Castleman Consulting vs. The Offline Assistant Appeal Paperwork

No.
07-16-00320-CV
Seventh Court of Appeals

at Amarillo
Timothy Castleman and
Castleman Consulting, LLC,
Appellants,
v.
Internet Money Limited and
Kevin OConnor,
Appellees.
On Appeal from the 237th District Court

of Lubbock County
Trial Court No. 2016-519,740
Castlemans Opening Brief
Leif A. Olson
State Bar No. 24032801
leif@olsonappeals.com
The Olson Firm, PLLC
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
(281) 849-8382
Oral argument requested
Counsel for
Appellant Vision 20/20
Identity of Parties and Counsel

Defendants-appellants
Timothy Castleman
Leif A. Olson
Castleman Consulting, LLC
PMB 188
Humble, Texas 77396
(281) 849-8382
Counsel on appeal
Jared B. Hall
JHallAttorney@gmail.com
P.O. Box 6982
Lubbock, Texas 79493
(206) 853-7182
Counsel in trial court
Plaintiffs-appellees
Timothy Castleman
Internet Money Limited
J. Paul Manning
jpmanning@lubbocklawfirm.com
Anna McKim
amckim@lubbocklawfirm.com
Field, Manning, Stone,
Hawthorne & Aycock, P.C.
2112 Indiana Avenue
(806) 792-0810
Table of Contents
Identity of Parties and Counsel ........................................................... 1
Table of Contents ............................................................................... 2
Index of Authorities ............................................................................ 4
Statement of the Case ......................................................................... 7
Glossary .............................................................................................. 7
Statement on Oral Argument .............................................................. 8
Issue Presented ................................................................................... 9
Facts ................................................................................................. 10
A. Castleman gives OConnor instructions on ordering
products. ................................................................................. 10
B. OConnor doesnt follow the instructionsand cant admit
it. ........................................................................................... 14
C. Castleman reviews OConnors work. .................................... 16
D. OConnor sues........................................................................20
Summary of Argument...................................................................... 22
Standards .......................................................................................... 23
1. Proceedings under the Act. ................................................ 23
2. Defamation requires a falsehood. ....................................... 25
3. Truth is a defense. ............................................................. 25
Argument: OConnor didnt meet his burden to furnish prima facie
evidence of defamation because Castlemans statements are protected speech.
The trial court erred in denying the motion to dismiss. ............................ 26
A. This case is based on Castlemans exercise of his freedom to
speak. ...................................................................................... 26
B. OConnors attempt to establish a prima facie case failed. ...... 27
1. There is no evidence that the factual statements were

false. .................................................................................. 27
2. Opinions cant be false. ...................................................... 29
C. Castlemans statements were true. ......................................... 33
D. The commercial-speech exception in the Act doesnt
swallow the rule that Castlemans speech protected. .............. 35
E. Both defendants moved to dismisswhich OConnors
response to the motion recognized. ......................................... 37
F. Castleman has proved his legal fees as a matter of law. ............ 39
Conclusion and Prayer ...................................................................... 39
Certificate of Compliance .................................................................40
Certificate of Service.........................................................................40
Index of Authorities
Cases
Arant v. Jaffe
436 S.W.2d 169 (Tex. Civ. App. Dallas 1968, no writ) ............... 33
Backes v. Misko
486 S.W.3d 7 (Tex. App. Dallas 2015, pet. denied) ................... 36
Beaver County, Okla., Bd. of Commrs. v. Amarillo Hospital Dist.
835 S.W.2d 115 (Tex. App. Amarillo 1992, no writ)................... 39
Bentley v. Bunton
94 S.W.3d 561 (Tex. 2002) .................................................... 25, 30
Billington v. Houston Fire & Cas. Ins. Co.
226 S.W.2d 494 (Tex. Civ. App. Fort Worth 1950, no writ) ...... 33
Farah v. Esquire Magazine
736 F.3d 528 (D.C. Cir. 2013) ...................................................... 32
Franklin v. Dynamic Details, Inc.
10 Cal. Rptr. 3d 429 (Cal. App. 2004) .......................................... 33
Greenbelt Cooperative Publishing Assn. v. Bresler
398 U.S. 6 (1970) ......................................................................... 33
Gustafson v. City of Austin
110 S.W.3d 652 (Tex. App. Austin 2003, pet. denied) ...............26
Hancock v. Variyam
400 S.W.3d 59 (Tex. 2013) .......................................................... 25
Hicks v. Group & Pension Administrators, Inc.
473 S.W.3d 518 (Tex. App. Corpus Christi 2015, no pet.) ... 36, 37
Hogan v. Winder
762 F.3d 1096 (10th Cir. 2014) ..................................................... 33
Kachina Pipeline Co. v. Lillis
471 S.W.3d 445 (Tex. 2015) ........................................................ 28
Kinney v. BCG Attorney Search, Inc.

No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App. Austin April
11, 2014, pet. denied) ................................................................... 36
Lamons Gasket Co. v. Flexitallic L.P.
9 F. Supp. 3d 709 (S.D. Tex. 2014) .............................................. 36
Masson v. New Yorker Magazine
501 U.S. 496 (1991) ...................................................................... 35
McIlvain v. Jacobs
794 S.W.2d 14 (Tex. 1990) ..................................................... 26, 35
Milkovich v. Lorain Journal Co.
497 U.S. 1 (1990).......................................................................... 25
Miller Weisbrod, L.L.P. v. Llamas-Soforo
No. 08-12-00278-CV, __ S.W.3d __, 2014 WL 6679122 (Tex.
App. El Paso Nov. 25, 2014, no pet.) ......................................... 36
Moore v. Waldrop
166 S.W.3d 380 (Tex. App. Waco 2005, no pet.)....................... 33
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.
745 F.3d 742 (5th Cir. 2014) ......................................................... 36
Neely v. Wilson
418 S.W.3d 52 (Tex. 2013) ............................................... 25, 29, 35
New Times, Inc. v. Isaacks
146 S.W.3d 144 (Tex. 2004)................................................... 25, 30
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.
416 S.W.3d 71 (Tex. App. Houston [1st Dist.] 2013, pet. denied)
..................................................................................................... 36
Old Dominion Branch No. 496, Natl. Assn. of Letter Carriers v. Austin
418 U.S. 264 (1974)................................................................ 30, 31
Ragsdale v. Progressive Voters League
801 S.W.2d 880 (Tex. 1990) ........................................................ 34
5
Rehak Creative Servs., Inc. v. Witt

404 S.W.3d 716 (Tex. App. Houston [14th Dist.] 2013, pet.
denied)........................................................................................ 24
Schimmel v. McGregor
438 S.W.3d 847 (Tex. App. Houston [1st Dist.] 2014, pet.
denied)......................................................................................... 36
Whisenhunt v. Lippincott
474 S.W.3d 30 (Tex. App. Texarkana 2015, no pet.) ................. 36
Wood v. Del Giorno
974 So. 2d 95 (La. App. 2007) ...................................................... 33
Statutes
Tex. Civ. Prac. & Rem. Code 27.001 ............................ 26, 36
Tex. Civ. Prac. & Rem. Code 27.002................................. 24
Tex. Civ. Prac. & Rem. Code 27.005 ................................. 24
Tex. Civ. Prac. & Rem. Code 27.009 ................................. 24
Tex. Civ. Prac. & Rem. Code 27.010 .................................. 35
Tex. Civ. Prac. & Rem. Code 27.011 .................................. 23
Rules
Tex. R. Civ. P. 91......................................................................... 38
Nature of the case
Statement of the Case

Texas Citizens Participation Act motion to dismiss defamation claims
Trial court
237th District Court

Judge Les Hatch
Trial court
proceedings
OConnor sued Castleman for defamation for

statements Castleman had made on his podcast
and in a blog post. CR __. Castleman moved under the Texas Citizens Participation Act to dismiss the claims because the statements were an
exercise of the right to free speech. CR __.
Trial court
disposition
The trial court denied the motion. CR __. After

the deadline to do so, it issued findings of fact
and conclusions of law identifying six statements that were susceptible of a defamatory
meaning. Appx. 4.
Castleman
Glossary
Appellants Timothy Castleman
and Castleman Consulting, LLC
CR
Clerks record
OConnor
Appellees Kevin OConnor and

