Update: Johnson Development Corporation of Houston Files SLAPP Suit Against Sienna Plantation Homeowner & Homeowner Committee Fighting Apartments!!!
This is a recent FB Star story on the SLAPP suit filed by our developers against the committee of homeowners who helped fight the apartments coming to Sienna and lead the petition drive which garnered 1100+ signatures in July. See article below from http://www.fortbendstar.com/122105/n_Sienna%20files%20suit%20against%20blogger.htm
The committee was named in the 12/13/05 developer court filings.
"Alleges defamation, slander
Sienna files suit against blogger
By Barbara Fulenwider
Sienna/Johnson Development and Doug Goff, Sienna senior vice president, have filed a lawsuit against Chris Calvin, Sienna resident and blogger, for what they say was defamation, business disparagement, public nuisance, tortious interference with prospective contract and slander.
The plaintiff’s original petition filed with the 240th Judicial District Court in Fort Bend County on Dec. 13, says, “Plaintiffs bring this suit to address false, defamatory and disparaging speech made under scores of fake names, aliases and impersonated identities -- to create a sham appearance of support and factual basis for untruths.
“Plaintiffs allege that Mr. Calvin misued the Internet to fabricate statements, creating false aliases to disguise the origin of the fabricated statements and give an artificial impression of group support for his fabrications and that these actions rise to the level of defamation, disparagement and public nuisance.”
Calvin said this is clearly a SLAPP (Strategic Lawsuit Against Public Participation) typically used by large corporations and public officials against private citizens with the intent of silencing criticism and stifling petitioning activity. “Developers use SLAPP lawsuits most often,” Calvin said. “SLAPP suits are used to coerce people into being quiet. The federal government has SLAPP immunity but Texas doesn’t.
“I did use multiple names,” the defendant said. “Only two people were posting using their own names on the (Web) site. We encouraged people not to use their real names. There were 272 log-ins on the site and I admitted to 24 log-ins,” at a deposition taken on Oct. 18.
“I would start a thread for conversation issues. I admitted that at the deposition. They knew me but we protected others. I think they knew I was doing the CRD (Committee for Responsible Development) posts. That’s the affidavit that led to everything,” Calvin said.
Even though the plaintiff’s suit describes Calvin’s postings under numerous aliases as a mob of one, the defendant said that criticizing Sienna is “not a one-person thing. We were at (Missouri City) city council in June, July and February” -- like minded people who objected to Sienna building apartments, Calvin said.
“Sienna knows they haven’t been keeping the community informed. They are trying to destroy my credibility (with the SLAAP suit) prior to our filing a deceptive trade suit. The only way to counter SLAPPs is to keep it before the public,” the Sienna resident and blogger said.
“We are going to fight it all the way through as long as we can. They got half our life savings in pre-trial for all the appeals to try and block them from access (to the identities of other bloggers),” Calvin said.
In the civil suit filed, the plaintiffs used Calvin’s responses to questions asked at the Oct. 18 deposition as grounds for the claims they’ve made against the defendant regarding his alleged disparagement of Sienna/Johnson and alleged slander of Goff.
The claims plaintiffs made in their suit include Calvin’s “misrepresentations on the Internet,” his “pretense of support for his hidden agendas and use of Web sites to wage a false-speech attack on Sienna/Johnson; campaign against apartments in Missouri City” and “using multiple aliases -- made disparaging statements concerning Sienna/Johnson and Missouri City officials.”
The suit was filed against Calvin (a.k.a., responsible_dvlpmnt, janel, buddyj, starbuck, jimcalhoun, twinstuff2, jimcalhoun1, billcrane, nextdoorneighbor, sundaysiennasurfer, donny12, jacob, leigh, charles, duckbill, funfrankie, bill, don, jason-kidd, fixx, zbloser, danielgoode, harriet, geofflittle, mbelview, jameslong, billyboy, dalemince, dealmaker, probuilder1, spider_man and others unknown, and The Committee for Responsible Development.
As for filing the suit, Sienna Attorney John Keville said, “Too many people research using the Internet, including research on the Sienna Plantation community, to allow Mr. Calvin’s manipulations to go on unchecked.
“After the deposition and before filing suit, Sienna/Johnson offered Mr. Calvin a simple solution -- admit that he made false statements using fabricated identities, and agree to not make any more statements/posts about Sienna/Johnson or its employees unless he used his real name. In other words, Mr. Calvin could still say anything truthful and even critical, as long as he put his name on it. Mr. Calvin refused,” Keville said.
