Case No. 04-14-00483-CV

IN THE COURT OF APPEAL

FOURTH SUPREME JUDICIAL DISTRICT

SAN ANTONIO, TEXAS

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

ft. ^ t* S--

APPELLANT'S REPLY BRIEF % (V^

On Interlocutory Appeal

From Orders Of The 285th Judicial District Court

Bexar County, Texas

Submitted By:

mr~— xr

CO

Rowland J. Martin

951 Lombrano

San Antonio, Texas 78207

(210) 323-3849

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IDENTITY OF PARTIES & COUNSEL

1. Appellant: Rowland J. Martin

Individually and As Administrator ofThe

Estate Of King

951 Lombrano

San Antonio, Tx 78207

Represented by: Pro se

2. 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 ofMcKnight 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

briefAppellees filed on March 2,2014. The brief has been amended to include an Index Of

Authorities, proper citations to the record, and a proper certificate ofservice. Legal arguments on

issue and claim preclusion cited in Appellants Motion To Reopen are incorporated by reference

into the reply brief. Appellees are not prejudiced by the latter incorporation by reference because

they waived argument on the collateral estoppel issues.
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS iii

INDEX OF AUTHORITIES iv

STATEMENT OF THE FACTS 1

ISSUE PRESENTED 3

LEGAL STANDARDS 3

SUMMARY OF ARGUMENT 7

ARGUMENT AND AUTHORITIES 9

I. Appellees Err By Asking The Court To Construe The TCPA In A Manner That Narrows

The Scope Of The Communications Referenced In The Text OfThe Act 9

II. Appellees' Brief Fails On TCPA's First Prong By Neglecting To Controvert

Appellant's Fifth Point OfError And Preponderant Evidence Establishing The

Exercise OfThe Right To Free Speech And The Right To Petition 10

III. Appellees' BriefConfirms That They Defaulted On TCPA's Second Prong By

Presuming Erroneously That They Were Exempt From The Burden OfThe TCPA's

Clear And Specific Evidence Standard 12

IV. Appellee's Brief Omits To Allege A Rebuttal OfCollateral 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 OfVital 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
INDEX OF AUTHORITIES

Cases

Alexanderv. U.S., 509 U.S. 544, 550 (1993) , 7

Anderson v. LawFirmofShorty, Dooley & Hall, 393 Fed. Appx. 214 (5th Cir.

Aug. 26,2010) 18

Avilav.Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) 6

Barrv. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992) 17

Batzel v. Smith, 333 F.3d 1018,1025 (9th Cir. 2003), cert, denied 541 U.S. 1085 (2004) 7

Charalambopoulus v. Grammer, 2015 WL 390664 (N.D. Tex. January 29,

2015) 6,15,18

Cherokee Water, Co. v Advance Oil & Gas, Co., 843 S.W. 2d 132, 135 (Tex. App. - Texarkana

1992, writ den'd) 9,10

Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) 19,21

Cortez v. Johnston, 378 S.W.3d 468 (Tex. App.—Texarkana 2012, pet. denied)

Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio 2014, pet. filed May 6,

2014) :: 4

Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex. App. 1996, writ denied) 9

Houston v. Hill, 482 U.S. 451 (1987) 20,21

In re Newton, 146 S.W.3d 648, 653-54 (Tex. 2004) .• 6

James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam) 9

James, etal, v. Calkins, 446 S.W.3d 135 (Tex. App.-Houston [1stDist.]) 5, 15

Jones v. Beckman, 2007 Cal. App. LEXIS 8326 (Cal. App., 2007) 21

Kinney v. BCG Attorney Search, Inc., 2014 WL 1432012, at *3 (Tex. App.—Austin Apr. 11,

2014, no pet. h.) (mem. op.) , 4

KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.— Houston [1st Dist.] 2013,

pet. denied)

La Chappelle v. Superior Court ofRiverside County, 2013 WL 1633657 (Cal. App. 4th Dist.

2013) 5,20

iv
LaJolla Group II, etal. v. Daniel A. Bruce, etal, 211 Cal.App.4th461 (Cal. App. 5th Dist.

2012) 5,19

Larry York v. State ofTexas, 373 S.W. 3d 32 (2012) 19

Markel v. World Flight, Inc., 938 S.W.2d 74 (Tex. App.-San Antonio 1996,no writ) 13

Miranda v. Byles, 390 S.W.3d 543 (Tex.App.—Houston [1st Dist] 2012,pet. denied) 6

Mortgage-Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H.

2010) 6

Newspaper Holdings, Inc. v. Crazy HotelAssistedLiving, Ltd., 416 S.W.3d 71, 80 (Tex.

App.—Houston [1st Dist] 2013, pet. denied) 4, 13

Park 100 Investment Group v Ryan, 180 Cal.App.4th 795 (Cal. App. 2nd Dist 2009) 18, 19

Parklane Hosiery Co.,Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) 17

Pickens v. Cordia, Case, 433 S.W.3d 179 (Tex, App. - Dallas 2014) 5

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (1942) 9

Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725- 726 (Tex.App.-Houston [14th Dist.]

2013, pet. denied) 4, 5

Reinagelv. Deutsche BankNat. Trust Co., 735 F.3d 220, 228 (5th Cir. 2013) 19

Rio Grande H20 Guardian v. Robert Muller Family P 'shipLtd., 2014 WL 309776, at *2 (Tex.

