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FILED
DALLAS COUNTY
12/12/2019 6:11 AM
FELICIA PITRE
DISTRICT CLERK
Miranda Lynch
CAUSE NO. DC—18-05517
JASON MARTINEZ § IN THE DISTRICT COURT
PLAINTIFF §
§
§
V- §
§
§
JOHN SHERMAN §
Defendant. § OF DALLAS COUNTY, TEXAS
PLAINTIFF’S FIRST AMENDED RESPONSE TO DEFENDANT’S
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Plaintiff, Jason Martinez, asks the Court to deny defendant John Sherman’s no evidence motion
for summary judgment.
INTRODUCTION
1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious
Interference with Existing Contract and Malicious Criminal Prosecution.
2. Defendant answered asserting a general denial and the following affirmative defenses and
specific denials; plaintiff’s claims are completely or partially barred as the damages, if any, were
caused by his own actions 0r omissions, plaintiff’s claims are precluded by the Texas Citizens
Participation Act (“TCPA”), plaintiff fails to state a claim upon which relief can be granted, n0 act
or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained.
3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’ s response t0
this motion, plaintiff included/attached 26 pages of documents/evidence, attached t0 this response as
Plaintiff’s Exhibit A. Defendant’s Motion was denied on August 21, 2018, see this Court’s Order
Attached as Exhibit B.
PLAINTIFF’S 1“. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 1
BACKGROUND
BACKGROUND
4.
4. On April
April 7,
7, 2016,
2016, Plaintiff
Plaintiff and Elan
Elan Zonis
Zonis (“Zonis”)
(“Zonis”) entered
entered into
into a
a LLC
membership agreement in
in which they
they were 50/50
50/50 equity
equity members in
in Bavarian
Bavarian AS, LLC d/b/a
d/b/a
Bavarian Auto Sports
Sports (“Bavarian”).
(“Bavarian”). Plaintiff
Plaintiff was named as
as President
President for
for this
this business
business and was
the
the day
day to
to day
day manager of
of this
this auto
auto dealership.
dealership. Bavarian
Bavarian began business
business and in
in November, 2016
Plaintiff
Plaintiff and Zonis
Zonis began discussions
discussions of
of aa potential
potential buyout
buyout of
of Zonis.
Zonis. (see
(see plaintiff’s
plaintiff’ s Exhibit
Exhibit A,
A,
pgs. 8, 13-17.)
pgs.8, 13-17.)
5.
5. At that
that same time
time Plaintiff
Plaintiff had discussions
discussions with
with Defendant concerning
concerning Defendant
contributing
contributing $350,000.00
$350,000.00 into
into Bavarian’s operating
operating account,
account, in
in return
return Defendant would be
be given
given
aa 15%
15% equity
equity share
share of
of Bavarian.
Bavarian. It
It was further
further agreed
agreed that
that after
after this
this contribution
contribution by
by Defendant,
Defendant,
Zonis
Zonis would be
be bought out
out of
of his
his membership share
share of
of Bavarian,
Bavarian, resulting
resulting in
in Plaintiff
Plaintiff having a
a
85% membership share
share and defendant
defendant aa 15%
15% membership share
share in
in Bavarian.
Bavarian. However,
Defendant failed
failed to
to deposit
deposit the
the agreed
agreed $350,000.00
$350,000.00 into
into the
the operating
operating bank account
account of
of Bavarian,
Bavarian,
Defendant only
only deposited
deposited $150,000.00
$150,000.00 into
into the
the Bavarian operating
operating account,
account, and deposited
deposited the
the
other
other $200,000.00
$200,000.00 into
into Defendant’s personal
personal account.(see
account.(see affidavit
affidavit of
of Elan
Elan Zonis
Zonis
in
in plaintiff’s
plaintiffs Exhibit
Exhibit A.
A. pg.
pg. 32).
32).
6.
6. Plaintiff
Plaintiff began training
training Defendant in
in the
the operations
operations of the
the dealership
dealership and
Defendant was added as
as a
a signatory
signatory on Bavarians’
Bavarians’ operating
operating bank account.
account. By
By March of
of 2017,
2017,
Zonis
Zonis was having second thoughts
thoughts of being
being bought out
out and leaving
leaving Bavarian.
