For the Second Time, This Ain’t No Chapter 74 Health Care Liability Claim

Mark Burke, Plaintiff, files this second amended petition complaining of KPH – Consolidation Inc., DBA HCA Houston Healthcare Kingwood, a domestic For-Profit Corporation, Defendant herein, and respectfully show the court the following;

Parties

Plaintiff is an individual residing in Harris County, Texas. The last 3 numbers of Texas Driving License: 949; and Social Security Number: 162.

Defendant KPH – Consolidation, Inc., DBA HCA Houston Healthcare Kingwood (“HCA”), is a domestic corporation which operates as a Hospital in Harris County, Texas. HCA has been served;

Defendant Nicole Andrews has made an appearance as (lead) counsel for HCA;

Defendant Madison Addicks has made an appearance as counsel for HCA;

Defendant Benjamin Hamel has made an appearance as counsel for HCA (over objection of Plaintiff);

Defendant Jeffery Addicks has been served;

Defendant Sharon Addicks has been served;

Defendant Hon. Lauren Reeder has been made an appearance as District Judge,

and;

Defendant Hon. Susan Brown has been made an appearance as Presiding Judge.

Jurisdiction and Venue

This court has subject-matter jurisdiction over this case under its general jurisdiction as conferred by the Texas Constitution because the amount of the controversy is within the Court’s jurisdictional limits. Venue for this civil action lies in Harris County, Texas, pursuant to Texas Civil Practices and Remedies Code Section 15.002(a)(1) on the basis all or a substantial part of the events or omissions giving rise to the claim occurred.

For the purposes of post-original petition jurisdictional movements, Plaintiff wishes to confirm the following;

Defendants have maintained, and Plaintiff vehemently denied the necessity for an “expert report”, on the wrong assumption that Plaintiff’s lawsuit was purely a Texas Medical Liability Act (“TMLA”) claim which invokes a mandatory expert report.

On that false presumption, any purported requirement for this expert report would fall due on or before March 17, 2023.

Plaintiff also contends there are causes of action (“Counts”) which are separate from any perceived medical negligence claim, and a counterclaim brought in retaliation and bad faith during this litigation.

There is also the matter of the now tolled sanctions hearing, which addresses the bad faith conduct of Defendants and the unethical practices and tactics employed to ensure Plaintiff could not non-suit the case without prejudice should he have elected to do so, by maintaining the Counterclaim despite the Order of Jan. 10, 2023 completely extinguishing their bad faith claims.

Plaintiff relies upon the automatic tolling of this case when Plaintiff filed his Motion to Disqualify, which has tolled any action by the judge in relation to filings and/or scheduled hearings thereafter, including the submission of Defendants’ premature motion to dismiss (and which failed to address their own counterclaim1 despite listing themselves as “Counter-

Plaintiff”), and/or the “equitable tolling doctrine”, which is applicable in this civil action, and allows Plaintiff to toll, or temporarily pause, the running of a statutory deadline if they can demonstrate that they were prevented from meeting the deadline due to circumstances beyond their control.

The Plaintiff can prove the doctrine applies in the instant suit.

First, Plaintiff filed “Opposed First Motion for Extension of Time to Provide Plaintiff’s Expert Report”, Image No. 106641486, docketed Feb. 20, 2023 with the court for an extension of time for one business day to allow for the sanctions hearing on Monday, March 20, 2023 to address the alleged statutory requirement for the expert report (by examining the subpoena’d Police Sergeant responsible for the criminal stalking investigation (“the expert”) during this in-person hearing).

In an order which was signed nearly a month later and just before the scheduled hearing, on March 15, but not uploaded until March 16 on the docket, Image No. 107106189, the court

denied the one day extension of time.

The court was provided 2 dates agreed between the parties for the hearing, one within the expert report deadline and the other, just past the deadline.

The court chose to schedule the hearing at a later date, which was beyond the control of Plaintiff, as discussed in his motion.

Second, the doctrine applies to the Counterclaim, which frivolously extended the litigation and which the Defendants refused to release their claim when asked by Plaintiff, even though their arguments therein have been rejected by the court in an order signed on Jan. 10, 2023.

However, see; Richardson v. Tex. Workforce Comm’n, No. 01-13-00403- CV, at *9 n.1 (Tex. App. June 5, 2014) (“”Ordinarily, an amended pleading adding a new party does not relate back to the original pleading.”).

