Rowland Martin, Jr. v. Edward L. Bravenec and 1216 West Ave., Inc.

Case No. 04-14-00483-CV IN THE COURT OF APPEALS FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS -J.'. •V- CJl ^m HZ . 3» as -GD cn —1—if —-i i r^ TJ -~ ->Ttj "^Y^v^ 3C - \ir~~- cn z?3 ROWLAND J. MARTIN, APPELLANT . >> CD CD ><* '.: •;£ 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