Johnson Development Corporation of Houston Files for Maximum Damages in SLAPP Suit Against Sienna Plantation Homeowner!!!
For an update on this case you can visit current FortBendNow.com media on this by clicking the title link above or visiting earlier posts/media on this SLAPP suit at http://missouricitychatter.blogspot.com.
___________________________________________________________
JOHNSON DEVELOPMENT CORPORATION OF HOUSTON ASKS FOR THE MAXIMUM DAMAGES ALLOWABLE BY LAW AND FOR A PERMANENT INJUNCTION IN THE SLAPP SUIT (STATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION) FILED IN THE 240TH DISTRICT COURT OF FORT BEND COUNTY, TX.
This case received a great deal of local coverage in the media in September through November as Johnson Development Corporation, a large Houston land development concern with communities like Riverstone, Silver Lake, Fall Creek and Sienna Plantation amongst others, filed a SLAPP case (Strategic lawsuit against public participation--see Canen & Pring, 1996) for allegedly disparaging comments that an area homeowner made using on the, now closed, neighborhood website SiennaTalk.com (for more background on this see the following from local media sources at http://www.fortbendnow.com/news/317/fight-over-apartments-could-restrict-free-speech-on-the-web and http://missouricitychatter.blogspot.com/2005/11/oped-piece-in-fb-sun-today-comments-on.html and http://missouricitychatter.blogspot.com/2005/11/fb-star-editorial-hermer-responds.html).
This case was appealed by the ACLU several times on first amendment concerns during pre-trial discovery and eventually ended up at the 14th Texas Court of Appeals in Houston. It stems from actions taken by one targeted community activist, Dr. Calvin of Missouri City and another Sienna homeowner Matthew Feinberg who ran the, now defunct, neighborhood website SiennaTalk.com, following his participation in a petition drive which garnered over 1100+ neighborhood signatures against extensive apartment development in their quiet single family housing community of Sienna Plantation. The original case was filed on August 3rd, not more than a week after local media reported on a city council session where-by residents of nearby Sienna Plantation and several other area neighborhoods participated during the formal presentation of the petition drive against a second grouping of up to 1800 additional apartment units to this area along with formal ethics complaints to the city council over developer backed Mayor Allen Owen's apparent advocacy for the apartments when it was discovered that nearly 60% of his campaign contributions come from Houston and area developers, Johnson Development Corporation being one of the chief contributors on the list (see city code of ethics signed by Mayor Owen for more & July 18th video of city council open session for details).
The current filings of 12/13/05 ask the court for the maximum financial damages allowable by law along with a permanent injunction against the Sienna homeowner, blogger, and activist to apparently silence his public criticism of some land uses by this Houston corporation (Larry Johnson, President). More recently Dr. Calvin has been involved in the fight against the Arcola Airport Expansion being led by another Johnson development campaign contributor recipient chief county commissioner Bob Hebert who is currently running for re-election in '06.
"This is a pattern of continued use of the legal system, through what is known as SLAPP (Strategic lawsuit against public participation), to silence me and chill those that would speak out publicly against certain types of land use in our community", Calvin said. He further stated that the current plans to expand the Arcola Airport, which apparently will bring increased jet traffic over Sienna Plantation and surrounding communities, is being supported by a consortium represented by Bob Hebert, chief county judge, Jaime Griffith, Arcola airport owner, Sienna/Johnson Developers (Doug Goff & Larry Johnson) and Mayor Gipson of Arcola. See current stories on this below (KTRK recent coverage):
http://www.fortbendnow.com/news/481/protesters-landowners-hammer-arcola-mayor-over-airport-expansion
http://www.zwire.com/site/news.cfm?newsid=15738087&BRD=1574&PAG=461&dept_id=532245&rfi=6
http://www.fortbendstar.com/121405/n_Arcola%20area%20residents%20upset%20with%20commissioners%20over%20road%20plans%20near%20airport%20-%20underhanded%20they%20say.htm
Calvin also said that it is essential that these type of SLAPP suits be defeated legislatively or it may impact the ability of citizens to speak up on community issues like the apartments and airport land uses (currently the "Petition Clause" of the first amendment addresses these rights and 12 states carry further anti-SLAPP laws on the books, but not Texas--which has had these laws defeated 4 times by Austin area developer PACs). "Tom Hilton is leading the charge on the airport fight and the county sponsored take-over of private homeowners property near our neighborhood". It is imperative that citizens, including myself, be allowed to speak without threat of multi-million dollar claims and use of the courts as harassment tools, as is the case in SLAPP suits like these." Calvin retorted.