Internet Money Limited
1SCR
First supplemental clerks record
2SCR
Second supplemental clerks

record
Statement on Oral Argument

Castleman requests oral argument. This would allow the Court to
address particular concerns it may have about the statements at issue
and the context in which they were made. It would also allow the Court
a full opportunity to consider the substance of the statute at issue, which
it has done in only one case.
Issue Presented
A customer posted online about his experience with a
service provider. The post described their interactions
and the providers breach of their contract, opined on
the providers performance, and suggested that others
avoid the provider. The provider asserts that the post
was defamatory because he read the parties contract
differently.
Did the trial court err in denying the customers motion
to dismiss under the Texas Citizens Participation Act?
Facts
A. Castleman gives OConnor instructions on ordering products.
Castleman hired OConnor and his company to work as a virtual assistant. CR _. Among OConnors duties were placing orders with suppliers for delivery of products that customers had ordered from Castlemans website. Id. Castleman sold some products in different lot
sizes than the sizes in which products were supplied. Id.. That is, Castleman might have sold widgets in lots of 10, but the widgets came from
the supplier in lots of 5. Id.
Castleman furnished OConnor with instructions for how orders
were to be placed. Appx. 1. The instructions included an example that
demonstrated how multiple-unit products were to be ordered. The first
three steps in the instructions were to log in to Aliexpress, the orderfulfillment website; sort the orders to find the unfulfilled ones; and click
on an unfulfilled order to open it. Appx. 1 at CR _. The next step was
to look at the order, paying special attention to the amount of each
item. Appx. 1 at CR _. It was accompanied by this illustration, in
which the example customer ordered two of each item:
10
Appx. 1 at CR _.
The very next instruction and illustration described what to do when
Castleman and the supplier had different lot sizes:
Now go to the Products In Store Spreadsheet and find
the first product on the spreadsheet. Pay special attention to the rows Variation and Volume. The volume of the Kawaii Sticker Tabs means that if someone
ordered 1 of the item in the store, then we would order
2 in Aliexpress. If someone orders 2 in the store then we
order 4 on Aliexpress. The Variation tells you which
item on the Aliexpress listing to order.
11
Appx. 1 at CR _. As the written instructions specifically noted, the Kawaii Sticker Tabs had a volume of 2, so OConnor would need to order
two sets of tabs from the supplier for every single set of tabs that a customer ordered from Castleman. Id. No other item in the instructional
spreadsheet had a separate volume value. Id. Only the Kawaii Sticker
Tabs, with their value of 2, had a volume value at all. Id. That is, no
product was to be ordered in anything other than a one-to-one quantityexcept for the one product that had a different volume number
listed.
The example continued with how to place the items in the online
shopping cart. Once the last item had been added, Castlemans instructions told OConnor to compare what is in your cart[] with the order
and double check that you have all the things and they are all entered
correctly. Appx. 1 at CR _. Castleman used the earlier example order,
12
in which the customer had ordered two of each item, to show how a
properly placed order with the supplier would look:
Appx 1 at CR _. The example customer had ordered two of each item;

OConnor was supposed to fulfill the example order by ordering two of
every itemexcept for the Kawaii Sticker Tabs, which Castlemans
spreadsheet indicated had a volume of 2. Id. For those, OConnor
would properly fulfill the order by ordering from the supplier two times
what the customer had ordered from Castleman: He would, just as Castlemans written instructions had stated, fulfill the order properly by
ordering four. Id.
13
Castleman also gave OConnor an actual spreadsheet of the products he sold. CR _. As in the example spreadsheet, one of the values for
each product was volume. Id. The numbers for the actual products
varied depending on the product; most were 1 (or blank), but some were
2 or 3. Id. One of the products was Pretty Pastel Washi Tape. (Washi
tape is made of paper; usually colored or decorated; and usually used in
paper crafts, particularly scrapbooking.) The tape had a value of 1for
every 10-roll package of tape that a customer ordered from Castleman,
OConnor was supposed to order a single 10-roll package of the tape
from the supplier:
Id.
B. OConnor doesnt follow the instructionsand cant admit it.
In November 2015, Castleman reviewed his web stores finances for
the previous month and noticed discrepancies between his expected
and actual profits. CR _. Further inquiry revealed that OConnor was,
14
as he was later to admit, regularly double-ordering every product that a

customer had purchased. Id. The Washi tape, for instance, was Castlemans best-selling product. Id. The cost of the tape to Castleman was
$1.75but every time a customer ordered the tape, Castleman paid
$3.50 to fulfill the order because of OConnors double ordering. CR _.
A full review of every one of the more than 2,488 orders that OConnor had placed showed errors in slightly more than 80% of them. CR _.
Those errors, small individually, were, in the aggregate, large; the review of OConnors orders showed almost $8,000$7,897.68in
over-ordered goods. CR _.
Rather than admit his mistake, OConnor blamed Castleman for the
error. CR _. He pointed to the example of the Kawaii Sticker Tabs in
the instructions, which said that he was to order twice as many tabs
from the supplier as the customer ordered. CR _. He interpreted this to
mean that every item, not just the ones with a volume number of 2, was
to be double-ordered. CR _. He said nothing about the rest of the example, which showed only the tabs being double-ordered. He also justified himself by pointing to a pair of instant messages that one of his representatives had exchanged with Castlemans assistant. He asserted
that those messages confirmed that every item was to be double-ordered
from the supplier:
15
if anyone is in there rigth now

taking care of an order for Jamie
Jay, please stop. Im cancelling her
order
For these 2 products: let us

know how we can process these
since there are no specific colors
ordered.
sorry, we had one fulfilled for Jamie

before the message
For those two, you actually order on

of each of the listing
1 blue, 1 red, 1 pink, etc. etc.
crudwellI will see if I can kill

it. Thanks for letting me know.
well not double them?

no, just one of each
CR _, _. In neither conversation did the employee mention a belief that

all products were to be double ordered. Nor did Castlemans assistant
in either conversation instruct that all productsindeed, any productsshould be double ordered.
Further communications with OConnor resulted only in his declaring that he considered the matter to be closed. CR _.
C. Castleman reviews OConnors work.
Out several thousand dollars with no amicable resolution in sight,
Castleman took to the court of public opinion. He wrote a 33-paragraph
review, Warning: Stay Away From The Offiline Assistant Company
& Kevin OConnor. Appx. 2. He posted the review on his website and
on his Facebook page. Id.; CR _. He also uploaded a video to YouTube
and uploaded a podcast to his website, both of which paraphrased the
written review. CR _.
16
Castleman opened the review by recounting how he had come across

OConnors error and the extent of that error:
On November 18th, 2015 during a routine review of our
books, our accountant noticed a $7,897.68 error caused
by Kevin OConnors Offline Assistant Company.
We hired Kevin and his company to fulfill our physical
product store orders and it turns out that they had been
double ordering and shipping our most popular item to
customers at our expense for no understandable reason.
Once the error was discovered, I immediately had the
last 100 orders they had placed for us reviewed, and
there was an 85% error rate in those orders so we started
to dig deeper.
We pulled our financial records from the store, the supplier, and matched them to our credit card statements
for them to get a full accounting of just how bad it was.
When all was said in done, Kevins employees had over
ordered and shipped products to the tune of a
$14,968.45 almost DOUBLE what the orders should
have cost and costing us $7,897.68 in profit.
Appx. 2 at CR _. He summarized their correspondence about the errors, noting that OConnors position was that he was following the example from Castlemans instructions. Appx. 2 at CR _.
Castleman described the then-current situation as he saw it:
17
Kevins company over ordered and shipped an additional $7,897.68 worth of products to my customers
which I now have to pay out of my own pocket
No one from his company (that we hired to manage
this for us) reviewed any of the orders to ensure they
were being done correctly despite his assurances they
do quality control and project management on all jobs.
There was an 85% error rate by his staff in ordering
products for us
When presented with facts (credit card statements,
Shopify print outs, and AliExpress orders) Kevin still
refused to accept any responsibility and to this day has
refused to pay me back for his company and employees
mistakes.
Appx. 2 at CR _. The next several paragraphs recounted Castlemans
personal interactions with OConnor; his earlier promotion of OConnors business; and his telling several business associates, who later
signed up with OConnor themselves, about OConnors services.
Appx. 2 at CR _.
This led Castleman to the reasons for his review:
Im writing this post to warn others and share my personal experience with Kevin OConnor and his company.
If you choose to use him after seeing that he doesnt
stand behind his employees work, has zero quality control or checks to ensure work is being done correctly,
18
and no matter how much proof you have of their mistakes, he will never admit when his team has made a
mistake or compensate you in any fashion for those mistakes go ahead.
If you want to host a webinar, podcast, or invite him to
speak on stage after reading this, thats your choice and
speaks more to your core values than mine.
I just refuse to have people who have helped him in the
past have their name associated with him or his company without knowing the facts about what he did to our
[e-commerce] business and his unwillingness to stand
behind his word and his employees mistakes.
Appx. 2 at CR _.
The review Castleman posted on Facebook garnered 99 likes and
more than two dozen comments. CR _. The same day that he posted
his review, he also posted a link to the review on his podcasts Facebook
page. CR _. That post garnered at least 21 more likes and several more
comments. Id.
A little more than a week later, Castleman posted to his podcasts
Facebook page a link to a domain-name seller showing that OConnor
had purchased several new domain names. Appx. 3. (One can infer
from the comments to that post that OConnor was buying several different top-level domainsthe codes like .net, .org, .info, and the like
so that no one could put up a critical website using his own companys
19
trade name, TheOfflineAssistant.com.) That evening, someone commented on that link, This is the same guy that practically stole from
you right? The fulfillment guy? Appx. 3 at CR _. Castleman responded, Yep same guy. Id.
D. OConnor sues.
OConnor doubled down on his blame shifting after Castleman sent
a demand letter for reimbursement of the over-ordered amounts. CR _.
In his counter-demand letter, he claimed that Castleman had specifically and unambiguously directed him to double all orders. CR _.
When Castleman refused to take down his reviews, OConnor sued for
defamation. CR _.
OConnor put forth a panoply of statements he claimed were defamatory. CR _. The trial courts findings of fact narrowed these to just six:
That there was an 85% error rate in the orders OConnor
fulfilled;
That [n]o one from [OConnors] company reviewed any of
the orders to ensure they were being done correctly;
That OConnor employed zero quality control or checks to
ensure work is being done correctly;
That OConnor was unwilling[] to stand behind his word;
Replying Yep same guy when asked whether OConnor
practically stole from him; and
20
That OConnor is someone that doesnt stand behind [his]

