Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/13/2015 3:59:43 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-14-00656-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/13/2015 3:59:43 PM DORIAN RAMIREZ CLERK Exhibit 1
No. 13-14-00656-CV IN THE THIRTEENTH COURT OF APPEALS AT CORPUS CHRISTI, TEXAS T EXAS C AMPAIGN FOR THE E NVIRONMENT AND R OBIN S CHNEIDER , Appellants
v. P ARTNERS D EWATERING I NTERNATIONAL , LLC Appellee
Interlocutory Appeal from the 444th Judicial District Court, Cameron County, Texas, Cause No. 2014-DCL-03498-H, the Honorable David Sanchez, Presiding APPELLEE’S SUR-REPLY Keith W. Lapeze
Lead Counsel
Texas Bar No. 24010176
Taylor L. Shipman Frank Costilla
Texas Bar No. 24079323 Texas Bar No. 04856500
The Lapeze Firm, P.C. Law Office of Frank Costilla
601 Sawyer Street, Suite 650 5 E. Elizabeth Street
Houston, Texas 77007 Brownsville, Texas 78520
Phone: (713) 739-1010 Phone: (956) 541-4982
Fax: (713) 739-1015 Fax: (956) 544-3152
E-mail: keith@lapezejohns.com E-mail: frank@costillalaw.com
Counsel for Appellees *3 TABLE OF CONTENTS TABLE OF CONTENTS ………………………………………………………… 2
INDEX OF AUTHORITIES ……………………………………………………... 3
SUMMARY OF THE ARGUMENT …………………………………………….. 4
ARGUMENT ……………………………………………………………………... 5
INDEX OF AUTHORITIES CASES
Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) ........ 5
Hurlbut v. Gulf Atl. Life Ins., 749 S.W.2d 762, 766 (Tex. 1987) ............................. 5
STATUTES
T EX . C IV . P RAC . & R EM . C ODE § 27.005(c) .............................................................. 6
T EX . C IV . P RAC . & R EM . C ODE §27.005(d) ......................................................... 5,6,7
SUMMARY OF THE ARGUMENT
Contrary to Appellants’ statement in their Reply Brief, this case is certainly about tortious interference with a contract and business disparagement. The
Appellants in this case were not merely “criticizing a decision,” but were
intentionally spreading falsehoods and actively worked toward their stated goal of
ending PDI’s contract with the City of Rio Hondo.
In addition, Appellants attempt to argue in their Reply Brief, for the first time, that they have successfully proved by a preponderance of the evidence their
“affirmative defenses” of “truth” and “substantial truth” under Texas Civil Practice
& Remedies Code § 27.005(d) (Appellants’ Reply Brief at 8). However, truth and
substantial truth are not defenses of either tortious interference with a contract or
business disparagement claims (falsity is an element of PDI’s business
disparagement claim). Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,
170 (Tex. 2003); Hurlbut v. Gulf Atl. Life Ins., 749 S.W.2d 762, 766 (Tex. 1987).
Therefore, PDI objects to the Appellants’ new argument regarding defenses and
reiterates that the only evidence relevant to PDI’s burden is the evidence it
introduced.
ARGUMENT
Truth and Substantial Truth Are Not Defenses to PDI’s Causes of Action
Appellants spend an ample amount of time in their Reply discussing their alleged “defenses” of truth to PDI’s causes of action. They even go so far as to
state that “truth” and “substantial truth” were argued as defenses at both the trial
court and appellate level (Appellants Reply Brief at 8). However, Appellants’
Chapter 27 Motion to Dismiss filed with the trial court, and which is the subject of
this appeal, makes absolutely no mention of any defense. Further, the discussion
made by the Appellants in their Brief discuss truth in the context of the element of
falsity in the Appellee’s cause of action for business disparagement. Indeed, the
word “defense” in reference to an affirmative claim they are making is never
mentioned in their brief.
