No. 03-14-00199-CV

______________________________________

COURT OF APPEALS

THIRD JUDICIAL DISTRICT OF TEXAS

AUSTIN, TEXAS

______________________________________

CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.

Appellants,

v.

MONIQUE RATHBUN,

Appellee.

______________________________________

MOTION FOR LEAVE TO FILE

NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT

CHURCH OF SCIENTOLOGY INTERNATIONAL

______________________________________

On Appeal from the 207th Judicial District Court

of Comal County, Texas

Trial Court No. C-2013-1082B

Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding

______________________________________

Of Counsel:

Eric M. Lieberman

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN PC

45 Broadway, Suite 1700

New York, New York 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

elieberman@rbskl.com

Thomas S. Leatherbury

State Bar No. 12095275

Marc A. Fuller

State Bar No. 24032210

VINSON & ELKINS LLP

Trammell Crow Center

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

Telephone: 214.220.7792

Facsimile: 214.999.7792

tleatherbury@velaw.com

mfuller@velaw.com

ACCEPTED

03-14-00199-CV

5260121

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/13/2015 9:20:07 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/13/2015 9:20:07 AM JEFFREY D. KYLE Clerk
Ricardo G. Cedillo

State Bar No. 04043600

Isaac J. Huron

State Bar No. 24032447

Les J. Strieber III

State Bar No. 19398000

DAVIS, CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78212

Telephone: 210.822.6666

Facsimile: 210.822.1151

rcedillo@lawdcm.com

ihuron@lawdcm.com

lstreiber@lawdcm.com

George H. Spencer, Jr.

State Bar No. 18921001

CLEMENS & SPENCER

112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531

Telephone: 210.227.7121

Facsimile: 210.227.0732

spencer@clemens-spencer.com

Attorneys for Appellant Church of Scientology International
-1-

TO THE HONORABLE COURT OF APPEALS:

Appellant Church of Scientology International (“Church”) requests leave to

file a Notice of Supplemental Authority to address the Texas Supreme Court’s

recent decisions in Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025

(Tex. Apr. 24, 2015) (per curiam), and In re Lipsky, No. 13-0928, 2015 WL

1870073 (Tex. Apr. 24, 2015), and this Court’s recent decisions in Neyland v.

Thompson, No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7,

2015, no pet. history), and Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL

2061922 (Tex. App.—Austin, May 1, 2015, no pet. history). Each of these recent

decisions presents issues under the Texas Citizens Participation Act, Tex. Civ.

Prac. Rem. Code § 27.001 et seq., that are relevant to the issues presented in this

appeal.

Wherefore, the Church prays that this Court grant this Motion for Leave to

File Notice of Supplemental Authority of Appellant Church of Scientology, which

is attached hereto as Exhibit 1, and grant any such other relief to which it may be

justly entitled.
-2-

Respectfully submitted,

/s/ Thomas S. Leatherbury

Thomas S. Leatherbury

State Bar No. 12095275

Marc A. Fuller

State Bar No. 24032210

VINSON & ELKINS L.L.P.

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201-2975

Telephone: 214.220.7792

Facsimile: 214.999.7792

tleatherbury@velaw.com

mfuller@velaw.com

Ricardo G. Cedillo

State Bar No. 04043600

Isaac J. Huron

State Bar No. 24032447

Les J. Strieber III

State Bar No. 19398000

DAVIS, CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78212

Telephone: 210.822.6666

Facsimile: 210.822.1151

rcedillo@lawdcm.com

ihuron@lawdcm.com
-3-

George H. Spencer, Jr.

State Bar No. 18921001

CLEMENS & SPENCER

112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531

Telephone: 210.227.7121

Facsimile: 210.227.0732

spencer@clemens-spencer.com

Of Counsel:

Eric M. Lieberman

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN PC

45 Broadway, Suite 1700

New York, NY 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

elieberman@rbskl.com

Attorneys for Appellant Church of

Scientology International

CERTIFICATE OF CONFERENCE

On May 12, 2015, I conferred with Appellee’s counsel, Leslie Hyman, who

stated that Appellee is not opposed to this motion.