Bavarian. On April
April 1,
1, 2017
Defendant wrote
wrote an
an unauthorized
unauthorized check in
in the
the amount of
of $20,000.00
$20,000.00 drawn on Bavarian’s
Bavarian’s
operating
operating account.
account. In
In order
order to
to cover
cover up this
this unauthorized
unauthorized check,
check, Defendant made multiple
multiple
defamatory
defamatory statements
statements to
to Zonis,
Zonis, company investors
investors and others
others that
that Plaintiff
Plaintiff had written
written this
this
st
PLAINTIFF’S 11“. TO DEFENDANTS
. AMEND. RESP. TO NO EVIDENCE MOT. FOR
DEFENDANTS NO FOR S.J.
S.J. PAGE 22
PAGE
check and embezzled the
the funds.
funds. Plaintiff
Plaintiff of
of course
course denied
denied these
these false
false and malicious
malicious accusations
accusations
made by
by defendant,
defendant, see
see affidavits
affidavits of
of plaintiff,
plaintiff, Elan
Elan Zonis
Zonis and copy
copy of
of check and bank records
records
in
in plaintiff’s
plaintiff s Exhibit
Exhibit A,
A, pgs.
pgs. 8-12,
8-12, 23-24,
23-24, and affidavit
affidavit of
of Chris
Chris Stone,
Stone, attached
attached as
as Plaintiff’s
Plaintiffs
Exhibit
Exhibit C., pgs. 35-38)
C., pgs. 35-38)
7.
7. Based on these
these intentional,
intentional, malicious
malicious defamatory
defamatory statements,
statements, without
without fully
fully
investigating
investigating these
these false
false accusations,
accusations, Zonis
Zonis expelled
expelled Plaintiff
Plaintiff from Bavarian
Bavarian on 4/11/2017
4/ l 1/2017 with
with
no compensation for
for Plaintiff’s
Plaintiffs membership interest
interest in
in Bavarian,
Bavarian, or
or for
for Plaintiff’s
Plaintiffs and Angela
Yaun’s sweat
sweat equity
equity that
that had greatly
greatly benefitted
benefitted Bavarian,
Bavarian, see
see plaintiff’s
plaintiffs affidavit
affidavit in
in Plaintiff’s
Plaintiffs
Exhibit
Exhibit A. pgs.
pgs. 18-19).
18-19).
8.
8. Compounding Plaintiff’s
Plaintiff s wrongful expulsion
expulsion from Bavarian,
Bavarian, based on the
the false
false
statements
statements of
of defendant,
defendant, was the
the filing
filing of
of malicious
malicious unfounded criminal
criminal charges
charges against
against Plaintiff
Plaintiff
in
in May,
May, 2017.
2017. Defendant also
also intentionally
intentionally and with
with malice
malice made these
these same false
false allegations
allegations
against
against Plaintiff
Plaintiff directly
directly to
to the
the District
District Attorney’s
Attomey’s office.
office. Defendant has
has also
also continued
continued to
to harass
harass
Plaintiff
Plaintiff with
with threatening
threatening calls
calls and messages since
since the
the time
time he
he made the
the false
false criminal
criminal allegations
allegations
against
against Plaintiff.
Plaintiff. These false
false criminal
criminal charges
charges remained pending and hanging over
over Plaintiff
Plaintiff and his
his
family
family until
until his
his recent
recent full
full exoneration,
exoneration, see
see plaintiff’s
plaintiffs affidavit
affidavit and affidavit
affidavit of
of Elan Zonis
Zonis in
in
Plaintiff’s
Plaintiffs Exhibit
Exhibit A,
A, pgs.
pgs. 8-12,
8-12, 32-33,
32-33, and affidavit
affidavit of
of Chris
Chris Stone
Stone in
in Plaintiff’s
Plaintiffs Exhibit
Exhibit C.
C. pgs.
pgs.
35-38.
35-38.
9.