That stated, Texas Rules of Civil Procedure (“TRCP”) Rule 97 governs the assertion of counterclaims.

Rule 97 of the TRCP allows a party to assert a counterclaim that arises out of the same transaction or occurrence as the opposing party’s claim, even if it was not included in the original pleading.

Under Rule 97(a), a Defendant may plead as a counterclaim any claim that is within the jurisdiction of the court and that the Defendant has against any opposing party.

The counterclaim may include a claim that was not previously asserted, as long as it arises out of the same transaction or occurrence as the opposing party’s claim.

Rule 97(b) allows the plaintiff to reply to the counterclaim within the time provided by the rules.

In short, this Second Amended Petition survives adding the new parties as defined in the complaint.

On Friday March 17, 2023, Plaintiff submitted “Plaintiff’s Motion to Disqualify Judge Lauren Reeder and Verified Declaration, Image No. 107121410, and Plaintiff’s Verified Declaration in Support of Motion to Disqualify Judge Lauren Reeder Image No. 107121411.

The post-administration of the above motion re Judge Reeder has been a statutory absurdity, with the ultimate decisions being made in absence of all jurisdiction by the Administrative and allegedly Presiding Judge Brown. In the latest notice from Judge Brown’s Eleventh Administrative Judicial Region of Texas, there is a hearing set for Wednesday, at 0830 hrs before “Presiding Judge” Brown.

The Plaintiff has provided responses and reasons why Judge Brown was automatically disqualified (mandatory) and yet she has continued to set a hearing in absence of all jurisdiction.

This objection documented, any dispute regarding this matter is now resolved, as Hon. Susan Brown is named as a Defendant to the proceedings, along with Hon. Lauren Reeder.

However, see; Aguilar v. Morales, No. 08-20-00242-CV, at *18 n.13 (Tex. App. Oct. 5, 2022)

(“This is not to say, however, that a judge is automatically disqualified merely because a party names them in their lawsuit. Instead, the court considering the issue must first determine whether the allegations against the judge has any merit.”).

Here, Judge Reeder held ex parte communications with opposing counsel in the absence of Plaintiff. Plaintiff subpoena’d the court reporter and witness to cross-examine her statement to Plaintiff via email that she was a party present at the time of these ex parte discussions.

The court reporter’s attendance would be quashed by Judge Reeder on her own submission, despite a clear and obvious conflict of interest, and over the written objections of Plaintiff. Ex parte communications are not protected by judicial immunity.

See; Thoma, in re, 873 S.W.2d 477, 496 (Tex. 1994) (“ Ex parte communications are “those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. They are barred in order to ensure that `every person who is legally interested in a proceeding [is given the] full right to be heard according to law.'””).

The summary disposition in Thoma could easily apply here as many of the grievances raised and judicially reviewed are mirrored in these proceedings, see;

Thoma, in re, 873 S.W.2d 477, 513 (Tex. 1994) (“we affirm the recommendation of the State Commission on Judicial Conduct and further order that Respondent, John N. Thoma, be removed as Judge of the County Court at Law No. One of Galveston County, Texas, and further, that he be forever barred from holding judicial office”).

And, as stated, fellow Judge Brown’s acts after mandatory disqualification are void for lack of jurisdiction, in violation of statute and an ultra vires act. Her reasoning, if any can be taken from her complete lack of jurisdiction, is absurd. Any related “Order(s)” and “Notice(s)” by Judge Brown are void.

As such, both judges are therefore prevented from presiding over this case in any judicial capacity. In summary, Plaintiff’s docketed filings automatically toll the lawsuit.

When it does restart, this Second Amended Petition (“Complaint”) should be filed as though it was timely filed on Friday, March 17, 2023, and based on this superseding complaint, there is absolutely no doubt, an expert report is not required for a “Stalking Complaint” against HCA Houston Healthcare Kingwood.

(Any criminal report and testimony can be provided by the supoena’d Harris County Police Sergeant at a time to be decided in the future).

The other counts relate to, in the majority, violations during litigation. Furthermore, and as discussed, there are new Defendants and new causes of action2 (“Counts”) as a direct result of this lawsuit as detailed herein.