App.—San Antonio Jan. 29, 2014, no pet.) (mem. op.) 4

Rochav. Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio 1983, no writ) 19

San Jacinto Title Services ofCorpus Christi, LLC. v. Kingsley Properties, LP, 2013 WL

1786632, *5 (Tex.App.-Corpus Christi April 25, 2013, pet. denied) 8

Sierra Club v. Andrews Cnty., 418 S.W.3d 711, 715 (Tex. App.—El Paso 2013, pet. filed) 4

Stanford v. Texas, 379 U.S. 476 (1965) 19,20

Teal Trading and Development, LP v Champee Springs Ranches Property Owners Association

Case No. 04-12-00623-CV(TXCt. App. 4, Mar. 19, 2014) 18

United States v. Mendoza, 464 U.S. 154,159 n.4 (1984) 17

United States v. Mollier, 853 F.2d 1169,1175 n.7 (5th Cir. 1988) 17

Varian Medical Systems, Inc. v. Delflno, 35 Cal. 4th 180,192 (2005) appealed in Super. Ct.

iv
No. CV780187(Cal. 2005) 20,21

Watson v. Kaminski, 5\ S.W.3d 825, 827 (Tex. App. 2001, no pet.) 10

Whisenhunt v. Lippincott, 416 S.W.3d 689, 695-96 (Tex. App.—Texarkana 2013, pet. filed)....4

Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 123 CR2d 19, 24 Civ LR 242 (Sept.

2002) 21

Zuniga v. Grose, Locke, & Hebdon, 878 S.W. 2d 313, 318 (Tex. App. San Antonio 1994, writ

refd) 19

/

Constitutional and Statutory Provisions

U.S. CONST, amend. I 6

TEX. CONST, art I, Section 8 8,7

Tex. Civ. Prac. & Rem. Code (TCPA) Section 12.002(b) 14

Tex. Civ. Prac. & Rem. Code (TCPA) Section 27.001(3) 5

Tex. Civ. Prac. & Rem. Code (TCPA) Sections 27.00l(4)(A)(i) 5

Tex. Civ. Prac. & Rem. Code (TCPA) Section 27.001(7) 5

Tex. Civ.Prac. & Rem.Code (TCPA) Section 27.002 7

Tex.Civ.Prac. & Rem.Code (TCPA) Section 27.003 3

Tex. Civ. Prac. & Rem. Code (TCPA) Section 27.005(b) 5

Tex. Civ. Prac. & Rem.Code (TCPA) Section 27.005(c) 4

Tex. Civ. Prac. & Rem. Code (TCPA) Section 27.006(a) 4, 15

Tex.Civ. Prac. & Rem.Code Ann. Section 51.014 3

Tex. Prop. Code Section 202.003(a) 18

Comments And News Reports

6AC.J.S. ASSIGNMENTS §132 (2013) 22

Hon.Catherine Stoneand Wendy Martinez, "Caperton v. Massey CoalCo.: TheTexas

Implications," St. Mary's Law Journal, 2010 12

"Feds want secret audio attrial; Informant, now dead, helped obtain it," San Antonio Express

News, March 20, 2015 12

iv
STATEMENT OF THE FACTS

On January 12,2015, Appellantfiled his opening brief and on March2, 2015, Appellees

filed a responding brief. There is no dispute that Appellees legal action for tort liability was

prompted by a certain published notice of apparent liability for purchase money lien claims, and

a perfected notice oflis pendens referring to the purchase money lien claim; or that their legal

action contemplated reliefto enjoin future communications in and out of court. See generally,

Appellees' Briefatpp.9 -16. The major question oflaw they present for de novo review is

whether Appellant's motion to dismiss was sufficient to allege communications that involve the

exercise ofthe right to speech and to petition as would support appellate jurisdiction to enforce

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

atpara. 56,at 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' briefto

allege that Appellant's motion to dismiss was insufficient to place them on notice that their

action lies within the scope ofthe TCPA, and that this relieved them ofthe TCPA burden to

them to prove every element oftheir prima facie claims for tort liability under the clear and

specific evidence standard.

To establishthe supposedlegal basis for their contentions, Appellees argue in pertinent

part as follows:
The Texas system of pleadings is composed of petitionsand answers... The pleadings

define the suit, give notice ofthe facts and legal theories ofthe 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' Briefatpara. 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 oftitle related back to a foreclosure on October 3,2003, and ask the Court

instead to give dispositive effect to a typographical error attributed to Appellant's TCPA motion

to dismiss. In fact, the typographical error noted in the responding brief appears, not in

Appellant's TCPA Motion To Dismiss, but in a Memorandum OfLaw supporting the Motion to

Dismiss, and even then only after Appellees waived the opportunity to plead opposition to TCPA

dismissal in the trial court by way of a formal pleading. See, "Motion ToDismiss " in Exhibit C.

