Motion to Continue Hearing with Proposed Order and Exhibits
Originally Published: Jan 27, 2023 | Republished: Jan 27, 2023
PLAINTIFF’s and COUNTER-DEFENDANT’s FIRST MOTION FOR CONTINUANCE OF SANCTIONS HEARING
Mark Burke, Plaintiff and Counter-Defendant (“Plaintiff”), files this First Motion for Continuance of the scheduled Sanctions Hearing against HCA Houston Healthcare Kingwood (“HCA”) and Serpe Andrews, PLLC, Nicole G. Andrews and Madison J. Addicks (“HCA Lawyers”), currently set for Monday, January 30, 2023 for the following reasons:
PENDING REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW (“FOF’)
On January 12, 2023, Plaintiff filed this request[1], after the in-person hearing regarding Defendant’s Temporary Injunction hearing on Monday, January 9, 2023 (denied). Plaintiff was not present at the hearing, as noticed and admitted by the Court on the record.
[1] Plaintiff submitted a formal Request for Findings of Fact and Conclusions of Law, Image no. 105963896, dated Jan. 12, 2023.
ORDER DENYING TEMPORARY INJUNCTION
On the morning of Tuesday, Jan. 10, 2023[1], Plaintiff received a copy of the proposed Order, granting the Temporary Injunction against Mark Burke.
The proposed Order is also transcribed and available on Plaintiff’s website, as the court recognized at the hearing e.g., Plaintiff’s gripe site maintains an ongoing and regularly updated copy of the docket and proceedings in this case along with personal commentary and notes.
The application for a Temporary Injunction would be correctly denied[2].
[1] See; Exhibit “Proposed Order Temporary Injunction, Tue, Jan 10, 10:10 AM, Envelope Number: 71641349”.
[2] Plaintiff has submitted a formal Request for Findings of Fact and Conclusions of Law, Image no. 105963896, dated Jan. 12, 2023.
RETURNING TO THE PENDING FOF
It is Plaintiff’s understanding the court has twenty days to respond to this FOF request.[1]
To-date, the court has not issued the FOF, which is due, by Plaintiff’s calculation, on or before Wednesday, February 1, 2023.
As such, Plaintiff cannot possibly prepare and present his planned evidence and testimony at the scheduled hearing on Monday, January 30, 2023 either with or without the FOF, considering Plaintiff was not a party to proceedings, this hearing and related Counterclaim by HCA and HCA Lawyers is a critical component in Plaintiff’s first amended motion for sanctions and disqualification, and as such, will require a reasonable time to review and consider the same.
[1] Rule 297. TIME TO FILE FINDINGS OF FACT & CONCLUSIONS OF LAWS
“The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall cause a copy of its findings and conclusions to be made to each party in the suit.”.
PLAINTIFF’s EMAIL AND COMMUNICATION WITH THE COURT, HCA AND HCA LAWYERS
Taking this into consideration, Plaintiff emailed the Court on Thursday, at 08:44 hrs and copied HCA Lawyers at 13:02 hrs, requesting new dates in March (so he could confer with opposing counsel) and then formally request a revised hearing from the court with a set agreed date. See; EXHIBIT: “SANCTIONS REQUEST AND NOTICE FOR REVISED HEARING DATES JAN. 26, 2023”.
However, Plaintiff received no reply from either Ms. North for the Court, nor opposing counsel before 5.30pm CST, thwarting Plaintiff’s considered approach and process for all parties, including the Court.
As such, this has triggered amendments to the draft Motion, which was prepared and waiting to be finalized with a new proposed and agreed hearing date.
HCA AND HCA LAWYERS WISH TO PURSUE WITH THE BASELESS COUNTERCLAIM, DESPITE DENIAL OF THE TEMPORARY INJUNCTION
In support of the pending FOF, and as further good reason for resetting the scheduled hearing, HCA and HCA Lawyers relayed to Plaintiff after the injunction was denied, they would continue to seek a trial ‘on the merits’ regarding their baseless, malicious, and retaliatory Counterclaim.
HCA AND HCA LAWYERS THREATENED PLAINTIFF, STATING IF PLAINTIFF DID NOT WITHDRAW HIS SANCTIONS MOTION, THEY WOULD RETALIATE FOR A SECOND TIME
Furthermore, and in support of the pending FOF as good reason for resetting the scheduled hearing, Defendant’s advised Plaintiff that they would be seeking sanctions with request for attorney’s fees and other relief if Plaintiff did not pass on the scheduled hearing (Plaintiff’s sanctions/disqualification hearing).