Agency, Respondeat Superior & Vicarious Liability

Whenever in this petition it is alleged that Defendant did any act or omission, it is meant that Defendant themselves or their agents, officers, servants, employees, and/or representatives did such act or omission, and it was done with the full authorization or ratification of Defendant or done in the normal routine, course and scope of the agency or employment of/by Defendant or their agents, officers, servants, employees and/or representatives.

Discovery Control Plan

Plaintiff respectfully requests this case be governed by Level 3, Texas Rules of Civil Procedure 190.4.

Relevant Facts

Tuesday: Check-in at HCA Kingwood

On Tuesday, 9th August 2022, Plaintiff had made an appointment with a general practicing Doctor to seek advice about why he was feeling very sick.

The Doctor, Huong “Mindy” Hoang, MD of Genesis Medical Group examined and questioned Plaintiff and advised him needed to go to the ER right away to obtain immediate ‘professional’ medical attention.

Early that evening, Plaintiff attended HCA’s Kingwood Hospital Emergency Room at 22999 US Hwy 59 N., Kingwood, TX, 77339 where he was admitted.

Wednesday: The Imposter Doctor’s First Visit

No sooner than Plaintiff arrived at Room 376, on Wednesday, the Imposter Doctor Aguilar appeared for the first time. Dr Aguilar would be around 38 years old, clean shaven, dark hair and built like a stocky U.S. Marine, with broad shoulders leading down to his v-shaped abdomen. He had a heavy Latin American accent and was wearing light blue Doctor scrubs with a name/credentials on his top pocket.

He was armed with a pen and a small notepad, notably no laptop as most Doctors carry.

He introduced himself as Dr. Aguilar, and claimed he was Plaintiff’s lead Doctor during his visit. Plaintiff advised him that he was feeling discomfort, but he ignored this comment.

A short question and answer session would follow and then he performed a quick, hands on body assessment (focusing on the lower stomach). He summarized his notes, during which he made a couple of unbecoming comments for a Doctor, and assured Plaintiff he would return tomorrow, and then left and fast as he arrived.

The “Real Doctors” Arrive

Within 30 minutes, a specialist junior Doctor Mike Wong3 arrived to introduce himself. He was carrying a laptop and after another quick question

and answer assessment, said he would be back in 30 mins to an hour with his ‘boss’, Dr Randy Chung.4 True to his word they came back, with another unknown third individual in tow. During this session, Dr. Chung advised he was the lead, Doctor. After a quick introduction and conversation, the Doctors left and said they would return the following morning after bloodwork was analyzed and other test results were reviewed, including the CT Scans performed at ER around 9.45 pm the prior evening.

Thursday: The Imposter Doctor’s Second Visit

The hospital shift changes at 0700 hours and Imposter Doctor Aguilar arrived around 0730 hours, just as Plaintiff was exiting the restroom.

His opening sentence was “Good morning, Mark, do you remember me?” who replied in the affirmative, “Yes, you’re Dr. Aguilar”, to which he replied, “That’s correct, Doctor Aguilar”.

Plaintiff took a seat at the end of the bed facing the chair which Dr. Aguilar sat on, with the same notepad and pen

and wearing the same attire. Another update along with a Q & A session took place and he left.

Dr Wong and Dr Chung’s Second Visit

Shortly thereafter, Dr. Wong attended his pre-meeting session and that would be followed by Dr. Wong, Dr. Chung., and the unknown staff member returning for an in-depth consultation with Plaintiff.

Friday: The Imposter Doctor’s a ‘No Show’

After the shift change at 0700 hours, however, Dr. Aguilar was notably absent, and he would be a complete no-show that day.

Dr Wong’s Third Visit

This was followed-up by a lengthy delay before Dr. Wong attended Plaintiff that morning.

During this pre-session, Plaintiff questioned why Dr. Aguilar had not attended and to be frank, Dr. Wong looked completely bamboozled and didn’t address the issue.

Dr Wong returned with Dr Chung and two other unknown individuals this day.

During this meeting Plaintiff once again raised the question as to why Dr. Aguilar was a no-show on the important ‘results day’ to which Dr Chung responded with a quizzical look, “Dr. Aguilar?”.

