lawyer fees in length in Kimberly Kleinhans’

affidavit naming 6 reasons for why they are unreasonable and unnecessary, most

notably in that Morin’s lawyer is charging at a rate higher ($285/hour is the range

Morin alleges is his rate) than the rate he is billing Morin ($75/hour). (C.R. 91,

495-496) (Appx. 13).


     Additionally, KG objected to Morin’s fee affidavit in the response to the

Motion to Dismiss as not being reasonably incurred as set forth in Kleinhans’

affidavit and for failing to produce attorney fee invoices to support charges. (C.R.

483-484).


     KG objects to Morin’s attempt to supplement attorney fee evidence by

attaching an appendix with additional attorney fee testimony that wasn’t part of the

trial court’s evidence. (A.B. 52-53). “The trial court’s ruling will not be disturbed

absent evidence that it acted unreasonably, arbitrarily, or without reference to any

guiding legal principles.” Gainsco County Mutual Insurance Co. v. Martinez, 27

S.W.3d 97, 104 (Tex. App.—San Antonio 2000), review granted, (Oct. 12, 2000)).


      The trial court’s ruling concerning denying Morin’s Motion to Dismiss on 7

various grounds should be upheld, and likewise, the trial court properly found that


                                        ― 55 ―
Morin is not entitled to attorney fees pursuant to the Act when his motion is

denied, and likewise, the trial court’s ruling should be upheld.


E.    KG’S FEES UNCONTESTED AND KG ENTITLED TO FEES

     To the contrary, KG presented sufficient evidence of attorney fees for

preparation in trial court of $2,500, which is substantially less than the amount

incurred in responding to the Motion to Dismiss or dealing with all of Morin’s

missed deadlines, and thus, clearly reasonable and necessary and awardable

pursuant to the Act. (C.R. 127-128, 484, 492-493). “If the court finds that a

Motion to Dismiss filed under this chapter is frivolous or solely intended to delay,

the court may award court costs and reasonable attorney's fees to the responding

party.” Tex. Civ. Prac. & Rem. Code § 27.009. Furthermore, KG is entitled to

post-motion fees as sanctions against counsel for Morin for filing this frivolous

appeal.


     The court should sever and remand only on issue of awarding KG fees so that

the trial court can determine the proper fee and sanction award.


                                       Conclusion

     KG prays that the Court affirm the trial court’s ruling denying Morin’s

Motion to Dismiss and remanding only the issue of attorney fees payable by Morin

to KG.

                                       ― 56 ―
                                       Respectfully submitted,

                                       LAW OFFICE OF KLEINHANS GRUBER, PLLC


                                       By: /s/ Kimberly G. Kleinhans
                                         Kimberly G. Kleinhans
                                         kim@lawofficeofkg.com
                                         State Bar No. 24062755
                                         Keith L. Kleinhans
                                         keith@lawofficeofkg.com
                                         State Bar No. 24065565
                                         12600 Hill Country Blvd, Ste. R-275
                                         Austin, Texas 78738
                                         Telephone: 512.961.8512
                                         Facsimile: 512.623.7320


                         CERTIFICATE OF COMPLIANCE

      This Brief of Appellee, Law Office of Kleinhans Gruber, PLLC, was

prepared with Microsoft Word. According to that program’s word-count function,

the sections covered by all sections contain 12,962 words for the entire brief.




                                       ― 57 ―
                            CERTIFICATE OF SERVICE

      I certify that a true copy of this pleading was served on each attorney of

record or party in accordance with the Texas Rules of Appellate Procedure on

July 1, 2015.

The Olsen Firm, PLLC
Leif Olsen
4830 Wilson Road, Ste. 300
Humble, Texas 77396
Telephone: 281.849.8382
Facsimile: 281.248.2190
Email: leif@olsonappeals.com
VIA ESERVICE



                                       /s/ Kimberly G. Kleinhans




                                       ― 58 ―
                        No. 03-15-00174-CV
________________________________________________________________
                     IN THE COURT OF APPEALS
                 FOR THE THIRD DISTRICT OF TEXAS
                             AT AUSTIN
       _________________________________________________

                          LEVI MORIN,
                                   Appellant,
                               v.
             LAW OFFICE OF KLEINHANS GRUBER, PLLC,
                                   Appellee.

    From Cause No. D-1-GN-14-003874; 201st Judicial District Court
                       Travis County, Texas
   _________________________________________________________

    BRIEF OF APPELLEE, LAW OFFICE OF KLEINHANS GRUBER, PLLC
                 A/K/A LAW OFFICE OF KG, PLLC
     _____________________________________________________

                 APPENDIX TO BRIEF OF APPELLANT
     _____________________________________________________

                         Kimberly G. Kleinhans
                         State Bar No. 24062755
                         Keith L. Kleinhans
                         State Bar No. 24065565
                         12600 Hill Country Blvd., Ste. R-275
                         Austin, TX 78738
                         512.961.8512 (telephone)
                         512.623.7320 (facsimile)

                         ATTORNEYS FOR APPELLEE,
                         LAW OFFICE OF KLEINHANS GRUBER, PLLC
                               ― 59 ―
                              Appendix Contents

Document                                                      Tab

l.    Trial Court's Judgment, dated March 26,2015             TABl

2.    Filings Concerning Morin's Missed Appellate Deadlines   TAB 2

3.    Email between KG and Morin re KG's Withdraw             TAB 3

4.    Email between KG and Morin Showing Morin's              TAB 4
      Malice Motive, dated June 5, 2015

5.    Emails between KG and Morin Showing Morin's             TABS
      Malice Motive, dated September 24, 2014

6.    Emails between KG and Counsel for Morin Showing         TAB 6
      No On-Going Discovery Negotiations

7.    Email to KG from Counsel for Morin Re Discovery         TAB 7

8.    Travis County District Court Jury Docket Schedule       TAB 8

9.    Garza Email with Affidavit Content and Affidavit        TAB 9

10.   Emails Showing Counsel for Morin Received               TABlO
      Notice of Subpoena of Garza

II.   Siegler Affidavit                                       TABll

12.   Kleinhans Affidavit                                     TABl2

13.   Morin's Fee Contract at $751hr.                         TABl3
                   TAB   1
Trial Court's Judgment, dated March 26, 2015
                  C.R.739
                                                   DC         BK15090 PG998
                                                                                             Filed in The District Court
                                                                                              of Travis County, Texas (/)
                                                                                                   MAR 26 2015          v ()

                                                   No. D-1-GN-14-003874                  At           4;?/)           PM.
                                                                                             Velva L. Price, District dlerk
             Law Office of Kleinhans
              Gruber, PLLC
                                                                     201 sf District Court
            v.                                                      Travis County. Texas
             Levi Morin

                                      Amended Order on Motion to Dismiss
                The Court has considered Morin's motion to dismiss; Kleinhans
            Gruber's Second Amended Motion to Strike or Deny Morin's Motion to
            Dismiss; the responses and replies on those motions; the parties' objec-
            tions; the evidence; and counsel's argument. Based upon that considera-
            tion, the Court:
                  1. Finds no good cause to extend the deadline for Morin to file his
                     motion to dismiss;
                  2. Finds Morin did not set the hearing on his motion to dismiss within
                       60 days after service of the motion, and did not meet any of the ex-
                       ceptions indicating the hearing can be set Jater than the 60th day;
                  3. Strikes the exhibits to Morin's motion to dismiss, which were filed
                     after the deadline for Morin to file his motion;
                  4. Overrules Morin's objections to the affidavits of Kimberly Klein-
                     hans, Martin Garza, and Michael Siegler;
                  5. Finds that Kleinhans Gruber established, by clear and specific evi-
                       dence, a prima facie case for defamation and business disparage-
                       ment based upon Morin's statement that Kleinhans Gruber "sen[t]
                       hung over 'associates' to court dates [Michael Seigler];"
                  6. Finds that Morin did not establish each erement of an affirmative
                     defense by a preponderance of the evidence; and

                  7. Denies Morin's motion to dismiss.


             Signed on March 26th , 2015, at Austin, Texas.




                                                                                                               ~
Case # D-1-GN-14-003874


                                                                                                               ~£9
11111111111111111111111111111111111111111111111 WIIIIII
003954108
                       TAB  2
Filings Concerning Morin's Missed Appellate Deadlines
                                                                                        ACCEPTED
                                                                                   03-15-00174-CV
                                                                                          4598458
                                                                           THIRD COURT OF APPEAU
                                                                                     AUSTIN. TEXAS
                                                                               3/23/201511:59:27 AM
                                                                                   JEFFREY D. KYLE
                                                                                             CLERK
                          No.03-IS-00I74-CV
LEVI      MORIN,
     Appellant.,
V.                                           Third Court of Appeals
LAW OFFICE OF KLEINHANS                              Austin, Texas
     GRUBER, PLLC,
     Appellee.

            Morin's Motion to Extend Time to Notice Appeal

      Defendant-Appellant Levi Morin moves for an extension of his

time to notice his appeal. He has already filed his notice. Exh. A. The

case is pending in the 20Ist District Court of Travis County as No. D-

I-GN-I4-003874, Law Office ofKleinhans Gruber PLLC v. Levi Morin.

A. Factual and statutory background.

      On December 1) Morin filed his motion to dismiss under the Texas

Citizens Participation Act. That made January 30 - Day 60 -         the

deadline for a hearing on the motion. TEX. CIV.       PRAC. & REM.

CODE § 27.004(a). There was no hearing by then. However, the Act

extends the hearing deadline from 60 to 90 days if the trial court finds

good cause. Id. The motion was set for hearing on Day 90, February

26. The TCPA deems a motion denied if the deadline passes without a

hearing. Id at § 27.008(a).

      The district court began the hearing on February 26. It recessed

the hearing until March 5, when it orally denied the motion. Morin
impliedly requested an extension when he filed his notice of appeal the

next day; he now follows that implied request with a formal motion.

B. Appellate deadlines.

   The TCP A sets no timetable for a court's finding of good cause to

extend the hearing deadline. There are two possible deadlines for a no-

tice of appeal. They depend on whether the trial court must find good

cause for an extension before the 60-day hearing deadline or whether

it can do so later.

    1. If the law requires an early finding.

   The law firm - the plaintiff below; the appellee here -           has ar-

gued that the good-cause finding must come before the 60-day hearing

deadline runs. Otherwise, it argues, the motion is denied by operation

of law. If the firm is correct, then Morin) s deadline to notice the ap-

peal was February 19, and his deadline to request an extension was

March 6. TEX. R.         App.    P. 26.1(b), 26.3. The trial court hasn't yet

signed a written order denying Morin's motion; if that written order
states that there is no good cause for extension, then Morin's right to

appeal is lost retroactively.

   2. If the law permits a later finding.

    On the other hand, the lack of a timetable and the requirement that

the TCPA) s language be read (( liberally to effectuate its purpose and

intent fully," TEX. CIV.          PRAC.     & REM. CODE § 27.011(b), sug-


Case 03-1S-0017 4-CV) Morin 1>. Kleinhans Gruber                    Page 20f6
Morin's Motion for Extension of Time to Notice Appeal
gest that there is no pre-deadline requirement. This is supported by

the procedural posture of a case: If a TCPA motion is denied as a mat-

ter of law) it remains before the trial court. A trial court's management

of its docket is accorded wide discretion. It retains that discretion until

the defendant - the TCPA movant - invokes the jurisdiction of the

appellate court. As long as the trial court hears the motion on (or be-

fore) Day 90, as permitted by the statute, there is no persuasive reason

for limiting its discretion by requiring a good-cause finding as of Day

60.

      This interpretation is practical, as well. The TCPA) s deadlines are

intended to protect defendants by affording them a rapid resolution to

a potential threat to their rights to expression. See TEX.   CIV.    PRAC.

& REM. CODE § 27.002. If a trial court doesn't, or can't, hear the

motion by Day 60, defendants who insist on a more-rapid resolution

can treat that lack of hearing as a denial by operation of law and invoke

the appellate court's jurisdiction. Id. at § 27.008. But defendants who

prefer to try to reach an accord with plaintiffs can continue to do so

and have their motions heard through Day 90, a date on which a resist-

ing plaintiff can argue that the motion should be denied because there
was no good cause for the extension. If a trial court finds no good

cause, then the defendants) appellate deadlines would begin running

not retroactively) but as of the ruling that there was no good cause.


Case 03-1S-00174-CV) Morin P. Kleinhans Gruber                      Page 30f6
Morin's Motion for Extension of Time to Notice Appeal
    3.   -Deadline confusion.
    But the Act doesn't make clear which of these two interpretations
applies. Nor have Texas's appellate courts interpreted the Act to put a
more-certain judicial gloss on its tenns . Thus, Morin is faced with a
choice. He can wait until a written ruling from the trial court and risk
losing his chance to appeal altogether. Or he can file his notice his ap-
peal before the district court signs a written order of denial, protecting
his right to appeal and avoiding the expense and burden (to himself
and the courts) of appealing twice.

c. Good cause for extension.
    1. Avoiding procedural forteiture.

    Extending Morin's deadline to appeal will enable him to protect his
legal interests in two ways. One, if the notice-of-appeal deadline began
to run on Day 60, he has timely invoked the Court) s jurisdiction. Two,
if the district court's written order denying Morin's motion includes a
fmding that there was no good cause, and if the Act is construed to re-
quire a good-cause finding before Day 60, Morin would lose his right
to appeal - and lose it retroactively.
    Either alternative would countenance a procedural default over a
resolution on the merits, which Texas law has long disfavored.        Se~

e.g.~   Sutherland v. Spencer, 376 S. W.3d 752, 756 (Tex. 2012). Extending
Morin's deadline satisfies our state's preference for decisions on the



Case 03-1S-00174-CV, Morin v. Kleinhans Gruber                   Page 4 of6
Morin's Motion for Extension of Time to Notice Appeal
merits and enables Morin to avoid not just a procedural default, but

the possibility of a procedural default that applies retroactively.

    2. Efforts to reach agreement.

    There is good cause to extend the time for Morin to notice his ap-

peal. Morin's counsel attempted to reach an agreement with the firm

regarding the need for discovery. Those attempts proved unfruitful,

but pursuing them took Morin past Day 60. See Exh. B. He contacted
the trial court and requested that it set a hearing on Day 90, the only

day remaining in the 90-day window that wasn't covered by the firm) s

counsel's vacation letter. Extending Morin's appellate deadline will

see that he isn't punished for his pursuit of an amicable resolution - a

resolution that Texas has long preferred because of its greater likeli-

hood of creating peaceful and harmonious relations. See Wright v.

