Case No. 04-14-00483-CV
IN THE COURT OF APPEALS
FOURTH SUPREME JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
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ROWLAND J. MARTIN, APPELLANT . >> CD
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INDIVIDUALLYAND IN HIS REPRESENTATIVE CAPACITYAS
ADMINISTRATOR FOR THE ESTATE OF KING
V.
EDWARD BRAVENECAND THE LAW OFFICE OF MCKNIGHTAND
BRAVENEC, ETAL, APPELLEES
APPELLANT'S OPENING BRIEF
An Interlocutory Appeal
From Orders Of The 285th Judicial District Court,
Bexar County, Texas
Submitted By:
Rowland J. Martin
951 Lombrano
San Antonio, Texas 78207
(210) 383-3849
IDENTITY OF PARTIES & COUNSEL
1. Appellant: Rowland J. Martin
Individually and As Administrator of The
Estate Of King
951 Lombrano
San Antonio, Tx 78207
Represented by: Pro se
Appellees Edward Bravenec, the Law Firm of
McKnight and Bravenec, 1216 West Ave.,
Inc.
Represented by: Glenn Deadman, Esq.
S. 509 Main Street
San Antonio, Texas, 78204
3. Interested Third Parties Subject To Joinder:
3a. Bailey Street Properties
Represented by: Law Office of McKnight and Bravenec
405 South Flores
San Antonio, Tx. 78205
3b. Torrabla Properties, LLC
18507 Canoe Brook,
San Antonio, Texas
Office Address:
1626 S.W. Military Dr.
San Antonio, Tx. 78201
Represented by: Unknown
TABLE OF CONTENTS
Identity of Parties and Counsel , 2
Table of Contents .....4
Index of Authorities 5
Statement of the Case 8
Statement of Jurisdiction 10
Statement of Facts 12
Standard Of Review 15
Issues Presented 11
Argument and Authorities 23
Conclusion And Prayer 34
Certificate of Service
Certificate of Compliance
/ . . . .
Appendix
TAB 1: Lis Pendens Speech Regarding 1216 West Ave. 2013-2014
TAB 2: Perfected Notice Of Lis Pendens Concerning Purchase Money Lien
TAB 3: Docketing Statement For Case No. 04-14-00483-CV And Supporting
Exhibits
TAB 4: Warranty Deed From Edward Bravenec To Torralba Properties, LLC.
TAB 5: Releases Of Liens By Texas Community Bank and By J. J. Bravenec and
Sons.
TAB 6: Order To Show Cause Of The 285thJudicial District Court
TAB 7: Documentation Of Post-Stay Trial Proceedings On December 8, 2014.
TAB 8: Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963)
INDEX OF AUTHORITIES
Cases
Airvantage, LLC v. TBANProps. #1, LT.D., 269 S.W.3d 254, 259 (Tex. App.—Dallas 2008,
no pet.)
Alphonso v. Deshotel, All S.W.3d 194 (Tex. App.—El Paso 2013, no pet.) 46 58
Amalfitano v Rosenberg, 428 F Supp 2d 196 (S.D. .N.Y., 2006) (Amalfitano I),
Amalfitano v Rosenberg, 533 F3d 117, 125 (2d Cir., 2008) (Amalfitano II), and
Amalfitano v Rosenberg, 12 NY3d 8 (N.Y. App., 2009) (Amalfitano III).
Anderson v. Law Firm ofShorty, Dooley & Hall, (E.D. La. Feb 17, 2010) affirmed in 393 Fed.
Appx. 214 (5th Cir. Aug. 26, 2010)
Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963)
Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied). 11, 16,
17,22
Barranza Family Limited Partnership v. Levitas, Case No. 13-07-00470-CV (Tex.App. 13th
Dist. - Corpus Christi, 2009) 21,26
Better Bus. Bureau ofMetropolitan Dallas v. BHDFW, Inc., 402 S.W.3d 299 (Tex. App.—
Dallas 2013, pet. denied) 43
Bravenec v. Flores, Case No. 04-11 -00444-CV (Tex. App. - San Antonio, 2013 57, 64
Britton v. Seale, 81 F.3d 602 (5th Cir. 1996) (citing Zuniga)..