He immediately informed Plaintiff that he was the lead Doctor on Plaintiff’s case, and he was not familiar with that name, Dr. Aguilar and despite further specifics from Plaintiff, said he did not know who this Doctor was but that he was the lead on this case and continued with the consultation.

This immediately alarmed Plaintiff and when they left, Plaintiff instantly performed a Doctor search for Dr. Aguilar and came up blank.

That is highly unusual, as most admitted hospital Doctors are on several local and national platforms like healthgrades.com etc.

It should be noted, attending Friday’s consultation, there was a fourth Doctor, who Plaintiff assumes is Dr Mowla, listed on the care team.

Indeed, it is Dr Mowla who authored the midday Friday report, despite being a bystander (which Plaintiff obtained via the hospital CRM, post- discharge).

Plaintiff questioned why Dr Aguilar was a no show this morning.

They thought Plaintiff was meaning Dr Agrawal, a known Doctor but Plaintiff said no, it is Dr Aguilar, the lead Doctor, and he’s been at Plaintiff’s bedside before Dr Wong on Wednesday and Thursday but now he’s conveniently absent today.

Dr Chung stated he was the lead Doctor, and they were unfamiliar with any Dr Aguilar, but certainly Chung was Plaintiff’s main treating physician. That raised red flags for Plaintiff.

Who is this mysterious Doctor?

Devon Alexander, a Key HCA Executive, Blanks Plaintiff

Plaintiff was visited by Devon Alexander, Director of Community and Public Relations on Friday at Room 376.

She had introduced herself directly one day prior and stated she was responsible for ensuring Plaintiff was comfortable during his stay and would consider any questions or feedback to ensure that remained the case.

Plaintiff advised Ms. Alexander about the Imposter Doctor and could she investigate as the Doctors attending did not know any Dr Aguilar. Promising to do so, she left the Room and by lunchtime, no response forthcoming, he called her office and requested an update.

She said she was working on it.

Plaintiff called again later that Friday afternoon and the call was directed to voicemail.

Plaintiff never heard from her before his self-checkout on Saturday morning.

Saturday: Mark Burke Checked Out of HCA Kingwood

Mark Burke elected to self-checkout at around 0700 hours that morning. On returning home and after checking in on his parents, Plaintiff registered with the hospital CRM to access his newly created medical records.

Plaintiff noted there was a list of physicians and Doctors assigned to Plaintiff.

There was no Dr. Aguilar listed.

After Self-Discharge, What’s Been Going On?

Kingwood Police Station

At around 1330 hours, Plaintiff walked into his local police station to file a report, as he was extremely concerned about his personal safety and well-being, along with the breach of his medical records.

He was advised by the attending officer that it was change of shift and to return at 1500 hours.

Noting the time delay, Plaintiff asked if he needed to provide a written statement and the officer stated that was not necessary. He asked what the issue was.

After hearing the brief summary, the officer said, “Come back at 3pm”.

At 1500 hrs, Plaintiff returned and the same officer stood in front of him and listened to a fuller account of the events.

Plaintiff reaffirmed the most important part of this investigation is to recover the video recordings from the hospital to help identify this Imposter Doctor. Shockingly, the officer refused to take the report because ‘no crime had been committed’.

Plaintiff challenged the officer, asking for his name and badge and advising him that refusing to take a police report is in violation of the law and which point he paused for a moment and said, “Do you want to speak to a supervisor?” to which Plaintiff responded in the affirmative.

During the 10-15 minute wait, Plaintiff googled whether it was a crime to impersonate a Doctor and the response confirmed Plaintiff’s thoughts, it can be a misdemeanor or felony depending on the State and/or facts surrounding the case.

Plaintiff believes this crime is a felony due to the alarming events that an imposter Doctor can walk into a patients room two days straight without being challenged and armed with every medical detail about that patient and his visitation medical exams and notes.

When the supervising officer came out, it didn’t take long for him to comply and stand down, stating Kingwood police office was a traffic (patrol) office and that only a basic report could be completed, which would be sent to Houston for further investigation.

Plaintiff said that’s all he wanted, was a report of the incident.

Subsequently, the refusing officer would then take a copy of Plaintiff’s ID, photocopy it and use that sheet of paper to manually ask questions and make notes.

He then returned with a receipt and case number which was labeled as a “Stalking” complaint. Plaintiff asked him if he was “Officer Brown”, to which he replied ‘Yes”.