work, [his] team does not quality checks or assurances, and if
theres ever a problem, [hes] not going to fix it for you, especially when it comes to financial.
Appx. 5 at 2SCR 5.
OConnor introduced no evidence that the statements were false
other than his argument that he was following Castlemans instructions. CR _. No affidavit swore that Castleman or his agent had told
him to double-order every item. No affidavit described any quality-control or review processes. No evidence contradicted the calculated error
rates. No argument posited, or evidence supported, that Castleman was
faking his displeasure with OConnors work. OConnors sole argument was that his interpretation of the instructions was rightand that
the two IM exchanges with Castlemans confirmed thisso Castlemans statements that OConnor had violated the instructions were
necessarily false. CR _.
OConnor put forth two legal challenges to the motion. He asserted
that it was untimely, but the trial court had granted Castleman relief
from a technical failure and deemed the motion timely. CR _. And he
asserted that the commercial-speech exception to the Act applied because Castleman was in the business of selling goods. CR _.
The trial court denied the motion to dismiss. Appx. 4. It issued findings of fact and conclusions of law that Castleman hadnt shown that
the suit concerned his right to free speech; that there was a prima-facie
21
case that the six statements were false and susceptible of defamatory
meaning; that Castleman hadnt proven that the statements were true;
and that the commercial-speech exception to the Act applied. Appx. 5
at 2SCL 47.
Castleman now appeals. Appx. 6.
Summary of Argument
The trial court erred in denying the motion to dismiss. OConnors
lawsuit is based on Castlemans exercise of his freedom to speak, so
Castleman is entitled to dismissal unless OConnor could produce evidence to support each element of his claim for defamation. He couldnt.
His sole argument was that Castlemans statements are defamatory because he did what he was instructed to do. But the evidence is conclusive that he didntthe instructions are unambiguous and, in fact, directly contradict what OConnor claims they said. Because he has no
evidence that he complied with the instructions, he has no evidence that
Castlemans statements that he didnt comply with the instructions are
false. Further, most of Castlemans statements are protected opinion
that cant constitute defamation; and all of the statements that can be
construed as facts are, as a matter of law, true or substantially true.
OConnors legal and procedural arguments fail, too. The commercial-speech exemption doesnt apply her to allow his lawsuit because
22
Castlemans statements werent intended to try to win customers for

himself. His argument that Castleman Consulting wasnt a party to the
motion to dismiss is wrong, too. He didnt except in the trial court that
the movants identities were unclear, so he cant complain about it
nowparticularly because there is nothing in the record showing that
such a complaint was ever considered and all of the evidence that is in
the record supports the opposite conclusion.
Finally, Castleman established his legal feesan award of which is
mandatory when a party prevails on a motion to dismiss under the
Actas a matter of law.
The Court should reverse the trial courts judgment, render judgment that OConnors suit is dismissed, render judgment that Castleman recover his attorneys fees, and sever that judgment from the
rest of the case and remand for a determination of the sanction to be
imposed upon OConnor.
Standards
1. Proceedings under the Act.
This appeal arises under the Texas Citizens Participation Act, which
the Court is to construe liberally to effectuate its purpose and intent fully. Tex. Civ. Prac. & Rem. Code 27.011(b). That purpose is to encourage and safeguard each persons Constitutional
right to speak freely to the maximum extent permitted by law and,
23
at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. Id. at 27.002. Under the Act, Castleman is entitled to dismissal if he, as the movant, establishes by a preponderance of the evidence that OConnor sued him because he exercised one of his protected rights. Id. at 27.005(b). OConnor, as the
claimant avoids dismissal only if he brings forth clear and specific evidence of a prima facie case on each essential element of his claim. Id. at
27.005(c). Whether he has done so is a question of law. Rehak Creative
Servs., Inc. v. Witt, 4040 S.W.3d 716, 726727 (Tex. App. Houston
[14th Dist.] 2013, pet. denied). Even then, Castleman is still entitled to
dismissal if he establishes by a preponderance of the evidence each
essential element of a defense. Tex. Civ. Prac. & Rem. Code
27.005(d).
The Act makes two awards mandatory if a defendant prevails on a
motion to dismiss. First, the defendant must be awarded court costs,
legal fees, and other expenses incurred in defending against the suit.
Tex. Civ. Prac. & Rem. Code 27.009(a)(1). Second, the court
must impose a sanction upon the plaintiff sufficient to deter it from
bringing similar suits in the future. Id. at 27.009(a)(2).
24
2. Defamation requires a falsehood.

Defamation first requires a false statement of fact. Bentley v. Bunton,
94 S.W.3d 561, 580 (Tex. 2002). A statement is a fact if it can be objectively verified. Milkovich v. Lorain Journal Co., 497 U.S. 1, 1922
(1990); Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013). Whether a statement is an assertion of fact or an assertion of opinion depends on the
entire context surrounding the statement; unless a reasonable reader
could believe that a statement was both false and factual, it is protected.
Bentley, 94 S.W.3d at 58081; New Times, Inc. v. Isaacks, 146 S.W.3d
144, 154 (Tex. 2004); Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex.
2013). Hyperboleexaggeration for effectdoesnt qualify as a false
fact. Bentley, 94 S.W.3d at 578; Milkovich, 497 U.S. at 20; see also New
Times, 146 S.W.3d at 167. The objective-verification and reasonablereader analyses are both questions of law. Bentley, 94 S.W.3d at 58081.
3. Truth is a defense.
A statement isnt defamatory if its true. See Neely, 418 S.W.3d at
57. In defamation cases, true is a term of art. A statement is true for
defamation purposes if it is substantially true, that is, if the gist of
the complete statement is correct. If the gist and sting of the statementthat is, the hit to the plaintiffs reputationarent substantially
worse than the sting of the literal truth, then the statement is substantially true and not actionable. McIlvain v. Jacobs, 794 S.W.2d 14, 15
25
16 (Tex. 1990). This test applies to private-figure plaintiffs like OConnor. Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App. Austin 2003, pet. denied) (applying test to private figure).
Argument:
OConnor didnt meet his burden to furnish prima facie
evidence of defamation because Castlemans statements are
protected speech. The trial court erred in denying the motion to
dismiss.
A. This case is based on Castlemans exercise of his freedom to
speak.
There is no question that OConnor sued Castleman because Castleman exercised his right to speak. See Tex. Civ. Prac. & Rem.
Code 27.001(1), (3). The pleadings and evidence are conclusive.
OConnor cannot be suing for defamation unless Castleman said something; the only question is whether Castlemans speech was on a matter of public concern. The Act defines public concern to include
an issue related to a good, product, or service in the marketplace.
Tex. Civ. Prac. & Rem. Code 27.001(7)(E). Castlemans
statements were about the services that he received from OConnor,
which OConnor was continuing to offer in the marketplace. Castleman
noted in his review that he was posting the review specifically because
OConnor continued to offer those services in the marketplaceand
others had hired OConnor because of him. Appx. 2 at CR _. Indeed,
26
OConnors entire complaint is that Castlemans statements about his