/s/ Marc A. Fuller____________

Marc A. Fuller
-4-

CERTIFICATE OF SERVICE

The undersigned certifies that on the 13th day of May, 2015, the foregoing

Motion for Leave to File Notice of Supplemental Authority of Appellant Church of

Scientology International was served on the following attorneys in accordance with

the requirements of the Texas Rules of Appellate Procedure via electronic filing or

email.

Ray B. Jeffrey

JEFFREY & MITCHELL, P. C.

2631 Bulverde Road, Suite 105

Bulverde, TX 78163

Marc F. Wiegand

THE WIEGAND LAW FIRM, P.C.

434 N. Loop 1604 West,

Suite 2201

San Antonio, TX 78232

Elliott S. Cappuccio

PULMAN, CAPPUCCIO PULLEN

& BENSON, LLP

2161 N.W. Military Hwy., #400

San Antonio, TX 78213

Lamont A. Jefferson

HAYNES & BOONE LLP

112 E. Pecan Street, Suite 1200

San Antonio, TX 78205-1540

J. Iris Gibson

HAYNES & BOONE LLP

600 Congress Ave., Suite 1300

Austin, TX 78701

Jonathan H. Hull

REAGAN BURRUS

401 Main Plaza, Suite 200

New Braunfels, TX 78130

O. Paul Dunagan

SARLES & OUIMET

370 Founders Square

900 Jackson Street

Dallas, TX 75202

Bert H. Deixler

KENDALL BRILL KLIEGER

10100 Santa Monica Blvd.,

Suite 1725

Los Angeles, CA 90067

Stephanie S. Bascon

LAW OFFICE OF STEPHANIE S. BASCON,

PLLC

297 W. San Antonio Street

New Braunfels, TX 78130

Wallace B. Jefferson

Rachel Ekery

ALEXANDER DUBOSE JEFFERSON

& TOWNSEND, LLP

515 Congress Avenue, Suite 2350

Austin, TX 78701

/s/ Thomas S. Leatherbury

Thomas S. Leatherbury

US 3518244v.1
EXHIBIT 1
No. 03-14-00199-CV

______________________________________

COURT OF APPEALS

THIRD JUDICIAL DISTRICT OF TEXAS

AUSTIN, TEXAS

______________________________________

CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.

Appellants,

v.

MONIQUE RATHBUN,

Appellee.

______________________________________

NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT

CHURCH OF SCIENTOLOGY INTERNATIONAL

______________________________________

On Appeal from the 207th Judicial District Court

of Comal County, Texas

Trial Court No. C-2013-1082B

Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding

______________________________________

Of Counsel:

Eric M. Lieberman

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN, PC

45 Broadway, Suite 1700

New York, New York 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

elieberman@rbskl.com

Thomas S. Leatherbury

State Bar No. 12095275

Marc A. Fuller

State Bar No. 24032210

VINSON & ELKINS LLP

Trammell Crow Center

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

Telephone: 214.220.7792

Facsimile: 214.999.7792

tleatherbury@velaw.com

mfuller@velaw.com
Ricardo G. Cedillo

State Bar No. 04043600

Isaac J. Huron

State Bar No. 24032447

Les J. Strieber III

State Bar No. 19398000

DAVIS, CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78212

Telephone: 210.822.6666

Facsimile: 210.822.1151

rcedillo@lawdcm.com

ihuron@lawdcm.com

lstreiber@lawdcm.com

George H. Spencer, Jr.

State Bar No. 18921001

CLEMENS & SPENCER

112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531

Telephone: 210.227.7121

Facsimile: 210.227.0732

spencer@clemens-spencer.com

Attorneys for Appellant Church of Scientology International
-1-

Appellant Church of Scientology International (“Church”) submits this

Notice of Supplemental Authority to address the Texas Supreme Court’s recent

decisions in Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025 (Tex. Apr.

