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Rowland Martin, Jr. v. Edward L. Bravenec and 1216 West Ave., Inc.
Citation: Not availableDocket: 04-14-00483-CV
Court: Court of Appeals of Texas; April 6, 2015; Texas; State Appellate Court
Original Court Document: View Document
Rowland J. Martin, the appellant, individually and as administrator for the estate of King Edward Bravenec, files a reply brief in an interlocutory appeal against multiple appellees, including Edward Bravenec and the Law Firm of McKnight and Bravenec, in the Court of Appeal for the Fourth Supreme Judicial District of Texas. The document identifies the parties and their representation, noting that Martin is proceeding pro se. The reply brief responds to the appellees' brief filed on March 2, 2014, and includes an Index of Authorities, proper citations, and a certificate of service. Martin incorporates legal arguments related to issue and claim preclusion from a previous motion, asserting that the appellees waived arguments regarding collateral estoppel. Key points in the argument include: 1. Appellees misinterpret the Texas Citizens Participation Act (TCPA) by attempting to narrow its scope. 2. Their brief fails to address Martin’s evidence supporting the exercise of free speech and the right to petition. 3. Appellees incorrectly assume they are exempt from the TCPA's standard of clear and specific evidence. 4. They do not contest collateral and deed estoppel defenses or justify their omissions from the trial court. The case highlights significant issues concerning the uniformity of anti-SLAPP dismissal proceedings and the adherence to automatic stay requirements in Bexar County. The document concludes with a certification of service and word count. The document presents an index of legal authorities, primarily cases, cited within a legal context. It includes a comprehensive list of cases from various jurisdictions, including the U.S. Supreme Court, the Fifth Circuit, and Texas state courts. Each entry provides the case name, citation, court, and date of decision, facilitating easy reference for legal arguments and precedents. Notable cases include *Alexander v. U.S.*, *Anderson v. Law Firm of Shorty, Dooley*, and *Barr v. Resolution Trust Corp.*, among others, highlighting their relevance to the text's legal analysis. The index also indicates the specific pages where these cases are discussed, allowing for streamlined navigation through the document. Overall, the index serves as an essential tool for legal practitioners to locate and reference pertinent legal precedents efficiently. Constitutional and statutory references include the First Amendment, Texas Constitution Article I, Section 8, and various sections from the Texas Civil Practice and Remedies Code (TCPA). The facts indicate that on January 12, 2015, the Appellant filed an opening brief, followed by the Appellees’ responding brief on March 2, 2015. The Appellees' tort liability claims stem from a published notice related to purchase money lien claims and an associated lis pendens, seeking to prevent further communications related to these claims. A key legal question for de novo review is whether the Appellant's motion to dismiss adequately alleged communications that engage rights under the TCPA, which requires demonstrating the exercise of the right to free speech and petition. The Appellees argue that the TCPA is inapplicable, suggesting the Appellant misapplied a statute to achieve an automatic stay without a valid legal basis. They claim the Appellant's pleading is fatally defective, asserting that a moving party must establish a predicate cause of action for TCPA relief. The Appellees contend that the Texas pleading system defines the parameters of a lawsuit, guiding evidence admission and jury instructions, and that a lack of formal pleadings precludes any judgment. They note that without proper pleadings, there can be no fact issues arising from a non-pleaded cause of action. However, they failed to file a formal responsive pleading to the TCPA motion and did not address this omission. Instead, they attributed a typographical error to the Appellant’s motion, which actually appeared in a supporting memorandum, while also waiving their chance to formally counter the TCPA dismissal in the lower court. Appellees' brief reiterates res judicata arguments from the trial court regarding their tortious interference claim but fails to provide direct evidence or legal authority to counter Appellant's collateral estoppel defense. Their position on res judicata reflects a mere disagreement with the interpretation of Martin v. Grehn. Appellant emphasizes the absence of an explanation in Appellees' brief on how the presumed res judicata effect of Martin v. Grehn substantiates the elements of their tort liability claim, especially given the non-final status of the appeal in Martin v. Bravenec. Appellees' argument conflates claim