9. But the
the defendant
defendant did
did not
not stop
stop with
with providing
providing the
the basis
basis for
for false
false criminal
criminal charges
charges against
against
Plaintiff,
Plaintiff, defendant
defendant throughout
throughout 2017 and into
into 2018 has
has continued
continued to
to publish
publish his
his false,
false, malicious
malicious
defamatory
defamatory statements
statements against
against plaintiff
plaintiff throughout
throughout the
the local
local auto
auto dealer
dealer community,
community, including
including false
false
statements
statements to
to individual
individual dealerships
dealerships that
that plaintiff
plaintiff had applied
applied to
to and had initial
initial
st
PLAINTIFF’S 11“. TO DEFENDANTS
. AMEND. RESP. TO NO EVIDENCE MOT. FOR
DEFENDANTS NO FOR S.J.
S.J. PAGE 33
PAGE
positive
positive interviews,
interviews, only
only to
to be
be denied
denied the
the positions
positions without
without any
any explanation,
explanation, see
see plaintiff’s
plaintiffs
affidavit,
affidavit, affidavit
affidavit of
of Elan
Elan Zonis
Zonis in
in Plaintiff’s
Plaintiffs Exhibit
Exhibit A,
A, pgs.
pgs. 8-12 and 32-33 and affidavit
affidavit of
of Chris
Chris
Stone
Stone in
in Plaintiff’s
Plaintiffs Exhibit
Exhibit C,
C, pgs.
pgs. 35-38..
35-38.. These continued
continued defamatory
defamatory statements
statements by
by defendant
defendant
regarding
regarding the plaintiff made it
the plaintiff it impossible
impossible for
for plaintiff
plaintiff to
to find
find gainful
gainful employment for
for a
a substantial
substantial
period
period of
of time,
time, thus
thus causing
causing plaintiff
plaintiff to
to lose
lose wages and benefits
benefits (including
(including medical
medical benefits,
benefits, vital
vital
for
for the
the care
care of
of his
his special
special needs
needs daughter,
daughter, see
see affidavit
affidavit of
of plaintiff
plaintiff in
in Plaintiff’s
Plaintiff’ s Exhibit
Exhibit A,
A, pgs.
pgs. 8-
8-
12.
12.
10.
10. Defendant both
both perjured
perjured himself
himself and further
further defamed plaintiff
plaintiff with
with false
false statements
statements and
allegations
allegations against
against Jason,
Jason, contained
contained within
within his
his affidavit
affidavit that
that was attached
attached to
to his
his failed
failed motion to
to
dismiss
dismiss under
under the
the TCPA., see
see plaintiff’s
plaintiffs Exhibit
Exhibit D.
D. pgs.
pgs. 39-40.
39-40. His allegations
allegations of
of Jason
Jason making an
unauthorized
unauthorized purchase
purchase of BMW
of aa BMW being
being clearly
clearly refuted
refuted by plaintiff, Elan Zonis
by plaintiff, Zonis and Chris
Chris Stone,
Stone,
see
see Exhibits
Exhibits A,
A, pgs.
pgs. 32-33
32-33 and Exhibit
Exhibit C.,
C., pgs.
pgs. 35-38 Defendant admits
admits to
to making statements
statements
against
against Jason
Jason within
within defendant’s
defendant’s affidavit,
affidavit, attached
attached as
as Exhibit
Exhibit D,
D, pgs.
pgs. 39-40.
39-40.
SUMMARY-JUDGMENT EVIDENCE
SUMMARY-JUDGMENT
11.
1 1. To support
support the
the facts
facts in
in this
this response,
response, plaintiff
plaintiff offers
offers the
the following
following summary-judgment
summary—judgment
evidence
evidence attached
attached to
to this
this response
response and incorporates
incorporates the
the evidence
evidence into
into this
this response
response by
by reference.
reference.
Exhibit
Exhibit A: affidavit
affidavit of Plaintiff,
Plaintiff, copy
copy of check executed
executed by John Sherman for
for $20,000.00
$20,000.00
and respective
respective bank records,
records, affidavit
affidavit of
of Elan Zonis.
Zonis.
Exhibit
Exhibit B:
B: Order denying
denying defendant’s
defendant’s motion to
to dismiss
dismiss under the
the TCPA.
TCPA.
Exhibit
Exhibit C:
C: affidavit
affidavit of
of Chris
Chris Stone
Stone
Exhibit
Exhibit D:
D: affidavit
affidavit of defendant
defendant filed
filed in
in his
his unsuccessful
unsuccessful motion to
to dismiss
dismiss under the
the
TCPA.
st
PLAINTIFF’S 11“. . AMEND. RESP. TO NO EVIDENCE MOT. FOR
DEFENDANTS NO
TO DEFENDANTS FOR S.J.