In order to defeat the Appellee’s clear and specific evidence of its causes of action under Texas Civil Practice & Remedies Code § 27.005(d), Appellants must
prove each essential element of a valid defense by a preponderance of the
evidence. Never at either the trial court level or the appellate level, did Appellants
introduce any evidence to prove by a preponderance of the evidence each essential
element of a valid defense under Section 27.005(d) of the Texas Civil Practice &
Remedies Code. In fact, “Section 27.005(d)” was never mentioned in the Motion
to Dismiss or the Appellants’ Brief. The first time this specific section was
specifically cited was in the Appellants’ Reply Brief. Indeed, any evidence
introduced by the Appellants was done so in an attempt to contradict PDI’s prima
facie evidence of its causes of action of tortious interference with a contract and
business disparagement. However, and as previously argued, the statute states that
a court “may not dismiss a legal action under this section if the party bringing the
legal action establishes by clear and specific evidence a prima facie case for each
essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code §
27.005(c) (emphasis added). It is clear from the language of the statute that PDI is
the only party that had the burden to produce evidence to prove its claims as stated
above. The statute does not say that PDI had to produce evidence to establish each
essential element above and beyond any evidence that contradicts its own.
Therefore, the evidence produced by the Appellants is irrelevant.
As found by the trial court, PDI did establish, by the evidence it introduced, a prima facie case for each essential element of its claims of tortious interference
with a contract and business disparagement claims.
In their Motion, the Appellants never attempted to argue any valid defense to either PDI’s tortious interference of a contract or business disparagement claims.
Therefore, any evidence that was produced by the Appellants could not have
proved a defense by a preponderance of the evidence as required by the statute.
Tex. Civ. Prac. & Rem. Code § 27.005(d).
PRAYER For these reasons and reasons stated in the Appellee’s Response Brief, Appellee Partners Dewatering International, LLC asks that the Court affirm the
trial court’s denial of Appellants Texas Campaign for the Environment and Robin
Schneider’s Chapter 27 Texas Civil Practice and Remedies Code Motion to
Dismiss.
Respectfully submitted, /S/ KEITH W. LAPEZE Keith W. Lapeze Texas Bar No. 24010176 Taylor L. Shipman Texas Bar No. 24079323 601 Sawyer Street, Suite 650 Houston, Texas 77007 Tel.: (713) 739-1010 Fax: (713) 739-1015 E-Mail: keith@lapezejohns.com E-Mail: taylor@lapezejohns.com Frank Costilla State Bar No. 04856500 Law Office of Frank Costilla 5 E. Elizabeth Street Brownsville, Texas 78520 Tel.: (956) 541-4982 Fax: (956) 466-7387 E-Mail: frank@costillalaw.com COUNSEL FOR APPELLEE *9 CERTIFICATE OF COMPLIANCE This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) because it contains 1,132 words (via WORD 2011 count of the entire brief) and the
font size is 14 point, Times New Roman font.
/S/ KEITH W. LAPEZE Keith W. Lapeze CERTIFICATE OF SERVICE On this 13th day of March 2015, I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to the following counsel via
electronic service or e-mail:
Sara Berkeley Churchin
E-mail: schurchin@thompsoncoe.com
Wade Crosnoe
E-mail: wcrosnoe@thompsoncoe.com
Stephanie S. Rojo
E-mail: srojo@thompsoncoe.com
Jessica L. Kirker
E-mail jkirker@thomsoncoe.com
T HOMPSON , C OE , C OUSINS & I RONS , LLP
701 Brazos, Suite 1500
Austin, Texas 78701
Jaime A. Saenz
E-mail: ja.saenz@rcclaw.com
Lecia L. Chaney
E-mail: ll.chaney@rcclaw.com
Colvin, Chaney, Sanez & Rodriguez, LLP
1201 E. Van Buren
Brownsville, Texas 78522-2155
Counsel for Defendants Texas Campaign for the Environment and Robin
Schneider
/S/ KEITH W. LAPEZE Keith W. Lapeze