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

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ROWLAND J. MARTIN TEXAS COURT OF APPEALS- X>
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Appellant
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FOR THE FOURTH DISTRICT

EDWARD BRAVENEC AND 1216
WEST AVE. INC.
Appellees ) BEXAR COUNTY, TEXAS

APPELLANT'S SUPPLEMENTAL MOTION FOR PANEL REHEARING

TO THE HONORABLE COURT:

Appellant Rowland J. Martin files this, his "Appellant's Supplemental Motion For Panel

Rehearing," pursuant to the Texas Citizens Participation Act and Tex. R. App. P. 33.1, in support

of which the following is shown:

BACKGROUND

By this supplemental motion reserving all prior evidence, authorities, and special

exceptions pursuant to Tex. R. Civ. P. 91, appellant enlarges his motion for rehearing on the

third issue of his appeal to allege that that the trial court abused its discretion in neglecting to

adjudicate certain fundamental jurisdictional defects in appellees' cause of action at the time it

rendered its order denying TCPA dismissal relief. On rehearing, the Court is requested to

enforce fundamental error doctrine as enunciated in Ramsey v. Dunlop, 146 Tex. 196, 205

S.W.2d 979 (1947). See generally, Declaration ofRowland J. Martin, supra at p. 20.

SUPPLEMENTAL STATEMENT OF THE CASE

The grievance from appellant's original motion for rehearing is that appellees failed to

produce transactional evidence disclosing the terms of the contract and specific identities of the

seller and the buyer, and have repeatedly neglected to negate the specifically identified elements

of the purchase money transaction that forms the basis of the lien claim noticed in the lis pendens
notice of record. Coleman v. Prospere, No. 05-13-00068-CV, 2014 WL 4672456 (Tex, App. -

Dallas, 2014) (majority rejects multifarious briefing argument and reverses a no-evidence

summary judgment).1 As further noted in the original motion, the Court's existing judgment

recognizes that appellant is the beneficiary of legal authority for a prima facie defense of

privilege,2 and has produced prima facie evidence supporting a justification based on the power

to prosecute liens and reversionary interests in the subject property,3 and the right to self-

representation to resolve a dispute with a former attorney.4

The evidence ascertainable from the face of the Court's existing judgment preponderates

against the ownership element of the appellees' cause of action, and this factor alone is indicative

1 Rehearing on the first issue is requested under In re IH-10 Colony, Case No. 01-14-00775-CV,
2014 WL 7914874 (Tex. App. - Houston, 2014), a case recognizing that TCPA automatic stay
requirements are applicable to post-stay signings of trial court orders. Rehearing is requested on the
second issue on the theory that appellees cause of action for tortious interference with contractual
relations requests an ultra vires form of relief - in this case a temporary injunction authorizing prior
restraints against future speech - therefore the action is nonjusticiable in nature no less so than the
injunctive relief the Court describes as ultra vires in Markel v. WorldFlight, Inc., 938 S.W.2d 74, 79-81
(Tex.App.-San Antonio 1996, no writ) (treating temporary injunction as unconstitutional prior restraint).
Rehearing is requested on the third issue under the approach to the clear and specific evidence standard
followed in Rio Grande H20 Guardian v. Robert Mutter Family Partnership, Ltd., No. 04-13-00441-
CV, 2014 WL 309776 (Tex. App.—San Antonio January 29, 2014). The thrust of these cases is that
appellant's lis pendens filings enabled contracting parties to exercise rights they already had.
2 Judgment at p. 11; cf, Archer v. Blakemore, 367 S.W. 402 (Tex. App. - Austin, 1963) (deed
cancellation authorized to correct attorney's in-kind compensation at an exorbitant rate for legal services
provided during attorney-client relationship), and James, et al, v. Calkins, 446 S.W.3d 135 (Tex. App. -
Houston [1st Dist.] 2014),); and Cherokee Water, Co. v Advance Oil & Gas, Co., 843 S.W. 2d 132, 135
(Tex. App. - Texarkana 1992, writ den'd) (no independent cause of action to enjoin lis pendens filing
under Texas law;); see also, La Jolla Group II, et al. v. Daniel A. Bruce, et al, 211 Cal.App.4th 461 (Cal.
App. 5th Dist. 2012.
3 Judgment at p. 3 (noting disclaimer of jurisdiction to enforce appellees' final motion for
expunction of appellants notice of lis pendens); cf., Anderson v. Law Firm ofShorty, Dooley & Hall, 393
Fed. Appx. 214 (5th Cir. Aug. 26, 2010) (right of action for mal[practice not precluded under res judicata
doctrine); see also, La Chappelle v. Superior Court ofRiverside County, 2013 WL 1633657 (Cal. App.
4th Dist. 2013) (lis pendens case); and Park 100 Investment Group v Ryan, 180 Cal.App.4th 795 (Cal.
App. 2nd Dist. 2009) (applying collateral estoppel doctrine in anti-SLAPP lis pendens case).
4 Judgment at p. 13 (noticing appellant's "Perfected Notice of Lis Pendens" as evidence for TCPA
purposes); cf., Exparte Shaffer, 649 S.W.2d 300 (Tex. 1983); see also, Gulf Coast Investment Corp. v.
Brown, 821 S.W.2d 159 (Tex. 1991) (suit in a suit litigation arising from wrongful foreclosure by
attorneys); and In re Liberty Trust Co., 130 B.R. 467 (W.D. Tex. 1991) (undischarged attorney of record
held accountable to client).
of the substantial insufficiency of the trial court's order denying dismissal relief. Rio Grande

H20 Guardian v. Robert Muller Family Partnership, Ltd., No. 04-13-00441-CV, 2014 WL

309776 (Tex. App.—San Antonio January 29, 2014). Out of an abundance of caution to

establish that his entitlement to dismissal relief rest on preponderant evidence, however,

appellant supplements the original motion to allege additional evidentiary factors bearing on the

fundamental nature of the trial court's errors, and the viability of his original defenses of

privilege and justification according to HMC Hotels Properties II Ltd. Partnership v. Keystone-

Texas Property Holding Corp., 439 S.W.3d 910, 917 (Tex. 2014).

, Independently and alternatively from appellants first and second issues in the original

motion, the grievance of the supplemental motion addressing appellant's third issue is that

appellees' litigation involves a time barred claim for tortious interference with contractual

relations over four years after a constructive eviction from the subject property in connection

with a post-petition foreclosure that was set aside by the bankruptcy court in May 2006.5 No

matter what label appellees claim to use to allege tort liability in 2014, the accrual in May 2006

of claims in their favor in In re Moroco Ventures, .L.L.C., Bankruptcy Case No. 06-50829 (W.D.

Tex. 2007), and the subsequent adjudication of those same claims in favor of the Chapter 11

debtor, bar claims for tort liability that expired in May 2010 which they could have brought in

2006. Under the circumstances, the argument can be made that the TCPA authorizes review for

fundamental jurisdictional error, including judicial notice of deed record evidence involving

appellee Bravenec's purported transaction with Torralba Properties on July 8, 2014. Id.

Fundamental fairness under the TCPA also demands recognition of free speech interests in the

5 See Bravenec Admissions #13 and #14 in Defendant's Exhibit 16, Admissions By Defendant
Edward Bravenec in Case No. SA 11-CV-414-HLH, March 27, 2011 (acknowledging foreclosure set
aside by bankruptcy court); Vol 2 RR p. 23 at lines 19 and 20 (Bravenec: "I don't remember -1 know we
went to bankruptcy court. I can't say exactly."); see also, Order of Judge David Hittner in Exhibit B-l.
filing of the lis pendens notices in question, and due process interests in equal access to the

judicial process of the state courts and freedom from undue prior restraints. Cf, Schimmel v.

McGregor, 438 S.W.3d 847 (Tex. App. - Houston, [1st. Dist] rehearing overruled Sept. 18,

2014) (anti-slapp decision holding that attorney's statements were "matters of public concern"

justifying TCPA motion to dismiss).

THE FUNDAMENTAL JURISDICTIONAL ERROR

Appellant has good cause to believe that the TCPA can and should be read to authorize

review for fundamental jurisdictional error. The TCPA is considered an anti-SLAPP law,

designed to provide defendants in so-called SLAPP ("Strategic Lawsuits Against Public

Participation") lawsuits the ability to have these suits dismissed early on. House Research Org.,

Bill Analysis, Tex. H.B. 2973, 82nd Leg, R.S. (2011); Senate Research Ctr., Bill Analysis, Tex.

H.B. 2973, 82nd Leg., R.S. (2011). In 2013 the Texas Legislature amended the TCPA to

incorporate automatic stay requirements and provisions for judicial review of defenses asserted

by moving parties. See e,g., Tex. Civ Prac. & Rem Code, Sections 27.005(l)(a) and

51.014(a)(12). The courts of appeals assume that when enacting a statute, the Legislature is

aware of the background law and acted with reference to it. In re Allen, 366 S.W.3d 696, 706

(Tex.2012). The ;legislative history here shows that the sponsors of the amendments, including

Sen. Rodney Ellis,6 gathered hearing testimony from several witnesses who considered it

6 One press account documented the following statement by a sponsor: "These SLAPP suits are the
bully's weapon against democracy," said Sen. Rodney Ellis, D-Houston, one of the sponsors of the bill.
"Across Texas and the nation, the powerful are using our courts — and the threat of high legal costs and
bankruptcy — to silence critics and shield wrong-doers from scrutiny. HB 2973 evens the playing field
and ensures the little guy won't be put in the poor house for standing up for what he believes in."
http://farmingtonhills.legalexaminer.com/miscellaneous/loser-pays-governor-signs-antislapp-law-
hypocrisy-in-action/
necessary to deter strategic litigation against public participation in response to speech about

abusive real estate transactions.7

In theory, the process due at the time the trial court entered its order denying TCPA

dismissal relief on July 9, 2014 and July 17, 2014 was action by that court to effect judicial

implementation of the 2013 amendments to the TCPA. In practice, the trial court's process

revived and broadened the split that the amendments were adopted to bridge. The trial court did

this by abstaining from enforcement on the first prong of the TCPA's burden shifting procedure

on July 9, 2014, and arguably by departing thereafter from compliance with automatic stay

requirements on July 17, 2014. The error to implement the TCPA is fundamental in two

important respects. First, the trial court's unqualified conclusion that appellant's motion to

dismiss lacked merit adversely affects the interest of the public generally, as that interest is

declared both by the TCPA, and by the Court's ruling on the first prong of the TCPA's burden

shifting procedure. Second, the Bravenec admissions in Martin v. Grehn and the Torralba deed

support importantjurisdictional fact issues in regard to whether, as of July 8, 2014, appellees'

had proper standing to invoke the trial court's jurisdiction. Ramsey justifies notice of these

subissues because each one bear directly on whether the appellees satisfied the TCPA's clear and

specific evidence standard, and tend to substantiate appellant's defenses in the trial court and in

his appellate briefs that the trial court erred in denying TCPA dismissal relief.8

7 According to press reports, witnesses such as Attorney Laura Prather testified that the bill
would create a mechanism to deter meritless lawsuits at the outset of a proceeding and would
help alleviateburdens on the court system. Referring to one specific categoryof meritless
lawsuits, Author Carla Main testified that a real estate developer filed half a dozen lawsuits naming
her, her publisherand others as defendants, after she wrotea book about eminentdomain. Janet Ahmad of
San Antonio, president of Home Owners for Better Building, testified that KB Homes sued her for
racketeering after she organized protests against the builder.
8 As a general rule, Tex. R. App. P. 38.1(h) requires that appellate briefs "containa clear and
concise argument for the contentions made, with appropriate citations to authorities and to the record."
Tex. R. App. P. 38.1(h). While it is well settled that issues on appeal can be waived if an appellant fails
 The filing of this supplemental motion also responds to a circumstantial disparity in

treatment under the TCPA's rules of evidence that impairs appellant's ability to perfect the

interlocutory appeal. See, Tex. Civ. Prac. & Rem. Code, Section 27.006(a). On one hand, in the

Court's orders instructing appellant on the terms for filing his amended reply brief dated March

28, 2015, April 8, 2015, and May 11, 2015, the Court has previously declined to notice the

Torralba deed evidence attesting to a purported transfer of the subject property, and for that

reasons has not had the occasion to administer fundamental error doctrine. On the other hand, the

Court's judgment sua sponte applies the TCPA rules of evidence to notice of appellees' motion

for contempt as pleading evidence that supports their case on remand, though the motion for

contempt was never considered on the merits at the hearing on July 9, 2014, and though the

motion apparently involves evidence that the Court has generally declined to consider. The

resulting disparity jeopardizes appellant's protected liberty and property interests in the specific

context of appellees' attempts to prosecute issues about criminal contempt. See, Exhibit D-l.