S.J. PAGE 44
PAGE
ARGUMENT
ARGUMENT
Plaintiff
Plaintiff has
has sufficient
sufficient evidence
evidence to
to raise
raise fact
fact issue
issue on his
his cause
cause of
of action.
action.
12.
12. In
In a
a no-evidence
no—evidence motion for
for summary judgment,
judgment, aa defendant
defendant can
can challenge
challenge aa plaintiff
plaintiff to
to
produce
produce evidence
evidence to
to support
support one
one or
or more elements
elements of
of the
the plaintiff’s
plaintiffs cause
cause of
of action
action on which the
the
plaintiff
plaintiff would have the
the burden of proof
proof at
at trial
trial after
after an adequate
adequate time
time for
for discovery
discovery has
has passed.
passed.
Tex.
Tex. R.
R. Civ.
Civ. P.
P. 166a(i).
l66a(i). To avoid
avoid aa no-evidence
no—evidence summary judgment,
judgment, the
the plaintiff
plaintiff is
is not
not required
required to
to
marshal its
its proof;
proof; the
the plaintiff
plaintiff only
only needs
needs to
to point
point out
out evidence
evidence that
that raises
raises a
a fact
fact issue
issue on the
the
elements
elements challenged
challenged in
in the
the defendant’s
defendant’s motion.
motion. Hamilton v. SW3d 425,
Wilson, 249 S.W.3d
v. Wilson, 425, 426 (Tex.
(Tex.
2008).
2008). To raise
raise a
a genuine
genuine issue
issue of
of material
material fact, the plaintiff
fact, the plaintiff must produce
produce more than
than aa scintilla
scintilla of
of
evidence
evidence in
in support
support of
of the
the challenged
challenged elements.
elements. Smith
Smith v. 0’Donnell, 288 S.W.3d 417,
v. O’Donnell, 417, 424 (Tex.
(Tex.
2009);
2009); Ford Motor Co.
Co. v. Ridgway, 135
V. Ridgway, 135 S.W.3d 598,
598, 600 (Tex.
(Tex. 2004).
2004). More than
than aa scintilla
scintilla of
of
evidence
evidence is
is produced if
if the
the evidence
evidence is
is sufficient
sufficient to
to allow
allow reasonable
reasonable and fair-minded
fair—minded people
people to
to
differ
differ in
in their
their conclusions
conclusions on whether the
the challenged
challenged fact
fact exists. Forbes, Inc.
exists. Forbes, Inc. v.
v. Granada
Inc., 124
Biosciences, Inc,
Biosciences, 124 S.W.3d 167,
167, 172
172 (Tex.
(Tex. 2003).
2003). In
In evaluating
evaluating whether more than
than aa scintilla
scintilla of
of
evidence
evidence exists,
exists, the
the court
court must view the
the evidence
evidence in
in the
the light
light most
Preview
FILED DALLAS COUNTY 12/12/2019 6:11 AM FELICIA PITRE DISTRICT CLERK Miranda Lynch CAUSE NO. DC—18-05517 JASON MARTINEZ § IN THE DISTRICT COURT PLAINTIFF § § § V- § § § JOHN SHERMAN § Defendant. § OF DALLAS COUNTY, TEXAS PLAINTIFF’S FIRST AMENDED RESPONSE TO DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT Plaintiff, Jason Martinez, asks the Court to deny defendant John Sherman’s no evidence motion for summary judgment. INTRODUCTION 1. Plaintiff, Jason Martinez, sued defendant, John Sherman, for Defamation, Tortious Interference with Existing Contract and Malicious Criminal Prosecution. 2. Defendant answered asserting a general denial and the following affirmative defenses and specific denials; plaintiff’s claims are completely or partially barred as the damages, if any, were caused by his own actions 0r omissions, plaintiff’s claims are precluded by the Texas Citizens Participation Act (“TCPA”), plaintiff fails to state a claim upon which relief can be granted, n0 act or omission by defendant either caused 0r contribute t0 injury plaintiff purportedly sustained. 3. Defendant previously filed a Motion to Dismiss under the TCPA, in plaintiff’ s response t0 this motion, plaintiff included/attached 26 pages of documents/evidence, attached t0 this response as Plaintiff’s Exhibit A. Defendant’s Motion was denied on August 21, 2018, see this Court’s Order Attached as Exhibit B. PLAINTIFF’S 1“. AMEND. RESP. TO DEFENDANTS NO EVIDENCE MOT. FOR S.J. PAGE 1 BACKGROUND BACKGROUND 4. 