Defendants Harry A. and Dottie Harrison (the Harrisons) reply to plaintiffs’ response to defendants’ motion for no-evidence summary judgment and in further support of the Court granting their motion respectfully show the Court as follows:
REFUTING
PLAINTIFFS’ CLAIMS & ARGUMENTS
1. The Harrisons object to Dr. Nichols self-serving affidavit and ask that it be struck. Dr. Nichols merely re-stating his claims and allegations is no proof whatsoever. Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d at 381.
2. Moreover, Dr. Nichols has already called his “affidavits” into question to this Court, and in this one Dr. Nichols unequivocally makes a sworn, false statement. Among other self-serving statements in Dr. Nichols’ “affidavit,” in the second full paragraph of page two, Dr. Nichols makes the conclusory (and false) sworn statement that “Mr. Harrison circled the word “alcoholism” on a form. As evidence that Dr. Nichols’ sworn testimony in this affidavit is false regarding “each and every statement made herein is within my personal knowledge and is true and correct,” the Harrisons attach an excerpt from Dr. Nichols’ deposition. The Harrisons direct the Court’s attention to page 96, beginning on line 19:
A:…He circled it on my questionnaire. I’m not going to say anything different. I know what he told me.
Q: Well, you say that he circled it on your questionnaire.
A: I know he circled it.
Q: Did you see him circle it?
A. No. But I saw the questionnaire in the chart – that was filed in the chart -
3. Dr. Nichols swore in his affidavit that Mr. Harrison circled “alcoholism,” but Dr. Nichols has also admitted to the contrary – also under oath in his deposition – that he did not see Mr. Harrison circle “alcoholism.” This is clear proof that Dr. Nichols has no personal knowledge of Mr. Harrison circling the word “alcoholism,” which belies Dr. Nichols’ sworn statement in his affidavit that “each and every statement made herein is within my personal knowledge and is true and correct.” See deposition transcript excerpt of Dr. Nichols attached hereto as Exhibit “A” and incorporated herein by reference. And Dr. Nichols is suing the Harrisons for libel?
4. Because of the proven falsehood Dr. Nichols made in his affidavit, the Harrisons request that the affidavit be struck and that the Court accept no more affidavits from Dr. Nichols because he has proven that his testimony is not trustworthy.
5. In a no-evidence summary judgment, the nonmovant is supposed to offer proof of their claims. When necessary to establish a fact issue, the nonmovant must present summary judgment evidence. Ethridge v. Hamilton County Elec. Co-op. Ass'n, 995 S.W.2d 292, Tex.App.-Waco,1999. Plaintiffs have offered no proof whatsoever, only their same tired, false allegations that have no facts or proof to back them up.
6. The Harrisons have never denied making the statements that plaintiffs complain about, but the Harrisons aver that they have said nothing but the truth. The Harrisons have given proof in many instances throughout this case that their statements are true. Plaintiffs have given no proof that any of the Harrisons’ statements are false. Besides being true, any statements made by the Harrisons with regard to this matter are protected under Article 1, Section 8 of the Texas Constitution regarding freedom of speech.
7. Besides making nothing but true statements, Dottie Harrison has privilege with reference to the Texas State Board of Medical examiners, and the law says a person who complains to the board is immune from civil liability. (Occupations Code Chapter 160.010.) The law doesn’t specify the person has to be a patient. Dottie Harrison is the partner in the marriage who handles the business aspects; therefore, it was customary that she handled the task of attempting to obtain health insurance for her husband Harry and for writing the Medical Board and others trying to rectify problems caused by Dr. Nichols.
8. Dr. Nichols’ affidavit does not prove he suffered any damages, nor does his inclusion of his “financial records” prove any loss. The Harrisons request that in the event the Court does not strike Dr. Nichols’ entire affidavit, that the Court strike the portion that allegedly refers to his “losses.”
(a) Dr. Nichols states that in June of 2002, his gross income decreased by $95,619.00, which simply doesn’t compute.
(b) Even if Dr. Nichols had suffered a loss, he would still have to prove that the statements of the Harrisons were (1) false and (2) contributed in any way to a loss. Dr. Nichols has given no proof of either.
(c) Going by these “financial records” alone, the year end total for 2001 shows $x,xxx,xxx.xx. The year end total for 2002 shows $x,xxx,xxx.xx, for an increase of $378,072.21. The Harrisons already addressed this fact in their motion for no-evidence summary judgment, which plaintiffs again ignored in their response. If indeed Ms. Harrison’s web page which mentions Dr. Nichols’ name has any effect on Dr. Nichols’ business, she should be charging him advertising fees for his increase in business.
