Steven Gregory Sloat, Ed Bryan, Church of Scientology International, David J. Lubow, and Monty Drake v. Monique Rathbun

ACCEPTED
03-14-00199-CV
5260121
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/13/2015 9:20:07 AM
June 9, 2015
June 9, 2015
JEFFREY D. KYLE
CLERK
No. 03-14-00199-CV
______________________________________
COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
AUSTIN, TEXAS 5/13/2015 9:20:07 AM
______________________________________ JEFFREY D. KYLE
Clerk
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
MOTION FOR LEAVE TO FILE
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________

Of Counsel: Thomas S. Leatherbury
State Bar No. 12095275
Eric M. Lieberman Marc A. Fuller
RABINOWITZ, BOUDIN, STANDARD, State Bar No. 24032210
KRINSKY & LIEBERMAN PC VINSON & ELKINS LLP
45 Broadway, Suite 1700 Trammell Crow Center
New York, New York 10006 2001 Ross Avenue, Suite 3700
Telephone: 212.254.1111 Dallas, Texas 75201
Facsimile: 212.674.4614 Telephone: 214.220.7792
elieberman@rbskl.com Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com
Ricardo G. Cedillo George H. Spencer, Jr.
State Bar No. 04043600 State Bar No. 18921001
Isaac J. Huron CLEMENS & SPENCER
State Bar No. 24032447 112 E. Pecan Street, Suite 1300
Les J. Strieber III San Antonio, Texas 78205-1531
State Bar No. 19398000 Telephone: 210.227.7121
DAVIS, CEDILLO & MENDOZA, INC. Facsimile: 210.227.0732
McCombs Plaza, Suite 500 spencer@clemens-spencer.com
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com

Attorneys for Appellant Church of Scientology International
TO THE HONORABLE COURT OF APPEALS:

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

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

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

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

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

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

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

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

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

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

appeal.

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

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

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

justly entitled.

-1-
Respectfully submitted,

/s/ Thomas S. Leatherbury
Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
State Bar No. 24032210
VINSON & ELKINS L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com

Ricardo G. Cedillo
State Bar No. 04043600
Isaac J. Huron
State Bar No. 24032447
Les J. Strieber III
State Bar No. 19398000
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com

-2-
 George H. Spencer, Jr.
State Bar No. 18921001
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com

Of Counsel:

Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700
New York, NY 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
elieberman@rbskl.com

Attorneys for Appellant Church of
Scientology International

CERTIFICATE OF CONFERENCE

On May 12, 2015, I conferred with Appellee’s counsel, Leslie Hyman, who
stated that Appellee is not opposed to this motion.

/s/ Marc A. Fuller____________
Marc A. Fuller

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 CERTIFICATE OF SERVICE
The undersigned certifies that on the 13th day of May, 2015, the foregoing
Motion for Leave to File Notice of Supplemental Authority of Appellant Church of
Scientology International was served on the following attorneys in accordance with
the requirements of the Texas Rules of Appellate Procedure via electronic filing or
email.

Ray B. Jeffrey Marc F. Wiegand
JEFFREY & MITCHELL, P. C. THE WIEGAND LAW FIRM, P.C.
2631 Bulverde Road, Suite 105 434 N. Loop 1604 West,
Bulverde, TX 78163 Suite 2201
San Antonio, TX 78232

Elliott S. Cappuccio Lamont A. Jefferson
PULMAN, CAPPUCCIO PULLEN HAYNES & BOONE LLP
& BENSON, LLP 112 E. Pecan Street, Suite 1200
2161 N.W. Military Hwy., #400 San Antonio, TX 78205-1540
San Antonio, TX 78213

J. Iris Gibson Jonathan H. Hull
HAYNES & BOONE LLP REAGAN BURRUS
600 Congress Ave., Suite 1300 401 Main Plaza, Suite 200
Austin, TX 78701 New Braunfels, TX 78130

O. Paul Dunagan Bert H. Deixler
SARLES & OUIMET KENDALL BRILL KLIEGER
370 Founders Square 10100 Santa Monica Blvd.,
900 Jackson Street Suite 1725
Dallas, TX 75202 Los Angeles, CA 90067

Stephanie S. Bascon Wallace B. Jefferson
LAW OFFICE OF STEPHANIE S. BASCON, Rachel Ekery
PLLC ALEXANDER DUBOSE JEFFERSON
297 W. San Antonio Street & TOWNSEND, LLP
New Braunfels, TX 78130 515 Congress Avenue, Suite 2350
Austin, TX 78701