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. As such, their res judicata argument amounts

to a difference of opinion about the meaning oiMartin v. Grehn,Case No. 13-50070. Appellant

attaches dispositive significance to the fact the Appellees' brieffails to explain how the

presumed resjudicata effect ofthe judgment in Martin v. Grehn would even plausibly

substantiate every element oftheir prima facie case for tort liability in light of a non-final

pending appealin Martin v. Bravenec, CaseNo. 14-50093. By all indications, Appellees' TCPA

showing is predicated in its entirety on a legal theory that omits to differentiate claim preclusion

doctrine ("resjudicata") from issue preclusion doctrine ("collateral estoppel"), and whichoffers
no legal or evidentiary basis as such from which to discerna nexus with the "interference"

element or any other element oftheir 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

Ifthe Appellees TCPA showing is insufficient as Appellant contends here, in his original

Fifth and Sixth Points ofError, Appellant's OpeningBriefatp.29 - 39, and in various

supporting pleadings on interlocutory appeal, 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 ofsimplifying the appeal, the sole

issue presented for the Court's consideration for reply brief purposes is this:

Whether the Appellees' responding briefsustains their burden to show, consistently with

applicable standards ofreview, that they produced clear and specific evidence of every

element oftheir 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 ofthe right offree 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 ofthe evidence that the plaintiffs action is covered. The

party who brought the action can avoid dismissal if he or she "establishes by clear and specific

evidence a prima facie case for each essential element ofthe claim in question." Id. Ifthe motion

is denied, the moving party is authorized to commence an interlocutoryappeal which has the

effect ofstaying all trial court proceedings. Tex. Civ. Prac. & Rem.Code Ann. Section 51.014.
Every Texas court of appealsto address the standardof 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 Muller Family P 'ship Ltd., 2014 WL

309776, at*2 (Tex. App.—San Antonio Jan. 29, 2014, no pet.) (mem. op.).1 In Farias 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 ofthe 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). Newspaper Holdings, Inc. v Crazy Hotel 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 oftheir 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 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, 446 S.W.3d 135 (Tex. App. - Houston [1st Dist] August 21,

2014, the court of appeals noted that evidence of a communication made in connection with a

1 Seealso, 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); SierraClub v. Andrews Cnty., 418 S.W.3d 711,715

(Tex. App.—El Paso 2013, pet. filed); Whisenhunt v. Lippincott, 416 S.W.3d689, 695-96 (Tex. App.—

Texarkana 2013, pet.filed); Newspaper Holdings, Inc. v. Crazy Hotel AssistedLiving, Ltd., 416 S.W.3d

71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); KTRK Television, 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).
judicialproceeding 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

ofthe right to petitionas definedby the TCPA Sections 27.00l(4)(A)(i) and 27.005(b):

... [A]ppellees' ... 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 ofher 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 ofthese 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 ofthe type at issue here. Accordingly, we hold

that appellants met their initial burden to prove that appellees' legal action related to their

exercise ofthe right of petition. See id. § 27.005(c).

Id. atp. 147. 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 InvestmentGroup v Ryan, Case No. B208189 (Cal. App. 2nd Dist 2009); La

Chappelle v. Superior CourtofRiverside County, 2013 WL 1633657 (Cal. App., 4th Dist. 2013)

(mandamus proceeding reversing lis pendens expunction); and La Jolla GroupII, et al. v. Daniel

A. Bruce, etal, 211 Cal.App.4th 461 (Cal. App. 5th Dist. 2012).

In Pickens v. Cordia, 433 S.W.3d 179, 184 (Tex, App. - Dallas 2014), the court of

appeals noted that the "exercise offree speech" is also defined as a "communication made in

connection with a matter of public concern." Id. at. 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 immediateparticipantsin the controversy are likely to feel the impactof its

resolution." Id. citing Miranda v. Byles, 390S.W.3d 543 (Tex. App.—Houston [1stDist.] 2012,
pet. denied). Other courts reviewing Anti-SLAPP litigation have found thatmatters of public

concern include speech addressed to the quality oflegal services provided by a member ofthe

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.3d468

(Tex. App.—Texarkana 2012, pet. denied) (strong matter of public concern involving a member

ofthe 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 "[fjhis 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, 2015 WL 390664 (N.D. Tex. January 29, 2015), a TCPA

decision acknowledging that in a proper case, the moving party's assertion ofissue 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 ofthe time that such communications are to occur. See

Alexander v. U.S., 509 U.S. 544, 550 (1993). A priorrestraint of expression bears"a heavy

presumption against its constitutional validity." See In reNewton, 146S.W.3d 648, 653-54 (Tex.
2004). The guidingpurpose behind the preservation of these defenses and rules of construction is

to afford a qualified moving party a substantive immunity from suit, Batzel v. Smith, 333 F.3d

1018,1025 (9th Cir. 2003), cert, denied541 U.S. 1085 (2004), which in the context ofthe 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 briefthoroughly 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 ofthe record, Appellant submits that the Appellees'

submission on TCPA burden shifting requirements is the only issue the Court needs to consider

to dispose ofthe appeal. Careful examination ofthe 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 oftheir TCPA analysis fails

to withstand scrutiny under the de novo review standard because it fails to establish that the

subject matter oftheir legal actions for tort liability falls outside the scope ofthe

communications covered by Section 27.005. The second prong oftheir analysis fails for legal

insufficiency under the TCPA's clear and specific evidence standard because it relies

substantially on adverse inferences, andwithout regard to the fact thatAppellees' voluntarily

waivedthe opportunity to file a responsive pleading to address everyelement of the claims for

tortliability they assert. Even if Appellees could prevail onthe 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 conclusionone can plausiblyreach consistently with the guidingprinciples of the TCPAand 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 ofstanding to maintain the underlying cause

of action whatsoever for tort liability.

