in Re Rowland J. Martin

FILED
15-0541
11/3/2015 11:51:32 PM
tex-7670900
SUPREME COURT OF TEXAS

15-0849
Case No. ___________
BLAKE A. HAWTHORNE, CLERK

______________________________________________________________________________

IN THE SUPREME COURT OF TEXAS

In re ROWLAND J. MARTIN,

Relator In His Individual Capacities As Heir and Creditor

Of The Estate Of Johnnie Mae King

_____________________________________________________________________________

PETITION FOR WRITS OF MANDAMUS AND INJUNCTION
_____________________________________________________________________________
On Petition For Extraordinary Writ Relief from the Fourth District Court of Appeals,
San Antonio, Texas in Case No. 04-14-00483-CV and Case No. 04-15-00271-CV
_____________________________________________________________________________

Submitted By:

Rowland J. Martin
 IDENTITY OF THE INTERESTED PARTIES

1. Petitioner: Rowland J. Martin
In His Individual Capacities As Heir,
Administrator and Class 2 Lienholder of The
Estate Of King

Represented by: Pro se

2. Respondents

a. Texas Fourth District Court of Appeals,
Bexar County, Texas

b. The Bexar Appraisal Review Board and The
Bexar Appraisal District

Represented By: Elizabeth Conry Davidson, Esq.
926 Chulie Drive
San Antonio, TX 78216

c. The County Of Bexar

Represented By: Don Stecker, Esq.
Linebarger, Goggan, Blair And Sampson
711 Navarro, Suite 300
San Antonio, Texas
3. Real Parties:

a. Edward Bravenec, 1216 West Ave., Inc.,
and The Law Office of McKnight and
Bravenec

Represented by: Glenn Deadman, Esq.
509 S. Main Street
San Antonio, Texas, 78204

b. Linebarger, Goggan, Blair And Sampson

Represented by: Don Stecker, Esq.
Linebarger, Goggan, Blair And Sampson
711 Navarro, Suite 300
San Antonio, Texas

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 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES…………………………………………….…i

TABLE OF CONTENTS…………………………………………………………………….…ii

TABLE OF AUTHORITIES…………………………………………………………………..iii

STATEMENT OF THE CASE…………………………………………………………….…..vi

STATEMENT OF JURISDICTION………………………………………………………….vii

ISSUES PRESENTED………………………………………………………………………...viii

STATEMENT OF THE FACTS…………………………………………………………….….1

A. The Interrelationship Of The Anti-SLAPP And Estates Code Appeals……………...1

B. The Tax Suits Against The Heirs………………………………………………………..1

C. The Probate Court Lis Pendens Expunction …………...………………...……………3

D. The District Court Anti-SLAPP Dismissal Proceeding………………………………..4

ARGUMENT AND AUTHORITIES…………………………………………….…………….5

A. The Standard Of Review For Mandamus Relief………………………………………5

B. The Points Of Error……………………………………………………………………..6

1. The Court of Appeals Abused Its Discretion In The Anti-SLAPP Appeal
By Presuming That The Probate Court Expunction Order Was Valid As
Applied To Relator’s Purchase Money Lien Interest………………………….6

2. The Court Of Appeals Abused Its Discretion In The Anti-SLAPP Appeal By
Stigmatizing Relator With A Misapplication Of The Vexatious Litigant
Statute For The Purpose Of Restraining His Future Speech………………...8

3. The Court Of Appeals Abused Its Discretion In The Estates Code Appeal
By Carrying Issues Over Which This Court Has Dominant Jurisdiction…..11

4. The Bexar County Tax Authorities Abused Their Discretion With Collection
Practices That Departed From The Definition Of Real Property That Was
Judicially Approved In San Antonio Area Foundation...................................13

PRAYER FOR RELIEF………………………………………………………………………14

APPENDIX

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 TABLE OF AUTHORITIES

Cases:

Akinwamide v. Transportation Insurance, Co., 147 S.W.3d 623 (Tex. App. - 14th
Dist. 2006)………………………………………………………………………………………..10

Archer v. Griffith, 390 S.W. 735 (Tex. 1965)……………………………………………………..8

Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009
Tex. App. LEXIS 1707 (Tex. App. - Corpus Christi, 2009, pet. den’d)………………………….8

Birdo v. Holbrook, 775 S.W.2d 411, 412B13 (Tex. App. Fort Worth 1989,
writ denied)………………………………………………………………………………………10

Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597, 600 (Tex. App.
-San Antonio 1996, writ denied) ……………………………………………………………….5, 9

DaimlerChrysler Corporation v. Inman, 252 S.W. 3d 299 (Tex. 2008)………………………….7

Diaz v. Commission For Lawyer Discipline, 953 S.W. 3d 435 (Tex. App.-
Austin, 1997)……………………………………………………………………………………..13

Estate of Johnnie Mae King, Case No. 04-15-00271-CV (Tex. App. - San Antonio)……………1