Butnaru v. FordMotor Co., 84 S.W.3d 198 (Tex. 2002) 34, 66, 68
Chisholm v. Chisholm,209 S.W.3d 96, 98 (Tex. 2006) (per curiam) 22
Collins v. Tex Mall, L.P.,' 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.)
Criswellv. Ginsberg & Foreman, 843 S.W.2d 304, 306-07 (Tex.App.—Dallas 1992, no
writ)... 28,59,60
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.,
2008) 37,63
Davis v. Huey, 620 S.W.2d 561, 565-66 (Tex. 1981)
Drew v. Unauthorized Practice ofLaw Comm., 970 S.W. 2d 790 , 793 (Tex. App. Austin-
Dallas-1979, no writ.)
3
Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex. App.—Houston [14th Dist]
1971, no writ) 45
Dynamic Publ'g & Distrib. L.L.C. v. Unitec Indus. CenterProp. Owners Ass'n, Inc., 167 S.W.3d
341 (Tex. App.—San Antonio 2005, no pet.)
Emeritus Corp. v. Ofczarzak, 198 S.W.3d 222, 225-26 (Tex. App.- San Antonio 2006,
no pet.)
Farias v. Garza, 426 S,W.3d 808 (Tex. App.—San Antonio 2014,
pet. filed May 6, 2014)...: 14,44,45
Fitzmaurice v. Jones, All S.W.3d 627 (Tex. App.—Houston [14th Dist] 2013, no pet.) 45
Frick v. Total Separation Solutions, LLC, (Tex.App.- Houston [14th Dist.]
Jul. 16,2009) 8
G&R Inv. v. Nance, 588 S.W.2d 804, 806 (Tex. Civ. App.- Houston [14th Dist.] 1979, writ refd
n.r.e.) -. 8
Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ refd n.r.e.)
Goad v Zuehl Airport Flying Community-Owners Association, Inc., Case No. 04-11-00293-CV
(Tex. App.-San Antonio, May 23, 2012) .......42
Group Purchases, Inc. v. Lance Invs., Inc., 685 S.W.2d 729, 731-32 (Tex. App.—Dallas 1985,
writ refd n.r.e.).
Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726 (Tex. 1958) 8
Gulf Coast Investment Corp. v. Brown, 821 S.W.2d 159 (Tex. 1991)
Gulflns. Co. v.Burns Motors, 22 S.W.3d 417, 424 (Tex. 2000)
Gunn v. Minton, 568 U.S. 310 (2013).....
Hansen v. Caffry, 280 A.D.2d 704, 720 N.Y.S.2d 258 (3d Dept. 2001) 34,34
In the Matter ofEnergytec, Inc., —F.3d- Case No. 12-41162 (5th Cir. Dec. 31, 2013)
In re Liberty Trust Co., 130 B.R. 467 (W.D.Tex. 1991)
In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth 2013, orig. proceeding
[mand. pending]) 42
In re M.B.B-Y., No. 04-10-00541-CV, 2011 LEXIS 2520, (Tex. App.—San Antonio, April 6,
2011, no pet.) (mem. op.) '.
InreOlshanFound. Repair Co., LLC, 328 S.W.3d 883, 888 (Tex. 2010)
In re S. W. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) 22
In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 204 (Tex. 2002)
InwoodN. Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987)
Johnson v. Lockhart, 40 S.W. 640 (Tex. 1897)
Kinney v. BCGAtty. Search, Inc., No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at
*15-16 (Tex. App.—Austin, April 11, 2014, n.p.h.) 41
Kittrellv.. CityofRockwell, 526 F.2d 715, 716 (5th Cir. 1976) 33
Kroger Tex. v.Suberu, 216 S.W.3d 788 (Tex. 2006) 26,72
Larry Yorkv. State, 373 S.W. 3d 32 (2012) 23
Manuel v. Spector, 112 S.W.2d 219, 221 (Tex. App.—San Antonio 1986, orig.
proceeding) 36, 64
Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
McKaskey v. McCall, 236 S.W. 432 (Tex. App. -El Paso, 1920)
McKnight andBravenec v. Reliant Financial, Inc. et al, Case No. 2006-CI-15329 18
Merrell Dow Pharm. v. Havner,953 S.W.2d 706, 711 (Tex. 1997)
Mills.v. Green, 159 U.S. 651,653(1895) 62
Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio 1997, writ denied).