ARGUMENT AND AUTHORITIES

I. Appellees Err 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 ofthe 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 ofCorpusChristi, LLC. v. KingsleyProperties, LP, 2013 WL 1786632, *5 (Tex.App.-

Corpus Christi April 25, 2013, pet. denied). Their construction should be summarily rejected in

the first instance because the TCPA imposes no requirementfor the moving party to allege a

causeof action, as Appellees' brief appears to suggest, but instead merely requires the moving

party to invoke TCPA immunitiesby allegingthat the legal action by the plaintiff was in

responseto the exercise of the right to speechand to petitionby the movingparty. Further, a

8
typographical error in a motion to dismiss, such asthe one Appellees cite intheir briefrelating to

an event in the chain oftitle to the subjectproperty, has no bearingwhatsoever on the overall

justiciability of a motion to dismiss in which a lispendens 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-judicialproceedings are absolutely privileged. This

"mean[s] that any statementmade 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 LifeIns. 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 ofthe

absolute privilege extends to all statements made in the course ofthe proceeding ... and attaches

to all aspects ofthe 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 ofthe 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). Because the 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 ifthere were no on-goingjudicial proceedings, moreover, the issues of public

concern qualify for coverage both under TCPA Section 27.005 and Section 8 of the Bill of

Rightsof the Texas constitution: "Everypersonshall be at liberty to speak, write or publishhis

opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever

be passed curtailing the liberty ofspeech or ofthe 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 ofthe communications referenced in the text ofthe 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 oflien and lis pendens notices , and communications about matters of

public concern both published and unpublished, both ofwhich undoubtedly fall within the scope

ofTCPA 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 ofthe right to speech and to

petition. Attorney Deadman's colloquy with the trial court on May 23,2014 explains his

10
rationale for hisrepresentations to the trial court onBravenec's behalfin terms of lis pendens

speech:

THE COURT: "Okay. And your requestfor injunction is to preventhim filing the HS

pendens."

MR, DEADMAN: "That's the sole purpose, Judge .... In addition, we've asked that they

not contact the lender. What's happened in the past is, even ifthere's not a lis pendens, he

will contact the lender or the purchaser to let them know verbally, there's clouds on title,

he has an interest..."

Court Reporters' Transcriptfrom May23, 2014, atp. 6, inExhibit D ofAppellant's Second

Supplemental Appendix. Attorney Deadman that the right to petition was implicated in the

rationale for the tort liability alleged at the hearing on July 17,2014:

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: "I'll grant you that...[but] I 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, Court Reporters' Transcriptfor July 17, 2014, at p. 13-14.

Applying both prongs ofthe criteria for TCPA coverage, it is evident from the Appellees'

own testimony and evidentiary submissions in support oftemporary injunctive reliefthat, at

bottom, their entire litigation revolves Appellant's exercise ofthe 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 ofthe judgment for Bravenec in Martin v. Grehn and the collateral

estoppel effect ofthe federal court's final order decliningjurisdiction to expunge an earlier lis

pendens filing noticing Appellant's purchase money claims. See Defendants' Exhibit 2. At the

11
sametime, the underlying speechwhichthe Appellee's suit places in dispute implicates every

matter of public concern known to the TCPA.

Under any realistic construction to effectuate the purposes ofthe TCPA, Appellant's

speech can and shouldbe deemedto encompass a requestfor adherence to disciplinary rules of

professional responsibility, and for observance ofjus cogens standardsofjudicial conduct, that

directly or indirectly touch every category ofpublic 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 oflegal 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

issues concerning the conflict between the State and the Fifth Circuit on laws governing postpetition foreclosures and suspect lien assignments. Thus, even ifAppellees 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

HI. 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.

Seealso, "Fedswantsecret audio at trial; Informant, nowdead, helped obtain it," San Antonio Express

News, March 20, 2015, at p. A-3 (reporting on a pending federal caserelated to a local attorney's felony

conviction arising out of corrupt litigation in a state district court).

12
51.014(a)(12), their burdenwas to comply with the TCPA's clearand specific evidence standard.

This they failed to do. Due to Appellees' waiver ofresponsive pleadings, there is nothing in the

trial court record to document their compliance with the TCPA's requirementthat they establish

every element oftheir prima facie case for tort liability with clear and specific evidence.

Appellee's resort to back-door arguments for exemptions from TCPA coverage, 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's twelve 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 reliefthey 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 oftortious interference with contractual

relations, or as a fraudulent filing of a public record, Appellees' core arguments about tort

liability fails to pass muster ofthe facts ofthis case. The court in Newspaper Holdings, Inc. v.

Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex. App - 1st Dist. - Houston 2013)

disposed ofthe tortious interference claim comparable to the one under review here with the

following holding: "To establish a cause of action for tortious interference, a plaintiffmust prove

that (1) a contract subject to interference exists, (2) the defendant committed a willful and

intentional act ofinterference with the contract, (3) the act proximately caused injury, and (4) the

plaintiffsustained actual damages or loss ...Ordinarily, merely inducing a contract obligorto do

what it has a right to do is not actionable interference." Id. On this basis, the courtof appeals

there reversed a trial court order denying the defendant'sTCPAmotion to dismiss. Here,

13
Appellees' offer no argument to explain why thetransfer ofthe subject property toTorralba

Properties makes this case distinguishable from the one in Newspaper Holdings, Id.

The courtof appeals in James, Id. disposed of a fraud claimidentical to the one asserted

by Appellees pursuant to Tex. Civ. Prac. & Rem. CodeSection 12.002(b) withthe following

holding: "Appelleesclaimed ... that appellants knew that the lis pendenswasfraudulent when it

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 ofthe pendency of the 61st District Court lawsuit,

which requested a declaratory judgment 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 oftheir brief, moreover, Appellees purport to maintain their

causes of action for tortious interference with contractual relations and fraud on theory that

Bravenec's chain oftitle began with a foreclosure sale transaction on October 3, 2003 which they

supposeto be wrongfullyclouded by Appellant's lis pendensfilings in 2014. In paragraph 10,

for example, Bravenec specifically asserts that his chainof title to the subject property beganon

October 3, 2003 with a foreclosure sale transaction executed by the late AlbertMcKnight.