(d) When the Harrisons first began asking for financial records in November of 2002 in their requests for production to Dr. Nichols, they asked for records beginning in April of 2001. When, in late January of 2002, after motions to compel and motions for sanctions by the Harrisons, Dr. Nichols finally produced these so-called “financial records,” he began with November 2001, not April 2001. Evidently those earlier records that Dr. Nichols refused to produce contain information that he doesn’t want anyone to see.
9. Plaintiffs objected to the affidavit of Colin Cody, one reason being that Mr. Cody referred to “the attached documents” without attaching the documents. The Harrisons respond by stating that Dr. Nichols’ “financial records” were attached to Mr. Cody’s affidavit; however, when the Harrisons filed Mr. Cody’s affidavit with the Court, they removed the “financial records” because plaintiffs had professed such grave concern about having any information released regarding Dr. Nichols’ “financial records.” The Harrisons already explained this in their motion for no-evidence summary judgment, but counsel chose to argue the point as if it had not already been discussed. Regarding the “financial records,” in fact, counsel had insisted on getting a protective order (which was signed by Judge Kennedy) to prevent the Harrisons from releasing any information about said records. After professing all their grave concern, plaintiffs then proceeded to file the “financial records” with the court, thus making them a matter of public record.
(a) Plaintiffs argue that Mr. Cody’s affidavit is “not direct in refuting evidence that a loss has occurred.” Quoting from Mr. Cody’s affidavit: “These documents are not proof of loss.” There isn’t a more unequivocal statement than that.
(b) Plaintiffs argue that somehow the form of Mr. Cody’s affidavit is incorrect, again attempting to cite a case to “prove” their point, which is simply an attempt at continued legal cunning and trickery. Contrary to plaintiffs’ claim, the affidavit of Mr. Cody is in fact “clear, positive and direct, otherwise credible and free from contradictions and inconsistencies.”
10. On pages 7 through 10 of plaintiffs’ response, Objections 5 through 16, plaintiffs cut-and-pasted verbatim their objections to the affidavit of Harry Harrison that they already used in another motion, which was “Plaintiffs’ Reply to Defendant/Counter-Plaintiffs’ Response to Motion for Summary Judgment.” Rather than add to the glut of paper created by plaintiffs in this case, the Harrisons direct the Court to their own final response in that flurry of documents with regard to plaintiffs’ motion for summary judgment. (That was the motion that counsel failed to get scheduled on March 24, 2003, and then erroneously thought they had “moved” it to March 31st.) In their final response, the Harrisons refute each of plaintiffs objections to Mr. Harrison’s affidavit and will do the Court the favor of not repeating them in this document.
11. Plaintiffs object to the affidavit of Pamela Erikson. The affidavit is as clear, positive, and direct as possible under the circumstances that plaintiffs have refused to allow Ms. Erikson access to examine the original form which has the circling of the word “alcoholism.” Examining the original would allow Ms. Erikson to make an even more definite determination. If plaintiffs really thought Mr. Harrison had circled the word, they would be eager for Ms. Erikson to examine the original. Plaintiffs are clearly afraid to allow Ms. Erikson to examine the original. Plaintiffs also refuse to produce a report from their own Forensic Document Examiner, who the Harrisons suspect has not been given access to the document either. When Dr. Nichols circled, or caused to be circled, the word “alcoholism” on the form filled out by Mr. Harrison, Dr. Nichols did not know that Mr. Harrison is left-handed. The “circling” is clearly inconsistent with the manner in which other words are circled on the same form, which fact is obvious even to the average person, never mind an expert.
12. Plaintiffs’ objection 21, alleging that Dottie Harrison’s affidavit was not attached to the Harrisons’ motion for no-evidence summary judgment. The Harrisons respond by saying that there is a pattern of counsel misplacing documents, filing late responses and so on, and then attempting to put the blame on someone else. Dottie Harrison’s affidavit was attached to all copies of the motion, including the copy to counsel for plaintiffs.
13. Plaintiffs’ paragraph 10, “Offensive Use Doctrine,” is still another example of how counsel tells outright lies in an attempt to obfuscate the issues. Again, the Harrisons apologize to the Court for the Court’s waste of time with this issue, but the Harrisons have no choice but to respond to lies. In this example, (which has already been discussed in court documents more than once) plaintiffs attach a portion of Dottie Harrison’s first deposition, claiming that “Dottie Harrison refused to answer appropriate questions to explain the basis of her and her husband’s counterclaims and defenses to plaintiffs’ lawsuit.” This statement is an outright lie. The excerpts from this first deposition reflect Ms. Harrison’s answers when the Harrisons had planned to keep Mr. Harrison’s medical records privileged and reviewed by the Court in camera. In Ms. Harrison’s second deposition, which plaintiffs conveniently ignore in order to perpetrate their lie, Ms. Harrison clearly tells counsel for plaintiff the basis for her statements. The Harrisons have no choice but to attach a portion of Ms. Harrison’s second deposition in order to refute these lies.