Nat 7 Fed'n oftheBlind ofTex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir. 2011) 62
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex. App - 1st
Dist.-Houston2013) 22,46
New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004)
Pebble Beach Prop. Owners'Ass'n v. Sherer, 2 S.W.3d 283 (Tex. App.—San Antonio 1999,pet.
denied).
5
Pilarcikv. Emmons, 966 S.W.2d 474, 478 (Tex. 1998)
Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) : 19,40,42,43
Reno v.ACLU, 521 U.S. 844(1997) '.
Rio Grande H20 Guardian v. Robert Muller Family P 'ship. Ltd., No. 04-13-00441-CV, 2014 ,
WL 309776, at *2 (Tex. App.—San Antonio January 29, 2014, n.pih.) 42
Rocha v. Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio 1983, no
writ) 30,31
Sierra Club v. Andrews County, 418 S.W.3d 711 (Tex. App.—El Paso 2013,
pet. filed March 24, 2014) 38,41,42
State Farm Fire & Casualty Co., v. Gandy, 925 S.W. 2d 696, 707-11 (Tex. 1996)
Teal Trading andDevelopment, LP v. Champee Springs Ranches Property Owners Association, Case
No., 04-12-00623-CV (Tex App.-San Antonio 2014)
Town ofPalm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001) (per curiam)
TravelersIns. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010).... 36,63
Unifund CCR Partners v. Villa, 273 S.W. 3d 385 (Tex. App. - San Antonio, 2008) 24
United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 627 (5th Cir. 2010)
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) \ 58
Walker v. Schion, 420 S.W.3d 454, (Tex. App.—Houston [14th Dist] 2014, n.p.h.) 44
Wayne Harwell Props, v. Pan Am. Logistics Ctr., Inc., 945 S.W.2d 216, 218 (Tex. App. - San
Antonio 1997, writ denied))
Webb v. Glenbrook Owners' Ass 'n. 298 S.W. 3d 374, 384 (Tex. App. - Dallas 2009, no pet.).
Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568, 570 (Tex., 1961)
Yiamouyiannis v. Thompson, 16A S.W.2d 338 (Tex. App.—San Antonio, 1988, writ
denied) 27
Young v. Krantz, 2014 Tex. App. LEXIS 5703 (Tex. App.—Dallas 2014, n.p.h.) 39, 40
Constitutional Provisions, Statutes and Rules
Constitution of the United States. Article I, Section 10, Clause 1 (Contracts Clause) 21
House Comm. on Judiciary, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011) 16
Texas Constitution, art. I, Section 13
Texas Constitution, art V, Section 6 10
Tex. Civ. Prac. & Rem. Code § 16.051 19
Tex. Civ. Prac. & Rem. Code § 27.008 10
Tex. Civ. Prac. & Rem. Code §31.002(a) 24
Tex. Civ. Prac. & Rem. Code Section 51.014 8, 10
Tex. Prop. Code Ann. § 12.008
Tex. Prop. Code Ann. § 202.003(a)
Tex. Gov't Code Section 22.221 10, 15
APPELLANT'S OPENING BRIEF
Appellant Rowland J. Martin files his opening brief. The brief refers to Martin as
"Appellant." Appellees Edward Bravenec and the Law Office of McKnight and Bravenec, will
be referred to by name, or collectively as "plaintiffs" or "Appellees" as they were designated
below. As Appellant seeks affirmative relief on the counterclaims that were'pending when the
appeal was filed, and his pending Petition For Writ of Mandamus and Prohibition was denied,
the brief asserts that the sanctions provisions of the Texas Citizen's Participation Act furnish an
adequate remedy at law to support affirmative relief.
STATEMENT OF THE CASE
Nature of the case. On or about May 13, 2014, Appellees commenced a suit against
Appellant for tortuous interference with contractual relations, based on certain lis pendens
notices affecting a property known as 1216 West Ave., in San Antonio, Texas, and was granted
an ex parte temporary restraining order.. Bravenec's case for tortious interference is in the nature
of a quiet title controversy in which he seeks relief for breach or rescission of title covenants.