business reduced the amount of business he was doing. CR _.
The evidence and pleadings are conclusive: This case is based on
Castlemans right to free speech.
B. OConnors attempt to establish a prima facie case failed.
OConnor tripped over the first hurdle he had to overcome to avoid
dismissal: He needed to introduce clear and specific evidence showing
a prima facie case of each element of his claim, but he failed. He offered
no evidence that Castlemans statements were false. In some cases he
couldnt have, because Castleman stated not facts, but opinions. Castleman was entitled to dismissal.
1. There is no evidence that the factual statements were false.
a. The instructions are unambiguous, and they unambiguously contradict OConnor.
The sole basis on which OConnor claims falsehood is that he was
actually instructed to double-order every item. CR _. But there is no
evidence that he did so. The instructions from Castleman say nothing
about double-ordering every item. On the contrary: They go to great
lengths to demonstrate the difference between items that should be
double ordered and those that should not. Appx. 1 at CR _.The example
that runs through the instructions posits an order for two units apiece
of Kawaii Sticker Tabs, listed with a volume of 2, and three other items.
27
Appx. 1 at CR _. One step in the instructions is to compare the customers order with the order to the supplier to make sure that the correct quantities are entered. That step shows OConnor ordering two
units of everythingexcept for the Sticker Tabs, of which he is ordering four. Appx. 1 at CR _.
OConnor offered no evidence that he was told to disregard the instructions or to vary from the example. He in fact claims that the instructions were explicit that he double order everythingthe same instructions that include an example order showing some items being
double ordered and some items ordered normally. CR _. His only other
proffer is two instant-message exchanges. CR _. But those are no evidence, either. One message concerns the way that orders for a particular
product are to be filled; the other concerns an attempt to cancel a customers order. CR _, _. Neither mentions double ordering, much less
that OConnor is supposed to double everything.
The instructions were unambiguous and can be construed as a matter of law. See Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449450
(Tex. 2015). Even if they were ambiguous, there is no plausible argument that they say what OConnor claimsthe instructions themselves go to great length to contradict it. They cannot support OConnors claim that Castlemans statements about OConnors performance were false.
28
b. OConnor introduced no evidence of falsity.

OConnor introduced no evidence that Castlemans statements are
false. Assuming that they are statements of fact, there must be evidence
that they are untrue for OConnor to establish a prima facie case of defamation. There is none.
There was no testimony, pleading, or other evidence describing any
quality-control or review processes. There was no evidence to contradict Castlemans initial calculation of an 85% error rate. There was no
evidence or argument that Castleman was faking his displeasure with
OConnors work. And there is no evidence that OConnor fixed the
problem he caused Castlemanunsurprising, given that OConnors
position is that he did everything right.
OConnor needed only to show a prima facie case of falsity. He
chose to show nothing.
2. Opinions cant be false.
a. Pure opinions.
Several of Castlemans statements cant be defamatory because they
cant be false because theyre opinions. Statements that OConnor
isnt willing to stand behind his word or to fix problems are pure opinion. See Neely, 418 S.W.3d at 62. Assuming first of all that we could
come to an objective definition of word in this contexta formal
promise? a written agreement? any oral statement of intent? an oral
29
acknowledgement of someone elses interpretation of his obligations?there is no objective, verifiable test for when OConnor has
stood behind it. See Appx. 2 at CR _. Does he stand behind his word
when he does whatever the client requests? Does he do so when he performs what he believes his obligations to be under an agreement? Does
he do so by performing even when agreements (or understandings) are
oral rather than written? And in the same vein, how would he fix problems? See Appx. 2 at CR _. What constitutes a problem for him versus
a problem for his client? Is he supposed to fix the latter even if its not
covered by a contract? Is he supposed to fix a problem to the extent
that a reasonable person would think a breach of contract cured, or does
he fix a problem by ensuring that his client, even if unreasonable, is
happy?
The only thing that is sure from the statement is that Castleman is
unhappy with OConnors work. And Im unhappy with your work
is a pure expression of opinion.
b. Contextual opinions.
Castlemans statements must be analyzed through the eyes of a typical reader of his blog or Facebook feed or listener to his podcast. New
Times, 146 S.W.3d at 160161; Old Dominion Branch No. 496, Natl.
Assn. of Letter Carriers v. Austin, 418 U.S. 264, 284286 (1974). Cf.
Bentley, 94 S.W.3d at 584585. In context, that analysis shows that some
30
of the statements that OConnor derides as false facts are, in fact, opinions.
In the context of his review, as read by a regular visitor to his blog or
Facebook page, Castlemans statements that OConnor performed no
quality control and reviewed none of the orders are expressions of frustration. The statements come in the middle of a 33-paragraph review
that spent the last several paragraphs describing the errors committed
in ordering; the work needed to uncover and quantify those errors; the
communications to attempt to cure those errors; and the refusal to reimburse for the cost the errors imposed. Appx. 2 at CR _.They demonstrate his dissatisfaction with a contractor who erred in 80% of the tasks
that were assigned to him. No reasonable reader of Castlemans entire
reviewa person who sought out Castlemans blog, YouTube channel,
podcast, or Facebook pagewould conclude that these statements
were anything other than rhetorical hyperbole, a lusty and imaginative
expression of the contempt felt by Castleman toward someone who
hadnt performed as he had promised. Letter Carriers, 418 U.S. at 286.
In the same vein, Castlemans statement, Yup same guy, when
asked whether OConnor was the same person who had practically
stole[n] from him is simply hyperbole. Appx. 3 at CR _. The statement
was posted as a response to a Facebook comment, but that simply looks
at the statement in isolation. It is that whole context, which includes
31
the immediate context of the disputed statements,the type of publication, the genre of writing, and the publications history, that determines how the statement would be understood by the readers to whom
it was addressed and thus whether it could be defamatory. Farah v.
Esquire Magazine, 736 F.3d 528, 535 (D.C. Cir. 2013) (internal citations
and quotations omitted).
Looking at the full context here, Castlemans Yup same guy must
be read through the eyes of a person who had gone to the Facebook page
for Castlemans podcast; read the link (about OConnors buying up of
domain names) that accompanied the post; and understood from the
link, the earlier comments, and Castlemans reviewwithout which
neither the link nor the comments can be understoodthat the comment referred to OConnor. And no reasonable reader armed with that
knowledge would believe that Castleman was either accusing OConnor
of thievery or agreeing with such an accusation. It would be clear to that
reader that the comment was referring to the several thousands of dollars that OConnor had cost Castleman and hadnt reimbursed to him.
And this would have been the case even if Castleman had simply
come out and stated, OConnor practically stole from me. There is
no innuendo or suggestion of actual criminality; in context, its clear
that Castleman would be referring to the money that OConnor cost
him. Directed verdicts on similar statements have been upheld: The
words liar and crook were abusive and opprobrious, but they did not
32
impute the commission of a crime. Billington v. Houston Fire & Cas.

Ins. Co., 226 S.W.2d 494, 497 (Tex. Civ. App. Fort Worth 1950, no
writ); see also Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex. App. Waco
2005, no pet.); Arant v. Jaffe, 436 S.W.2d 169, 176177 (Tex. Civ. App.
Dallas 1968, no writ). Indeed, direct statements accusing people of
much worse have been found to be protected opinion as a matter of law.
See, e.g., Greenbelt Coop. Publg. Assn. v. Bresler, 398 U.S. 6, 1314 (1970)
(plaintiff committed blackmail); Hogan v. Winder, 762 F.3d 1096,
11091110 (10th Cir. 2014) (plaintiffs actions go by the names of
blackmail and extortion); Wood v. Del Giorno, 974 So. 2d 95, 97
(La. App. 2007) (plaintiff was complete fraud and out-and-out lying); Franklin v. Dynamic Details, Inc., 10 Cal. Rptr. 3d 429, 437 (Cal.
App. 2004) (plaintiff stole copyrighted materials and plagiarized
data).
C. Castlemans statements were true.
Even if OConnor had cleared his hurdle, his case would still have
to be dismissed because Castleman has established as a matter of law
that the factual statements are true.
The pleadings and the evidenceall of the relevant evidence, given
that OConnor introduced nonesupport the finding that Castlemans
statements, to the extent they are factual, are true. Castleman testified
in his affidavit to the same thing he wrote in his review: His review of a
33
sample of OConnors orders showed an 85% error rate, and a full review showed an error rate of approximately 80%. CR _. Castleman said
that there was no quality control or review; OConnor got only 20% of
the orders right and described no reviews or procedures. CR _. Castleman said that OConnor didnt stand behind his word; OConnor
wouldnt reimburse the extra costs that he imposed. CR _.
There is no evidence to contradict any of this. There are no pleadings that can be read to contest it. OConnors only argument is that he
read the instructions right. CR _. He didnt. Argument B.1.a. There
is no evidencemuch less legally sufficient evidenceof falsity. All of
the evidence supports the finding that Castlemans statements are true.
And all of that evidence is clear, positive, direct, and free from anything
that would tend to cast suspicion on its truth. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). The truth of the statements is thus established as a matter of law. Id.
And even if OConnor had shown a smidgen of quality control or
order review, so what? Quality control measures that result in an 80%
error rate might as well be no measures at all; whatever review was being employed didnt catch that OConnors interpretation of the instructions directly contradicted the example given in the instructions.
The sting of the truthOConnor employed quality-control
measures that resulted in a 20% success rate; OConnors review of the
orders didnt catch that he was directly contradicting the instructions
34
he was givenis no worse than what Castleman said. McIlvain, 794