preclusion and issue preclusion, lacking a legal or evidentiary basis to connect to the "interference" element of their claims. The court is positioned to assess whether the trial court erred in determining that Appellant's speech is not eligible for Texas Citizens Participation Act (TCPA) protection. The critical issue for the Court's review is whether Appellees provided clear and specific evidence of their prima facie case for tort liability and rebutted Appellant's estoppel defenses in the dismissal proceeding. Under the TCPA, a party can move to dismiss a legal action related to free speech or petition rights, with the initial burden on the movant to show the action is covered. The opposing party can avoid dismissal by establishing a prima facie case for each claim element. If denied, the movant can appeal, which stays trial proceedings. Texas courts conduct a de novo review for the TCPA burden-shifting analysis, requiring a determination of whether clear and specific evidence supports each essential claim element without relying on inferences. Under TCPA 27.006(a), courts must consider pleadings and affidavits when determining whether to dismiss a legal action. In James v. Calkins, the court ruled that a notice of lis pendens qualifies as evidence that claims are related to the exercise of the right to petition, as defined by TCPA Sections 27.001(4)(A)(i) and 27.005(b). Appellees' claims were directly tied to the lis pendens filed by the appellant, which notified of a lawsuit aimed at canceling a property transfer. The court rejected appellees' argument against constitutional protection, stating that their cited cases did not apply TCPA or the relevant communications. The ruling aligns with national trends recognizing lis pendens as protected communications under Anti-SLAPP laws. Additionally, the court in Pickens v. Cordia defined “exercise of free speech” within the context of public concern, which includes matters of health, safety, government, and public figures. Courts have acknowledged that public concern can also arise from issues affecting the community or legal services. Furthermore, TCPA provides that its provisions do not diminish other available legal defenses or privileges, as stated in Subsection 27.011(a). Subsection (b) mandates a liberal interpretation of the chapter to fully realize its purpose. Section 27.011 upholds collateral estoppel defenses, as illustrated in Charalambopoulus v. Grammer, where the court recognized that, in appropriate cases, a moving party's claim of issue preclusion can warrant automatic dismissal, although it found the moving party had not adequately established this. This section also preserves constitutional protections against prior restraints on free speech, as detailed in U.S. CONST, amend. I and TEX. CONST, art I. 8, with prior restraints defined as judicial orders preventing certain communications before they occur. Such restraints face a strong presumption against their constitutional validity. The preservation of these defenses and interpretive rules aims to provide a qualified immunity from lawsuits for moving parties, as outlined in Batzel v. Smith, thereby promoting the constitutional rights to petition, free speech, and participation in government while also protecting the right to file legitimate lawsuits for demonstrable harm. In the summary of the argument, the Appellant contends that their opening brief adequately addressed whether the trial court erred in issuing a gag order on July 17, 2014, and was further supported by subsequent motions. Currently, the sole issue for the Court's consideration is the Appellees' arguments regarding TCPA burden shifting. The Appellant asserts that the Appellees' analysis misinterprets the TCPA's communication definitions and fails to meet the de novo review standard, as it does not prove their tort liability claims fall outside the communications defined in Section 27.005. Furthermore, their second prong is legally insufficient, relying on adverse inferences and neglecting their waiver of the opportunity to file a responsive pleading. Even if the Appellees could succeed on both prongs, they have not provided adequate evidence or legal authority to counter the Appellant's collateral and deed estoppel defenses. Ultimately, the Appellees' legal action to suppress speech related to lis pendens contradicts First Amendment principles and should be dismissed under the TCPA. Additionally, any questions regarding the trial court's temporary injunctive relief are rendered moot due to the Appellees' lack of standing to pursue their tort liability claims. Appellees mistakenly seek to limit the scope of the Texas Citizens Participation Act (TCPA) by arguing that Appellant's lis pendens communication should be excluded due to a pleading defect not raised in the trial court. This interpretation creates an inconsistency that undermines the TCPA's intent to protect defendants