Rowland Martin, Jr. v. Edward L. Bravenec and 1216 West Ave., Inc. ( 2015 )

Case No. 04-14-00483-CV
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ROWLAND J. MARTIN. APPELLANT
INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS
ADMINISTRATOR FOR THE ESTATE OF KING
EDWARD BRAVENEC AND 1216 WEST AVE., INC., APPELLEES
APPELLANT'S REPLY BRIEF
An Interlocutory Appeal
From Orders Of The 285th Judicial District Court
Bexar County, Texas
Submitted By:
Rowland J. Martin
951 Lombrano
San Antonio, Texas 78207
(210) 323-3849
IDENTITY OF PARTIES & COUNSEL
Appellant: Rowland J. Martin
Individually and As Administrator of The
Estate Of King
951 Lombrano
San Antonio, Tx 78207
Represented by: Pro se
Appellees Edward Bravenec, the Law Firm of
McKnight and Bravenec, 1216 West Ave.,
Inc.
Represented by: Glenn Deadman, Esq.
S. 509 Main Street
San Antonio, Texas, 78204
3. Interested Third Parties Subject To Joinder:
3a. Bailey Street Properties
Represented by: Law Office of McKnight and Bravenec
405 South Flores
San Antonio, Tx. 78205
3b. Torrabla Properties, LLC
18507 Canoe Brook,
San Antonio, Texas
Office Address:
1626 S.W. Military Dr.
San Antonio, Tx. 78201
Represented by: Unknown
APPELLANT'S REPLY BRIEF
Appellant Rowland J. Martin files this document for his briefin reply to the responding
brief Appellees filed on March 2, 2014. Due to the needto address unresolved issues about an
apparent fraud on the court by Appellee Edward Bravenec and his Attorney Of Record Glenn
Deadman, Appellant previously filed a supplement briefing on February 19,2014, in which
Points of Error Six Through Twelve are alleged, and a motion forjudicial notice and special
exception to non-suit with prejudice the part of the proceeding that appeals the orderof the trial
court granting temporary injunctive relief. Due to the extenuating circumstances and related
importantmatters of first impression for the Court's TCPAjurisprudence, Appellant respectfully
requests a waiver of rules governing volume limits in the interest of discharging his duty of
candor to the Court, and limits his reply brief presentation to the single issue presented by the
trial court's order denying his Texas Citizen's Participation Act motion to dismiss. If the Court
declines to accept the brief as filed, Appellant in that event respectfully requests notice and
opportunity to conform his reply the Court's instructions.
APPELLANT'S REPLY BRIEF
Appellant Rowland J. Martin files this document for his briefin reply to the responding
briefAppellees filed on March 2, 2014. Dueto the need to address unresolved issues about an
apparent fraud on the courtby Appellee Edward Bravenec and his Attorney Of Record Glenn
Deadman, Appellant previously filed a supplement briefing on February 19, 2014, in which
Points of Error Six Through Twelve are alleged, and a motion forjudicial notice and special
exception to non-suit withprejudice the part of the proceeding that appeals the order of the trial
courtgranting temporary injunctive relief. Dueto the extenuating circumstances and related
important matters of first impression for the Court's TCPA jurisprudence, Appellant respectfully
requests a waiver of rules governing volume limits in the interest of discharging his duty of
candor to the Court, and limits his reply brief presentation to the single issue presented by the
trial court's order denying his Texas Citizen's Participation Act motion to dismiss. If the Court
declines to accept the brief as filed, Appellant in that event respectfully requests notice and
opportunity to conform his reply the Court's instructions.
in
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS Hi
STATEMENT OF THE FACTS 1
ISSUE PRESENTED 3
LEGAL STANDARDS 3
SUMMARY OF ARGUMENT 7
ARGUMENT AND AUTHORITIES 9
I. Appellees Err In The First Instance By Asking The Court To Construe The TCPA In
A Manner That Narrows The Scope Of The Communications Referenced In The Text
Of The Act 9
II. Appellees' Brief Fails On TCPA's First Prong By Neglecting To Controvert
Appellant's Fifth Point Of Error And Preponderant Evidence Establishing The
Exercise Of The Right To Free Speech And The Right To Petition 10
III. Appellees' Brief Confirms That They Defaulted On TCPA's Second Prong By
Presuming Erroneously That They Were Exempt From The Burden Of The TCPA's
Clear And Specific Evidence Standard 12
IV. Appellee's Brief Omits To Allege A Rebuttal Of Collateral And Deed Estoppel
Defenses And To Explain Why Their Omission In Trial Court Should Be Excused
On Appeal 15
A. The Collateral Estoppel Issues 16
B. The Deed Estoppel Issues 20
V. The Case Presents Issues Of Vital Importance For Uniformity In Anti-SLAPP
Dismissal Proceedings And For Observance Of Automatic Stay Requirements
By The Bexar County District Courts 22
CONCLUSION 24
CERTIFICATE OF SERVICE 25
CERTIFICATE OF WORD COUNT 25
APPENDIX
IV
STATEMENT OF THE FACTS
On January 12, 2015, Appellant filed his opening brief and on March 2, 2015, Appellees
filed a responding brief. Appellant's Opening Brief shows in the Sixth Point of Errorthat the
claimed purchase money lien interest touched and concerned the land at the time Bravenec's
grantor purchased it, that his dispute with the Appellant arises from a prior attorney client
relationship involving vertical and horizontal privity, and that the lis pendens notices in question
ultimately enabled the contracting parties to exercise rights they already to treat Appellant's lien
claim as one that runs with the land. There is no dispute discernible from the Appellees' brief on
the matter that their legal action for tortious interference with contractual relations was prompted
by a certain published notice of apparent liability for purchase money lien claims, a perfected
notice of lis pendens referring to the purchase money lien claim, and contemplated future
communications in and out of court for the purpose of enforcing the lien claim. The only
question they raise was whether these communications involve the exercise of the right to speech
and to petition sufficient to invoke the protection of the Texas Citizen's Participation Act.
According to Appellees, the TCPA is inapplicable because "one can infer that Martin
simply found a section of a statue [sic] that provided an automatic stay and through [sic] the
same into a briefing'not supported by any case [sic] of action in a live pleading." Appellees' Brief
at para 56, p. 25. Appellees also appear to allege that Appellant's pleading is nullified by a fatal
defect. They seem to imply either that the defect nullifies the pleading, or that a moving party
has the burden to allege a predicate cause of action to qualify for TCPA relief. Although
difficult to interpret both in substance and form, Appellant construes the Appellees' brief to
allege that Appellant's motion to dismiss was insufficient to place them on notice that their
action lies within the scope of the TCPA, and that this relieved them of the TCPA burden to
them to prove every elementof their primafacie claims for tort liability under the clear and
specific evidence standard.
To establish the supposed legal basis for their contentions, Appellees argue in pertinent
part as follows:
The Texas system of pleadings is composed of petitions and answers... The pleadings
define the suit, give notice of the facts and legal theories of the case, guide the trial court
in admitting evidence and in charging the jury, restrict the trial court in rendering the
judgment an[d] form the basis for appellate review ... When there is no pleading, there
can be no judgment... Further, it is not proper to admit evidence unless it is addressed or
bares upon some issue raised by the pleadings ... There can be no fact issue as a result of
a non-plead cause of action.
Appellees' Brief atpara. 52, p. 23-24. Though correct on the law, Appellees' brief omits to
allege the filing of a formal responsive pleading in response to the TCPA motion to dismiss, and
also neglects to explain the omission. Instead, they assert the unsupported fact theory that
Bravenec's chain of title related back to a foreclosure on October 3,2003, and ask the Court
instead to give dispositive effect to the typographical error in Appellant's TCPA motion to
dismiss. These arguments are raised for the first time on appeal after Appellees waived the
opportunity to plead opposition to TCPA dismissal in the trial court by way of a formal pleading.
Although Appellees' brief does repeat the res judicata arguments they raised in the trial
court to support the tortious interference claim, it offers no direct evidence and legal authority to
controvert Appellant's collateral estoppel defense or the related claim of a third party purchase
money lien interest in the subject property of the dispute. In this regard, their res judicata
argument amounts to a difference of opinion with Appellant about the meaning of Martin v.
