FIRST AMENDED MOTION FOR SANCTIONS, TO DISQUALIFY SERPE ANDREWS PLLC, NICOLE G. ANDREWS, AND MADISON J. ADDICKS AND ORDER RELEASE OF VIDEO SURVEILLANCE FOOTAGE TO PLAINTIFF
Originally Published: Dec. 25, 2022 | Republished: Dec. 26, 2022
Mark Burke, Plaintiff, files this First Amended Motion for Sanctions, to Disqualify the attorneys and law firm (“HCA Lawyers”) representing KPH – Consolidation Inc., DBA HCA Houston Healthcare Kingwood, a domestic For-Profit Corporation (“HCA”), Defendant and Release of Video Surveillance Footage to Plaintiff as detailed herein;
APPLICABLE LEGAL STANDARDS
See; Cox v. Vanderburg, No. 06-20-00078-CV, at *20 (Tex. App. Sep. 7, 2021) (“”Chapter 10 provides for an award of sanctions when a party shows . . . that the pleading or motion was brought for an improper purpose.” Mobley v. Mobley, 506 S.W.3d 87, 95 (Tex. App.-Texarkana 2016, no pet.) (citing TEX. CIV. PRAC. &REM. CODE ANN. § 10.001; Low, 221 S.W.3d at 614-15). An improper purpose includes “to harass or to cause unnecessary delay or needless increase in the cost of litigation.” TEX. CIV. PRAC. &REM. CODE ANN. § 10.001(1). “Chapter 10 specifies that one of the aims for imposition of sanctions for the filing of frivolous or groundless pleadings is to ‘deter repetition of the conduct or comparable conduct by others similarly situated.'” Mobley, 506 S.W.3d at 95 (quoting TEX. CIV. PRAC. &REM. CODE ANN. § 10.004(b)). “We construe the phrase ‘improper purpose’ as the equivalent of ‘bad faith‘ under Rule 13.” Id. (quoting Dike, 343 S.W.3d at 183-84).”).
Plaintiff provides herein the reasoning these legal standards have been met, and as such should be applied to this motion.
CITING CUMULATIVE EGREGIOUS MISCONDUCT, UNETHICAL BEHAVIOR, CONTEMPT FOR RULES 193.7 AND 194.2, AND A GROUNDLESS COUNTERCLAIM WITH APPLICATION FOR INJUNCTIONS BY DEFENDANT(S), BROUGHT WITH MALICE FOR THE PURPOSE OF HARASSMENT, DELAY, INCREASED COSTS AND IN BAD FAITH
See: Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 372 (Tex. 2014) (“A party is entitled to thoroughly and vigorously litigate a matter. But if issues asserted in pleadings are revealed to be frivolous, and the defending party delays moving for summary judgment and sanctions, the defending party adopts some responsibility for the overall increase in litigation costs. ”)
Plaintiff has immediately and forcefully asserted each time Defendant(s) have obstructed Plaintiff and recorded formal complaints in these proceedings to ensure swift corrective action by the court implementing its inherent authority to do so by requesting dismissal of Defendant(s) counterclaim with prejudice, without the need to file Rule 91a or partial summary judgment motions, to save further delay, unnecessary expense and conserve judicial resources. This can be summarized as follows;
First, is the failure by attorney Nicole Andrews of Serpe Andrews, PLLC, to respond to the waiver of service requested by Plaintiff via email, thus causing unnecessary delay, time and expenses serving Defendant, satisfying Cox above.
Second, is the filing of a knowingly fraudulent Counterclaim with applications for both Temporary and Permanent Injunctions, relying upon false allegations of criminal stalking, harassment as well as tortious interference with contract claims, also satisfying Cox above. Plaintiff responded in finite detail to this fraudulence by Defendant and counsel for Defendant. See; “Plaintiff’s Reply To HCA Houston Healthcare Kingwood’s Response To Plaintiff’s Plea In Abatement” with Exhibits, as accepted and filed on the docket, dated Dec. 20, 2022.
Third, is the revelation that for many years or even decades, Serpe Andrews, PLLC and Nicole Andrews have been violating Rule 193.7, including in this matter and other legal proceedings before Harris County District Courts, satisfying Cox above. This Notice and Request for Relief, including Sanctions, Disqualification and related relief was docketed on Dec. 9, 2022, labeled; “Plaintiff’s Objections and Request for Relief Related to Defendant’s Boilerplate and Unconstitutional Violation of Rule 193.7”.
Fourth is violation of Rule 194.2, as HCA Lawyers fail to provide Plaintiff with mandatory Initial Disclosures within 30 days, and snubbed Plaintiff’s courteous email request related to the same, as discussed herein.