14
Thereafter, he incorporates the same fact issue in paragraph 50 in supportof his secondissue,

defending the trial court's order denying dismissal pursuant to the TCPA.See also Appellees'

Briefatparas. 3, 13, 26 and43. For his second issue, whetherthe trial court erred by ordering

the denial ofTCPA dismissal relief, Bravenec alleges essentially in paragraphs 51-56 that

Appellant waived immunity from suit due to a defective TCPA motion to dismiss, and that the

trial court's denial ofTCPA dismissal relief was proper because "numerous courts," allegedly

including the U.S. District Court for the Western District of Texas in Case No. SA 1l-CV-0414

and the U.S. Court ofAppeals in Case No. 13-50070, adjudicated the supposed October 3, 2003

foreclosure transaction. No authority is cited for the latter proposition, and the reasoning ofthe

TCPA authorities on point expressly reject these conclusions. See, James, Id. at p. 147, and

Charalambopoulus, Id. at *26,

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). Here, the record clearly shows that Appellant's estoppel issues by way of affirmative

defense were substantially unrebutted as indicated by Bravenec's testimony on crossexamination as follows on July 9, 2014:

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]?

15
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).

The transcript ofthe cross examination ofAppellee Bravenec's on July 9,2014 shows

that the Appellees' factually unsupported reliance on res judicata doctrine was equally

misplaced:

Q. ... you would agree that there are parties in a closing transaction who have

interests different than the seller?

A. Of course.

Q. So, would you agree that information that might be disadvantageous to the seller

might enable other parties to the transaction to protect their interest?

A. In this case or in abstract?

Q. Both. All ofthe above.

A. In abstract yes. In this case no.

Q. And why is that not in this case?

A. Because you lost the lawsuit in 2010 and you have no legal interest in the

property. So all you're really doing is keeping us from selling it by alerting a title

company that you might keep suing ...

Court Reporter's Transcription ForJuly 9, 2014 atp. 45 - 46 (emphasis added). Likethe

testimony that preceded it, the lattertestimony also disregards the estoppel effect of the federal

16
court's order on March 5, 2014. See, Defendant's Exh. #2 in Clerk's Record Volume One.

Further, when asked to specify where the record ofMartin v. Grehn contained textual references

to the disposition ofAppellant's purchase money issues in Appellees' favor, however, Bravenec

states "I cannot show you." CourtReporters'Transcriptfor July 9, 2014, atp. 46, lines 13-16.

As explained below, the record evidence is insufficient to support the attribution to Appellees of

a rebuttal on the estoppel issues, Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)

(collateral estoppel); and Teal Tradingand Development, LP v Champee Springs Ranches

Property OwnersAssociation, 432 S.W.3d 381 (Tex. App. - San Antonio, Mar. 19, 2014)

(discussing estoppel by deed).

A. The Collateral Estoppel Issues

The major implication ofBravenec'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

preposterous, and reflects a common misconception about the meaning of collateral estoppel

doctrine. Barr, Id. 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

plaintifffrom relitigating an issue the plaintiff has previously litigated unsuccessfully in another

action against the same or a different party. United States v. Mendoza, 464 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 United States v. Mollier, 853 F.2d

1169,1175 n.7 (5th Cir. 1988).

17
The collateral estoppel discussionin Appellant's MotionTo Reopenin Case No. 04-14-

00841-CV is incorporated here by reference. The Anti-SLAPP litigation in Park 100 Investment

Group v Ryan, 180 Cal. App. 4th 795 (Cal. App. 2nd Dist, 2009) is instructivewith respect to

Appellant's entitlement to prevail on the collateral estoppel defense asserted here. There, the

California court of appeals found "unpersuasive [the non-movingparties'} contention that the

rulings in Case No. BC349120 (the expungement order, the overruling ofthe demurrer and the

denial ofthe motion for summary adjudication) conclusively establish that the filing ofthe lis

pendens was illegal as a matter oflaw." Id. at *807 - 808. Not only do the facts here run

strikingly parallel to those in Park Fifth Circuit authority on point in Andersonv. Law Firm of

Shorty, Dooley & Hall, 393 Fed. Appx. 214 (5th Cir. Aug. 26, 2010) (applying separate

transaction rule ofres judicata argument in attorney client dispute) also indicates that Appellees'

contentions about res judicata are either invalid or subject to exceptions. Larry York v. State of

Texas, 373 S.W. 3d 32 (2012); Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006). The

TCOA precedent in Charalambopoulus, Id. at *26, resolving collateral estoppel in favor ofthe

non-moving part and against the moving party, simply does not apply. Id.