Grehn, Case No. 13-50070. In this regard, Appellant attaches dispositive significance to the fact
the Appellees' brief fails to explain how the presumed res judicata effect of the judgment in
Martin v. Grehn would even plausibly substantiate every element of their prima facie case for
tort liability in lightof a non-final pending appeal in Martin v. Bravenec, Case No. 14-50093. By
all indications, Appellees' TCPA showing is predicated in its entirety on a legal theory that
omits to differentiate claim preclusiondoctrine ("res judicata") from issue preclusion doctrine
("collateral estoppel"), and which offers no legal or evidentiary basis as such from which to
discern a nexus with the "interference" element or any other element of their claims for tort
liability. Thus, the record is now ripe for the Court to determine whether the trial court erred in
agreeing with Appellees that Appellant's speech as attacked by their tort liability claims is
inherently ineligible for TCPA protection.
ISSUE PRESENTED
If the Appellees TCPA showing is insufficient as Appellant contends here, in his original
Fifth Point of Error, and in ancillary pleadings, the invalidity their cause of action for tort
liability necessarily moots the need to argue further about whether the temporary injunction
order was a void ab initio post-stay gag order as alleged. In the interest of simplifying the appeal,
the sole issue presented for the Court's consideration for reply brief purposes is this:
Whether the Appellees' responding brief sustains their burden to show, consistently with
applicable standards of review, that they produced clear and specific evidence of every
element of their prima facie case for tort liability, and that they rebutted Appellant's
defenses based on collateral and deed estoppel, in the dismissal proceeding below?
LEGAL STANDARDS
The TCPA provides in pertinent part that if a legal action is "based on, relates to, or is in
response to a party's 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." Tex.Civ.Prac. & Rem.Code Ann. §
27.003 (West Supp.2014). To prevail on a TCPA motion to dismiss, the movant bears the initial
burden to show by a preponderance of the evidence that the plaintiffs action is covered. The
party who broughtthe action can avoid dismissal if he or she "establishes by clear and specific
evidence a primafacie case for eachessential element of the claim in question." Id. If the motion
is denied, the moving party is authorized to commence an interlocutory appeal which has the
effect of staying all trial court proceedings. Tex.Civ. Prac. & Rem.Code Ann. Section51.014.
Every Texas court of appeals to address the standard of review for the first prongof the
TCPA burden shifting analysis, including the Fourth Court of Appeals, has concluded that de
novo review applies. Rio Grande H20 Guardian v. Robert Mutter Family P 'ship Ltd., No. 04-
13-00441-CV, 2014 WL 309776, at *2 (Tex. App.—San Antonio Jan. 29,2014, no pet.) (mem.
op.).1 InFarias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio 2014, pet. filed May 6,
2014) (reversing trial court's refusal to dismiss) this Court held in regard to the second prong that
"... the proper standard is to 'determine de novo whether the record contains a minimum
quantum of clear and specific evidence that, unaided by inferences, would establish each
essential element of the claim in question if no contrary evidence is offered." Id., citing Rehak
Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.-Houston [14th Dist.] 2013, pet.
denied); Tex. Civ. Prac. & Rem.Code § 27.005(c). NewspaperHoldings, Inc. v CrazyHotel
Assisted Living, 2013 WL 1867104, at *6 (examining pleadings and evidence to determine
whether plaintiffs marshaled any "clear and specific" evidence to support each alleged element
of their causes of action). TCPA 27.006(a) further provides that "[i]n determining whether a
legal action should be dismissed under [the TCPA], the court shall consider the
1 See also, Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3
(Tex. App.—Austin Apr. 11, 2014, no pet. h.) (mem. op.) (concluding parties' issues present "matters of
statutory construction" and are reviewed de novo); Sierra Club v. Andrews Cnty., 418 S.W.3d 711, 715
(Tex. App.—El Paso 2013, pet. filed); Whisenhunt v. Lippincott, 416 S.W.3d 689, 695-96 (Tex. App.—
Texarkana 2013, pet. filed); Newspaper Holdings, Inc. v. Crazy HotelAssistedLiving, Ltd., 416 S.W.3d
71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); KTRKTelevision, Inc. v. Robinson, 409
S.W.3d 682, 688 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716, 725 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
pleadings and supporting and opposing affidavits stating the facts on which the liability or
defense is based." Id. (emphasis added).
In James, et al, v. Calkins, Case No. 01-13-0018-CV (Tex. App. -Houston [1st Dist.]
August 21, 2014, the court of appeals noted that evidence of a communication made in
connection with a judicial proceeding in the form of a notice of lis pendens satisfies the
requirement to show that claims in the underlying case are based on, related to, or are in response
to appellants' exercise of the right to petition as defined by the TCPA Sections 27.00l(4)(A)(i)
and 27.005(b):
... [Ajppellees' ... claim is "based on, relates to, or is in response to" the lis pendens
filed by [Appellant] with the Harris County clerk that gave notice of her claims against
[Appellee] in the 61st District Court lawsuit, which seeks to cancel his transfer of [the
beneficiary's] home to a trust controlled by him. All of these are "communication[s] in or
pertaining to a judicial proceeding." See id. § 27.00l(4)(A)(i). Appellees argue that that
these actions cannot be constitutionally protected, but the cases they cite do not apply the
TCPA, or do not involve communications of the type at issue here. Accordingly, we hold
that appellants met their initial burden to prove that appellees' legal action related to their
exercise of the right of petition. See id. § 27.005(c).
The holding in James is consistent with the national trend in Anti-SLAPP litigation which treats
lis pendens speech as a covered communication for Anti-SLAPP purposes. See, Park 100
Investment Group v Ryan, Case No. B208189 (Cal. App. 2nd Dist. 2009); La Chappelle v.
Superior Court ofRiverside County, Case No. E058014 (Cal. App. 4th Dist. 2013) (mandamus
proceeding reversing lis pendens expunction).
In Pickens v. Cordia, Case, No. 05-13-00780-CV (Tex, App. - Dallas 2014), the court of
appeals noted that the "exercise of free speech" is also defined as a "communication made in
connection with a matter of public concern." Id. § 27.001(3). A "matter of public concern"
includes an issue related to "(A) health or safety; (B) environmental, economic, or community
well-being; (C) the government; (D) a public official or public figure; or (E) a good,
product, or service in the marketplace." TEX. CIV. PRAC. & REM. CODE § 27.001(7). The
Pickens court held that a matter can be a public issue "because people in the public are
discussing it or because people other than the immediate participants in the controversy are likely
to feel the impact of its resolution." Id. citing Miranda v. Byles, 390 S.W.3d 543 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied). Other courts reviewing Anti-SLAPP litigation have found
that matters of public concern include speech addressed to the quality of legal services provided
by a member of the state bar, Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet.
denied); viewpoints on issues about compliance with canons of judicial conduct, Cortez v.
Johnston, 378 S.W.3d 468 (Tex. App.—Texarkana 2012, pet. denied) (strong matter of public
concern involving a member of the state judiciary); and viewpoints about the efficacy of public
policy responding the mortgage industry crisis, Mortgage-Specialists, Inc. v. Implode-Explode
Heavy Industries, Inc., 999 A.2d 184 (N.H. 2010). (anti-slapp case involving mortgage dispute).
The TCPA also provides rules of construction that the courts of appeals are obligated to
observe in appeals from denials of dismissal relief. For example, Subsection 27.011 (a) states
that "[fjhis 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," and
Subsection (b) states that "[t]his chapter shall be construed liberally to effectuate its purpose and
intent fully." Id. Section 27.011 preserves collateral estoppel defenses, as indicated in
Charalambopoulus v. Grammer, Civil Action No. 3:14-CV-2424-D (N.D. Tex. January 29,
2015), a TCPA decision acknowledging that in a proper case, the moving party's assertion of
issue preclusion supports an automatic right to dismissal, although the court there concluded that
the moving party failed to establish the doctrine applied. Section 27.011 preserves rules under
the United States and Texas Constitutions that prohibit prior restraints on free speech. See U.S.
CONST, amend. I; TEX. CONST, art I, §8. A prior restraint is a judicial order forbidding certain
communications when issued in advance of the time that such communications are to occur. See
Alexander v. U.S., 509 U.S. 544, 550 (1993). A prior restraint of expression bears "a heavy
presumption against its constitutional validity." See In re Newton, 146 S.W.3d 648, 653-54 (Tex.
