Case No. 04-14-00483-CV

IN THE COURT OF APPEAL FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS

ROWLAND J. MARTIN. APPELLANT INDIVIDUALLYAND IN HIS REPRESENTATIVE CAPACITYAS ADMINISTRATOR FOR THE ESTATE OF KING

EDWARD BRAVENEC AND 1216 WEST AVE., INC., APPELLEES ft. ^ t* S-- 

## APPELLANT'SREPLYBRIEF % (V^

On Interlocutory Appeal From Orders OfThe 285th Judicial District Court Bexar County, Texas
Submitted By: mr~— xr
CO

Rowland J. Martin 951 Lombrano San Antonio, Texas 78207 (210) 323-3849 y e.z -n en —• -\r~IDENTITY OF PARTIES & COUNSEL 

### 1. Appellant: Rowland J. Martin Individually and As Administrator ofThe Estate OfKing 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: UnknownAPPELLANT'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 OfThe Communications Referenced In The Text OfThe Act 9 II. Appellees' BriefFails 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 BriefOmits 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 OfAutomatic Stay Requirements By The Bexar County District Courts 22 CONCLUSION 24 CERTIFICATE OF SERVICE 25 CERTIFICATE OF WORD COUNT 25 APPENDIXINDEX OF AUTHORITIES Cases 

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

### Anderson v. LawFirmof Shorty, 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 

### Charalambopoulusv. Grammer, 2015 WL 390664 (N.D. Tex. January 29, 2015) 6,15,18 Cherokee Water, Co. vAdvance 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 of Riverside County, 2013 WL 1633657 (Cal. App. 4th Dist. 2013) 5,20
iv

## LaJolla Group II, etal. v. DanielA. 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. WorldFlight, 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 [1stDist] 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 [1stDist] 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 LifeIns. 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 andDevelopment, 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 StoneandWendy 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 ivSTATEMENT 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 ofapparent 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 ofcourt. 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 appellatejurisdiction 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 ofa statue [sic] that provided an automatic stay and through [sic] the same into a briefing not supported by any case [sic] ofaction 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 ofaction 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 theircontentions, 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 nojudgment... 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 ofaction. 

### Appellees' Brief atpara. 52, p. 23-24. Though correct on the law, Appellees' briefomits to allege the filing ofa 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 briefappears, 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 ofa formal pleading. See, "Motion ToDismiss " in Exhibit C. Although Appellees' briefdoes 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 resjudicata argument amounts to a difference ofopinion about the meaning oiMartinv. Grehn,Case No. 13-50070. Appellant attaches dispositive significance to the fact the Appellees' brieffails to explain how the 

### presumed resjudicata effect ofthejudgment in Martin v. Grehn would even plausibly substantiate every element oftheir prima facie case for tort liability in light ofa non-final 

### pending appealinMartin v. Bravenec, CaseNo. 14-50093. By all indications, Appellees' TCPA 

### showing is predicated in its entirety on a legal theory thatomits to differentiate claim preclusion doctrine ("resjudicata") from issuepreclusion 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 ofaction 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 briefpurposes is this: 

### Whether the Appellees' responding briefsustains their burden to show, consistently with applicable standards ofreview, that they produced clear and specific evidence ofevery 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 ifa 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 ofassociation, 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 ifhe 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 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 ofclear and specific 

### evidence that, unaided by inferences, would establish each essential element ofthe claim in question ifno 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 ofaction). 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 ofappeals noted that evidence ofa communication made in connection with a


### 1 Seealso, Kinney v. BCGAttorney 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. CrazyHotelAssistedLiving, 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 [1stDist.] 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 theform of a notice of lis pendens satisfies therequirement 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 ajudicial 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 ofpetition. 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 Courtof Riverside 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 ofpublic concern." Id. at. A "matter ofpublic 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 ofpublic concern include speech addressed to the quality oflegal services provided by a member ofthe state bar, Avilav. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied); viewpoints on 

### issues aboutcompliance with canons of judicial conduct, Cortez v. Johnston, 378 S.W.3d468 (Tex. App.—Texarkana 2012, pet. denied) (strong matter ofpublic concern involving a member ofthe statejudiciary); and viewpoints about the efficacy ofpublic policy responding the mortgage industry crisis, Mortgage-Specialists, Inc. v. Implode-Explode HeavyIndustries, Inc., 999 A.2d 184 (N.H. 2010). (anti-slapp case involving mortgage dispute). 