from retaliatory legal actions based on their exercise of free speech. The TCPA does not require the moving party to specify a cause of action, but rather to assert that the plaintiff's legal action is a response to their speech or petition rights. A typographical error in a motion to dismiss is irrelevant to the justiciability of a claim involving a lis pendens communication, which is protected under TCPA provisions. Under Texas law, statements made in judicial proceedings are absolutely privileged, meaning they cannot form the basis of defamation or similar claims, even if false or made with malice. This privilege encompasses all aspects of judicial proceedings, including court statements, hearings, and pleadings, and extends to the recording of a lis pendens. Furthermore, this privilege potentially applies to statements made in anticipation of judicial proceedings, such as pre-litigation notices. Even in the absence of ongoing judicial proceedings, issues of public concern are covered under the TCPA and Texas constitutional protections for free speech, affirming individuals' rights to express opinions publicly while being accountable for any misuse of that privilege. The Appellees' brief raises suspicions regarding its legitimacy, as they claim the right to independently enjoin unpublished speech related to an ongoing case while simultaneously requesting the Court to limit the scope of communications under the Act. This suggests they lack a valid lawsuit with demonstrable injury, as indicated by their res judicata arguments. Furthermore, the Appellees fail to address the Appellant's fifth point of error and the substantial evidence supporting the Appellant's rights to free speech and petition, as required by the Texas Citizens Participation Act (TCPA). They allege tortious interference and fraud, but the critical factors under the TCPA hinge on the existence of published communications in legal proceedings, which are protected by the TCPA. During a hearing, Attorney Deadman articulated that the injunction sought aimed solely to prevent the filing of lis pendens notices and to prohibit contact with lenders regarding potential title issues. This establishes that the Appellees' actions are a response to the Appellant's exercise of free speech and petition rights. Their litigation fundamentally revolves around their interests in restricting future lis pendens speech and contesting the res judicata effect of prior judgments, while the speech in question pertains to significant public concerns as defined by the TCPA. Appellant's speech is characterized as a plea for adherence to professional conduct rules and judicial standards, addressing various public concerns outlined in TCPA Section 27.005, including due process, economic impacts of judicial operations, Bravenec's public figure status, and the quality of legal services. The public interest is highlighted by concerns regarding a judicial candidate involved in a lawsuit against a former client and facing malpractice claims. These issues are deemed significant for broader public discussion beyond the immediate parties involved. Appellees, in their interlocutory appeal, failed to meet the TCPA's clear and specific evidence standard, as they did not substantiate their prima facie case for tort liability, resulting in a waiver of responsive pleadings. Their arguments attempting to evade TCPA application are legally unfounded and factually unsupported. The excerpt indicates that Appellees' claims regarding tortious interference and fraudulent filing do not meet the necessary legal criteria, citing case law where similar claims were dismissed. The court's prior rulings emphasize that merely inducing a party to act within their rights is not actionable interference, and Appellees' failure to differentiate their case from established precedent further weakens their position. Appellees alleged that appellants were aware of the fraudulent nature of the lis pendens when it was filed, with one appellant admitting such under oath. However, no supporting evidence was presented for these claims, as conclusory statements lack probative value to establish a prima facie case. The lis pendens served as notice for a lawsuit seeking a declaratory judgment to invalidate a 2007 deed transferring a home to a trust controlled by appellee. Testimony from Bravenec indicated he lacked the capacity to discern truth from falsehood regarding the fraud claim. Appellees' arguments were criticized for being unclear and misleading, particularly since they did not respond in writing to the appellant's TCPA motion to dismiss but instead attempted to show why future lis pendens speech should be prohibited. Appellees maintained claims of tortious interference and fraud, based on Bravenec's assertion that his title chain began with a foreclosure sale on October 3, 2003, which they argued was improperly clouded by the appellant's 2014 lis