2004). The guiding purpose behind the preservation of these defenses and rules of construction is
to afford a qualified moving party a substantive immunity from suit, Batzelv. Smith, 333 F.3d
1018,1025 (9th Cir. 2003), cert, denied 541 U.S. 1085 (2004), which in the context of the TCPA,
is intended 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." Tex. Civ.Prac. & Rem.Code Ann. § 27.002.
SUMMARY OF ARGUMENT
Appellant's opening brief thoroughly addressed Appellees' issue on whether the trial
erred by granting gag order relief on July 17, 2014. The opening brief was then augmented in a
supplemented briefing submission, and by way of a motion for special exceptions in Case No.
04-14-00483-CV, and a motion to reinstate his petition for extraordinary relief in Case No. 04-
14-00841-CV. In the current state of the record, Appellant submits that the Appellees'
submission on TCPA burden shifting requirements is the only issue the Court needs to consider
to dispose of the appeal. Careful examination of the Appellees' briefing reveals that they err in
general by asking the Court to adopt a construction that obscures the definition for
communications set forth in TCPA Section 27.005. The first prong of their TCPA analysis fails
to withstand scrutiny under the de novo review standard because it fails to establish that the
subject matter of their legal actions for tort liability falls outside the scope of the
communications covered by Section 27.005. The second prong of their analysis fails for legal
insufficiency under the TCPA's clear and specific evidence standard because it relies
substantially on adverse inferences, and without regard to the fact that Appellees' voluntarily
waived the opportunity to file a responsive pleading to address every element of the claims for
tort liability they assert. Even if Appellees could prevail on the first and second prong, which
they cannot, their brief makes no plausible attempt to controvert Appellant's collateral and deed
estoppel defenses with cognizable evidence and legal authority. Under the circumstances, the
only conclusion one can plausibly reach consistently with the guiding principles of the TCPA -
and the conclusion that Appellees should have reached before they filed their case - is that
Appellees' legal action to suppress future lis pendens speech is utterly repugnant to First
Amendment values and subject to mandatory dismissal under the TCPA as such. Under the
circumstances, Appellees' issue about whether the trial court erred in granting temporary
injunctive relief is functionally mooted by their lack of standing to maintain the underlying cause
of action whatsoever for tort liability.
ARGUMENT AND AUTHORITIES
I. Appellees Err In The First Instance By Asking The Court To Construe The TCPA
In A Manner That Narrows The Scope Of The Communications Referenced In The
Text Of The Act.
An important threshold matter concerning the proper statutory construction of the TCPA
is presented by Appellees' legal theory proposing to exclude coverage of Appellant's lis pendens
speech based on a pleading defect they neglected to raise during their appearance in the trial
court. Their construction "creates an absurdity [on appeal] by drawing an artificial distinction
within the class of defendants the TCPA was designed to protect regardless of whether they
suffered the harm for which the legislature addressed by enacting the TCPA." San Jacinto Title
Services ofCorpus Christi, LLC. v. Kingsley Properties, LP, 2013 WL 1786632, *5 (Tex.App.-
Corpus Christi April 25, 2013, pet. denied). Their construction should be summarily rejected in
8
the first instance because the TCPA imposes no requirement for the moving party to allege a
cause of action, as Appellees' brief appears to suggest, but instead merely requires the moving
party to invoke TCPA immunities by alleging that the legal action by the plaintiff was in
response to the exercise of the right to speech and to petition by the moving party. Further, a
typographical error in a motion to dismiss, such as the one Appellees cite in their brief relatingto
an event in the chain of title to the subject property, has no bearing whatsoever on the overall
justiciability of a motion to dismiss in which a lis pendens communication injudicial proceeding
covered by 27.005(c) is properly alleged as the predicate for TCPA review.
In Charalambopoulus v. Grammer, Id, the Court noted that under Texas law publications
made in the course ofjudicial and quasi-judicial proceedings are absolutely privileged. This
"mean[s] that any statement made in the trial of any case, by anyone, cannot constitute the basis
for a defamation action, or any other action." Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex.
App. 1996, writ denied) (citing James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam);
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (1942)). The Charalambopoulus court
noted that the judicial proceedings privilege is "tantamount to immunity," and, where there is an
absolute privilege, no civil action in damages for oral or written communications will lie, "even
though the language is false and uttered or published with express malice." Id. "The scope of the
absolute privilege extends to all statements made in the course of the proceeding ... and attaches
to all aspects of the proceeding, including statements made in open court, hearings, depositions,
affidavits, and any pleadings or other papers in the case." Id. As indicated by James, Id., the
privilege ordinarily extends to the recording of a notice of a lis pendens which simply documents
that the interest of the grantor passes to the pendent lite purchaser subject to a determination by
the court. Cherokee Water, Co. v Advance Oil & Gas, Co., 843 S.W.2d 132, 135 (Tex. App. -
Texarkana 1992, writ den'd). Becausethe privilege extends to statements made in contemplation
of, and preliminary to, judicial proceedings, it would arguably cover the filing of pre-litigaiton
notices, such as Appellant's notice of apparent liability for purchase money claims, that precede
the lis pendens filing. See, Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App. 2001, no pet.).
Even if there were no on-going judicial proceedings, moreover, the issues of public
concern qualify for coverage both under TCPA Section27.005 and Section 8 of the Bill of
Rights of the Texas constitution: "Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever
be passed curtailing the libertyof speech or of the press. In prosecutions for the publication of
papers, investigating the conduct of officers, or men in public capacity, or when the matter
published is proper for public information, the truth thereof may be given in evidence. " Id.
Under the circumstances, the Appellees' brief is suspect on its face. The mere fact that
Appellees assert the right to maintain an independent cause of action to categorically enjoin
unpublished speech pertaining to a still pending case, and now argue on appeal that the Court
should unilaterally narrow the scope of the communications referenced in the text of the Act,
both strongly suggest that they are not parties to a meritorious lawsuit involving a demonstrable
injury as inferred from their arguments about res judicata by the trial court. Cherokee Water, Id.
II. Appellees' Brief Fails On The TCPA's First Prong By Failing To Controvert
Appellant's Fifth Point Of Error And Preponderant Evidence Of Appellant's
Exercise Of The Right To Free Speech And The Right To Petition.
Appellees purport to maintain causes of action for tortious interference with contractual
relations and fraud, but regardless of what labels they use to allege tort liability, the dispositive
factors on the TCPA's first prong are the existence of published communications in a judicial
proceeding in the form of lien and lis pendens notices , and communications about matters of
10
public concern both published and unpublished, both of which undoubtedly fall within the scope
of TCPA protection. Appellees' presentation at the hearing on July 9, 2014 removes all doubt
that their action was in response to and based on the exercise of the right to speech and to
petition, as shownby Attorney Deadman's colloquy with the trial court in which he explains the
rationale for the language of the gag order he drafted for signature by the trial court:
THE COURT: "... my intent was to draft the order as broadly as possible. I did not
intend the language [to] quote that phrase 'being given its broadest terms' to be included
in the order. Why is it in there?"
MR. DEADMAN: "The only reason that's in there ... [is] the lengthy history in this case
THE COURT: " .. .1 don't know that you need that particular language in the Order. I
don't want to make it so broad that it's subject to constitutional challenge ...."
See, CourtReporters' Transcriptfor July 17, 2014, atp. 13-14. Appellees' reliance on the same
line of arguments to oppose TCPA dismissal as they presented to secure temporary injunctive
relief from present and future lis pendens speech was self-defeating for their attempts to avoid a
shifting of the burden, but that does not alter the factual basis for their motivation to litigate or
the coverage under the TCPA resulting from it.
Applying the both prongs of the criteria for TCPA coverage, it is evident from the
Appellees' own testimony and evidentiary submissions in support of temporary injunctive relief
that, at bottom, their entire litigation revolves Appellant's exercise of the right to free speech and
to petition. The gravamen of Appellees case, by their own account, lies in their interests in
enjoining future lis pendens speech and in resolving a difference of opinion with the Appellant
about the res judicata effect of the judgment for Bravenec in Martin v. Grehn and the collateral
estoppel effect of the federal court's final order declining jurisdiction to expunge an earlier lis
pendens filing noticing Appellant's purchase money claims. See Defendants' Exhibit 2. At the
11
same time, the underlying speech which the Appellee's suit places in dispute implicates every
matter of public concern known to the TCPA.