Sydow, 173 S.W.3d 534, 551-52 (Tex. App. - Houston [14th Dist.]
2004, pet. denied); see also TEX. CIV.                  PRAC.   & REM.    CODE

§§ 154.002, 154.003.

                             Conclusion and Prayer

    The Court should extend Morin's time to notice his appeal

through March 6, 2015. Morin further prays for all other relief to
which he may be entitled.
                                       Respectfully submitted,
                                       THE OLSON FIRM           PLLC
                                       I sI Leif A. Olson
Case 03-15-0017 4-CV) Morin P. Kleinhans Gruber                          Page 5 of6
Morin's Motion for Extension of Time to Notice Appeal
                                      Leif A. Olson
                                       leif@olsonappeals.com
                                       State Bar No. 24032801
                                      PMB 188
                                      4830 Wilson Road, Suite 300
                                      Humble, Texas 77396
                                      (281) 849-8382
                                      Counsel for Appellant Levi Morin

                           Certificate of Conference
   I conferred with Kimberly Kleinhans regarding this motion. She in-
formed me that the firm opposes it.
                                       /s/ Leif A. Olson
                             Certificate of Service
    On March 23, 2015, I served a copy of this Morin J s Motion for Ex-
tension o/Tinle to Notice Appeal upon counsel for KG by electronic ser-
VIce:
    LAW OFFICE OF KLEINHANS GRUBER, PLLC
    Kimberly G. Kleinhans
    kiln@lawofficeofkg.com
    700 Lavaca, Suite 1400
    Austin, Texas 78701
                                      /s/ Leif A. Olson




Case 03-15-0017 4-CV) Morin v. Kleinhans Gnlber                  Page 6 of6
Morin's Motion for Extension of Time to Notice Appeal
                                                               3/6/20158:40:06 PM
                                                                                  Velva L. Price
                                                                                 District Clerk
                                                                                 Travis County
                            No. D-I-GN-14-003874                              D-1-GN-14-003874

 LAW OFFICE OF KLEINHANS
      GRUBER, PLLC,
      Plaintift                                       201st District Court
 V.                                                  Travis County, Texas
 LEVI MORIN,
      Defendant.

                          Morin's Notice of Appeal
    The district court denied defendant Levi Morin) s motion to dismiss in
an oral ruling on March 5, 2015. In the alternative, Morin) s motion was de-
nied by operation oflaw on January 30. He appeals the denial, on whichever
date it was rendered, to the Third Court of Appeals.
      This appeal is accelerated.
                                     Respectfully submitted,
                                     THE OLSON FIRM PLLC

                                     /s/ Leif A. Olson
                                     Leif A. Olson
                                       leif@olsonappeals.com
                                       State Bar No. 24032801
                                     PMB 188
                                     4830 Wilson Road, Suite 300
                                     Humble, Texas 77396
                                     (281) 849-8382
                                     Counsel for Defendant Levi Morin

                            Certificate of Service
   I certify that on March 6, 2015, I served a copy of this Morin's Notice of
Appeal upon counsel for KG by electronic service:
      LAW OFFICE OF KLEINHANS GRUBER, PLLC
      Kimberly G. Kleinhans
      kim@lawofficeofkg.com
      12600 Hill Country Blvd., Ste. R275
      Austin, Texas 78738
      (512) 961-8512
                                     /s/ Leif A. Olson



                                                                                Exhibit A
                         No. 03-15-- - - - - --CV
LEVI MORIN,
     Appellant,
v.                                               Third Court of Appeals
LAW OFFICE OF KLEINHANS                                  Austin, Texas
GRUBER,          PLLC,
     Appellee.

              Declaration of Leif A. Olson in Support of
            Morin's Motion to Extend Time to Notice Appeal
      1. I represent Levi Morin, the appellant, in this case, and I did so
in the trial court. I am in all ways competent to make a declaration, and
the facts in this declaration are within my personal knowledge.
   2. The Law Office of Kleinhans Gruber, PLLC, is the plaintiff be-
low and the appellee here. Kim Kleinhans is a partner in that firm and
has represented the firm throughout this case.
      3. The timeline that follows my signature is a true and accurate
representation of my communications with Kleinhans and the firm
throughout this case. It is based on my personal recollections as well as
the records I make in the usual course of business, which are made at
roughly the same time as the activity they document and on which I
rely in my practice.
         My name is Leif Alexander Olson. I was born on October
         10, 1975. My mailing address is PMB 188, 4830 Wilson
         Road, Suite 300, Humble, Texas 77396. I declare under
         the penalty of perjury that the statements in this declara-
         tion are true and correct.
      SIGNED      in Harris County, Texas, on March 20, 2015.




                                                                          Exhibit B
Date          Event
10/27/14      Olson calls the firm to introduce himself and state that
              he is representing Morin. He leaves a voice message ask-
              ing if the firm would consider putting a hold on discov-
              ery so the parties can negotiate. Kleinhans replies by
              email agreeing to do so.
              Kleinhans emails that she can't retrieve Morin's answer
              from the e-filing system. Olson emails it to her.
              Olson emails Kleinhans a letter proposing that the firm
              nonsuit the case rather than spend actual cost and op-
              portunity cost pursuing claims that Morin will ask be
              dismissed under the Act. He notes that a TePA motion
              will stay discovery. He closes by asking for a quick re-
              sponse and quick negotiations because the deadline to
              file a TePA motion is December 1.
10/28/14      Kleinhans emails Olson asking for his fax number. Olson
              responds that he consents to email service of anything
              the firm wants to send. Kleinhans insists on the number.
              Olson furnishes it.
              The firm serves requests for production, requests for
              admission) and interrogatories. Kleinhans emails Olson
              that the firm refuses to nonsuit its case because it is se-
              rious about pursuing the case, up to and including a jury
              trial. She proposes a settlement that would require a
              payment from Morin and states that the firm will need
              discovery if Morin persists in seeking a TePA dismissal.
10/31/14      Olson informs Kleinhans that Morin declines the set-
              tlement offer. He states that he will look over the dis-
              covery to see if there will be objections and asks
              Kleinhans for dates in December when a TePA hearing

Morin P. Kleinhans Gruber) 03-15-- --CV                            Page 1
Timeline
              could be set. Kleinhans responds with three dates.
12/1/14       Morin files his motion to dismiss.
12/3/14       Morin refiles his motion to dismiss, this time attaching
              the exhibits that his counsel forgot to attach the first
              time.
12/4/14       Kleinhans em ails that the recent circumstances and the
              firm's incredibly full docket have led it to agree to a non-
              suit if Morin will remove his review.
              Kleinhans also asks for a copy of Morin's complaint to
              the State Bar. Olson responds that Morin doesn't have a
              copy.
12/5/14       Olson emails Kleinhans that he is seeking a response for
              the firm's settlement offer.
12/22/14      Olson emails Kleinhans that Morin declines her offer.
              He furnishes Morin's counter-offer.
              Kleinhans emails Olson that she never received Morin's
              discovery responses. Olson reminds her that the TePA
              motion stayed all discovery. He asks if there are specific
              items the firm would like so he can attempt to reach an
              agreement on discovery rather than having to seek court
              intervention.
              Kleinhans states that she thought that Morin would be
              furnishing discovery despite the stay. Olson apologizes
              for giving that impression.
              The firm non suits its claims. Kleinhans tells Olson to
              disregard her comment about discovery because of the
              nonsuit and the firm's settlement offer: It will dismiss
              with prejudice if Morin deletes his review.
              In a series of emails, Kleinhans expresses her belief that
              Morin's motion is rendered moot by the nonsuit. Olson
Morin v. Kleinhans Gruber) 03-15-- --CV                            Page 2
Timeline
              responds to disagree and sends citations to cases to sup-
              port his view. Kleinhans expresses her disagreement,
              noting that one case, in particular, wasn't decided until
              after the firm filed its suit.
12/30/15      Olson emails Kleinhans that Morin declines the firm's
              offer. He asks for dates in January for a hearing on the
              motion.
1/5/15        Kleinhans responds that the firm will need discovery if
              Morin intends to pursue his motion to dismiss. She asks
              for a date by which the discovery will be served and
              states that the firm will need a hearing on its nonsuit.
1/19/15       Olson calls to discuss whether the parties can agree to
              discovery and a hearing date. He reaches Kleinhans at
              home on her cell phone. Kleinhans expresses doubt that
              there is anything to discuss, but they set a call for Janu-
              ary 21.
1/21/15       Olson emails to apologize for not being able to call and
              asking for a time to schedule another call.
1/26/15       Kleinhans) s office leaves a voicemail asking to resched-
              ule the conference. Olson returns the call and later
              emails that a Wednesday conference is fine.
1/28/15       Olson and Kleinhans confer by telephone regarding the
              motion to dismiss and the firm's discovery requests.
              Kleinhans states that she doesn't think there is anything
              to discuss; the firm needs the discovery, and it needs all
              of the discovery, and it won't agree to limit its requests.
              Olson again states that the firm isn't entitled to discov-
              ery and that Morin doesn't intend to respond to it, but
              he is happy to discuss an agreement for limited produc-
              tion.
              Kleinhans follows up the conversation with an email
Morin v. Kleinhans Gruber) 03-15-- --CV                            Page 3
Timeline
               asking for the discovery and stating that she will need
               time to review it, draft a motion to compel, and have a
               hearing on the motion and firm's nonsuit.
2/13/15        Olson sets a hearing on the motion to dismiss for Febru-
               ary 27, which is the last day that a hearing can be held
               unless the Court orders discovery. He emails Kleinhans
               that he still believes that the firm isn't entitled to any
               discovery, but attaches a set of voluntary responses that
               address what appear to be the firm's main contentions.
               He attaches a copy of the notice of hearing to the email.
2/14/15-       Kleinhans and Olson exchange emails disagreeing over
2/15/15        whether deadlines were met, whether there is good
               cause to extend the hearing deadline, and other matters.
               Kleinhans states that she will file a motion to continue if
               Olson doesn't agree to a continuance. Olson doesn't
               agree.
2/15/15        The firm moves to continue and to strike Morin's pa-
               pers. It sets a hearing for February 17.
2/17/15        The Court hears the motion to continue. Later, Olson,
               at Kleinhans's request, emails her the cases that were
               discussed. Olson declines the firm's requests to reveal
               his attorney-client communications.




Morin P. Kleinhans Gruber, 03-15-_ _ _-CV                          Page 4
Timeline
                                                                                                  FILE COPY




                                        COURT OF ApPEALS
                                             THIRD DISTRICT OF TEXAS
                                             P.o. BOX 12547, AUSTIN, TEXAS 787l1-2547
                                                    www.txcourts.gov/3rdcoa.aspx
                                                           (512) 463-1733



JEFF L. ROSE, CHIEF JUSTICE                                                         JEFFREY D. KYLE, CLERK
DA VlD PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, mSTICE
CINDY OLSON BOURLAND, JUSTICE
                                             June 1,2015

Mr. Leif A. Olson
The Olson Firm PLLC
PMB 188
4830 Wilson Road, Suite 300
Humble, TX 77396
* DELIVERED VIA E-MAIL          *

RE:      Court of Appeals Number:     03-15-00174-CV
         Trial Court Case Number:     D-I-GN- I 4-003 874
Style:    Levi Morin
          v. Law Office of Kleinhans Gruber, PLLC

Dear Counsel:
        Appellant's brief was due in this Court on May 27, 2015 and is overdue. See Tex. R. App.
P. 38.6(a). If appellant fails to file a brief, the Court may dismiss the appeal for want of prosecution
unless appellant reasonably explains the failure and appellee is not significantly injured by that
failure. If this Court does not receive a satisfactory response to this notice on or before Thursday,
June 11, 2015, the Court may dismiss the appeal for want of prosecution. Motions for extension
must be accompanied by the $10.00 filing fee and a certificate of conference. See Tex. R. App. P. 5
and 10.1 (a)(5).


                                                      Very truly yours,

                                                      JEFFREY D. KYLE, CLERK


                                                              C0-       /L      d
                                                      BY: ~"'pJnlt f&/tr-lit/ter
                                                                   d
                                                             Amy Strother, Deputy Clerk



cc:      Ms. Kimberly G. Kleinhans
                            No.03-15-00174-CV
 LEVI MORIN,
     Appellant.,
v.                                                  Third Court of Appeals
 LAW OFFICE OF KLEINHANS                                    Austin, Texas
     GRUBER,       PLLC,
     Appellee.

             Morin's Motion for 14-day Briefing Extension
     Because of his counsel's health issues and professional commit-

ments, defendant-appellant Levi Morin moves for a 14-day extension of

the deadline to file his opening brief. This is his first motion for an ex-

tension. The brief was originally due on May 27; the extension would

make it due on June 10.

     Morin's counsel has been fighting bronchitis since late April. From

the week of April 20 through the week of May 11, he was in the office

for not even a full week. He spent most of that time attempting to rest

to get healthy.

     The time that he was able to work was dominated by other profes-

sional commitments, many of them demanding his court presence on

an emergency basis. These included:

     • Client meetings related to emergency proceedings and condi-

         tions of the client's detention in In re   CTL~   LLC, No 4:14-bk-
         33564 in the U.S. Bankruptcy Court for the Southern District of

         Texas;
    • Preparation of an emergency motion to stay pending appeal in the

        appeal of the contempt order, No. 4:15-cv-l063 in the U.S. Dis-

        trict Court for the Southern District of Texas;

    • An April 29 status hearing on the client) s detention conditions in

        CTLI, set on fewer than 24 hours) notice;
    • Designation of the record and issues on appeal and coordinating

        the transcription of electronically recorded proceedings in CTLI,

        which was due on May 7;

    • An emergency hearing on May 19, set on roughly 36 hours) no-

        tice, on the CTLI client) s attempt to purge himself of contempt,

        which, unbeknownst to counsel, turned out to be a request to

        change the conditions of the contempt order to conditions with

        which he would prefer to comply;

    • An emergency client meeting on May 26 following the court's

        order, issued that afternoon, setting a 10:30 hearing the next day

        on the cliene s statement to the marshals that he wished to purge

        himself of contempt;

    • Further client meetings and the hearing on May 27, at which the

        client purged himself of contempt;

    • Speaking on federal appeals at the TexasBarCLE/Texas Young

        Lawyers Association annual Federal Court Practice seminar in

        Dallas on May 15;


Case 03-1S-00174-CV, Morin 1>. Kleinhans Gruber                  Page 20f4
Morin's Motion for 14-day Briefing Extension
    • Preparing the appellant's brief in Samaniego v. Aliseda, No. 03-

        14-00795-CV in the Third Court of Appeals, due on May 11; and

    • Counseling a client on potential rehearing and petition issues in

       Mahoney v. Slaughter, No. 01-14-00471-CV in the First Court of
        Appeals, which the court decided on May 7.