Ex Parte Shaffer, 649 S.W. 2d 300 (Tex. 1983)……………………………………………1, 8, 12

Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877)……………………………………..7

Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam)………………………….5,6

San Antonio Area Foundation v. Lang, 2000 WL 1675984 (Tex. 2000)………………. 1, 5, 8, 13

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.,
Case No. 13-1371, ___ S.Ct. ___ 2015 WL 2473449 (June 25, 2015)……………………………

In re Allstate County Mutual Insurance Company, 2014 WL 5285850 (Tex. App.
—Houston [1st Dist.] Oct. 16, 2014)…………………………………………………………....12

In re Baylor Medical Center at Garland, 280 S.W.3d 227 (Tex. 2008)………………………….6

In re Cohen, 340 S.W.3d 889, 900 (Tex.App.-Houston [1st Dist.] 2011,
orig. proceeding)…………………………………………………………………………………..6

In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204 (Tex. 2009)………………….13

iii
In re Mousa, No. 01–04–00485–CV, 2004 WL 2823172, at *2 (Tex.App.-
Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem.op.)…………………………………..6

In re IH 10 Colony, Case No. 01-14-00775-CV, 2014 WL 7914874 (Tex. App. –
Houston, 2014)………………………………………………………………………………….6,9

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)……………...11

In re Schmidt, 285 S.W.3d 451(Tex. 2009)…………………………………………………...5,6,8

In re SWEPI, LP, 85 S.W.3d 800, 808–09 (Tex. 2002) (orig. proceeding)……………………….6

In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)…….…6

James v. Brown, 637 S.W.2d 914, 916 (Tex.1982)……………………………………………...10

James, et al, v. Calkins, 446 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2014)……………...10

Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931, 934 (Tex.Comm'n
App. 1935, opinion adopted by Sup.Ct.)………………………………………………………….7

Kennedy v. Eden, 837 S.W.2d 98, 98–99 (Tex. 1992) (orig. proceeding) (per curiam)…………..9

Kinney v. BCG Attorney Search, Inc., 443 S.W.3d 87, 98 (Tex., 2014)………………………...10

Larry York v. State, 373 S.W. 3d 32 (2012) ..………………………………….………………..11

Long Beach Mortgage Company v. Evans, 284 S.W.3d 406 (Tex.App.-Dallas 2009,
cert denied)…………………………………………………………………………………….….8

Martin v. Bravenec, et al, Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.
- San Antonio, rehearing denied June 8, 2015)…………………………………………………...1

Martin v. Bravenec, et al, Case No. 14-50093, 2015 WL 5752439 (5th Cir, October
2, 2015)……………………………………………………………………………………………1

National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61-62 (Tex.1993)…...vii

Nwangwu v. Dinkins, No. 14–97–01100–CV, 1997 WL 688943, at *1 (Tex.App.-
Houston [14th Dist.] Nov. 6, 1997, orig. proceeding)…………………………………………….6

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942)…………………………... 9

San Antonio Area Foundation v. Lang, 2000 WL 1675984 (Tex. 2000)……………....1, 8, 13, 14

Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App. – Houston, 2014)………………………...10

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Sikes v. Global Marine, 881 F. 2d 176 (5th Cir. 1989)…………………………………………..11

Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App. -San Antonio 2000, no pet.)………………...10

Thomas v. Miller, 906 S.W.2d 260 (Tex. App. – Texarkana 1995) …………………………… 11

Univ. of Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961) ……………………………………..10

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000)………………………...12

Statutes

Estates Code Section 1002.027………………………………………………………………….13

Estates Code Section 32.001(c)………………………………………………………………….vii

Tex. Civ. Prac. & Rem Code Section 37.005…………………………………………………….8

Tex. Civ. Prac. & Rem. Code Ann. Section 11.051 (Vernon 2006)……………………………...9

TEX. CIV. REM & PRAC. CODE Section 27.008……………………………………………..vii

TEX. GOV’T CODE § 22.002(a)……………………………………………………………….vii

Tex. Probate Code § 58(c) (Vernon Supp. 1999)……………………………………………….13

Tex. R. Civ. Pro. 301……………………………………………………………………………..7

28 U.S.C. 1927……………………………………………………………………………5, 13, 14

v
 STATEMENT OF THE CASE

Nature of the Case: By this mandamus proceeding, Relator seeks to preserve the opportunity
to be heard on rehearing in this Court. The Court of Appeals has asserted
jurisdiction in Case No. 04-15-00271-CV, an Estates Code appeal
asserting that the Probate Court has jurisdiction to correct clouds on title to
real property of the Estate of Johnnie Mae, in a manner that is inherently
interrelated to Case No. 15-5041, an appeal from an appellate judgment
denying anti-SLAPP dismissal relief in Case No. 045-14-00483-CV. The
interrelationship between the cases arises in law because the Estates Code
appeal constitutes an aspect of suit in suit litigation for the Bravenec
controversy, and ion fact because the Bexar County tax authorities’
clouding of title to real property of the Estate of Johnnie Mae King during
the entire course of the probate court appearances by the Law Office of
McKnight and Bravenec, from 2003 to 2005, through nonjusticiable tax
suits against the heirs of the estate that McKnight and Bravenec failed to
contest. In one case, the tax authorities claimed to have authority to collect
taxes against demolished improvements. Relator secured orders to vacate
the judgments but the uncorrected accounts still cloud estate property.