Under any realistic construction to effectuate the purposes of the TCPA, Appellant's
speech can and should be deemed to encompass a request for adherence to disciplinary rules of
professional responsibility, and for observance ofjus cogens standards ofjudicial conduct, that
directly or indirectly touch every category of public concern known to the TCPA Section 27.005,
including "safety" from alleged deprivations of due process, the effect ofjudicial branch
operations on "economic and community well-being", "government accountability," Bravenec's
conduct as a "public figure," and the quality of legal services in the marketplace provided by him
and his firm. The public clearly had a right to know that a candidate for judicial office was suing
a former client, and was at the same time facing claims for legal malpractice himself arising from
a former attorney-client relationship. The public also stands to be affected by the resolution of
v
issues concerning the conflict between the State and the Fifth Circuit on laws governing post-
petition foreclosures and suspect lien assignments. Thus, even if Appellees had filed a written
response to the TCPA motion to dismiss, they would still have no realistic basis for disputing
that the underlying subject matter of Appellant's speech involves matters of public concern, both
in the sense that people other than the parties to this controversy are likely to feel the impact of
itsresolution, and that there is on-going public discussion onthese topics.2
III. Appellees Brief Confirms That They Defaulted On The TCPA's Second Prong By
Presuming Erroneously That They Were Exempt From The Burden Of The
TCPA's Clear And Specific Evidence Standard.
As the appellees in an interlocutory appeal pursuant to TCPA Sections 27.003 and
2 See e.g., Hon. Catherine Stone and Wendy Martinez, "Caperton v. Massey Coal Co.: The Texas
Implications," St. Mary's Law Journal, 2010. Available at http://stmaryslawjournal.org/pdfs/Stone.pdf.
See also, "Feds want secret audio at trial; Informant, now dead, helped obtain it," San Antonio Express
News, March 20, 2015, at p. A-3 (reporting on a pending federal case related to a local attorney's felony
conviction arising out of corrupt litigation in a state district court).
12
51.014(a)(12), their burden was to comply with theTCPA's clear and specific evidence standard.
This they failed to do. Dueto Appellees' waiver of responsive pleadings, there is nothing in the
trial court record to documenttheir compliance with the TCPA's requirement that they establish
every elementof their prima facie case for tort liability with clear and specific evidence.
Appellee's resort to back-door arguments for exemptions from TCPAcoverage, that the Court
should "infer that Martin simply found a section of a statue [sic] that provided an automatic stay
and through [sic] the same into a briefing not supported by any case [sic] of action in a live
pleading," is both legally non-justiciable under the heightened standards noted in Farias and
factually absurd as a response to Appellant'stwelve points of error and motion for special
exceptions based on a fraud on the court below. It suffices to say that Appellees' fail to
distinguish the relief they sued to obtain from an explicit request for unlawful prior restraints.
Markel v. World Flight, Inc., 938 S.W.2d 74 (Tex. App.-San Antonio 1996, no writ).
Further, whether analyzed under the label of tortious interference with contractual
relations, or as a fraudulent filing of a public record, Appellees' core arguments about tort
liability fails to pass muster of the facts of this case. The court in Newspaper Holdings, Inc. v.
CrazyHotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex. App - 1st Dist. - Houston 2013)
disposed of the tortious interference claim comparable to the one under review here with the
following holding: "To establish a cause of action for tortious interference, a plaintiff must prove
that (1) a contract subject to interference exists, (2) the defendant committed a willful and
intentional act of interference with the contract, (3) the act proximately caused injury, and (4) the
plaintiff sustained actual damages or loss .. .Ordinarily, merely inducing a contract obligor to do
what it has a right to do is not actionable interference." Id. On this basis, the court of appeals
there reversed a trial court order denying the defendant's TCPA motion to dismiss. Here,
13
Appellees' offer no argument to explainwhy the transfer of the subject property to Torralba
Properties makes this case distinguishable from the one in Newspaper Holdings, Id.
The court of appeals in James, Id. disposed of a fraud claim identical to the one asserted
by Appellees pursuant to Tex. Civ. Prac. & Rem. Code Section 12.002(b) withthe following
holding: "Appellees claimed ... that appellants knew that the lis pendens was fraudulent whenit
was filed and that [one appellant] admitted under oath that she knew that the lis pendens was
fraudulent. But no evidence supports these assertions, and [c]onclusory statements are not
probative and accordingly will not suffice to establish a prima facie case ... The evidence shows
that that the lis pendens provided notice of the pendency of the 61st District Court lawsuit,
which requested a declaratoryjudgment that a 2007 deed conveying [a] home to a trust creadted
and controlled by [appellee] is invalid." James, Id. at p. 28. Here, the probative evidence flowing
from Bravenec's testimony on July 9,2014 established mainly that he lacked capacity to
differentiate truth and falsity in the context of his purported action for fraud.
The arguments offered by Appellee are far more obscure and deceptive because, unlike
the respondent in Newspaper Holdings and James, they waived the opportunity to file a written
response to Appellant's TCPA motion to dismiss, and instead relied on a showing calculated to
demonstrate why present and future lis pendens speech should be enjoined. As plead in
paragraphs 10, 37, 38, 50 and 51 of their brief, moreover, Appellees purport to maintain their
causes of action for tortious interference with contractual relations and fraud on theory that
Bravenec's chain of title began with a foreclosure sale transaction on October 3, 2003 which they
suppose to be wrongfully clouded by Appellant's lis pendens filings in 2014. In paragraph 10,
for example, Bravenec specifically asserts that his chain of title to the subject property began on
October 3, 2003 with a foreclosure sale transaction executed by the late Albert McKnight.
14
Thereafter, he incorporates the same fact issue in paragraph 50 in support of his second issue,
defending the trial court's order denying dismissal pursuantto the TCPA. See also Appellees'
Briefatparas. 3, 13, 26 and 43. Forhis second issue, whether the trial court erred by ordering
the denial of TCPA dismissal relief, Bravenec alleges essentially in paragraphs 51-56 that
Appellant waived immunity from suitdue to a defective TCPA motion to dismiss, and thatthe
trial court's denial of TCPA dismissal relief was proper because "numerous courts," allegedly
includingthe U.S. District Court for the Western District of Texas in Case No. SA 1l-CV-0414
and the U.S. Court of Appeals in Case No. 13-50070, adjudicated the supposed October 3,2003
foreclosure transaction. No authority is cited for the latter proposition, and TCPA authorities on
point such as James and Charalambopoulus expressly reject their conclusions.
IV. Appellee's Brief Omits To Allege A Rebuttal Of Collateral And Deed Estoppel
Defenses And To Explain Why Their Omission In Trial Court Should Be Excused
On Appeal.
TCPA 27.006(a) provides that "[i]n determining whether a legal action should be
dismissed under [the TCPA], the court shall consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability or defense is based." (emphasis
added). Careful examination of the record indicates that Appellees are, and should be, precluded
by collateral and deed estoppel from asserting claims for tort liability that are inconsistent with
the outcome of past litigation and the transactional details of the chain of title. On cross-
examination about the reasoning behind his legal theory, Bravenec not only confirmed that
Appelant's former exercise of the right to petition forms the basis of his suit, but admitted facts
that supports Appellant's use of collateral estoppel as a defense to his claims for tort liability
based on the federal court order in Defendant's Exhibit 2 that denied his final motion for
expunction and contempt in Martin v. Grehn on March 5, 2014:
15
Q. ... Were you not aware that you would be collaterally estoppel from raising those
issues [about res judicata bars] in a state court forum?
A. I don't think that collateral estoppel would apply to me, so no, I don't agree with
that.
Q. How do you explain [that]?
A. Well, collateral estoppel would be against the losing party. And so we are the
prevailing party. So my interpretation of collateral estoppel... [is] that you were
collaterally estopped from asserting what is essentially a matter that had already
been decided in Federal Court [and] in Probate Court. So I think that was our
argument.
Q. Very well. But [Judge Hudspeth's] order denied you relief, the relief you
requested, did it not?
A. It did.
Q. Okay. So you were the losing party on this motion; is that correct?
A. On that one motion, [I] certainly was.
Court Reporters' Transcriptfor July 9, 2014, pp. 39 (lines 17 - 25) to 40 (lines 1-11).