4. On April April 7, 7, 2016, 2016, Plaintiff Plaintiff and Elan Elan Zonis Zonis (“Zonis”) (“Zonis”) entered entered into into a a LLC membership agreement in in which they they were 50/50 50/50 equity equity members in in Bavarian Bavarian AS, LLC d/b/a d/b/a Bavarian Auto Sports Sports (“Bavarian”). (“Bavarian”). Plaintiff Plaintiff was named as as President President for for this this business business and was the the day day to to day day manager of of this this auto auto dealership. dealership. Bavarian Bavarian began business business and in in November, 2016 Plaintiff Plaintiff and Zonis Zonis began discussions discussions of of aa potential potential buyout buyout of of Zonis. Zonis. (see (see plaintiff’s plaintiff’ s Exhibit Exhibit A, A, pgs. 8, 13-17.) pgs.8, 13-17.) 5. 5. At that that same time time Plaintiff Plaintiff had discussions discussions with with Defendant concerning concerning Defendant contributing contributing $350,000.00 $350,000.00 into into Bavarian’s operating operating account, account, in in return return Defendant would be be given given aa 15% 15% equity equity share share of of Bavarian. Bavarian. It It was further further agreed agreed that that after after this this contribution contribution by by Defendant, Defendant, Zonis Zonis would be be bought out out of of his his membership share share of of Bavarian, Bavarian, resulting resulting in in Plaintiff Plaintiff having a a 85% membership share share and defendant defendant aa 15% 15% membership share share in in Bavarian. Bavarian. However, Defendant failed failed to to deposit deposit the the agreed agreed $350,000.00 $350,000.00 into into the the operating operating bank account account of of Bavarian, Bavarian, Defendant only only deposited deposited $150,000.00 $150,000.00 into into the the Bavarian operating operating account, account, and deposited deposited the the other other $200,000.00 $200,000.00 into into Defendant’s personal personal account.(see account.(see affidavit affidavit of of Elan Elan Zonis Zonis in in plaintiff’s plaintiffs Exhibit Exhibit A. A. pg. pg. 32). 32). 6. 6. Plaintiff Plaintiff began training training Defendant in in the the operations operations of the the dealership dealership and Defendant was added as as a a signatory signatory on Bavarians’ Bavarians’ operating operating bank account. account. By By March of of 2017, 2017, Zonis Zonis was having second thoughts thoughts of being being bought out out and leaving leaving Bavarian. Bavarian. On April April 1, 1, 2017 Defendant wrote wrote an an unauthorized unauthorized check in in the the amount of of $20,000.00 $20,000.00 drawn on Bavarian’s Bavarian’s operating operating account. account. In In order order to to cover cover up this this unauthorized unauthorized check, check, Defendant made multiple multiple defamatory defamatory statements statements to to Zonis, Zonis, company investors investors and others others that that Plaintiff Plaintiff had written written this this st PLAINTIFF’S 11“. TO DEFENDANTS . AMEND. RESP. TO NO EVIDENCE MOT. FOR DEFENDANTS NO FOR S.J. S.J. PAGE 22 PAGE check and embezzled the the funds. funds. Plaintiff Plaintiff of of course course denied denied these these false false and malicious malicious accusations accusations made by by defendant, defendant, see see affidavits affidavits of of plaintiff, plaintiff, Elan Elan Zonis Zonis and copy copy of of check and bank records records in in plaintiff’s plaintiff s Exhibit Exhibit A, A, pgs. pgs. 8-12, 8-12, 23-24, 23-24, and affidavit affidavit of of Chris Chris Stone, Stone, attached attached as as Plaintiff’s Plaintiffs Exhibit Exhibit C., pgs. 35-38) C., pgs. 35-38) 7. 7. Based on these these intentional, intentional, malicious malicious defamatory defamatory statements, statements, without without fully fully investigating investigating these these false false accusations, accusations, Zonis Zonis expelled expelled Plaintiff Plaintiff from Bavarian Bavarian on 4/11/2017 4/ l 1/2017 with with no compensation for for Plaintiff’s Plaintiffs membership interest interest in in Bavarian, Bavarian, or or for for Plaintiff’s Plaintiffs and Angela Yaun’s sweat sweat equity equity that that had greatly greatly benefitted benefitted Bavarian, Bavarian, see see plaintiff’s plaintiffs affidavit affidavit in in Plaintiff’s Plaintiffs Exhibit Exhibit A. pgs. pgs. 18-19). 