14. Attached as Exhibit “B” and incorporated herein by reference are pages 8 through 14 of Ms. Harrison’s second deposition, in which she clearly tells Mr. Killeen the basis for her statements. In fact, Ms. Harrison told Mr. Killeen more than he wanted to hear, despite counsel’s accusation of “defendants bald refusal to answer relevant and appropriate questions at deposition…”
15. The Harrisons have no choice but to refute (again) counsel’s lie at the bottom of page 5 of their response, namely, “The last depositions required Court order and supervision by Judge Katie Kennedy. Unfortunately, Judge Kennedy left just before Dottie Harrison decided to refuse to answer questions.” Counsel has told this same lie before, and the Harrisons have refuted it before. The truth is that the Harrisons volunteered and were eager to have a judge nearby during their second depositions, with the thought that Mr. Killeen might be marginally less abusive than he had been during their first depositions. The Harrisons request that the Court admonish counsel for plaintiffs to refrain from lying in the future, and thus wasting everyone’s time and recourses by forcing the Harrisons to refute the lies time after time.
16. The Harrisons also ask the court to admonish plaintiffs and counsel for plaintiffs for copying verbatim from O’Connor’s and citing cases without actually reading them to determine whether they are relevant. In their paragraph 14 of their response, plaintiffs mention “asserting a different damage amount” in an amended petition, and state that “in accordance with Sosa v. Central Power & Light, 909 S.W.2d 893 (Tex. 1995), Defendants’ motion should be denied.” In fact, Sosa refers to “a party should file an amended petition or answer as soon as it becomes aware it is necessary, and no later than seven days before the hearing” (for a summary judgment). The Harrisons infer that plaintiffs are engaging in more trickery, that is by changing their alleged “damage amount,” attempting to circumvent the Harrisons’ motion for no-evidence summary judgment.
17. Plaintiffs also object to the affidavits the Harrisons included with their motion for no evidence summary judgment, stating that the inclusion of evidence was not proper in a no-evidence summary judgment – just another effort to obfuscate and confuse the issue. To the contrary, the rules state that “a motion for no-evidence summary judgment does not require supporting evidence.
18. In attempts to obscure the fact that plaintiffs don’t have a case and never have had a case, plaintiffs and counsel for plaintiffs engage in one desperate act after another, from trickery, violations of the code of ethics for lawyers, violations of the Texas Rules of Civil Procedure, and outright lying and criminal acts.
JUDICIAL
NOTICE
19. The Harrisons respectfully request that the Court take judicial notice of the Court’s file and all the documents in the Court’s file with regard to this cause, and thus take judicial notice of all of the lies, breaches of rules and ethics, and criminal activity of plaintiffs and counsel for plaintiffs.
CONCLUSION
20 Defendants are entitled to summary judgment for the reasons asserted in their motion for no-evidence summary judgment and this reply to plaintiffs’ response because plaintiffs have no evidence to support the required elements with regard to the causes of action of defamation, nor do plaintiffs have evidence to support any claim of business disparagement. Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. See Tex.R. Civ. P. 166a, Notes and Comments; Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex.App.--Amarillo 1999, no writ). Plaintiffs have raised no genuine fact issue on the challenged elements in the Harrisons’ motion for no-evidence summary judgment.
PRAYER
21. For these reasons, defendants Harry and
Dottie Harrison ask the Court to sign the orders included with their original
request for no-evidence summary judgment, granting their request for summary
judgment and entering a take nothing judgment against plaintiffs on their
claims. Defendants Harry and Dottie Harrison also request all other relief to
which they are entitled
Respectfully submitted,
Harry A. Harrison, defendant
Dottie Harrison, defendant
I hereby certify that a true and
correct copy of the above and foregoing reply to plaintiffs’ response to
defendants’ motion for no evidence summary judgment has been filed and served
in accordance with Rule 21a of the Texas Rules of Civil Procedure via certified
mail, return receipt requested to all known counsel of record as indicated
below, on this 11th day of April, 2003.
Robert J. Killeen, Jr. Certified Mail Receipt 7002 3150 0003 2215 5305
Killeen & Wheat, PLC
8 Greenway Plaza, Suite 614
Houston,
TX 77046
Dottie Harrison, defendant
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