Elsewhere, when asked to specify where the record of Martin v. Grehn contained textual
references disposing of purchase money issues in Appellees' favor, he stated "I cannot show
you." CourtReporters' Transcriptfor July 9, 2014, atp. 46, lines 13 - 16. In short, Appellees
filed a general denial to Appellant's counterclaims in Case No. 2014-CI-07644, specifically
testified to their inability to allege facts to defeat Appellant's use of collateral estoppel for
offensive purposes and for defensive purposes, and then failed on appeal facts to controvert
estoppel by deed. Under the circumstances, Appellees' actions attributing tort liability to the
Appellant are simply wrong on the law and wrong on the facts. See Appendix.
A. The Collateral Estoppel Issues
The major implication of Bravenec's testimony - that there is no such thing as the
defensive use of collateral estoppel by parties on the losing end of a judgment - is simply
16
preposterous, and reflects a common misconception about the meaning of collateral estoppel
doctrine. Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992). Offensive collateral
estoppel describes when a plaintiffseeking to estop a defendant from relitigating an issue which
the defendant previously litigated and lost in a suit involving another party. See Parklane
Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Defensive
collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue
the plaintiff has previously litigated unsuccessfully in another action against the same or a
different party. United States v. Mendoza, A6A U.S. 154, 159 n.4 (1984). Collateral estoppel is
further differentiated according to mutuality versus non-mutuality, i.e. whether parties with or
without privity assert the estoppel bar, and whether the basis for the alleged estoppel rests on
legal and evidentiary factors. See UnitedStates v. Mollier, 853 F.2d 1169, 1175 n.7 (5th Cir.
1988).
Charalambopoulus illustrates an attempted but unsuccessful use of collateral estoppel by
a moving party in a TCPA case. There, the Federal Court for the Northern District of Texas ruled
for the non-moving party of the Anti-SLAPP motion because there was "no evidence that would
enable the court to identify the issues that the [prior court] actually decided," Id. at p. 62. The
moving party had argued that the non-moving party, a defamation plaintiff, was collaterally
estopped from relitigating the issue of whether he engaged in the conduct that the moving party
alleged in a prior litigation. However, the non-moving party responded that the claims in the
second lawsuit were not "identical" to those the earlier action cited by the moving party, and
further that an equitable exception to collateral estoppel was applicable because the moving party
fraudulently obtained the Order forming the predicate for the alleged estoppel by presenting false
testimony. Lack of evidence and false testimony are non-factors for the collateral estoppel
17
analysis here. The record evidence shows that Bravenec's overly broadand unqualified
arguments from res judicata doctrine in fact relitigate an adversejurisdictional determination and
concomitant refusal to expunge a lis pendens notice that Bravenec challenged in that case. The
outcome in that case is corroborated by a U.S. Bankruptcy Court judge, and both orders are
consistent with the transactional and chain of title details that form the legal basis of Appellant's
collateral estoppel and separate transaction defenses. Anderson v. Law Firm ofShorty, Dooley &
Hall, 393 Fed. Appx. 214 (5th Cir. Aug. 26, 2010) (applying separate transaction rule of res
judicata argument in attorney client dispute ).
The Anti-SLAPP litigation in Park 100 Investment Group v Ryan, B208189 (Cal. App.
2nd Dist. 2009) is instructive with respect to Appellant's entitlement to prevail on the collateral
estoppel defense asserted here. There, the defendants were attorneys who, in prior lawsuit
involving an easement dispute, had filed a lis pendens on a dominant tenement, and were sued by
the owners of the dominant tenement who claimed that the lis pendens was wrongfully recorded.
On appeal under anti-SLAPP laws, the court of appeals reversed the expunction and denial of
dismissal relief, concluding that the filing of the lis pendens was illegal as a matter of law, and
that the attorneys were not precluded from asserting the validity of the lis pendens.
Noting that "[collateral estoppel is not an inflexible doctrine," and that "[e]ven if the
minimal requirements for its application are satisfied, the doctrine should not be applied if
considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular
case," the court of appeals reversed the denial of Anti-SLAPP relief as follows:
... the courts have recognized that certain circumstances exist that so undermine the
confidence in the validity of the prior proceeding that the application of collateral
estoppel would be unfair to the defendant as a matter of law. [For example,] application
of collateral estoppel is unfair where the second action affords the defendant procedural
opportunities unavailable in the first action that could readily cause a different result
when Judge Treu was first called upon to address the propriety of the lis pendens in
18
considering the expungement motion, he was not provided with the proper legal
authority. His ruling was based upon misrepresentations by both parties as to the state of
the law. Both Oviatt and Heron erroneously represented to the court that there was no
legal authority in California discussing the propriety of recording a lis pendens on a
dominant tenement in an easement dispute., when Judge Treu rendered his order
expunging the lis pendens, the legal issues had not been fully presented and his decision
was based on an incomplete and erroneous understanding as to the state of the law....
new authority provided a "colorable" argument that the recording of the lis pendens was
permissible. ... In these circumstances it is inherently unfair to conclude that the orders
rendered by Judge Treu, including the expungement order, conclusively establish that the
lis pendens was illegal as a matter of law and thus, it is inappropriate to bind attorneys
Ryan and Brosman to those rulings ... When the question is one of law rather than a
question of fact, a prior conclusion does not prevent a reexamination of the issue, either if
injustice would result or if the public interest requires that relitigation not be foreclosed.
Id. atp. 12-15. The facts here run strikingly parallel to those in Park. In the proceeding below,
Bravnec persuaded the trial court to indulge a "non-mutual" application of collateral estoppel
doctrine, essentially for the benefit of non-party transferees who had not disclosed to the court.
Further, the state court case is a second action that affords Appellant the chance to litigate
purchase money lien interests, as opposed to mortgagor rights of redemption, as was the case in
federal court, the presenting "procedural opportunities unavailable in the first action that could
readily cause a different result." Larry York v. State ofTexas, 373 S.W.3d 32 (2012); Chisholm
v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006).
Thus, whether the Court applies de novo or factual sufficiency for the standard of review
makes no difference in this case because the result would be the same under either standard.
When asked to show the part of the record in the Martin v. Grehn judgment that supposedly ruled
on the purchase money lien claim that forms the basis of Appellant's post-judgment lis pendens
speech, Bravenec replied that "I cannot show you." When asked if he knew what was meant by
the terminology, "third party purchase money lien," Bravenec replied repeatedly that he did not
know what that is. In short, the Bravenec's hearing testimony directly contradicts the factual
premises of the Appellees' arguments about res judicata and collateral estoppel, and the
19
responding brief directly compounds this overt deficiency in the clarity and specificity of
Appellees' legal position by referring to October 3, 2003 as the point of origination for
Bravenec's chain of title.
B. The Deed Estoppel Issues
Appellees' responding brief also fails to rebut Appellant's defenses based on estoppel by
deed. The lis pendens mandamus case in La Chappelle, Id. is instructive with respect to the
significance of Appellees' failure to offer argument in rebuttal to Appellant's arguments about
estoppel by deed. Not unlike the fact situation here, La Chappelle involved a case where
purchasers at a nonjudicial foreclosure sale moved to expunge a lis pendens by alleging that the
claimant could not establish the evidentiary merit of his claim. In its ruling, the trial court cited
the following statement in Miller and Starr (3rd ed.) section 10.208 to support its ruling: "The
purchasers title (at a foreclosure sale)... is not encumbered by any interest that is created and
recorded after the deed of trust, but prior to the date of the foreclosure sale, even if the
foreclosure sale purchaser had actual or constructive notice of the intervening lien or interest."
Id at p. 2. On appeal, the La Chappelle court of appeals concluded that the foreclosure judgment
was inconclusive about whether or not the underlying deed was void: the lis pendens claimant
"stated grounds to set aside the sale based on the invalidity of the trust deed" and "he does claim
an interest in the real property so that the trial court erred in expunging the notice of lis
pendens." Id. at p. 4.