These obligations and his illness have prevented Morin's counsel from

preparing a brief that will properly present Morin) s appellate issues and

arguments.

    Morin seeks this extension not for delay, but so justice can be done.

The plaintiff-appellee law firm won)t be prejudiced by this extension,

which moves Morin) s obligation to file from the accelerated-appeal

deadline to just after the standard deadline.

                            Conclusion and Prayer

   Morin prays that the Court set June 10,2015, as the deadline for him

to file his opening brief. He further prays for all other relief to which he

may be entitled.
                                     Respectfully submitted,
                                     THE OLSON FIRM       PLLC
                                     /s/ Leif A. Olson
                                     Leif A. Olson
                                      leif@olsonappeals.com
                                      State Bar No. 24032801
                                     PMB 188
                                     4830 Wilson Road, Suite 300
                                     Humble, Texas 77396

Case 03-15-00174-CV, Monn v. Kleinhans Gruber                      Page 3 of 4
Morin'8 Motion for 14-day Briefing Extension
                                      (281) 849-8382
                                      Counsel for Appellant Levi Morin

                          Certificate of Conference
   I contacted the appellees about this motion by telephone on May 28
and June 5 and by email on May 27, May 28) and June 5. At 4:38 p.m.
onJune 5, Keith Kleinhans informed me by email that the firm opposes
the requested extension.
                                       /s/ Leif A. Olson

                             Certificate of Service
   On June 6, 2015, I served a copy of this Morin)s Motion for 14-day
Briefing Extension upon the firm) s counsel by electronic service:
    LAW OFFICE OF KLEINHANS GRUBER, PLLC
    Kimberly G. Kleinhans
    kim@la\vofficeofkg.com
    700 Lavaca, Suite 1400
    Austin, Texas 78701
                                      /s/ Leif A. Olson




Case 03-15-00174-CV, Morin v. Kleinhans Gruber                   Page 4 of 4
Morin's Motion for 14-day Briefing Extension
                                                                                              ACCEPTED
                                                                                          03-15-00174-CV
                                                                                                5648394
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN. TEXAS
                                                                                     6/11/20159:18:09 PM
                                                                                        JEFFREY D. KYLE
                                                                                                  CLERK


                              No.03-1S-00174-CV
 LEVI MORIN,
      AppellantJ
 v.                                               Third Court of Appeals
 LAW OFFICE OF KLEINHANS                                  Austin, Texas
      GRUBER,       PLLC,
      Appellee.

                  Morin's Motion for l-day Briefing Extension
      The bronchitis of Morin's counsel is apparently impervious to anti-

biotics; it flared up again, requiring that he be in bed to recover for most

of June 10 and 11. He was thus unable to complete Morin's opening

brief, and he asks the Court to extend the filing deadline by one more

day. This is Morin's second request for an extension; it would move the

briefing deadline from yesterday, June 10, to today,June 11.

      This extension won't prejudice the appellee. Morin seeks this exten-

sion not for delay, but so justice can be done.

      Morin prays that the Court setJune 11,2015, as the deadline for him

to file his opening brief. He further prays for all other relief to which he

may be entitled.
                                   Respectfully submitted,
                                   THE OLSON FIRM       PLLC
                                   /s/ Leif A. Olson
                                   Leif A. Olson
                                    leif@olsonappeals.com
                                    State Bar No. 24032801
                                   PMB 188
                                      4830 Wilson Road, Suite 300
                                      Humble, Texas 77396
                                      (281) 849-8382
                                      Counsel for Appellant Levi Morin

                           Certificate of Conference
    I attempted to confer on this motion with Keith Kleinhans, counsel
for the appellee) by sending him a draft copy of it at 5:07 p.m. on June
11. By 9:00 p.m.) I hadn't received a response. Because it has opposed
other extension requests, I presume that the firm also opposes this one.
                                       /s/ Leif A. Olson

                             Certificate of Service
   On June 6, 2015, I served a copy of this Morin)s Motion for 14-day
Briefing Extension upon Kimberly Kleinhans by electronic service with
a courtesy copy to Keith Kleinhans (keith@la\vofficeofkg.com) by
email.
    LAW    OFFICE OF KLEINHANS GRUBER,                    PLLC
    Kimberly G. Kleinhans
    kinl@la\vofficeofkg.conl
    700 Lavaca, Suite 1400
    Austin, Texas 78701
    Counsel for appellee
                                      /s/ Leif A. Olson




Case 03-IS-00174-CV, Morin v. Kleinhans Gruber                      Page 2of2
Morin's Motion for I-day Briefing Extension
                  TAB 3
Email between KG and Morin re KG's Withdraw
                 C.R.664
Kimberly G. Kleinhans
From:                                    Kimberly G. Ktoinhans <kim@lawofficeofkg .com>
Sent:                                    Wednesday, February 26. 2014 3:35 PM
To:                                      'Levi Morin (levimorin@gmail.com),
Subject:                                 FW: August 7th email
Attachments:                             14-02.25_First Amended Motion for Enforcement.doc

JournalPM:                                J


Levi·

Please find alternative counsel now as t do not feel that I can properly represent you given your current frustration that
dearly we were   unilbl~ to resolve today. I have asked so many times for the information to calculate the child support
so that we could g~t the order entered with the court so that then we could proceed with a proper enforcement that
would be more likely to be enforced, and to date, f still don't have that information. Further~ as part of our conttClct l the
client has the obligation to provide information timely and to confer to make sure we have included all information
requesl~d in pleadings. The fact that you are frustrated that you have to take part in yaur own case 45 not something I
can change. Therefore, I think it is best for you to find alternative counsel as soon as possible so that they have time to
prepar~ and attend the hearing. Unless t hear from you otherwise, I am going to me the attached amended
enforcement to include the May violations.


Best    regards,

I<inlberly G. Kleinhans

          From: Levi Morin [mallto:le\llmQrin@Qm~l~
          Sent: Wednesday, February 261 2014 2:12 PM
         To: Kjmberly G. Kleinhans
         Subject: Re~ August 7th email

         Frustrated with you~ professionally, should be the lust thing that I feel. I need to start nluking plans to
         Hnd somt!one else I need to know if that should be now or after thi~ hearing thing.


          Levi Morin

         M WD Engineer
         TIn: Dircc!iunt:ll Orilling Cumpany
          11390 FM ~30
          Willis, TX 77318
         Office: 936~856-4Jj2
         Fax:     936-856·8678
         Mobile: R30-45(}·3342
         L~..Y..i.l.M.p.r"J~{~£.)ir.~t·licHlillJ)I:~"f.~!':~~~Qm
         .L.l·\'iM9J:lt)i{t£.l)J(1j.Lt~nl}1 .
                  TAB   4
Email between KG and Morin Showing Morin's
      Malice Motive, dated June 5, 2015
                 C.R.704
Klmberly G. Kleinhans

From:                          Kimberly G. Kleinhans <kim@fawofficeofkg.com>
Sent:                          Tuesday, June 10.2014 11:03 AM
To:                            'Levi MorIn (Levimorin@gmail.com),
Subject:                       FW: Copy of Withdraw Documents

JournalPM:                     J


levi-
Wll5    this email intQnded to be sent to   m~?


Best regards;

Kimherly G. Kleinhi1l1S

           From: LeVI Morin [maUtQ;leVlmorlo@gmall.cQm)
           Sent: Thursday, June OS, 2014 9:57 AM
           To: Kimberly G. Kleinhans
           Subject: Re: Copy of Withdraw Documents


           My grf!HteS[ wish is rhat you would have to go through something like this. You're Q horrible pt:rson. H
           predator. and 1 wiJI make sure that1s known on as many fronts as I Can.

           nest rcgl1rds.

           On Jun 4. 2014 2:34 PM, "Kimberly G. Kleinhans" <kim{t/)!mvofticeofkg,com> wrote:

           Levi·

          Please keep the uttached for your records. We arc just waiting (or lhcjudgc to signlhe withdl'aw order
          nnJ 1 will forward the signed order to you upon receipt. Thank you.




          Kimberly G. Kleinhans, Attorney at Law

          Law Ofl1ccs of KG, PLLC

          Fucsin1i1c:   512.62.~.7~20


          Office: 512.CJ61.R512

          ki m@lawQfficcQfl«(!.com
                                                            1



                                                                                                                      704
                  TAB   5
Emails between KG and Morin Showing Morin's
  Malice Motive, dated September 24, 2014
             C.R. 713, 717, 706
Kimberly G. Kleinhans                                                                                               FT


From:                                      Levi Morin <levirnorin@gmaU,com>
Sont:                                      Wednesday. September 24. 2014 1;42 PM
To:                                        Kimberly G. Kleinhans
Subject:                                   Re; Yelp Review Removal

JoumillPM:                                 J


My response was in regard to you trying tu suppre~~ my t1.'st amendment. rjghts~ and for that you an: the biggest
piece of shit lawyer I've ever nol met. You say you hold yourscJrlo a code or ethic" und then do that. You Can
surely go fuck yourself as those t:\vo arc separate issues which, as you arc claiming in your respunse. aloe not.
Therdore it is not representative ofLhc fueL,\. SecondJy you need to acquire permission lo use Illy copyrighted
material. So no, evet'}1hing in my order is correcL Wait ten days and see if Itm being as big ura pussy us you. [
don'llhrcalcn pcoplc t like you do, Kim.




Levi Morin
MWf) Enginc:er
The Directional Driltin£ Company
11390 f:M 830
Willis. TX 77318
Oflicc~        936-856-4332
Fa~:           9;t(i&ftS(i-8678
Mohile: }(J0.-4S6·3342
L.!;yi-<.~;ls~d.~~21.C~.9Jl(!!~\}illd!L~~I,:..Q!.}'!
1.~\'i~·fc.\rin';'I)lln1..ai I.~l)tn
  [!J   ~,.   -_.- -- .... --_.. -_.-




Thi$ e-mail, including ony attached files, may contain confidential and privileged informotion for Ihe sora use of the
intended recipient Any review, use, distribution, or disclosure by others fs strictly prohibited. If you are not the intended
recipient (or authorized to receive information for the intended tecipitmt)1 pl@ase contact the sender by reply e-mail and
delete all copies of this message.

On Wed, S~p 24, :2014 ul 1:23 I>M, Kimberly G. Klcinh~ms <kimfilllaworlieeorkg.cnm> wrote:




              It appears that you copfed and pasted a cease and desist letter from the internet as it do~sn/t apply to tnj!;
              situation. Furthermore} the factually accurate and true respons.e we posted In respons~ to your defamatory and
              slanderous per s~ posting about our firm (to attempt to mitigate damages to our flrmls reputiltlofl) will be
              automaticallv remov~d when you remove: your defamatory and slanderous per se posting about our firm. Per
              the law~ we have to attempt to mitigate damaR.f.tsJ which Is why that response: is necessary.




                                                                                                                                713
Kimberly G. Kleinhans

From:                                     Kimberty G. Kleinhans ..:kim@lawofficeofkg.com>
Sent;                                     Wednesday. September 24. 20144:05 PM
To:                                       'Keith L. Kleinhans (keith@lawofficeofkg.com)'
Subject!                                  FW: FW: Yelp Review Removal




Best rega rds.

Kimberly G. Kleinhans

        From: Levi Morin [mallto:levlmorin@gmall.com]
        Sent: Wednesday, September 24, 2014 3;52 PM
        To: Kimberly G. Klelohtins
        Subject: Re: FW: Yelp Review Removal

        My cmail~ arc a fixcd intellectual pruperly lhal J have nul given con~cnt for you to redistribute in any
        way shape or form, 11(10 fuck yourselfu is an expression and in the context of this email is my
        Intellectual property theretore copyrighted. You have used excerpts without pcrmission~ yuu arc not in
        compliance with federal law. I have not dt:famcd or slandered anyone so good luck with Lhat. Your
        stfltcmcnt. however. is taking bits and pieces of a conversation and stitching them together to create
        snmelhing Lhal is wholly not whal r said and pawning it on' as if it were ...

        I'm nil for lJ'ying out Lhis new AnLi ..SLA PP deat so youtre more than welcome to spend all the money
        you'd like trying to suppress free speech with some frivolous lawsuit.

        I'm right here ir you'd lik.e to senti someone before I gel back-




        Levi 1V1or;n
        MWD EnJ.tin~er
        The: DircclionaJ DriJling Compnny
        II:WO FM 8:l0
        Willis:rx 7731 H
        Office:       936-B56-4332
        Fax:          936·856-&678
        Mohile:       83(]-45(j·3~4.2
        1.C vi.,:Yl ~~r!.ll!!1: I).i.t~t.;,ti~~f1I!.U2dll~r5Ll;Jlnl
        .r .1,' vi\1orin 1ii'L· mrIH.c()In
           l!J -- .....
                ~-             ~---.--.--    ..




                                                                                                                   717
Kimberly G. Kleinhans

From:                                             Levi Morin <Ievimarin@gmail.com>
Sent:                                             Wednesday. August 20. 2014 5:25 PM
To:                                               Kimberly G. Kleinhans
Subject:                                          Re: FW: URGENT - Yelp Review Removal


Pretty sure yuu should a) read the article as opposed to trying to mOVe me to do :mmcthing based on fCQr. I did 4J
google search as welJ and lhi!{ was one of the If"st articles that came up, b) look up libel then c) go 1iJck yourself
tor trying usc strong arm t.'lctics with me because i don't think you're a guod luwycr.

You should rt!-re'ld my review again because appnrcnt)y you don't understand thal nothing in there is false or
slamlcrous, and givcn Ihal you don't understand Lhe definilion of slander - even libel.

Thcre is nOLhing lhut r wanl from you Kim!> this I'cview has nothing to do with your weird urcspccl mel! isslles. it
has everything to do with you not. being a very good lawyer fur me and the hopes that my experience will help
someone muke a beuer decision ahout what                          family lawyer to get.