The email is transcribed below, sent by associate Benjamin ‘Ben’ Hamel for opposing counsel at 14:37 hrs on Thursday, Jan. 19, 2023[1];
“Mr. Burke,
Please let this correspondence serve as a request for conference regarding your motion for sanctions (“Motion”) currently set for oral hearing on January 30, 2023.
Having reviewed the Motion, it is our position that it has been filed in contravention of Texas Civil Practice and Remedies Code 10.001 and Texas Rules of Civil Procedure Rule 13 in that the claims and legal contentions contained therein are not warranted by existing law or by nonfrivolous argument for extension, modification, or reversal of existing law as well as that the Motion was filed for the improper purpose of harassment and to needlessly increase the cost of litigation.
Accordingly, please advise whether you will be withdrawing your Motion and passing the January 30th hearing.
Failing that, please be advised that Defendants intend to seek sanctions 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.
[1] See; EXHIBIT: “EMAIL FROM HCA’s BEN HAMEL DATED JAN 19, 2023”.
Please advise in writing whether you intend to withdraw the Motion and cancel the hearing.
If we do not hear from you by close of business on Friday January 20, 2023, we will assume that you intend to move forward with the Motion and will respond accordingly.”
Plaintiff responded that evening, at 20:17 hrs (EXHIBIT: “RESPONDING TO THREAT BY HCA AND HCA LAWYERS, DATED JAN. 19, 2023”). Plaintiff has never received a response from HCA and HCA Lawyers pertaining to that letter.
As such, Plaintiff expected their retaliatory sanctions motion for attorney’s fees this week. However, as this retaliatory Motion wasn’t filed by HCA and HCA Lawyers at close of business on Wednesday, this caused Plaintiff to set in motion his request for hearing dates and times from the Court on Thursday.
For the record, it should be noted Plaintiff had planned to ask the Court to consolidate HCA’s imminent motion and hearing for Sanctions with Plaintiff’s, at the future date specified and agreed with, in HCA’s notice of hearing. As that has not been forthcoming, Plaintiff needs time to address the further sanctionable conduct by opposing counsel as detailed herein.
BENJAMIN ‘BEN’ HAMEL IS NOT COUNSEL OF RECORD AND NO FORMAL WRITTEN NOTICE WAS PROVIDED TO THE COURT OR PLAINTIFF
Tex. R. Civ. P. 8 (“On the occasion of a party’s first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party. All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.”).
The surprise appearance of non-appointed associate lawyer Mr. Benjamin ‘Ben’ Hamel[1] at the oral hearing on January 9th, 2023 in
[1] Post hearing, Mr. Hamel would email Mark Burke on Jan. 13, 2023 his first official written notice, see EXHIBIT; “EMAIL FROM HCA’s BEN HAMEL, DATED JAN. 13, 2023.”.
replacement of the designated attorney-in-charge, Ms. Nicole G. Andrews wasn’t noticed, as required per Rule 8 and Rule 21a.
As it stands, and based on past behavior, anyone could possibly appear at the scheduled hearing from HCA and HCA Lawyers, asserting they are counsel of record or the attorney-in-charge. This possibility is untenable.
AMENDING PLAINTIFF’s SANCTIONS AND DISQUALIFICATION MOTION FOR A SECOND TIME IS NECESSARY
First, Plaintiff seeks to amend his first amended Sanctions motion[1] to assert his objections to this further violation of the Rules by HCA and HCA Lawyers, not limited to the designation, but also pertaining to Mr. Hamel’s frivolous arguments and filings since his self-appointment as attorney-in-charge.
[1] 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, Dec. 27, 2022, Image no. 105718258.
Second, as discussed above, Plaintiff was waiting for the threatened Sanctions Motion with request for punitive Attorney Fees in retaliation as noticed by Mr. Hamel, so Plaintiff could include same in the amended motion, however, it did not materialize.
“OFF THE RECORD” FACTS
It should be noted, Plaintiff requested a copy of the transcript of these proceedings and is alarmed by the email correspondence[1] between the Court Reporter[2] and Plaintiff, pertaining to the events that took place after this final recorded statement by Judge Reeder. The identified and purported ex
[1] See; EXHIBIT: “EMAIL THREAD BETWEEN MARK BURKE AND NORMA DUARTE, COURT REPORTER, DATED JAN 17, 2023”.