B. The Deed Estoppel Issues

The record also supports the doctrine of estoppel by deed as an affirmative defense to the

Appellees' claims for tort liability. The lis pendens mandamus case in La Chappelle, Id. at * 1

and *2, and the regular appeal in La Jolla Group II, Id. at *473, are both instructive on this

point. Here as in La Chappelle and LaJolla, Appellant's rebuttal in his capacity as a purchase

money creditor has legal support in Pursuant to Tex. Prop. Code Section 202.003(a), and

citations to record in Appellant's Opening Brief, atpp. 39 - 42. In particular, it is claimed that a

purchase money lien interest in the subject property exists by virtue ofrestrictive covenants;that

18
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 which involved 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. On these facts, Appellees are estopped from

denying facts in their chain oftitle that support Appellant's estoppel defenses. TealTrading and

Development, Id. See also, Zuniga v. Grose, Locke, &Hebdon, 878 S.W. 2d 313, 318 (Tex. App.

San Antonio 1994, writ refd), and Rochav. Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio

1983, nowrit).3

V. The Case Presents Issues OfVital Importance For Uniformity In Anti-SLAPP

Dismissal Proceedings And For Observance Of Automatic Stay Requirements

By The Bexar County District Courts.

On the facts ofthis case, the Appellee's brief can and should be disposed based on

Appellant's Fifth and Sixth Points ofError, Appellant's Opening Brief, at pp. 29-39, and the

general rule that the non-movant must sustain its burden on each essential element ofthe claim

unaided by inferences, presumptions and intendments. Farias, Id. In support of the reply brief,

Appellant also argues that the Appellees secured the temporary injunction orderon July 17,2014

after conditionsfor a TCPA automatic stay had been satisfied. Cf, Varian Medical Systems, Inc.

See, CRT #2 at p. 68 (referenceto purchase moneyinterest); CRT #2 at pp. 43 - 45 (Bravenec

testimony indicating thatAppellant's lis pendens noticing purchase money claims burdened the property);

Exhibit B in TAB 3 of Appellant's Brief(reference to intentof second lien agreement that recorded

interests should runwith the land); CRT#2 at pp. 22, lines 18-31 (Bravenec testimony on foreclosure

sale indicating he had notice of firstand second liencovenants); andExhibits A andB in Appellant's

TAB 3 (supporting conclusion thathorizontal andvertical privity requirements were metthrough the

assignment ofsecond lien interests to McKnight and Bravenec in 2005 andthrough a post-petition

trustee's foreclosure sale to them in 2006). Thus, even iftheforeclosure sale is deemed valid, Appellees'

are estoppedfrom claimingthat it extinguished the purchase money interest. But see, 6A C.J.S.

ASSIGNMENTS § 132(2013) ("matters rendering the assignment absolutely invalid ..., suchas ... the

nonassignability of the right attempted to be assigned" may be raised); Reinagel v. Deutsche Bank Nat.

Trust Co., 735 F.3d220, 228 (5thCir. 2013) ("Texas courts follow themajority rule thatan obligor can

defend "on any ground which renders the assignmentvoid.").

19
v. Delfino, 35 Cal. 4th 180, 192 (2005) appealedin Super. Ct No. CV780187 (Cal. 2005) (lack

oftrial court jurisdiction due to appeal in Anti-SLAPP case triggering automatic stay).

In view ofthe above, Appellant attaches dispositive significance to the treatment the U.S.

Supreme Court accorded fifty years ago, in Stanfordv. 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 by the state of "books, records,

pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments":

Vivid in the memory ofthe newly independent Americans were those general warrants

known as writs of assistance under which officers ofthe Crown had so bedeviled the

colonists. The hated writs of assistance ... were denounced ... as "the worst instrument of

arbitrary power, the most destructive ofEnglish 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 ofthe 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 ofthe power ofsearch 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 ofthe [Bill ofRights], 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 nonconformity now sometimes speaks a tongue which Lord

Camden might find hard to understand," the clear purpose ofthe TCPA paradigm is to guarantee

freedom and substantive immunity from the improper and unbridled use ofjudicial 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 activist John Stanford.

20
CONCLUSION

The Court is respectfully requested to apply Farias so as to give effect, not only to the

free speech principles that Stanford observes, but to the legacy its history reflects on matters of

"conscience and human dignity." Id. Here as in Houstonv. Hill, 482 U.S. 451, 472 (1987), the

instant TCPA appeal requests the Court to decide that "the First Amendment recognizes ... that a

certain amount of expressive disorder not only is inevitable in a society committed to individual

freedom, but must itself be protected ifthat freedom would survive." Id., and to apply the

protections that the TCPA was intended to provide. Cf, Varian Medical Systems, Inc. v. Delfino,

Id, (automatic stay issue), Jones v. Beckman, 2007 Cal. App. LEXIS 8326 (Cal. App., 2007)

(rejecting Anti-Slapp cross appeal), and Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811,

123 CR2d 19, 24 Civ LR 242 (Sept. 2002) (Anti-SLAPP case discussing fraud on the court).

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: April 6,2014 Respectfully Submitted,

21

Rowland J. Mactin

951 Lombrano

San Antonio, Tx 78207

(210) 323-3849
CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. P. 9.5(d), (e), I certify that I mailed a copy ofthis "Appellant's

Reply Brief to AttorneyGlenn Deadmanat 411 S. SouthMain, San Antonio, Tx., on April 6,

2015.

Rowland J

CERTIFICATE OF COMPLIANCE WITH 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 ofwords in this

document including footnotes is 7,273.

Rowland J. martin

22
APPENDIX

A. Order ofthe U.S. District Court For The Western District OfTexas dated March 5, 2014

B. General Denial OfCross Defendants Edward Bravenec And The Law Office of

McKnight and Bravenec

C. Motion To Dismiss Pursuant To The Texas Citizen's Participation Act OfRowland J.

Martin
A
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 18, 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
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 Q j^ of March, 2014.