Calvin said, “They sent us one draft of the only deal they offered. I would have had to volunteer to an injunction not to post anonymously any more and not to talk about Sienna/Johnson or any of their associates. I asked them to negotiate on a second group of apartments, open up lines of communications and let homeowners know what’s going on back here and let us vote on two at large candidates for our own homeowner’s association board.
“We’re between 9,000 and 10,000 people and we pay almost $4 million (total) a year into our HOA. We’re asking for a minority voice on the board. Perry Homes and Silver Ridge have minority voting rights during the build out on their HOA board. I also had to publicly apologize, and I don’t believe I’ve done anything wrong, so I have nothing to apologize for,” the defendant said.
In the suit filed the plaintiffs have requested a trial by jury and a permanent injunction that would prevent Calvin and the Committee for Responsible Development from making any statements under any pseudonyms, etc. regarding Sienna/Johnson, its directors, officers or employees or making any false or disparaging comments on any Web sites relating to any developer or developer-related activity in the Sienna Plantation community. They also seek actual and exemplary damages, attorney fees and court costs."
posted by responsible_dvlpmnt at Thursday, December 29, 2005
14 Comments:
This comment has been removed by a blog administrator.
So they are going after everyone that participated on the committee fighting the apartments???
See http://missouricitychatter.blogspot.com/2005/12/johnson-development-corporation-of.html
for background on this case.
This comment has been removed by a blog administrator.
Yes anon apparently they are. The supporting court petition naming the committee of homeowners is on file at http://courtcn.co.fort-bend.tx.us:80/pls/public/ck_public_qry_cpty.cp_personcase_details_idx?backto=P&soundex_ind=&partial_ind=&last_name=&first_name=&middle_name=&begin_date=&end_date=&case_type=&id_code=@146911
"In the suit filed the plaintiffs have requested a trial by jury and a permanent injunction that would prevent Calvin and the Committee for Responsible Development from making any statements under any pseudonyms, etc. regarding Sienna/Johnson, its directors, officers or employees or making any false or disparaging comments on any Web sites relating to any developer or developer-related activity in the Sienna Plantation community. They also seek actual and exemplary damages, attorney fees and court costs."
--That's all they want? That shouldn't cost him too much more than a few paltry million.
Other related comments:
1 Matthew Feinberg - Dec 17, 08:42 pm
What Sienna/Johnson is not telling you is that there are “real” people that do not agree with the plans/actions of SJD or the Missouri City government. Dozens of people attended multiple City Council meetings to voice their displeasure about the apartments. More than 200 “real” people actually used my website and dozens of them spoke out against the apartments, many of them anonymously (which is their right to do so). Many more wrote letters to the editors of the Fort Bend Sun and Fort Bend Star opposing the apartments and the actions of the developers. Many more wrote me emails in support of my fight to keep the right to assemble and anonymous free speech.
What Sienna/Johnson also fails to tell you is that there was another individual that had a dozen or more aliases that also posted on the site, however, they have failed to go after that person even after I told them about it during depositions.
What Sienna/Johnson also fails to tell you is that Sienna has amended their covenant to include rules that specifically limits assembly and free speech in or near Sienna.
What Sienna/Johnson also fails to tell you is that they have actively and are still trying to find the identities of “ALL” anonymous users of my site(s).
What Sienna/Johnson also fails to tell you is that Sienna had the apartment plans on file for many years but did not have a road sign in place where the apartments were going to be. The sign until this summer actually said something about commercial development. Sienna never had the apartments in any of their literature or website. Sienna’s representatives even when asked told people that no apartments were being built.
There are many other things that are not being told.
No wonder so many people are either afraid to speak out or use anonymous identities. They don’t want to get sued!
People also have the right not to be afraid to speak out. Many states are passing laws to stop these type of cases. What Goff and Keville is doing is using a tactic call SLAPP (Strategic lawsuit against public participation). Anti-SLAPP laws have failed to be passed here in Texas. That will change soon.
If this were actually about getting back to communication Sienna would actually communicate. Instead they continually surprise residents with clandestine committees holding secret meetings and secret meetings where decisions where made to increase annual dues. They use loop holes in the civil code to bring residents in to court and sue them when they disagree. If Sienna lost money or deals it is due to their own poor public relations skills and shameful actions against their own residents.
This suit against a resident of their very own community is not only shameful, it is evil, and does nothing restore anything. It only further chills free speech in the area. If Goff is serious about restoring communications he would hire a PR firm and not an attorney!
2 Chris Calvin, Ph.D. - Dec 18, 03:21 pm
I won’t continue to respond to Goff and Mr. Keville, SJD/JDC lawyers, information spin. He had and does continue to play the verbiage game and knows full well this is about a “strike suit” (or better known as a SLAPP suit). We will expose the real deceptions as this moves through the courts and the possible appeals. We can not afford this case and we did not instigate it. It was brought and planned out by Mr. Keville’s clients who have been using the legal system to silence opposition to aspects of the SJD/JDC development plan which has been kept from us their customers for some time.
