HOME / PEOPLE / DAVID HARPER

HONORS RECOGNITION HONORS

Partner

david.harper@haynesboone.com

DAVID H. HARPER

DALLAS

2323 Victory Avenue

Suite 700

Dallas, TX 75219

T +1 214.651.5247

F +1 214.200.0463

PRACTICES

LITIGATION

INTELLECTUAL PROPERTY

INTELLECTUAL PROPERTYLITIGATION

MEDIA AND ENTERTAINMENTLITIGATION

ENERGY LITIGATION

OIL AND GAS

OIL AND GAS LITIGATION

PATENT LITIGATION

TRADE SECRET LITIGATION

INDUSTRIES

MEDIA, ENTERTAINMENTAND SPORTS

ProfileDavid Harper is a Haynes and Boone partner, trial lawyer and member of thefirm’s board of directors. David solves clients’ complex business problemsand implements their strategies both in the courtroom and the boardroom asa trusted business advisor. He has served as lead counsel for the mostsignificant and complex disputes clients have - ranging from semiconductorfabrication patent and trade secret litigation to disputes about the sale ofmajor businesses.

Teams that David has led or co-led have achieved remarkable success. Forexample, his team recently successfully defended a major semiconductorfabrication company in a patent infringement case in which the plaintiffconceded defeat in the trial court after a favorable Markman ruling. Hesuccessfully defended clients in a multi-week trial and then on appealagainst claims of copyright infringement regarding video distribution rights.He also led a team that defeated claims in the trial court of alleged theft ofsoftware as trade secrets. Likewise in business disputes, he recently pursuedclaims for fraud against sellers of a business to a major work wearmanufacturing company which was then mutually settled. David and theHaynes and Boone team he led won a multi-year battle defeating claims ofalleged shareholder oppression in the Texas Supreme Court. And, hedefended and resolved multiple lawsuits against the prominent founder of amajor independent oil and gas company from claims about buyouts of otherinvestors.

David’s skills are sought out by boards seeking him as a member, includingBaylor University, where he has served for several years as the chair of

▲

▼

▲

▼

ALUMNI 上海代表处

PEOPLE EXPERIENCE NEWS/EVENTS FIRM CAREERS OFFICES CONTACT

Start your search...

COURTS OF ADMITTANCE

Federal: US Supreme Court Fifth Circuit Court of Appeals Texas Eastern District Court Texas Northern District Court Texas Southern District/Bankruptcy Court Texas Western District Court

Other Courts: None Reported By Attorney

Other States Licensed: None Reported By Attorney

Please note: This information is self-reported by

Texas attorneys. Current license or admittance

MR. DAVID H. HARPER Eligible to Practice in Texas

HAYNES AND BOONE, LLP

Bar Card Number: 09025540 TX License Date: 11/01/1991

Primary Practice Location: Dallas , Texas

2323 Victory Ave Ste 700 Dallas, TX 75219-7673

Practice Areas: Litigation: Commercial

Statutory Pro�le Last Certi�ed On: 03/23/2018

PRACTICE INFORMATION

Firm: Haynes and Boone, LLP

Firm Size: Over 200

Occupation: Private Law Practice

Practice Areas: Litigation: Commercial

Services Provided: Hearing impaired translation: Not Speci�ed ADA-accessible client service: Not Speci�ed Language translation: Not Speci�ed

Fee Options Provided:

None Reported By Attorney Please note: Not all payment options are available for all cases, and any

payment arrangement must be agreed upon by the attorney and his/her

client. The State Bar of Texas is not responsible for payment

arrangements between an attorney and his/her client.

CONTACT INFORMATION

Tel: 214-651-5247

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

DALLAS POLICE AND FIRE PENSION

SYSTEM,

Plaintiff,

v.

COLUMBUS A. ALEXANDER, III,

Defendant and Counter-Plaintiff,

v.