-2-

tRY LE$ HUDSPI

SENIOR UNITtED] STATES DISTRItS?^JUDGE
B
". V

CAUSE NO: 2014-CI-07644

EDWARD BRAVENEC AND 1216

WEST AVE., INC.

VS.

ROWLAND MARTIN, JR.

ROWLAND MARTIN, JR.

VS.

EDWARD BRAVENEC, AND THE LAW

OFFICE OF MCKNIGHT AND BRAVENEC

§

§

§

§

§

§

§

§

§

§

§

§

§

IN THE DISTRICT COURT

285TM JUDICIAL DISTRICT

BEXAR COUNTY, TEXAS

JURY TRIAL REQUESTED

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 ofthe evidence.

2. Edward Bravenec, by way offurther defense should be one necessary, Defendant pleads that

they are the affirmative defense ofRes Judicata and Statue ofLimitations.
r

WHEREFORE, PREMISES CONSIDERED, Edward Bravence praysthat Plaintiffs take

nothing by their suit and that Edward Bravence recover from Plaintiffs his attorney's fees, costs, and

such other relief, at law or 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

Isi Glenn J. Deadman

Glenn J. Deadman

State Bar No. 00785559
CERTIFICATE OF SERVICE

I hereby certify that onthe |Q day ofJune, 2014,1 electronically filed the Defendant's

General Denial with the Clerk ofthe Court using the CM/ECF system and I will mail via certified

mail such notification ofsuch filing to the following:

Rowland J. Martin, Jr.

951 Lombrano

San Antonio, Texas 78207

210-323-3849

Isl Glenn J. Deadman

Glenn J. Deadman
c
Cause No. 2O14-CI-07644

EDWARD L. BRAVENEC AND 1216

WEST AVE., INC.

Plaintiff

v.

ROWLAND MARTIN, JR.

Defendants

ROWLAND MARTIN, JR.

Plaintiff

v.

EDWARD L. BRAVENEC, AND THE LAW

OFFICE OF MCKNIGHT AND BRAVENEC,

Defendants

In Re OLGA VASQUEZ-SILVA d/b/a ONE

FOR AUTISM, INC.

Impleaded Third Party

IN THE DISTRICT COURT

C3

-<

285TH JUDICU L DISTRBGT moS

en m

BEXAR COUNTY, TEXAS

JURY TRIAL REQUESTED

SPECIAL APPEARANCE FOR PLEAS TO JURISDICTION

AND TEXAS CITIZENS PARTICIPATION ACT MOTION TO DISMISS

TO THE HONORABLE COURT:

COMES NOW ROWLAND MARTIN, JR., the appellant in a notice ofinterlocutory

appeal filed on July 8, 2014, in this special appearance, to file his "SpecialAppearance For Plea

To Jurisdiction AndTexas Citizens Participation ActMotion ToDismiss, "pursuant to the Open

Courts Doctrine ofthe Texas Constitution and the Texas Citizens Participation Act (TCPA) in

Tex. Civ. Rem. & Prac. Code Sections 27.000 et seq.

STATEMENT OF THE CASE

An injunction is a remedial writ that dependson the issuingcourt's equityjurisdiction.

State v. Morales, 869S.W. 2d 941,947 (Tex. 1994). Notice is hereby given that an appeal

DOCUMENT SCANNED AS FILED
contesting the interlocutory rulings at the hearing on July 1,2014 was filed in the Fourth District

Court of Appeals on July 8, 2014, under Section 51.014(a)(4) and the Texas Citizens

Participation Act, thus abating at least by implication a part of the Court's plenaryjurisdiction

for purposes of this setting. Langston, Sweet & Freese, PLLC v. Cletus P. Ernster, III, et al, 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 ofthe 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 refd).

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 ofthe 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 at p. 4 -5. Bravenec himselfjudicially

admits his lack ofstanding to contest lien claims in his last motion to the federal court: "Movant

availed himself offederal 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 datedFebruary 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 lawand evidence on themerits: (1) by theirfailure to produce

probativeevidence of a contract, (2) by their reliance on moot theories about interference and

proximate causation that improperly conflate past cancellations of lis pendens notices withan

adverse disposition of the underlying lien interest in the subject property, and (3) by evidence

that a forfeiture of the corporate charter by the registered agent was a supersedingcause for the

damages theyallegedly sustained from alleged failures of the purported sale to close. The

impleading of the registered agent for the purported or prospective pendentlite purchaser further

mootsthe tortiousinterference claim because the filing of constructive notices of lis pendensno

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 order by filing notices in Bexar County Deed Records places their

fundamental lack of prudential standing beyond doubt. Bycausing the Court to issue a show

cause order on false premisees, and then inducing the Court to misconstrue the Defendant as the

issuing partyof a subpoena that was in fact issued by the District Clerkon Defendant'srequest,

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 latterconduct calls the veracity and legitimacy of the caseinto question to the extentthere is

doubt about the Court'sjurisdiction and discretion to grant Plaintiffs' claims forinjunctive 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 forsummary judgment as a matter of law pursuant

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to the TCPA. The TCPA was enacted to authorize summary dismissal procedures to limit

lawsuits that attempt to silence criticism by individuals who speak out on a public issue or

controversy, and to encourage "citizen participation" which includes "commenting on the quality

of a business." House Comm. On Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B.