The disadvantage from the latter disparity is greatly compounded by the Court's related

decision to apply rules against multifarious briefs to exclude significant parts of appellant's

opening andreply briefs. 9In response to the judgment, appellant's original motion for rehearing

takes exception to the styling of the judgment as an affirmance on the grounds that preponderant

to support his or her contentions by citations to authority, or presents a multifarious argument, City ofSan
Antonio v. Rodriguez, 856 S.W.2d 552, 555 n. 2 (Tex.App.-San Antonio 1993, writ denied), the right to
de novo review should be protected where a litigant has good cause to claim substantive immunities that
are consistent with the statutory scheme. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d
423, 427 (Tex.2004).
9 Specifically, the judgment overruled appellant's first issue requesting enforcement of the TCPA's
automatic stay based on its reading of rules of procedure in Tex. R. App. P. 27.1.. Judgment at p. 5. The
Court overruled the second issue, noting among other things that reference to deed transfer from appellee
Bravenec to Torralba Properties on July 8, 2014 "... relies on evidence outside our appellate record. This
court may not consider matters outside the appellate record." Judgment at p.9, fn. 4. The Court overruled
the third issue, despite ambiguities in appellees' brief that required the Court to speculate that "[t]he
Property is owned by one or both appellees," based on its finding under the TCPA's second prong that
appellees offered "clear and specific evidence to substantiate each element of their cause of action."
Judgment at p. 9.
evidence of appellant's legal authority, power and right to engage in the filing of lis pendens

notices is ascertainable from the face of the Court's judgment. Under the circumstances, a

rehearing without reference to jurisdictional fact issues about the time barred status of the

appellees' claim and about the Torrlaba deed does not afford appellant an adequate remedy at

law. Cf, In re IH-10 Colony, Id.

JURISDICTIONAL STANDARDS

Ordinarily, Texas appellate courts have jurisdiction only over final judgments. Rusk State

Hosp. v. Black, 392 S.W. 3d 88 (Tex. 2010). A court of appeals has no discretion to declare the

law on this point, for the same reason that a court of appeals has no authority to consider issues

that fall outside the scope of subject matter that is statutorily authorized for interlocutory appeal,

In re Lipsky, 411 S.W.3d 530 (Tex. App. - Fort Worth, 2013), and issues which have not

properly been raised by the parties in accordance with the governing rules, Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 577 (Tex.2006).

At the same time, the appellate courts are under a statutory duty to effectuate the

purposes of the TCPA statute in an interlocutory appeal from an order denying a covered motion

to dismiss. In re 1-10 Colony, Id. It is now well settled that the 2013 amendments to the TCPA

provide for an interlocutory appeal from an order that denies a TCPA motion to dismiss. Rio

Grande H20 Guardian, Id. The statutory provisions enacted in 2013 reflect the legislative intent

to bridge a split in authority that had developed in the courts of appeals concerning whether a

right of interlocutory appeal had been created by Section 27.008. See e.g., Kinney v. BCG

Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3 (Tex. App.—Austin Apr.

11, 2014), pet. for review granted in Case No. 13-0043 (Tex. January 9, 2014). Further, the

TCPA specifically states that "[t]his chapter does not abrogate or lessen any other defense,

remedy, immunity, or privilege available under other constitutional, statutory, case, or common
law or rule provisions." Tex. Civ. Prac. & Rem, Code, Sec. 27.011. Thus, there is nothing in the

statute's text or legislative history to indicate that the Legislature intended the 2013 amendments

to preclude interlocutory review of fundamental jurisdictional errors. Cf, In re 1-10 Colony, Id.

As a general rule, fundamental error exists in those instances in which error directly and

adversely affects the interest of the public generally, as that interest is declared by the statutes or

Constitution of Texas, or instances in which the record affirmatively and conclusively shows that

the court rendering the judgment was without jurisdiction of the subject matter. Ramsey v.

Dunlop, Id. Since Ramsey, appellate courts have recognized fundamental error when the record

shows on its face that the court lacked jurisdiction. See McCauley v. Consolidated Underwriters,

157 Tex. 475, 304 S.W.2d 265, 266 (1957)(per curiam) (concluding error is fundamental when

the record shows a jurisdictional defect), and in a few other limited circumstances. In re L.M.I.,

119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve issue for appellate review, including

constitutional error, party must present to trial court timely request, motion, or objection, state

specific grounds therefor, and obtain ruling). Included among the categories of subject matter

that can be raised for the first time on appeal are incidental issues where the proponent of a "no

evidence" cause of action fails to negate the specifically identified elements of the defendants

party's defense or affirmative defense, In re King's Estate, 150 Tex. 662, 244 S.W.2d 660

(1951), and where a party's standing to invoke a trial court's jurisdiction is challenged, Tex.

Ass'n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440, 445-46 (Tex. 1993),.

Regarding the matter of standing, it is beyond question that standing is an essential

element of subject matter jurisdiction. Tex. Ass'n ofBus., Id. In Texas, the standing doctrine

requires that (1) there be "a real controversy between the parties," and (2) that real controversy

"will be actually determined by the judicial declaration sought." Nootsie, Ltd. v. Williamson
County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) "The issue of standing focuses on

whether a party has a sufficient relationship with the lawsuit so as to have a 'justiciable interest'

in its outcome." Austin Nursing Ctr. v. Lovato, 111 S.W.3d 845, 848 (Tex. 2005). "The

determination of whether a plaintiff possesses standing to assert a particular claim depends on

the facts pleaded and the cause of action asserted." Everett v. TK-Taito, L.L.C., 178 S.W.3d 844,

853 (Tex. App.-Fort Worth 2005, no pet.). See also M.D. Anderson Cancer Ctr. v. Novak, 52

S.W.3d 704, 707-08 (Tex. 2001) (analyzing standing in the context of asserted claim). Standing

must exist at the time a plaintiff files suit; if the plaintiff lacks standing at the time of filing, the

case must be dismissed, even if the plaintiff later acquires an interest sufficient to support

standing. Doran v. ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 WL 451879, at *2 (Tex.

App.-Dallas Feb. 21, 2008, no pet.) (mem. op.); Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 703

(Tex. App.-Fort Worth 2006, pet. denied). Standing doctrine also requires a controversy to

continue to exist between the parties at every stage of the legal proceedings, including the

appeal. City of Dallas v. Woodfield, 305 S.W.3d 412, 416 (Tex. App.-Dallas 2010, no pet.). In

summary, the requirements for fundamental error review are arguably met where the subject

matter of the alleged error satisfies Ramsey's common law criteria, subject to the requirement of

a timely request, objection, or motion, and compliance with the rules of procedure and evidence

for presentation of the error on appeal. See, Coleman v. Prospere, No. 05-13-00068-CV, 2014

WL 4672456 (Tex, App. - Dallas, 2014) (majority rejects application of rule against

multifarious briefing argument and reverses a no-evidence summary judgment).

The process employed by the trial court broadened rather than bridged the split in

authority that prompted the Legislature to enact the 2013 amendments. On guiding principles for

the preservation of such errors, Tex. R. App. P. Rule 33.1 provides in pertinent part:
 (a) In General. As a prerequisite to presenting a complaint for appellate review, the
record must show that:(l) the complaint was made to the trial court by a timely request,
objection, or motion that:(A) stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context; and(B) complied
with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas
Rules of Civil or Appellate Procedure.

Tex. R. App. P. 33.1, Id. Here, it leads to an unreasonable and absurd result to assume that the

Legislature intended to exclude fundamental jurisdictional error from the categories of subject

matter that qualify for interlocutory review pursuant Section 51.014(a)(12), or to conclude that

appellant neglected to take steps to preserve the fundamental jurisdictional errors alleged.

Appellant raised timely constitutional and jurisdictional objections in the trial court

which cited the risk that an abuse of the trial court's contempt process might occur, Vol 3 RR 4 -

6 and 11-13, and the trial court sustained the objection in part, and denied it in part by revising

a part of the proposed terms of the temporary injunction order. Vol 3 RR 11 13 - 14. Appellant

preserved error on the part of the order that overruled his objections in various notices and

supplemental notices of appeal and in both amended appellate briefs. Under the circumstances,

the rule against multifarious briefs is not the least restrictive alternative for orderly

administration of TCPA legislative policy objectives. A multifarious brief by a moving party for

TCPA relief should not absolve a culpable non-moving party to evade accountability. The least

restrictive alternative for effectuating that purpose on the facts of this case, compared to the latter

alternative, is to conduct de novo review of appellant's privilege and justification defenses on

rehearing under the doctrine authorized in Ramsey v. Dunlop, Id., and to take judicial notice of

the Torralba deed as evidence justifying dismissal under Rio Grande H20 Guardian, Id.

Stanford v. Texas, 379 U.S. 476 (1965).

10
 ARGUMENT AND AUTHORITIES

A. The TCPA's First Prong: Fundamental Jurisdictional Errors Distorted The Trial
Court's Notice Of Appellant's Exercise Of The Right To Free Speech

The trial court's error in administering the first prong of the TCPA's burden shifting

procedure and the automatic stay requirements supports review on rehearing under Ramsey.

Contrary to Ramsey, the trial court disposed of appellant's TCPA motion to dismiss, and granted

appellees' motion for temporary injunction, without reference to guiding principles, see In re

IH-10 Colony, Id., and without reference to specifically identified facts in appellant's lis

pendens notice showing an advance of $135,000 to Roy Ramspeck to enable Moroco Ventures,

LLC to purchase the subject property for $384,500 in 2003, and without respect to the filing of

lis pendens notices and similar documents expressing a viewpoint opposed to the federal district

court's choice of law in Martin v. Grhen.10

On rehearing for fundamental error, appellant supplements the original motion to contest

the trial court's deference to appellees' mischaracterization of dicta in Martin v. Grehn, et al,

Case No. SA ll-CV-0414 (W.D. Tex. 2013), and related criticism toward the use of lis pendens

filings to express viewpoints on matters of public concern. Cf, Cortez v. Johnston, 378 S.W.3d

468 (Tex. App.—Texarkana 2012, pet. denied) (conduct of the state judiciary constitutes a

matter of public concern). The trial court's order denying TCPA dismissal relief, among other

things, ignores the presence of a substantial and material TCPA fact issue about speech on

fundamental matters of public concern. Schimmel v. McGregor, Id. In particular, the trial court's

order poses a direct conflict with the statutory mandate of the Bankruptcy Abuse Prevention And

10 But see, Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 (5th Cir. 2006) ("To determine the
preclusive effect of a state court judgment in a federal action, federal courts must apply the law of the
state from which the judgment emerged.") The governing law in this case is arguably Larry York v. State
of Texas, 373 S.W. 3d 32 (Tex. 2012). Invoking state law on point in a lis pendens filing demonstrates the
claimant's intent to enforce the applicable law, not an intent to engage in tortious conduct. Cf, La
Chappelle v. Superior Court ofRiverside County, Id. at fn. 2.

