SF/Fantasy Bookstore Sues Neighboring Hotel, Includes Comic Book Version of Factual Allegations in Amended Complaint

You can read the whole Complaint, in Criss-A-Less, Inc. d/b/a Third Planet Sci-Fi & Fantasy Superstore v. ASDN Houston, LLC d/b/a Crowne Plaza River Oaks; the comic version is at pp. 6-18, preceded with:

V. ORIGIN STORY

23. Defendant, Pacifica has previously filed special exceptions, complaining that it could not sufficiently understand the claims and allegations against it. To aid in clarifying the facts of this case, plaintiffs provide the facts in illustrated form.

As you might gather, this sort of filing can be risky, if the judge thinks it's undignified or just a waste of time. On the other hand, it's the Third Amended Complaint, so they know who the judge is (Judge Mike Engelhart), and presumably know something about his sensibilities; I take it they have a good sense whether he'll be amused. Plus they doubtless expected this to lead to publicity (I read about this on law.com [Angela Morris], and I expect other outlets have picked it up), and presumably they've concluded that the publicity will be valuable to their client.

Comments

[rsteinmetz]

That actual complaint has some humor in it a well.
I'm puzzled by what the defendant could have failed to understand.

[Dr. Ed 2]

One can't understand what one doesn't want to understand.

An attorney of mine once asked what part of "within 10 days" UMass couldn't understand -- their own policy stated that they had to do something "within 10 days" and some five *months* had lapsed....

[dwb68]

The speech balloons in the graphic novel largely reiterate the points already in the complaint.

Yikes!

14 fire extinguishers launched from the balconies destroying the roof!

And the hotel has taken no action?

I don't understand "Defendant, Pacifica has previously filed special exceptions, complaining that it could not sufficiently understand the claims and allegations against it. " The allegations seem pretty clear to me. Double zoinks!

[dwb68]

"the graphic novel largely reiterate the points already in the complaint."

... if the graphic novel portion gets struck, the remaining items still sustain the complaint.

I mean, IDK, How could Pacifica not understand the allegations?

[MatthewSlyfield]

Willful ignorance as a stalling tactic.

[ReaderY]

“It is difficult to get a man to understand something when his salary depends on his not understanding it.”

Upton Sinclair

[Hank Ferrous]

As an otaku, I approve, and am interested in how the judge will respond.

[ah....Clem]

It may be a comic, but it makes more sense than any of the "Kraken" suits filed after the election. The plaintiff appears to have hired real attorneys rather than the clown car that was the Kraken.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

TDS continues to take its toll.

[tkamenick]

The comic is entertaining. Not sure how strong the case is, though. Sounds like guests are committing crimes and/or intentional torts, which often breaks the chain of causation.

And practically, what is the hotel supposed to do? Take out fire extinguishers? Remove all the balconies? Lock the balconies and shut them off from guests? Install some kind of netting (seems like the comic store would be better off doing that)? None of those seem like remotely reasonable steps. Put up signs saying "please don't throw things off balconies"? Honestly that seems more likely to give drunk/stupid/uncaring people ideas than actually prevent anything.

[Brett Bellmore]

I looked up some aerial photos of the hotel. It seems evident that the hotel could easily deal with the situation by erecting a moderately tall chain link fence along one side of the roof, and closing or installing guards on the balconies along one column of rooms at one edge of the building. Nothing totally crazy would be involved in resolving the problem.

Google aerial image

[Dr. Ed 2]

Or installing cameras and hiring security.

I presume that it is a criminal offense to tamper with fire safety equipment there -- it is in Massachusetts and fire departments actually take it rather seriously if it isn't a one-off "I'm really sorry" incident.

Commercial fire extinguishers aren't cheap because you have to buy them from a licensed installer, etc. You gotta wonder why the hotel (a) didn't want to stop this and (b) didn't worry about liability from something worse, i.e. a patron falling to his/her/its death.

[Dr. Ed 2]

I'm also surprised that the city licensing department isn't addressing the larger issue of crime in the hotel. If they truly have that much crime there, I'm sure that the police know about it -- and at least in Massachusetts, one can lose one's permits to operate if things get too far out of hand.

[Brett Bellmore]

If I were (more) paranoid, I'd venture to guess the hotel would like to purchase the lot next door, and really isn't eager to pay full price.

[santamonica811]

Put in security cameras on all floors, on that side of the hotel. Put up large warning signs, informing guests of these cameras. Follow though, with prosecution of any guests/visitors who throw stuff. Provide videos to Third Planet, to assist TP with civil claims against said guests.

The fact that the hotel has chosen to not do this is telling.

[rsteinmetz]

Security cameras won't prevent anything they will only make it more likely to identify the criminals.