S.W.2d at 1516. Defamation law polices outright falsehoods; the
cranny between Castlemans statements and the Platonic truth doesnt
have to be calibrated to the same tolerances as the gaps between heatshield tiles on a space shuttle. See Neely, 418 S.W.3d at 76, citing Masson
v. New Yorker Magazine, 501 U.S. 496, 516 (1991). The gist of the statements doesnt misrepresent OConnors performance; the sting of the
statements is no worse than if Castleman had told the truth about whatever procedures OConnor might claim he used. The statements are
thus substantially true and not defamatory.
D. The commercial-speech exception in the Act doesnt swallow
the rule that Castlemans speech protected.
The commercial-speech exception to the Act prevents a defendant
whose primary business is selling goods or services from moving
to dismiss based on statements arising from the sale or lease of goods
[or] services in which the intended audience is an actual or potential
buyer or customer. Tex. Civ. Prac. & Rem. Code 27.010(b).
Castlemans primary business is selling goods and services; his statements were made to potential customers of OConnors services; thus,
the argument goes, the Act doesnt protect Castlemans review of
OConnors bad performance.
Nonsense. The commercial-speech exception denies the Acts protection to misstatements about the products or services of a company
35
or its competitors in an attempt to win business for the speaker. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71,
8889 (Tex. App. Houston [1st Dist.] 2013, pet. denied). This is both
the logical reading of the statute and the necessary one. Were OConnor right, the commercial-speech exception would swallow the Acts
application to speech about services offered in the marketplace. Tex.
Civ. Prac. & Rem. Code 27.001(7)(E); Newspaper Holdings, 416
S.W.3d at 89. A private school whose principal wrote a negative review
of a lazy janitorial contractor would be excluded from the Acts protection simply because both entities sell services.
It is no surprise that every appellate court in Texas that has considered OConnors argument has rejected it. 1 Indeed, the First Court of
Appeals has refused to apply the commercial-speech exception in an
Newspaper Holdings, 416 S.W.3d at 8889; Whisenhunt v. Lippincott, 474 S.W.3d

30, 4243 (Tex. App. Texarkana 2015, no pet.); Backes v. Misko, 486 S.W.3d
7, 21 (Tex. App. Dallas 2015, pet. denied); Hicks v. Group & Pension Adminrs.,
Inc., 473 S.W.3d 518, 531 (Tex. App. Corpus Christi 2015, no pet.); Schimmel
v. McGregor, 438 S.W.3d 847, 85758 (Tex. App. Houston [1st Dist.] 2014,
pet. denied); Kinney v. BCG Atty. Search, Inc., No. 03-12-00579-CV, 2014 WL
1432012, *67 (Tex. App. Austin April 11, 2014, pet. denied). Cf. NCDR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 753755 (5th Cir. 2014) (applying exemption because advertisements were targeted at speakers potential
customers); Miller Weisbrod, L.L.P. v. Llamas-Soforo, No. 08-12-00278-CV, __
S.W.3d __, 2014 WL 6679122 (Tex. App. El Paso Nov. 25, 2014, no pet.)
(same); Lamons Gasket Co. v. Flexitallic L.P., 9 F. Supp. 3d 709, 711712 (S.D.
Tex. 2014) (same).
36
analogous case. In Hicks v. Group & Pension Administrators, the plaintiffs

alleged that a lawyers statements to the City of Galveston caused the
city to back out of its contracts with them. 438 S.W.3d at 857. The Court
refused to apply the exception because while the lawyer was in the business of selling legal services, he didnt make the statements to try to get
the city to hire him. Id. at 857858. The lawyer made the statements in
the course of representing clients of his own; the city wasnt a potential buyer or customer of his services. Id. at 858. Similarly, OConnors claim is that Castlemans statements cost him businessand, as
with the statements in Hicks, Castleman wasnt making the statements
to an audience of potential customers in an effort to win their business.
It was OConnors burden to show that Castlemans statements
were made to win business for Castleman himself. He introduced no
evidence to meet that burden. The commercial speech exception does
not apply.
E. Both defendants moved to dismisswhich OConnors
response to the motion recognized.
The trial court found that Castleman Consulting hadnt moved to
dismiss the case. That finding is supported by no evidence, is directly
contradicted by the motion itself, and was preemptively repudiated by
OConnor himself.
37
The motion to dismiss stated in its introduction and its prayer that
the trial court should dismiss not the claims against Tim Castleman individually, but the suit in its entirety. CR _, _. The first paragraph in
the Facts section states that the term Castleman includes both
Tim Castleman and Castleman Consulting, just as it noted that
OConnor included Kevin OConnor and his company. CR _.
OConnor himself construed the motion as being made by both defendants: He describes the motion as containing claims by Defendants
about their statements, of which Defendants list only some, and
he accuses Defendants of ignoring both some statements and his accusation that Defendants goal was to injure him. CR _. And in
closing, OConnor asked the trial court to deny Defendants Motion
to Dismiss[.] CR _.
If OConnor was confused about the provenance of the motion he
should have excepted to it. Tex. R. Civ. P. 91. He wasnt confused
over it, so he didnt. All of the evidence, including the motion itself and
OConnors reaction to it, indicates that the motion was brought on behalf of Tim Castleman and Castleman Consultingand that OConnor
knew it. The conclusion that only Tim Castleman brought the motion
is supported by no evidence; all of the evidence supports the conclusion
that both defendants brought the motion.
38
F. Castleman has proved his legal fees as a matter of law.

As with Castlemans evidence of truth, his evidence of legal fees establishes his entitlement to those fees as a matter of law. Though he had
the ability to do so, OConnor declined to challenge the affidavits attesting to the amount, reasonableness, and necessity of Castlemans
fees. CR _. That evidence was uncontradicted, unimpeached, internally consistent, and readily subject to disproof. Beaver Cnty., Okla.,
Bd. of Commrs. v. Amarillo Hosp. Dist., 835 S.W.2d 115, 128 (Tex. App.
Amarillo 1992, no writ). Nor are their circumstances suggesting that
the fees are incredible or unreasonable. Id. The Court should adjudge that Castleman recover from OConnor $10,371.40 in trial-court
fees and $10,000 in appellate-court expenses.
Conclusion and Prayer
The Appellants pray that the Court reverse the trial courts judgment, render judgment dismissing OConnors suit, render judgment
for the Appellants for $20,371.40 in legal costs, and sever and remand
the issue of the amount of mandatory sanctions for consideration by the
trial court.
Respectfully submitted,
/s/ Leif A. Olson
Leif A. Olson
39
PMB 188
Humble, Texas 77396
Counsel for appellants
Certificate of Compliance
I certify that this Castlemans Opening Brief was prepared with Microsoft Word 2013, and that, according to that programs word-count
function, the sections covered by Texas Rule of Appellate Procedure
9.4(i)(1) contain 6,286 words.
/s/ Leif A. Olson
Certificate of Service
I certify that on October 11, 2016, in accordance with Texas Rule of
Appellate Procedure 9.5(b), I served a copy of this Castlemans Opening
Brief and its Appendix by e-filing upon:
J. Paul Manning
jpmanning@lubbocklawfirm.com
Anna McKim
amckim@lubbocklawfirm.com
Field, Manning, Stone,
Hawthorne & Aycock, P.C.
2112 Indiana Avenue
(806) 792-0810
Counsel for appellees
/s/ Leif A. Olson
40
No. 07-16-00320-CV
Seventh Court of Appeals

at Amarillo
Castleman Consulting, LLC,
Appellants,
v.
Kevin OConnor,
Appellees.
On Appeal from the 237th District Court

of Lubbock County
Trial Court No. 2016-519,740
Castlemans Appendix
Oral argument requested
Leif A. Olson
PMB 188
Humble, Texas 77396
(281) 849-8382
Counsel for Appellants
Appendix Contents
Tab
Contents
Ordering instructions
Castlemans review
Facebook post
Order denying motion to dismiss
Findings of fact and conclusions of law
Notice of appeal
Texas Citizens Participation Act
Tab 1:
Ordering instructions
You will need:
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Exhibit B - Page 3
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correctly.
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US $23.46
n Co<;: to Un i:d Srate:: US
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US $23.46
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the customer's address by clickin g the edit button under the address
displayed.
Exhibit B - Page 7
Payment
---------------;
1. Select your shipping information:
Une Lee
113 Pickering dr.
Mu1Tells
inlet, SoJtl Carolina, 29576
United States
Phone umber:
--
Nur.1ber:843 651 5830
:
----------------
Mobile
7! SeleG other addresses
2. Review and confirm your order (4 items):

Now just copy and paste the customer's shipping information from
Shopify into the form. Including a telephone number in the Mobile
number field. You do not need to enter a phone number in the Phone
number field. In Shopify it shows the state abbreviation but
AliExpress re quires the full state name, you can find that by looking
for the abbreviations here http://www.stateabbreviations.us/
Exhibit B - Page 8
OCJf'IS ! #1012
----- ----- - ---- - --- - - - -- .... ---- _