/s/ Thomas S. Leatherbury
Thomas S. Leatherbury

-4-
US 3518244v.1
EXHIBIT 1
 No. 03-14-00199-CV
______________________________________

COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________

Of Counsel: Thomas S. Leatherbury
State Bar No. 12095275
Eric M. Lieberman Marc A. Fuller
RABINOWITZ, BOUDIN, STANDARD, State Bar No. 24032210
KRINSKY & LIEBERMAN, PC VINSON & ELKINS LLP
45 Broadway, Suite 1700 Trammell Crow Center
New York, New York 10006 2001 Ross Avenue, Suite 3700
Telephone: 212.254.1111 Dallas, Texas 75201
Facsimile: 212.674.4614 Telephone: 214.220.7792
elieberman@rbskl.com Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com
Ricardo G. Cedillo George H. Spencer, Jr.
State Bar No. 04043600 State Bar No. 18921001
Isaac J. Huron CLEMENS & SPENCER
State Bar No. 24032447 112 E. Pecan Street, Suite 1300
Les J. Strieber III San Antonio, Texas 78205-1531
State Bar No. 19398000 Telephone: 210.227.7121
DAVIS, CEDILLO & MENDOZA, INC. Facsimile: 210.227.0732
McCombs Plaza, Suite 500 spencer@clemens-spencer.com
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com

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

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

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

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

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

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

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

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

Lippincott v. Whisenhunt

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

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

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

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

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

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

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

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

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

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

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

See Whisenhunt v. Lippincott, 416 S.W.3d 689, 697-98 (Tex. App.—Texarkana
-1-
2013), rev’d, Lippincott, 2015 WL 1967025; Brief of Appellee at 39-42; Dist. Ct.

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

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

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

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

Brief at 13-14.

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

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

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

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

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

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

concern,” it meets the statutory definition:

This statute defines “communication” to include any
form or medium, including oral, visual, written,
audiovisual, or electronic media—regardless of whether
the communication takes a public or private form. Tex.
Civ. Prac. & Rem. Code § 27.001(1). The plain language
of the statute imposes no requirement that the form of the
communication be public. Had the Legislature intended
to limit the Act to publicly communicated speech, it
could have easily added language to that effect. See In re
M.N., 262 S.W.3d 799, 802 (Tex. 2008). In the absence
of such limiting language, we must presume that the
Legislature broadly included both public and private
communication. Tex. Civ. Prac. & Rem. Code § 27.011.
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Lippincott, 2015 WL 1967025, at *2.

Lippincott confirms that Appellants’ communications come within the ambit

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

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

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

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

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

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

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

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

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

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

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

the religious dispute between the Church and the Rathbuns over ecclesiastical

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

(“‘matter of public concern’ includes an issue related to . . . community well-

being”). In light of this evidence, Lippincott leaves no room for Appellee to argue

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

public concern” within the TCPA.

-3-
 In re Lipsky

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

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

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

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

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

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

Instead, the parties focused on the issue of how clear and specific the non-

movant’s evidence must be. The Church emphasized that Appellee presented no

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

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

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

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

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

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

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

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

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

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

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

TCPA.” Id.
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 Accordingly, the Court’s holding1 provides additional support to Appellants.

Neyland v. Thompson

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellants share common religious interests, including the motivation to guard

against its adulteration. Accordingly, communications among them relating to

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

1
We note that neither Lipsky, Lippincott, nor Serafine involved the third level of inquiry mandated under the TCPA,
as amended in 2013: whether, even to the extent a plaintiff may meet her prima facie burden, a movant has shown
that it nevertheless is entitled to prevail as a matter of law. See TCPA § 27.005(d). We reiterate that the Church
made that showing with respect to each of plaintiff’s four causes of action.

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

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

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

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

Serafine v. Blunt

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

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

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

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

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

protected).

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

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

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

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

We conclude that the term “clear and specific evidence”
refers to the quality of evidence required to establish a
prima facie case, while the term ‘prima facie case’ refers
to the amount of evidence required to satisfy the
nonmovant’s minimal factual burden.

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

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

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

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

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

would be remanded. Id. at *4.2

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

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

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

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

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

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

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

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

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

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

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

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

tactic of combining allegations of protected and unprotected activity under the

label of one ‘cause of action’”). A non-movant, of course, could still go forward
2
The issue of how so-called “mixed claims” are to be treated under the TCPA was neither briefed nor argued in the
Serafine case. From the opinions, it does not appear that Serafine even included the acts other than the lawsuit and
lis pendens within her motion. Thus, the Court did not address or analyze the “mixed claim” issue on its merits.
The issue was discussed in the concurring opinion in Serafine. See 2015 WL 2061922 at *29-30 (Pemberton, J.,
concurring).

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

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

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

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

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

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

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

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

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

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

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

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

contemplation of possible affirmative or defensive litigation or of possible

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

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

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

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

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

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

alleged participation in procuring a criminal prosecution against a plaintiff falls

within the ambit of the anti-SLAPP statute.”).
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 Based on these additional authorities, the Church respectfully re-urges its

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

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

Respectfully submitted,

Of Counsel: /s/ Thomas S. Leatherbury
Thomas S. Leatherbury
Eric M. Lieberman
State Bar No. 12095275
Rabinowitz, Boudin, Standard,
Marc A. Fuller
Krinsky & Lieberman PC
State Bar No. 24032210
45 Broadway, Suite 1700
Vinson & Elkins LLP
New York, New York 10006
2001 Ross Avenue, Suite 3700
Telephone: 212.254.1111
Trammell Crow Center
Facsimile: 212.674.4614
Dallas, Texas 75201
elieberman@rbskl.com
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com

Attorneys for Appellant Church of Scientology International

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US 3519264v.1