Course of proceedings: Appellant filed an answer and counterclaims for legal
malpractice, abuse of process and declaration of purchase money interests in response to
Plaintiffs original petition and application for temporary restraining orders. Thereafter,
Appellant filed a plea to jurisdiction and a motion to dismiss in connection with the hearing set
for July 9, 2014.
Trial Court disposition: The trial court granted Appellees' motion for temporary
injunction with a trial setting of December 8, 2014, and entered orders denying Appellant's pleas
to jurisdiction were entered on orally on July 9, 2014 and in writing on July 17, 2014. A series of
interlocutory appeals were taken on July 9, 2014 and July 18, 2014, in response to orders entered
by the trial court, including the trial court's "Order on Motion To Dismiss" dated July 17, 2014
("dismissal denial order").
ISSUES PRESENTED FOR REVIEW
Issue 1: The Injunction Order Institutes Unconstitutional Treatment of The Interlocutory
Appeal Statute And Automatic Stay Mandate In Section 51.014(b) Of The Texas
Civil Practice And Remedies Code, So As To Restrict Appellant's Common Law
Rights Of Action As Purchase Money Lien Claimant In Derogation Of The Open
Courts Doctrine.
Issue 2: The Trial Court Departed From The Law That Governs Specificity Requirements
For Temporary Injunctions As Set Forth In Tex. R. Civ. P. 683.
Issue 3: The Trial Court Misapplied The Law Governing TCPA Burden Shifting
Procedures For The Processing Of Motions To Dismiss Pursuant Under Section
27.008 Of The Texas Civil Practice And Remedies Code.
10
STATEMENT OF JURISDICTION
The Court has appellate jurisdiction to consider this appeal as originally noticed pursuant
to TEX. CIV. PRAC. & REM. CODE §51.014(A) (4) and (12) as an appeal from the trial court's
interlocutory grant of temporary injunctive relief and from its denial of a motion to dismiss filed
under the Citizens Participation Act, TEX. CIV. PRAC. & REM. CODE § 27.003 (Tab A). See
also TEX. CIV. PRAC. & REM. CODE § 27.008. Due to the a lapse in the trial setting that
disintegrated the injunction, it appears that the Court may lack jurisdiction over the appeal under
Section 51.014(a)(4) insofar as a significant part of the appeal is now moot. Frick v. Total
Separation Solutions, LLC, (Tex.App.- Houston [14th Dist.] Jul. 16, 2009) (per curiam dismissal
of temporary injunction appeal for mootness with order entered dissolving temporary
injunction); G&R Inv. v. Nance, 588 S.W.2d 804, 806 (Tex. Civ. App.- Houston [14th Dist.]
1979, writ refd n.r.e.); Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726
(Tex. 1958). See, Tex. R. Civ. Pro. Rule 683.
11
STATEMENT OF THE FACTS
A. The Interlocutory Appeal Involves A Claim Of Purchase Money Lien Interests
Running With The Land, And A Tortious Interference Case That Has Been
Asserted To Collaterally Attack The Purchase Money Lien.
On May 13, 2014, Appellee Edward Bravenec sued Appellant Rowland Martin for filing
lis pendens notices in Bexar County Deed Records and purchase money pleadings in the 285th
Judicial District Court in a suit for tortious interference with contractual relations relating to a
sale of real property. Appellant asserts for various reasons that the Appellees' case is unfounded.
Farias v. Garza, 426 S.W.3d 808, 820 (Tex. App.—San Antonio 2014, pet. filed May 6, 2014)
(reversing denial of Tex. Civ. Prac. & Rem. Code Section 51.014(a)(12) motion to dismiss); Teal
Trading and Development, LP v. Champee Springs Ranches Property OwnersAssociation, Case No.,
04-12-00623-CV (Tex App. - San Antonio 2014) (estoppels bydeed).1 A lis pendens is a statutorily
authorized notice recorded in the deed records warning all persons that the property is the subject
matter of litigation. Airvantage, LLC. v. TBANProps. #1, LTD., 269 S.W.3d 254, 259 (Tex.