Stay tuned for more on this and the airport expansion along with local election coverage as it develops on this blogsite...
posted by responsible_dvlpmnt at Thursday, December 15, 2005
20 Comments:
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We want to take a moment and thank all those that made it out to the Arcola city council from Sienna Plantation to let them know how we feel about their proposed airport expansion.--Again thanks for getting involved!
More on SLAPP legislation:
SLAPP Suits
With increasing frequency, particularly in California, private citizens have been sued for communication with government with respect to land use and environmental issues. These lawsuits--characterized as Strategic Lawsuits Against Public Participation and known by the acronym of "SLAPP Suits" are often the result of development proposals involving both state and local approvals and strong community opposition.
In contrast to most litigation, the SLAPP suit is brought, not to resolve a problem, but to remove a controversy from the political arena-- where the developer may be loosing-- to the judicial arena where the "chill" and expense may enable the developer to seize victory from defeat.
A Law School study of 228 SLAPP suits found that the SLAPP targets prevailed in approximately 77% of all cases, but that they were considerably more affective with regard to small community groups, particularly where the membership is less affluent and tend to have little familiarity with the legal system. On the other hand, the larger, well-organized national environmental groups are generally unaffected by the threat or commencement of such suits.
Any suit, even a SLAPP suit, must have an underlying alleged wrong, or in lawyer's parlance a cause of action. In SLAPP suits defamation is the most used claim.Other underlying claims are tortuous interference with business or contractual relations, RICO, and the allegation that the there was a conspiracy between the citizens and government to deprive the developer of his property interest under color of state law contrary to 42 U.S.C. 1983.
SLAPP suits are highly controversial as a result of the perceived abuses. They are as strong, however, as their underlying claim. Have the objectors really libeled or defamed the developer. If the developer is determined to be a public figure he must prove in addition "actual malice" and "a reckless disregard for the truth". As a result of anti-SLAPP sentiment in California a bill has been introduced in New Jersey to limit this cause of action.
New Jersey: Proposed Statute
Identical anti-SLAPP bills were introduced in early 1998 in the New Jersey Senate and Assembly. Senate Bill No. 745 was introduced Feb. 26, 1998 by Sen. William Schluter. Assembly Bill No. 1788 was introduced March 2, 1998 by Assemblyman Leonard Lance. The text of S.B. 745 as introduced is given below. An anti-SLAPP bill introduced in 1996 by Assemblyman Lance was worded in more general terms than the present bills (see Assembly Bill 1545).
Senate Bill 745
State of New Jersey
208th Legislature
Introduced February 26, 1998
Sponsored by: Senator William E. Schluter
VERSION: Introduced February 26, 1998 Schluter
An Act concerning claims arising from a defendant's valid exercise of certain constitutional rights and supplementing Title 2A of the New Jersey Statutes.
STATEMENT
Lawsuits have been filed in increasing numbers against individuals and groups who speak out to public officials and in public forums about public issues. Nicknamed "SLAPPs" (Strategic Lawsuits Against Public Participation) by consumer advocates, these lawsuits are brought for the purpose of deterring the valid exercise of constitutional rights through abuse of the judicial process. Even though most of these suits are legally baseless and are eventually dismissed by the courts, the defendants often incur substantial legal expenses, such as court costs and attorney fees, in defending themselves.