THE [T]REASONS WHY DISQUALIFICATION IS MANDATORY AND SANCTIONS WARRANTED
Plaintiff avers opposing counsel, Serpe Andrews, PLLC, assigned attorneys Nicole G. Andrews, and Madison J. Addicks (“Andrews”, “Addicks” and collectively referred to as “HCA’s Lawyers”) should be disqualified for the following reasons:
The Legal Standards Applied to Disqualify Counsel and Sanction Defendant(s) Jointly Has Been Met by Plaintiff
First, Plaintiff rely upon the court’s chronological docket, including Plaintiff’s Original Petition, subsequent Pleadings, Motions, Replies and Exhibits as an integral part of this motion. In summary, much of the content therein is relevant to this amended motion, which is necessary due to more frivolous claims, counterclaim and baseless arguments by Defendant(s) after the original motion was filed, including Plaintiff’s detailed replies with Exhibits and citations to case law answering the baseless pleadings.
Second, Plaintiff extracts his conclusion from his latest reply, in part;
“Plaintiff has proven that the defamation complained of in the original Counterclaim, which was walked back by Defendants in their reply is a mischievous act.
Plaintiff has proven the torts of harassment, stalking and interference which Defendant(s) now rely upon, a desperate attempt to defeat the current Plea in Abatement, are all soaked in defamation. In short, they are one and the same.
Plaintiff’s website, speech and other baseless claims by Defendant(s) are protected by the First Amendment, and/or Article I, Section 8 of the Texas Constitution, and/or Privilege.
Before this lawsuit commenced, Defendant sought to delay Plaintiff’s direct complaints. This has continued in this lawsuit and it needs to be stopped, without further harassment.
Plaintiff urges this court to apply its inherent powers to swiftly deal with the unethical lawyers for HCA and hold HCA Houston Healthcare Kingwood equally liable for pursuing fraudulent and outrageous claims, including criminal charges that Plaintiff is “repeatedly” threatening Defendant(s) and a myriad of others by operating a website, without a scintilla of evidence. They have crossed the line.”.
A review of this filing provides finite detailed responses to Defendant(s) malicious and bad faith allegations, including citations to case law and attaching exhibits which verify that counsel should be disqualified.
That stated, and in the abundance of caution, Plaintiff reargues the same herein. Plaintiffs will discuss; (i) Waiver of Service Blanked for the Purposes of Delay and Increased Costs to Plaintiff; (ii) Lawyer as a Witness – in great detail – including specifically Nicole Andrews, Madison Addicks and John Serpe; (iii) Rule 193.7 Violations show Contempt for the Rules; (iv) Proof of Retaliation by Defendant(s) including evidence of another Gripe Site and ‘Negative’ Report about HCA; (v) A Baseless yet Malicious Counterclaim with Application for injunctive Relief, both Temporary and Permanent asserting false and fabricated Criminal Acts by Plaintiff without a Scintilla of Evidence, (vi) the continuing abuse by HCA Lawyers including the latest contempt for Texas Rules of Civil Procedure, by violating Rule 194.2 in this case and others before Harris County District Court, and; (vii) concludes with Relief Requested and final Conclusion.
What the Supreme Court Says About Disqualification and Overcoming those Legal Hurdles
The Supreme Court of Texas has said that “`[disqualification is a severe remedy.'” In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990)).
Disqualification is a measure that can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. See id.
Thus, allegations of unethical conduct alone or evidence showing only a remote possibility of a violation of the disciplinary rules is not enough to require disqualification. See id.
The fact that a lawyer simultaneously serves as both an advocate and a witness does not in itself compel disqualification. See id.
Disqualification is only appropriate if the lawyer’s testimony is “necessary to establish an essential fact.”
Tex. Disciplinary R. Prof’l Conduct 3.08(a); see In re Sanders, 153 S.W.3d at 57.
The party requesting disqualification must demonstrate that the opposing lawyer’s dual roles as lawyer and witness will cause the party actual prejudice. See id.
Even if a lawyer is disqualified based on the lawyer-witness rule, the lawyer can still represent the client in that case by performing out-of-court functions in the case, such as drafting pleadings, assisting with pretrial strategy, engaging in settlement negotiations, and assisting with trial strategy. See Anderson Producing Inc., 929 S.W.2d at 422-23. – In re Guidry, 316 S.W.3d 729, 738 (Tex. App. 2010).
That stated, the reasons cited In re Guidry do not fully address the additional issues raised in this motion to disqualify (including pleadings referred to), namely the issue of the appearance of bias as detailed in Plaintiff’s reply (re Plea of Abatement).