DALLAS POLICE AND FIRE PENSION

SYSTEM, KELLY GOTTSCHALK,

JOSHUA MOND, SUMMER

LOVELAND,

JULIE FORT, JULIE FORT,

ATTORNEY, PLLC, and MESSER,

ROCKEFELLER, FORT, PLLC,

Counter-Defendants.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

NO. 4:17-CV-00631-ALM-KPJ

ORDER

Pending before the Court is Counter-Defendants Kelly Gottschalk, Joshua Mond, and

Summer Loveland’s (the “Individual System Defendants”) Second Amended Rule 12(b)(6)

Motion to Dismiss and Anti-SLAPP Motion Pursuant to Chapter 27 of the Texas Civil Practice &

Remedies Code (the “Motion”) (Dkt. 53), filed on May 7, 2018. On January 15, 2019, the

undersigned Magistrate Judge entered a Report and Recommendation on the Motion (Dkt. 72).

Objections to the Report and Recommendation were filed by Counter-Plaintiff Columbus A.

Alexander, III (“Alexander”) (Dkt. 73) and the Individual System Defendants along with the

Dallas Police & Fire Pension System (Dkt. 74). The Court ordered the Individual System

Case 4:17-cv-00631-ALM-KPJ Document 82 Filed 02/07/19 Page 1 of 3 PageID #: 4753

2

Defendants to file a response to Alexander’s objections (Dkt. 75). The Individual System

Defendants filed a response (Dkt. 78).

Counsel for the Individual System Defendants is aware that there is a split within the

Eastern District of Texas regarding the question of whether the Texas Citizens Participation Act

(“TCPA”) applies in federal court. See Dkt. 78 at 4 n.1. This issue, however, was not raised in the

Individual System Defendants’ objections to the Report and Recommendation. Rather, it was

raised for the first time in a footnote in the Court-ordered response to Alexander’s objections. Id.

This footnote neglected to represent to the Court that the presiding District Judge in this matter,

the Honorable Amos L. Mazzant, has consistently ruled against the Individual System Defendant’s

position. Dkt. 78 at 4 n.1 (“The Individual System Defendants do note, however, that there is

conflicting authority in this district on this point.”).

All lawyers appearing in court “must be ever conscious of the broader duty to the judicial

system that serves both attorney and client,” and owe to the judiciary a duty of candor, diligence,

and utmost respect. LOCAL RULE AT-3. Moreover, by representing to the court in a pleading or

written paper, an attorney certifies that to the best of the attorney’s knowledge, formed after an

inquiry reasonable under the circumstances, that the claims, defenses, and other legal contentions

are warranted by existing law. FED. R. CIV. P. 11(b). In this matter, Counsel for the Individual

System Defendants failed to accurately represent to the Court the current state of the law in the

Eastern District.

Counsel for the Individual System Defendants are hereby ORDERED to show cause why

they should not be sanctioned. Counsel shall submit a brief by February 14, 2019.

Case 4:17-cv-00631-ALM-KPJ Document 82 Filed 02/07/19 Page 2 of 3 PageID #: 4754

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

DALLAS POLICE AND FIRE PENSION SYSTEM, Plaintiff, vs. COLUMBUS A. ALEXANDER, III, Defendant and Counter-Plaintiff, vs. DALLAS POLICE AND FIRE PENSION SYSTEM; KELLY GOTTSCHALK; JOSHUA MOND; SUMMER LOVELAND; JULIE FORT; JULIE FORT, ATTORNEY, PLLC; MESSER, ROCKEFELLER, FORT, PLLC, Counter-Defendants.