This bill attempts to remedy this situation by providing for a prompt judicial assessment of these actions prior to incurring substantial legal fees. With the assistance and cooperation of the courts in establishing appropriate court rules, a motion to dismiss would be authorized in a cause of action arising from a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. All discovery would be stayed pending a ruling on the motion which would be determined on the pleadings and supporting affidavits. A prevailing defendant on the motion to dismiss would be entitled to recover attorney's fees and costs. If the court finds that a motion to dismiss is frivolous or is solely intended to cause unnecessary delay, the court could award reasonable attorney's fees and costs to the plaintiff prevailing on the motion.
TEXT:
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances;
b. The threat of a civil action for damages in these situations and the costs associated with defending such suits can be severely burdensome and deter individuals and entities from fully exercising their constitutional rights to speak out on public issues;
c. It is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process;
d. An expedited judicial review would avoid the potential for abuse in these cases. Since the practice and procedure in the courts is constitutionally committed to the Supreme Court's rule making authority, these cases provide an opportunity for a cooperative effort between the branches of government.
2. As used in this act:
a. "Valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" includes, but is not limited to, any written or oral statement or writing made before a public entity; any written or oral statement or writing made in connection with an issue under consideration or review by a public entity; any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or any other conduct in furtherance of the constitutional right of petition or free speech in connection with an issue of public interest.
b. "Public entity" means the federal government, the State, a municipality, a county, a school district or charter school board and any agency, board, body or authority thereof and any other public body in this State.
3. In accordance with such New Jersey Court Rules as may be promulgated, a cause of action arising primarily to deter a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances shall be subject to a motion to dismiss, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Except as may otherwise be provided by the court, all discovery proceedings in the action shall be stayed upon the filing of a motion to dismiss pursuant to this section and shall remain stayed until notice of entry of the order ruling on the motion. If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
4. In any cause of action subject to a motion to dismiss pursuant to this act, a prevailing defendant shall be entitled to recover attorney's fees and costs. If the court in a separate finding determines that a motion to dismiss brought pursuant to this act is frivolous or is solely intended to cause unnecessary delay, the court may award reasonable attorney's fees and costs to the plaintiff prevailing on the motion.
5. This act shall not apply to any enforcement action brought by a public entity.
6. This act shall take effect immediately.
New Jersey Legislature Main Bill Information 1998-1999 Legislative Session
------------------------------------------------------------------------
A1788 - Lance, Leonard
Authorizes a motion to dismiss in a cause of action arising from a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.
Mar-2-1998 Introduced And Referred To Assembly Judiciary Committee
Identical Bill: S745
S745 - Schluter, William E.
Authorizes a motion to dismiss in a cause of action arising from a defendant's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.
Feb-26-1998 Introduced And Referred To Senate Judiciary Committee
Identical Bill: A1788
any questions or comments
E-mail
REZONE@NJ-landuselaw.com
I like this statement made by Goff a few month's ago best:
" First, Sienna/Johnson Development has not sued anyone, for libel or anything else. "
-I wonder what they'll say this time?
It is interesting that SJD actually filed suit. I wonder how they will proceed when they never actually proved Calvin made defamitaory statements to begin with.
I think the Texas codes that addresses "fishing expeditions" (is it 202 of the TX code?) can be selectively applied in some cases. Perhaps all the development projects and contributions that Johnson is involved with in this county has some influence attached. Aren't Chief County Judge Bob Hebert and Missouri City Mayor Allen Owen on their campaign contributions gift list? What about all the county contracts and buisness networks they have established here too.
The little homeowner hasn't got a chance even if free speech is protected elsewhere on land use issues like these, this is TX. The decisions have already been made and this case is just going through the motions.--I would try and get it filed in a U.S. court if I was the lawyer in this case.
Can anybody get a time-table on when jet traffic will begin to increase after the airport becomes FAA complaint because of the relocation of McKeever?
This was posted on thewebbie.com:
15 Dec 2005 01:19:58 pm
SJD CRAP
I have no comment.. But you can guess how I feel about this.
===========================================
Quote :
JOHNSON DEVELOPMENT FILES FOR MAXIMUM ALLOWABLE DAMAGES & PERMANENT SPEECH
INJUNCTION AGAINST SIENNA HOMEOWNER in SLAPP suit (Strategic Lawsuit Against Public
Participation)!!!