11
Consumer Protection Act (BAPCPA) directing the Small Business Administration to" study and

report to Congress on: (1) the factors that cause small businesses to become debtors in

bankruptcy; and (2) how Federal bankruptcy laws can be made more efficient in assisting small

businesses to retain their viability." 11 US.C. 308. Section 308 defines appellant's speech in

Martin v. Grehn, about bankruptcy conditions unfavorable to small business participation, as a

matter of public concern per se. cf., Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (Fifth

Circuit choice of law is nonbinding). According to Farias v. Garza, 426 S.W.3d 808 (Tex.

App.—San Antonio 2014, pet. filed May 6, 2014), and persuasive authority in Schimmel v.

McGregor, the construction most consistent with the TCPA's First Amendment rationale is one

that treats the lis pendens filings in question as protected speech on a matter of public concern, as

well as a privileged communication in a judicial proceeding covered by James v. Caulkins, Id.

B. The TCPA's Second Prong: Fundamental Jurisdictional Error Distorted The Trial
Court's Notice of The Nonjusticiability Of The Appellees' Prima Facie Case

The threshold requirements for applying Ramsey are met by appellant arguments under

the TCPA's second prong. The TCPA directs the courts to inquire into "whether the record

contains a minimum quantum of clear and specific evidence that, unaided by inferences, would

establish each essential element of the claim in question if no contrary evidence is offered." Rio

Grande H20 Guardian, Id. Appellant's assertion in the trial court and on appeal that the

appellees' cause of action is functionally moot and insufficient under the clear and specific

evidence standard, has direct support in the persuasive case law authority on point.

In Alphonso v. Deshotel, All S.W.3d 194, (Tex. App. - El Paso, 2013), a plaintiff

contended that a defendant's statement about his role in an alleged misappropriation of funds

was false. According to the plaintiff, the evidence of falsity consisted of affidavit evidence

showing that he did not misappropriate the funds in question. The court of appeals concluded

12
that the dispositive factors were that the plaintiff's affidavit failed to deny the alleged

misappropriation funds, and that a refusal to admit liability or wrongdoing for an act is not

synonymous with the denial of the act's occurrence. Id. The court of appeals noted that because

"a civil defendant enjoys the benefit of a presumption that he spoke the truth" in a defamation

case, a non-movant must satisfy a heightened burden of proof under the clear and specific

standard to prevent dismissal:.

The requirement of convincing clarity reflects the [Legislature's] desire to protect
defendants from being held liable on barely sufficient evidence and requires courts to
resolve doubtful cases in favor of the defendants ... This is further reflected in the
Legislature's pronouncement that the Act is to 'be construed liberally to effectuate its
purpose and intent fully.' Tex. Civ. Prac. & Rem.Code Ann. § 27.01 l(b)(West
Supp.2013). Alphonso's testimony is simply not enough to overcome this presumption
and demonstrate by clear and specific evidence a prima facie case that Bishop Deshotel's
statement is, in fact, false."

Id. (brackets in original). Schimmel v. McGregor, Id., follows essentially the same reasoning.

The references to the fallacy of ignoratio elenche argument that the Alphonso court used

to differentiate between an unqualified denial of responsibility for misappropriated funds, on one

hand, and a settlement agreement with a sentence saying there was "no admission of any liability

or wrongdoing," on the other, provides a fitting framework for analysis of appellee Bravenec's

ignoratio elenche testimony in this case. Analogous to the presumption of truth in Alphonso, the

facts here involve a privileged communication, as adjudged by the Court's original ruling, as to

which Bravenec's ignoratio elenche testimony is "barely sufficient" and lacking in "convincing

clarity" to demonstrate clear and specific evidence of a prima facie case.

Regarding appellees' first element, their entire cause of action - both as filed on May 13,

2014 and as amended on July 8, 2014 - is reviewable in substance as a claim for relief from a

breach of second deed of trust covenants. It is clear from the case law authority on res judicata

cited by appellees themselves that the expiration of the limitations period specified for the claim

13
that accrued in May 2010 bars any issue arising from the second deed of trust that appellees

could have asserted following McKnight and Bravenec's foreclosure in May 2006 and following

their constructive eviction from the property in 2006 by order of the bankruptcy court.

Regarding the second and third elements, Bravenec's testimony alleging conduct is

inconsistent with federal court and probate court judgments have res judicata effect is also

"barely sufficient" and lacking in "convincing clarity." In short, Bravenec failed to specifically

allege the identity of the contracting parties by a preponderance of the evidence has potentially

dispositive. As a result, it is not clear that the contract that was supposed to exist on May 13,

2014 is cognizable as evidence supporting the amended cause of action appellees filed on July 8,

2014; and the filing of the Torralba deed on July 8, 2014 is not specific evidence of a contract of

sale sufficient to support the appellees' action at the time it was originally filed on May 13, 2014.

Appellee motion for contempt is also unsupported by corroborating evidence for its assertion in

paragraph 18 that "Rowland J. Martin Jr. violated the Temporary Restrinaing Order by filing a

document with the Bexar County Clerk Deed records Office that relates to the Plaintiffs and the

real property ..." See, Exhibit D-l.

Regarding the fourth element, Appellees have also failed to prove by reference to

Bravenec's testimony that the evidence of record negates the specifically identified elements of

appellant's live purchase money lien claim. Similarly, the probate court's order on March 19,

2014 cannot be read as a final disposition of the purchase money interest appellant asserts as a

putative judgment creditor of the appellees, since the probate court would have framed its ruling

in terms of the absence a property interest held by the undersigned appellant, and not in terms of

the absence of an ownership interest in the subject property held by the Estate of King, if the

order was intended to preclude claims arising out of appellant's estate as a unliquidated judgment

14
creditor of the appellees. Obviously, the federal court's judgment cannot be read to have res

judicata effect, if the court in question issued an order expressly declaring its lack of jurisdiction

on the matter in controversy. Nonetheless, appellees relied exclusively, albeit erroneously, on

Case No. SA 11 -CV- 0414 as the source of their evidence at the hearing on July 9, 2014. Vol 2.

RR at p. 4 (exhibit lists).

The Torrabla deed directly aids the Court's TCPA jurisdiction to effectuate the purposes

of the 20213 amendments in authorizing opportunities to secure a dismissal of SLAPP litigation

in an interlocutory appeal. In obedience to the verbatim text of footnote 4 of the Court's existing

judgment, appellant attaches overriding significance to the Court's use of a disjunctive clause

with the word "or" to frame the finding that "[t]he Property is owned by one or both appellees."

The use of a disjunctive clause in this context signifies that appellees' ownership interests in the

subject property cannot be determined with clarity and specificity from the evidence of record.

See e.g. Vol 2 RR 11 lines 11 -14 ("Mr. Deadman: I believe that it's One For Autism. Mr.

Bravenec: "I think the guy's name is —") This material ambiguity in the text of the existing

record is fully consistent with appellant's allegation that appellees failed to satisfy the clear and

specific evidence standard. If Bravenec disclaimed ownership of the property on July 8, 2014 by

filing the Torralba deed, it is not clear what controversy there could be involving him on July 9,

2014 to be determined by the orders and judgment his cause of action purports to request. And, if

Bravenec no longer owned the property on July 9, 2014, there was no specific governmental

interest of which he was an intended beneficiary with which to justify the imposition of prior

restraints on future pre-trial speech as occurred on July 17, 2014.

Under the circumstances, the Court's use of a disjunctive clause to frame a core finding

denotes that doubt exists about the meaning of Bravenec's testimony on the question of who has

15
the superior claim of ownership to the subject property. The 2013 amendments are designed to

protect moving parties in borderline fact situations such as this. Applying the intent of the 2013

amendment, appellees lacked constitutional and prudential standing when they filed the case, and

the ownership facts that have to be shown to sustain each element of their prima facie case are

neither clear nor specific according to the verbatim text of the existing judgment. Therefore,

appellees' evidence does not pass muster under Alphonso v. Deshotel, Id.

C. The TCPA's Second Prong: Fundamental Jurisdictional Errors Distorted The Trial
Court's Notice Of Appellant's Defenses Based On Privilege And Justification.

Lastly, the threshold requirements for applying Ramsey are met by the circumstances of

the appeal relating specifically to appellant's defenses under the TCPA's second prong. Section

27.005(l)(a) requires a reviewing court to consider defenses asserted by a moving party. In Rio

Grande H20 Guardian, the Court sustained a motion to dismiss where the appellant established

prima facie legal authority, power and right to litigate the matters forming the basis of the

controversy in that case. Id. This reasoning has direct bearing on the dispositive effect of the

privilege and justification defenses that appellant asserted in the trial court and on appeal.

The Court's existing judgment, analogous to the ruling in Rio Grande H20 Guardian,

correctly concludes that the judicial proceeding privilege extends to the filing of the lis pendens

notices. On this point, Texas law holds that publications made in the course of judicial and

quasi-judicial proceedings are absolutely privileged. Absolutely privileged "mean[s] that any

statement made in the trial of any case, by anyone, cannot constitute the basis for a defamation

action, or any other action." Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex. App. 1996, writ

denied) {citing James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam); Reagan v.

Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942)). It is said that the judicial proceedings

privilege is "tantamount to immunity," and, where there is an absolute privilege, no civil action

16
in damages for oral or written communications will lie, "even though the language is false and

uttered or published with express malice." Id.n The Texas Supreme Court explained the reason

for this approach in Kinney v. BCG AttorneySearch, Inc., Case No. 13-0043, supra, at p. 17:

"Given the inherently contextual nature of [tortious] speech, even the most narrowly crafted of

injunctions risks enjoining protected speech because the same statement made at a different time

and in a different context may no longer be actionable. Untrue statements may later become true;

unprivileged statements may later become privileged." Id.

The Court's existing judgment supports the application of the Kinney principle to

appellant's prima facie justification defense. The Court's existing judgment states the conclusion

of law that the U.S. District Court for the Western District of Texas lacked jurisdiction to issue a

prior judgment precluding the assertion of lien interests in the subject property as a creditor of

the Estate of King and of Moroco Ventures, LLC. Judgment at p. 11. The judgment notices

Defendant's Exhibit #7 from the hearing on July 9, 2014, the "Perfected Notice Of Lis Pendens

Regarding Purchase Money Lien Claims in Case No. 2014-CI-07664," as evidence bearing on

the transactional justification for the lis pendens filing. Judgment at p. 3.12 These aspects of the

1' The scope of the absolute privilegeextends to all statements made in the course of the
proceeding, whether made by the judges, jurors, counsel, parties, or witnesses, and attaches to all aspects
of the proceeding, including statements made in open court, hearings, depositions, affidavits, and any
pleadings or other papers in the case. DaystarResidential, Inc. v. Collmer, 176 S.W.3d 24, 27 (Tex. App.
2004, pet. denied); Lane v. Port Terminal R.R. Ass'n, 821 S.W.2d 623, 625 (Tex. App. 1991, writ
denied). The privilege extends even to statements made in contemplation of, and preliminary to, judicial
proceedings, Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App. 2001, no pet.), and applies to out-of-
court communications, as long as "the out-of-court communication ... bear[s] some relationship to the
proceeding and [is] in furtherance of the attorney's representation." Hill v. Herald-Post Publ'g Co., 877
S.W.2d 774, 782 (Tex. App. 1994, writ granted).
12 From the lis pendens evidence referenced in the Court's judgment, one can also ascertain with
certainty the time of the purchase money transaction between appellant and the closing agents for Roy
Ramspeck in 2003; the priority status accorded to the transaction over secondary lien interests due to
appellant's privity with the seller Roy Ramspeck; the origin of the purchase money from appellant's
personal estate; and the motivation for the transaction in shielding liabilities incurred by Moroco
Ventures, LLC. Judgment at p. 15

17
Court's existing judgment are consistent with the law of the case. Prior to 2015, the U.S. District

Court for the Southern District of Texas denied appellee Bravenec's motion to dismiss in Martin

v. Grehn in 2011 in his order noticing Bravenec's constructive eviction in or about May 2006.