The Respondents: The Fourth District Court of Appeals, Bexar County, Texas; the Bexar
Appraisal Review Board; and the Honorable Carlos Uresti, Tax Assessor-
Collector for Bexar County, Texas.

Course of Proceedings
And The Respondents’
Challenged Actions: Mandamus relief is needed to protect Relator from undue vexatious
litigant treatment arising from a part of the Court of Appeals’ judgment in
Case No. 04-14-00483-CV that was not appealed in Case No. 15-0541,
and from two recent orders in his Estates Code appeal in Case 04-15-
00271-CV. On October 2, 2015, the Fifth Circuit vacated the legal
rationale for a federal court sanctions order which had previously formed
the basis for state court vexatious litigant treatment upheld by the Fourth
Court of Appeals. On October 20, 2015 and October 22, 2015, the Fourth
Court of Appeals declined to abate Relator’s suit in a suit issue in the
Estate Code appeal implicating the Fifth Circuit’s decision, but at the
appellees’ request designated their vexatious litigant issue from Case No.
04-14-00483-CV for review as part of the same appeal. On October 26,
2015 and October 28, 2015, respectively, this Court and the U.S. Court of
Appeals, accepted Relator’s motions for rehearing. Because the rehearing
process deprives the Court of Appeals of jurisdiction over interrelated
matters, mandamus lies to correct the Court of Appeals’ past and present
errors relating to vexatious litigant treatment, and also to correct the tax
authorities’ continuing attempts to enforce their past exertions of tax
power against the estate’s non-taxable property interests.

vii
 STATEMENT OF JURISDICTION

This Court has original jurisdiction to issue the requested writ of mandamus and writ of

injunction against the Respondents under TEX. GOV’T CODE § 22.002(a) (writ authority

extends to “any officer of state government except the governor, the court of criminal appeals, or

a judge of the court of criminal appeals”) and Estates Code Section 32.001(c). Although

mandamus jurisdiction is not dependent on appellate jurisdiction, see, e.g., National Union Fire

Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61-62 (Tex.1993) (conditionally granting

mandamus to compel court of appeals to allow filing of statement of facts), the Court’s writ

jurisdiction is enlarged in this particular case by provisions of the Texas Citizens Participation

Act (TCPA) which grant the courts of appeals writ jurisdiction to effectuate the anti-SLAPP

purposes of that act. TEX. CIV. REM & PRAC. CODE Section 27.008. The Court of Appeals

previously denied writ relief from the gag order in Case No. 04-14-0841-CV based on an

analogous petition in the TCPA appeal in Case No. 04-14-00483-CV, and has spoken at least

four different times on the matter of vexatious litigant treatment of which Relator complains –

once by entering judgment for the Bravenec parties in Case No. 04-14000483-CV, twice by

declining to exercise writ jurisdiction in Case No. 04-14-00841-CV, and now once in Case No.

04-15-00271-CV even after the Fifth Circuit’s recent change of position. Each time the Court of

Appeals maintained the status quo ante. Because the matter of vexatious litigant status now lies

within the dominant jurisdiction of this Court, serious harm to the judicial process and the

capacity of this Court to grant effective relief could arise, absent prompt relief from exceptional

circumstances for hich no adequate remedy at law is or will be available by a regular appeal.

viii
 ISSUES PRESENTED

1. Whether the Court of Appeals abused its discretion in Case No. 04-14-00483-CV by
presuming the validity of the expunction order issued by the Bexar County Probate Court
#1 on March 19, 2014?

2. Whether the Court of Appeals abused its discretion in Case 04-14-00483-CV by
affirming the temporary injunction order granted orally by the 28th District Court of
Appeals on July 9, 2014 and in writing on July 17, 2014?

3. Whether the Court of Appeals abused its discretion in Case 04-15-00271-CV by carrying
with the appeal issues within the dominant jurisdiction of the Texas Supreme Court?

4. Whether the Bexar County tax authorities created an improper cloud on title within the
remedial jurisdiction of the probate court to correct by exerting ad valorem tax powers
against non-taxable property interests in violation of the judicially-approved statutory
definition of real property in San Antonio Area Foundation v. Lang?

ix
 STATEMENT OF THE FACTS

A. The Interrelationship Of The Anti-SLAPP And Estates Code Appeals

Relator seeks extraordinary relief to enforce due process rights in his Anti-SLAPP appeal

in this Court and in his Estates Codes appeal in the Fourth Court of Appeals. The Court’s ability

to grant effective relief in Case No. 15-0541 is impaired by past proceedings of the court of

Apppeals in Martin v. Bravenec, et al, Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.