Plaintiff thanked him for his time and left.

Spoilation Letter I

On August 14, 2022, Plaintiff sent his first spoilation letter.5

On August 24, 2022, HCA acknowledged Plaintiff’s spoilation letter and stated they would investigate.6

HCA Kingwood’s Contemptuous Response

On September 8, HCA replied7 to Plaintiff’s spoilation letter with a general denial signed by an unknown ‘John Doe’, and which failed to address the main purpose of the letter, the video surveillance footage.

Spoilation Letter II

On September 26, 2022, Plaintiff sent his second spoilation letter to HCA Kingwood.8

Plaintiff’s Reply to HCA Kingwood

On September 30, 2022,  Plaintiff responded9 to HCA’s ‘investigation’ and general denial.

Plaintiff’s Reminder to HCA

On October 10, 2022, Plaintiff emailed10 HCA, copying known counsel for HCA11 in Harris County, Ms. Nicole G. Andrews of Serpe Andrews.

Plaintiff’s Reminder to Houston Police

On October 13, 2022, Plaintiff emailed Houston Police Department

requesting an update to the two-month old complaint.12

The movements thereafter are available on the docket and discussed herein , including the subpoena of the Police Sergeant assigned to the criminal stalking investigation.

After Filing the Lawsuit: Incredulous Events During Litigation

As a result of the well documented events post original complaint, Plaintiff is now suing those parties added to this Second Amended Complaint for the following reasons;

Sanctions and Disqualification of Opposing Counsel and HCA’s Law Firm, trading as Serpe Andrews, PLLC (“HCA Lawyers”)

As well documented on the docket and as the Court is aware, Plaintiff has been subjected to increased time and expense and considerable delays by HCA Lawyers in this matter.

As such, Mark Burke submitted a motion to disqualify and sanction HCA Lawyers.

This stimulated a timely response, for once.

A Baseless and Malicious Counterclaim with Application for Injunctive Relief by HCA and HCA Lawyers (Denied)

In less than 24 hours, HCA Lawyers retaliated with a baseless and malicious counterclaim with applications for injunctive relief in retaliation which would chill Mark Burke’s free speech in violation of both the United States and Texas Constitution.

However, the most scandalous element of the Counterclaim was stating that Mark Burke was criminally ‘harassing and stalking’ a laundry list of people and organizations known to HCA and HCA Lawyers, without a scintilla of evidence – as there could not possibly be any evidence – and where not a single witness would attend the Temporary Injunction hearing on January 9, 2023.

This resulted in several more filings, which included a Plea in Abatement, which Plaintiff avers continued the Temporary Injunction hearing on January 9, 2023 by the operation of law, as per the arguments and case law provided in the Plea in Abatement and subsequent pleadings.

Mark Burke notified the Court he would not be attending the in-person hearing for reasons stated in emails and filings.

The Court proceeded to hold said hearing in his absence, and that of Counsel of record, Nicole Andrews, replaced without notice to the Court or Plaintiff by Benjamin “Ben” Hamel.

He would be accompanied by the second Counsel of record, Madison Addicks, however, per the Court transcript, only Mr. Hamel would engage with the Court and Judge Lauren Reeder.

Post hearing, on the morning of Tuesday, January 10, 2023, HCA Lawyers submitted a Proposed Temporary Injunction to the Court.

Shortly thereafter, the Court provided an Order denying the Temporary Injunction.

The Scheduled March 20, 2023 Sanctions Hearing

In response to the denial of the Temporary Injunction, Plaintiff emailed HCA Lawyers and asked if they would now be terminating their baseless Counterclaim, thus reducing the time and expense to file more motions, pleadings and arguments with the Court.

HCA and HCA Lawyers refused point blank, and forcefully asserted their frivolous arguments.

Not only did HCA refuse to terminate their Counterclaim, Plaintiff received an email13 from HCA Lawyer, Mr. Hamel threatening

more retaliatory conduct if the Plaintiff did not stand down from his motion for sanctions and scheduled hearing (now rescheduled), by seeking monetary damages via a counter-sanctions motion, in part;

“…for your violations of TCPRC Rule 10.001 and TRCP 13 including, but not limited to, reasonable and necessary attorneys fees incurred in responding to your improper and frivolous motion as well as any and all other relief available pursuant to TCPRC 10.002.”.