See, Order of Judge David Hittner in Exhibit B-l. The U.S. Bankruptcy Court acknowledged

appellant's purchase money line interest in 2012. ExhibitB-2. More recently, the 150th District

Court upheld appellant's right to self-representation under Ex parte Shaffer, 649 S.W.2d 300

(Tex. 1983) in its order denying disqualification on May 7, 2015. Exhibit B-3. In summary, the

judgment of this Court and the orders of other federal and state courts that form the law of the

case, all essentially declare appellant's power to litigate as a creditor, as well as his right of

action to litigate on the terms that were extended to the attorney in Schimmel v. McGregor, Id.

PRAYER FOR RELIEF

The law of the case and the record evidence as described in the Court's existing judgment

preponderate in favor of the conclusion that a fundamental jurisdictional error occurred both in

law and in fact when the trial court refused to grant dismissal relief and enforce automatic stay

requirements. The limitations period began to run in 2006 on the claim for tort liability that

appellees assert here, and the filing of the Torralba deed on July 8, 2014 extinguished whatever

standing remained in appellees to a claim tort liability on July 9, 2014. Applying strict scrutiny to

appellant's lis pendens speech due to matters of public concern it implicates, a court can readily

disregard allegations that appellant made threats in probate court to file new notices, and that the

In addition, appellant relies on pleading evidence tendered to the trial court on July 9, 2014 to
contend that appellee Bravenec an interest in the subject property while representing appellant in Probate
Case No. 2001-PC-1263, that Bravenec's law firm neglected to correct mistakes by a private tax collector,
the Law Firm of Linebarger, Goggan, Blair and Sampson, prior to its withdrawal from the litigation in
2005, and that the value of the purchase money security interest appellees appropriated in 2006, by
foreclosing a second lien against Moroco Ventures, LLC, far exceeds the value of the legal services they
actually provided. Cf, Avila v. Larrea, 394 S.W.3d 646 (Tex. App.-Dallas 2012, pet. denied).

18
filing of a notice in the trial court's docket injured appellees, since both refer to the exercisevof

the protected privileges noticed in the Court's existing judgment. James v. Caulkins, Id.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court grant relief

in all things, for such other relief both in law and in equity as he may be justly entitled. Out of an

abundance of caution to perfect the TCPA's substantive immunities, the Court is specifically

requested to treat the instant supplemental motion as including a contingent request for further

proceedings on the Court's order of April 8, 2015, or alternatively, for treating the instant

interlocutory appeal as a contingent petition for leave to prosecute the requested relief through an

original proceeding for mandamus relief.

Dated: June 3 2015 Respectfully Submitted,

rowland J. Marthi,
951 Lombrano
San Antonio, Tx 78207
(210) 323-3849

19
 DECLARATION OF ROWLAND J. MARTIN

I, Rowland J. Martin, affirm under penalty of perjury that the following statements are
true:

I affirm that Edward Bravenec conducted a post-petition foreclosure sale under a second
deed of trust secured by the property known as 1216 West Ave., San Antonio, Texas, which was
granted by Moroco Ventures, LLC in May of 2006. The Bankruptcy Court for the Western
District of Texas set aside the sale by an order issued on or about June 19, 2006, thus
constructivelyevicting McKnight and Bravenec in 2006. To the best of my knowledge, the
limitations period for any tort claim they could assert arising out of the second deed of trust
beganto run in 2006. In fact, McKnight and Bravenec did assert claims for contempt against me
arising out that event, but their motion for contempt was denied by the bankruptcy court, and
they never appealed the denial to the Federal District Court.

I deny that I made threats to engaged in tortious conduct in the Bexar County Probate
Court #1 on March 19, 2014. The statement that I specifically recall making was to the effect
that Bravenec's motion to expungereferenced only the notice of lis pendens that I filed on
December 3, 2013. The probate court's order purports to expunge two notices, including one that
was not referenced to the best of my knowledge in Bravenec's motion.

I deny that I filed a notice of lis pendens in Bexar County Deed Records after the 150th
District Court entered its Temporary Restraining Orderon May 13, 2014. The lis pendens I filed
after May 13, 2014 was in the docket of the Case No. 2014-CI-07644.

Lastly, I deny that I was aware of the identity of Torralba Properties as the transferee of
record of the subject property according to the deed filed on July 8, 2014.

Dated: June 3, 2015 Respectfully Submitted,

Rowland J.
951 Lombrano"
San Antonio, Tx 78207
(210)323-3849

20
 CERTIFICATE OF SERVICE

I mailed a copy of this "Appellant's Supplemental Motion For Rehearing," to Attorney

Glenn Deadman on June 3, 2015.

Rowland J. M

21
 EXHIBITS

A-l Order On Motion To Dismiss in Case No. 2014-CI-07644

A-2 Legislative History of the TCPA's 2013 Amendments

B-1 Order Denying Defendant's Motion To Dismiss of U.S. District Judge David Hittner in
Case No. SA 11-CV-0414 .

B-2 Amended Order Reopening Bankruptcy Case in Bankruptcy Case No. 06-80116

B-3 Order Denying Motion For Disqualification in 150th District Court Case No. 2015-CI-
04779

C-1 Defendant Edward Bravenec's Responses To Requests For Admissions dated March 27,
2011 in Case No. SA 11 - CV- 0414

C-2 Temporary Restraining Order dated May 13, 2014 in Case No. 2014-CI-07644

D-1 Motion For Enforcement And Contempt dated June 11, 2014 in Case No. 2014-CI-07644

D-2 Warranty Deed With Vendor's Lien dated July 8, 2014

D-3 Temporary Injunction Order dated July 17, 2014 in Case No. 2014-CI-07644

22
A

23
 CAUSE NO: 2014-CI-07644

EDWARD BRAVENEC AND 1216 § IN THE DISTRICT COURT
WEST AVE., INC. §
§
VS. § 285th JUDICIAL DISTRICT
§
ROWLAND MARTIN, JR. §
§ BEXAR COUNTY, TEXAS
-§
ROWLAND MARTIN, JR. §
§
VS. §

EDWARD BRAVENEC, AND THE LAW §
OFFICE OF MCKNIGHT AND BRAVENEC §

ORDER ON MOTION TO DISMISS

On the 9* day of July 2014came on to be heard the Motion to Dismiss filed by Rowland

J Martin, Jr. After hearing the evidence and argument of counsel this court finds the Motion is

without merit.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss

filed by Rowland J. Martin Jr is DENIED.

SIGNED this /7 day of
•^ ,2014.

Honorable Judge Solomon Casseb TJI
B

24
 BILL ANALYSIS

Senate Research Center H.B. 2973
82R18255 CAE-D By: Hunter et al. (Ellis)
State Affairs
5/10/2011
Engrossed

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

Citizen participation is the heart of our democracy. Whether petitioning the government, writing
a traditional news article, or commenting on the quality of a business, involvement of citizens in
the exchange of idea benefits our society.

Yet frivolous lawsuits aimed at silencing those involved in these activities are becoming more
common, and are a threat to the growth of our democracy. The Internet age has created a more
permanent and searchable record of public participation as citizen participation in democracy
grows through self-publishing, citizen journalism, and other forms of speech. Unfortunately,
abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits
are called Strategic Lawsuits Against Public Participation or "SLAAP" suits.

Twenty-seven states and the District of Columbia have passed similar acts, most commonly
known as either "Anti-SLAPP" laws or "Citizen Participation Acts" that allow defendants in such
cases to dismiss cases earlier than would otherwise be possible, thus limiting the costs and fees.
The Texas Citizen Participation Act would allow defendants—who are sued as a result of
exercising their right to free speech or their right to petition the government—to file a motion to
dismiss the suit, at which point the plaintiff would be required to show by clear and specific
evidence that he had a genuine case for each essential element of the claim. In addition, if the
motion to dismiss is granted, the plaintiff who has wrongly brought the lawsuit may be required
to pay attorney's fees of the defendant.

H.B. 2973 amends current law relating to encouraging public participation by citizens by
protecting a person's right to petition, right of free speech, and right of association from meritless
lawsuits arising from actions taken in furtherance of those rights.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer,
institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Authorizes this Act to be cited as the Citizens Participation Act.

SECTION 2. Amends Subtitle B, Title 2, Civil Practice and Remedies Code, by adding Chapter
27, as follows:

CHAPTER 27. ACTIONS INVOLVING THE EXERCISE OF CERTAIN
CONSTITUTIONAL RIGHTS

Sec. 27.001. DEFINITIONS. Defines, in this chapter, "communication", "exercise of
the right of association," "exercise of the right of free speech," "exercise of the right to
petition," "governmental proceeding," "legal action," "matter of public concern," "official
proceeding," and "public servant."

Sec. 27.002. PURPOSE, (a) Provides that the purpose of this chapter is to encourage
and safeguard the constitutional rights of persons to petition, speak freely, associate feely,
SRC-BCD H.B. 2973 82(R) PaSe • of 3
 and otherwise participate in government to the maximum extent permitted by law and, at
the same time, protect the rights of a person to file meritorious lawsuits for demonstrable
injury.

Sec. 27.003. MOTION TO DISMISS, (a) Authorizes a party, if a legal action is based
on, relates to, or is in response to the party's exercise of the right of free speech, right to
petition, or right of association, to file a motion to dismiss the legal action.

(b) Requires that a motion to dismiss a legal action under this section be filed not
later than the 60th day after the date of service of the legal action. Authorizes the
court to extend the time to file a motion under this section on a showing of good
cause.

(c) Provides that except as provided by Section 27.006(b), on the filing of a
motion under this section, all discovery in the legal action is suspended until the
court has ruled on the motion to dismiss.

Sec. 27.004. HEARING. Requires that a hearing on a motion under Section 27.003 be
set not later than the 30th day after the date of service of the motion unless the docket
conditions of the court require a later hearing.

Sec. 27.005. RULING, (a) Requires the court to rule on a motion under Section 27.003
not later than the 30th day following the date of the hearing on the motion.

(b) Requires a court, except as provided by Subsection (c), on the motion of a
party under Section 27.003, to dismiss a legal action against the moving party if
the moving party shows by a preponderance of the evidence that the legal action
is based on, relates to, or is in response to the party's exercise of:

(1) the right of free speech;

(2) the right to petition; or

(3) the right of association.

(c) Prohibits the court from dismissing a legal action under this section if the party
bringing the legal action establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question.

Sec. 27.006. EVIDENCE, (a) Requires the court, in determining whether a legal action
should be dismissed under this chapter, to consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability or defense is based.

(b) Authorizes the court, on a motion by a party or on the court's own motion and
on a showing of a good cause, to allow specified and limited discovery relevant to
the motion.

Sec. 27.007. ADDITIONAL FINDINGS, (a) Requires the court, at the request of a
party making a motion under Section 27.003, to issue findings regarding whether the
legal action was brought to deter or prevent the moving party from exercising
constitutional rights and is brought for an improper purpose, including to harass or to
cause unnecessary delay or to increase the cost of litigation.

(b) Requires the court to issue findings under Subsection (a) not later than the
30th day after the date a request under that subsection is made.