Here, the purchase money lien encumbrance that Appellant noticed in his lis pendens
filing was created long before the second deed of trust Bravenc acquired in 2005 and its
foreclosure in 2006. Further, here as in La Chapppelle, the federal court decision is inconclusive
for purposes of the matters in controversy in the pending interlocutory appeal. The simple fact of
20
the matter is that Bravenec was not the primary beneficiary in Federal Case No. SA 1l-CV-0414
- his co-defendants Charles Grehn and Reliant Financial were. Bravenec was a tag along first
lien assignee defendant, and a vicarious beneficiary of the judgment for Reliant Financial, due to
his role as the plaintiff of trespass to try title suit against Reliant Financial and his acquisition of
first lien interest through a foreclosure settlement in that suit. Consequently, the judgment in
Federal Case No. SA 1l-CV-0414 cannot reasonably be read to offer Bravenec repose from the
void order rule. Chisholm, Id. In short, Bravenec's testimony fails to controvert evidence of a
purchase money lien interest that touched and concerned the land at the time Bravenec's grantor
purchased it, but confirms his dispute with the Appellant arises from a prior attorney client
relationship involving vertical and horizontal privity, and that the lis pendens notices in question
ultimately enabled the contracting parties to exercise rights they already to treat Appellant's lien
claim as one that runs with the land.
The fact situation here is also directly analogous to the one in La Jolla where a California
court of appeals ruled for the Anti-SLAPP movants on two grounds: "First, the absolute privilege
... was applicable to the recording of the lis pendens in this case. Second, the evidence of forgery
established as a matter of law that the second deed of trust was void and, therefore, appellants
never acquired title to the Property. Each of these grounds would be a sufficient basis to
conclude that appellants have no probability of prevailing ...."Id. In this proceeding, Appellant
relies on a void order issue analogous to the one in La Jolla in his capacity as a purchase money
creditor rather than as successor to obligor Moroco Ventures, LLC. The void order issue is also
raised without limitation in Appellant's recently filed bill of review case challenging Bravenec's
probate court order of expunction on public policy factors in Probate Case No. 2001-PC1263,
Zuniga v. Grose, Locke, & Hebdon, 878 S.W.2d 313, 318 (Tex. App. San Antonio 1994,writ
21
refd), and ina recently filed second bill ofreview case in the 150th District Court, Rocha v.
Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio 1983, no writ). 3
V. The Case Presents Issues Of Vital Importance For Uniformity In Anti-SLAPP
Dismissal Proceedings And For Observance Of Automatic Stay Requirements
By The Bexar County District Courts.
On the facts of this case, the Appellee's brief can and should be disposed based on solely
on Appellant's Fifth Point of Error and the general rule that the non-movant must sustain its
burden on each essential element of the claim unaided by inferences, presumptions and
intendments. Farias, Id. In support of the reply brief, Appellant also incorporates by reference
the arguments in his Points of Error Nine and Ten arguing that the Appellees secured the
temporary injunction order on July 17, 2014 after conditions for a TCPA automatic stay had been
satisfied. Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005) appealed in
Super. Ct. No. CV780187 (Cal. 2005) (lack of trial court jurisdiction due to appeal in Anti-
SLAPP case triggering automatic stay). Although Appellees initially secured their gag order
relief relying heavily on the obscure inference that the res judicata effect of Martin v. Grehn
supplied a cause of action in tort to enjoin published and unpublished speech, Appellees'
arguments to the Court in defense of these proceedings depart widely from the guiding principles
for appellate review of TCPA appeals.
Specifically, Appellees' brief does allege the filing of a responsive pleading in the record
of the dismissal proceeding to rebut TCPA coverage or to substantiate each essential elementany
claim for tort liability. Bravenec's own testimony affirmatively supports Appellant's offensive
and defensive use of collateral estoppel. On appeal, moreover, Appellees' responding brief
3 See also, 6A C.J.S. ASSIGNMENTS §132 (2013) ("matters rendering the assignment absolutely
invalid ..., such as ... the nonassignability of the right attempted to be assigned" may be raised);
Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, 228 (5th Cir. 2013) ("Texas courts follow the
majority rule that an obligor can defend "on any ground which rendersthe assignment void.")
22
removes any doubt about the insufficiency of their trial court showing by advancing a
nonsensical reading of the TCPA's burden shifting requirements, and then by concluding with an
explicit request for the Court resolve the appeal based on an inference from a single
typographical error in the motion to dismiss they failed to contest in the trial court.
In view of the above, Appellant respectfully submits that the Appellees' cause of action
for tort liability, and the post-stay gag order they solicited from the trial court in "the broadest
possible terms," call for a treatment no different than the treatment the U.S. Supreme Court
accorded fifty years ago, in Stanford v. Texas, 379 U.S. 476 (1965), to a "constitutionally
intolerable" general warrant issued by the 57th District Court, which had similarly authorized the
broadest terms possible for a seizure of "books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments":
Vivid in the memory of the newly independent Americans were those general warrants
known as writs of assistance under which officers of the Crown had so bedeviled the
colonists. The hated writs of assistance ... were denounced ... as "the worst instrument of
arbitrary power, the most destructive of English liberty, and the fundamental principles of
law, that ever was found in an English law book," because they placed "the liberty of
every man in the hands of every petty officer" ... What is significant to note is that this
history is largely a history of conflict between the Crown and the press. ... In Tudor
England officers of the Crown were given roving commissions to search where they
pleased in order to suppress and destroy the literature of dissent... This is the history
which prompted the Court less than four years ago to remark that "[fjhe use by
government of the power of search and seizure as an adjunct to a system for the
suppression of objectionable publications is not new" ... [W]hat this history
indispensably teaches is that the constitutional requirement that warrants must
particularly describe the "things to be seized" is to be accorded the most scrupulous
exactitude when the "things" are books, and the basis for their seizure is the ideas which
they contain... The indiscriminate sweep of [the language in the warrant issued by the
57th District Court of Texas] is constitutionally intolerable. To hold otherwise would be
false to the terms of the [Bill of Rights], false to its meaning, and false to its history.
Id. (emphasis and bracketed language added). Here, as in Stanford, though "[t]he world has
greatly changed, and the voice of nonconformitynow sometimes speaks a tongue which Lord
Camden might find hard to understand," the clear purpose of the TCPAparadigm is to guarantee
23
the Citizens of Texas freedom and substantive immunity from the improper and unbridled use of
judicial process "as an adjunct to a system for the suppression of objectionable publications," Id,
for the same reasons the law 50 years ago protected Bexar County resident and political activist
John Stanford from constitutionally intolerable censorship in the 57th District Court.
CONCLUSION
The Court is respectfully requested to enforce the standards enunciated in Farias so as to
give effect, not only to the Stanford decision's principles on free speech, but to the legacy on
matters of "conscience and human dignity" its history reflects. Id. Even setting aside the
unresolved issues about fraud on the court by Attorneys Bravenec and Deadman, as set forth in
Appellant's Points of Error Six Through Twelve which are incorporated here by reference, see
Wilson v. Parker, Covert & Chidester, 28 C4th 811, 123 CR2d 19, 24 Civ LR 242 (Sept. 2002)
(Anti-SLAPP case discussing fraud on the court) (available on-line), the Appellees' ill-conceived
cause of action to enjoin lis pendens speech is fully deserving of dismissal because their
responding brief defending it represents what is quite possibly the most baseless legal argument
for opposing an Anti-SLAPP enforcement in the history of this important field of law, and even
then rests in pertinent part on fact theories raised mostly for the first time on appeal. See, Jones
v. Beckman, 2007 Cal. App. LEXIS 8326 (Cal. App., 2007) (rejecting Anti-Slapp cross appeal).
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court grant relief
in all things, for such other relief both in law and in equity as he may be justly entitled.
Dated: March 23, 2014 Respectfully Submitted,
Rowland J. Ml
951 Lombrano
San Antonio, Tx 78207
(210) 323-3849
24
CERTIFICATE OF SERVICE
I mailed a copy of this "Appellant's Reply Brief to Glenn Deadman and Torralba
Properties, LLC on March 23, 2015.
CERTIFICATE OF WORD COUNT
In compliance with TEX. R. APP. P. 9.4, relying on the word count function in the word
processing software used to produce this document, I certify that the number of words in this
document including footnotes is 8,489.
Rowland J. M;
25
APPENDIX
A. Order of the U. S. District Court For The Western District Of Texas dated March 5, 2014
B. General Denial Of Cross Defendants Edward Bravenec And The Law Office of
McKnight and Bravenec
C. Motion To Dismiss Pursuant To The Texas Citizen's Participation Act Of Rowland J.
Martin
A
Sfci£i&.^M&.T:^ ,^» .'A^ . xM.