### The TCPA also provides rules ofconstruction that the courts ofappeals are obligated to observe in appeals from denials ofdismissal 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 Charalambopoulusv. 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 ajudicial 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 ofexpression bears"a heavy presumption against its constitutional validity." SeeIn reNewton, 146S.W.3d 648, 653-54 (Tex.

### 2004). The guidingpurpose behind the preservation of these defenses and rules ofconstruction 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 ofpersons 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 ofa 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 reliefon July 17, 2014. The opening briefwas then augmented in a 

### supplemented briefing submission, and by way ofa motion for special exceptions in Case No. 04-14-00483-CV, and a motion to reinstate his petition for extraordinary reliefin 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 thefact thatAppellees' voluntarily waivedthe opportunity to file a responsive pleading to address everyelement of the claims for 

### tortliability they assert. Even ifAppellees could prevail onthefirst and second prong, which

### they cannot, their brief makes no plausible attempt to controvert Appellant'scollateral 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 reliefis functionally mooted by their lack ofstanding to maintain the underlying cause ofaction whatsoever for tort liability.
ARGUMENTAND AUTHORITIES I. Appellees Err By Asking The Court To Construe The TCPA In A Manner That Narrows The Scope OfThe Communications Referenced In The Text OfThe Act. An important threshold matter concerning the proper statutory construction ofthe TCPA 

### is presented by Appellees' legal theory proposing to exclude coverage ofAppellant'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 ofdefendants the TCPA was designed to protect regardless ofwhether 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 

### causeofaction, as Appellees' briefappears to suggest, butinstead merely requires themoving 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 brief relating to an event in the chainoftitle to the subjectproperty, has no bearingwhatsoever on the overall 

### justiciability of amotion to dismiss inwhich 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 lawpublications made in the course of judicial and quasi-judicialproceedings are absolutely privileged. This 

### "mean[s] that any statementmade in the trial of any case, by anyone, cannotconstitute the basis for a defamation action, or any other action." Hernandezv. 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 thejudicial 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 ofa notice ofa 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 ofpre-litigaiton notices, such as Appellant's notice ofapparent 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 ofpublic concern qualify for coverage both under TCPA Section 27.005 and Section 8 of the Bill of 

### Rightsof the Texasconstitution: "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 ofofficers, or men in public capacity, or when the matter published is proper for public information, the truth thereofmay be given in evidence. " Id. Under the circumstances, the Appellees' briefis suspect on its face. The mere fact that Appellees assert the right to maintain an independent cause ofaction 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' BriefFails On The TCPA's First Prong By Failing To Controvert Appellant's Fifth Point OfErrorAnd Preponderant Evidence Of Appellant's Exercise OfThe Right To Free Speech And The Right To Petition. Appellees purport to maintain causes ofaction for tortious interference with contractual relations and fraud, but regardless ofwhat labels they use to allege tort liability, the dispositive 

### factors on the TCPA's first prong are the existence ofpublished communications in ajudicial 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 trialcourt onBravenec's behalfinterms of lispendens 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 of Appellant's Second SupplementalAppendix. 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' Transcript for 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 ofAppellees case, by their own account, lies in their interests in 

### enjoining future lis pendens speech and in resolving a difference ofopinion 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 suitplaces in dispute implicates every matter ofpublic 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 observanceof jus cogens standardsof judicial conduct, that directly or indirectly touch every category ofpublic concern known to the TCPA Section 27.005, including "safety" from alleged deprivations ofdue process, the effect of judicial 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 forjudicial office was suing
a former client, and was at the same time facing claims for legal malpractice himselfarising 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 post