§ § § § § § § § § § CAUSE NO. 4:17-cv-631-ALM-KPJ § § § § § § § § §

ALEXANDER’S RESPONSE TO THE SYSTEM’S AND INDIVIDUAL SYSTEM DEFENDANTS’ OBJECTION TO MAGISTRATE JUDGE PRIEST-JOHNSON’S

JANUARY 15, 2019 REPORT AND RECOMMENDATION

FACTUAL AND PROCEDURAL BACKGROUND

Instigating contentious and costly litigation seems to be the System’s preferred method

for suppressing information and silencing critics, particularly Alexander. On June 25, 2002, the

System filed a lawsuit against Alexander to force his surrender of all evidence of criminal

wrong-doing by System executives obtained by Alexander during his System-requested fraud

examination. On August 7, 2002, the System’s Board withdrew its lawsuit in order to suppress

publication of Alexander’s answer, known by System executives and trustees to contain

Alexander’s allegations against them and documentary evidence of crimes committed by System

executives. As part of the settlement agreement (the “Agreement”), the System reimbursed

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 1 of 6 PageID #: 4746

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 2

Alexander all his legal fees, and paid all his outstanding billings. The Chairman of the System’s

Board of Trustees even issued a crow-eating letter to the Dallas Morning News and the

Association of Certified Fraud Examiners apologizing for all the untrue things System officials

said to reporters about Alexander.1

On October 27, 2002, and continuing through September 15, 2004, Alexander issued over

100 Texas Public Information Act (“TPIA”) requests regarding the System, almost all of which

were answered by written reply from System executives Richard Tettamant, Don Rohan, or

System attorney Gary Lawson. All three men were actively involved in the 2002 Agreement, and

yet never refused a response to his requests, or alluded to the 2002 Agreement as a bar to

Alexander’s right to make such requests.2

On April 6, 2016, Alexander again began requesting information from the System

pursuant to the Texas Public Information Act. Information requested by Alexander related

primarily to System contracts, billings, and payments to various law firms, investigators, and

attorneys.

On May 23, 2016, System attorney Julie Fort sent a demand letter demanding Alexander

withdraw his most recent TPIA requests, and alleging his requests violated the 2002 Agreement.

Alexander promptly withdrew his requests to assuage her concerns even though he knew the

2002 Agreement did not prohibit him from making TPIA requests to the System. During the next

several weeks, System attorney Julie Fort’s law firm again threatened Alexander following

public information inquiries from his wife. Alexander’s wife was not a party to the 2002

Agreement, or any other contract with the System.

On June 23, 2016, rogue System employees Kelly Gottschalk, Joshua Mond, Summer

1 See Dkt. 20, ¶ 34, Def.’s Fifth Am. Answer and Countercl., pg. 34. 2 See Dkt. 20 at ¶ 35.

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 2 of 6 PageID #: 4747

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 3

Loveland, and System attorney Julie Fort sued Alexander under the false pretense of acting on

behalf of the System’s Board. Alexander had no open or pending requests with the System when

this lawsuit was filed.

ARGUMENT

I. The Objection Misrepresents The Facts And Misinterprets The Law Regarding Alexander’s Texas Declaratory Judgment Act Claim.

Alexander believes that further argument regarding the merits of the state court’s

judgment is unnecessary. He fully supports the findings of the Magistrate Judge that the System

has failed to “present substantial reasons for reconsideration of the state court’s decision” and

that “[i]n any event, the state court was correct that Alexander is entitled to file TPIA requests

with the System.”3 Instead of revisiting arguments already fully briefed in this case, it is

important to address a misrepresentation of fact and a misinterpretation of law in the System’s

Objection.

A. Misrepresentation of Fact.

The System’s Objection falsely claims, “The System seeks only to enforce an arms-

length “no contact” agreement as to Alexander, thereby prohibiting Alexander—not the public at

large—from contacting it to obtain public records.” (emphasis original)4 This is demonstrably

untrue. Alexander had no open or pending requests with the System when this lawsuit was filed.

Alexander was sued because his wife made public information requests to the System.

Alexander’s wife was not a party to the 2002 Agreement, or any other contract with the System.

B. Misinterpretation of Law.

The System Defendants seek to have this court overturn a state court judgment applying

3 Dkt. 72, Report and Recommendation of United States Magistrate Judge, pg. 12. 4 Dkt. 74, The System and Individual System Def.s’ Limited Obj. to Report and Recommendation on Mot. to Reconsider the State Ct.’s Order Granting Alexander’s Mot. for Partial Summ. J., pg. 5.