For example, in the case cited, if Nicole Andrews was disqualified then she could still serve HCA “off the record” under the lawyer-witness exception, and John Serpe could replace her as counsel in this proceeding. However, with John Serpe, Margaret Layrisson, Serpe Andrews, PLLC, and maybe other lawyers employed or affiliated with Serpe Andrews (e.g., spouses, like Texas lawyer Louis ‘Louie’ Layrisson) all donating to Judge Lauren Reeder’s judicial campaigns, that option must surely be untenable, and disqualification of counsel and the law firm mandatory.
Assuming, for argument, Judge Reeder self-recuses, would that change the situation here? Plaintiff suggests no, it would not alter the requirement to disqualify counsel and the law firm of Serpe Andrews, PLLC considering the cumulative grievances, the nature of the misconduct and repetitive and flagrant Rule violations presented in this case.
Certainly, without the aid of discovery, allegations remain so, but the complaint and allegations therein still legally favor of the Plaintiff at this stage of proceedings, see; Burns v. White, No. 14-20-00646-CV, at *9 (Tex. App. June 28, 2022) (“To determine if the cause of action has a basis in law or fact, we construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the petition.”).
For example, Plaintiff alleges Defendant(s) relationship is more like in-house counsel than external counsel. Plaintiff complains HCA have refused to supply the video surveillance footage, signed their letters in response to Mark Burke’s complaints with John Doe signature(s), and HCA Lawyers have colluded with HCA to withhold evidence from Plaintiff (see Plaintiff’s Original Petition, docketed on Oct. 18, 2022).
Conversely, Plaintiff does have irrefutable evidence to show the contempt for Texas laws and rules of civil procedures by HCA Lawyers, who have consistently and repeatedly violated Rule 193.7 in Harris County District Courts for many years, if not decades and applies to practically all of Serpe Andrews trial attorneys, per their website staff page. And these HCA Lawyers have recently added another contemptible violation to the growing list in this case, adding Rule 194.2 by failing to provide Plaintiff with mandatory Initial Disclosures within 30 days, further delaying Plaintiff’s discovery and attempts to obtain the unlawfully withheld video surveillance footage.
Indeed, as detailed in Plaintiff’s pleadings, HCA Lawyers have refused to communicate at all or refused to answer a direct question when they replied one time to an email communication from pro se Plaintiff in this case, in violation of the Rules of Professional Conduct.
Additionally, the counterclaim and injunctions sought are based on untruths, fraud, made in bad faith and is a joint conspiracy committed by Defendant(s). It was done with malice and in retaliation to the original motion for sanctions, as the timeline and past pleadings by Plaintiff confirms, Defendant(s) counterclaim was filed the very next day.
Given the unique circumstances, the prejudice in-so-far as the cumulative actions and repetitive misconduct, combined with the unlawful violence asserted against Plaintiff by Defendants without a scintilla of evidence, disqualification of both lawyers and the law firm of Serpe Andrews, PLLC, is mandatory.
Sanctionable Conduct Mandates State Bar Referral
See; Acevedo v. Commission For Lawyer Discipline, 131 S.W.3d 99, 107 (Tex. App.—San Antonio 2004, pet. denied) (“The predicate for a disciplinary sanction does not require a showing of intentional wrongdoing, a fraudulent breach of fiduciary duty, or injury to a client; it requires only ‘Professional Misconduct.’ “); Commission for Lawyer Discipline v. A Tex. Attorney, No. 555619, 2015 WL 5130876, at *3 (Tex. Bd. Disp. App., Aug. 27, 2015) (“Harm to the client … is not a consideration in determination of a violation of the Disciplinary Rules of Professional Conduct.”).
For the reasons stated in this first amended motion, Sanctions and referral to “the Bar” (State Bar of Texas) is warranted, and a mandatory duty of an ethical judge. Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 784 (Tex. 2019).
WAIVER OF SERVICE BLANKED
“This court’s phone calls to and messages left with counsel have gone unanswered…Upon remand, the trial court is directed to discharge Grant as appellant’s counsel and appoint him new appellate counsel. – Burns v. State, No. 07-20-00357-CR (Tex. App. June 17, 2021).”.
Here, Plaintiff had identified early on by reviewing the Harris County District Court (“HCDC”) database of lawsuits, HCA Lawyers would make an appearance for Defendant, HCA. Upon investigation by Plaintiff, HCA Lawyers appear to represent HCA in all lawsuits filed in this category of litigation, per HCDC database queries.