2973, 82nd Leg., R.S. at p. 1 (2011). Summary dismissal ofBravenec'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

his tortious interference claim. See e.g., American HeritageCapital, LP, v Dinal Gonzalezand

Alan Gonzalez, Cause No. DC-11-13741-C (68th Judicial District, 2012) (applying TCPA to

dismiss tortious interference claim); and Monaco Entertainment Group, LLCand David Cooper

v. CityofEl Paso, et al, Cause No. EP-11-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 prima facie affirmative

defense of privilege, as a former client of Bravenec and as a third party legal malpractice

plaintiff, to defend his interest in a third party purchase money lien that arose when the grantor of

Bravenec's second lien in the subject property, Moroco Ventures, LLC, received down payment

funding through the Defendant to purchase the subject property in 2003. Due to the existence of

a viable affirmative defense, Bravenec's motion for criminal contempt and cross motion for

summary judgment constitute an impermissible infringement on Defendant's right to free speech

in violation ofthe Texas Citizen's Participation Act and a clear departure from case law

authority in HMC Hotel Properties11 Limited Partnership v. Keystone-Texas Property Holding

Corporations, Case No. 04-10-00620-CV (Tex. App. - San Antonio, 2013) reversed on other

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grounds in Case No. 12-0289, S.W. 3d (Tex., June 13 2014) (noting privilege and

justification as affirmative defenses warranting dismissal of a suit for tortious interference with

contractual relations).

Bravenec's contention that Defendant's counterclaims for legal malpractice and issues

aboutparty purchasemoney lien interestsare barred due to resjudicata and limitationsfactors

directly support Defendant's burden of prooffor dismissal under the TCPA. Regarding

limitations, the Texas Supreme Court has specifically held that "when an attorney commits

malpractice in the prosecutionor defenseof a claim that results in litigation, the statute of

limitations on the malpractice claim against the attorney is tolled until all appeals on the

underlying claim are exhausted." GulfCoastInvestment 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 malpractice privilege, and as party to pending suit in a suit litigation in Cause 2010-CI19099 that implicates the formerattorneyclient relationship withBravenec, Defendantis plainly

authorized to assert prima facie third party purchase money lien claims against property interests

and theirproceeds 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 ofthe 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 concurrent jurisdiction, the pendency of 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 casemade, and of the reliefsoughtshould

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be such that ifthe first suit had been decided, it could be 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 primary jurisdiction are,

while unexecuted, a part of the case in the first suit,which may be reliedon as lis pendens in

reference to the second suit. Id at p. 680.

Watson specifically notesthat the nature and character ofthe title and possession to real

property decreedby a first court may be inquired into by anothercourt, 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 competentjurisdictionto declare, define, and protect the trust, though

the first suit may be still pending. Id at p. 681. Watson means Appellantretained a privilege

from a former relationship oftrust, and this Court has TCPA jurisdiction to enforce it. Id.

C. Collateral Estoppel Issues

Bravenec issubject to collateral estopped from prosecuting tortious interference claims.

ThatBravenec 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 his allegation on or

1 Plaintiffs' previously argued in federal courtthat "[a] litigant whofiles a petition in courtmust

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 thatwere or could have been raised inthat action. Allen v. McCurry,

449 U.S. 90, 94, 101 Sect. 411, 66 L.Ed.2d 308 (1980). As all mattersrelatingto the pendencyofthe

action involving real property were voluntarily submitted to this court byPlaintiff. Plaintiffissubject to

this court's orders, and thiscourt has the solejurisdiction, for all orders relating to any lis pendens against

1216 WestAve. arising from the dispute that occurred from the alleged unlawful foreclosure." Document

162in CaseSA 1l-CV-0414. The Orderof March 5, 2014 rejected the Plaintiffs lineof argument about

exclusive jurisdiction out of hand: "The propriety of... the ..Lis Pendens [dated December 3, 2013] is

well outside the scope of this Court's jurisdiction."Orderof the U.S. DistrictCourt for the Western

District Of Texas, dated March 5, 2014. At the hearing on March 19,20] 4, the Bexar County Probate

Court #1 made findings onan attorney withdrawal issue and a lis pendens notice issue, both of which

implicated Plaintiffs interest intheproperty as a purchase money creditor and malpractice claimant. That

courtissued a ruling at Plaintiffs request tojudicially notice Defendant Bravenec's previously unnoticed

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about June 13, 2014that Appellant had filed notices of lis pendens in the BexarCounty Deed

Records, and from pleadings falsely asserting that Defendant represented himselfan attorney by

issuing a subpoena in violation ofTRCP 176.4.

Zuniga explains the publicpolicyrationale for a zerotolerance approach to role-reversing

attorney conduct that increases and distorts litigation to the detriment ofthe 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 clientswith whomthey

personally disagree; it is something quite differentfor 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 attemptedto incarcerate the

Defendant forspeech in a judicialforum. The Court is respectfully requested to redress thisfact

by dismissing his claim fortortious interference and his crossmotionforsummary 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 ofthe purported contract ofsale, 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. Ma

951 Lombrano

San Antonio, Tx 78207

(210)323-3849

withdrawal from the probatecase, and it granted lis pendens reliefto DefendantBravenec by way of a

finding only that the Estate was not a fee simple owner ofthe subject property. Defendants failure to

request reconsideration of the omission of limitations and resjudicata 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 ofthis "Special Appearance For Plea To Jurisdiction AndTexas

Citizens ParticipationAct Motion ToDismiss," will be hand delivered to Glenn Deadman on

July 9, 2014.

Rowland J. Martin, Jr.

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