Plaintiff immediately responded, and suggested that would be ill- considered, providing reasons14 Post hearing, Plaintiff obtained a transcript of the hearing from the Court reporter15, and during email conversations16, it became apparent that there may have been ex-parte conversations after the hearing ended. As a result, a subpoena was

issued for the Court reporter for the upcoming sanctions and disqualification hearing on March 20, 2023, wherein testimony would help in determining what happened once the record and transcript report ended.

Alas, Judge Reeder would quash the subpoena as discussed herein.

Who’s Being Sued, in What Capacity and Under What Legal Theory?

Nicole Andrews, Madison Addicks, and Benjamin ‘Ben’ Hamel in their personal capacity for retaliation, conspiracy, and “intentional infliction of emotional distress” for falsely claiming criminal harassment and stalking against Mark Burke and seeking both temporary and permanent injunctive relief;

Nicole Andrews, Madison Addicks, Benjamin ‘Ben’ Hamel and Serpe Andrews, PLLC in their corporate capacity for retaliation, conspiracy (with HCA and the Addicks), breach of fiduciary duty, and “malicious use of process” (also known as “abuse of process”) , including but not limited to falsely submitting attorney fees for works performed before Plaintiff’s lawsuit was actually filed and later filing a false counterclaim claiming criminal harassment and stalking17 against Mark Burke and seeking both temporary and permanent injunctive relief and ;

Jeffery Addicks and Sharon Addicks (both active Texas lawyers) for conspiracy (with HCA and Serpe Andrews, PLLC), “malicious use of process” (also known as “abuse of process”), infliction of emotional distress, and retaliation, including but not limited to filing to quash subpoenas on meritless legal arguments and attempting to obtain attorney fees on frivolous and baseless arguments and materially increasing the cost of time expended on Plaintiff having to defend this frivolous litigation, including further litigation costs and expenses;

HCA for retaliation, conspiracy, infliction of emotional distress, and “malicious use of process” (also known as “abuse of process”), including but not limited to allowing the lawsuit to transgress into a personal vendetta against Mark Burke via unlawful, devious, and malicious acts with co-conspirators named herein.

District Judge Lauren Reeder is sued for due process violations, including but not limited to ex parte communications with HCA counsel at the in-person January 9, 2023 hearing, and where Plaintiff was not in attendance after his formal dispute over the hearing, as noted and admitted by Judge Reeder during the hearing. HCA counsel and the law firm, Serpe Andrews, PLLC, provided substantial funding to Judge Reeder’s 2022 judicial election campaign and whilst money donations in political campaigns are allowed, the fact she held ex parte communications off the record is clearly not allowed.

Administrative Judge Susan Brown is sued to prevent future injuries resulting from her due process violations and continued ultra vires acts, including her void judgments, notice(s) of future hearings, and lack of jurisdiction as outlined above and in Plaintiff’s detailed letters submitted in response to these unlawful and void acts by Judge Brown.

Count I Stalking

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein. Texas has a statutory civil cause of action for stalking; Long v. State, 931 S.W.2d 285, 292 (Tex. Crim. App. 1996); updated in 1997, see; TEX.CIV.PRAC. REM.CODE § 85, Title 4, Liability in Tort, Chapter 85, Liability in Stalking.

As discussed in this complaint, Plaintiff has been stalked by an unknown person, impersonating himself as a Doctor and who put his hands on Plaintiff in doing so.

Plaintiff was stalked during his stay at HCA Kingwood Hospital and to this very day, Plaintiff is constantly watching his surroundings when outside of his main residence, living in constant fear for his personal safety and those closest to him, by this unknown and unidentified threat.

Mark Burke is very aware the personal threat to Plaintiff and potentially those closest to him by this unknown person whilst he remains at-large.

Despite reaching out to HCA Houston Healthcare Kingwood many times, they have treated Plaintiff’s complaint(s) by delay, avoidance, lies, and contempt.

The one ‘investigation’ HCA claim to have conducted in a letter of denial of any wrongdoing, is signed by an unnamed John Doe.

It is without doubt a fraud on the Plaintiff. If, as HCA stated, nobody was seen entering or leaving Plaintiff’s Room, then they would not be hiding the video surveillance and would be sharing that video with Plaintiff.