Sec. 27.008. APPEAL, (a) Provides that if a court does not rule on a motion to dismiss
under Section 27.003 in the time prescribed by Section 27.005, the motion is considered
to have been denied by operation of law and the moving party may appeal.

SRC-BCD H.B. 2973 82(R) Page 2 of 3
 (b) Requires an appellate court to expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss a legal action
under Section 27.003 or from a trial court's failure to rule on that motion in the
time prescribed by Section 27.005.

(c) Requires that an appeal or other writ under this section be filed on or before
the 60th day after the date the trial court's order is signed or the time prescribed
by Section 27.005 expires, as applicable.

Sec. 27.009. DAMAGES AND COSTS, (a) Requires the court, if the court orders
dismissal of a legal action under this chapter, to award to the moving party:

(1) court costs, reasonable attorney's fees, and other expenses incurred in
defending against the legal action; and

(2) sanctions against the party who brought the legal action as the court
determines sufficient to deter the party who brought the legal action from
bringing similar actions described in this chapter.

(b) Authorizes the court, if the court finds that a motion to dismiss filed under
this chapter is frivolous or solely intended to delay, to award court costs and
reasonable attorney's fees to the responding party.

Sec. 27.010. EXEMPTIONS, (a) Provides that this chapter does not apply to an
enforcement action that is brought in the name of this state or a political subdivision of
this state by the attorney general, a district attorney, a criminal district attorney, or a
county attorney.

(b) Provides that this chapter does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing goods or services, if
the statement or conduct arises out of the sale or lease of goods, services, or an
insurance product or a commercial transaction in which the intended audience is
an actual or potential buyer or customer.

(c) Provides that this chapter does not apply to a legal action seeking recovery for
bodily injury, wrongful death, or survival or to statements made regarding that
legal action.

Sec. 27.011. CONSTRUCTION, (a) Provides that this chapter does not abrogate or
lessen any other defense, remedy, immunity, or privilege available under other
constitutional, statutory, case, or common law or rule provisions.

(b) Requires that this chapter be construed liberally to effectuate its purpose and
intent fully.

SECTION 3. Makes application of this Act prospective.

SECTION 4. Effective date: upon passage or September 1, 2011.

SRC-BCD H.B. 2973 82(R) Page 3 of 3
HOUSE HB2973
RESEARCH Hunter, Raymond
ORGANIZATION bill analysis 5/2/2011 (CSHB 2973 by Hartnett)

SUBJECT: Dismissing SLAPP suits on free speech, petition, and assembly grounds

COMMITTEE: Judiciary and Civil Jurisprudence — committee substitute recommended

VOTE: 10 ayes— Jackson, Lewis, Bohac, Castro, S. Davis, Hartnett, Madden,
Raymond, Scott, Thompson

0 nays

1 absent — Woolley

WITNESSES: For — Shane Fitzgerald and Laura Prather, Freedom of Information
Foundation of Texas; Joe Ellis and Laura Prather, Texas Association of
Broadcasters; Laura Prather, Better Business Bureau and Texas Daily
Newspaper Association; Janet Ahmad, HomeOwners for Better Building;
Robin Lent, Coalition of HOA Reform; Carla Main; Brenda Johnson;
{Registered, but did not testify: Keith Elkins, Freedom of Information
Foundation of Texas; Mike Hull, Texans for Lawsuit Reform; Frank
Knaack, ACLU of Texas; Arif Panju, Institute for Justice; Michael
Schneider, Texas Association of Broadcasters; Tom "Smitty" Smith,
Public Citizen; Ed Sterling and Doug Toney, Texas Press Association;
Doug Toney, Texas Daily Newspaper Association; David Weinberg,
Texas League of Conservation Voters; Ware Wendell, Texas Watch; Andy
Wilson, Public Citizen, Inc.; Monty Wynn, Texas Municipal League;
Irene Adolph, Coalition of HOA Reform, hoadata.org; Lou Ann
Anderson; Mary Lou Durham)

Against — None

On — Steve Harrison, Texas Trial Lawyers Association

DIGEST: CSHB 2973 would allow a party to file a motion to dismiss if a lawsuit
were based on that party's exercise of the right of free speech, right to
petition, or right of association. On the filing of a motion to dismiss, all
discovery would be suspended until the court ruled on the motion. The
court could allow specified and limited discovery on a motion by a party
or on the court's own motion and on a showing of good cause.
 HB 2973
House Research Organization
page 2

A court would be required to grant the motion to dismiss if the moving
party showed by a preponderance of the evidence that the lawsuit was
based on, related to, or was in response to the party's exercise of the right
of free speech, petition, or association. A court could not grant the motion
to dismiss if the plaintiff established by clear and specific evidence a
prima facie case for each essential element of the claim.

If the court granted the motion to dismiss, the court would be required to
award to the moving party:

• court costs, reasonable attorney's fees, and other expenses incurred
in defending the lawsuit; and
• sanctions against the plaintiff to deter similar actions.

If the court found the motion to dismiss was frivolous or solely intended to
delay, the court could award court costs and reasonable attorney's fees to
the responding party.

The motion to dismiss would have to be filed within 60 days after service
of process. The deadline could be extended by the court on a showing of
good cause. A hearing on a motion to dismiss would have to be set by 30
days after the date of service of the motion, unless docket conditions
required a later hearing. The court would be required to rule on the motion
to dismiss by 30 days after the hearing.

The bill would provide for expedited appeal of the motion to dismiss. An
appeal would have to be filed within 60 days after the order was signed or
the motion was denied by operation of law.

The bill would not apply to enforcement actions by the state or a political
subdivision, a lawsuit against a person primarily engaged in selling or
leasing goods or services when the intended audience was a customer, or a
personal injury suit.

At the request of a party filing a motion to dismiss, the court would be
required to issue findings regarding whether the lawsuit was brought to
deter or prevent the moving party from exercising constitutional rights and
was brought for an improper purpose, including to harass, cause
unnecessary delay, or increase litigation costs.
 HB 2973
House Research Organization
page 3

The bill would take immediate effect if finally passed by a two-thirds
record vote of the membership of each house. Otherwise, it would take
effect September 1, 2011. The bill would apply only to a legal action filed
on or after the effective date.

SUPPORTERS CSHB 2973 would allow a person to file a motion to dismiss if a lawsuit
SAY: was based on that person's exercise of the right of free speech, petition, or
association. Citizen participation benefits society, whether it comes in the
form of petitioning the government, writing a news article or blog post, or
commenting on the quality of a business.

"SLAPP" suits, or strategic lawsuits against public participation, are
frivolous lawsuits aimed at silencing people involved in these forms of
citizen participation. In one case, a woman who complained to the Texas
State Board of Medical Examiners about a doctor and later complained to
a television station was sued by the doctor. The suit eventually was
dismissed, but the television station was forced to pay $100,000 in legal
expenses. SLAPP suits chill public debate because they cost money to
defend, even if the person being sued was speaking the truth. These suits
are particularly problematic for independent voices that are not part of a
news or media company. SLAPP suits are becoming more common, in
part because the Internet has created a searchable record of public
participation.

Under current law, the victim of a SLAPP suit must rely on a motion for
summary judgment. While summary judgment disposes of a controversy
before a trial, both parties still must conduct expensive discovery. By
allowing a motion to dismiss, CSHB 2973 would allow frivolous lawsuits
to be dismissed at the outset of the proceeding, promoting the
constitutional rights of citizens and helping to alleviate some of the burden
on the court system.

Anti-SLAPP legislation similar to this bill has been passed by 27 states
and the District of Columbia.

OPPONENTS HB 2973, if interpreted broadly, could be used to intimidate legitimate
SAY: plaintiffs. It could stifle suits brought legitimately under libel or slander
laws because the plaintiff in such suits would have to overcome motions
testing its pleadings.
 HB 2973
House Research Organization
page 4

The Senate companion bill contains language that would limit court costs,
attorney fees, and other expenses "as justice and equity may require." This
language should be added to the House bill to ensure a court could award
attorney fees that were lower than what the attorney typically charges, if
appropriate.

NOTES: The companion bill, SB 1565 by Ellis, was reported favorably, as
substituted, by the Senate State Affairs Committee on April 13.
c

25
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROWLAND J. MARTIN, JR. §
SUCCESSOR IN INTEREST TO §
MOROCO VENTURES, LLC §
§
Plaintiff, §
§
v- § Civil Action No. H-10-3644
§
CHARLES GREHN, RELIANT §
FINANCIAL, INC, EDWARD §
BRAVENEC, ESQ., THE LAW §
OFFICE OF MCKNIGHT AND §
BRAVENEC, and 1216 WEST §
AVE., INC, §
§
Defendants. §
ORDER

Pending before theCourt isDefendant Edward Bravenec's Motion to Transfer

Venue, Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial,
Specific Denials, and Motion for Protective Order (Document No. 9). Having
considered the motion, submissions, and applicable law, the Court determines the

motion should begranted in part and denied in part.

I. BACKGROUND

Plaintiff Rowland J. Martin, Jr. ("Martin") brings this suit as successor in

interest to Moroco Ventures, Inc. ("Moroco") challenging the October 3, 2006
foreclosure ofMoroco's real property located at 1216 West Avenue in San Antonio,

14-50093.724
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 2 of 11

Texas (the "Property"). Martin alleges Defendants Edward Bravenec ("Bravenec")
and the Law Office of McKnight and Bravenec (collectively, "Bravenec's Firm"),
second lien holders on the Property and Martin's former attorneys, improperly
foreclosed on the Property. Martin further alleges Defendants Reliant Financial, Inc.
("Reliant") and Charles Grehn ("Grehn") (collectively, "Reliant"), both former first
lien holders on the Property, allegedly committed acts ofprohibited trade practices,
fraud, and fraudulent transfers for its collection efforts prior to the challenged
October 3,2006 foreclosure. The relevant facts leading up to Martin's lawsuit are
as follows. On October 31,2003, Moroco executed adeed oftrust on the Property
in favor of Roy M. Ramspeck and Annette G. Hanson (the "Grantees") to secure
payment ofa note in the amount of $145,000.00. On June 21, 2004, the Grantees
assigned their rights and interests under the note and deed of trust to Reliant.
Thereafter, Reliant's servicing agent, Aegis Mortgage Corporation ("Aegis"), began
servicing the note. On July 26, 2004, Reliant assigned its rights and interests under
the note and deed oftrust to Bernhardt Properties I, Ltd. ("Bernhardt"), anonparty to
this suit. Despite Reliant's assignment to Bernhardt, Aegis continued servicing the
note.

On May 3, 2005, Moroco executed asecond deed of trust on the Property in
favor ofBravenec to secure payment of asecond note in the amount of$20,000.00.

14-50093.725
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 3 of 11

When Moroco defaulted on the second note, Bravenec commenced foreclosure
proceedings. On May 2, 2006, asubstitute trustee held apublic sale, and Bravenec
was the successful bidder. On this same day, Moroco filed avoluntary petition for
Chapter 11 bankruptcy in the United States Bankruptcy Court for the Western District
ofTexas, San Antonio Division. On June 20,2006, the bankruptcy court ordered the
May 2,2006 foreclosure sale void and declared that Moroco held title to the Property.
Shortly thereafter, Aegis, as anamed secured creditor in Moroco's bankruptcy
suit, filed a Motion for Relief from the Automatic Stay. On July 31, 2006, the
bankruptcy court signed an "Agreed Order" stating that the automatic stay would
remain in effect butthat Moroco should continue making monthly payments to Aegis
orthe Property would be subject to foreclosure without further notice or actionbythe
bankruptcy court. On August 16, 2006, Aegis, pursuant to the Agreed Order, filed
aNotice ofTermination ofthe Automatic Stay with the bankruptcy court stating that
Moroco was in default of the first lien note. Thereafter, Reliant commenced

foreclosure proceedings on the Property. Reliant's substitute trustee issued a notice

ofpublic foreclosure scheduled for October 3, 2006.