[Ben of Houston]

It definitely is a crime to tamper with fire equipment in Harris County.

[rsteinmetz]

Looking at the hotel it appears there is a stack of openings in the side of the building in what appears to be a stair well. Covering that opening with something would likely eliminate the problem.

[Brett Bellmore]

The stairwell, or possibly the end of a hall, would be the stack on the right without balconies. The stack on the left with balconies would be rooms. Since the windows on the left would not open, no need to additionally guard them.

[rsteinmetz]

I was able to zoom in closer. There do not appear to be balconies on that side of the building. The openings on the right are most likely an access to stairwell, there are railings on them. Some building codes required "smoke proof towers" where you leave the building into an open air vestibule then enter a stairwell. While not common in modern buildings they were once fairly common.

[Brett Bellmore]

In any case, the railing could be augmented to make it impossible to throw anything sizeable.

[Minadin]

The complaint states that they are open balconies off of a fire escape stair. No mystery.

It's across a street, too, so it's not like things are being dropped accidentally from these balconies or guestroom windows.

[rsteinmetz]

It is not across a street.

There is a narrow strip of grass adjacent to a driveway, with parking on one side leading to a parking lot in the rear of the building.

I'd estimate the total width to be around 30 feet.

[Minadin]

Ok, drive lane. 30 feet horizontally. Not accidental droppage.

[David Bremer]

I seem recall someone doing this several years ago, and the judge being pretty annoyed with it. If I recall, it involved a motion for reconsideration, and the party was given a very short page or word limit. So he wrote it as a comic.

The only story I could find on someone doing this involved a brief in 2012. But this one seems to have been taken in much better spirits.

[David Bremer]

Apparently you can't use HTML to link any more. Either that or I screwed it up.

https://www.abajournal.com/news/article/faced_with_a_five-page_limit_lawyer_files_cartoon_amicus_brief_with_proper_

[Brett Bellmore]

The Wayback machine still has it.

[Dr. Ed 2]

Prof V -- this is the same thing as the link I sent you on the Black Terrorists in court -- law *is* political and there often are two concurrent trials ongoing, one in court and the other in the court of public opinion.

I'm wondering how much of this comic book is addressed at the latter....

[Scribe]

"Ring, ring"
"Houston Fire Department, what is your emergency?"
[comic book store]: "The Crowne Plaza at [street address] is currently in a life-safety emergency. Please send someone."
[HFD]: "What kind of life-safety emergency? Help is on the way."
[store]: "The hotel does not have enough fire extinguishers to meet code and if a fire starts people might die. You have to get the guests out."
[HFD]: "Okaaay How do you know they do not have enough fire extinguishers to meet code?"
[store]: "Because they just came through the roof of my store. 14 of them. Thrown by the guests from upper floors of a high-rise."

Now, given the usual indolence of public safety officials to hazards we know nothing near removing the guests from the hotel because there aren't enough extinguishers would ever happen. But the point is that a property owner confronted with a nuisance like the hotel needs to make a record of complaints to the relevant authorities. You have to show repeated calls to the cops, fire, building authorities about falling objects, parading hookers, fires started, all the rest, to even have a chance of succeeding.

As to defense counsel's not understanding, he needs to understand that when a cow is empty, continuing to try to milk it will get him kicked, good and hard. They have cows in Texas, so it shouldn't be a concept so foreign that he cannot understand it. He's milked this file dry.

[John F. Carr]

In Massachusetts a golf course has a duty to prevent golf balls from being struck onto neighboring property. As I recall, the golf balls were trespassing and trespass could not be grandfathered like nuisance could. Golf balls are more essential to a golf course than a rain of fire extinguishers hurled by drunk guests is to a hotel so the logic may not apply to the Texas case.

[santamonica811]

"...Golf balls are more essential to a golf course than a rain of fire extinguishers hurled by drunk guests is to a hotel ..."

Said somebody who clearly has never stayed in a hotel during Spring Break in Miami. 🙂

[Greg J]

and presumably they've concluded that the publicity will be valuable to their client

Or it's an example of the principle-agent problem, and they think the publicity will do them (the lawyer) good, and they couldn't care less about their client

[Rev. Arthur L. Kirkland]

I doubt I would file a pleading in this form, but I am not ready to excoriate this one.

I once represented a similar store in an expression case, although I never cared about comic books, garage-punk records, limited edition Hobbit figurines, or lifesize Wookiees (it was an ACLU case). I came to respect the proprietor and his business.

After the case concluded, I accepted the lifesize Wookiee as a kind gesture from the owner. I believe it still resides in my attic.

[Ben of Houston]

Arthur. I would appreciate if you could share a photograph of the Wookie. It would be amusing.

I just want to say thanks. I'm reminded about why didn't mute you. I do like your contributions when you drop the troll act.