24, 2015) (per curiam), and In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex.

Apr. 24, 2015), and this Court’s recent decisions in Neyland v. Thompson, No. 03-

13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet.

history), and Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex.

App.—Austin, May 1, 2015, no pet. history).

Lippincott v. Whisenhunt

The Supreme Court’s decision in Lippincott presents the threshold issue of

whether and when a court must apply the Texas Citizens’ Participation Act on an

issue of free speech. See Tex. Civ. Prac. & Rem. Code § 27.001 et seq. The Act

applies when a “legal action is based on, relates to, or is in response to the

[defendant’s] exercise of . . . the right of free speech.” TCPA § 27.005(b). The

“exercise of the right of free speech” is defined as “a communication made on a

matter of public concern.” Id. § 27.001(3). The Court’s decision resolves one of

the main legal disputes in this appeal, i.e., whether the Act applies only to a

“communication” that is made to the public. The Sixth Court of Appeals in

Lippincott had held that the Act does not apply to private communications, a

position adopted by the district court below and strongly urged by Appellee here.

See Whisenhunt v. Lippincott, 416 S.W.3d 689, 697-98 (Tex. App.—Texarkana
-2-

2013), rev’d, Lippincott, 2015 WL 1967025; Brief of Appellee at 39-42; Dist. Ct.

Op. at 20-24. The Church has argued, to the contrary, that the statute’s definition

of the term “communication” is not limited to “public” communications. So long

as a communication satisfies the statutory definition of a “matter of public

concern,” it comes within the scope of the TCPA even if it is private. See Reply

Brief at 13-14.

In reversing the Sixth Court of Appeals, the Supreme Court has confirmed

that the Church’s view is correct. Focusing on the Act’s specific language as well

as the Legislature’s injunction to construe the Act “liberally to effectuate its

purpose and intent fully,” TCPA § 27.011, the Court found that a “communication”

can be public or private, in any form or media. Accordingly, contrary to

Appellee’s argument, if a “communication” is private, but on a “matter of public

concern,” it meets the statutory definition:

This statute defines “communication” to include any

form or medium, including oral, visual, written,

audiovisual, or electronic media—regardless of whether

the communication takes a public or private form. Tex.

Civ. Prac. & Rem. Code § 27.001(1). The plain language

of the statute imposes no requirement that the form of the

communication be public. Had the Legislature intended

to limit the Act to publicly communicated speech, it

could have easily added language to that effect. See In re

M.N., 262 S.W.3d 799, 802 (Tex. 2008). In the absence

of such limiting language, we must presume that the

Legislature broadly included both public and private

communication. Tex. Civ. Prac. & Rem. Code § 27.011.
-3-

Lippincott, 2015 WL 1967025, at *2.

Lippincott confirms that Appellants’ communications come within the ambit

of the TCPA. First, the communications concerning Marty Rathbun, which

plaintiff incorporated as part of every cause of action alleged (whether made in a

public forum or to a few individuals) were indisputably about a public figure, and

are thus matters “of public concern” within the TCPA. Id. § 27.001(7)(D).

Moreover, as the Church has demonstrated—and Appellee did not dispute—

Appellee is a public figure in her own right. See, e.g., Brief of Appellant at 30-31

(citing cases and record evidence); Reply Brief at 13 (noting that Appellee

conceded this point by not responding to it); 3RR194-99; 1CR150-56.

Second, Appellants’ communications, whether public or “private,” in

response to Rathbun’s extensive public campaign to disparage the Church and its

leadership, as well as Appellee’s direct participation in those activities, related to

the religious dispute between the Church and the Rathbuns over ecclesiastical

issues important to the Scientology community. See TCPA § 27.001(7)(B)

(“‘matter of public concern’ includes an issue related to . . . community wellbeing”). In light of this evidence, Lippincott leaves no room for Appellee to argue

that Appellants’ communications were not “made in connection with a matter of

public concern” within the TCPA.
-4-

In re Lipsky

The Supreme Court’s decision in Lipsky relates to the second TCPA inquiry:

the non-movant’s burden to establish by “clear and specific evidence a prima facie

case for each essential element of the claim in question.” TCPA § 27.005(c).