Levi Murin
I\:IWD Engineer
The: Directiomtl Drilling Compimy
11390 I'M 830
Willis, TX 77.118
Oflicc: 9;l6-&56-·U:12
Fn:<:     936-856-8.678
Mohile: 8:W·4Sti-.H4:!
.r ,t;"\'j ,\r{11'IWji<! )irt'cti{lllall )l'ill\:'I'~ ,~lH'T\
1.e\'i~·I.()rin'/iIL·tnptl."·!.\ll\
  0" ..._· ........._..      "k"~.'   .•




This e~maill includmg ony ottoched files, may contain confidential and privileged information for the sole use of the
intended recipient. Any review, use, distribution. or disclosure by others is strictly prohibited. If you nrc not the intended
recipient (or authorized to receive: information for the intended recipient), please contact the sender by reply e-mail and
delete all copies of Ihis messDge,



On \Ved~ Aug 20; 2014 at 4:24 PM, Kimberly G. Kleinhans <kimfll)lowofficeofkg.cnm> wrote:

Levi-

Plense set! the :lunched. lfyou don't remove the                      rcvicw~ We   will be dmfling the petition tomorrow.



Best regards,




                                                                                                                                 706
                    TAB   6
Emails between KG and Counsel for Morin Showing
       No On-Going Discovery Negotiations
             C.R. 122-123, 155-157
       motiol1 under Section 27.004 mllst be set not later thall the 60th day after the date of
       sen'ice of the motion unless

         [1J the docket conditions oJthe COllrt require a later hearing,

         [2} upon a showing ofgood cause,

         [3]   Dr   by agreement ofthe parties

       _.. but ill no event shall the hearing occur J110re than 90 days after service of the motion
       under Section 27.003 ... "

15.    As required by Section 27.004, to date, there has been [1] no Travis County docket
       conditions, [2] no timely finding of good cause by the court prior to running of the 60-
       day deadli ne (January 30, 2015) and [3 J no agreement by the parties to extend the 60-day
       deadline to a 90-day deadline. The foHowing email correspondence documents the same:

       a)       On January 5, 20 ISs LAW OFFICE OF KLEINHANS GRUBER, PLLC sent the
                attached email to counsel for LEVI MORIN requesting the following infonnation,
                attached hereto an incorporated herein by reference as EX/lib;t C;

                    i)     \vhether he was going to answer discovery served 45 days prior, if not, a
                           hearing would be necessary;

                ii)        a date on which discovery would be provided, ifnot, hearing availability
                           PRIOR to any setting on the Motion to Dismiss; and

                    iii)   a foHow-up request for a copy of the bar complaints that LEVI MORIN
                           filed against Kimberly Kleinhans and Michael Siegler (which were
                           automatkaHy dismissed without further review) that counsel for LEVI
                           MORIN had repeated countless times, he \vas in agreement to provide.

         b)     On January 28,2015, LAW OFFICE OF KLEINHANS GRUBER, PLLC sent the
                attached email to counsel for LEVI MORIN requesting the same information as
                requested in the January 5, 2015 email. Both the January 5, 2015 email and the
                January 28, 2015 email were ignored by counsel for LEVI MORIN) attached
                hereto an incorporated herein by reference a<; EX/libit D.

        c)      On Friday, February 13, 2015, at about 9:00 p.m., counsel for LEVI MORIN
                unilaterally sent over a self-serving subset of documents never discussed but
                solely of his choosing that are only beneficial to his case. Likewise, counsel for
                LEvr lvfORlN unilaterally decided that the setting for his Motion to Dismiss
                \vould be Febnlary 26, 2015, and there would be no time for any of LAW
                OFFICE OF KLEINHANS GRUBER, PLLC's motions that LAW OFFICE OF
                KLEINHANS GRUBER, PLLC had clearly noticed counsel for LEVI MORIN
                would be necessary prior to any setting for a Motion to Dismiss, attached hereto
                an incorporated herein by reference as Exhibit E.


LAW OFFICE OF KLEINHANS GRUBER. PLLC V. LEVI MORIN
SECOND AJ'vtENDED/SUPPLEMENTED MOTION TO STRIKE SETTING, ET. AL.                            PAGE 3 OF 12

                                                                                                           122
         d)    On February 14, 2015, upon receipt, LAW OFFICE OF KLEINHANS GRUBER,
               PLLC noticed counsel for LEVI MORIN of LA W OFFICE OF KLEINHANS
               GRUBER, PLLC~s conflict for February 26, 2015 and counsel for LEVI MORIN
               refused to reschedule to a time and date which would provide proper notice of
               setting to LAW OFFICE OF KLEINHANS GRUBER, PLLC, attached hereto an
               incorporated herein by reference as Exhibit F.

] 6.   On Febnlary 17, 20) 5, this Court found that an announcement for LEVI MORIN's
       Motion to Dismiss setting \vould be made on February 26,2015, but that the case shall be
       recessed to March 5, 2015, at which time this Court shall hear the issues surrounding
       whether there is good cause to extend the time to allow the Motion to Dismiss past the
       60-day deadline, whether there is good cause for discovery, et. a1.

17.    6th deadline missed by LEVI lVIORIN: On February 26~ 2015, the 90th day ran from the
       date that LEVI MORIN's Motion to Dismiss \vould have been timely filed (December 1,
       2014).

18.    On March 5, 2015, it has been noticed that LEVI MORIN's Motion to Dismiss is set for
       hearing on the 97th day folto\ving a tinlely filing of a Motion to Dismiss.

19.    Likewise, LAW OFFICE OF KLEINHANS GRUBER, PLLC seeks this Court's relief to
       hear this Motion and award the requested relief, primarily that LEVI MORIN's Motion to
       Dismiss be denied and fees or sanctions be awarded to encourage counsel for LEVI
       MORIN \vilI comply with rules and deadlines in the future.

                   C.l\'fotion to Strike or Deny Morin's Motion to Dismiss

20.    4 Missed Statutory Deadlines: This Court should strike LEVI MORlN's Motion to
       Dismiss setting as not being timely as counsel for LEVI MORIN has not missed just one,
       but four critical deadlines as follows:

         a.    file and serve the Motion to Dismiss in accordance with the Texas Participation
               Act (the ~~Ace)) as the deadline was December 1, 20J4 and it wasn't fiJed or
               served with exhibits on LAW OFFICE OF KLEINHANS GRUBER, PLLC until
               December 3) 2014.

         b.    set a hearing in accordance with the Act as the 60-day deadline was January 30,
               2015.

         c.    request a good cause extension PRIOR to the expiration of the January 30, 2015
               60-day deadline.

        d.     set a hearing in accordance with the Act, \vith a timely finding of good cause
               within the 90-day deadline of February 26, 2015~ as the Motion to Dismiss setting
               is not seluntil March 5) 2015 (97 days after the filing of the Motion to Dismiss).




LAw OFFICE OF KLEINHANS GRUBER, PLLC V. LEVI MORIN
SECOND AMENDED/SUPPLEMENTED MOTION TO STRIKE SETIING, ET. AL.                          PAGE40Fll

                                                                                                    123
Jate: 02/15/2015                                                         Record Report                                             Page: 1
                                                  Lo..VV OFFiCE OF KLEINHANS GRUBER, PLLC

                     ..- ... -. _.   ----    .    -_ - ...
                                                    .. .. -   ,.       ~------~-------------------

Field                                                    VCllue
Record Type
Date
Time
Duration
Status
Description
Client 10                                                      140184.00
Contact
User 10                                                  KG
SenUReceived                                             R
To/From                                                  Kimberly A. Gruber, Esq. <kim@lawofficeofkg.com>
Subject                                                  Fwd: Offer declined; potential hearing dates
Spoke With                                               N
Returned Call                                            hi
Left Message                                             N
Voice Message                                             N
First Date                                               n1 mfddhlYY'i
Last Date                                                rnm/ddiyyyy
First Time                                               hh.-mm:ssAM
Last Time                                                hh:mm:ssAM
Duration
Research URL
Research File
E-mail Body                                              ---------- Forwarded message ------
                                                         From: Kimberly A. Gruber, Esq. <kim@lawofficeofkg.com>
                                                         Date: MOIl , Jan 5, 2015 at 11 :26 AM
                                                         -Subject Re: Offer declined; potential hearIng dates
                                                         To: Leif Olson <Ieif@olsonappeals.com>


                                                        ':"eif-
                                                         ! hope :fOlI had a good holiday.

                                                         -::\12 are 3tm in the process of moving offices and in addition I am
                                                         Sitlllificantly decreasing my hours in the offices to care for our daughter
                                                         and our son on the way (one of the primary reasons amoungst other
                                                         personal reasons that we need to nonsuit this case). However, if you are
                                                         :~oing to push forward and make us present these facts to a judger despite
                                                         our ctgreernent to nonsuit, we will need discovery.

                                                          ~Iease advise whether you are in agreement to answer the discovery that
                                                         was served on you nearly 45 days ago, and if so, by what date you will be
                                                         ans\i'Jefing the discovery and physically providing us production (this is the
                                                         r1tit£: you win physically have the production in the office NOT a date you
                                                         \l'!iII respond that we can send a copy service to Dallas). Additionally. we
                                                         ";i-!iB need a hearing on our Notice of Nonsuit (and discovery or discovery
                                                         dl::fidencies, if necessary). This hearing will need to be set prior to your
                                                          -·e-:~lle;..ted setting on a date depende                    about whether
                                                         'fO~; 2i{::: i:;-; ai]reemeni to discovery.


--~-------         .....-..... ------.--- .....  -----_._.... .....- •..--.- . _ - - - - - - - - -
                                                                   _


                                                                                                                                          am
e: 02/15/2015                                                                       ;~ecord    Report                                           Page: 2
                                                         LA~· ..-· ::':-f'+k'~t:~   OF KLEiNHANS GRUBER PLLC
                                                                                                          J



-------~        .. --   ..   -- .- ..   ~~~-                                   ......... _----.-   -~------------~---------


d
                 -_.---.--    -.-~   .......•   ~.-                  --..
                                                      .. -.. --.-- ....   --.~------         -~----~-----~---------


                                                                .~:i('a~h/ f     i am still waiting on you to provide the documents that you told me
                                                                ·j',.:il w(Juiti prnvide relating to the bar complaint filed by Levi Morin against
                                                                    '>':;i-;:Il and Michael Seigler. Please let me know when I can expect




                                                                                           )                                                       156
)ate: 02/15/2015                                                                                     f(ecord Report                                               Page: 1
                                                      LAV,j ,,)~:'f'lC.E Of I<LEtNHANS GRUBER 1 PLLC

- - - - - - --_. __ ..... ---_._._ .... ----_                   ....                            .   __
                                                                                                    ...   ...   __ ...   _-._._---._------------------
=ield                     4_4_~.   _ _ _... _ _   ~   ____   "'·_~       -       .. -   .•.•.• ........... ..,-.. - - - - - -
                                                                                            ~




                                                                         .....
~ecord
                                                                     ;
          Type                                                            .. -.---~
Jate
rime
Duration                                                             (;:00:00
Status                                                               d
Description                                                          ::z:iJ with opposing counsel and email about settings/discovery.
~lient   10                                                              1'::·'J·184.00
Contact
User ID
Sent/Received
To/From                                                              !A~ f~fy(!rSO!1appeals. co m
Subject                                                                  .. ;.'h C;f;~ce             c;f KG: PLLC v. Morin       M   Settings
Spoke With
Returned Call
Left Message
Voice Message
First Date                                                       ;i'1mlddfy'yYY
Last Date                                                        ~nm!ddjyyy'1
First Time                                                           hhJllr:'u;s                    AM
Last Time                                                            ~'~h.rnm:ss                    AM
Duration
Research URL
Research File
E-mail Body



                                                                 :--{c ::;ur discussion today, in reviewing amaHs, I noticed that J am stm
                                                                 :_;~;;jUn{] r-;r you to let me know when you will get us discovery responses
                                                                 ·:',:lfid provide me with the complaints that Levi Morin filed on myself and
                                                                 ,\!:!c.h3ei Seigler) so I know whether I need to set a Motion to
                                                                 Cornpel!Motion for Discovery along with our Motion to Determine
                                                                 :\JoilSt:ltfStrike Any Future Setting and in alt. to Revoke Notice of Nonsuit
                                                                 \;'ih,::~el.:~;1 Th1S motion may end up being called, we discussed this as
                                                                 'hF;!I).




                                                                 /\:.;            S(;(~n ~s
                                                                                   you get me dates when I will have discovery responses I can                l

                                                                     'f:.r;l~ ;It H:8
                                                                                  c:alendar to see the workload that I have at that time and to
                                                                 (,::u.·':~·1i;1~ bow long it will take me to review the discovery and allow me
                                                                 :.: ':'c:uQh time to draft a Motion to Compel if needed prior to the settings on
                                                                  )[';1' ~·;iotkm to Compel/Motion for Discovery along with our Motion to
                                                                 ;):~icnj"line honsuit/Strike Any Future Setting and in alt. to Revoke Notice




---~-----~-~-------
                                                                                                                                                Sunday 0211512015 VSfO am
                    TAB  7
Email to KG from Counsel for Morin Re Discovery
                   C.R.158
_____
Kim Kleinhans ------:IdO=-!ii.;-~~          .   ..:~i~:..;t~,J,.U~.~,=T        ;MIEDl,..,.,._ _ _ _ _ _ _ _ _ _- -_ _ _ _ _ __

From:
Sent:
To:                                   Kilrb;o:-lj Kif:inhons Gruber {kim@lawofficeofkg.com)
Subject:                              KG v. ;'Aoriii: Dis.:overy; hearings
Attachments:                          1S0 ..:1:'.?re-ll)otion disco resps.pdf; Morin0001-Morin0014.pdf; 150213.NOH on TePA
                                      mo~icm.[}df


JournalPM:


Kim,

1. I believe that I told you over the phone a while ago that the disciplinary counsel's
office destroyed the fHe as part of their file-retention policy_ (I may be confusing that
with a discussion I was havinQ \fvith someone else on an unrelated bar-association
event.) Levi doesntt have a copy.

2. My position on discovery hasn't changed: I dontt think youtre entitled to it. When we
spoke over the phone, you \Neren't willing to fimit your requests or identify the ones that
you thought most important. So 1 put together responses that appear to address the
arguments that \.AliI! CO~-Ylf~ up:.::t the he.::1ring on the rnotion to dismiss, They're attached.
You should also be getting an e-served copy.