- San Antonio, rehearing denied June 8, 2015) (“Martin v. Bravenec I”), by recent appellate

orders in Estate of Johnnie Mae King, Case No. 04-15-00271-CV (Tex. App. - San Antonio) on

October 20 and 22, 2015, and by unnoticed proceedings in the Probate Court on July 30, 2014

after the filing of the final notice of appeal on July 27, 2015. On October 2, 2015, the Fifth

Circuit issued a decision to vacate sanctions and is rehearing Martin v. Bravenec, et al, Case No.

14-50093, 2015 WL 5752439 (5th Cir, October 2, 2015). Exhibit A-1. In view of the latter

change in the law of the case, the judicial process is well served by intervention on due process

grounds in the Court of Appeals and the Probate Court. Ex Parte Shaffer, 649 S.W. 2d 300 (Tex.

1983) (attached as Exhibit A), and San Antonio Area Foundation v. Lang, 2000 WL 1675984

(Tex. 2000).

B. The Tax Suits Against The Heirs

The operative facts regarding the tax suits against the heir are a matter of record in Case

No. 15-0541 and Case No. 04-15-00271-CV. Tex. R. App. P. 52.7(a)(1). Relator is the surviving

heir and a creditor of the Estate of Johnnie Mae King and is the owner of a purchase money lien

attached to real property known as 1216 West Ave., in San Antonio, Texas, as shown in Exhibits

A-6 to A-8. Real party Edward Bravenec portrays himself as the foreclosing party in an arms-

length second lien transaction, but he and his firm were Relator’s attorneys of record in Probate

1
Case 2001-PC-1263 in his capacity as Estate Administrator. His firm retained unearned

compensation after abandoning the representation without challenging tax suits that clouded real

property of the estate. As a result, Relator was personally compelled to defend the litigation

Bravenec and his firm abandoned. Exhibit A-16.

From 2003 to 2005, while the Law Office of McKnight and Bravenec represented the

Relator and the Estate of King, Bexar County maintained ad valorem tax litigation against the

heirs of the Estate Case No. 2004-TA1-02802 in which it purported to assert claims against the

late Opal Gilliam and Rowland Martin based on their ownership of unliquidated heirship

interests in the estate. From 2006 to 2009, following McKnight and Bravenec’s abandonment of

the case in 2005 and following the demolition of improvements to one of estate’s real properties

in 2006, the private tax collector for the County continued the County’s litigation with

representations to the 224th District Court in Case No. 2004-TA1-02802 that the County had the

right to appraise, assess, and collect ad valorem taxes on improvements which had been

demolished by the City of San Antonio in 2006 and which were known to be nonexistent. See

Exhibits A-11 to A-14, C-9 and C-10.

On October 23, 2009, after the heirs reached a settlement agreement in Exhibit A-15

which assigned to Relator the sole heirship rights to the estate’s real property, and after demands

by Relator to the remove account errors clouding the estate’s title to its property, the Chair of the

Appraisal Review Board for Bexar County, Texas issued a finding which states: “The Board

determined that the appraisal records are correct as to the errors alleged in the protest and

therefore ordered that the protest be denied and the applicable records not be changed as

requested in the protest.” See, Bexar Appraisal Review Board Notice Of Orders, dated October

23, 2009. The County’s private attorneys then proceeded to secure a default judgment against the

2
heirs in Case No. 2004-TA1-02802 while the case had been removed to federal district court.

Exhibit C-8.

Subsequently, Relator sued Bravenec, his firm and his alter-ego company, in federal court

in 2010 to recover the subject property of their post-petition foreclosure in his derivative capacity

as the successor of Moroco Ventures, LLC. Exhibit B-2. Relator also appealed the appraisal

review board decision to the Probate Court, and then commenced a bill of review case against

the County in 2011 in part to set aside a default judgment in Case No. 2004-TA1-02802 by the

224th District Court in which that court granted the County’s claim for taxes against nonexistent

improvements. Exhibit A-7. The 224th District Court vacated the judgment in Case No. 2004-

TA1-02802 in 2013, and the summary judgment for Bravenec that the federal district court

granted in 2012 is the subject a pending rehearing for plain error in Case No. 14-50093 as of

October 2, 2015. Exhibits A-1 to A-14.

C. The Probate Court Lis Pendens Expunction

On March 19, 2014, prior to the Fifth Circuit’s change of position, Probate Judge Polly

Jackson Spencer signed an order granting Bravenec’s motion to expunge two probate court lis

pendens filings, and also noticed Bravenec’s withdrawal from the probate case for the first time

and on unconditional terms. The lis pendens order states that the subject property of the

controversy “… is not an asset owned by the Estate of Johnnie Mae King … nor does the estate

have an interest in said property.” The discharge order states “that Mr. Bravenec withdrew as of

October 5, 2006 and no further action thereon is necessary.” See Exhibits A-3. The signings took

place prior to the termination of her term in office on December 31, 2014.