On October 2, 2006, Bravenec filed suit in the 57th Judicial District Courtof

Bexar County, Texas to prevent Reliant from moving forward with the October 3,
2006 foreclosure sale. Bravenec then acquired Reliant's first lien interest and

14-50093.726
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 4 of 11

proceeded in place ofReliant at the October 3,2006 foreclosure sale. Bravenec again
was the successful bidder at the sale. A substitute trustee's deed was issued to this
effectand subsequently recorded.

On October 13, 2006, Martin filed athird-party petition and application for a
temporary restraining order in the 57th Judicial District Court challenging the
October 3, 2006 foreclosure sale and asserting claims for wrongful foreclosure and
other prohibited transactions. On October 30, 2006, after hearing argument, the
presiding Bexar Countyjudge denied Martin's application for temporary restraining
order and declared the October 3, 2006 foreclosure sale valid.

Now in federal court, Martin claims Defendants engaged in numerous
irregularities relating to Moroco's bankruptcy proceedings and the October 3,2006
foreclosure sale. Martin asserts the following mixed bag ofclaims: (1) common law
fraud; (2) fraudulent breach oflegal and financial fiduciary duties; (3) violations of
the Fair Debt Collection Practices Act(FDCPA), 15 U.S.C. § 1692E; (4) violations
of his civil rights under the Civil Rights Act, 42 U.S.C. § 1983; (5) violations of the
Clayton Anti-Trust Act, 15 U.S.C. § 1; (6) violations ofthe Sherman Anti-Trust Act,
18 U.S.C. § 1962(c); (7) declaratory judgment on suit in trespass to try title; (8)
injunctive relief to enjoin Defendants' unlawful acts; and (9) negligent infliction of
emotional distress.

14-50093.727
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 5 of 11

Bravenec moves in the alternative for transfer of venue under 28 U.S.C.
§ 1404, for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction, or for a protective order.1 With respect to transfer,
Bravenec contendsthat three ofthe five defendants—Bravenec, Bravenec's Firm, and
the Property—reside in San Antonio. Bravenec contends that Martin and potential
witnesses also reside in San Antonio. Thus, Bravenec argues it would be more
convenient for the parties and witnesses and in the interest ofjustice for this case to
be heard in the Western District ofTexas, San Antonio Division. Reliant opposes
transfer and Martin does not respond. For the reasons provided below, the Court

1Bravenec's grounds for lack ofsubject-matterjurisdiction and for aprotective order
are not persuasive, and his motion is denied on those points. The Court notes that Reliant
also moves to dismiss for lack ofsubject-matterjurisdiction in aseparate motion, Document
No. 18, not ruled on by the Court. There, Reliant argues that because Martin never held legal
title to the Property, he lacks standing to sue as successor in interest to Moroco. While
Reliant articulates the constitutional elements of Article III standing—injury-in-fact,
causation, and redressability—Reliant offers no argument and no authority that Martin
actually lacks Article III standing. Rather, Relaint's argument relies on Texas case law
holding that a shareholder lacks standing to pursue the corporation's cause of action. See,
e.g., Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990); El T. Mexican Restaurants, Inc.
v. Bacon, 921 S.W.2d 247, 253 (Tex. App.—Houston [1st Dist.] 1995, writ denied).
Reliant's challenge is construed in actuality as an objection to the prudential limitations on
the Court's exercise of federal jurisdiction. See, e.g.,Ensleyv. Cody Resources, Inc., 171
F.3d 315, 319-21 (5th Cir. 1999). Prudential limitations are distinct from the Article III
standing requirements and aregoverned underRule 17oftheFederal RuleofCivilProcedure
concerning real parties in interest. Id. Even assuming for the sake ofargument that Moroco
is the proper real-party-in-interest plaintiff, the Court has serious doubts as to whether
Moroco continues toexist as an active Texas corporation given that its charter was forfeited
by the Texas Secretary of State over three years ago. See Tex. Bus. & Org Code
§§ 11.001(4)(A)-(5), 11.356(a)(3).

14-50093.728
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 6 of 11

finds transfer is warranted.

II. LAW & ANALYSTS

Amotion to transfer venue from one federal district court to another is within
the transferor court's sound discretion. 28 U.S.C. §1404(a); see also PiperAircraft
Co. v. Reyno, 454 U.S. 235, 253 (1981). Transfer ofvenue is only appropriate if a
two-part test is satisfied. First, this Court, as the transferor court, must determine if
the action might have been brought in the transferee court. See 28 U.S.C. §1404(a);
Inre Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); In re Horseshoe Entm't,
337 F.3d 429, 433 (5th Cir. 2003). Second, this Court, as the transferor court, must
ascertain whether transfer is for the convenience ofthe parties and witnesses and in
the interest of justice. Id. Under § 1404(a), the movant carries the burden of

persuading acourt that transfer ofvenue is warranted. See In re Volkswagen ofAm.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008) (citing Time, Inc. v. Manning, 366 F.2d 690,

698 (5th Cir. 1966)). To prevail, the moving party must show that "the balance of

convenience and justice weighs heavily in favor of the transfer." Gundle Lining
Constr. Corp. v. Fireman's FundIns. Co., 844 F. Supp. 1163,1165 (S.D. Tex. 1994)
(Crone, J.). Thus, the Court must determine if transferring venue would make it

"substantially more convenient for the parties to litigate the case." See id.

When evaluating whether transfer is in the interest of justice and for the

14-50093.729
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 7 of 11

convenience ofparties and witnesses, "convenience" depends on private and public
interest factors, none ofwhich is given dispositive weight. In re VolkswagenAG, 371
F.3d at 203. Courts consider the following private interest factors: (1) the relative
ease ofaccess to sources ofproof; (2) the availability ofcompulsory process to secure
the attendance ofwitnesses; (3) the cost ofattendance for willing witnesses; and (4)
all other practical problems that make trial of a case easy, expeditious and
inexpensive. Id. at 203 (citing Piper Aircraft, 454 U.S. at 241 n.6). The public
interest factors encompass: (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized interests decided at home; (3) the
familiarity ofthe forum with the law that will govern the case; and (4) the avoidance
ofunnecessary problems in conflict oflaws, or in the application offoreign law. Id.
These factors are neither exhaustive or exclusive, nor is any one factor dispositive on
the issue oftransfer. Gapp v. Linde Gas N. Am., LLC, Civil Action No. H-10-4642,

2011 WL 1770837, at *2 (S.D. Tex. May 9, 2011) (Atlas, J.) (citing Action Indus.,
Inc. v. U.S. Fid. &Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)).

A. Whether this case might have been brought in the Western District ofTexas.
The Court finds jurisdiction and venue are proper in the Western District of

Texas, San Antonio Division. Martin asserts claims under the Fair Debt Collection

Practices Act, 15 U.S.C. §1692E, the Civil Rights Act, 42 U.S.C. §1983, the Clayton

14-50093.730
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 8 of 11

Anti-Trust Act, 15 U.S.C. §l,2 and the Sherman Anti-Trust Act, 18 U.S.C. 1962(c),3
and therefore invokes federal question jurisdiction under 28 U.S.C. § 1331. The
location of the Property underlying the basis of Martin's claims, as well as three of
the five named defendants, reside in San Antonio.4 Moreover, all of Martin's
allegations concerning the events giving rise to his claims occurred in San Antonio.
Thus, Martin's suit could have been brought in the Western District of Texas, San
Antonio Division. See 28 U.S.C. §1391 ("A civil action wherein jurisdiction is not
founded solely on diversity ofcitizenship may, except as otherwise provided by law,
be brought only in ... (2) ajudicial district in which asubstantial part ofthe events
or omissions giving rise to the claim occurred, or asubstantial part ofproperty that
is the subject ofthe action is situated...."). Having determined the first prerequisite
to transferring venue is satisfied, the Court next weighs the private and public interest
factors to determine whether transfer would be for the convenience ofthe parties and

2In Martin's Original Complaint under the heading, "FIFTH CLAIM FOR RELIEF."
Martin identifies the Clayton Anti-Trust Act, yet he cites the statutory reference 15 U.S.C.
§ 1, which in actuality is the Sherman Act.

3In Martin's Original Complaint under the heading, "SIXTH CLAIM FORRRLIEF"
Martin identifies the Sherman Anti-Trust Act, yet he cites the statutory reference 18 U.S.C.
1962(c), which in actuality is the Racketeer Influenced and Corrupt Organizations Act
(RICO).

4Bravenec, Bravenec's Firm, and the Property all reside in San Antonio, Texas.
Reliant and Grehn reside in Harris County, Texas.

14-50093.731
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 9 of 11

witnesses, and in the interest ofjustice.

B. Whether transfer isfor the convenience oftheparties andwitnesses, andin the
interest ofjustice.

I. Private interestfactors

The private interest factors weigh in favor oftransfer. First, Martin, Bravenec,
Bravenec's Firm, and the Property are all situated in San Antonio. Second, Martin's
allegations complain ofevents that occurred in San Antonio. Third, Neither Martin
nor Defendants have named any witnesses who might testify, but given the location
of the alleged events, its likely that any potential witnesses will reside in San
Antonio. Fourth, Most, ifnot all, ofthe relevant documents, including filed deeds of
trusts, state-court filings and orders, and bankruptcy court filings and orders, are in

San Antonio. Finally, while Reliant contends transferring this case would impose a
burden on it and Grehn, Reliant does not appear to have encountered any
inconveniences while participating in Moroco's bankruptcy proceedings, conducting
foreclosure proceedings on the Property, ordefending against Brevenec's state-court

action to prevent Reliant from moving forward with the October 3,2006 foreclosure

sale, all of which occurred in San Antonio. Thus, the Court concludes that the

general consideration of convenience for the parties, witnesses, and the overall

efficiency ofthe case, would be better served by trial inthe Western District ofTexas.

14-50093.732
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 10 of 11

2. Public interestfactors

The public interest factors are neutral in the Court's analysis. First, none ofthe

parties have presented anyevidence or statistics thatthe Western District of Texas's

courtcongestion is greaterthanthis Court. Second, the Western Districtof Texas has

no apparent "localized interest" inresolving this case. Third, the Western District of

Texas is well-equipped to apply the federal and state laws that govern this case. And
finally, the Court finds this case does not require resolving problems in conflicts of
law nor the application of foreign law. Accordingly, the public interest factors add
no weightto the balance favoring transfer.

III. CONCLUSION

Having considered theprivate and public interest factors, theCourt determines

that on balance, these factors weight in favor of transfer to the Western District of

Texas, San Antonio Division. Accordingly, the Court hereby

ORDERS that Defendant Edward Bravenec's Motion to Transfer Venue,
Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial, Specific
Denials, and Motion for Protective Order (Document No. 9)isGRANTED IN PART

and DENIED IN PART. The Court further

ORDERS thatthiscase ishereby TRANSFERRED to theUnited States District

Court for the Western District of Texas, San Antonio Division. The Court further

10

14-50093.733
 Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 11 of 11

ORDERS that Defendant's Motion to Dismiss for Lack of Subject-Matter

Jurisdiction and Motion for Protective Order are DENIED.

SIGNED at Houston, Texas, on this Jg day of May, 2011

c^5<^fefer
DAVID HITTNER
United States District Judge

11

14-50093.734
 Case 5:ll-cv-00414-HLH Document 49 Filed 05/18/11 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROWLAND J. MARTIN, JR. §
SUCCESSOR IN INTEREST TO §
MOROCO VENTURES, LLC §
§
Plaintiff, §
§
v- § Civil Action No. H-10-3644
§
CHARLES GREHN, RELIANT §
FINANCIAL, INC, EDWARD §
BRAVENEC, ESQ, THE LAW §
OFFICE OF MCKNIGHT AND §
BRAVENEC, and 1216 WEST §
AVE, INC, §
§
Defendants. §
ORDER

Pending before theCourt isDefendant Edward Bravenec's Motion to Transfer

Venue, Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial,
Specific Denials, and Motion for Protective Order (Document No. 9). Having
considered the motion, submissions, and applicable law, the Court determines the

motion should be granted in part and denied in part.