3. And, speaking of the hearing: The absolute drop-dead date for the court to hear the
motion to dismiss is Thursday, February 26, so I've set a hearing for that morning. That
will leave you with no time for discovery even if the judge thinks you deserve it. I can
reset the hear'ing for SOrTletirn(;! next vieek, which \,vDuld give you at least a bit of time. I
would prefer to have the hearing fh:~xt Thursday, anyvvay, but according to your
amended vacation letter, you'd already be out of town. If you would rather have the
chance to see the judge befon:: the hearing deadline, I'll reset it for Tuesday (whichever
                                     J1- ...~,·.. :f- f:~'!- rne ~ ........ ou.r
of a1m' ' ' or P• rn.. • \you pt-e'Fe"\         i..la.::....   ... ~_l_   ;;  y,..
                                                                               .. ~i'




LEIF A. OLSON

THE OLSON F[E~·~,    Pl..LC:
LEI F@OLSONAPI"J~.~.!..5!.cnh:1
(28J) 849,8382
PlviB 188 • 4830 Wi,isl en R!.~;I;1. .51!=:--      \~\-.~
Hllmblc~ TeX<l5   77 )t)f)




                                                                                                                            158
                     TABS
Travis County District Court Jury Docket Schedule
                            2015 SCHEDULE
                  TRAVIS COUNTY CIVIL DISTRICT COURTS
Honorable Lora J. Livingston                                                                    Warren Vavra
Local Administrative Judge                                                                      Court Administrator

Januarv                                                                 Julv
            5     Non-Jury                                                                       6      Jury
           12     Jury                                                                          13      Non-Jury
           19     Non-Jury                                                                      20      Jury
           26     Jury                                                                          27      Non-Jury

Februan:                                                                August
            2     Non-Jury                                                                      3       Non-Jury
            9     Jury                                                                          10      Jury
           16     Non-Jury                                                                      17      Non-Jury
           23     Jury                                                                          24      Non-Jury
                                                                                                31      Jury
March                                                                   September
            2     Non-Jury                                                                       7      Non-Jury
            9     Non-Jury                                                                      14      Jury
           16     Settlement                                                                    21      Non-Jury
           23     Jury                                                                          28      Settlement
           30     Non-Jury

April
            6     Jury                                                   October
           13     Non-Jury                                                                       5      Non-Jury
           20     Jury                                                                          12      Jury
           27     Non-Jury                                                                      19      Non-Jury
                                                                                                26      Jury

~{ay                                                                    November
            4     Jury                                                                           2      Non-Jury
           11     Non-Jury                                                                       9      Non-Jury
           18     Jury                                                                          16      Jury
           25     Non-Jury                                                                      23      Non-Jury
                                                                                                30      Jury
                                                                        December
June                                                                                             7      Non-Jury
            1     Jury                                                                          14      Jury
           8      Non-Jury                                                                      21      Non-Jury
          15      Jury                                                                          28      Non-Jury
          22      Non-Jury
          29      Non-Jury

Holidays    January 1 New Year's Day                                    September 7 Labor Day
            January 19 MLK Day                                          November 11 Veterans Day
            February 16 President~s Day                                 November 26-27 Thanksgiving
            May 25 Memorial Day                                         December 24-25 Christmas Observance
            July 3 Independence Day
                REGULARLY SCHEDULED DOCKETS \VlLL NOT OCCUR THE \VEEKS OF:
                                  March 16-20, Settlement Week
                             September 28 - October 2, Settlement \Veek
                                        CIVIL CASE SETTING INFORMATION
                                 To set civil cases online go to 'www.dvilcourlsonline.org
                                               To obtain inrormation, contact:
                             Court Administrator's Office, P.O. Box 1748. Austin. Texas 78767
                                                     Ph: (S12) 854-2484
                                             http://www.traviscountycourts.org
                    TAB  9
Garza Email with Affidavit Content and Affidavit
                 C.R. 467, 729
Kim Kleinhans

From:                           Martin Garza    <rnartin@martinsga~a.com>
Sent                            Tuesd~y. FebrUlll)'   24, 2015 4:~4 PM
To:                             Kim Kleinhans
Subject:                        Re: Strange Request on Morin - 3/10/14 hearing



Mr Siegler handled the math:r professionally and to a high ethicnl stnndnrd. \Ve conferred and negotiated for
over 6 hours, including on the phone prior to the hearing. At no time did I even suspect or see any signs of
inloxicarion. I wiJllcavc it a[ [hac. Its your fighL not mine and I have my client's needs to consider. I would not
be inclined to volunturi Iy sign un affidavit, however, if compelled to do so, I would cooperate.


The Garza Law Firm
IG01 North Alamo~ Suite 200
San Anton io_ Texo:l 78215
210 354-4949
2 I () 56H-4278 fax
m[ll·tin@mrtrtin~g:l rZil.com


rMPORTANT/CONF[DENTIAL: 'rhis message f)'om the Law Offieu of Martin S. Gar/.a" is intended onJy 10r
the usc of the addressees shown above. It contains informaLion thal may be privileged, confidcnlial and/or
exempt from disclosure under applicabJe Jaw. If you nre not the intended recipient of this message~ you arc
hereby notified that tbe copying, usc at distribution o[uny information or materials transmitted in or with this
message is strictly prohibited. If you received this message by mistake, pJcllse immediately call us
210.354.4949 and dcstroy the original mcs~agc. Thank you.




                                                        ')
                                                                                                                   467
                                                       /
   ST A TE OF TEXAS                     §
   BEXAR COUNTY                         §




      Before tne~ the undersigned notary, on this day personally appeared MARTIN GARZA~ the

 uffiant, a person whose identity is known to nlC. Af1cr r administered an oath to affiant, affiant

 tcslifi<:d:


 1.       UMy name is MARTIN GARZA~ I am conlpelcnt to make this affidavit. The facts
          stated in this affidavit are within my personal knowledge and are truc und correct.

 2.       On March 10~ 2014, I Was the opposing counsel for the setting on LEV] MORIN's
          Motion for Enfbrct:mcntIMotion to Enter hearing.

 3.        Michael SeigJer represented LEV] MORIN. J spoke with Michael Seigler prior to the
           hearing from about 8: 15AM to 8:45AM on the phone and then throughout the day on
           March 1O~ 2014. Michael Seigler handled the maUer professionaHy and to a high ethical
           standard. We confeITed ;lnd n\!gothlLt!d for approximately 6 hours on the day of the
           hearing. At no time: did f even suspect or sec any signs of intoxication.




      SWORN       TO    and    SUBSCRIBED         before    me         by     MARTIN            GARZA     on
~~ ~, 1..0(5;


                                              ~~~~
                                            Notary Public in an                a
                                            the State of Texas '




                                                        d'$}~               CONNIE GARZA              .
                                                        I~~)\         Notary Public. Stote Of Te~al
                                                        \ ...~.~IJI     My Commission ExplhJl
                                                           ~fi~              JUIV 16,2016




                                                                                                               729
                 TAB  10
Emails Showing Counsel for Morin Received
       Notice of Subpoena of Garza
Date: 06/23/2015                                 Record Report                                                  Page: 1
                                    LAW OFFICE OF KLEINHANS GRUBER, PLLC

Field                                 Value
Record Type                           E
Date                                  03/03/2015
Time                                  01:40:00 PM
Duration                              0:00:00
Status                                U
Description                           Garza signed affidavit and subpoena in.
Client 10                               140184.00
Contact                               Garza/Martin
User 10                               KG
SentlRece ived                        R
To/From                               Martin Garza <martin@martinsgarza.com>
Subject                               Re: Strange Request on Morin - 3/10/14 hearing
Spoke With                            N
Returned Call                         N
Left Message                          N
Voice Message                         N
First Date                            mm/dd/yyyy
Last Date                             mm/dd/yyyy
First Time                            hh:mm:ssAM
Last Time                             hh:mm:ssAM
Duration
Research URL
Research File
E-mail Body                           Please find as attached:


                                      The Garza Law Firm
                                      1601 North Alamo, Suite 200
                                      San Antonio, Texas 78215
                                      210 354-4949
                                      210568-4278 fax
                                      martin@martinsgarza.com


                                      IMPORTANT/CONFIDENTIAL: This message from the Law Office of
                                      Martin S. Garza, is intended only for the use of the addressees shown
                                      above. It contains information that may be privileged, confidential and/or
                                      exempt from disclosure under applicable law. If you are not the intended
                                      recipient of this message, you are hereby notified that the copying, use or
                                      distribution of any information or materials transmitted in or with this
                                      message is strictly prohibited. If you received this message by mistake,
                                      please immediately call us 210.354.4949 and destroy the original
                                      message. Thank you.
E-mail Attachments                    A TTOOOO 1. htm
                                      Garza Affidavit and Subpoena Acceptance. pdf
To                                    kim@Jawofficeofkg.com
From                                  Martin Garza <martin@martinsgarza.com>
CC
BCC
Phone #

        -   ~   -~---   - - - - - - - - ------------------------==--------,--                         ---------------
                                                                                          Tuesday 0612312015 2:16 pm
                                    CAUSE NO.D-I-GN-14-003874

LA W OFFICE OF                               §               IN THE DISTRICT COURT
KLEINHANS GRUBER, PLLC                       §
     Plaintiff,                              §
v.                                           §               20I S• JUDICIAL DISTRICT
                                             §
LEVI MORlN,                                  §
   Defendant.                                §               TRA VIS COUNTY, TEXAS


                            SUBPQENA FOR AFI~lDA.YIr TESTIMONY

THIS SUBPOENA IS DIRECTED TO:                Martin Garza
                                             The Garza Law Firm
                                             1601 North Alamo! Suite 200
                                             San Antonio~ Texas 78215
                                             21 () 354-4949
                                             210 568-4278 fax
                                             111art i n~~martinsgarza. CO III

        Greetings: You are hereby conlnlanded to give testilllony via atlidavit in the above-nan led
case.


You are further instructed that theF AlLURE TO OBEY IfHIS SUBPOENA MAY Bit:
TREATED AS A CON'fEMPT OF COUR'I'. Texas Rules of Civil Procedure 176.8(a), states,

        "Failure by any person \vithout adequate excuse to obey a subpoena served upon that person
        Inay be deemed a contempt of the court from which the subpoena is issued or a district court in
        the county in which the subpoena is servcd~ and 111aybe punished by fine or confinelnent~ or
        both.'~


This subpoena is issued at the request of Plaintiff~ LAW OFFICE OF KLEINHANS GRlJBER .. PLLC ..
attorney ofrecord~ Kinlberly G. Kleinhans.



Date Subpoena Issued: February 26,2015.
      By   fTIy   signature   beLow~   I hereby acknow'ledge thatI accepted service of a copy of this subpoena.

onyilL             _ _ _ ~ 2015 and I confirnl I \vill make any appropriate changes to the attached affidavit

and fax the signed copy back to 512.623.7320.


SIGNED BY:
                                              Martin Garza
    STATE OF TEXAS                       §
    BEXAR COUNTY                         §


                                  AFEIDA. VIT.OF MARTIN G~RZA
       Before me, the undersigned notary, on this day personally appeared MARTIN GARZA, the

  affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant

  testified:


  1.       "My name is MARTIN GARZA. lam competent to make this affidavit. The facts
           stated in this affidavit are within my personal· knowledge and are true and con'ect.

  2.       On March 10, 2014, I was the opposing counsel for the setting on LEVI MORIN's
           Motion for Enforcement/Motion to Enter hearing.

  3.       Michael Seigler represented LEVI MORlN. I spoke with Michael Seigier prior to the
           hearing from about 8:15AMlb 8:45AM on the phone and then throughout the day on
           March 10, 20 14. Michael Seigler handled the matter professionally and to a high ethical
           standard. We conferred and negotiated for approximately 6 hours on the day of the
           hearing. At no time did I even suspect or see any signs of intoxication.



                                             ~
                                             MARTIN GARZA



  JAC)RN          TO     and    SUBSCRIBED         before            nle    by   MARTIN       GARZA   on
'-"I--'-j ~ :$, :Lot.b.



                                             Notary Publ ic ill an
                                             the State of Texas l




                                                            ,.~1.r;:::I.~CONNIE GARZA
                                                         i";~.~i
                                                            ~~ ...    a.

                                                                  NO.tarYPubJiC.• state ot Tex.as
                                                         \~~~~~~! My CommissIon expires
                                                         ~~:t~j:~        July J6;2016
Date: 06/23/2015                Record Report                                             Page: 1
                   LAW OFFICE OF KLEINHANS GRUBER, PLLC

Field                Value
Record Type          E
Date                 03/03/2015
Time                 02:33:00 PM
Duration             0:00:00
Status               U
Description          EMAIL OUT - to opposing counsel with Garza aff
Client 10              140184.00
Contact              OlsenlLief
User 10              KG
SentlRece ived       S
TolFrom              feif@olsonappeals.com
Subject              KG v Morin - supp to exhibits (attached Garza Affidavit)
Spoke With           N
Returned Call        N
Left Message         N
Voice Message        N
First Date           mm/dd/yyyy
Last Date            mm/dd/yyyy
First Time           hh:mm:ssAM
Last Time            hh:mm:ssAM
Duration
Research URL
Research File
E-mail Body          Please confirm receipt.




                     Best regards,




                     Kimberly G. Kleinhans, Attorney at Law

                     Law Offices of KG, PLLC

                     12600 Hill Country Blvd.} Ste. R-275

                     Austin, Texas 78738

                     Facsimile: 512.623.7320

                     Office: 512.961.8512

                     kim@lawofficeofkg.com

                     www.lawofficeofkg.com




                                                                        Tuesday 06/23/2015 2:20 pm
Date: 06/23/2015                  Record Report                                                Page: 2
                     LAW OFFICE OF KLEINHANS GRUBER, PLLC

Field                  Value
                       Please take notice that as of 12/31/14 we are no longer receiving any mail
                       at any address other than as set forth in this email. Please update our
                       address in your records accordingly.




                       This message is intended only for the personal and confidential use of the
                       recipient(s) named above. If you are not the intended recipient of this
                       message you are hereby notified that any review, dissemination,
                       distribution or copying of this message is strictly prohibited. This
                       communication is for information purposes only_ Email transmission
                       cannot be guaranteed to be secure or error-free. As long as recipient{s)
                       named above have signed an attorney-client fee agreement with Law
                       Office of KG PLLC, this e-mail correspondence may be attorney-client
                                   1


                       privileged. Law Office of Kleinhans Gruber, PLLC, is registered in the state
                       of Texas and the county of Travis to do business as Law Office of KG,
                                                         1

                       PLLC.