pendens filings. Bravenec contended that the trial court erred in denying the TCPA dismissal, claiming the appellant waived immunity due to a defective TCPA motion. He referenced various court adjudications related to the October 3, 2003 foreclosure but provided no supporting authority for his assertions. Additionally, the appellees' brief failed to address defenses of collateral and deed estoppel, and the omission was not justified for appeal. Under TCPA 27.006(a), courts must consider all pleadings and affidavits when determining dismissal eligibility. Bravenec's testimony during cross-examination revealed a lack of awareness of collateral estoppel's implications, despite being deemed the losing party in a prior ruling, emphasizing that his interpretation of the doctrine was flawed. On July 9, 2014, during cross-examination, Appellee Bravenec acknowledged that different parties in a closing transaction may have varying interests, but claimed that information disadvantageous to the seller was not relevant to the case at hand, citing a prior lawsuit lost in 2010 as the basis for lacking legal interest in the property. This testimony was noted to overlook the estoppel effect of a federal court order from March 5, 2014. When pressed for evidence linking the case of Martin v. Grehn to the Appellees' claims regarding purchase money issues, Bravenec admitted he could not provide such references. The discussion on collateral estoppel highlighted misunderstandings regarding its application. Bravenec’s assertion that defendants cannot use collateral estoppel defensively was deemed incorrect. Collateral estoppel can be either offensive or defensive, depending on which party is seeking to prevent relitigation based on a prior judgment. Moreover, the implications of mutuality and non-mutuality in asserting estoppel were emphasized. The application of these doctrines was further supported by case law, including references to California’s Park 100 Investment Group v. Ryan, which illustrated that prior rulings did not necessarily invalidate subsequent claims. Furthermore, the Fifth Circuit’s ruling in Anderson v. Law Firm of Shorty, Dooley, Hall reinforced that Appellees' arguments concerning res judicata were either flawed or had exceptions that could apply. In Larry York v. State of Texas, the court examines the applicability of collateral estoppel and the doctrine of estoppel by deed as defenses against tort liability claims by the Appellees. The precedent in Charalambopoulus does not apply to this case. The Appellant argues that, as a purchase money creditor, he holds a valid lien interest in the property based on restrictive covenants and the existence of a prior attorney-client relationship. Citing Tex. Prop. Code Section 202.003(a), the Appellant asserts that the lis pendens notices allowed the parties to enforce rights associated with the lien, thereby estopping the Appellees from denying the facts in their title chain that support the Appellant's defenses. The case raises significant issues regarding uniformity in Anti-SLAPP dismissal proceedings and adherence to automatic stay requirements in Bexar County District Courts. The Appellant contends that the Appellees failed to meet their burden of proof on essential claim elements, as outlined in his brief. Furthermore, the Appellant claims that the Appellees obtained a temporary injunction after satisfying the conditions for a TCPA automatic stay, referencing testimonies and documentation that affirm the validity of the purchase money interest and the fulfillment of privity requirements through past assignments and foreclosure actions. Even if the foreclosure is considered valid, the Appellees are argued to be estopped from asserting that it extinguished the purchase money interest. The Appellant also notes that defenses against assignments may be raised if an assignment is deemed invalid, citing relevant case law. Lack of trial court jurisdiction is asserted due to an appeal in an Anti-SLAPP case, which triggers an automatic stay. The Appellant emphasizes the significance of the U.S. Supreme Court's ruling in *Stanford v. Texas*, where a "constitutionally intolerable" general warrant was issued, permitting extensive state seizures of various materials, reminiscent of historical abuses by the Crown that targeted dissenting literature. The excerpt highlights the historical conflict between the Crown and the press, indicating that broad search powers have historically suppressed objectionable publications. It stresses the constitutional requirement for warrants to specifically describe items to be seized, particularly when those items are books containing controversial ideas. The indiscriminate nature of the warrant from the 57th District Court is deemed constitutionally unacceptable, as it conflicts with the Bill of Rights' principles. The Appellant calls for the court to apply the *Farias* decision, advocating for the