Plaintiff wrote to HCA Lawyers at the time of filing this lawsuit, seeking a simple waiver of service. See; Charles v. Dickinson Indep. Sch. Dist., No. 01-20-00215-CV, at *28 (Tex. App. Mar. 29, 2022). HCA Lawyers blanked the email correspondence, directed specifically to Andrews, which was sent to the same email which is now confirmed and listed in Defendants response to this lawsuit, namely firstname.lastname@example.org:
- First email, dated 10, 2022; “Reminder II: Letter in Response to HCA. I have included HCA’s known legal counsel, Ms. Nicole G. Andrews who would be responsible for addressing the Perpetuate Testimony filing in Harris County District Court. Furthermore, I am still waiting for a response from HCA re Spoilation Letter II. I look forward to a response by email.”
- Second email, dated 18, 2022; “The attached Petition was filed into Harris County District Court this afternoon. Case: 202268307. Please advise if you will waive service or not by return.”
- Third email, dated 19, 2022; “See attached re case # 202268307 (referencing; Request for Production and Inspection of HCA Kingwood Hospital Video Surveillance Footage)”
In summary, the above provides evidentiary proof HCA Lawyers maliciously and willfully refused to respond to Plaintiff, for the purpose of delay, in violation of Texas Disciplinary Rules of Professional Conduct, which establishes the minimum standards of conduct for attorneys.
Specifically, by causing Plaintiff to have to go through the court processes, including hiring external process servers in the Dallas area to serve HCA’s corporate agent, created unnecessary delay and expenses. Ultimately, the purpose of Defendant’s non-responsiveness is for the purposes of delay as they are fully aware the Plaintiff primarily seeks to recover the video evidence requested from HCA, who have refused to supply the video or make it available on-site for review by the Plaintiff.
Delay is the confirmed objective by HCA Lawyers
On late Friday afternoon, November 17, 2022, HCA Lawyers filed their response, titled “Defendant HCA Houston Healthcare Kingwood’s Original Answer and Jury Demand”.
It should be noted, Plaintiff’s Original Petition was supplied via email to HCA Lawyers and HCA a month earlier, on October 18, 2022.
HCA’s response is a general denial without reaching the merits of the Plaintiff’s petition. In short, it’s a calculated tactical delay and one which is not allowed. For example, see; In re Facebook, Inc., Consumer Privacy User Profile Litigation (3:18-md-02843), District Court, N.D. California;
“The judge came in blazing hot, announcing at the very beginning of the hearing that he had developed “quite a strong preliminary view” that the company’s conduct [delay] was sanctionable – and that the Gibson Dunn lawyers who signed Facebook’s briefs are just as much to blame as their client.”
Plaintiffs seek $2M in sanctions in their latest sanction filings (Nov. 18, 2022) at the behest of federal Judge Chhabria. Here, this case has already shown the same traits and should be dealt with swiftly by this court.
As admitted by HCA Lawyers, it’s a notice which meets the bare minimum legal requirement to be considered a response. However, unlike the many recent cases the Plaintiff has reviewed involving HCA and HCA Lawyers, it does not include a Defense section, and fails to address any of the substantive arguments raised in Plaintiff’s pleadings.
The Plaintiff is and will be prejudiced, satisfying the “showing of actual prejudice required under Disciplinary Rule 3.08,
See; In re Sanders, 153 S.W.3d 54, 57 (Tex. 2005) (“Disqualification is only appropriate if the lawyer’s testimony is “necessary to establish an essential fact.” Tex. Disciplinary R. Prof’l Conduct 3.08(a). Consequently, the party requesting disqualification must demonstrate that the opposing lawyer’s dual roles as attorney and witness will cause the party actual prejudice. Ayres, 790 S.W.2d at 558.”).
Here, Plaintiff can confirm, HCA Lawyers will be named by Plaintiff as a witness in a future supplement to the Initial Disclosures provided to HCA Lawyers on November 21, 2022. This will include confirmation of the obstruction of justice and unnecessary time and expenses incurred by Plaintiff to serve HCA, as stated above.
HCA Lawyers will also be witnesses on the stand at the scheduled Sanctions hearing on January 30, 2022.
LAWYER AS A WITNESS
Plaintiff will seek to question HCA Lawyers as to their role in maliciously and willfully delaying this time-sensitive case, where Plaintiff is seeking to recover video footage from Kingwood Hospital. The footage will prove key arguments made in Plaintiff’s lawsuit and prove HCA has been untruthful to Plaintiff in their documented responses (see Original Petition; Spoilation letters).
An attorney’s dual role as an advocate and a witness may handicap opposing counsel’s ability to effectively impeach him / [her]. See; Bert Wheeler’s, Inc. v. Ruffino, 666 S.W.2d 510 (Tex. App. 1984).