### petition 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 ofAppellant's speech involves matters ofpublic 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 ison-going public discussion onthese topics.2 HI. Appellees BriefConfirms That They Defaulted On The TCPA's Second Prong By Presuming Erroneously That They Were Exempt From The Burden OfThe 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 LawJournal, 2010. Available athttp://stmaryslawjournal.org/pdfs/Stone.pdf. Seealso, "Fedswantsecret audio attrial; Informant, nowdead, helped obtain it," San Antonio Express News, March 20, 2015, at p. A-3 (reporting on apending federal caserelated to a local attorney's felony conviction arising out ofcorrupt 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 ofa statue [sic] that provided an automatic stay and through [sic] the same into a briefing not supported by any case [sic] ofaction 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 oferror 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. WorldFlight, 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 ofa 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 ofaction 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 actualdamages 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 courtofappeals therereversed a trial court orderdenying the defendant'sTCPAmotion to dismiss. Here,

13

### Appellees' offer noargument to explain why thetransfer ofthesubject property toTorralba Properties makes this case distinguishable from the one inNewspaper Holdings, Id. The courtofappeals 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 pendenswas fraudulent 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 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 ofhis 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 ofaction 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, 

### forexample, Bravenec specifically asserts that his chainof title to the subject property beganon October 3, 2003 with a foreclosure saletransaction 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 alsoAppellees' 

### 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 reliefwas proper because "numerous courts," allegedly including the U.S. District Court for the Western District ofTexas 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 BriefOmits To Allege A Rebuttal OfCollateral 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 ofaffirmative 

### 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 ofcollateral 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 reliefyou 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' Transcript for 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. Ofcourse. 

### 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 thatpreceded it, the lattertestimony alsodisregards the estoppel effect of thefederal

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, Barrv. 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 ofcollateral estoppel by parties on the losing end ofajudgment - is simply preposterous, and reflects a common misconception about the meaning ofcollateral 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 plaintiffhas 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 vRyan, 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 ofappeals 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 ofestoppel 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 inAppellant'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

18the 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. Teal Trading 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 briefcan 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 andintendments. Farias, Id. In support of thereply brief, Appellant also argues that the Appellees secured the temporary injunction orderon July 17, 2014 after conditionsfor a TCPAautomatic 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 lispendens noticing purchase money claims burdened theproperty); Exhibit B in TAB 3 of Appellant's Brief(reference to intentof second lienagreement thatrecorded 

### interests should runwith the land); CRT#2 at pp. 22, lines 18-31 (Bravenec testimony onforeclosure saleindicating he hadnotice of firstandsecond liencovenants); andExhibits A andB inAppellant's TAB 3 (supporting conclusion thathorizontal andvertical privity requirements were metthrough the 

### assignment ofsecond lien interests toMcKnight and Bravenec in2005 andthrough apost-petition trustee's foreclosure sale tothem in2006). Thus, even iftheforeclosure sale isdeemed valid, Appellees' are estoppedfrom claimingthat it extinguished the purchase moneyinterest. But see, 6A C.J.S. 

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

### nonassignability of theright attempted to beassigned" may beraised); Reinagel v. Deutsche BankNat. 

### Trust Co., 735 F.3d220, 228 (5thCir. 2013) ("Texas courts follow themajority rule thatanobligor 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 courtjurisdiction 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 ofassistance under which officers ofthe Crown had so bedeviled the colonists. The hated writs ofassistance
... 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 ofevery petty officer"
... What is significant to note is that this history is largely a history ofconflict 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 ofdissent... 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 ofobjectionable 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 ofTexas] 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 ofnonconformity 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 of judicial process "as
an adjunct to a system for the suppression ofobjectionable publications," Id, for the same
reasons the law 50 years ago protected Bexar County resident and activist John Stanford.

20CONCLUSION 

### 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 ofexpressive disorder not only is inevitable in a society committed to individual freedom, but must itselfbe 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 reliefboth in law and in equity as he may bejustly entitled. 