HCA would have willingly provided Plaintiff the names and personal addresses of the staff involved in the investigation so Mark Burke could submit his planned Perpetuate Testimony civil action if they were confident in their own statements.

Instead, they refused to discuss the matter which resulted in this civil litigation by Plaintiff, in a search for the truth.

In conclusion, HCA’s response to the stalking of Plaintiff by Imposter Doctor Aguilar is based on malicious mischaracterizations, deception and lies.

The stalking threat to Plaintiff and those closest to him is both real and ongoing.

Count II, and III

Conspiracy and Breach of Fiduciary Duty Conspiracy

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

“The actions of one member in a conspiracy might support a finding of liability as to all of the members.

See Ins. Co. of N. Am. v. Morris , 981 S.W.2d 667, 675 (Tex. 1998).

But even where a conspiracy is established, wrongful acts by one member of the conspiracy that occurred before the agreement creating the conspiracy do not simply carry forward, tack on to the conspiracy, and support liability for each member of the conspiracy as to the prior acts.

See Swinnea , 318 S.W.3d at 881.

Rather, for conspirators to have individual liability as a result of the conspiracy, the actions agreed to by the conspirators must cause the damages claimed.”

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017).

In this lawsuit, we have HCA lawyers Benjamin Hamel, Madison Addicks and Nicole Andrews conspiring, as purported legal counsel with HCA, and knowingly acting with malice, which includes deceit, deception, and withholding evidence subject to a criminal inquiry by Houston Police Department.

It has been recently admitted by HCA’s own billing statements, that Nicole Andrews was advising HCA on Plaintiff’s direct complaints (Spoilation letters).

And despite this fact, Nicole Andrews refused to waive service when requested by Plaintiff.

It is without doubt, the conspirators have both corporate and individual liability resulting from this conspiracy, as the actions must have been agreed by all the conspirators in order to submit a general denial as their Reply, an outrageous Counterclaim and Applications for Injunctions on the record, which effectively denies any conspiracy or liability to Plaintiff.

Patently, discovery is necessary at this stage of proceedings to ultimately prove all elements of the conspiracy, which relies upon, in the majority, obtaining the engagement letter between HCA and HCA lawyers pertinent to this lawsuit representation by Addicks and Andrews, investigating the ‘lawyer as a witness’ sanctions further by cross-examination, as well as recovery of the video surveillance footage unlawfully withheld by Defendant or, in the alternative, confirmation the video surveillance footage in possession of the Defendant has been intentionally spoiled or similar, in direct contempt of the Spoilation letters provided by Plaintiff to Defendant.

Breach of Fiduciary Duty

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

Under Texas law, a Defendant can be held jointly and severally liable for his or her knowing participation in another’s breach of fiduciary duty, even if Defendant doesn’t owe its own fiduciary duty to the Plaintiff.

Texas recognizes the tort of “knowing participation in a breach of fiduciary duty.”

In this tort, a person who knowingly participates in another’s breach of fiduciary duty can be held jointly and severally liable for the damages caused by the breach, even if the person does not owe a fiduciary duty to the Plaintiff.

This means that the Plaintiff can recover the full amount of damages from any one of the Defendants who participated in the breach, and the Defendant who pays can then seek contribution from the other Defendants who were also liable.

It’s important to note that the Plaintiff must prove that the Defendant knew of the breach of fiduciary duty and knowingly participated in it, rather than simply being a bystander or innocent participant. The Defendant’s level of knowledge and involvement will be a key factor in determining liability.

Count IV Retaliation

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

The underlying strategy in this case by the named Defendants has been to delay, followed by retaliation by filing malicious, outrageous, baseless and frivolous allegations and filings.

And despite the court rejecting their allegations after an in-person hearing on the matter, they continued to threaten and retaliate against Plaintiff, all of which has been documented herein and/or on the court’s docket.

Count V

Due Process Violations District Judge Lauren Reeder

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

Ex parte communications in this case are a violation of Plaintiff’s right to due process, which is guaranteed by the United States Constitution. Due process requires that all parties to a legal proceeding have an opportunity to be heard and to present evidence in support of their case.

If a judge engages in ex parte communications, it may give one party an unfair advantage over the other.