The websites they are continuing to focus on are an extension of the public debate (thus protected speech). All conversations in the comment threads are opinions responding to a factual event or claim and not news items, but the initial posts were based on the best information available and often not coming from our developer or their hired management team until after the fact. Often they would attempt to correct us after releasing what info we had. One excellent example was the proposed SP firestation #2 delay in April ‘05. A local HOA board member contacted us and informed us that discussions were going on about the possibility of pushing back the building of that station (based on the developer’s agreement). These meetings were going on behind the scenes with the city and the developer (many of you remember this). This info was released through the website and after its release a letter from the city manager came announcing that he was solely responsible for this discussion (this was posted on Siennanet.com). Of course our developer, who knew this was going on did not post this information to us over the Siennanet.com website before we found out about it. We all pay for this access through our dues and should receive this info prior to hearing about it through other outside sources.
This is just one excellent example. Lawyer Keville also claims that I wanted them to negotiate with me on the second grouping of apartments, voting representation on the SPRAI board and/or the other settlement requests. The truth is they sent only one offer and we only responded once and they told us that if we didn’t accept the first draft then they would sue us (as they have done). If you all want I can post all the drafts and information here or through some other media source. I have all the copies.
The goal of the petition drive and establishing alternative communications into Sienna Plantation was deliberate because all current communications is centrally controlled by SJD/JDC, our developers. The information that was and is being released on http://missouricitychatter.blogspot.com is as accurate as possible at the time of release (we usually check via 2-3 sources first). The comments are the opinions and reflections based on those releases. We encouraged anonymous logins to protect those visiting, reading and posting and continue to encourage this.
Stay informed and keep in touch!-Dr. Calvin
3 respon_dvlpmnt - Dec 28, 01:40 pm
Hi Matt,
And what lawyer Keville also fails to mention is that they added all those that are on, or have participated with the Committee for Responsible Development (30-40 Sienna & Sienna Area homeowners) over the months to the law suit (SLAPP suit). . .Of course they aren’t trying to silence or chill the community with these actions—...right?
They keep claiming they were only after Dr. Calvin, but keep adding at first the 272 users of SiennaTalk.com and later the committee (30-40 area homeowners). I’m just surprised they haven’t gone after the 1100+ petition signers too for their friend Mayor Owen of Missouri City.—Maybe they will?
Hope this is helpful:
Overview>
By Lori Potter
Attorney, Kelly, Haglund, Garnsey & Kahn
Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined. — Judge J. Nicholas Colabella (1992)
Strong statement or overstatement? Judge Colabella was referring to the threat posed by Strategic Lawsuits Against Public Participation, or "SLAPPs." SLAPPs are lawsuits filed in response to or retaliation for citizen communications with government entities and employees.
Citizens have been sued for testifying before their city councils and county commissions, about building permit and zoning change applications, for expressing concerns to school board members, and for reporting violations of environmental laws to regulatory agencies, to give just three of thousands of examples. In short, these citizens were sued for doing exactly what the Constitution allows and encourages them to do, which accounts for Colabella’s strong words in Gordon v. Marrone, a 1992 New York case.
The particular provision of the First Amendment that is threatened by SLAPPs is the petition clause ("Congress shall make no law " abridging the " right of the people " to petition the Government for a redress of grievances"). George Pring and Penelope Canan, the authors of the leading work on the topic, SLAPPs: Getting Sued for Speaking Out (and the coiners of the acronym), have dubbed the petition clause "the unknown soldier of the Bill of Rights."
While the petition clause may be less renowned than the First Amendment’s guarantees of free speech, press and religion, the right it protects is every bit as basic to our form of government.
In a representative democracy, public participation is the cornerstone of the system; it is a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. On a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal or policy underpinnings, which go back to Aristotle and the Magna Carta, among other sources. We simply take for granted what is both obvious and invisible: Public participation in government is a creed by which the nation lives. Public participation — i.e., petitioning — ranges from the sublime to the messy, but it is authorized and encouraged by procedures and forms at every level of every branch of our government. That is why being sued for engaging in petitioning activities not only strikes one as incongruous but indeed is antithetical to our form of constitutional democracy.
The phenomenon of suing an individual who communicates with or tries to influence the government is common. Pring and Canan’s national study in the early 1990s found thousands of examples of SLAPPs. Their study also found countless additional examples of threats of lawsuits that had the same desired effect: causing citizens to rethink and retreat from their public participation for fear of costly and time-consuming litigation.