Lipsky held that a non-movant can rely on circumstantial evidence and rational

inferences to satisfy her burden. 2015 WL 1870073, at *7. Unlike the issue in

Lippincott, however, this is not a point of meaningful contention on this appeal.

Instead, the parties focused on the issue of how clear and specific the nonmovant’s evidence must be. The Church emphasized that Appellee presented no

evidence, or only mere speculation and conjecture, to support her causes of action.

See, e.g., Brief of Appellant at 47 (“Here, there is no evidence, let alone ‘clear and

specific evidence,’ that the Church played any part whatsoever in persuading

Plaintiff’s employer to breach her employment contract.”).

On this issue, Lipsky supports the Church’s position, as does this Court’s

post-Lipsky decision in Serafine. The Supreme Court rejected as legally

inadequate an attempt by the non-movant to meet its burden of showing prima

facie evidence on one of its causes of action. 2015 WL 1870073, at *9. In

particular, the Court concluded that “bare, baseless opinions” and conclusory

allegations unsupported by “specific facts” are not a “sufficient substitute for the

clear and specific evidence required to establish a prima facie case under the

TCPA.” Id.
-5-

Accordingly, the Court’s holding1provides additional support to Appellants.

Neyland v. Thompson

Whereas Lippincott and Lipsky involved only the “right of free speech”

under the TCPA, Neyland involved both “free speech” and the “right of

association.” See Neyland, 2015 WL 1612155, at *4-5. The Neyland plaintiff’s

suit was based on communications made among members of a homeowners’

association (“HOA”). Id. at *1. In determining whether these communications fell

within the “right of association” protected by the TCPA, the Court looked to the

plain language of the TCPA, noting that the Legislature had broadly defined “right

of association” to include all communications “between individuals who join

together to collectively express, promote, pursue, or defend common interests.” Id.

at *1, 4 (citing TCPA § 27.001(2)). HOA members “share common interests,”

thus communications between them are protected under the TCPA. Id. at *4.

Here, as in Neyland, Appellants rely on the “right of association” in addition

to the “right of free speech.” As members of the Scientology community,

Appellants share common religious interests, including the motivation to guard

against its adulteration. Accordingly, communications among them relating to

these religious issues fall within the TCPA’s protection of the “right of

1 We note that neither Lipsky, Lippincott, nor Serafine involved the third level of inquiry mandated under the TCPA,

as amended in 2013: whether, even to the extent a plaintiff may meet her prima facie burden, a movant has shown

that it nevertheless is entitled to prevail as a matter of law. See TCPA § 27.005(d). We reiterate that the Church

made that showing with respect to each of plaintiff’s four causes of action.
-6-

association.” Contrary to Appellee’s argument, it does not matter whether

Appellants’ communications would be protected under the First Amendment “right

of association.” But see Brief of Appellee at 43 n.26 (arguing that Appellants’

communications are not protected under the constitutional right of association).

Serafine v. Blunt

Serafine involves the third right protected under the TCPA: the “right of

petition.” 2015 WL 2061922, *1-2. Again, the Court looked to the plain language

of the statute in determining the scope of the right, which brings within its ambit

even disputes between private parties. Id. at *4; but see Brief of Appellee at 46-48

(arguing that only activity relating to petitions made to the Government are

protected).

Following Lipsky, the Court applied the “clear and specific evidence”

requirement to find that the non-movants had provided vague and conclusory

evidence in support of their counterclaim relating to Serafine’s filing of a lawsuit,

requiring the dismissal of that portion of their counterclaim under the Act.

We conclude that the term “clear and specific evidence”

refers to the quality of evidence required to establish a

prima facie case, while the term ‘prima facie case’ refers

to the amount of evidence required to satisfy the

nonmovant’s minimal factual burden.