The Hon. Kelly M. Cross succeeded Judge Spencer as the presiding judge of the Bexar

County Probate Court #1 in 2015. Following the change in office, Relator petitioned the Probate

3
Court for a bill of review to correct the expunction and discharge orders. The Bravenec parties

filed responsive pleadings, but no date for a trial has been set and no pre-trial orders have been

requested. Relator has appeared before Judge Cross on and after March 31, 2015 to oppose the

County’s motion to dismiss his attempts to enforce the real property definition provided under

Estates Code Section 1002.027. The Probate Court granted the motion over Relator’s objections,

and after post-judgment proceedings, an Estates Code appeal was taken to the Fourth District

Court of Appeals in Case No. 04-15-00271-CV. On July 21, 2015, Judge Cross issued a

summons in the name of the “Estate of Rafael G. Trevino” with an order directing that cause be

shown why removal proceeding should be held. After Relator’s filing on July 27, 2015 of a final

notice of appeal addressed to the July 21st show cause order, Judge Cross issued an order

purporting to remove Relator from his appointment as Estate Administrator for which Relator

had no notice until November 2, 2015. Exhibit A-9, A-10 and C-5.

D. The Anti-SLAPP Dismissal Proceeding

Familiarity with Bravenec’s suit for tortious interference with contractual relations in the

285th District Court and the Fourth Court of Appeals is assumed. On October 26, 2015, this

Court accepted Relator’s Motion For Rehearing for filing in Case No. 15-0541 relating back to

the anti-SLAPP proceedings below. The anti-SLAPP appeal implicates the same subject matter

that forms the basis Relator’s motion to abate and for leave to amend in Exhibit C-2 and the

County’s motion for vexatious litigant treatment and damages in Exhibit C-4. Most notably, the

County relies on a misconstruction of stale federal court rulings to contend that the Court of

Appeals should dismiss the Estates Code appeal and assess damages because Relator was

“branded” in the past as a vexatious litigant. Exhibits C-1 to C-4.

4
 Due to these exceptional circumstances, Relator takes exception to the state appellate

court’s past and present reliance on the following orders, all of which deprive due process and

structurally impair effective relief in Case No. 15-0541:

(1) the order to expunge lis pendens issued by the Bexar County Probate Court #1 in Probate
Case No. 2001-PC-1263 on March 19, 2014 (Exhibit A-4) which the appellate court
relied upon in Martin v. Bravenec I;

(2) the temporary injunction order of the 285th District Court entered orally on July 9, 20
May 13, 2015 and in written form on July 17, 2014 (Exhibit B-1), and which cites the
federal court judgment that was partially vacated in Martin v. Bravenec, et al, Case No.
14-50093, 2015 WL 5752439 (5th Cir, October 2, 2015) (“Martin v. Bravenec II”); and

(3) the orders on October 20th and 22nd of 2015 in the pending Estates Code appeal in
Estate of Johnnie Mae King, Case 04-15-00271-CV (Exhibits C-1 and C-3).

To avoid piecemeal litigation, Relator joins the matter of the County’s departures from the

Estates Code definition of real property, and requests a writ of injunction pursuant to 28 U.S.C.

1927 to enjoin collection activity on estate accounts in violation of San Antonio Area

Foundation, Id. and to vacate the bill of costs totaling $162.00 issued by Bexar County Clerk

Gerry Rickoff in Exhibit A-10.

ARGUMENT AND AUTHORITIES

A. The Standard Of Review For Mandamus Relief

A writ of mandamus is available to correct a clear abuse of discretion or violation of legal

duty for which no adequate remedy at law is available. In Re Schmidt, 285 S.W.3d 451(Tex.

2009); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). Mandamus

jurisdiction lies to correct trial court orders addressed to the filing of lis pendens notices, Flores

v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam) (orig. proceeding to set aside void

expunction order), and to correct orders that improperly withhold the absolute privilege assigned

by law to a lis pendens filing in an ongoing judicial proceeding, Chale Garza Investments, Inc. v.

5
Madaria, 931 S.W.2d 597, 600 (Tex. App.--San Antonio 1996, writ denied). Mandamus relief

has also been extended to correct an error committed by a judge whose term has ended, In Re

Schmidt, 285 S.W.3d 451(Tex. 2009); to correct a trial court’s violation of TCPA automatic stay

requirements, In re IH 10 Colony, Case No. 01-14-00775-CV, 2014 WL 7914874 (Tex. App. –

Houston, 2014) (mandamus proceeding to correct TCPA automatic stay violation); and to correct

an improper disposition of a party’s motion to abate. In Re Schmidt, Id., and In re Baylor

Medical Center at Garland, 280 S.W.3d 227 (Tex. 2008).