App.—Dallas 2008, no pet.) Under the Texas Property Code, a party to an action involving title
to real property could file a lis pendens notice with the county clerk where the property is
located. Tex. Prop. Code § 12.008. The purpose of the notice of lis pendens is twofold: (1) it
protects the alleged rights of the party filing it, and (2) it puts those interested in the property on
notice of the lawsuit. Collins v. TexMall, LP., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth
2009, no pet.). The effect of a lis pendens remains throughout the appeal of a trial court's
1 "The rationale of the rule [governing on estoppel by deed] is that any description, recital of fact,
or reference to other documents puts the purchaser upon inquiry, and he is bound to follow up this
inquiry, step by step, from one discovery to another and from one instrument to another, until the whole
series of title deeds is exhausted and a complete knowledge of all the matters referred to and affecting the
estate is obtained." Loomis v. Cobb, 159 S.W. 305, 397 (Tex.Civ.App.—El Paso 1913, writ refd). See
also, Wessels v. Rio Bravo Oil Co., 250 S.W.2d 668 (Tex.Civ.App.—Eastland 1952, writ refd) (It is well
settled that "a purchaser is bound by every recital, reference and reservation contained in or fairly
disclosed by any instrument which forms an essential link in the chain of title under which he claims.").
12
judgment. Group Purchases, Inc. v. Lance Invs., Inc., 685 S.W.2d 729, 731-32 (Tex. App.—
Dallas 1985, writ refd n.r.e.).
An accurate valuation of Appellant's total losses can only be ascertained through an
equitable accounting for rents and profits. For example, as set forth in Part B, the face value of
Appellant's purchase money lien in the subject property is $135,000. The value of Appellant's
possessory interest in the subject property as a condominium declarant is at least $297,000 at the
time of his ouster by McKnight and Bravenec in November 2006, based on a letter of credit
Appellant secured from Fisher Enterprises of New York, NY to fund the reorganization plan for
Moroco Ventures. The above stated losses exclude legal expenses and net profits from rents and
contract of sale proceeds directly or indirectly accruing to Bravenec.
Thus, the focus of the interlocutory appeal centers on whether the trial court's
conclusions of law in the context of orders denying dismissal pursuant to the TCPA and granting
temporary injunctive relief were sufficient to release Appellees and their successors in interest
from compliance with restrictive covenants arising from the first and second deeds of trust and
lien agreements which constitute Appellees' chain of title. Torralba Properties, Inc. is a pendent
lite purchaser of record whose acquired the subject property during the pendency of the instant
interlocutory appeal and whose sales proceeds are being held in escrow. As a pendent lite
purchaser under a grant from Appellees, Torralba is accountable with Appellees for the
satisfaction of restrictive covenants that run with the land. Urban Renewal Agency of San
Antonio, Id
B. McKnight and Bravenec Acquired Their Estate By Special Warranty Deed
Subject To Purchase Money Liens And Recorded Prescriptive Rights.
On October 31, 2003, Appellant acquired a lien interest in the subject property by
furnishing the sum of $135,000 to the owners and sellers of the property known as 1216 West
13
Ave, in San Antonio, Texas Roy Ramspeck, et al, as purchase money for a down payment to
enable the entity known as Moroco Ventures, LLC to acquire title to the property in its own
name on behalf of the Appellant's corporate estate. The first deed of trust and first lien
agreement records prescriptive and rights and exceptions to conveyances and warranties
applicable to Appellant's then unrecorded purchase money lien interest. The record of the
proceeding in In re Estate ofKing, Probate Case No. 2001-CI-1263 establishes that McKnight
and Bravenec were attorneys of record for the Appellant and the Estate of King on May 3, 2005.
See, Appendix to In re Rowland J. Martin, Case No. 04-13-00370-CV (Tex. App. - San Antonio,
2014). The instrument of record giving notice of Plaintiffs rights as a third party in relation to
Moroco Ventures, LLC at the time the parties executed the Second Deed Of Trust was the First
Deed of Trust executed on October 31, 2003. Two other instruments effectuating exceptions to
conveyances and warranties applicable to the Second Deed Of Trust are recorded in Book 12237,
Page 1089, ("Order on Motion For Contempt Against Law Office of McKnight and Bravenec"
Bankruptcy Case 06-50829 dated June 20, 2006), and in Book 12426, Page 2234
("Condominium Declaration of Moroco Ventures, LLC Establishing the Deco Village Annex"
dated October 2, 2006). See Docketing Statement Exhibits E and F. The aforementioned
purchase money lien interest and prescriptive rights were and directly touched and concerned the
land are separate and collateral to the rights of redemption that were then held by Appellant's
corporate estate in terms of time, space, original and motivation.