Lawyer as a Witness I: Nicole G. Andrews
Here, we have Nicole Andrews, who could easily be referred to as in-house General Counsel, for HCA. A review of the Harris County Court Docket when searching Andrews bar number returns 4 pages of paginated results wherein it confirms she represents or represented HCA in many lawsuits, dating as far back as 1999 ( e.g. LAYTON, CANELIA E vs. COLUMBIA/HCA HEALTHCARE CORPORATION (DBA 1/7/1999 280 Civil PERSONAL INJURY (NON-AUTO) 199845521-7).
Plaintiff intends to question Nicole Andrews as a witness, including when she (i) First became aware of this lawsuit, (ii) Why she blanked Plaintiff’s emails, (iii) Did she and/or her law firm provide legal advice to HCA prior to filing the November 18 response, encouraging delaying all responses and refusing to respond or address the complaints submitted by Plaintiff, including the refusal to provide video surveillance footage and acknowledge the Plaintiff’s Spoilation letters, (iv) Did she or her law firm advise HCA to sign letters to plaintiff as a John Doe and to refuse providing the names and addresses of those who ‘investigated’ Plaintiffs letters of complaint (v) As a Partner of Serpe Andrews, PLLC, what percentage of billable work does HCA represent in the company’s annual accounts?, and (vi) related questions pertaining to the lawsuit and her lengthy relationship with HCA, dating back decades. As such, disqualification should be granted.
Plaintiff also notes on the Twitter account @serpeandrews, the HCA Christmas Party (2016) at the corporate offices in Tennessee included Serpe Andrews. See; Serpe Andrews Twitter. Certainly, Plaintiff has never been at a work Christmas party where outside counsel were invited to attend (for example, referring to Deloittes’ Christmas parties Plaintiff attended in the UK).
Nicole Andrews Blanked the Plaintiff’s Sanctions Notice
When Plaintiff submitted the Initial Disclosures via email to the case contacts per the docket in this case, Plaintiff wrote (Nov. 21, 2022 at 12.09 pm):
Subject: INITIAL DISCLOSURES
To; Serpe Andrews, PLLC, Nicole Andrews, Madison Addicks, et al
First, I now enclose the Initial Disclosures and Medical Release document.
Second, is there any reason why I should not file a Motion for Sanctions / Disqualification of your firm and lawyers considering the history of my email communications, which you elected to blank?
In short form, you did not respond to waive service and this resulted in unnecessary delay and expense, in violation of Texas Disciplinary Rules of Professional Conduct, which establishes the minimum standards of conduct for attorneys and which satisfies the “showing of actual prejudice” required under Disciplinary Rule 3.08.
Finally, failure to respond to this email by return will be acted upon without further notice. With prejudice.
At 9.05 pm on Nov. 21, 2022, Nicole Andrews, Partner, responded;
Mr. Burke: We acknowledge receipt of your response to Initial Disclosures. Thank you, Nicole.
Once again, HCA Lawyers decided to blank responding to the serious and time-sensitive question raised in the Plaintiff’s email, thus waiving their opportunity to state their reasons for their unethical acts.
RULE 193.7 VIOLATIONS
On December 9, 2022, “Plaintiff’s Objections and Request for Relief Related to Defendant’s Boilerplate and Unconstitutional Violation of Rule 193.7A RETALIATORY COUNTERCLAIM WITH FRAUDULENT APPLICATION FOR INJUNCTIVE RELIEF” was filed and now incorporated herein as part of the revised motion. It provides more evidence of HCA Lawyers flagrant and repetitive abuse of the Texas Rules of Civil Procedure.
PLEA IN ABATEMENT AND IMPROPER RETALIATORY COUNTERCLAIM SEEKING INJUNCTIVE RELIEF
In “Plaintiff’s Reply To HCA Houston Healthcare Kingwood’s Response To Plaintiff’s Plea In Abatement”, Plaintiff responds to the improper pleading in the form of a frivolous counterclaim in finite detail and is relied upon here as an integral part of the motion.
It should be noted Defendant(s) response to the Plea in Abatement is reaffirming the fraudulent charges of criminal stalking and criminal harassment as presented by Defendant(s) in their retaliatory counterclaim and rejected by Plaintiff.
Expanding on the sanctionable conduct, one needs to review and apply Texas case law and Texas Disciplinary proceedings per the Commission for Lawyer Discipline, see; In re Caballero, 441 S.W.3d 562, 570-71 (Tex. App. 2014).