Judicial misconduct: Ex parte communications are generally considered to be a form of judicial misconduct. As stated earlier, Judge Reeder’s misconduct should be grounds for disqualification, disciplinary action, and/or removal from the bench.

Bias or prejudice: If a judge engages in ex parte communications as witnessed here, it is clearly direct and uncontroverted evidence of bias and prejudice against Plaintiff in this case.

This bias and prejudice mandates Judge Reeder’s disqualification.

Violation of ethical rules: Judges are held to high ethical standards and are required to follow certain rules of conduct. When, as here, a judge engages in ex parte communications, they are in direct contempt and violation of these rules and should be subject to disciplinary action.

The Texas Constitution refers to “due process” as the “due course of law.” Section 19 of Article I of the Texas Constitution states:

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”.

This language is similar to the due process clause found in the U.S. Constitution’s Fifth and Fourteenth Amendments, which prohibits the government from depriving any person of life, liberty, or property without due process of law.

The concept of “due course of law” in Texas has been interpreted by courts to require that legal proceedings must be fair, impartial, and follow established procedures. It guarantees that individuals have a right to notice of any legal actions against them, the opportunity to be heard, the right to legal counsel, and the right to a fair and impartial decision-maker.

In summary, “due course of law” in the Texas Constitution serves as a protection against arbitrary and unfair government actions and provides Texans with similar protections to those guaranteed by the U.S. Constitution’s due process clause.

Plaintiff’s Motion to Disqualify Judge Lauren Reeder and Verified Declaration and Plaintiff’s Verified Declaration in Support of Motion to Disqualify Judge Lauren Reeder provides the necessary background and arguments in support of the due process violations in this case, and why she should be disqualified and disciplined.

Judge Susan Brown

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

Judge Brown is in violation of due course of law in this case as discussed herein.

Count VI Ultra Vires

Eleventh Administrative Judicial Region of Texas Judge Susan Brown

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

Ultra Vires acts and orders signed as a judge while disqualified are void.

Judge Brown’s lack of jurisdiction is clear and obvious. Her Order(s) and Notice(s) are void, a nullity in law.

Despite her own and ongoing actions, which infers jurisdiction, Plaintiff asserts she cannot sit as the Presiding Judge in the pending matter, the Motion to Disqualify Judge Lauren Reeder.

The Plaintiff refers to communications regarding this topic available from the court and on the docket for the underlying civil action, and which Plaintiff asks the court to take judicial notice.

Count VII

Malicious Use of Process aka Abuse of Process

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

“The elements of abuse of process are (1) an illegal, improper, or perverted use of the process, neither warranted nor authorized by the process, (2) an ulterior motive or purpose in exercising such use, and (3) damages as a result of the illegal act. Bukaty, 248 S.W.3d at 897. ” LaCore Enters. v. Angles, No. 05-21-00798-CV, at *29 (Tex. App. Mar. 23, 2023).

All elements apply in this case as described in this complaint and supporting docketed pleadings, motions, and exhibits.

Count VII

Intentional Infliction of Emotional Distress

Plaintiff re-alleges and incorporates each allegation set forth above as if fully written herein.

Intentional Infliction of Emotional Distress. The elements of intentional infliction of emotional distress are that (1) the Defendants acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the Defendants caused the plaintiff emotional distress, and (4) the emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). All elements apply in this case as described in this complaint and supporting docketed pleadings, motions and exhibits.

Prayer & Relief

Based on the foregoing Plaintiff and Counter-Defendant seeks the following relief: An award of actual and consequential damages within the jurisdictional limits of this Court; An award of exemplary damages and/or punitive damages for all claims for which such damages are authorized; An award of pre-and-post-judgment interest as permitted by law; and such other relief the Court may deem just, proper and /or necessary under the circumstances.

Jury Trial

Plaintiff demands a jury trial.

RESPECTFULLY submitted this 17th day of April, 2023. I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code.

Mark Burke
State of Texas / Pro Se

46 Kingwood Greens Dr Kingwood, Texas 77339
Phone Number: (281) 812-9591
Fax: (866) 705-0576
Email: browserweb@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing First Amended Petition and Jury Demand has been forwarded to all named Defendants by electronic filing notification and/or electronic mail and/or facsimile and/or certified mail, return receipt requested, this the 17th day of April, 2023.

Mark Burke
State of Texas / Pro Se