Sorry for the follow-up e-mail so soon but JDC has filed a pretty hefty damage claim
in this SLAPP lawsuit. Please if you have a moment today and support homeowners
efforts/rights to oppose the airport expansion project which would increase jet
traffic over Sienna and surrounding areas supported by area EDC members and if you
supported the petition against the second grouping of 1800 apartment units coming to
Sienna (courtesy our developer) then please support our right to continue to speak
up in public on these controversial land use issues by calling or contacting Senator
Janek's office below and letting him know how you feel.
See current release at:
http://missouricitychatter.blogspot.com/2005/12/johnson-development-corporation-of.html
http://www.fortbendnow.com/news/317/fight-over-apartments-could-restrict-free-speech-on-the-web
http://missouricitychatter.blogspot.com/2005/12/attention-fort-bend-sun-covers-airport.html
http://missouricitychatter.blogspot.com/2005/12/crd-exclusive-several-locals-prepare.html
(help support EDC-independent candidates from either party in the '06 local and
county elections)
Contact
Call or e-mail Senator Kyle Janek and support anti-SLAPP legislation as part of tort
reform in Texas. Help stop lawsuits by large business interests against citizens who
speak out and petition the government for redress of those grievances (1st Amendment
Protections), especially on land use issues.
District 17
Kyle.Janek@senate.state.tx.us
713-272-8929 or 512-463-0117
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What the heck!
By : Matthew Feinberg @ Time : 15 Dec 2005 04:41:06 pm : Email : Home
I do have something to say..
Quote :
Shame on Doug Goff and SJD/JDC!!!
They are specifically asking the court to restrict the free speech of an individual. It is clear as can be. They are asking the court to VIOLATE Calvins first amendment right to anonymous free speech.
This sends a STRONG signal to the public!
“Don’t speak out against the land developer if you don’t want to be sued!”
Settlement
By : "InternetImposter" @ Time : 15 Dec 2005 04:54:21 pm :
I noticed Keville left out that they made one offer to settle and not pay us back for initiating this SLAPP suit, and did it after refusing to review our counter offer which included discussing better communications between residents and management, reduction in the second grouping of 1800 apartments, negotiate on adding two resident voting seats to our all developer HOA board among other issues.
They basically told us if we didn't sign the first draft they offered that we would be sued. What was there to respond to John K?
From FBNow.com: The suit, filed Tuesday, also seeks a permanent injunction to prevent Calvin and his organization “from making any statements under any pseudonyms” regarding the developers or their affiliates.
_______________________
From my reading of this I believe this covers all his free speech rights on the web regardless of the login name used. They are trying to get the court to order his silence on controversial land use issues. I believe that says it all really. . . isn't that corporate censorship?
I can't wait to see how much they ask for the torture they endured:
"and tortuous interference with prospective contract.”
-What is that?
Perhaps it means you all tortured the actual contract? You know maybe you jumped up and down on the piece of paper too much or something. . . ;-)
I think what is the crux of the matter is they (JDC through DG) was seeking some sort of public apology or something in the last settlement rejection from us (some kind-of public humiliation exercise). I guess we're supposed to apologize for getting the information out that they weren't providing and now we're supposed to apologize for their multi-million dollar lawsuit too. I find it interesting how they have been the aggressors in this from day one, but play the victims publically.
"InternetImposter"
This was found in the Houston Business Journal on another JDC community invoved in a lawsuit (4/05):
Silverlake residents file lawsuit against neighborhood group
Allison Wollam
Houston Business Journal
A battle over money and power is unfolding in the usually quiet Silverlake community in suburban Pearland.
Recent Company News
» Daughtry & Jordan PC
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A group of nearly 20 Silverlake residents has filed a lawsuit against the Silverlake Home Owners Association. Specifically, the homeowners want better representation within the association and are also demanding to know exactly how their annual dues are being spent.
According to a Silverlake resident, the residents pay $480 a year to the homeowners' association.
In a lawsuit filed in the District Court of Brazoria County, the residents claim that the association has breached its fiduciary duty by failing to provide financial statements and reasonable access to corporate books and records.