[2] See; Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) (“Because their job requires no discretionary judgment, court reporters are not entitled to immunity as part of the judicial function. See Imbler v. Pachtman, 424 U. S. 409, 423, n. 20. pp. 432-438.”).
parte[1] conversation, “off the record” and after the hearing is of great concern[2], necessitating due process of law, including further investigation and legal consideration by Plaintiff.
Considering the other related concerns Plaintiff has identified in prior pleadings and exhibits, such as mandatory self-recusal by a sitting Judge where there is an appearance of bias, this is also part of the reasoning and argument behind Plaintiff’s request for a new hearing date.
[1] See; Judge Lauren Reeder Court Procedures, Information For Pro-Se Litigants, in part;
“3. Do not attempt to communicate privately with the judge. The term “communication” includes contact by means of phone calls, letters, voice mail messages, faxes, e-mail messages, and direct conversations. You may communicate with the judge if all parties and their attorneys (if they are represented) are present. Any such unilateral contact is called “ex parte” communication and the district judge will not considered it for any information or argument offered in such a manner for any purpose.”.
[2] See; Jacquot v. Coker, No. 14-20-00123-CV, at *21 (Tex. App. Apr. 21, 2022) (“”All parties have a right to a fair trial before an impartial judge.” Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.-Dallas 2005, no pet.). A neutral and detached judge is fundamental to a fair trial. Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (op. on reh’g). Judges should not be an advocate for or an adversary of any party.”).
PLAINTIFF HAS SHOWN GOOD CAUSE AND PRESENTED A TIMELY MOTION
For the reasons stated above, good cause exists to continue the hearing scheduled for Monday, January 30, 2023.
In support, Plaintiff looked to this Court’s settings page for other cases and would reference the following as examples of hearings continued or passed on a Friday before a Monday hearing.
202278191 – CHRISTIAN CONSULTANTS OF TEXAS LLC vs. SPRINGWOOD FOREST TOWNHOMES ASSOCIATION INC (Court 234), TEMPORARY INJUNCTION (MOTION FOR) passed PER JASON LEBOEUF 12/9, set for 12/12/2022 11:30 AM ;
202170768 – BRIDGES, DENISE M vs. THE BANK OF NEW YORK MELLON (Court 234), TEMPORARY INJUNCTION (MOTION FOR) passed PER ROBERT VILT 12/3, set for 12/06/2021 03:00 PM ;
202269870 – AHMED, IHAB S vs. BANKUNITED, N.A. (Court 234), TEMPORARY INJUNCTION (MOTION FOR), passed PER ATTY. VILT; 11/18, set for 11/21/2022 01:00 PM ;
202156678 – PARFFREY, BRYON vs. PHH MORTGAGE CORPORATION (Court 234), TEMPORARY INJUNCTION (MOTION FOR, passed ERICK D 9/10 12:46 PM, set for 9/13/2021 03:00 PM.
Indeed, Texas lawyer Erick DeLaRue is recording as passed a hearing on the same day as the hearing, see; 202270312 – AGUILAR, CHRISTIAN (SUCCESSOR IN INTEREST TO JOSE vs. BANK OF AMERICA N A (Court 234), TEMPORARY RESTRAINING ORDER (MOTION FOR) passed ERICK 10/27, set for 10/27/2022 02:30 PM.
Plaintiff has also witnessed Orders granting trial continuances within a day of the motion; 201849258 – HAWKINS, GREGG vs. SAM’S BOAT INC (Court 234); 202123238 – SNOE, SHIRLEY vs. HARVEY, GREGORY (MD) (Court 234).
As such, this motion is presented for good cause and is timely due to the reasons provided herein.
CONCLUSION
Considering this motion in conjunction with the nature of the intended proceedings, a sanctions and disqualification hearing, combined with the facts and knowledge that HCA and HCA Lawyers non-compliance with this Court rules, Texas Rules of Civil Procedure, Ethical Rules and similar violations and along with the ancillary arguments presented; for these reasons Plaintiff ask the Court to grant this OPPOSED motion, and for other and further relief as this Court deems just.
RESPECTFULLY submitted this 27th day of January, 2023.
I declare under penalty of perjury that the foregoing is true and correct (Texas Civil Practice & Remedies Code 132.001)
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