On May 3, 2005, McKnight and Bravenec accepted a second deed of trust and lien
agreement subject to recorded exceptions to conveyances and warranties through Appellant's
corporate estate, Moroco Ventiures, LLC. On October 4, 2006, McKnight and Bravenec
conducted a post-petition foreclosure sale, under color of authority granted by the 57th Judicial
14
District Court while the subject property of Chapter 11 Bankruptcy Estate. McKnight and
Bravenec then proceeded to oust Appellant from the property through a transfer of control to
Bailey Street Properties, Inc., in proceeding in which Bravenec adversely represented Bailey
Street Properties as the plaintiff party in a suit for forceable entry and detainer against Appellant
as the defendant party. On October 3, 2006, the day before the foreclosure, Appellant held a
homestead interest the property and was the beneficial owner of condominium declaration which
together conferred upon him an interest in the nature of an easement by estoppel, in addition to;
his purchase money lien interest and prescriptive rights to an equity of re-entry against Edward
Bravenec.
On October 31, 2006, the 57th Judicial District Court approved a settlement in Case No.
2006-CI-15329 between Plaintiffs McKnight and Bravenec, and Defendants, Reliant Financial,
Inc., et al. The settlement subrogated McKnight and Bravenec to the position of Reliant
Financial, Inc. as the original grantees of the First Deed of Trust. See Docketing Statement,
Exhibit H. On November 1, 2006, the 57th Judicial District Court entered an order denying
intervention and injunctive relief which adopted the finding that a foreclosure took place on
October 3, 2006 in accordance with the trustee's deed recital that "MOROCO VENTURES LLC
has defaulted in the payment and performance of obligations to ALBERT MCKNIGHT and
EDWARD BRAVENEC." Docketing Statement Exhibit I. In 2007, McKnight and Bravenec
transferred the subject property to a jointly owned corporate entity known as 1216 West Ave.,
Inc. On August 10, 2012, the Hon. Leif M. Clark issued a partial judgment in Bankruptcy Case
No. 05-80116 and Adversary Case No. 11-5141 to retroactively confirm Appellant's status as
purchase money creditor based on proceedings in McKnight and v. ReliantFinancial, Inc. et al,
Cause No. 2006-CI-l5329 in 57th Judicial District Court. The order is cited in Appellant's
15
Notice of Apparent Liability For Purchase Money Claims and in his Perfected Notice of Lis
Pendens Recording Purchase Money Lien Claims.
Applying a liberal construction, Bravenec's chain of title shows that his foreclosure
trustee conveyed a special warranty deed subject to restrictive covenants recited in the first and
second deeds of trust and lien agreements, both of which encompass Appellant's Notice of
Apparent Liability For Purchase Money Claims. The latter chain of title evidence indicates
conclusively that the status quo at the time of Appellees' tortious interference suit was based on
actual notice of recorded exceptions to conveyances and warranties, and that the common law
doctrine of estoppel by deed is applicable on that basis to the estate Bravenec conveyed to
Torralba Properties in July 2014.
C. The Rulings In Question Were Adverse To Appellant's Common Law Right To
Assert Purchase Money Lien Claims And To Litigate Legal Malpractice Disputes.
The court proceedings on the Appellees' tortious interference case took place on July 1,
2014, July 9, 2014 and July 17, 2014 and December 8, 2014, and led to two adverse rulings to
Appellant's common law claim of purchase money lien interests - an order denying a motion to
dismiss and an order granting temporary injunctive relief. On appeal, Appellant asserts eight
points of error in support of the assertion that the trial court's temporary injunction order was
unconstitutional as applied, that the temporary injunction order contravened the specificity
requirements of Tex. R. Civ. P. Rule 683, and that the non-dismissal order misapplied the
TCPA's burden shifting procedures.