E-mail Attachments     image001 (3).gif
                       image003(1 ).png
                       Garza Affidavit and Subpoena Acceptance.pdf
To                     leif@olsonappeafs.com
From                   Kim Kleinhans <kim@lawofficeofkg.com>
CC
BCC
Phone #




                                                                           Tuesday 0612312015 2:20 pm
                                    CAUSE NO. D-J-GN-14-003874

LA W OFFICE OF                                §                IN THE DISTRICT COURT
KLEINHANS GRUBER, PLLC                        §
     Plaintiff,                               §
v.                                            §                20I S' JUDICIAL DISTRICT
                                              §
LEVI MORIN,                                   §
   Defendant.                                 §                TRA VIS COUNTY, TEXAS




THIS SUBPOENA IS DIRECTED TO:                 Martin Garza
                                              The Garza Law Firm
                                              1601 North Alanl0~ Suite 200
                                              San Antonio~ Texas 78215
                                              210 354-4949
                                              210 568-4278 fax
                                              Blart i nUv'111artinsgarza.
                                                       '/
                                                                          con1

        Greetings: You are hereby     C0l11111anded   to give testitnony via affidavit in theabove-natned
case.


You are further instructed that the FAILURE TO OBEY THIS SUBPOENA MAY BJi:
TREATED AS A CONrfEMPT OF COUH.T. Texas Rules of Civil Procedure 176.8(a), states~

        "Failure by any person \vithout adequate excuse to obey a subpoena served upon that person
        Inay be deelned a contempt of the court from w'hich the subpoena is issued or a district court in
        the county in which the subpoena is served, and 111ay be punished by fine or confinenlent, or
        both."

This subpoena is issued at the request of Plaintiff. LAW OFFICE OF KLEINHANS GRUBER~ PLLC.
attorney of record, Kinl berly G. Kleinhans.



Date Subpoena Issued: February 26, 2015.
      By rny signature below~ I hereby ackno\vledge that I accepted service of a copy of this subpoena.

               _ _ _ ~ 2015 and I confirnl I \vill n1ake any appropriate changes to the attached affidavit

and fax the signed copy back to 512.623.7320.


SIGNED BY;
                                      Martin Garza
   STATE OF TEXAS                      §
   BEXAR COUNTY'                       §


                                AFFIDA VIT OF MARrLN GAltZA
      Before me, the undersigned notary,on this day personally appeared MARTIN GARZA, the

 affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant

 testified:


 1.       "My name is MARTIN GARZA. I am conlpetent to make this affidavit. The facts
          stated in this affidavit are within my personal knowledge and are true and correct.

 2.       On March 10, 2014~ I was the opposing counsel for the setting on LEVI MORIN's
          Motion for Enforcement/Motion to Enter hearing.

 3.       Michael Seigler represented LEVI MORIN. 1 spoke with Michael Seigler prior to the
          hearing from about 8: 15AM to 8:45AM on the phone and then throughout the day on
          March 10, 2014. Michael Seigler handled the matter professionally and to a high ethical
          standard. We conferred and negotiated for approximately 6 hours on the day of the
          hearing. At nO tinle did I even suspect or see any signs of intoxication.



                                           ~
                                           MARTIN GARZA



      SWORN      TO    and    SUBSCRIBED         before               nle     by    MARTIN          GARZA   on
~ltACf& 5, UJf5:


                                           Notary Public in an
                                           the State of Texas '




                                                           ,.40~;"Fi11.            CONNIE GARZA
                                                        §O'rR"
                                                       I~:'   "~"1.
                                                               ~'f\ Notary PubJic. State of Texas
                                                       ~<e:..  .~i    My Commission Expires
                                                                  .... ,,~~
                                                          -,;,,"~;.
                                                            "il;;'~\~\\~"
                                                                               .   JuIy 1.6 201 6
                                                                                          I   .
     TAB   11
Siegler Affidavit
     C.R.727
     STA1'£ OF TEXAS                             §
 TRAVIS COUNTY                                   §




     Before ml!, the undersigned notary, on this day               ~oDnlly   uppenred MICHAEL SIEGLER"

the   ~lffinnt.   a   pc~on whose ;dcntity       is known to mc. After I administered un oath to   8ffianr~

affiant testified:


1.        UMy name is    MICHAEL SIEGLER. I am competent to make this offidllvit. TIle                 ract.~
          mated in this affidavit are within fny personal knowledge and are true and correct.

2.        00          Murch    10.. 2014:0   l       represented    LEVJ     MORIN   at his   Motion     for
          EnfoTCem{~ntJMQlion   to Enter heuring. I WH..~ not intoxicated nor was I hung over. I
          wns not sh.aking~ and did not smell of alcohol, and I was not swenting.. At no tinle did
          LEVI MORIN ever ask me if I was drunk or hung-oycr.


3.        On this same date" atler LEVI MORIN and I thoroughJy disc1L~sed the case
          circwnstrulccs:a.nd heavily negotiated the tcrm~.. LEVI MORIN voluntarily entered into
          the uttached Rule J I Agreement rather tlum baying the case heard before 111e judge.
          The attnchcd Rule 11 Agreement JS attached hereto and incorporaltcd herein by
          reference as .Bxll/hil8-/.



                                                      MICHAEL
                                             /
     ~ • TO                   and   SUBSCRIBED            before    me     by             SIEGtER        011

                       W-l~.I5--.,




                                                                                                                727
     TAB  12
Kleinhans Affidavit
   C.R.487-497
     STATE. OF TEXAS
     TRA VIS C01JNTY


                                   bFFI06 VTT QF KTMRERT.V G. KT .F.INHANS

  Before nll.!~ Lhe undersigned notary, on this day personally appeared KIMBER LY G.
KLETNHANS, the .anianl, a person whose identity is known to me. After 1 adlninlstcrcd an
oath to affiant, affiant testified:

I.           "My nmnc is KIMBERL V G. KLEINHANS. J am COlnpetent to make this affidavit.
             The raClf{   ~l3ted   in     ~hi~   affidavit arc whhin   my   personal knowledge and arc true and
             correct.

2.           Original Yelp Posting: Attached hereto are true and correct copies of the Yelp posting
             Illude by LEVT MORTN on LA \V OFFICE OF KLEINHANS GRURER, PLLC's Yelp
             page on June 24\ 20 J4, which remained pmucd for minimaHy~ 3 f110nths, anachcd
             hereto and incorpornted herein by reference us Exhibit A-I. This posting \vasn'r.
             dil{covcrcd by LAW OFFICE OF KLEINHANS GRUBER, PLLC until tnonths iater
             when a contact alerted LAW OFFICE OF KLEINHANS GRUBER .. PLLC thal they
             should check their Yelp page because ,here was a negative review driving busilless
             away frOnl the liml. I printed the YcJp page on August 18, 2014, and attest that the
             wcbpagc is tn1c i:lnd correct and duplicates of pages rrom the Yelp wcbpage locaLed aL:
             http://www.yclp.comlbivlaw-orlicc-of-klcinhans-grubcr-pllc-
             austin'Josq=law·t-office+of+kg.

3.           Current Yelp Posting: Also (lUached hereto are troe and correct copies or the currenL
             Yelp posting made by LEVI MORIN on LAW QFFTCE OF KLETNHANS GRUBER.
             PLLC's Yelp page on June 24, 2014, attached hereto (Uld incorpurated herdn by
             reference us Exhibit A-2. I printed the Yelp page on February 25, 2015 and Febnmry
             26, 2015, and aUe~t that t!xcerpt 18 tme and correct from the Y clp webpagc located at:
             hup:l/www.yclp.com/bi7JJaw-office-of-kleinhans-gruber-plIc-
             nustin?osq=Jaw+offlcc+of+kg. This posting shows that 2 users of Yelp found LEVI
             MORIN"s posting to be useful, therefore it is cJt!(lr that LAW OFFICE OF
             KLElNIIANS GRUBER, PlLC lo~t 2 potential clients based on LEVI MORIN s false               1



             review,

4            Yelp Activjty: Also attached hcrcto are tnle and correct c()pic~ of email~ f received
             frOill Yelp wiLh the Yelp Activity on LAW OFFICE OF Kl.F.TNHANS GRURER.
             PLLC's Yelp page \vhcre LEVI MORIN published the false statclncnls that are the
             basis of this Jawl'luit that rangc iroln June 29, 2014 to February 24. 2015, attached
             herero and incorporated herein by reference as Exhibit A-l. 1 attest that these ell1ai Is
             arc true and correct copic~ of the originals. This Yelp Activity set forth in these emaHs
             supports that of the 193 people that have visited the Yelp sileo on Iy 14 ha vt,; turned inlu
             lcnds, and given lhe taCl that all the other reviews posted on the Yelp page are positive:-
             raving" 5-star reviews (refer to Exhibit .4-2 and LEVI MORIN's Exhibits F-J t.o his
             Motion to nisl11i~s which di~play all positive reviews on all oLher. web~lle public review
-.-- .." •....   -~---------

LAW O~~ICF. OF KlEINIlA...~S GRUIlER. PI.J.C V. LI<,VI Mnl{JN
An'II),'" vrrcw K.IMDERLy KLlitr-;lIANS

                                                                                                                  487
        tonuns), the: only conclusion that can be drawn is thal LEVI MORIN's Yelp posting is
        causing (he low number of leads generated fronl the high nunlber or views.

5.      25 Monthly 8illing Invoices: Also attached hereto are true and correct copies of the 25
        monthly billing invoices [hal were generated by LAW OFFICE OF KLEINHANS
        GRUBER. PLLC to sh,)w the w(')rk perlhmlcd and the work billed for on LEVI
        MORiN's case.. attached hereto and inco'1'oraled herein by reference a:; Ex/lib;t A-4.
        These arc tnlc and correct copies of the invoices emailed and mailed to LEV( MORIN
        each month and J altesl that these invoices are true and correct copies of the originals.
        These invoices support [hat LAW OFFICE OF KLEINHANS GRUBER~ PLLC only
        ever billed fOT work they perfornled and billed in accordance \vith the hourly rates set
        forth in the conLract with LEVI MORIN (See Exhihit A-6) and at no time~ ever billcd
        LEVI MOR1N at n rate ofS400.00 an hour.

6.      [nu,ils supporting LEVI MORIN Advised and                 an
                                                                   Questions Ans\vered: Also
        allached hereto nrc tnlc and correct copies or       20+ cmnils exchanged by Kimberly
        Klelnhant{ and LEVI MORIN, attached hereto and incorporated herein by rererence as
        hxhibil A-5.     J attest thut these 20+ cmails arc true and correct copies. These 20+
        enlails support that Kimberly Klcinhan~ provided an abundant amount of legal advice
        und meticulously answered all ofLEVT MORTN~s questions:

                 i)       On June 6, 2012 emnils were exchanged betwccn Kirnbcrly Kleinhans
                          and LEVI MORIN which support the detailed effort of Kinlberly
                          Kleinhans to create n calendar and docunlcnt and assist LEVI MORrN in
                          understanding his current possession schedule. No other questions
                          rcgardjng the matter wcrc clnailcd to Kifnbcrly Kleinhans so it is
                          reas(.}nable to conclude thaL Kinlberly Kleinhans fully addressed LEVr
                          MORIN"s concerns. attached hcreto and incorporated herein by
                          rdbrence as Exhihit A-S.I.

                 ii)      On June 9 2012, Kinlberly Kleinhans gent an enla1i
                                     t                                             LEVI MORIN
                                                                                  lO
                          advh:;ing him of the potential need tor a temporary order sctting rather
                          than final trial setting and provided the reasoning. No other question~
                          regarding the matter were emailed to Kinlberly Kleinhans so iL is
                          reasonable to conclude that l(hnberly Kleinhans fully addre:;sed LEVI
                          MORIN ~s concerns, attached hereto and incorpor'lted herein by
                          reference as Exltibit A-5.2.

                 iii)     On June 12, 2012, LEVI MORIN questioned about [he mediation
                          process and Kimberly Kleinhans responded providing an explanarion
                          about mediation. LEVI MORIN did not ask any other question or caB
                          fOT any further explanaLion) aHachcd hereto and incorporated herein by
                          reference as !ix/lib;t A-S.3.

                 iv)      On June 26, 20 12~ Kimberly Kleinhans clnailcd LEVI MORIN
                          requesting a tilTIe thnt they could~ " ... discus~ the upconling hearing on
                          tCluporary orders ... and talk about wirncsscs and evidence". All issues

LAW OPFleE OF KI.~INHA~S GkUDER~ PLLC V. LEVI MOIUN
ArHDAVIT OF KIMUHilL\, KLEINH~'lS

                                                                                                        488
                             were discussed and LEVI MORIN was advised of what to expc:ct.
                             Further, there arc no other calls or emall~ from LEVI MORIN
                             concerning this scenario which would support that LEVI MORrN h~s
                             any umUlswered questions, aUached hereto and incorporated herein by
                             reference as Ex/ti/)it /1-5.. 4.

                   v)        On May 30. 2013, LEVI MORIN notified Kimberly thal hi::; chlld's
                             nu.llher wa~ vlolating the order in place from the 111edhucd settlement
                             agrcenlcnt reached and requested advice on what to do. Likewise,
                             Kimbcrly Kleinhans provided LBVr MORIN \vith n copy of the
                             agreement and advised th'lt when an order 1sn'l being followed. an
                             enforcenlent action is neCt!ssary. Nc,) other qucslit)nN regarding the
                             matter were cmailcd to Kimberly KJeinlulns so it is re,lsOlulbie to
                             conclude that Kin1berly Kleinhans fully addressed LEVI MORIN'~
                             concerns, nltnehcd hereto and incorporated herein by reference as
                             E.t:lrihit A-S.S.

                   vi)       On July 2, 2013, Kinlbcrlyadvised LEVI MOIUN about the drafting
                             process or turning a Mediated Settlement Agreement into a final order.
                             Kimberly informed LEVI MORIN she would need LEVI MORTN~s
                             recent income inthrmation [0 calculate child support as ,lgreed in the
                             Mediated Settlement Agreement that thal i~ how child support would be
                             calculilted. No other questions regarding the 111atter were enl(li1ed 10
                             Kimberly Kleinhans so it is reasonable to conclude that Kimberly
                             Kleinhans fully addressed LEVI MORIN's concerns .. attached hereto
                             and incorporated herein hy reference as Exllibit A-5.6.

                   vii)      On Augu~t 10, 2013~ Kimberly advised LEVI MORIN to retunl the child
                             to the child's mother in accordance with customary interpretation of the
                             Mediated Setttcment Agreement and The Texas Family Codc, attached
                             hereto andineorporalcd herein by reference as Exhibit A-5.7.

                   viii)     On August 14\ 2013~ Kitnberly responded to LEVI MORIN~s aggressive
                             reply to her advice, further advising LEVI MORIN of the difference of
                             ft!prescntation of a client in comt vs. properly adviNing a client outside
                             of. No other questions regard;ng the matter were emailcd to Kimberly
                             K1cinhans so it is reasonable to conclude that Kimberly Kleinhans fully
                             addre:\sed LEVI MORIN's concerns, attached hereto and inC(.lT(Xlraled
                             herein by reference as Exllibit A ...5. 7.