Case 5:ll-cv-00414 Document 173 Filed 03/05/2014EPage 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ROWLAND J. MARTIN, JR., §
§
Plaintiff, §
§
v. ' § No. SA-ll-CA-414
§
EDWARD BRAVENEC, ESQ., THE §
LAW OFFICE OF MCKNIGHT AND §
BRAVENEC, AND 1216 WEST AVE, §
INC., §
§
Defendants. §
ORDER
On January 18J 2013, Rowland Martin filed a notice of Lis
Pendens affecting the real property located at 1216 West Avenue,
San Antonio, Texas (the Property). The notice of Lis Pendens
indicated that Martin intended to appeal the judgment entered by
this Court in the above styled and numbered cause. After the Fifth
Circuit affirmed this Court's judgment and Martin refused to cancel
his notice of Lis Pendens, this Court entered an order cancelling
the Notice. Thereafter, Martin filed a motion for rehearing en banc
in the Fifth Circuit as well as an amended Notice of Lis Pendens.
On December 4, 2013, the Fifth Circuit denied his petition for a
rehearing and the Court entered an order cancelling the amended
notice of Lis Pendens. That same day, Plaintiff filed a third
notice of Lis Pendens, this time indicating that title to the
Property was affected by a Bexar County Probate Court matter styled
In re. Estate of Johnnie Mae King, Cause. No. 2001-PC-1263. The
-1-
Case 5:ll-cv-00414 Document 173 Filed 03/05/2014CPage 2 of 2
notice of Lis Pendens asserts that Martin was the administrator of
the Estate and that Defendant Edward Bravenec was "attorney of
record." It did not, however, clarify what bearing that probate
matter has on the Property at issue in the instant suit.
On February 13, 2014, Defendants filed a motion to expunge Lis
Pendens and a motion for contempt. When the Plaintiff failed to
respond to the motion, the Court ordered him to explain the
relationship, if any, between his administration of the Estate of
Johnnie Mae King and the title to the Property. Plaintiff has filed
no fewer than three responses to that order. It appears from those
responses that the Plaintiff, as the administrator of the estate of
Johnnie Mae King, is attempting to re-open and re-litigate a
probate matter against Edward Bravenec and the Law Offices of
McKnight and Bravenec. The propriety of that action and the
accompanying Lis Pendens is well outside of the scope of this
Court's jurisdiction. If the Defendants wish to pursue their
motion, they should file it in Bexar County Probate Court Number 1.
It is therefore ORDERED that the Defendants' motion for
contempt and to cancel lis pendens (Doc. No. 162) be, and it is
hereby, DENIED.
SIGNED AND ENTERED THIS 3 —#ay of March, 2014.
&fflj
tRY LE$ HUDSPETH'
SENIOR UNITtEDl STATES DISTRICT JUDGE
-2-
B
-.,":*»-*« «-,
CAUSE NO: 2014-CI-07644
EDWARD BRAVENEC AND 1216 § IN THE DISTRICT COURT
WEST AVE., INC. §
§
VS. § 285m JUDICIAL DISTRICT
§
ROWLAND MARTIN, JR. §
§ BEXAR COUNTY, TEXAS
-§
ROWLAND MARTIN, JR.
VS. § JURY TRIAL REQUESTED
§
EDWARD BRAVENEC, AND THE LAW §
OFFICE OF MCKNIGHT AND BRAVENEC §
DEFENDANT'S GENERAL DENIAL
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Edward Bravenec's, Defendant, in Answer to the Plaintiffs Counterclaims and
would show the Court as follows:
GENERAL DENIAL
1. Defendant, Edward Bravenec, denies each and every allegation contained in Plaintiffs'
pleadings and demands strict proof of Plaintiffs' allegations by a preponderance of the evidence.
2. Edward Bravenec, byway offurther defense should beone necessary, Defendant pleads that
they are the affirmative defense of Res Judicata and Statue of Limitations.
WHEREFORE,PREMISESCONSIDERED, Edward Bravence prays thatPlaintiffs take
nothing by their suit and that Edward Bravence recover from Plaintiffs his attorney's fees, costs, and
such other relief, at lawor in equity, to which he shows himselfjustly entitled.
Respectfully submitted,
GLENN J. DEADMAN, P.C.
509 S. Main Avenue
San Antonio, TX 78204
(210) 472-3900 — Telephone
(210) 472-3901 — Facsimile
gideadman@,aol .com
/s/ Glenn J. Deadman
Glenn J. Deadman
State Bar No. 00785559
CERTIFICATE OF SERVICE
I hereby certify that on the )Q day ofJune, 2014,1 electronically filed the Defendant's
General Denial with the Clerk of the Court using the CM/ECF system and I will mail via certified
mail such notification of such filing to the following:
Rowland J. Martin, Jr.
951 Lombrano
San Antonio, Texas 78207
210-323-3849
/s/ Glenn J. Deadman
Glenn J. Deadman
c
Cause No. 2O14.CI-07644
EDWARD L. BRAVENEC AND 1216 IN THE DISTRICT COURT
WEST AVE., INC.
Plaintiff
C3
<=f
ROWLAND MARTIN, JR. 285TH JUDICU L DISTRICT »g5
Defendants
F" cr Z, o-|-255
S.W.3d 402 (Tex. App. - 9th District, 2008) (finding that trial court lacked personal jurisdiction
over a litigant who moved for a special appearance). A separate Case No. 14-50093 related to
federal court orders referenced by the Plaintiffs is on appeal in the U.S. Court of Appeals.
Nonetheless, in obedience to the Court's outstanding orders to show cause, and subject to this
special appearance, Defendant asserts a plea to the equitable jurisdiction of the Court, and moves
the Court to dismiss Plaintiffs' claims tortious interference and cross motions for summary
judgment pursuant to the Texas Citizens Participation Act and case law authority in Zuniga v.
Grose, Locke, & Hebdon, 878 S.W.2d 313, 318 (Tex. App. San Antonio 1994, writ ref d).
PLEA TO JURISDICTION
There are three reasons to sustain a plea to jurisdiction on equitable grounds. First, the
Court's equitable jurisdiction to grant injunctive relief was arguably unsupported and flawed
from the inception of the case because the Plaintiffs are collaterally estopped form asserting the
cause of action they now allege. In short, Plaintiffs omitted to disclose to the Court that in past
litigation they waived challenges to Defendant's lien claim that they now invoke in this case
under the pretext of a lis pendens injunction. See infra atp. 4 -5. Bravenec himself judicially
admits his lack of standing to contest lien claims in his last motion to the federal court: "Movant
availed himself of federal court, and cannot assert matters he was required to raise in this suit
merely by filing the same matters under an unrelated cause in a different court." Motion For
Contempt in Case SA 1l-CV-0414 dated February 13, 2014 atp. 2. Yet this is what he did.
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Second, as shown on July 1,2014, Plaintiffs' prudential standing to invoke the Court's
jurisdiction is unsupported by law and evidence on the merits: (1) by their failure to produce
probative evidence of a contract, (2) by their reliance on moot theories about interference and
proximate causation that improperly conflate past cancellations oflis pendens notices with an
adverse disposition of the underlying lien interest inthe subject property, and (3) by evidence
that a forfeiture ofthe corporate charter by the registered agent was a superseding cause for the
damages they allegedly sustained from alleged failures ofthe purported sale to close. The
impleading ofthe registered agent for the purported orprospective pendent lite purchaser further
moots the tortious interference claim because the filing ofconstructive notices oflispendens no
longer has any material bearing on the failure to close that the Plaintiffs seek to redress.
Third, the Plaintiffs' false representation to the Court that Defendant violated the
temporary restraining orderby filing notices in Bexar County Deed Records places their
fundamental lack of prudential standing beyond doubt. By causing the Court to issue a show
cause order on false premisees, and then inducing the Courtto misconstruethe Defendantas the
issuing party ofa subpoena that was infact issued by the District Clerk on Defendant's request,
Plaintiffs willfully obstructed Defendant's ability to use compulsory process to compel witness
testimony to confront patently false charges about criminal contempt. The inequitable nature of
the latter conduct calls the veracity and legitimacy of the case into question to the extent there is
doubt about the Court's jurisdiction and discretion to grant Plaintiffs' claims for injunctive relief.
MOTION TO DISMISS
A. The Texas Citizens Participation Act
Separate and apart from pleas to jurisdiction, Defendant moves the Court to dismiss
Plaintiffs' original petition and cross motions for summary judgment as a matter oflaw pursuant
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to theTCPA. The TCPA wasenacted to authorize summary dismissal procedures to limit
lawsuits thatattempt to silence criticism by individuals who speak out on a public issue or
controversy, and to encourage "citizenparticipation" which includes "commenting on the quality
of a business." House Comm. On Judiciary & Civil Jurisprudence, BillAnalysis, Tex. H.B.