Trisha Taylor, an attorney with Daughtry & Jordan PC who is representing the homeowners, says because of the association's failure to provide financial information, it is impossible to determine whether the annual assessments being paid by the homeowners are being used for the benefit of the subdivision.
Meanwhile, residents say that the confusion over board representation began when Johnson Development Corp. took over the 4,000-acre master-planned community -- located just east of State Highway 288 -- from Southwyck Limited Partners in the late 1980s and early 1990s and certain board members were replaced.
Today, Silverlake is made up of many individual communities, and each neighborhood is supposed to elect a representative to the homeowners' association, according to Taylor.
She contends that three people on the board formulated "arbitrary" rules to certify whether those elected neighborhood representatives were valid members.
"What's happened is the current members on the board aren't certifying the elected members and have created a situation where they cannot be removed," she says.
The lawsuit states that "because the board failed to properly hold elections pursuant to the association's governing documents, it is the plaintiffs contention that the current board was not properly elected."
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See the latest Keville press release at http://www.chron.com/disp/story.mpl/metropolitan/3530955.html
note the liberties they take with the claim about campaign contributions and a misleading question/response exchange they used during their requested one-sided deposition in Oct. Never has anyone from CRD nor myself ever stated anything but "developer-backed mayor Allen Owen" has received campaign contributions from JDC.--The July ethics complaints against their mayor were never investigated but are on file with Mo-City. The complaints were based on Owen not recusing himself from the voting on apartments during the council debates (we learned in March of the extensive financial contributions to his campaign fund from '99-Jan. '05.
Which I might add Allen Owen admitted too in front of council and on video-tape at the July 18th 2005 council session visit InternetImposter
http://www.ci.mocity.tx.us/council/cminutes/minagndtocfp.htm
John Keville wrote an opinion at the fortbednow.com website. http://www.fortbendnow.com/opinion/494/
You can read my answer there and at my http://www.thewebbie.com/ blog.. I find it appalling that the lead attorney on this case would even comment in public like this. I welcome it as the more Goff and Company talk the more they prove my case.
They tried to settle with me too. The agreement they suggested required me to provide full disclosure to the database on my website. That full disclosure could potentially lead them to the real identities of more than 200 users that decided to speak anynomously about community issues. This is exactly why the ACLU is helping me squash the depositions in the first place. They also requested my silence on these issues which of course was totally unacceptable.
I may not agree with how Chris Calvin goes about his business but I do applaud him for not giving up! He is a community activist and watchdog. We need more people like him.
Matthew Feinberg
http://www.thewebbie.com/
Here's one JK released to the chronicle:
http://www.chron.com/disp/story.mpl/metropolitan/3530955.html
Thanks Matt and the rest who have called and e-mailed about this issue.
This was found on thewebbie.com. Just thought you all should know:
"15 Dec 2005 10:40:53 pm
I had nothing to do with it!!
Despite what many people think.. I ( nor Chris Calvin) had anything to do with the increase in Home Owners Dues here in Sienna Plantation. Some people have alluded to this fact and they are completely false!
Others would want you to believe that some how Sienna Johnson Development and Johnson Development Corporation would use SPRAI funds to pursue such antics as suing (or using loop holes in civic code to bring people into court). I asked the proper people at SJD to clear the record and provide accurate information. They apparently want the public to believe such outrageous rumors.
The legal actions against myself and Chris Calvin are totally funded by and brought on by SJD/JDC and Doug Goff. SPRAI has nothing to do with it, they are too busy spending a million dollars on landscaping!
Category : RANTS!!! | Posted By : thewebbie | Comments [1] | Trackbacks [0]
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Doug Replies
By : Matthew Feinberg @ Time : 16 Dec 2005 01:09:01 pm : Email : Home
Doug Goff actually replied. Here it is.
Quote :
Matthew,
Yes, SJD is paying for all costs associated with the depositions and
lawsuit filed against Mr. Calvin. The SPRAI will be posting a statement
on Siennanet regarding the increase in dues.
W. Douglas Goff
Senior Vice President - Director of Land Development"
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