___ _
...._ ---- -------
Octc:..1 J. 20151:; 13
Order details
Unfulfiled
Pc
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$1500
13000
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Total :eight. 8Jllb
Risk revel
Exhibit B - Page 9
Payment
1. Please fill in your shipping address. Don't forget to save!
Contact l\iame:
Country/Region:
Street Address
Clty;
Srate/Provlnce/Region:
Zip/Postal Code:
Karen P Stephens
United States
3947 Highway H
Salem
Missouri
65560
lei:
Cc J ,,..
Mobile:
573-L53-4222
Cancel
Click Save and ship to this address and Aliexpress wi ll take you back
to the review page, go to the bottom and click Place Order
Exhibit B - Page 10
AlP y /., ::xpress Coupon: Y;: J do ;r
C.\..: ci.
- US Hl.00
- us $0_00
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Buyer Protection
g Full Refund if you
yoJr order
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us $23.46
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contactlimcastle111.in(&g111ail.com
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us $15.68
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Sometimes you wi l l be taken to a screen askin g for the cards

expiration date. The Date is 06/ 18
Exhibit B - Page 11
Card Expiration Date Verification
In order to ensure your account security, you will need to provide some information before continuing.
Please enter your card expiration date.
J:
) ,
After you hit submit you are taken to this page and you are done with
this order in Aliexpress.
A Ii l:?xPress
.
Thank you tor your payment!
AliExpress Mobile App
AliEJ<press will process verification on your payments authorizanon witiin 24 hours. Once the payme n t pass verification.
we will receive your payment and your supplier v.oll start to pre pare your order. Ifthe verification failed, you will be
notified via email.
::
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6 Orders I #1012
oc10ber10, 20152:13
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vi
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$30.00
Cl
s;omer
$30.00
Re
Ship 8 items for this order
Exhibit B - Page 12
--- ---- ------------------
!2J Orclers I ,1012 I Fulfillment
C' el
Shipping
Mark as fulfilled
Choose quantity to fulfill
3947 Highway H
Items
We9ht
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t.....
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...
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address
Karen P Stephens
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1 0 lb
of 2
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United
States
573-453-4222
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summary
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Mark as fulfilled
Select fulfillment method

Buy a sh"p1n9 label
Exhibit B - Page 13
Tab 2:
Castlemans review
Warning: Stay Away From The Offline Assistant Company & Kevin OConnor |
THE LIFE AND TIMES OF TIM CASTLEMAN
DECEMBER 4, 2015
Warning: Stay Away From The Ofine

Assisant Company & Kevin OConnor
On November 18th, 2015 during a routine review of our books, our accountant noticed a
$7,897.68 error caused by Kevin OConnors Offline Assistant Company.
We hired Kevin and his company to fulfill our physical product store orders and it turns out that
they had been double ordering and shipping our most popular item to customers at our
expense for no understandable reason.
Once the error was discovered, I immediately had the last 100 orders they had placed for us
reviewed, and there was an 85% error rate in those orders so we started to dig deeper.
I immediately let Kevin know about this issue personally and told him I would get him a full
report by the following Monday (this was Friday).
We pulled our financial records from the store, the supplier, and matched them to our credit
card statements for them to get a full accounting of just how bad it was.
Exhibit E - Page 1
http://www.timothycastleman.com/warning-stay-away-from-the-offline-assistant-company-kevin-oconnor/[5/6/2016 8:22:59 PM]
When all was said in done, Kevins employees had over ordered and shipped products to the
tune of a $14,968.45 almost DOUBLE what the orders should have cost and costing us
$7,897.68 in profit.
Armed with this information I sent everything to Kevin and asked him to review everything and
if the numbers were correct explain why none of the orders were checked by his project
manager (as promised when we signed up) or anyone else on is staff for accuracy, how his
employees could see us losing money on ever order and not say anything, and why they
hadnt followed the spreadsheet directions we gave them.
When he finally responded 3 days later, he blamed us for not catching the error and cited a
training example order we included in the training materials (of a totally different product than
the one they misordered above) as a reason why they had doubled ordered everything.
Except they hadnt double ordered every item.
His team managed to order the correct quantities of other items we sold in different amounts
(1, 2, 4 etc) with no problem.
When confronted with this, he went radio silent and refused to respond to any more of my
emails.
It was only after I demanded repayment for the $7,897.68 error that he finally responded, and
only to tell me that he considered the matter closed on his part and that he and his employees
had done nothing wrong and that he wouldnt be paying for his employees mistake.
So heres where we stand
Kevins company over ordered and shipped an additional $7,897.68 worth of products to my
customers which I now have to pay out of my own pocket
No one from his company (that we hired to manage this for us) reviewed any of the orders to
Exhibit E - Page 2
ensure they were being done correctly despite his assurances they do quality control and
project management on all jobs.
There was an 85% error rate by his staff in ordering products for us
When presented with facts (credit card statements, Shopify print outs, and AliExpress
orders) Kevin still refused to accept any responsibility and to this day has refused to pay me
back for his company and employees mistakes.
The money part stings, but heres the worst part.
I first met Kevin when I and several others (Brad Gosse, Ron Douglas, E. Brian Rose, Ben
Littlefield, Ben Adkins, Colin Theriot, Mark Helton, Brian Anderson, Ryan McKinney) were his
mentor at the Marketers Mansion.
We all spent time with him trying to help him grow his business.
I personally promoted Kevin not only to my list via a webinar, but also through my podcast
(free of charge), and told several business associates about him (who ended up signing up
with him right Los).
Just last month I dropped everything when he came into town and showed him around
Lubbock and offered to help him even more with his company.
And this is how he repaid me and everyone else who helped him for doing so.
No apology, no acceptance of the facts, and most of all not a single offer to help us or
compensate us these errors.
I gotta assume that whole personal responsibility thing Garret White preaches didnt sink in
with Kevin.
Exhibit E - Page 3
Now dont worry about me. Well be seeing Kevin in court and well get every cent (plus some)
back from him.
Im writing this post to warn others and share my personal experience with Kevin OConnor
and his company.
If you choose to use him after seeing that he doesnt stand behind his employees work, has
zero quality control or checks to ensure work is being done correctly, and no matter how
much proof you have of their mistakes, he will never admit when his team has made a
mistake or compensate you in any fashion for those mistakes go ahead.
If you want to host a webinar, podcast, or invite him to speak on stage after reading this, thats
your choice and speaks more to your core values than mine.
I just refuse to have people who have helped him in the past have their name associated with
him or his company without knowing the facts about what he did to our eCom business and
his unwillingness to stand behind his word and his employees mistakes.
Im just thankful that we have the cash reserves to not only absorb this temporary loss and but
also pursue every legal recourse against him.
In closing Ill share with you one last thought. Sometimes in life things like this happen. People
disappoint you, friendships end, and true colors are revealed. While you cant control when or
why that stuff happens, you can control your response to those situations.
I tried to resolve this in private, I gave Kevin every opportunity to make this right. It was only
after he refused to do so, and I saw how huge of a disaster this could be for people who dont
have the same resources I do, that I knew I had to go public with this issue.
Share the joy
Exhibit E - Page 4
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Tab 3:
Facebook post
Discussion
Members
Events
Photos
Files
Hi Tim casueman
l1iim
Oecember13,2015
{Things That Make You Smile)
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return an email.
CREATE NEW GROUPS
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Tab 4:
Order denying motion
Filed 8/11/2016 8:10:38 AM

Barbara Sucsy
District Clerk
Lubbock County, Texas
CAUSE NO. 2016-519,740

INTERNET MONEY LIMITED d1b/a
THE OFFLINE ASSISTANT AND
KEVIN O'CONNOR, INDTVTDUALLY,
Plaintiffs,
v.
!i
!i
TIMOTHY CASTLEMAN AND

CASTLEMAN CONSULTING, LLC,
Defendants.
IN THE 237TH DISTRICT COURT
OF
!i
!i
LUBBOCK COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' MOTION FOR RELIEF FROM

TECHNICAL FAILURE AND FOR EXTENSION OF TIME AND DENYING
DEFENDANTS' l\'IOTION To DISMISS
The Court, having considered the Defendants' Motion for Relief from Technical Failure
and for Extension of Time, Defendants' Motion to Dismiss, as well as Plaintifts' Opposition to
Motion to Dismiss and Request for Attorney's Fees, t ogether with supporting evidence and the
arguments made by counsel together with legal authority submitted by counsel, the Cou rt is of
the opinion that the Motion for Relief from Technical Failure and for Extension of Time is
granted and that the Defendants' Motion to Dismiss be denied.
Further, the Court is of the
opinion that the Motion to Dismiss was not frivolous or solely intended to delay and therefore
denies Plaintifts' attorney's fees.
IT lS THEREFORE, ORDERED, ADJUDGED AND DECREED that the Defendants'
Motion for Relief from Technical Failure and for Extension of Time be and the same is hereby
GRANTED.
Order Granting and Denying Motions
Page 1
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants'

Motion to Dismiss be and the same is hereby DENIED.
It is further ordered that the Plaintitls'
Request for Attorneys' Fees is DENIED.