In relation to the fraudulent criminal stalking and harassment charges raised by Defendant(s) regarding Plaintiff’s own gripe site, located at url KingwoodDr.com, the retaliatory actions in this lawsuit have not been replicated for other gripe sites criticizing Defendant, see ;
HCA vs America Gripe Site
“We are the nurses, technicians, and other care and service workers at HCA-owned hospitals across California, Florida, Kansas, Missouri, Nevada and Texas fighting for safer staffing, quality patient care, and good-paying union jobs at HCA Healthcare.”
The gripe site about-us page details their mission statement, which can be summarized from two sentences therein;
“HCA should not be allowed to put the greed of wealthy executives and shareholders over the needs of patients and frontline workers.
The time is now for HCA to invest in safer staffing, improved working conditions, and fair wages for frontline workers so that we can provide the quality care that our patients deserve.”
HCAvsAmerica.org was registered on: Monday 22nd of February 2021 and is what Plaintiff would term a gripe site targeting HCA Healthcare. Inc., and posting articles in a ‘negative light’ about Defendant.
Plaintiff is unable to locate any litigation by Defendant against the website owner(s) and operators of this gripe site, the union, the nurses, techs and other care related employees of HCA, where similar accusations and criminal charges are pending or injunctions obtained to cease and desist from harassing and stalking HCA Healthcare, et al.
Report: HCA Has a Lengthy History of Fraud and Now Accused of Defrauding the Medicare System
Similarly, Defendant did not pursue litigation for the ‘negative’ report by SEIU, as republished on KingwoodDr.com. Nor has Plaintiff been able to locate any litigation pertaining to the press and media who wrote ‘negative’ articles related to this damning SEUI report.
SEIU-UHW.Org Microsite Publishes Negative Articles About HCA Healthcare, Inc.
Healthcare Trade Union SEIU’s published microsite at url seiu.uhw.org publishes ‘negative articles about HCA Healthcare, Inc.
Other Medical Malpractice Attorneys and Law Firms
Furthermore, Defendant(s) cite to med-mal lawyers in Houston publishing ‘negative’ articles about Defendant and found on Plaintiff’s gripe site; Defendant’s “Original Counterclaim and Application for Temporary Injunction and Permanent Injunction”, Exhibit T and Exhibit U, docketed on Nov. 23, 2022, yet these lawyers have not intervened and sought injunctive relief for harassment, stalking or any other relief. Defendant(s) lack standing to complain on their behalf and include this in their frivolous counterclaim as a reason temporary and permanent injunctions are necessary.
It is patently clear, applying the rules and laws available in Texas, the Defendant(s) acts warrant sanctions for retaliating against Plaintiff in this lawsuit in the most abhorrent manner, taking into consideration they are supposed to be caring people, not inhumane, as evidenced time and time again in this lawsuit. See; Riley v. Empire Service Co., 326 S.W.2d 942, 944 (Tex. Civ. App. 1959) (“The methods employed …remind one of the words of the poet when he said, ‘Man’s inhumanity to man makes countless thousands mourn.‘”).
It is unacceptable and malicious behavior which needs to be abruptly stopped by disqualifying counsel, including the law firm of Serpe Andrews, PLLC, dismissing the counterclaim with prejudice and sanctioning Defendant(s) jointly, as well as all other relief requested, or introduced by this court.
LAWYER AS A WITNESS
Lawyer as a Witness II: Addicks
Madison J. Addicks is a newly employed associate at Serpe Andrews, one who only passed the bar this year. Addicks resume boasts about her university and law degree work related to free speech, First Amendment and pro bono cases and holds a B.A. in Journalism.
Yet she has allowed herself along with Nicole G. Andrews to trample over free speech and First Amendment bedrock principles by signing a baseless counterclaim.
Not only did Defendant(s) submit their retaliatory counterclaim without a scintilla of evidence to this court, but they would once more reaffirm the stalking and harassment charges in the recent response to the Plea in Abatement.
Plaintiff intends to ask Addicks and Andrews on the stand how they could possibly sign these pleadings and not know they were frivolous and brought with malice.
Appropriately, at the scheduled sanctions hearing, Plaintiff will seek to cross examine Andrews, Addicks and her non-party parents regarding the discussions held pertaining to their decision to become adverse witnesses in these proceedings as detailed in the counterclaim and responses thereafter.
As such, Plaintiff avers Defendant(s) counsel cannot possibly remain on this case when they will both be cited as witnesses to discuss this and other claims made in the frivolous counterclaim, including but not limited to testimony regarding Addicks and both of her Texas lawyer parents, who are critical witnesses for Defendant(s) in this malicious and fraudulent counterclaim.