SLAPP complaints do not arrive bearing claims labeled as "SLAPPs." Typically, a "SLAPPer" brings causes of action for defamation, conspiracy, abuse of process, interference with contract, and other common-law claims. As Pring and Canan point out, the first — and sometimes highest — hurdle for an attorney defending against a SLAPP for the first time is recognizing that what may appear to be a garden-variety tort claim is not, and that such a claim may be effectively prevented from becoming a lawsuit if it targets speech to any branch of government.
Petition-clause immunity as a defense against SLAPPs
When SLAPPs are defended against on the basis of the petition clause of the First Amendment, nearly all such litigation is dismissed, or summary judgment is entered for the defendant, as Pring and Canan note. Consequently, most of the reported case law is favorable to SLAPP defendants. This lopsided win-loss record has done nothing to discourage the filing of SLAPPs, however. Pring and Canan concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose.
The U.S. Supreme Court and the lower federal courts (and many state courts) have found that the petition clause provides an immunity to citizens who speak out to influence the government. This immunity is sometimes known as Noerr-Pennington immunity, because it has its roots in a line of antitrust cases that hold that efforts to influence public officials through lobbying, publicity, and other contact are protected by the petition clause (and are not a violation of antitrust law) even when the petitioning activity is undertaken for a disfavored motive, such as eliminating competition. (See United Mine Workers v. Pennington, 1965; Eastern Railroad Presidents Conference v. Noerr Motor Freight, 1961.)
Later Supreme Court decisions also make clear that "Noerr-Pennington immunity" is synonymous with First Amendment immunity and applies to petitioning and to claims outside the antitrust context. For example, in NAACP v. Claiborne Hardware (1982), the Court overturned judgments in favor of merchants whose businesses had been economically harmed by a boycott. The NAACP organized a boycott and picketing to support its petition to the local government for passage of anti-discrimination laws to advance racial equality and integration. The Court relied on the Noerr-Pennington line of cases and held that all of the NAACP’s conduct was immunized by the First Amendment, notwithstanding the incidental economic impact on merchants. Accordingly, the Court overturned the holdings of the state courts of Mississippi and accorded immunity to the NAACP against state-law claims.
Two more-recent Supreme Court decisions in antitrust litigation, Professional Real Estate Investors v. Columbia Pictures, (1993) and Columbia v. Omni Outdoor Advertising (1991), applied petition-clause analysis and clarified the burden faced by a plaintiff challenging petitioning activity. When it appears that a plaintiff’s claims are lodged in response to a defendant’s legitimate use of government processes, a court must apply heightened scrutiny to those claims and dismiss them unless they can clear a high barrier.
Under the test first articulated in Omni, a defendant is entitled to immunity unless a plaintiff can demonstrate that defendant’s petitioning was "a sham." This requires the plaintiff to prove that a defendant used government processes as a "weapon." This inquiry looks not at the defendant’s intent or purpose, but at whether the defendant’s efforts were not genuinely aimed at procuring favorable government action at all. So long as the defendant acts to obtain a government outcome — a decision, action, or refusal to act — the defendant’s petitioning is not a sham and enjoys immunity under the petition clause. A winning petition — e.g., a successful lawsuit, or a request to an administrative agency that is acted upon favorably — by definition is not "a sham." At the motion-to-dismiss or summary-judgment stage, then, the standard is an objective one that looks to the outcome of the process defendant engaged in, not a subjective one that looks to defendant’s intent. This result is consistent with the petition-clause goal of encouraging and protecting speech directed to the government.
Professional Real Estate Investors presented the question of petition-clause immunity as applied to counterclaims in litigation and set forth a two-part definition of "sham." The first prong requires a plaintiff to show that a citizen’s communications with government agencies were "objectively baseless." The second prong, which a court need not even consider if a plaintiff cannot satisfy the first, is the test articulated in Omni: whether the defendant’s communications were not genuinely aimed at procuring favorable government action. The SLAPPer bears the burden of proof on both prongs and must meet that burden at the motion-to-dismiss or summary-judgment stage of the case.
Many state courts have fashioned similar tests under the petition clauses of their state constitutions, or have applied First Amendment petition-clause immunity to claims arising in state courts. (See, e.g., Protect Our Mountain Environment, Inc. v. District Court, a 1984 Colorado case. The “sham” burden of proof has been codified in some states’ anti-SLAPP statutes. (See a list of states with laws protecting SLAPP victims.)