B. The Points Of Error

1. The Court of Appeals Committed An Abuse Of Discretion In The Anti-
SLAPP Appeal By Presuming That The Probate Court Expunction Order
Was Valid As Applied To Relator’s Purchase Money Lien Interest.

a. Mandamus Law

As a general rule, an allegation that a trial court has improperly expunged a notice of lis

pendens states a claim for mandamus relief. Flores v. Haberman, Id. See also, In re Cohen, 340

S.W.3d 889, 900 (Tex.App.-Houston [1st Dist.] 2011, orig. proceeding) (mandamus recognized

as appropriate remedy for lis pendens dispute); In re Mousa, No. 01–04–00485–CV, 2004 WL

2823172, at *2 (Tex.App.-Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem.op.) (writ of

mandamus held appropriate remedy); see also Nwangwu v. Dinkins, No. 14–97–01100–CV,

1997 WL 688943, at *1 (Tex.App.-Houston [14th Dist.] Nov. 6, 1997, orig. proceeding) (appeal

from order cancelling lis pendens corrected by mandamus). Similarly, an action taken by a

probate court acting under a misapprehension of its jurisdiction is correctible with mandamus

relief, In re SWEPI, LP, 85 S.W.3d 800, 808–09 (Tex. 2002) (orig. proceeding); In re Sw. Bell

Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (finding venue order

6
void because it was issued outside of the court’s plenary power, and it, therefore, amounted to an

abuse of discretion).

b. The Expunction Order And Show Cause Order Result From Void Exertions
Of Probate Jurisdiction.

The expunction order departs from guiding jurisdictional principles. As a threshold

matter, the sufficiency of a judgment is ordinarily contingent on compliance with Rule 301 of the

Texas Rules of Civil Procedure which provides in part that “[t]he judgment of the court shall

conform to the pleadings.” Tex. R. Civ. Pro. 301; Jennings v. Texas Farm Mortg. Co., 124 Tex.

593, 80 S.W.2d 931, 934 (Tex.Comm'n App. 1935, opinion adopted by Sup.Ct.). (plaintiff must

recover upon the facts stated in his pleadings and cannot recover on a right different from that

asserted …”). The same guiding principle teaches that “[a] court has no jurisdiction over a claim

asserted by a plaintiff without standing to assert it.” DaimlerChrysler Corporation v. Inman, 252

S.W. 3d 299 (Tex. 2008).

Here the Probate court erred in failing to consider that Bravenec’s pleading failed to cite

the March 7, 2014 notice of lis pendens. Exhibit A-4. The third decretal clause of the expunction

order, stating that “The ‘Further Notice of Lis Pendens’ filed on or about March 7, 2014, with

regards to the property at 1216 West Ave. is hereby cancelled and is null and void,” has no

textual support in the underlying expunction motion. For that reason, the Probate Court

misapprehended its expunction jurisdiction in neglecting to consider Relator’s asserted of a

direct interest in the subject property as a purchase money lien holder and de facto creditor of the

estate. Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877). Given Relator’s status as a

purchase money lien holder, Bravenec was estopped by his own deed from contesting an interest

in his chain of title superior to his. The resulting impairment of contractual relations renders the

expunction proceeding void on its face, at least with respect to the lis pendens notice dated

7
March 7, 2014. Long Beach Mortgage Company v. Evans, 284 S.W.3d 406 (Tex.App.-Dallas

2009, cert denied).

c. There Is No Adequate Remedy At Law For The Resulting Impairment Of
Contractual Obligations.

There is no adequate remedy at law in the Probate Court for the ongoing impairment of

contractual obligations owed by the Bravenec parties under Archer v. Griffith, 390 S.W. 735

(Tex. 1965) because although Relator’s final notice of appeal on July 27, 2015 deprived the

Probate Court of plenary jurisdiction, that Court conducted the show cause hearing in Relator’s

absence on July 30, 2015 and entered a removal order on August 6, 2015 without notice to

Relator. Exhibit A-9. The Probate Court’s reliance on a summons issued Rafael G. Trevino as

the predicate for an order to remove Relator as Administrator unduly impairs contractual

relations. At the time McKnight and Bravenec acquired their security interest, the County was a

party to ad valorem tax suits against heirs of the estate which had clouded title to real property of

the estate under a legal theory that was expressly disapproved in San Antonio Area Foundation,

Id. McKnight and Bravenec failed to challenge the County’s error as a cloud on title to estate

property, and instead abandoned the case in 2005 to foreclose a second deed of trust that had

been granted in contemplation of receiving their services for that purpose. By foreclosing their

second lien interest under these circumstances, they arguably converted their security interest

into compensation that was unearned due to their omission to oppose the County’s tax suits.

Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009 Tex. App. LEXIS

1707 (Tex. App. - Corpus Christi, 2009, pet. den’d) (upholding estate administrator’s right of re-

entry in probate case after a void ab initio post-petition sale of a bankruptcy asset). There is no

adequate remedy at law because the actions taken by the Probate Court in 2014 and 2015 unduly

8
abridge Relator’s right to be heard under provisions of Tex. Civ. Prac. & Rem Code Section

37.005 which guarantee access to the Probate Court. In Re Schmidt, Id.; Ex parte Shaffer, Id.