I. BACKGROUND

Plaintiff Rowland J. Martin, Jr. ("Martin") brings this suit as successor in
interest to Moroco Ventures, Inc. ("Moroco") challenging the October 3, 2006
foreclosure ofMoroco's real property located at 1216 West Avenue in San Antonio,

14-50093.735
Il-05141-a998 Doc#12 Filed 68/13/12 Entered 08/13/12 08:49:17 Main Document Pg 1 of 2

The clerk shall file this order in the main bankruptcy case-as well as
in this adversary proceeding;

SO ORDERED.

SIGNED this 10th day of August, 2012.

LEIFM. CLARK
'STATES BANKRUPTCY JUDGE

M THE U;S; BANKRUPTCY COURT
FOR THE UNITEIJ STATES DISTRICTCOURT
FOR THE WESTERN DISTRICT 01TEXAS-
SAN ANTONIO DIVISION

Rowland J. Martin
Adversary Case11-05141-LMC
Plaintiff

)
)
Edward Bravenec )
Defendant )
)
In Re ROWLAND J.MARTIN, JR., ) easeNo.05^0U6-LMC
DEBTOR )

AMETSTDED ORttKR REOPENTNG BANKRUPTCY CASENO. 05-80113-LMC

The Court, having considered "Debtors Motion "For ReliefFrom The Bankruptcy Court's
Order OfMy 28,JO11 And'TbCdmpei"Turnover Offsets? finds that the post-petition foreclosure
6finvpl\ragthe;prbper^ Chapter It estate
in Bankruptcy Case 06-50829 oil October 3,200S„is subject to this Cdurt's incustodio legis authority
Il-05141-a998 Doc#12 Filed 08/13/12 Entered 08/13/12 08:49:17 Main Document Pg 2 of 2

under Bustamonte v. Cueva, 2004 171 F.3d 232, rehearing denied U.S. App. LEXIS 11719 (5th Cir,
Tex., June 14, 2004) cited in Ashlev Place. Inc. v. Nicholson. 2007 U.S. Dist. LEXIS 24801 (W.D.
Tex. 2007) (Civil Action No. SA-06-CV-999-XR), and that the Debtor has demonstrated standing as a
purchase money creditor offormer Debtor in Possession Moroco Ventures^ LLC. Therefore, the Court
finds that the Debtor's motion for further proceeding in the above Adversary Case 11-05141-LMC
should be GRANTED inpart, and designated for hearing in part, pursuant to Bankruptcy Code
Sections 105, 362, and 542. IT IS THEREFORE,

ORDERED, "Debtor's Motion For ReliefFrom The Bankruptcy Court's Order OfJuly 28,
2011 And To Compel Turnover OfAssets," is herebygranted in part to authorize nunc pro tunc relief
from the Court's Order of July 28, 2011 in Bankruptcy Case No. 05-80116-LMC, and

IT IS FURTHER ORDERED, that the Debtor is authorized to prosecute turnover relief in
the above Adversary Case Adversary Case 11-05141-LMC, basedon his standing as a purchase
money creditor of former Debtor in Possession Moroco Ventures., LLC, and that Edward Bravenec,
1216 WestAve., Inc., Bailey Street Properties, Inc, the Law Office of McKnight and Bravenec, and
the Law Firm of Hughes Watters Askanase are designated as Respondents and Defendants in this
matter.

t t t l ft
 CASE NUMBER 2015-CI-04779

ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
vs. ;§
§ ISO'11 JUDICIAL DISTRICT
BEXAR CWNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO |
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS

ORDER DENYING RESPONDENTS' MOTION TO DISQUALIFYING ROWLAND J.
MARTIN, JR.. TO APPEAR PRO SE FOR THE ESTATE OF JOHNNIE MAE KING

Be it remembered that on the So day of April, 2015 came on to be heard
Respondent's Motion to Disqualify Rowland J. Martin, jr., To Appear Pro Se, for the Estate of
Johnnie Mae King. Alter considering the Motion and pleadines on file, as well as all of the
evidence and arguments of counsel for Respondents and Petitioner, the Court finds that said
Motion should be denied.

IT IS THEREFORE ORDERED That Respondents' Motion to Disqualify Rowland J.
Martin, Jr., To Appear Pro Se for theEsiate of"Johnnie Mae King; Is hereby, in all things,
denied.

SIGNED ANDtENTEREDThis %& , day ofApril. 201$.

fjTUju /Ji£d9£0IOfrl02

|WJTOK»f8
FILED
6/11/2014 4:55:38 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Annabelle Kung

CAUSE NO: 2014-CI-07644

EDWARD BRAVENEC AND 1216 § IN THE DISTRICT COURT
WEST AVE., INC. §
§
vs § 285th JUDICIAL DISTRICT

ROWLAND MARTIN, JR.
BEXAR COUNTY, TEXAS

ROWLAND MARTIN, JR.
§
VS. §
§
EDWARD BRAVENEC, AND THE LAW §
OFFICE OF MCKNIGHT AND BRAVENEC §

MOTION FOR ENFORCEMENT AND FOR CONTEMPT

COMES NOW, Edward L. Bravenec, Plaintiff inthe above entitled and numbered cause

and files this Motion for Enforcement and for Contempt against Rowland Martin, Jr. and would

show the Court as follows:

1. Respondent Rowland J. Martin, Jr. may be served with process at 951 Lombrano
San Antonio, Texas 78207. Citation and personal service is requested.

2. This case has a long and checkered history. Rowland Martin, Jr. has no respect for
any of the orders of any court and intentionally violates the same to disrupt the property rights of
the Plaintiffs.

3. Plaintiffs are the legal owners of the property located at 1216 West Avenue,

San Antonio, Bexar County, Texas (the"Property"). This case has literally been to every court.

4. On October 03, 2003 Edward L. Bravenec and 1216 West Avenue, Inc. rightfully
foreclosed on the Property known as 1216 West Avenue. Rowland Martin, Jr. did in Cause No.
2006-CI-15329 filed inDistrict Court Bexar County, Texas attempted tostop thesale oftheProperty

by 1216 West Avenue by filing arestraining order and Temporary Injunction. On November 01,
2006in Cause No. 2006-CI-l 5329filed inthe 57th Judicial District ofBexarCounty, Texas thecourt

found that there were no irregularities in the foreclosure ofthe Property, that Rowland Martin, Jr.
had no right to intervene to stop the sale and the foreclosure placing and finding the same was valid.

5. Losing at District Counsel level, again Rowland Martin, Jr. attempted to interfere
with the sale of the Property by filing in federal court civil case no. SA-ll-CV-00414 styled
Rowland Martin, Jr. et al v. Charles Grehn, Edward L. Bravenec, 1216 West Avenue, Inc.

Throughtout this suit numerous Lis Pendens were filed to prevent sale ofthe Property. Eventually
ajudgment was entered in favor ofEdward L. Bravenenc and 1216 West Ave., Inc. The federal court
entered an order on February 01, 2013 which summarized the actions ofRowland Martin, Jr. in

which the Honorable Judge Hudspeth found that:

"The court observes that for years Plaintiff (Rowland Martin, Jr.) had engaged in a
campaign harassing, frivolous and duplicative litigation. His lawsuits have served no
purpose ofthan to increase the litigation cost ofthe Defendant's and waste judicial resources.
The court finds that it isnecessary totake some action to curtail the Plaintiffs propensity to
burden the court with meritless litigation. No one, rich or poor, is entitled to abuse the
judicial process Harwich v. Brinson 523f2d 798,800 (5'" Circuit 1975)
6. Rowland J. Martin, Jr. took this matter to the 5th Circuit. The orders of the District

Court were affirmed and his appeal was dismissed.

7. In addition, Judge Hudspeth entered an order regarding a Motion for Summary

Judgement in Cause No. SA-1 l-CI-414. Like wise as in this suit, all the causes ofaction arise
out ofallegations that occurred between 2003 and at thellatest 2006. The court found all ofthe
2
claims are frivolous. The court specifically found that:

" Never the less, the court isconsidering imposing sanctions sua sponte against the Plaintiff
(Rowland J Martin Jr.) for violating his Rule 11(b) obligations. The court has determined
that Plaintiff is likely violated Rule 11(b) by (i) Repeatedly filing lawsuits for the purpose
ofharassment and the needless increase oflitigation cost and (ii.) Continuing toassert claims
that he knows are non meritorious Id. 11(b) (1)(2). Therefore, the court will require Plaintiff
to show cause why monetary sanctions should not be opposed against him for violation of
Rule 11.

8. Monetary sanctions were imposed. Despite these orders, the Plaintiff Rowland J
Martin Jr. continued to file Lis Pendens against the Property to encumber the title and prevent its

sale.

9. On October 25,2013 Judge Hudspeth again intervened by entering an order canceling

Lis Pendens. See Exhibit "G"

10. On February 21, 2014 Judge Hudspeth entered asecond order as Martin continued
to file notices of Lis Pendens and refused to cancel the same. Now, however Martin indicated that

the Probate of the Estate of Johnny May King in cause no. 2001-PC-1263 somehow affected the

estate.

11. OnDecember 05, 2013 Judge Hudspeth entered an order granting sanctions in

favor of 1216 West Avenue IncandEdward L Bravenec andagainst Rowland Martin because of"his

vexatious pursuit of harassing and frivolous litigation".

12. Judge Hudspeth now referred all claims associated with the Estate ofJohnny May
King back to the Probate Court for adjudication.

13. On March 19, 2014 the Honorable Judge Polly Jackson Spencer entered an order
in Cause No. 2001 -PC-1263, the probate case, canceling the notice ofLis Pendens filed on or about
December 03, 2013 and the further notice of Lis Pendens filed on or about March 07, 2014 with
regard to the Property 1216 West Avenue declaring both to be canceled null and void..

14. With the Lis Pendens cancelled by the Probate Court, Edward LBravenec and 1216
West Avenue, Inc. located apurchaser for the Property. Full well knowing the lengthy, vexatious
and harassing litigation tactics of Rowland J Martin Jr., Edward LBravenec and 1216 West
Avenue, Inc filed aPetition and Application for Temporary Restraining Order setting forth the
facts and filing a suit for tortious interference with contractual relations against Rowland J
Martin Jr. The court granted atemporary restraining order on May 14,2014 setting the hearing for
the Temporary Injunction for May 23, 2014 at 9:00 a..m. The hearing was held on May 23, 2014.

15. Rowland J. Martin, Jr. was not represented by counsel and appears pro se. He was
served and answered prior to the scheduled hearing. Movants request this court take judicial
notice of the file.

!6. Initially Rowland J. Martin, Jr. did not attend the hearing. Evidence was
presented on the record and after hearing evidence an order was entered granting the Temporary
Injunction. At the conclusion of the hearing Rowland JMartin Jr. appeared and, the order was
withdrawn based on an agreement reached between the parties. The agreement was conformed in the
record. Rowland JMartin Jr. requested acontinuance to July 09,2014 but agreed that the Temporary
Restraining Order would remain in full force and effect. Rowland J. Martin Jr. filed an answer and
Counter claim.

17. Despite the Temporary Restraining Order remaining in full force in effect by
agreement, Rowland J Martin Jr. once again filed anotice of Lis Pendens against the Property
preventing the closing ofthe sale. This notice was not sent to counsel ofrecord Glenn JDeadman.
It was sent to the Buyers of 1216 West Ave and their realtor.