                   IX)       011 October 18~ 2013, Kimberly advised LEVI MORIN thal she should
                             draft the proposed order fh)nl the M~diatcd Settlement Agreement since
                             opposing counsel had failed to do so to datc, attached hereto and
                             incorporated herein by reference as Exhibit A-S.S.

                   x)        On Oc(obcr 21, 2013, Ki1l1ber1y K1einhans responded to LEVI
                             MORrN's question ahOUl make-up possession tinle. No other questions

LAW OfFICE OF K UHNI1A."lS GRUDER. PL.LC V. LEVI MotON
ArFlI);WIT en: KrMUI:RLY KUINIlAN!o>                                                               PACil:J


                                                                                                             489
                               rL!garding the llmltcr Wl:fC cnluilcd to Kimberly Kleinhans ~o it is
                               reasonable (0 conclude lhm Kimberly Kleinhans fully addressed LEVI
                               MORIN"s concerns, auachcd hereto and incorporated herein by
                               reference as Exhibit A-5.8.

                     x1)       On October 26~ 20 J 3 and on November 16, 2013 and on Dccembt:r 27.
                               2013 and on December 28, 2014 and on Junuary 6, 2014 and on
                               February 19, 2014 and on February 21, 2014, Kinlberly Kleinhans
                               provided LEVI MORIN with the proposed order and advised LEVI
                               MORIN that sh~ wa~ still wailing for the nect!ssary financial docunlenls
                               in order to be able to ca1cularc rhe child support figure. No response was
                               receivt!d from LEVI MORIN. ilUached hereto and incorporaled herein
                               by reference as IJxllilJil A-S. 9.

                    xii)       On December 27-28, 2013, Kitnbcrly Kleinhans responded           to   LEVI
                               MORIN's request 10r advise on what 10 do since his chlId's nlOlhcf was
                               threatening to deny him Christn13S possession, and likewise Kimberly
                               KJcinhan~ rc~pondcd with advi~e to call Lhe cops to document her rtdi..uml
                               for the Motion to Enforce but that, Uthere is a chance that the cops wiH
                               not follow the MSA---it all depends on the cops and their kno\vlcdgc of
                               the Jaw. This again is why J suggest that we need to get a. signed order
                               in this casco .. No response was received frofn LEV) MORIN and no
                                             1'1


                               other correspondence was had with LEVI MORIN other tlnm this email,
                               aU3chcd herolo and incorporated herein by reierence as Ex/Jibit A-5.l0.

                     xiii)     On February I) 2014, Kirrtbcrly Kleinhans responded to LEVl MORIN's
                               request for 3 further explanation concerning a ca:;e update that KinlberJy
                               Kleinhans provided to LEVI MORIN on January 31, 2014.No response
                               was received from LEVr MORlN~ attached hereto and incnrr)(.lraled
                               herein by reference as Exhibit A-S.II.

                    xiv)       On Febmary 21 ~ 2014 and on February 26, 2014, Kimberly Kleinhans
                               responded [0 LEVI MORIN's request for advice about whether he
                               needed [0 attend the March 2014 setting on the Motion to
                               Enforce/MoLton to EnLer. De~p1te lh~ advice provided letting hirn kno\v
                               how impottance his ~lttendance wa~ for the hearing, LEVI MORIN
                               responded on March 2S\ 2014 that he refused to take off work for the
                               seuing t attached hereLo and incorporated herein by reference as Exltihit
                               A-S.l1.

                     xv)       In two email s on rcbruary 26\ 20] 4, Kim herr y Klein h(lns respon lied to
                               LEVr MORIN~s concerns that there were nlisslng June violation dates
                               that needed to be included in the Motion for Enforcement with an
                               explanatjon on what would be needed to add those dates and support
                               them with evidence in court, attached hereto and incorporated hcrein by
                               reference as Exhibit A-SI/).


LAW OfFICE Or KU~INHA~S GRUDI!R. PLLCV. LEV! MORIN
AlTIDAVIT 01' KJlt.lIl1~rtU· Ku:.fNHANS

                                                                                                             490
                          xvi)    Further, on Ft!bnmry 26, 2014. LEVI MORIN forwarded Kitnbcrly
                                  Kleinhans 4 cmails in which he hold!i out that he previously provided
                                  Kimberly Kldnhans with lhe June violation dates~ and Kimberly
                                  Kleinhans responded to each stating the conLent of the cnlail and
                                  showing that there wasn '{ any reference to June violation dates. LEVr
                                  MORIN retuHated by threatening to tcnninate the attorney-client
                                  relationship and Kimberly Kleinhans responded thal she would advise
                                  LEVI MORIN [0 dll so given (hal she can not properly rcprcscnl LEVI
                                  MORIN without the child support infonnation she hau requested over 7
                                  times, altachcd hereto and incorporated herein by reference as Exhibit
                                  A-5614.

                          xvjj)   On Febnl"ry 28, 2014, while waiting for LEVY MORrN to provide
                                  allcrnmivc: counsel infonnaLl0n for substitution, Kimberly Kleinhans
                                  received a notice of deposition for LEVI MORTN~~ deposition prior to
                                  the March setting ~U1d advised T....EVT MOR TN accordingly that the besf
                                  next S[CP is to proceed with quashing the dcpositioll~ attached llCrC[O and
                                  incorporated herein by rererence (lS Exhibit A-S.IS.

                          xviii) Likewise, on March 5, 2014, while still waiting for LEVI MORIN to
                                  provide alternative counsel information f(lr subMtiluliun, Kimberly
                                  Kleinhans advised LE.VI MORIN that rather th;']'1l cancel the March
                                  scuing it would be in his best interest to proceed with the hearing so that
                                          t

                                  there would nol be t;nle prior to the next hearing lor LEVI MORIN's
                                  deposition, attnchcd hereto and incorporated herein by reference us
                                  Exhibit A-S.IJ.

                          xix)    On May 20, 2014, in reKpon:;e to LEVI MORIN's requested changc~ to
                                  the proposed order draft from the March hearing, Kinlberly Kleinhans
                                  advi9cd LEVI MORIN of the requested changes that the court \vould not
                                  likely acc~pL as requeslt!d by LEVI MORIN, but yet stHI agreed to
                                  reque:-;l abJfeCtllenl rronl the ()ppo~ing party, attached hereto and
                                  incorporated herein by rererence as Exhibit A ..S./6.

                          xix)    On May 22, 2014 and May 23, 2014, in response to LEVI MORIN
                                  receiving advise from Kin1berly K]einhan~ that he didn't want to hear,
                                  LEV1 MORIN, for the second tiluc, chose to close lhe case prior to
                                  Kimberly Kleinhans completing the draft or the order and likewisc~
                                  Kimberly Kleinhans advised LEVl MOR m- of the withdraw/substitution
                                  process, altachcd hereto and jncorporated herein by reference as £-.:/,i/Jil
                                  A-S.17.

                          xx)     Finally, June   10~   2014. Kitnbcrly Kleinhans advised LEVI   MOT~TN   that
                                  a   ~igncd
                                           Order for the tirm's withdraw h..d been entered and therefore.
                                  he represented himselr and should contact opposing counsel directly,
                                  attached hereto and incorporated herein by rererence as Exlrihit A ..S./R.

           _------
...................
LAW OI'TILI.!.        or KLEINHANS GIU.IHER. PLLC v. Lt!Vl MORlN
AFFIf>AVITOF KIMUEKJS KLI'!INHA~S

                                                                                                                 491
7.        It:nluil usMorin~s Prhnary FornI of Conununication: Furthermore. I attest that LEVI
          MOR TN·s primary form of commuoiCllLion with the nnn was via ernail and Iikc\visc,
          confirm that any culls made by LEVI MORIN were dOCUlncntcd in his billing invokes
          (sec E~"ltibit A-4) and rcnlrncd in a titncly Inanncr to promptly answer any and all
          questions that l ..EVT MORIN held about his cast!. In fact, • cmall corrcxpondence
          generally toJlowed up the calls to verify that LEVI MORIN wus clear about the
          explanation and/or content or Lhe call (See EX/Jihir... A-5).

8.        Attorncy ..Clicnt Fce Contract: A(su attached heret(l is a true and correct copy of the
          attorney fce contract between LEVI MORIN AND LAW OFFICE OF KLE.INHANS
          GRUBER, PLLS that wa~ signed by LEVI MORIN on May 1, 2() 12, auached hereto
          and incorporated herein by reference as Exhibit A-6'. I anest that this contracl is 11 true
          and correcl copy and that LEVr MORIN was provided a copy or the contract on the
          dOle thm he signed the contract.

9.        Billing: 1 am an attorney and one of the managing partners of LAW OFFICE OF
          KLEINHANS GRUBERi PLLC and T primarily handled or oversaw the handling of
          LEVI M01{ JN~s family law casco As set torth in LEVI MORIN"s attorney fec contract
          that LEVI MORIN signed on May I, 2012, I billed at $350.00 an hour, and our
          (l~s()ciatc~ (,)1" of~coun~cl attomcy~ were instructed to biJI at $225.0n to $250.00 an hl')ur~
          attached hereto and incorporated herein by reference ,LS Ex/,ibit A-6 at page 2. The
          rates were reasonable and nccc~~ary given my knowledge of family la\V and or rees
          charged for similar services for a case of this type and complexity. My 1l1cmal
          impressions and opinion~ regarding ~uomey fees and expen~es aNfl(lclalcd with the tria)
          or thi.. ,· case and are also based upon my knowledge and understanding of Rule 1.04 of
          the Texas Rules of Disciplinary which sets forth the foHowing non-exclusive list of
          (helOTS to bt! considered in dClcnnining the reasonableness of fees charged by atrorneys:
          the tirnc and Jabor required, the novelty ~nd di fficulty of the questions invo Ived!o and (he
          skill required to perform the legal services properly; the Likelihood Hmt the ucceptullce
          of the particular enlploymenl will preclude (lLht!r employment by the lawycr~ the tcc
          custnmarHy charged in the locality for sitnilar legal services: the amount involved and
          the results obtained; (he time limitations imposed by the client or by the circllIllsmnces;
          the nature and lenglh or the prolcs~innal rcla[ion~hip with the client; the expcricncc~
          reputation, and ability of the lawyer or la.wyers perfonl1ing t.he services: whether the fee
          is fixed or contingent on results obtained or llnccnainty of collection before the legal
          services hnve been rendered; the time and labor required. lht! novelty and di l1iculty of
          the questions involved, and the skiff required to perfonn the legal services properly: the
          likelihood that the acceptance of the pmticuInr Clup(oyment will predude other
          employment by the lawyer; the fee customarily charged in the locality lilr sinlilar legal
          serviCf!H~ the amount involved and the results obtained; the thlle limimtions ilnposcd by
          the client or by the circumstances; the nature and length or the professional relationship
          with the client; the experience, rcputation\ and ability of the lawyer or lu\\rycrs
          performing the;! services; and whether the fce h: fixed or contingenr on results ob(aincd
          or uncertainly (,)f collection beiorc the legal sClVlces have been rendered. 1 mll also
          familiar with the Supreme Court C:l~m of Arthur Antler'sell & Co. v Perry Equipment
          Curporation, 945 S.W. 2d 812 and other sinlilar cases which discuss the relevant

-------_..• ,. __. - - - - - - - - - - - - - - -
LAW OfFICE OF K I.EINl1ANS GRunER, PLLC V. LEVi MORIN
AI'FlUi\VIT Ol~ KI~III1:RL\, KLElr.;UA.~S

                                                                                                            492
           r41clors[0 be considered in determining the reasonableness of attorneys fees. FUl1he1\

          IUY  mental ilnpTcssions and opinioo:{ arc ba~cd in part on my education and experience
          as an attorney licensed ro practice hlW in the SLale of Texa~. I gradualed front Penn
          Slale UnivcrsilY with a decree in Criminal Justice in January of 2003 and I graduated
          from Thomas Cooley Law School in January 2008 and passed the Texas Rar Exam in
          May of 2008. Additionally~ J was admitrcd into the U.S. District Court of the Western
          District of Texa~ in May of 2010. Thave been practicing prinlarHy in fa n1 ily I,lw and
          litigation in Austin, Texas for seven years. I have been billing and ciients have been
          paying the hourly rate                   or $350.00 an hour for Lhe la~t three years,
                                                                              f have perrbnlled
          over 100 hearings, bench trials and jury trials in various courts around the state of
          Texas. r have been named as a Super Lawyer Rising Star for the past two years of 2014
          and 20 IS, of which only 2.5% of utrorneys nation-\vidc nrc named to the Ri~dng Star
          list Additionally, I haVe! been part of the College or the Slate Bar of Texas and
          maintained membership sincc 2012.

10.       Representation: LAW OFF1CE OF KLEINHANS GRUBER, PLLC represented LEVI
          MORrN from May I, 2012 to March 15~ 2013. On March 15, 2013, LEVT MORIN
          callt!d LAW OFFICE OF KLEINHANS GRUBER, Pl..LC and requested that his cnsc
          be placed on hQld and that all work on his case cease. On May 30, 2013 to June 6~
          2014, LEVI MORIN called and emailed \vith Kimberly Kleinhans and rcquc~ucd thal
          work be continued on his case. Likewise, representation continued from May 30, 2013
          to June 4, 2014. On June 4, 2014, Kinlhcrly Kleinhans obtained a signed Order of
          \Vithdraw rrom repreSenl(llion and emailed it to LEVT MORIN" attached hereto and
          incurporated herein by reference as E~"ihil A-4 and Exhibit A-S. During this tinle~
          based on rny tt!Vlt;;w of our practice nlunagemeni systenl, enlails and billing invoices, r
          can attest that LAW OFFICE OF KLEINl-LANS GRUBER, I)LLC thoroughly answered
          every question that they understood LEVI MORIN to have.

1 I.      Siegler: LAW OFFICE OF KLEINHANS GRUBER, PLLC has never had previous
          rcpons that Michael Siegler reported to work drunk or hung-over and has not had llny
          reporLs .~ince the Ihlsc allegation of LEV] MORrN stating that Michael Seigler was
          hungMovcr at the March 10, 2014 setting. Furthcm'lorc, I corresponded with Michael
          Seigler on the day prior :;md on the date or the hearing and at no lime did he ever appear
          tt) be dnmk or hung-over. His speak was clear, he was alert and his thoughts were well
          organized.