2. The Court Of Appeals Abused Its Discretion In The Anti-SLAPP Appeal
By Stigmatizing Relator With A Misapplication Of The Vexatious Litigant
Statute For The Purpose Of Restraining Future Speech.

a. Mandamus Law

Mandamus relief clearly lies to correct departures from settled precedent on absolute

privilege, Chale Garza Investments, Id., and to remedy anti-SLAPP law violations, In re IH 10

Colony, Id. Here, recognition of an absolute privilege against vexatious litigant treatment

effectuates the guiding principle that “ … the good it accomplishes in protecting the rights of the

general public outweighs any wrong or injury which may result to a particular individual..."

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942); see also James v. Brown,

637 S.W.2d 914, 916 (Tex.1982) (justice requires full disclosure unhampered retaliatory suits);

and Kennedy v. Eden, 837 S.W.2d 98, 98–99 (Tex. 1992) (orig. proceeding) (per curiam) (stating

that the trial court abused its discretion in banning a party from attending any depositions and

that the gag order left the relator with no adequate remedy on appeal).

b. The Vexatious Litigant Finding Adopted By The State District Court
And Affirmed By The State Court of Appeals Is Intrinsically Void.

It is evident from the face of the record that the appellate court’s judgment departed from

its precedent calling for the extension of absolute privilege for the filing of lis pendens notices

that was recognized in Chale Garza Investments, Id. Exhibits B-1 to B-5. The Court of Appeals’

acknowledgement that the trial court’s temporary injunction order conflicted with the TCPA

automatic stay also calls into question the propriety of the trial court’s decision to issue the gag

order in Exhibit B-4 orally on July 9, 2014 and in writing on July 17, 2014. IH 10 Colony, Id.

Relator notes that the appellate court’s decision to uphold the trial court’s pronouncement of

9
vexatious litigant status was calculated to restrain future speech yet was wholly unsupported by

the statutory requirements of the vexatious litigant statute in Tex. Civ. Prac. & Rem. Code Ann.

Section 11.051 (Vernon 2006).

According to persuasive authority on point, the Texas Courts do not claim to possess

inherent authority to impose vexatious litigant status on the defendant party of a trial court

proceeding. See Akinwamide v. Transportation Insurance, Co., 147 S.W.3d 623 (Tex. App. -

14th Dist. 2006) citing Univ. of Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961); Birdo v.

Holbrook, 775 S.W.2d 411, 412B13 (Tex. App. Fort Worth 1989, writ denied). According to the

latter guiding principle, the decision to uphold the temporary injunction order referring to

vexatious litigant status was void ab inito. Id. The intent of the vexatious litigant statute

moreover is ordinarily to restrain plaintiff parties; even then the proponent-defendant must

timely file a motion to trigger vexatious litigant procedures on or before the 90th day after the

date the filing of his original answer. Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App. -San

Antonio 2000, no pet.) (motion filed outside the ninety-day period was untimely).

The designation is arguably void where, as here, the proponent neglected to move the trial

court pursuant to the statute, where an intervening order vacates the law of the case supporting

the designation, and where the party opposing the designation was in fact engaged in protected

speech covered by Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App. – Houston, 2014) (real

estate dispute involved a matter of public concern), and in protected conduct justifying a

privilege under James, et al, v. Calkins, 446 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2014)

(TCPA holding on lis pendens rights). In fact, several decretal clauses of the injunction order

restraining contacts with potential witnesses qualify as gag orders per se because their text

pertains to future speech. Construed in light of the Fifth Circuit’s change of position on October

10
2, 2015, the outcome in this case illustrates the Court’s well founded warning against prior

restraints on speech in Kinney v. BCG Attorney Search, Inc., 443 S.W.3d 87, 98 (Tex., 2014),

that “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. at . p. 98

c. The Benefits Of Mandamus Outweigh The Detriments With Respect
To The Setting Aside Of Intrinsically Void Vexatious Litigant Treatment.

There is no adequate remedy at law in Case No. 04-15-0271-CV for the part of the

appellate court’s judgment that affirms the attribution of vexatious litigant treatment in Martin v.

Bravenec I. As a general rule, the adequacy of an appellate remedy in an interlocutory

proceeding is assessed by considering a number of factors and balancing the benefits of

mandamus review against the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex.

2004) (orig. proceeding). Mandamus has detrimental implications for the validity of Bravenec’s

reliance on the federal law paradigm in Sikes v. Global Marine, 881 F. 2d 176 (5th Cir. 1989).

Sikes holds that a post-petition foreclosure transaction in violation of an automatic stay is merely

voidable and not void. However, Sikes does not control the facts of this case because Larry York

v. State, 373 S.W. 3d 32 (2012) disapproves that result. In this regard, the benefits outweigh the

detriments of mandamus considering that Relator’s speech and conduct in vindication of York is

protected under Chale Garza Investments, Id., and that Bravenec secured the original vexatious

litigant finding by disrupting the machinery of the judicial process to circumvent the

requirements of both the vexatious litigant statute and the TCPA’s automatic stay provisions.