First, Plaintiff will seek to confirm Addicks parents are knowing participants in this fraud, and were made fully aware of the counterclaim and the abhorrent allegations made therein.
Next, Plaintiff desires to learn of any non-frivolous arguments from the non-party parents pertaining to why they did not complain directly or indirectly to Plaintiff via their own independent counsel if they were alarmed and in fear of either or both the Plaintiff and the article on KingwoodDr.com, or why there was no criminal Police report filed.
Another question Plaintiff wishes to ascertain on cross-examination from these two active State Bar of Texas lawyers is under what legal basis did they allow themselves to be added to the counterclaim, and if they have standing to do so without any substantive evidence of any harassment, stalking, harm or wrongdoing by Plaintiff or his gripe site.
Lawyer as a Witness III: John S. Serpe
Plaintiff intends to depose John Salvatore Serpe (“Serpe”), co-founder of Serpe Andrews, PLLC, at the upcoming sanctions hearing. At this hearing, the questioning will include the following (as well as questions similarly asked of Andrews and Addicks);
Initially, Plaintiff will seek affirmation of Serpe’s decades of legal experience, background, and resume. Plaintiff will then focus on the evolution of Serpe Andrews, PLLC, along with how the relationship with defendant HCA has lasted so long, considering the breakup of past partnerships. In short, how did he and co-Partner Nicole Andrews successfully retain HCA’s services over the years and decades.
Also, as stated before, and relevant to this lawsuit, how much billable income does Serpe Andrews obtain from HCA and affiliates annually, and what percentage of total gross income does this represent in their annual accounts.
Additionally, Plaintiff will also seek to clarify any contract or engagement letter details pertaining to this lawsuit, including effective date of said agreement.
Next, Plaintiff will cross-examine Serpe about the litigation Plaintiff describes in his pleadings related to Serpe’s defense of defamation claims in New Mexico federal court and how these correlate to the inapposite counterclaim his law firm continues to frivolously pursue in this case.
Further, Plaintiff will ask Serpe under the penalty of perjury if he is fully aware, as a co-founder of the law firm, all facts and specific details of this case, the counterclaim and the baseless allegations against Plaintiff as filed into this lawsuit by his co-founder and Partner Nicole Andrews, and Associate Madison Addicks.
Moreover, Plaintiff will seek to cross examine Serpe regarding his firms’ Partners and staff, as mentioned in the pleadings along with any outside lawyers and/or individuals named in the pleadings.
If necessary, Plaintiff will address the kind of relationship that he, Serpe Andrews, his client (Defendant HCA) and Partner Margaret Layrisson currently enjoys with the present Judge presiding in this case, based on the substantial and concentrated political donations noted in 2022 and prior years.
Finally, Plaintiff will cross-examine Serpe in greater detail about his knowledge of this lawsuit, including whether he has seen, or watched the video surveillance footage from HCA Kingwood Hospital for the period requested by Plaintiff and most importantly, if the video surveillance footage included the alleged ‘Imposter Doctor’, Dr. Aguilar, or any individual matching the description entering Mark Burke’s room on two consecutive mornings and whether or not that video has been retained in its present form or if he is aware if it has been altered or edited in any way, and; if Serpe Andrews have consulted and advised HCA on matters related to the same.
Without question, John Serpe is a key witness, and will be legally obliged to answer these questions under the penalty of perjury, and without the protection of attorney-client privilege or similar.
VIOLATION OF RULE 194.2 MANDATORY INITIAL DISCLOSURES
In this Case, the Unscrupulous Delay Tactics Keep Coming
Defendant(s) have failed to provide mandatory initial disclosures in the 30 day timeline allowed. See; In re Modern Senior Living, LLC, No. 05-22-00283-CV, at *1 n.1 (Tex. App. June 17, 2022) (“Rule 194.2, “Initial Disclosures,” was amended in 2020, but the changes are effective only for cases filed after January 1, 2021. See Misc. Dkt. No. 20-9153 (Tex. Dec. 23, 2020).”).
After process of service was completed, and “Affidavit of Service – KPH-CONSOLIDATION INC” recorded on the docket on Nov. 2, 2022, a response was also recorded on the docket on Nov. 17, 2022, “Defendant HCA Houston Healthcare Kingwood’s Original Answer and Jury Demand”.
This starts the 30 day clock to provide the Mandatory Initial Disclosures, which would be due on or before Monday, December 19, 2022. HCA Lawyers sent two emails to Plaintiff on the deadline day, referencing a link to Mark Burke’s medical records and a second email with password to access those records. On Thursday, Dec. 22, 2022, Plaintiff emailed HCA Lawyers;
“Top of the morn’ to y’all,
I have received and downloaded the medical records you securely emailed.