12        No Family Law Spcciali:t.ation: J U(l not specialize in latnily law and have never held
          out to any clicnCs thnt I specialize in fanlily law. 1 understand this to be 41 special term
          reserved ~o]ely lor n1eaning thai one has received a Texas Bar Certification in the area
          of tamily hlW. On AugusL 20.. 2014\ T emailed LEVI MORIN requesting the subject
          langungc (See /"EVT ,WORIN's Molioll To TJis",;ss E.xhihit B) be relnoved, however,
           LEVI MORIN refused and his eurrcnt Yelp posting stiH holds out th'lt T claillled to
          specialize in family law even though LEVI MORIN admits in his Dcccluber l, 20 [4
          affidavit that he is aware lhaL uSPCCi;llizcd" hax II "special mcaning~n and yet cnntinuc~
          to refu~c to remove or amend his Yelp posting accordingly {See LEVI MORTN',\<
          Motioll To Dismi."'" Exhibit KJ. I would never hold out thnt I specialize in fnnlily law

------------~                               .. .... ""-
                                             ~-           .....   ~~...   ._--------------
LAW OFFICE Of. KlEJNHA.\lS GRUI-\ER,                PLLC V. lEVI MOklN
AI-'FHlAVITOF KIMllERL ...• KUlINIIt\!-JS

                                                                                                         493
          without being board certified as I know the consequences of doing so could etTect my
          professional license) which is why it concerns nlC greatly that vic\vcrs of LEV]
          Mon TN's po~( will inL~rprCL hi~ pO~ling as being a factual verified offense in which my
          Ucense is in jel.)pardy ror inlproperly holding out that I specialized in Ihmily law.

13.       Economics: On average, LA \V OFFICE OF KLEINHANS GRUBER, PLLC eams
          roughly $1 O~OOO per client. This is a conservative average because our personal injury
          seLtlements on average range in attorney feet{ n'om $30)O()() to $3,000 and our Hmli1y
          law cases usually average about $10,000. This average is based on Illy knowkdgc as
          the primary panner of the timl that handle~ all lhe billing and financiu,ls of the firm.
          Additionally, this number is based on Illy review of cases and income off of cases.
          FurlhcmlorC Keith Kleinhans handles the finn's intake culls and retains roughly 40-
                            i


          50% of all calls we get t.o the firm that arc interested in retaining our services. We do
          nol pay ror advertisement, we Obrilin our business from referrals and online traffic,
          thcrcibre, it is without question that our ba"incss has declined since LEVI MORIN's
          posting. The dec1ine is reneCleu in our overall business income fronl the date of the
          posting to the present and supported by Quickbooks that accounts fbr all of our firm
          incomC!, which shows that frOill July 2013- December 2013, our income \vas
          $149,303,03~ however for (he similar nlonths the following year after LEVI MORIN's
          June 2014 posting, our income \V<lS $96,331.78. which is $52,971.25 lo\vcr. Theretore,
          based on Iny review of financial documents and client billing, the current Yclp posting
          (st:e Exhibit A-2) and the Yelp activity reports (~cc Exhibit A-3 / ), m1nil11aJly~ LAW
          OFFICE OF KLEINHANS GRUBER, PLLC lost income nmging from $52.971.25 to
          $120,000 depending on method of calculation.

14.       Non ..Economics: For the dura.tion or time, since I have bcconlC aware of LEVI
          MORIN~s posting on Yelp, I have been pregnant and the emotions involved in having
          my reput.ation as well ;lS the finll 's reputation be defamed is overbearing given my
          already fragile statc. Given {hat one of the areas 1 handle at dIe fiftn is OlIr online
          pl'esellce~ the false and daillaging SlaLenlent~ arc extremely stressrul and emutionally
          draining. These allegations have caused me to lose sleep and to overwork nlyself,
          rather than getting the needed rest and relaxation recommended by nly doctor ror a
          healthy pregnancy. Furthermore, LEVI MOR"N~s unsolicited derogatory language and
          disre~pcctthl bchavior further add to the stress and restlessness.
                                           t




15.       Malice: LEVI MORIN mlcmptcd to file bar complaints against myself and Michael
          Siegler. Both were immediately djslnissed without requiring any response. Although
          LEVI MORIN clain1~s thot hc docsn'r have n copy of the cotnplnint to vcrity~ it is Iny

  I Yclp Activity reviews supporllhc ~ilrnc a~ expJained ahnvc thal nfthe 193 people thal have visitet1lhc Yelp
  :iitc. only 14 have tUrned inln lead~, and given the lact that all the uther reviews posted on lhe Yelp page arc
  positive. fIIving. 5·swr reviews. the only eonclu!{ion thal can be drawn 18 that LEVI MORIN~s Yelp posting is
  cnusing the. low number of 1c'ld~ generated Ii-om the high number or views. My eumpari:ion or {he Yelp reviews
  from prior to LEVI MORIN"s posting and following LEVI MORIN's posting ~upporl~ there wa~ a 20% decline
  in viewers that turned into lends. Thcrcfol'e t Yclp wou1d have likely generated 25 mOTe Ic3d~ 1113i it olhcrwi~c
  did with LEVl MOIUN1s posting. Considering. we refaln about 50% of1c3d:-t. lhi~ lotal:i roughly] 2 lust clients
  lit lin avcragt: 01'$10,000 per client for a total of$ 120.000.


LAW Ot-:F1Ch OF KLElNHA.~S (jRUDER.l)1..LC V. LEVI MORIN
A Ffli M. V[T OF KIM13l:Rl.y KLEINtli\NS

                                                                                                                      494
         understanding based on lhe notil1carion    trom {he Smte 13ar of Texas that I receivcd (hat             t


         LEVI MORIN received notice that his complaints \vcrc dismissed only days or \vccks
         prior to posting his Y clp review. So he knew [hat his complaints were found by [he
         Slale Bar of Texas to have no basis, yet he went on to makc the S0l11C false and basdcss
         cJa;nls online to attempt to make it appear as ; r licenses were in jeopardy when lhnl was
         not the truth. On Febntaty 27, 20 t 5. I went on the SUlte Bar of Texas website and
         printed the wcbpage for (he public that explains the grievance proccdure~ and lisls
         "Examples of lawyer conduct that May violate thc Disciplinary Rules.'\ Of these
         examples. LEVr MORIN al1udc!{ in his Yelp review lhat~ LAW OFFICE OF
         KLEINHANS GRUBER. PLLC, '"docs not return client phonc calls\ cmails\ or ICUef!{\"
         and slates that Michael Siegler, "se;:e;:ms to have a substance;: abuse problem that aftects
         his/her ability to practice.'" Given thm LEVI MORIN sent 111C an array of cmai]" ~(aljng
         things like, uYQu'rc a horrible pcrsQn~ a predator, and r will make sure lhaC~ kno\vn 011
         a~ many ff(')nlS as I can/' and on two occm:ions, go ruck yourself.H and .... biggest piece
                                                                      d


         of !'hiL lawyer I've ever not n"tct," and u\\'ait len days and see ifT'nl as big of a pussy as
         YOU,H and given the conduct and dishonesty2 and disrespect that I havc seen hinl display
         in the course of the 2+ years that I represented hinl, there is no doubt in n1y flllnd, his
         intent lu do hann to myself and the liml on as nlany (ronLs as is possible. Attached
         hereto arc tnlc and corrcct copies of the referenced \vcbpagc and cmails exchanged by
         Kimberly Kleinhans and LEVT MORIN, attached hereto and incorporated herein by
         reference as Exhibit A-7.      I attest that this \vcbpagc and emaiJs arc true and correct
         copies.

16.       Costs nnd !t'ecs Related to Motion to Disnliss: LAW OFFICE OF KLEINHANS
         GRUBER, PLLC sought counsel bur was unable (0 obtain counsel in the limited time
         between the notice or selling and the actual s~uing on the Motion 10 Dil{mha:. LAW
         OFFICE OF KLEI"NHANS GRUBER, PLLC further lost profits and incurred nunny
         expenses during npproxitllatc 4 days it took to prepare llnd defend the Motion to
         iJiSllliss clahns. Further, LAW OFFICE OF KLEfNHANS GRUBER~ PLLC incurred
         the expense of service of the responsive 1l1otion. Although, costs and rees exceed the
         requc.'tlcd amount, LAW OFFICE OF KLEINHANS GRUBER~ PLLC requests $2500
         in fees and expenst!~ LO rdmbur~e for their los~ef,; n'om (his frivolou~ motion broughl
         only for rhe purpose of delay.

17.      Lief Olsen's Unreasonable Fees; LAW OFFICE OF KLEINHANS GRURER, PLr..C
         obj~Cl~ to the unreasonableness of Lcif Dlscn's fees for representation of LEVI
         MORJN~ as I) he charges ror travel from Dallas which ifm'l rca~onablc given that LEVI
         MORIN could have hired an attorney frol11 Austin for less expense~ and 2) LEvr
         MORIN is only paying $75 an hour, yet Leif Olsen is inappropriately, requesting the
         court award him fees at a substantially higher rate ($285), 3) the hours billed are not


  ~ An  example of this dishonesty thnt can be see.l through the email cllilins at~lcllCd to thix affidavit ix lhat in
  hUlh lht.: Medioted Seftlement Agreement (child support Lerm~ reqUiring him to submit faX rcntrns and paystubs
  fO cnlculntc- the amount} (hut \Vas reached tu re~olvc final trinl jSSllCS, nnd the Rule t I Agreement
  (exchange/possession issues) thlll wns Inter reached 10 resolve enforcement h;suc!\ ---ofbnlh tlgrccmenl~. LEV!
  MORIN. tried 10 laler gel oul oflCrm.o; he. hud ,agreed to 3t time of the nRfecmcnl•
      ---------~-~~-~~~---~'"-."'

l.AW On:JL'~ or KLr.lNllA.'·,fS GRUBER.   ftLLC V. LEVI MORIN
AFtll)AVITOf KIMBERLY Kl.t:lNIIANS

                                                                                                                         495
        reasonable! for the work pertormed (ex. 3.3 hours for a :;implc ttlandard f-arm answer,
        and 27.6 hours for his Motion to Disnliss), 4) likewl:O;c, Lcif Olson's fce affidavit fnils
        to state his prcviou~ cxperience in the relevant area of practice to cven jusLi ry a rce of
        $285 per hour, which it is likely thaf he h,lS minin1al experience, based on his biHablc
        hours alone to geL "caught up to spccdn on the lu\v surrounding this ~lrea of practice.
        An attorney that regularly practices in defamation law wouldn\t have to bHI 3.3 hours
        for a standard answer and I 1 hours r()r rc!o:carch therefore, it is unreasonable that he
        ~hould be reimbursed (It a premium nlte for linl'! spent learning the law\ 5) LcifO]s.on's
        nlinimal onlinc reputation suppons that he is not known as a defamation aLtonley iLnd
        holds out hinlsclf on a Iboner campaign page thut he practiccs~ "primarily in complcx
        c;omrncrcial disputes, product-liability, probate, deceptive trade practice, and property
        damage cuseH." Further, on hls Stale Bar of Texas page, he lists his areas ofpraClice 3!'i~
        uC(,)n~umcr, Litigation: Commercial, Wills-Tnlsts-Probate, Appellate: Civil, Appellate:
        Criminal," again with no reference whatsoever to con~titULionallaw or de (anlalion law ..
        and 6) lhcrc is simply not enough information included in Leif Olsen~s affidavit to
        determine whether the fees were reasonable and necessary as Leif01sen (ails to provide
        supporting JaCL~ related to the Arthur Anderson factors. Attaehed hereto are true and
        correct copies of the rcierenced wt!b pages r reviewed and printed on February 28,
        20 I5, attached hereto and incorporated herein by reference as E_~/,ihil A ....Y. I aucst that
        (he wcbpage is true and correct and duplicates of pages rrom the re~pective websiles.

I S.    Attached hereto are true and correct copies of emails sent and received between Martin
        Garza und nlysclf and Michael Sicglct· and myself, ~ittached hereto and incorporated
        herein by reference as Exhibit BUild Exhibit C. I attest [hat thesc cmails arc true and
        Cllfl'ecL and duplicates of e!lmi!s exchanged.




LAW OJTICE OF KlmNI-IAN~ C,RtJUER.    PLLC V. LEVI MORIN
AFr-mAvlT OF K.IMIW1~1.v KLElNIlANS

                                                                                                         496
 ~
r,J,
f;
I.
I:
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i




                        S\VORN TO nnd                                               KLEINHANS on
                Fc:bruary 21, :2015.



            ~~~~~j.i'~
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                              EMIUE ruCKER
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       LAWOFPJl:I~Of KU!.lNtfANS GRunER.PLLC V. LEVI MORIN
       Af'FIDAvITor KrMm:RI.\' KI.UtNUA.NS


                                                                                                   497
           TAB 13
Morin's Fee Contract at $75/hr.
                                                                LEIF A. OLSON
                                                                r:lBOARD
                                                                I.:ICERTIFIED~
                                                 f.:> LLC:      Texas Board of legai Spedalizalio"




October 8, 2014

Levi Morin                                 By email to levimorin@gmaiLcorn
C/O The Directional Drilling

  Company
11390 FM 830
Willis, Texas 77318

Re:    Lawsuit by Kleinhans Gruber PLLC
       Representation agreement


Dear Levi:
   This letter confirms the terms of my representation of you in the
lawsuit that Kleinhans Gruber filed against you. If you agree to these
terms, please sign at the bottom of this agreement and return it to me.

A. Scope of representation.
    I will represent you in Law Office of Kleinhans Gruber PLLC v.
Levi Morin, Case D-I-GN-14-003874 in the 201st District Court of
Travis County, which this letter will call lethe Lawsuit." The represen-
tation will begin once I have received a signed copy of this agreement
and you have paid the retainer described in Section C. It will end
when the trial court's judgment becomes final.
    My representation is limited to the Lawsuit. If you would like me
to give you additional legal help or represent you in another problem
or dispute, even one involving Kleinhans Gruber, we will need to sign
another Representation Agreement covering that dispute.
   I have the final authority regarding procedural matters and the
scope and content of all communications and correspondence to
courts and to other parties about the Lawsuit.

B. Fees and expenses.
    My fee for this representation is $285 per hour. I will defer billing
all but $75 per hour of that amount until the end of the representation.


          PMB 188 • 4830 \NlLSON ROAD, SUITE 300 • HUMBLE, TEXAS 77396
                     LEIF@OlSONAPPEAlS.COtv\ • (281) 849-8382

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