[Rev. Arthur L. Kirkland]

It's at least 95 in my attic today, maybe 100, but I will try to remember to get up there and look soon.

I doubt this Wookiee was a bespoke item. It likely was as mass-produced as a seven-foot-tall, full-fur wookiee could be in a market economy. I never asked why he chose that gift. It looks something like this . . . and the price indicated for that item may expedite my trip to the attic.

My co-counsel for that case was an essentially full-time lawyer for adult stores and performers, with what appeared to be a national practice. (A city was trying to close a straightforward comic book-hobbyist-records store for being an "adult business," and the argument that won the case, as I recall, was my demonstration that the newsstand in my 50-story office building carried more -- and better -- dirty magazines than the comic book guy did.)

Most of my partners thought my office's decor -- neon signs, hundreds of beer bottles and cans, sports memorabilia -- was an outlier for a big-firm lawyer, but this guy's office was not to be missed, packed with types of mementos one rarely sees in a professional's office, some autographed or personalized-- quite intimately, in some cases -- by the performers. I don't think I ever mustered the courage to sit down in that office.

[Rev. Arthur L. Kirkland]

Well, Ben, you have precipitated an adventure.

It was probably 100 degrees in that attic, but I went there to get the wookiee . . . which was not there (it wasn't much of a search -- the damned thing is seven or eight feet tall). My youngest child has explained the disappearance by indicating he 'loaned' it to someone a few years back for some time of event and that he would track it down and secure its return.

Coincidentally, the comic book store owner who gave the wookiee to me died this summer, after operating that store for 50 years. So I can't ask him whether my wookiee is worth $10,000 (or perhaps more). His employees apparently are going to continue the store's operation, though, which seems to be good news. I do not want any comic books, but I sense every town should have an "alt" store (comics, collectibles, niche music, head shop items, etc.).

[XEleison]

Our small town has a comic book store that actually functions more as a game store. Last Saturday, my kids, wife, and I all went down and spent a couple hours there playing board games that the store makes available for free. It was a very family-friendly atmosphere, not at all an adult store 🙂
I agree that I didn't want any comic books, but we kept them in business by buying lots of snacks, sodas, etc.

[MN2828]

In Texas state court practice, a special exception is a procedural device used to point out that the complaint fails to allege an essential element of a cause of action. Basically, it creates a work around to the long standing prohibition in the Texas rules against motions to dismiss for failure to state a claim. It is not the equivalent of a federal 12(e) motion for more definite statement.

What appears to be going on is that the defendant objected to the absence of a required element -- most likely duty -- from the plaintiff's allegations.

[rsteinmetz]

If the defendants were aware of an ongoing problem affecting their neighbors property, somethin like setting two cars on fire, wouldn't they have a duty to do something?

[TW]

That's a good question - does a hotel have a duty to stop its guests from throwing objects from their rooms? The guests are breaking the law by throwing objects out the window and I'm not sure to what extent the hotel is responsible for trying to stop them just because they are staying on their property.

[David Nieporent]

It's not the "staying on" the property that would create the duty, but the use of the property to commit the offense.

[TW]

I think it would be more of a misuse of their property by the guests and I don't believe that would create a duty on the part of the owner either. Otherwise we would see every building owner open to liability whenever someone threw something (or jumped) out of a window on their property and landed on someone or their property.

[Cal Cetín]

Those are some serious allegations, if true. Nice artwork, too.

[Cal Cetín]

With their safety record, they better put all their Czech guests on the first floor.

[Cal Cetín]

alleged safety record

[not me]

The 1st Defenestration of Houston?

[justanothertxlawyer]

I practice in Houston. Not only is Judge Engelhart the best civil judge in Harris County, he has a great sense of humor. He goes out of his way to put lawyers, parties, witnesses, jurors -- everyone who comes into his courtroom -- at ease. He cracks jokes and is self-deprecating but only as appropriate and never in a way that falls beneath the dignity of the court. In other words, he can be funny and so can lawyers, but definitely not in a way that fails to maintain appropriate courtroom decorum. No doubt this pleading is a short, plain statement as required by the rules - but the rules also require dignity. I wouldn't want to be the guy who put Judge Engehlart in the position of putting his stamp of approval on this kind of thing, inviting every smart-aleck in Houston with a law license to audition to be Stan Lee, Esq. Englehart is patient but I wouldn't want to get an order from him (or any judge from that matter) that begins with "Lawyers are expected to be dignified and respectful..."

[Rev. Arthur L. Kirkland]

I agree with your sentiment, although part of me wishes I did not.

[rsteinmetz]

Since this is the third amended complaint it seems possible the Judge may be annoyed with the plaintiffs foot dragging.