All costs of court are taxed against the party incuning same.
All relief not expressly
granted herein is hereby denied.

SIGNED this
10th
day of
August
2016.
JUDGE PRESIDING
Order Granting and Denying Motions
Page 2
Tab 5:
Findings of fact and conclusions of law
Filed 10/4/2016 2:33:54 PM

Barbara Sucsy
District Clerk
cf
CAUSE NO. 2016-519,740

INTERNET MONEY LIMITED d/b/a
THE OFFLINE ASSISTANT AND
KEVIN O'CONNOR, INDIVIDUALLY,
Plaintiffs,
v.
TIMOTHY C~a..STLEM~a~ .AND
CASTLEMAN CONSULTING, LLC,
Defendants.
IN THE 237TH DISTRICT COURT
OF
LUBBOCK COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RELATION TO DENIAL OF

MOTION TO DISMISS OF DEFENDANT, TIMOTHY CASTLEMAN
The above-captioned motion to dismiss came on before the Court's motion

docket on July 1, 2016. All parties were represented by counsel at the hearing. After
considering the motion to dismiss filed by Defendant Timothy Castleman, the
response, the evidence, the argument and briefs from counsel as well as Defendants'
Motion for Relief from Technical Failure and for Extension of Time, the Court, in
response to a request from Defendant, Castleman, makes the following findings of
fact and conclusions of law. Any finding of fact mislabeled as a conclusion of law
shall be deemed a finding of fact. Any conclusion of law mislabeled as a finding of
fact shall be deemed a conclusion of law.
FINDINGS OF FACT
1.
Defendant, Timothy Castleman, was served with process of Plaintiffs'
original petition on l\1arch 7, 2016. Defendant Castleman filed a late motion to
dismiss under the Texas Citizens Participation Act on May 7, 2016. Defendant
Castleman also filed a Motion for Relief from Technical Failure, or, in the
Alternative, for Extension of Time in order to allow his motion to be timely.
2.
Defendant, Castleman Consulting, LLC, was served with process of
Plaintiffs' original petition on March 9, 2016. Defendant Castleman Consulting,
LLC did not f:tle a motion to dismiss under the Texas Citizens Participation Act nor
did Defendant Castleman Consulting, LLC, file a Motion for Relief from Technical
Failure, or, in the Alternative, for Extension of Time.
3.
Plaintiffs' First . A~ended
.
Petition asserts causes of action for slander
and libel associated with Defendants' Facebook, Twitter, blog, Warrior Forum,
Google Reviews, and podcasts alleging Plaintiffs' failed promises, placement of
liPage Findings of Fact and Conclusions of Law
orders with an 80% to 85% error rate, Plaintiffs' inability or unwillingness to follow
instructions, Plaintiffs' stealing from Defendants, and Plaintiffs' terrible services.
4.
The matter was originally set within 60 days of the motion but was
delayed by a request for discovery.
5.
The matter was set for hearing on July 1, 2016, within 90 days after
the service of the motion.
6.
The court considered the pleadings and supporting and opposing
affidavits stating the facts on which the liability and defenses are based. Tex. Civ.
Prac. & Rem. Code 27.006.
7.
Defendant did not show by a preponderance of the evidence that the
legal action was based on, related to, or was in response to Defendant's exercise of
the right of free speech, the right to petition, or of the right of association.
8.
Plaintiffs provided clear and specific evidence of a prima facie case for
each element of their claims, including the facts of when, where, and what was said,
the defamatory nature of the statements, and how they damaged Plaintiffs.
9.
Defendant failed to show a valid defense to Plaintiffs' claims.
10.
Defendant failed to show truth of at least the following statements:

a. "there was an 85% error rate" in the orders placed.
b. "No one from his company reviewed any of the orders to ensure they
were being done correctly."
c. "zero quality control or checks to ensure work
correctly"
IS
being done
d. "unwillingness to stand behind his word"

e. confirming that Plaintiffs "practically stole" from Defendants
f. Plaintiff was "someone that doesn't stand behind their work, their
team does not quality checks or assurances, and if there's ever a
problem, they're not going to fix it for you, especially when it comes to
financial"
11.
The statements at issue arose out of the sale of goods, and the intended
audience is actual or potential buyers or customers.
21Page Findings of Fact and Conclusions of Law
12.
Defendants' statements were made with either the knowledge of their
falsity or, at the very least, with reckless disregard as to their truth or falsity.
Defendants admitted their intent to harm Plaintiffs and acknowledged
13.
the damage their statements were causing Plaintiffs.
The Court does not find the Motion to Dismiss to be frivolous or solely
14.
intended to delay.
CONCLUSIONS OF LAW
1.
Defendant Castleman's motion to dismiss was untimely, but the
Motion for Relief from Technical Failure and for Extension of Time is properly
granted within the discretion of the court.
2.
The motion to dismiss under the Texas Citizens Participation Act is
deemed timely filed. Tex. Civ. Prac. & Rem. Code 27.003.
3.
Defendant Castleman Consulting, LLC did not file a motion to dismiss
under the Texas Citizens Participation Act. Tex. Civ. Prac. & Rem. Code 27.003.
4.
27.004.
The hearing was timely pursuant to Tex. Civ. Prac. & Rem. Code
5.
Defendants' acts fall within an exception to the Citizens Participation
Act. Tex. Civ. Prac. & Rem. Code 27.101(b).
6.
In the alternative, Defendant failed to show by a preponderance of the
evidence that the legal action is based on, relates to, or is in response to the party's
exercise of the right of free speech, the right to petition, or the right of association.
7.
Plaintiffs established by clear and specific evidence a prima facie case
for each essential element of the claims in question.
8.
Defendant failed to establish by a preponderance of the evidence each
essential element of a valid defense to Plaintiffs' claims.
9.
In determining whether a legal action should be dismissed under this
chapter and at the request of Defendant Castleman, pursuant to Section 27.003,
this Court finds that Plaintiffs' legal actions were not brought to deter or prevent
the Defendants from exercising constitutionai rights and were not brought for an
3IPage Findings of Fact and Conclusions of Law
improper purpose, including to h arass or to cause unnecessary delay or to increase

the cost of litigation. Tex. Civ. Prac. & Rem. Code 27.007.
10.
Plaintiffs' objections at the hearing on July 1, 2016 are overruled.
11.
Defenda nt Castleman's Motion to Dismiss is denied.
12.
The Motion to Dismiss was not frivolous or solely intended to delay.
13.
No attorneys' fe es were awarded.
14.
All costs incurred shall be borne by the party incurring same.
:m
SIGNED this ---+~
____
day of October, 2016.
/~
JUDGE PRESIDING
41 Page
Findin gs of Fact and Conclu s i on s of L aw
Tab 6:
Notice of appeal
Filed 8/22/2016 8:03:26 PM

Barbara Sucsy
District Clerk
Case 2016-519,740
Kevin OConnor,
Plaintiffs,
v.
Castleman Consulting LLC,
Defendants.
cf
237th District Court

Lubbock County
Defendants Notice of Appeal

The defendants Motion to Dismiss Under the Texas Citizens Participation Act was denied by operation of law on August 1, 2016. The Court
memorialized that dismissal in an order signed on August 10. Defendants
Timothy Castleman and Castleman Consulting, LLC, appeal that order to
the Seventh Court of Appeals. This is an accelerated appeal.
Respectfully submitted,
The Law Office of Jared
B. Hall, PLLC
Jared B. Hall
JHallAttorney@gmail.com
P.O. Box 6982
(806) 853-7182
/s/ Leif A. Olson
Leif A. Olson
PMB 188
Humble, Texas 77396
(281) 849-8382
Counsel for Defendants
Certificate of Service
I certify that on August 19, 2016, I served a copy of this notice of appeal
upon J. Paul Manning, counsel for the plaintiffs, by electronic filing.
/s/ Leif A. Olson
Tab 7:
Texas Citizens Participation Act
Chapter 27. Actions involving the exercise of certain