protection of free speech and human dignity in light of historical context. The TCPA is framed as a safeguard against the misuse of judicial processes aimed at suppressing free expression, echoing the protection afforded to activist John Stanford. The appeal seeks to reaffirm the necessity of protecting expressive disorder as part of individual freedom, referencing prior case law to support this argument, while raising concerns regarding automatic stays in Anti-SLAPP situations. Appellant seeks relief from the Court, requesting both legal and equitable remedies. The document is dated April 6, 2014, and includes the contact information for Rowland J. Martin, the appellant. A Certificate of Service indicates that a copy of the Appellant's Reply Brief was mailed to Attorney Glenn Deadman on the same date. Furthermore, a Certificate of Compliance confirms that the document contains 7,273 words, adhering to the word count requirements set by Texas Rule of Appellate Procedure 9.4. The accompanying appendix includes an order from the U.S. District Court for the Western District of Texas dated March 5, 2014, and details related to a notice of Lis Pendens filed by Martin on January 18, 2013, concerning real property at 1216 West Avenue, San Antonio, Texas. After the Fifth Circuit affirmed the District Court's judgment, Martin's refusal to cancel his Lis Pendens led to the Court ordering its cancellation. Following the denial of a rehearing petition by the Fifth Circuit, Martin filed a new Lis Pendens linked to a probate matter in Bexar County, claiming his role as the administrator of the estate, which involved Defendant Edward Bravenec. Despite the filing of motions by the Defendants to expunge the Lis Pendens and for contempt, Martin did not adequately clarify the relevance of the probate matter to the current case. The Court determined that Martin's attempts to relitigate the probate issue against the Defendants were outside its jurisdiction and suggested that any further action should be taken in Bexar County Probate Court. Consequently, the Defendants' motion for contempt and to cancel the Lis Pendens was denied. On March 2014, Edward Bravenec, the defendant in case number 2014-CI-07644 in the 285th Judicial District Court of Bexar County, Texas, filed a General Denial in response to the plaintiffs' counterclaims. He denies all allegations made by the plaintiffs and requests that they provide proof of their claims. Additionally, Bravenec invokes affirmative defenses of res judicata and statute of limitations. He seeks that the plaintiffs receive no relief from their suit and requests recovery of his attorney's fees and costs. Rowland Martin, Jr., the appellant, submitted a Special Appearance for Plea to Jurisdiction and a Motion to Dismiss, citing the Texas Citizens Participation Act and the Open Courts Doctrine. An appeal contesting interlocutory rulings from a July 2014 hearing was filed in the Fourth District Court of Appeals, which impacts the trial court's jurisdiction. The appeal references a related federal case currently under review. The document was prepared by Glenn J. Deadman, who also certified electronic filing and service of the General Denial. Defendant responds to the Court's orders by asserting a plea to the equitable jurisdiction, seeking dismissal of Plaintiffs' claims for tortious interference and cross motions for summary judgment under the Texas Citizens Participation Act (TCPA) and relevant case law, specifically citing Zuniga v. Grose, Locke. The plea to jurisdiction is based on three main grounds: 1. **Collateral Estoppel**: Plaintiffs are precluded from asserting their current claims as they previously waived challenges to Defendant's lien in past litigation. Notably, Bravenec admitted to lacking standing to contest lien claims in a federal court motion. The Defendant argues that Plaintiffs cannot raise these matters again in this suit after having pursued them in a different court. 2. **Lack of Prudential Standing**: Plaintiffs failed to provide sufficient evidence of a contractual basis for their claims. Their arguments conflating past cancellations of lis pendens notices with adverse outcomes regarding the lien interest in the property are flawed. Additionally, a forfeiture of the corporate charter by the registered agent is cited as a superseding cause for the alleged damages, further undermining their tortious interference claim. 