The USPS delivery was attempted but failed. I shall collect the same from USPS, but acknowledge you’ve mailed what I assume to be the radiology imaging referred to in Ms. Johnson’s email dated Dec. 19.
Question, is this to be construed as your entire Rule 194 disclosure response? If not, when can I expect to receive your response?
Cheers, Mark Burke”
In what has become standard practice, this email has unsurprisingly been snubbed by HCA Lawyers, with no response received by the time of this filing. It is yet another contemptible Rules Violation by HCA Lawyers, trading as Serpe Andrews, PLLC.
Plaintiff is Not Alone as HCA and HCA Lawyers Defy Compliance with the Rules
The unchecked, contemptuous, and persistent abuses of Texas Rules of Procedure by Defendant(s) for the purpose of delay is clear and obvious. See; Motion to Compel HCA and HCA Lawyers (Serpe Andrews, PLLC) to Provide Initial Disclosures, Including $1,000 in Attorney Fees Requested by Zar Law Firm in Cause No. 2022-66824 – WILLIS, THERESA (INDIVIDUALLY AND AS SURVIVING SPOUSE AND NEXT FRIEND vs. KPH-CONSOLIDATION INC (DBA HCA HOUSTON HEALTHCARE KINGWOOD) (Court 133).
As detailed above, Plaintiff has met the legal requirements to disqualify and sanction Defendant(s). Defendants failure to communicate, waive or deny service upon request by Plaintiff, along with a baseless counterclaim brought to delay and harass, is the epitome of the definition “an improper purpose”. Furthermore, Plaintiff will continue to be “prejudiced” if HCA Lawyers remain on the case.
First, Plaintiff requests this court disqualify HCA Lawyers from representing HCA.
Second, refer Nicole Andrews to the State Bar of Texas for her persistent misconduct.
See; In re Harris, No. 05-05-01080-CV, at *1 (Tex. App. Sep. 13, 2005) (“Courts possess inherent power to discipline an attorney’s behavior. Merrell Dow Pharm., Inc., 953 S.W.2d at 732. The Legislature has also provided a mechanism for courts to sanction counsel who file pleadings presented for an improper purpose or to harass. See id. (citing Tex. Civ. Prac. Rem. Code Ann. § 10.001-.005 (Vernon 2002)). Accordingly, we…in light of the conduct set out above, this Court should not: (1) refer her to the State Bar of Texas disciplinary authority; and (2) impose a monetary penalty as a sanction.”).
Third, due to the unnecessary delay on behalf of the Defendant, Plaintiff seeks non-monetary sanctions, to expedite discovery related to the video surveillance footage, which has been withheld without just cause by HCA Kingwood Hospital as detailed in the Original Petition, subsequent motions and responses. Plaintiff respectfully requests an Order from this Court demanding the full and unedited video be immediately released in unencrypted, .mp4 HD format with audio, and/or made available to Plaintiff in the cloud.
Fourth, Plaintiff requests the court admonish Defendant(s) for refusing to communicate and compel Defendant’s [new] counsel to immediately comply fully with Rule 194.2, so as to prevent further delay.
Fifth, any and all other relief this court may introduce, including addressing the repetitive Rule 193.7 violations by Serpe Andrews, PLLC.
In Delaney v. University of Houston, 835 S.W.2d 56, 65 (Tex. 1992) (“Texas Lawyer’s Creed — A Mandate for Professionalism (adopted November 7, 1989), which states:
“Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.””).
The Texas Supreme Court states;
“Members of the legal profession have agreed to live under rules proclaiming that it is “a lawyer’s duty to uphold legal process,” that “[a] lawyer’s conduct should conform to the requirements of the law,” and that “[a] lawyer should demonstrate respect for the legal system and for those who serve it . . . .”
The continued viability of the rule of law depends on the bench and bar adhering faithfully to these obligations. To do otherwise impugns the integrity of our judicial institutions and undermines the public’s trust in their objectivity and reliability.
As judges and lawyers, we bear a sacred obligation to uphold the rule of law even when the law does not conform to what we believe it should be.
That duty includes withstanding the temptation to bend and abuse legal process to collect an earnestly desired result the law simply does not provide.
Those who underhandedly indulge that temptation dishonor both our profession and the rule of law.”
– In re Texas, No. 15-0139, at *5 (Tex. Apr. 15, 2016).
For the foregoing reasons, the Plaintiff’s Motion should be granted.
RESPECTFULLY submitted this 25th day of December, 2022.
I declare under penalty of perjury that the foregoing is true and correct (Texas Civil Practice & Remedies Code 132.001)