18-19). 8. 8. Compounding Plaintiff’s Plaintiff s wrongful expulsion expulsion from Bavarian, Bavarian, based on the the false false statements statements of of defendant, defendant, was the the filing filing of of malicious malicious unfounded criminal criminal charges charges against against Plaintiff Plaintiff in in May, May, 2017. 2017. Defendant also also intentionally intentionally and with with malice malice made these these same false false allegations allegations against against Plaintiff Plaintiff directly directly to to the the District District Attorney’s Attomey’s office. office. Defendant has has also also continued continued to to harass harass Plaintiff Plaintiff with with threatening threatening calls calls and messages since since the the time time he he made the the false false criminal criminal allegations allegations against against Plaintiff. Plaintiff. These false false criminal criminal charges charges remained pending and hanging over over Plaintiff Plaintiff and his his family family until until his his recent recent full full exoneration, exoneration, see see plaintiff’s plaintiffs affidavit affidavit and affidavit affidavit of of Elan Zonis Zonis in in Plaintiff’s Plaintiffs Exhibit Exhibit A, A, pgs. pgs. 8-12, 8-12, 32-33, 32-33, and affidavit affidavit of of Chris Chris Stone Stone in in Plaintiff’s Plaintiffs Exhibit Exhibit C. C. pgs. pgs. 35-38. 35-38. 9. 9. But the the defendant defendant did did not not stop stop with with providing providing the the basis basis for for false false criminal criminal charges charges against against Plaintiff, Plaintiff, defendant defendant throughout throughout 2017 and into into 2018 has has continued continued to to publish publish his his false, false, malicious malicious defamatory defamatory statements statements against against plaintiff plaintiff throughout throughout the the local local auto auto dealer dealer community, community, including including false false statements statements to to individual individual dealerships dealerships that that plaintiff plaintiff had applied applied to to and had initial initial st PLAINTIFF’S 11“. TO DEFENDANTS . AMEND. RESP. TO NO EVIDENCE MOT. FOR DEFENDANTS NO FOR S.J. S.J. PAGE 33 PAGE positive positive interviews, interviews, only only to to be be denied denied the the positions positions without without any any explanation, explanation, see see plaintiff’s plaintiffs affidavit, affidavit, affidavit affidavit of of Elan Elan Zonis Zonis in in Plaintiff’s Plaintiffs Exhibit Exhibit A, A, pgs. pgs. 8-12 and 32-33 and affidavit affidavit of of Chris Chris Stone Stone in in Plaintiff’s Plaintiffs Exhibit Exhibit C, C, pgs. pgs. 35-38.. 35-38.. These continued continued defamatory defamatory statements statements by by defendant defendant regarding regarding the plaintiff made it the plaintiff it impossible impossible for for plaintiff plaintiff to to find find gainful gainful employment for for a a substantial substantial period period of of time, time, thus thus causing causing plaintiff plaintiff to to lose lose wages and benefits benefits (including (including medical medical benefits, benefits, vital vital for for the the care care of of his his special special needs needs daughter, daughter, see see affidavit affidavit of of plaintiff plaintiff in in Plaintiff’s Plaintiff’ s Exhibit Exhibit A, A, pgs. pgs. 8- 8- 12. 12. 10. 10. Defendant both both perjured perjured himself himself and further further defamed plaintiff plaintiff with with false false statements statements and allegations allegations against against Jason, Jason, contained contained within within his his affidavit affidavit that that was attached attached to to his his failed failed motion to to dismiss dismiss under under the the TCPA., see see plaintiff’s plaintiffs Exhibit Exhibit D. D. pgs. pgs. 39-40. 