3. **False Representation**: Plaintiffs misled the Court by claiming Defendant violated a temporary restraining order through filings in Bexar County, which casts doubt on their prudential standing. Their actions resulted in the Court issuing a show cause order based on false premises, obstructing Defendant's ability to confront allegations of contempt, thus questioning the legitimacy of the case and the Court's jurisdiction. Defendant also seeks dismissal of Plaintiffs' original petition and cross motions for summary judgment as a matter of law under the TCPA, independent of the plea to jurisdiction. The Texas Citizens Participation Act (TCPA) aims to enable summary dismissal of lawsuits that seek to suppress public discourse on issues of public concern and to promote citizen participation. In this context, Bravenec's tortious interference claim is dismissed because he is a candidate for office using the lawsuit to silence criticism regarding his past legal services, and he lacks sufficient evidence to support his claim. Case law, such as *American Heritage Capital* and *Monaco Entertainment Group*, reinforces the TCPA's application for such dismissals. The Defendant asserts a prima facie defense of privilege as a former client of Bravenec and a plaintiff in a related legal malpractice case. This defense is based on a third-party purchase money lien from a transaction involving Moroco Ventures, LLC, which highlights Bravenec's use of the lawsuit to infringe on the Defendant's free speech rights under the TCPA. Citing the case *HMC Hotel Properties*, the Defendant argues that privileges and justifications can warrant dismissal of tortious interference claims. Bravenec's arguments regarding res judicata and limitations do not bar the Defendant’s counterclaims, as the Texas Supreme Court has ruled that the statute of limitations for legal malpractice claims is tolled until all appeals are resolved. The Defendant maintains that no malpractice claim has been litigated in prior cases and is entitled to assert third-party purchase money lien claims connected to Bravenec’s services. Lastly, Bravenec’s objections about issue preclusion are evaluated against the principles established in *Watson v. Jones*, which stipulate that for a pending suit to impede another suit, the identity of parties, claims, and relief sought must align sufficiently. This indicates that Bravenec’s attempts to use the criminal contempt proceeding are unsubstantiated. Proceedings in an appellate court are considered part of the original trial court's proceedings, and unexecuted orders from the appellate court are relevant to the primary jurisdiction case, potentially allowing the original case to be treated as lis pendens regarding subsequent lawsuits. Watson notes that if a trust's fiduciary nature was not addressed in the first suit, a second suit can be initiated in any competent court to define and protect the trust, even while the first suit is pending. The appellant retains a privilege from a former trust relationship, and the court has jurisdiction under the Texas Citizens Participation Act (TCPA) to enforce this privilege. Bravenec is barred by collateral estoppel from pursuing tortious interference claims due to his previous failure to object to purchase money lien claims in a related federal case, indicating bad faith. The principle of res judicata prevents re-litigation of claims that could have been raised in the earlier action. Jurisdiction over matters relating to real property is exclusively with the court where the original case was filed, and the court has already rejected arguments about exclusive jurisdiction relating to a lis pendens. A March 2014 ruling from the U.S. District Court dismissed the plaintiff's claims regarding jurisdiction. Additionally, findings from a Bexar County Probate Court regarding attorney withdrawal and lis pendens were made, acknowledging the plaintiff's interest as a purchase money creditor and malpractice claimant. The court recognized prior filings related to lis pendens and noted concerns about false representations by the defendant. The rationale for a strict approach to attorney conduct emphasizes the need for consistency and integrity in litigation, warning against attorneys who shift positions inappropriately, as it undermines the judicial process. Bravenec has made an unconscionable request for a finding of criminal contempt, marking his third attempt in under a year to wrongfully incarcerate the Defendant for statements made in a judicial setting. The Court is urged to dismiss Bravenec's claims for tortious interference and his cross motion for summary judgment. Additionally, it is requested that a jury trial be scheduled for the Defendant's counterclaims and that a constructive trust be imposed, allowing the Defendant to receive the net income from rental proceeds Bravenec has already collected. The Defendant seeks comprehensive relief, including legal and equitable remedies. Furthermore, previous court decisions, including granting lis pendens relief to Bravenec, have established that the Estate does not hold a fee simple ownership of the property. Bravenec's failure to seek reconsideration regarding limitations and res judicata in federal and probate court effectively prevents him from raising these issues now. A certificate of service confirms that a copy of the relevant motion was hand-delivered to Glenn Deadman on July 9, 2014.