For standing to prosecute their tortious interference case in chief, Appellees alleged an
injury to Bravenec's interest in a single contract of sale with an unspecified buyer. The injury
was purportedly caused by the anticipated lis pendens abuse. Appellees assert that Bravenec's
injury is precluded by the supposed res judicata effect of the federal district court judgment in
16
Martin v. Grehn, et al, Case No. SA 11-CV-0414-HLH. Throughout their pleadings, Appellees
imply that the res judicata effect of Martin v. Grehn deprives Appellant the opportunity to
litigate purchase money lien claims, but offer no testimony or citations to federal court records to
substantiate their res judicata contentions. The pleadings neither describe nor contain a copy of
the instrument styled as a "Notice ofApparentLiability For Purchase Money Claims, " which
Appellees caused the trial court to cancel the instrument in its original ex parte temporary
restraining order on May 13, 2014. Subsequently, Appellees secured an order to show cause by .
alleging that Appellant committed an act punishable by contempt with the filing of a lis pendens
notice in the docket of their tortious interference case in the 285th Judicial District Court.
Appellees's treatment of the TCPA is presented in the following statement which implies
ambiguously that Appellees are either exempt from the Act, or that the Act was not intended to
cover lis pendens notices as a form of protected speech and litigation arising from real estate
sales transactions: "Martin refers to 'Texas Citizen's Participation Act' pretty much every chance
he gets. This act is inapplicable. The purpose of this act is to safeguard constitutional rights of
persons to speak freely and associate freely ... It is inapplicable to real property suits and simply
has no bearing on this case." Appellees' Motion To Set Hearing Tex. Civ. Prac. Rem, Code
Section 13.005, " dated August 13, 2014, at p. 2 —3.
In opposition to Appellees' claim for tortious interference, Appellant relied on Judge
Clark's order of August 10, 2012 to establish his capacity as a purchase money creditor and
former beneficiary of an attorney client relationship, and on that basis asserted various defenses,
affirmative defenses and objections. It is alleged fundamentally by way of defense that
Appellant's lis pendens filings in 2014 merely enabled the contracting parties to exercise the
rights afforded to them at common law. Appellant also alleged arguably dispositive affirmative
17
defenses based on common law and statutory authority. In particular, it was alleged on July 1,
2014 and July 9, 2014 that the tortious interference claim is both subject to estoppel and is moot
at common law because the lis pendens relief they request is incapable of absolving actual notice
of liability for purchase money claims. It was further alleged on July 9, 2014, July 17, 2014 and
December 8, 2014, pursuant to the Texas Citizens Participation Act, that the tortious interference
case arising from the purported contract of sale was in response to and was based on the exercise
of the right to free speech involving lis pendens notices and the right to petition for redress of
attorney client disputes. Lastly, Appellant objected to the trial court's entry of its temporary
injunction order on July 17, 2014, and to the trial proceedings on December 8, 2014 where
Appellees attempted to prosecute sanctions for discovery violations, both of which proceedings
took place after a timely notice of appeal from the^trial court's order denying Appellant's TCPA
motion to dismiss.
Ultimately, the trial court denied dismissal and granted temporary injunctive relief. The
non-dismissal order reads in its entirety: "On the 9th day of July came to be heard the Motion to
Dismiss filed by Rowland J. Martin. After the evidence and argument of counsel this court finds
the Motion is without merit." The temporary injunction order was entered the same day, and
contains three findings and five decretal clauses, all of which restrict Appellant's common law
privileges and litigation rights. In effect, both orders adoptAppellees' view that the TCPA's stay
provisions are non-self-executing and non-automatic, and that an order for a stay of proceedings
was required in advance in order to compel the trial court and the Appellees to comply with the
provisions of Section 51.014(b) which states "[a]h interlocutory appeal under Subsection (a) ....
stays commencement of a trial in the trial court pending resolution of the appeal." Tex. Civ. Prac.
Rem Code Section 51.014(a).
18
STANDARD OF REVIEW
"To establish a cause of action for tortious interference, a plaintiff must prove that (1) a
contract subject to interference exists, (2) the defendant committed a willful and intentional act
of interference with the contract, (3) the act proximately caused injury, and (4) the plaintiff
sustained actual damages or loss ..." Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,
Ltd., 416 S.W.3d 71, 80 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); Rehak Creative