## Dated: April 6,2014 Respectfully Submitted,

21 Rowland J. Mactin 951 Lombrano San Antonio, Tx 78207 (210) 323-3849CERTIFICATE OF SERVICE 

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

### Reply Briefto AttorneyGlenn Deadmanat 411 S. SouthMain, SanAntonio, 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

22APPENDIX 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

# ACase 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 proofofPlaintiffs' allegations by a preponderance ofthe evidence. 2. Edward Bravenec, by way offurther defense should be one necessary, Defendantpleads that they are the affirmative defense ofRes Judicata and Statue ofLimitations.r

WHEREFORE, PREMISES CONSIDERED, Edward Bravenceprays that Plaintiffs take nothing by their suit and thatEdward Bravencerecoverfrom Plaintiffs his attorney's fees, costs, and 

### such other relief, at law or in equity, to which he shows himself justly 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. 00785559CERTIFICATE OF SERVICE


### Ihereby 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

# cCause 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 And Texas 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 anappeal

DOCUMENT SCANNED AS FILEDcontesting the interlocutory rulings at the hearing on July 1,2014 was filed in the Fourth District Court ofAppeals 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 ofthis 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 ofAppeals. 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 equitablejurisdiction to grant injunctive reliefwas arguably unsupported and flawed from the inception ofthe case because the Plaintiffs are collaterally estopped form asserting the
cause ofaction 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 ofa lis pendens injunction. See infra at p. 4 -5. Bravenec himself judicially admits his lack ofstanding to contest lien claims in his last motion to the federal court: "Movant availed himselfoffederal 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.

DOCUMENT SCANNED AS FILED

### 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 toproduce probativeevidence ofa contract, (2) by their reliance on moot theories about interference and 

### proximate causation thatimproperly conflate pastcancellations of lispendens notices withan adverse disposition of theunderlying lieninterest 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 thepurported sale to close. The impleading of theregistered agent for thepurported orprospective pendentlitepurchaser further mootsthe tortious interference claimbecause the filing ofconstructive 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 ofprudential 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 theDistrict 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 natureof 

### the latterconduct calls the veracity andlegitimacy 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 forsummaryjudgment as a matter oflaw pursuant

DOCUMENT SCANNED AS FILED

### 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 ofa 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 ofhis business as a former provider oflegal 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 Heritage Capital, 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. Cityof El 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 ofhis motion to dismiss, Defendant first asserts a prima facie affirmative defense ofprivilege, as a former client ofBravenec 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 summaryjudgment 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

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

### justification as affirmative defenses warranting dismissal ofa 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 ofprooffor 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 ofa recognized legal malpractice privilege, and as party to pending suit in a suit litigation in Cause 2010-CI

### 19099 thatimplicates the formerattorneyclientrelationship withBravenec, Defendantis plainly authorized to assert prima facie third party purchase money lien claims against property interests 

### and theirproceeds thatBravenec 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 ofconcurrentjurisdiction, the pendency ofa 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 theparties, of the casemade, and of the reliefsoughtshould

DOCUMENT SCANNED AS FILEDbe 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 primaryjurisdiction 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 andcharacter ofthe title andpossession 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 ofcompetentjurisdictionto 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 is subject 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 ofaction 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 

### theparties from re-litigating issues thatwere orcould have been raised inthataction. 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 thiscourt byPlaintiff. Plaintiffis subject to this court's orders, and thiscourt has the sole jurisdiction, for all orders relating to any lis pendens against 1216 WestAve. arising from the dispute thatoccurred from the alleged unlawful foreclosure." Document 162in CaseSA 1l-CV-0414. The OrderofMarch 5, 2014 rejected the Plaintiffs lineofargument about 

### exclusivejurisdiction out ofhand: "Thepropriety 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 lispendens notice issue, both ofwhich implicated Plaintiffs interest intheproperty as a purchase money creditor and malpractice claimant. That courtissued a ruling at Plaintiffs request tojudicially notice Defendant Bravenec'spreviously unnoticed

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### about June 13, 2014thatAppellant hadfiled notices of lis pendens in the BexarCounty Deed Records, andfrom pleadings falsely asserting thatDefendant 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 shiftofpositions 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 forlawyers in ouradversary 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 ofcriminal contempt 

### represents the third time in less than a year that he has falsely attemptedto incarcerate the 

### Defendant for speech in a judicialforum. The Court is respectfully requested to redress this fact by dismissing his claim fortortious interference and his crossmotionfor summaryjudgment, to set a date for a jury trial on Defendant's counterclaims, andfinally, 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 itgranted 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 oflimitations and resjudicata accommodations in the respective federal court and probate court orders effectively estops them from raising those arguments now.

DOCUMENT SCANNED AS FILEDCERTIFICATE 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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