Disposing of cases on the basis of petition-clause immunity
The policy underlying First Amendment immunity requires prompt dismissal of claims invalidated by petition-clause immunity, sparing the courts and litigants the costs and time otherwise expended on litigation targeted at protected petitioning activities. Although experience shows that nearly all claims targeting petitioning are eventually dismissed, the mere filing of the action causes a citizen to pay a high price in time, money and peace of mind for having exercised the constitutional right to petition the government.
In the Omni case, the Supreme Court indicated that in order to achieve the goal of minimizing intrusion on the First Amendment, lawsuits that attack constitutionally protected petitioning activities must be dismissed by the court on motion, not heard by a jury at trial, except in those rare instances when a plaintiff can prove the defendant’s petitioning comes within the "sham" exception to immunity. First Amendment petitioning activity is chilled by allowing a plaintiff to conduct discovery, go to trial, and otherwise exhaust the time and resources of a defendant on claims that cannot cross the immunity threshold.
Courts also have achieved the goal of early review and dismissal by enforcing strict pleading standards as a result of the assertion of immunity as a ground for dismissal. (Pleading standards are the legal requirements for pleading a cause of action in court.) Where a claim touches upon the right to petition, many courts will apply a heightened pleading standard (see, e.g., Oregon Natural Resources Council v. Mohla, a 1991 case from the 9th Circuit). These courts concur with the conclusion Pring and Canan made after their study: There is a danger that the mere filing of the action will chill the exercise of First Amendment rights, and this demands more specific allegations than would otherwise be required. Specifically, a plaintiff cannot overcome the target’s First Amendment immunity if it fails to allege that defendant communicated with government for a reason other than to support petitioning activity. In other words, some courts have held that to survive a motion to dismiss a plaintiff must allege that defendant engaged in tortious activity for some purpose other than to influence a governmental agency or process. The certification requirements of Rule 11 of the Federal Rules of Civil Procedure and its state counterparts would apply to such allegations.
Here's one JK-
How many personal injury attorneys does it take to change a light bulb?
Three--one to turn the bulb, one to shake him off the ladder, and the third to sue the ladder company.
This quote says it all. They were clever in disguising their SLAPP until they added the homeowners who helped/joined the committee to fight the apartments. They are out in the open now. I wonder what the court will do with all these additional targets?
_______
"Pring and Canan, legal experts, concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose."
"In the suit filed the plaintiffs have requested a trial by jury and a permanent injunction that would prevent Calvin and the Committee for Responsible Development from making any statements under any pseudonyms, etc. regarding Sienna/Johnson, its directors, officers or employees"<--This is an attempt to silence people speaking up on public issues.
I found it interesting that there's now a list posted on Siennanet for "deed restriction" violations. It would be nice to see it made available to prospective buyers...
Schedule of Fines
SCHEDULE OF FINES
As permitted under Article III, Paragraph C, Section 6, Enforcement, of the Bylaws, SRPAI Board of Directors has the right to set rules and regulations, and impose fines if necessary to achieve compliance. Below are the fines that were recommended by volunteers and approved by The Board associated with some common violations. Fines may be levied upon observance of the violation and may continue until problem is corrected. These categories are for reference only and may apply to other situations. Fine amounts may be increased at the discretion of the Hearing Advisory Committee (HAC) or SPRAI Board of Directors. All fines are per item.
Payment of the fine amount does not grant a variance for the violation. All violations must be corrected to come into compliance. If there is a subsequent violation of the same rule the fine amount will double with each subsequent violation.
•Broken driveways or walkways
$50.00 per month
•Certificate of Compliance not requested
$100.00 one time fine
•Decorative embellishments without approval
$50.00 per month
•Excessive pets, barking dogs or other noise from animals
$50.00 per month
•Holiday decorations past deadline
$50.00 per month
•Improper Signage
$25.00 per inspection
•Lawn Maintenance $50.00 per week
•Livestock or poultry kept on property $25.00 per day
•Operating a business out of home in violation of declaration $125.00 per month
•Major house or property repairs needed $100.00 per month
•Mildew on Property
$50.00 per month
•Minor house or property repairs needed $50.00 per month
•Modifications not per approved plans $100.00 per month
•Modifications made without approval $100-500 per month
•Non-approved window treatments $50.00 per month
•Property/street used for storage of unauthorized vehicles or other items boats, trailers,
RVs, basketball goals, etc. $25.00 per day
•Trash Can Public View $10.00 per inspection
•Unapproved exterior lights or light spilling onto adjacent properties
$50.00 per month
SPRAI HAS THE RIGHT TO MAKE CHANGES TO THIS POLICY AT ANY TIME WITHOUT NOTICE
Another wonderful amenity not run by the non-voting membership.
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2017.7.26
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