Serafine, 2015 WL 2061922, at *3. The Court assumed without discussion and

without argument from the parties, however, that because the non-movant’s
-7-

counterclaim was based on both petition activity (the filing of the lawsuit) covered

by the Act and other alleged acts not covered by the Act, that only the petition

activity would be subject to analysis under the TCPA, and that the other allegations

would be remanded. Id. at *4.2

The question of how to address such “mixed claim” issues was briefed and

argued in this appeal. See Reply Brief. at 20-21. As the Church showed, in such

cases arising under the California anti-SLAPP statute, Cal. Code Civ. P. § 425.16

et seq., “[w]here . . . a cause of action is based on both protected activity and

unprotected activity, it is subject to [the anti-SLAPP statute] unless the protected

conduct is merely incidental to the unprotected conduct.” Haight Ashbury Free

Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1551 (2010)

(“the pleading of other, indeed numerous other, indisputably ‘unprotected’ theories

of liability does not eliminate or reduce the chilling effect of the exercise of free

speech and petition” created by the allegations of activity covered by the statute);

Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 308 (2001) (“[A]

plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading

tactic of combining allegations of protected and unprotected activity under the

label of one ‘cause of action’”). A non-movant, of course, could still go forward

2 The issue of how so-called “mixed claims” are to be treated under the TCPA was neither briefed nor argued in the

Serafine case. From the opinions, it does not appear that Serafine even included the acts other than the lawsuit and

lis pendens within her motion. Thus, the Court did not address or analyze the “mixed claim” issue on its merits.

The issue was discussed in the concurring opinion in Serafine. See 2015 WL 2061922 at *29-30 (Pemberton, J.,

concurring).
-8-

with that portion of his mixed claim that is not encompassed within the Act by

demonstrating, within the context of the motion to dismiss brought under the Act,

that his claim is supported by clear and specific evidence of a prima facie case and

is not otherwise subject to dismissal. Indeed, as potentially demonstrated here,

such a course is squarely consistent with interests of judicial economy.

Moreover, because Serafine did not involve pre-suit investigation of

potential civil litigation, the Court did not consider whether such activities are so

closely related and indeed often necessary to future or ongoing litigation as to

come within the scope of the TCPA’s right to petition. As the Church showed

(Brief at 34-35; Reply Brief at 16), a faithful adherence to the language of the

TCPA, as Lippincott mandates, confirms that Appellants’ retention of licensed

professionals to investigate Appellee’s provocative conduct against their faith, in

contemplation of possible affirmative or defensive litigation or of possible

complaints to law enforcement (as occurred), sufficiently “relates to” their right to

petition a court or government official for relief as to fall within the ambit of the

Act. See, e.g., Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1071

(2009) (“the investigation of a potential claim is normally and reasonably part of

effective litigation, if not an essential part of it”); see also Dickens v. Provident

Life & Acc. Ins. Co., 117 Cal. App. 4th 705, 708-09 (2004) (“[A] defendant’s

alleged participation in procuring a criminal prosecution against a plaintiff falls

within the ambit of the anti-SLAPP statute.”).
-9-

Based on these additional authorities, the Church respectfully re-urges its

request that this Court reverse the district court’s order denying its motion to

dismiss, grant the motion, and render judgment for the Church.

Of Counsel:

Eric M. Lieberman

Rabinowitz, Boudin, Standard,

Krinsky & Lieberman PC

45 Broadway, Suite 1700

New York, New York 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

elieberman@rbskl.com

Respectfully submitted,

/s/ Thomas S. Leatherbury

Thomas S. Leatherbury

State Bar No. 12095275

Marc A. Fuller

State Bar No. 24032210

Vinson & Elkins LLP

2001 Ross Avenue, Suite 3700

Trammell Crow Center

Dallas, Texas 75201

Telephone: 214.220.7792

Facsimile: 214.999.7792

tleatherbury@velaw.com

mfuller@velaw.com

Attorneys for Appellant Church of Scientology International

US 3519264v.1