18. Specifically, Rowland JMartin Jr. violated the Temporary Restraining Order
by filing a document with the Bexar County Clerk Deeds Record's Office that relates to the
Plaintiffs and the real property described as NCB 8806BLK 50 LOT 1, EXC NW 10.01 FT &2-3

19. Plaintiff requests that Rowland JMartin Jr be held in contempt, jailed and
fined for each separate violation alleged above for violating this Court's order. Therefore Plaintiff
requests that:

a) This Court enter aShow Cause Order requiring Rowland JMartin Jr. to appear at a
time and place to be set by the Court,

b) Following the hearing that the Court find that Rowland J. Martin Jr. be held in
contempt of Court and otherwise sentenced to not more than six (6) months and
punished accordingly, if while incarcerated Rowland J. Martin, Jr. continued to
 contact lawyers, title companies, lenders or file any document that clouds the title to

the Property, for each additional offense Rowland J. Martin, Jr. be jailed for six

months.

c) for appropriate sanctions, not to exceed $500.00 per offense.

d) for attorney's fees, and

e) for such other and further relief to which Edward L. Bravenec and 1216 West

Avenue, Inc. may be justly entitled.

REQUEST FOR ATTORNEY'S FEES

Plaintiff was required to retain the services of Glenn J. Deadman, P.C., in order to file and

argue this matter. Plaintiff is entitled and seek to recover from Defendant, in addition to the relief

pled for above, its reasonable and necessary attorney's fees for having to pursue this Motion for

Enforcement and for Contempt.

WHEREFORE, PREMISES CONSIDERED, Edward L. Bravenec and 1216 West Avenue,

Inc. respectfully request that citation and notice issue as required by law and that the Court enter its

orders in accordance with the allegations contained in this motion. Plaintiff prays for attorney's

fees, expenses and costa as requested above and for any and all relief in equity and in law that
Plaintiff has shown itself justly entitled.

Respectfully submitted,

GLENN J. DEADMAN, P.C.
509 S. Main Avenue

San Antonio, TX 78204
(210)472-3900-Telephone
(210) 472-3901-Facsimile
gjdeadman@aol.com

Glenn J. Deadman

SBN: 00785559

, CERTIFICATE OF SERVICE

I, the undersigned, hereby swear that the foregoing Motion for Enforcement and for

Contempt was served on Defendant Rowland J. Martin, Jr. via personal service.

Rowland J. Martin, Jr.
951 Lombrano
San Antonio, Texas 78207
210-323-3849

Glenn J. Deadman
Book 16765 Page 975 3pgs " " Doc# 20140116444

STC GF# 1402942377
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM
ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT
IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

WARRANTY DEED WITH VENDOR'S LIEN
STATE OF TEXAS ' §
§ KNOW ALL MENBY THESEPRESENTS:
COUNTY OF BEXAR §

THAT, EDWARD L. BRAVENEC, hereinafter called Grantor (whether one or more), for
and in consideration of the sum of TEN AND NO/100 DOLLARS and other good and valuable
considerations in hand paid by TORRALBA PROPERTIES, LLC, hereinafter called Grantee
(whether one or more), whose mailing address is: 18507 Canoe Brook :
San Antonio, TX 78258 , the receipt of which is hereby acknowledged, and
for the further consideration of the sum of $239,200.00, to Grantor in hand paid by
PROSPERITY BANK, which amount is advanced at the special instance and request of the
Grantee herein, and as evidence thereof, the Grantee has executed and delivered one certain
promissory note of even date herewith for the sum of TWO HUNDRED THIRTY NINE
THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($239,200.00), payable to the order
of PROSPERITY BANK, whosemailing address is as set forth in the hereinafter mentioned Deed
of Trust, bearing interest and payable as in said note provided; said note containing the usual
provisions forattorney's fees and acceleration of maturity in case of default, .and being secured by
Vendor's Lien herein and hereby expressly retained in favor of the Grantor, on the property
hereinafter described, and as further security for the payment of said note, the SUPERIOR TITLE
and VENDOR'S LIEN to said property are hereby transferred and conveyed to PROSPERITY
BANK without recourse against Grantor, said note being also secured by Deed of Trust of even
date herewith to DAVID ZALMAN, Trustee; has GRANTED, SOLD and CONVEYED and by
these presents Grantor does hereby GRANT, SELL and CONVEY unto Grantee herein, the
following described real property together with all improvements thereon situated in Bexar
County,Texas,described as follows, to-wit:

Lots 1, 2 and 3, Block 50, New City Block 8806, LOS ANGELES HEIGHTS
ADDITION, City of San Antonio, Bexar County, Texas, according to plat
thereof recorded in Volume 105, Pages 284-286, Deed and Plat Records of
Bexar County, Texas, SAVE AND EXCEPT 0.00049 of an acre, being 21.51
square feet out of Lot 1, as described by Deed to the City of San Antonio
recorded in Volume 5180, Page 1873, Real Property Records of Bexar County,
Texas; and

Lots 23, 24 and 25, Block 50, New City Block 8806, LOS ANGELES
HEIGHTS SUBDIVISION, City of San Antonio, Bexar County, Texas,
according to plat thereof recorded in Volume 8100, Page 97, Deed and Plat
Records of Bexar County, Texas.

TO HAVE AND TO HOLD the above described premises, together with all and singular
the rights and appurtenances thereunto in anywise belonging unto the said Grantee herein,
Grantee's heirs, successors and/or assigns forever. And Grantor does hereby bind Grantor,
Grantor's heirs, successors and/or assigns, TO WARRANT and FOREVER DEFEND all and
singular the said premises unto the Grantee herein, Grantee's heirs, successors and/or assigns
against every person whomsoever lawfully claiming or to claimthe sameor any partthereof.

Granteeassumes taxes for the current year on the property hereby conveyed.

This conveyance and the warranties of title given herein are made subject to any and all
restrictions, easements, setback lines, covenants, conditions and reservations, of record affecting
the property herein conveyed.

1216 West Ave., San Antonio, Texas 78201
 EXECUTED ON THE FOLLOWING DATE: JUL 0820U

(Lh^
EDWARD L. BRAVENEC

(ACKNOWLEDGEMENT)
STATE OF TEXAS §
COUNTY OF BEXAR §

is instrument was/ACKNOWLEDGED before me, on this the / day of
.20 /7 .by EDWARD L. BRAVENEC.

Noiary Publicjltate tsf TSMJis ^ ) =
rt?

'"'//inmiv^

AFTER RECORDING RETURN TO: PREPARED IN THE OFFICE OF:

Torralba Properties, LLC WEST & WEST ATTORNEYS, P.C.
13507 Canoe Brook, 2929 Mossrock, Suite 204
San Antonio, Texas 78258 San Antonio, Texas 78230

1216 West Ave., San Antonio, Texas 78201
Doc# 20140116444
# Pages 3
07/11/2014 11:13AM
e-Filed & e-Recorded in the
Official Public Records of
BEXAR COUNTY
GERARD C. RICKHOFF
COUNTY CLERK
Fees $30.00

STATE OF TEXAS
COUNTY OF BEXAR
This is to Certify that this document
was e-FILED and e-RECORDED in the Official
Public Records of Bexar County, Texas
on this date and time stamped thereon.
07/11/2014 11:13AM
COUNTY CLERK, BEXAR COUNTY TEXAS
(Page 1 of 2)

DOCUMENT SCANNED AS FILED

mm
2014C107644 -D285

Cause NO.2014-CI-07644

§
EDWARD L. BRAVENEC AND 1216 §
WEST AVE., INC. § IN THE DISTRICT COURT
Plaintiff §
§
§
VS. § 285TH JUDICIAL DISTRICT
§
§
ROWLAND MARTIN, JR. §
Defendants § BEXAR COUNTY, TEXAS
§

TEMPORARY INJUNCTION

On this day came to be heard the Verified Application for Temporary Restraining Order
(the "Application") filed by Edward Bravenec and 1216 West Ave., Inc. After hearing the
argument of counsel and having considered the Verified Petition and Application and the
evidence presented, it clearly appears to the Court that Plaintiffs are entitled to a Temporary
Injunction and thatthe Court is of the opinion that a Temporary Injunction should be issued. This
Court specifically finds that Courts have already determined that the rightful owner of the
Property is Edward L Bravenec. This Court further finds that in Federal Court Cause No. SA-11-
CI-414 styled Rowland J. Martin, Jr. et al. v. Charles Grehn et al. the Court found that legal and
equitable title to the Property was vested in Edward L Bravenec and further that neither Rowland
J Martin, Jr. nor the company he owned, Morocco Ventures, LLC or any successor in interest
Q • there to hadany interest, legal or equitable, in the Property described as:
7
/ "New City Block 8806, Block 50, Lot 1, Except theNorth
•v West 10.01 feet & Lots 2 & 3; which property is commonly
/ referred to as 1216 West Ave., San Antonio, Texas" the
2 ("Property")
0
1
4
w This Court further finds that despite judgments being rendered against Rowland J.
q Martin, Jr. that he continues to interfere and cloud the title to the Property or contact potential
L buyers and title companies to disrupt or disturb any potential sale of the Property by its
rightful owner. Rowland J. Martin, Jr. has a history which is documented in the
^ aforementioned federal court case and the subsequent appeal to the Fifth Circuit Court of
£ Appeals in which both courts find his filings to be vexatious and frivolous. But for the
7 temporary injunction, it is likely that his conduct is to continue and the damage to the
,„, Plaintiffs in this case would be irreparable and could not be compensated by monies.
•P
G'

0
1

Z90001- frtr9/.0IDH0Z

mm >
(Page 2 of 2)

DOCUMENT SCANNED AS FILED

Therefore, it is the ORDER of this court that Rowland J. Martin, any entity at his request
or under his control, his agents, employees and all those acting in conceit with him, are hereby
enjoined from filing any document whatsoever with this court, any other court, the Bexar County
Clerk's Deed Records Office that in any way relates to Plaintiffs or the real property described as

New City Block 8806, Block 50, Lot 1, Except the North West 10.01 feet &
Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio, Texas
(the "Property")

It is FURTHER ORDERED that the Bexar County Clerk cancel, expunge, or otherwise
render ineffective any document filed by Rowland J. Martin, Jr., entitled "Notice of Apparent
Liability for Purchase Money Claims" recorded at Book 16601, Page 2158, "Perfected Lis
Pendens" or any like titled document.

It is FURTHER THE ORDER of this court that Rowland J. Martin, Jr., any entity at his
request or under his control, his agents, employees and all those acting in concert with him are
hereby enjoined from contacting any title company, any potential buyer, bank or otherwise
interfering with the potential sale of the Property in any manner whatsoever, "

It is FURTHER ORDERED that Rowland J Martin, Jr. is prohibited from joining any
third parties or additional defendants to this suit without prior approval of this court.

It isFURTHER ORDERED that this matter be set for trial on the merits on the 8^ day
of December, 2014 at 9:00 a.m.

Plaintiffs bond is hereby set at $500.00, cash or surety. The clerk of the court is to issue
notice to Defendant of this order and hearing and the hearing scheduled for injunction. Notice
0
7 may be accomplished by fax, personal service, or private process.

'3 Witness my hand this /7«B9y ofJuly, 2014, at TW& ^j^*% ^^i ^r ~
h
I Honorable Judge Presiding ^"^^
1
4

V APPROVED AS TO FORM:
0
L

4
2
6 Glenn J Deadman Rowland J Martin Jr
7 509 South Main Ave ProSe
San Antonio, Texas 78204 951 Lombrano
G 210-472-3900 San Antonio, Texas 78207
gideadman@aol.com
0
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