2973, 82nd Leg., R.S. at p. 1 (2011). Summary dismissal of Bravenec's tortious interference
claim is due because he is a candidate for elected office using this case to silence criticism about
the quality of his business as a former provider of legal service to the undersigned Defendant,
and because he has no preponderant evidence with which to sustain the mandatory elements of
histortious interference claim. Seee.g., American Heritage Capital, LP, v Dinal Gonzalez and
Alan Gonzalez, Cause No. DC-11-13741-C (68th Judicial District, 2012) (applying TCPA to
dismiss tortious interference claim); and Monaco Entertainment Group, LLC and David Cooper
v. City ofElPaso, et al, Cause No. EP-1 l-CV-561 -DB (W.D. Tex, 2012) (enforcing the TCPA).
B. Abridgment Of Defendant's Protected Right To Free Speech
In support of his motion to dismiss, Defendant first asserts a primafacie affirmative
defense of privilege, as a former client of Bravenec and as a third party legal malpractice
plaintiff, to defend his interest in a thirdparty purchase money lien that arose whenthe grantor of
Bravenec's second lien in the subject property, Moroco Ventures, LLC, received downpayment
funding through the Defendant to purchase the subject property in 2003. Dueto the existence of
a viable affirmative defense, Bravenec's motion for criminal contempt and cross motion for
summary judgment constitute an impermissible infringement onDefendant's right to free speech
in violation of the Texas Citizen's Participation Act and a clear departure from case law
authority in HMC Hotel Properties IILimited Partnership v. Keystone-Texas Property Holding
Corporations, Case No. 04-10-00620-CV (Tex. App. - SanAntonio, 2013) reversed on other
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grounds in Case No. 12-0289, S.W. 3d (Tex., June 13 2014) (noting privilege and
justificationas affirmative defenses warranting dismissal of a suit for tortious interference with
contractual relations).
Bravenec'scontention that Defendant's counterclaims for legal malpractice and issues
about partypurchase money lien interests are barred due to resjudicata and limitations factors
directly support Defendant's burden of proof for dismissal under the TCPA. Regarding
limitations, the Texas Supreme Court has specifically held that "when an attorney commits
malpractice in the prosecution or defense of a claim that results in litigation, the statute of
limitations on the malpractice claim against the attorney is tolled until allappeals on the
underlying claim are exhausted." GulfCoast Investment Corp. v. Brown, 821 S.W.2d 159
(Tex.1991) (equitable tolling applied in legal malpractice case.) No claim for legal malpractice
was finally litigated in any prior state or federal court case. As the beneficiary of a recognized
legal malpracticeprivilege, and as party to pending suit in a suit litigation in Cause 2010-CI-
19099 that implicates the former attorney client relationship with Bravenec, Defendant is plainly
authorized to assert prima facie third party purchase money lien claims against property interests
and their proceeds that Bravenec acquired during the probate case as part of the consideration for
his services.
Bravenec's contentions about res judicata, though more appropriately characterized as
objections about issue preclusion, also support dismissal when examined in light of the guiding
principles cited in Watson v. Jones, 80 U.S. 679, 680 (1871). There, the U.S. Supreme Court
noted that when, in courts of concurrentjurisdiction,the pendencyof a suit in one is relied on to
defeat a second suit in the other - as Bravenec attempting to do in his criminal contempt
proceeding below - the identity of the parties, of the case made, and of the relief soughtshould
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be suchthat if the first suit had been decided, it couldbe pleaded in bar as a former adjudication.
Id at p. 680. In such cases, the proceedings in an appellate court are part of the proceedings in
the first court, and orders made by it to be enforced by the court of primaryjurisdiction are,
while unexecuted, a part of the case in the first suit, which may be relied on as lis pendens in
reference to the second suit. Id at p. 680.
Watson specifically notes that the nature and character of the title and possession to real
property decreed by a first court may be inquired into by another court, and if it was of a
fiduciary character, and the trust was not involved in the first suit, a second suit may be
maintained in any court of competent jurisdiction to declare, define, and protect the trust, though
the first suit may be still pending. Id at p. 681. Watson means Appellant retained a privilege
from a former relationship of trust, and this Court has TCPAjurisdiction to enforce it. Id.
C. Collateral Estoppel Issues
Bravenec is subject to collateral estopped from prosecuting tortious interference claims.
That Bravenec is acting in bad faith is evident from his failure to object in U.S. District Court
Case No. SA 1l-CV-0414 on March 5, 2014 to the purchase money lien claims that he now
attempts to restrain with fictitious charges about criminal contempt,1 from hisallegation onor
1 Plaintiffs' previously argued in federal court that "[a] litigant who files a petition in court must
include all causes of action that relate to the incident or circumstances, or those claims are waived.
Commissioner v. Sunner, 333 U.S. 591, 597 (1998). The priorjudgment acts as res judicata, precluding
the parties from re-litigating issues that were or could have been raised in that action.Allen v. McCurry,
449 U.S. 90, 94, 101 Sect. 411, 66 L. Ed. 2d 308 (1980). As all matters relating to the pendency ofthe
action involving real property were voluntarily submitted to this court by Plaintiff. Plaintiff is subjectto
this court's orders, and this court has the sole jurisdiction, for all orders relating to any lis pendens against
1216 WestAve. arising from the dispute that occurred from the alleged unlawful foreclosure." Document
162 in Case SA 1l-CV-0414. The Order of March 5,2014 rejected the Plaintiffs line of argument about
exclusivejurisdiction out of hand: "The proprietyof... the ..Lis Pendens [dated December 3, 2013] is
well outside the scope of this Court's jurisdiction." Order of the U.S. District Court for the Western
District Of Texas, dated March 5, 2014. At the hearing on March 19,2014, the Bexar County Probate
Court#1 made findings on an attorney withdrawal issue and a lis pendens notice issue, both of which
implicated Plaintiffs interest in the property as a purchase money creditor and malpractice claimant. That
court issued a ruling at Plaintiffs request tojudicially notice Defendant Bravenec's previously unnoticed
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about June 13, 2014 that Appellant had filed notices of lis pendens in the Bexar County Deed
Records, and from pleadings falsely asserting that Defendant represented himself an attorney by
issuing a subpoena in violation of TRCP 176.4.
Zuniga explains the public policy rationale for a zero tolerance approach to role-reversing
attorney conduct that increases and distorts litigation to the detriment of the judicial process:
For the law to countenance [an] abrupt and shameless shift of positions would give
prominence (and substance) to the image that lawyers will take any position, depending
upon where the money lies, and that litigation is a mere game and not a search for truth ...
It is one thing for lawyers in our adversary system to represent clients with whom they
personally disagree; it is something quite different for lawyers ... to switch positions ...
simply because an assignment [has] given them a financial interest in switching.
Zuniga, Id. Here, Bravenec's unconscionable request for a finding of criminal contempt
represents the third time in less than a year that he has falsely attempted to incarcerate the
Defendant for speech in a judicial forum. The Court is respectfully requested to redress this fact
by dismissing his claim for tortious interference and his cross motion for summary judgment, to
set a date for a jury trial on Defendant's counterclaims, and finally, to impose a constructive trust
to subrogate Defendant as the payee of the purported contract of sale, if any, and by
subordinating Bravenec to his net income from rental proceeds he has already collected.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant relief
in all things, and for such other relief both in law and in equity as he may be justly entitled.
Dated: July 9, 2014
Rowland J. Martir
951 Lombrano
San Antonio, Tx 78207
(210) 323-3849
withdrawal from the probate case, and it granted lis pendens relief to Defendant Bravenec by way of a
finding only that the Estate was not a fee simple owner of the subject property. Defendants failure to
request reconsideration of the omission of limitations and res judicata accommodations in the respective
federal court and probate court orders effectively estops them from raising those arguments now.
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CERTIFICATE OF SERVICE
I certify that a copy of this "Special Appearance For Plea To Jurisdiction And Texas
Citizens Participation Act Motion To Dismiss," will be hand delivered to Glenn Deadman on
July 9, 2014.
Rowland J. Martin, Jr.
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