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 3 of 6 PageID #: 4748

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 4

Texas law based on a misapplication of a federal case. Alexander asserted a state law claim for

declaratory judgment in the 416th District Court of Collin County, Texas. His Motion for Partial

Summary Judgment was granted by the state court, and attorney’s fees were awarded. The

federal code clearly states that upon removal of a case from state to federal court, “[a]ll

injunctions, orders, and other proceedings had in such action prior to its removal shall remain in

full force and effect until dissolved or modified by the district court.”5 In a footnote, the System

Defendants argue that the Texas DJA is inapplicable in this case, citing a Fifth Circuit case that

neither began in state court nor involved a substantive state right.6 Alexander did not petition a

federal court for relief under either the federal or Texas DJA. Regardless of how this court

ultimately resolves the federal question that precipitated the removal, the state district court’s

declaratory judgment prior to removal should not be disturbed.

II. The Objection Misrepresents Texas Law Regarding Attorney’s Fees.

The state court’s summary judgment entitles Alexander to attorney’s fees, even against a

governmental entity. The Texas Supreme Court has emphatically and repeatedly held that the

DJA waives sovereign immunity and authorizes attorney’s fees.7 In Heinrich, the Court analyzed

its own opinions on the matter and concluded, “it is clear that suits to require state officials to

comply with statutory or constitutional provisions are not prohibited by sovereign immunity,

even if a declaration to that effect compels the payment of money.”8

While ignoring the numerous Texas Supreme Court cases that have firmly established

that “the DJA necessarily waives governmental immunity for [attorney’s fees] awards,”9 the

5 28 U.S.C. § 1450. 6 Dkt. 74, n.2. 7 See, e.g., Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 444-46 (Tex. 1994); HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 661 n.149 (Tex. 2007); Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004) 8 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). 9 Leeper, 893 S.W.2d at 446.

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 4 of 6 PageID #: 4749

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 5

System’s Objection (again in a footnote) cites an unpublished San Antonio Court of Appeals

opinion which held that in that particular case, “the recovery of attorney’s fees from the city

under the UDJA is incidental to and redundant of the relief provided by [a separately pled cause

of action].”10

In this case, after immunity had already been waived by the System filing a lawsuit

against him in state court, Alexander properly brought a declaratory judgment claim alleging that

System officials were not complying with the TPIA. He prevailed and was properly awarded

attorney’s fees. This court should not disturb the state court’s judgment.

REQUEST FOR ORAL HEARING

Pursuant to Local Rule CV-7(g), Defendant/Counter-plaintiff requests an oral hearing.

CONCLUSION AND PRAYER

For the reasons set forth above, Alexander respectfully requests that the Court conduct a

de novo review and adopt the Report and Recommendation as to the Motion to Reconsider.

10 City of San Antonio v. Rogers Shavano Ranch, LTD., No. 04-13-00623-CV, 2014 Tex. App. LEXIS 1757, at *1 (App.—San Antonio Feb. 19, 2014)

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 5 of 6 PageID #: 4750

RESPONSE TO OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION PAGE 6

Respectfully submitted, MONEY LAW FIRM

By: ______________________________ Brent A. Money Texas Bar No. 24049530

2606 Lee Street Greenville, Texas 75401 Phone: (903) 455-1600 Fax: (888) 756-4746 Email: brent@moneylawfirm.net

ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF, COLUMBUS A. ALEXANDER, III

Certificate of Service

The undersigned certifies that a copy of the foregoing instrument was served upon all counsels of record in the above-styled matter via electronic filing and email, in accordance with the applicable Rules of Civil Procedure on February 6, 2019.

__________________________________

BRENT A. MONEY

Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 6 of 6 PageID #: 4751

ALEXANDER’S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE PAGE 1 PRIEST-JOHNSON’S JANUARY 15, 2019 REPORT AND RECOMMENDATION

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION DALLAS POLICE AND FIRE PENSION SYSTEM, Plaintiff, vs. COLUMBUS A. ALEXANDER, III, Defendant and Counter-Plaintiff, vs. DALLAS POLICE AND FIRE PENSION SYSTEM; KELLY GOTTSCHALK; JOSHUA MOND; SUMMER LOVELAND; JULIE FORT; JULIE FORT, ATTORNEY, PLLC; MESSER, ROCKEFELLER, FORT, PLLC, Counter-Defendants.