constitutional rights
Sec. 27.001. Definitions. In this chapter:
(1) Communication includes the making or submitting of a
statement or document in any form or medium, including oral,
visual, written, audiovisual, or electronic.
(2) Exercise of the right of association means a communication
between individuals who join together to collectively express,
promote, pursue, or defend common interests.
(3) Exercise of the right of free speech means a communication
made in connection with a matter of public concern.
(4) Exercise of the right to petition means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding,
to administer the law;
(iii) an executive or other proceeding before a department of
the state or federal government or a subdivision of the
state or federal government;
(iv) a legislative proceeding, including a proceeding of a
legislative committee;
(v) a proceeding before an entity that requires by rule that
public notice be given before proceedings of that entity;
(vi) a proceeding in or before a managing board of an
educational or eleemosynary institution supported
directly or indirectly from public revenue;
(vii) a proceeding of the governing body of any political
subdivision of this state;
(viii) a report of or debate and statements made in a

proceeding described by Subparagraph (iii), (iv), (v), (vi),
or (vii); or
(ix) a public meeting dealing with a public purpose,
including statements and discussions at the meeting or
other matters of public concern occurring at the meeting;
(B) a communication in connection with an issue under
consideration or review by a legislative, executive, judicial, or
other governmental body or in another governmental or
official proceeding;
(C) a communication that is reasonably likely to encourage
consideration or review of an issue by a legislative, executive,
judicial, or other governmental body or in another
governmental or official proceeding;
(D) a communication reasonably likely to enlist public
participation in an effort to effect consideration of an issue
by a legislative, executive, judicial, or other governmental
body or in another governmental or official proceeding; and
(E) any other communication that falls within the protection of
the right to petition government under the Constitution of
the United States or the constitution of this state.
(5) Governmental proceeding means a proceeding, other than a
judicial proceeding, by an officer, official, or body of this state or
a political subdivision of this state, including a board or
commission, or by an officer, official, or body of the federal
government.
(6) Legal action means a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief.
(7) Matter of public concern includes an issue related to:
(i) health or safety;

(ii) environmental, economic, or community well-being;
(iii) the government;
(iv) a public official or public figure; or
(v) a good, product, or service in the marketplace.
(8) Official proceeding means any type of administrative,
executive, legislative, or judicial proceeding that may be
conducted before a public servant.
(9) Public servant means a person elected, selected, appointed,
employed, or otherwise designated as one of the following, even
if the person has not yet qualified for office or assumed the
persons duties:
(A) an officer, employee, or agent of government;
(B) a juror;
(C) an arbitrator, referee, or other person who is authorized by
law or private written agreement to hear or determine a
cause or controversy;
(D) an attorney or notary public when participating in the
performance of a governmental function; or
(E) a person who is performing a governmental function under a
claim of right but is not legally qualified to do so.
Sec. 27.002. Purpose. The purpose of this chapter is to encourage
and safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to the
maximum extent permitted by law and, at the same time, protect the
rights of a person to file meritorious lawsuits for demonstrable injury.
Sec. 27.003. Motion to dismiss.

(a) If a legal action is based on, relates to, or is in response to a partys
exercise of the right of free speech, right to petition, or right of
association, that party may file a motion to dismiss the legal action.
(b) A motion to dismiss a legal action under this section must be filed
not later than the 60th day after the date of service of the legal
action. The court may extend the time to file a motion under this
section on a showing of good cause.
(c) Except as provided by Section 27.006(b), on the filing of a motion
under this section, all discovery in the legal action is suspended
until the court has ruled on the motion to dismiss.
Sec. 27.004. Hearing.
(a) A hearing on a motion under Section 27.003 must be set not later
than the 60th day after the date of service of the motion unless the
docket conditions of the court require a later hearing, upon a
showing of good cause, or by agreement of the parties, but in no
event shall the hearing occur more than 90 days after service of the
motion under Section 27.003, except as provided by Subsection (c).
(b) In the event that the court cannot hold a hearing in the time
required by Subsection (a), the court may take judicial notice that
the courts docket conditions required a hearing at a later date, but
in no event shall the hearing occur more than 90 days after service
of the motion under Section 27.003, except as provided by
Subsection (c).
(c) If the court allows discovery under Section 27.006(b), the court
may extend the hearing date to allow discovery under that
subsection, but in no event shall the hearing occur more than 120
days after the service of the motion under Section 27.003.
Sec. 27.005. Ruling.

(a) The court must rule on a motion under Section 27.003 not later
than the 30th day following the date of the hearing on the motion.
(b) Except as provided by Subsection (c), on the motion of a party
under Section 27.003, a court shall dismiss a legal action against
the moving party if the moving party shows by a preponderance of
the evidence that the legal action is based on, relates to, or is in
response to the partys exercise of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
(c) The court may not dismiss a legal action under this section if the
party bringing the legal action establishes by clear and specific
evidence a prima facie case for each essential element of the claim
in question.
(d) Notwithstanding the provisions of Subsection (c), the court shall
dismiss a legal action against the moving party if the moving party
establishes by a preponderance of the evidence each essential
element of a valid defense to the nonmovants claim.
Sec. 27.006. Evidence.
(a) In determining whether a legal action should be dismissed under
this chapter, the court shall consider the pleadings and supporting
and opposing affidavits stating the facts on which the liability or
defense is based.
(b) On a motion by a party or on the courts own motion and on a
showing of good cause, the court may allow specified and limited
discovery relevant to the motion.
Sec. 27.007. Additional findings.

(a) At the request of a party making a motion under Section 27.003,
the court shall issue findings regarding whether the legal action was
brought to deter or prevent the moving party from exercising
constitutional rights and is brought for an improper purpose,
including to harass or to cause unnecessary delay or to increase the
cost of litigation.
(b) The court must issue findings under Subsection (a) not later than
the 30th day after the date a request under that subsection is made.
Sec. 27.008. Appeal.
(a) If a court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion is
considered to have been denied by operation of law and the moving
party may appeal.
(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss
a legal action under Section 27.003 or from a trial courts failure to
rule on that motion in the time prescribed by Section 27.005.
(c) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1042, Sec. 5, eff. June
14, 2013.
Sec. 27.009. Damages and costs.
(a) If the court orders dismissal of a legal action under this chapter, the
court shall award to the moving party:
(1) court costs, reasonable attorneys fees, and other expenses
incurred in defending against the legal action as justice and
equity may require; and
(2) sanctions against the party who brought the legal action as the
court determines sufficient to deter the party who brought the
legal action from bringing similar actions described in this
chapter.
(b) If the court finds that a motion to dismiss filed under this chapter is
frivolous or solely intended to delay, the court may award court
costs and reasonable attorneys fees to the responding party.
Sec. 27.010. Exemptions.
(a) This chapter does not apply to an enforcement action that is
brought in the name of this state or a political subdivision of this
state by the attorney general, a district attorney, a criminal district
attorney, or a county attorney.
(b) This chapter does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing goods
or services, if the statement or conduct arises out of the sale or
lease of goods, services, or an insurance product, insurance
services, or a commercial transaction in which the intended
audience is an actual or potential buyer or customer.
(c) This chapter does not apply to a legal action seeking recovery for
bodily injury, wrongful death, or survival or to statements made
regarding that legal action.
(d) This chapter does not apply to a legal action brought under the
Insurance Code or arising out of an insurance contract.
Sec. 27.011. Construction.
(a) This chapter does not abrogate or lessen any other defense,
remedy, immunity, or privilege available under other constitutional,
statutory, case, or common law or rule provisions.
(b) This chapter shall be construed liberally to effectuate its purpose
and intent fully.

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No.

Seventh Court of Appeals

On Appeal from the 237th District Court

Oral argument requested

Identity of Parties and Counsel

1. There is no evidence that the factual statements were

Kinney v. BCG Attorney Search, Inc.

Rehak Creative Servs., Inc. v. Witt

Nature of the case

Statement of the Case

237th District Court

OConnor sued Castleman for defamation for

The trial court denied the motion. CR __. After

Appellees Kevin OConnor and

First supplemental clerks record

Second supplemental clerks

Statement on Oral Argument

Appx 1 at CR _. The example customer had ordered two of each item;

as he was later to admit, regularly double-ordering every product that a

if anyone is in there rigth now

For these 2 products: let us

sorry, we had one fulfilled for Jamie

For those two, you actually order on

crudwellI will see if I can kill

well not double them?

CR _, _. In neither conversation did the employee mention a belief that

Castleman opened the review by recounting how he had come across

That OConnor is someone that doesnt stand behind [his]

Castlemans statements werent intended to try to win customers for

2. Defamation requires a falsehood.

OConnors entire complaint is that Castlemans statements about his

b. OConnor introduced no evidence of falsity.

impute the commission of a crime. Billington v. Houston Fire & Cas.

he was givenis no worse than what Castleman said. McIlvain, 794

Newspaper Holdings, 416 S.W.3d at 8889; Whisenhunt v. Lippincott, 474 S.W.3d

analogous case. In Hicks v. Group & Pension Administrators, the plaintiffs

F. Castleman has proved his legal fees as a matter of law.

Seventh Court of Appeals

On Appeal from the 237th District Court

Oral argument requested

Order denying motion to dismiss

Findings of fact and conclusions of law

Texas Citizens Participation Act

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