39-40. His allegations allegations of of Jason Jason making an unauthorized unauthorized purchase purchase of BMW of aa BMW being being clearly clearly refuted refuted by plaintiff, Elan Zonis by plaintiff, Zonis and Chris Chris Stone, Stone, see see Exhibits Exhibits A, A, pgs. pgs. 32-33 32-33 and Exhibit Exhibit C., C., pgs. pgs. 35-38 Defendant admits admits to to making statements statements against against Jason Jason within within defendant’s defendant’s affidavit, affidavit, attached attached as as Exhibit Exhibit D, D, pgs. pgs. 39-40. 39-40. SUMMARY-JUDGMENT EVIDENCE SUMMARY-JUDGMENT 11. 1 1. To support support the the facts facts in in this this response, response, plaintiff plaintiff offers offers the the following following summary-judgment summary—judgment evidence evidence attached attached to to this this response response and incorporates incorporates the the evidence evidence into into this this response response by by reference. reference. Exhibit Exhibit A: affidavit affidavit of Plaintiff, Plaintiff, copy copy of check executed executed by John Sherman for for $20,000.00 $20,000.00 and respective respective bank records, records, affidavit affidavit of of Elan Zonis. Zonis. Exhibit Exhibit B: B: Order denying denying defendant’s defendant’s motion to to dismiss dismiss under the the TCPA. TCPA. Exhibit Exhibit C: C: affidavit affidavit of of Chris Chris Stone Stone Exhibit Exhibit D: D: affidavit affidavit of defendant defendant filed filed in in his his unsuccessful unsuccessful motion to to dismiss dismiss under the the TCPA. st PLAINTIFF’S 11“. . AMEND. RESP. TO NO EVIDENCE MOT. FOR DEFENDANTS NO TO DEFENDANTS FOR S.J. S.J. PAGE 44 PAGE ARGUMENT ARGUMENT Plaintiff Plaintiff has has sufficient sufficient evidence evidence to to raise raise fact fact issue issue on his his cause cause of of action. action. 12. 12. In In a a no-evidence no—evidence motion for for summary judgment, judgment, aa defendant defendant can can challenge challenge aa plaintiff plaintiff to to produce produce evidence evidence to to support support one one or or more elements elements of of the the plaintiff’s plaintiffs cause cause of of action action on which the the plaintiff plaintiff would have the the burden of proof proof at at trial trial after after an adequate adequate time time for for discovery discovery has has passed. passed. Tex. Tex. R. R. Civ. Civ. P. P. 166a(i). l66a(i). To avoid avoid aa no-evidence no—evidence summary judgment, judgment, the the plaintiff plaintiff is is not not required required to to marshal its its proof; proof; the the plaintiff plaintiff only only needs needs to to point point out out evidence evidence that that raises raises a a fact fact issue issue on the the elements elements challenged challenged in in the the defendant’s defendant’s motion. motion. Hamilton v. SW3d 425, Wilson, 249 S.W.3d v. Wilson, 425, 426 (Tex. (Tex. 2008). 2008). To raise raise a a genuine genuine issue issue of of material material fact, the plaintiff fact, the plaintiff must produce produce more than than aa scintilla scintilla of of evidence evidence in in support support of of the the challenged challenged elements. elements. Smith Smith v. 0’Donnell, 288 S.W.3d 417, v. O’Donnell, 417, 424 (Tex. (Tex. 2009); 2009); Ford Motor Co. Co. v. Ridgway, 135 V. Ridgway, 135 S.W.3d 598, 598, 600 (Tex. (Tex. 2004). 2004). More than than aa scintilla scintilla of of evidence evidence is is produced if if the the evidence evidence is is sufficient sufficient to to allow allow reasonable reasonable and fair-minded fair—minded people people to to differ differ in in their their conclusions conclusions on whether the the challenged challenged fact fact exists. Forbes, Inc. exists. Forbes, Inc. v. v. Granada Inc., 124 Biosciences, Inc, Biosciences, 124 S.W.3d 167, 167, 172 172 (Tex. (Tex. 2003). 2003). In In evaluating evaluating whether more than than aa scintilla scintilla of of evidence evidence exists, exists, the the court court must view the the evidence evidence in in the the light light most