§ § § § § § § § § § CAUSE NO. 4:17-cv-631-ALM-KPJ § § § § § § § § §

ALEXANDER’S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE

PRIEST-JOHNSON’S JANUARY 15, 2019 REPORT AND RECOMMENDATION Alexander respectfully files this reply in support of his Objection to Magistrate Judge

Priest-Johnson’s January 15, 2019 Report and Recommendation, Dkt. 73:

“The TCPA, regardless if classified as procedural or substantive, does not apply in federal court.”

— Hon. Judge Amos L. Mazzant1

1 Thoroughbred Ventures, LLC v. Disman, Civil Action No. 4:18-CV-00318, 2018 U.S. Dist. LEXIS 120272, at *7 (E.D. Tex. 2018); Van Dyke v. Retzlaff, Civil Action No. 4:18-CV-247, 2018 U.S. Dist. LEXIS 218669, at *7 (E.D. Tex. 2018); Star Sys. Int'l v. Neology, Inc., Civil Action No. 4:18-CV-00574, 2019 U.S. Dist. LEXIS 7366 (E.D. Tex. 2019).

Case 4:17-cv-00631-ALM-KPJ Document 79 Filed 02/06/19 Page 1 of 2 PageID #: 4744

ALEXANDER’S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE PAGE 2 PRIEST-JOHNSON’S JANUARY 15, 2019 REPORT AND RECOMMENDATION

Respectfully submitted, MONEY LAW FIRM

By: ______________________________ Brent A. Money Texas Bar No. 24049530

2606 Lee Street Greenville, Texas 75401 Phone: (903) 455-1600 Fax: (888) 756-4746 Email: brent@moneylawfirm.net

ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF, COLUMBUS A. ALEXANDER, III

Certificate of Service

The undersigned certifies that a copy of the foregoing instrument was served upon all counsels of record in the above-styled matter via electronic filing and email, in accordance with the applicable Rules of Civil Procedure on February 6, 2019.

__________________________________

BRENT A. MONEY

Case 4:17-cv-00631-ALM-KPJ Document 79 Filed 02/06/19 Page 2 of 2 PageID #: 4745

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

DALLAS POLICE AND FIRE PENSION

SYSTEM,

Plaintiff,

v.

COLUMBUS A. ALEXANDER, III,

Defendant and Counter-Plaintiff,

v.

DALLAS POLICE AND FIRE PENSION

SYSTEM, KELLY GOTTSCHALK,

JOSHUA MOND, SUMMER

LOVELAND,

JULIE FORT, JULIE FORT,

ATTORNEY, PLLC, and MESSER,

ROCKEFELLER, FORT, PLLC,

Counter-Defendants.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

ORDER

In light of new arguments raised for the first time in the parties’ obje

to the January 15, 2019, Report and Recommendation (Dkt. 72), the Court her

its Report and Recommendation (Dkt. 72). The Court will enter an amended

recommendation under separate cover.

NO. 4:17-CV-00631-ALM-KPJ

ctions and responses

eby WITHDRAWS

order and report and

IT IS SO ORDERED.

Case 4:17-cv-00631-ALM-KPJ Document 81 Filed 02/06/19 Page 1 of 1 PageID #: 4752

3

The Court will conduct a Show Cause Hearing in this matter on February 19, 2019, at

10:30 a.m., at the United States Courthouse, 7940 Preston Road, Plano, Texas 75024. Counsel for

the Individual System Defendants and Alexander shall be present.

IT IS SO ORDERED.

Case 4:17-cv-00631-ALM-KPJ Document 82 Filed 02/07/19 Page 3 of 3 PageID #: 4755