Thomas v. Miller, 906 S.W.2d 260 (Tex. App. – Texarkana 1995) (mandamus to correct post-

petition proceeding).

11
 3. The Court Of Appeals Abused Its Discretion In The Estates Code Appeal
By Carrying Issues That Are Inherently Interrelated With Matters Over
Which This Court Has Dominant Jurisdiction.

a. Mandamus Law

Requiring a party to prepare for and litigate claims that are not ripe and may be rendered

moot is an abuse of discretion which has no adequate remedy by appeal. In re Allstate County

Mutual Insurance Company, 2014 WL 5285850 (Tex. App.—Houston [1st Dist.] Oct. 16, 2014).

The ripeness doctrine examines when claims may be brought and asks, “whether, at the time a

lawsuit is filed, the facts are sufficiently developed ‘so that an injury has occurred or is likely to

occur, rather than being contingent or remote.’” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d

849, 851-52 (Tex. 2000).

b. The Denial Of Abatement Relief And Designation Of Vexatious Litigant
Issue For Review In Case No. 04-15-00271-CV Is An Abuse Of Discretion.

Ripeness doctrine is applicable to restrain the Court of Appeals from denying Relator’s

requests for abatement and amendment relief in Exhibit C-2, and from designating the County’s

vextatious litigant issue in Exhibit C-4 for review with the appeal. Both actions in Exhibits C-1

and C-3 subject Relator unjustly to the burden of defending claims that are not ripe for review by

the appellate court and were vacated by the Fifth Circuit’s decision on October 2, 2015. Ex parte

Shaffer, Id.

c. There Is No Adequate Remedy At Law Through A Regular Appeal.

An objective balancing of benefits and detriments indicates that an adequate remedy at

law for this abridgement of Relator’s due process rights is unavailable in the Court of Appeals.

Allowing Bexar County to go forward with its vexatious litigant issue in the Court of Appeals is

unjust in that the County’s motion on October 21, 2015 attempts to relitigate an issue about

Relator’s standing to appear pro se for the Estate of King that was first resolved in his favor in an

12
oral ruling by the Probate Court in Probate Case No. 2001-PC-1263 on March 31, 2015, Exhibit

A-7, and was later resolved in his favor by the 150th District Court in Case No. 2015-CI-04779.

Exhibits C-6 and C-7. An appeal from a future final judgment on a vexatious litigant issue in the

Estates Code appeal, after the Court of Appeals would have already adjudicated the interrelated

subject matter, would simply force Relator to attempt to relitigate in the Texas Supreme Court

the same interrelated subject matter that previously formed the basis of the Estates Code and

Anti-SLAPP appeals. Under the circumstances, mandamus has substantial benefits as an

interlocutory remedy for structural error.

4. The Bexar County Tax Authorities Abuse Their Discretion With Collection
Practices That Depart From The Definition Of Real Property That Was
Judicially Approved In San Antonio Area Foundation And Recodified In
Estates Code Section 1002.027.

“Exceptional circumstances” justify mandamus review when a state actor shows “such

disregard for guiding principles of law that the harm . . . is irreparable.” In Re Columbia Medical

Center of Las Colinas, 290 S.W.3d 204 (Tex. 2009). Here, mandamus relief to enforce 28 U.S.C.

1927 is appropriate in light of the County’s multiplicitous litigation and bad faith conduct

through its tax collection agents. Diaz v. Commission For Lawyer Discipline, 953 S.W. 3d 435

(Tex. App.- Austin, 1997) (prohibiting attorney conduct that might corrupt litigation). In San

Antonio Area Foundation, the Court noted that “[t]he Probate Code defines personal property as

‘interests in goods, money, choses in action, evidence of debts, and chattels real’ … Promissory

notes, net-profit agreements, and cash are personal property, not real property.” Id. (citing Tex.

Probate Code § 58(c) (Vernon Supp. 1999)). Estates Code Section 1002.027 applies the same

fundamental definition. Under both, the County abused the judicial process in Case No. 2004-

TA1-02802 and 2003-TA1-02385 by treating subject matter other than real property which the

County has authority to tax as part of the res of its litigation. The practice of subjecting owners

13
of unimproved land to same burdens as an owner of improved land constitutes an arguable form

of systemic economic discrimination in comparison to the treatment of unimproved land owners

who are not subjected to unequal and non-uniform treatment for tax purposes. Cf., Texas Dept.

of Housing and Community Affairs v. Inclusive Communities Project, Inc., Case No. 13-1371,

___ S.Ct. ___ 2015 WL 2473449 (June 25, 2015). The County can and should be restrained from

assessing excess charges for penalties, fees, interest and costs that accrued while Relator’s

demands for correction were ignored by the County and the Probate Court. Relator respectfully

requests a writ of injunction to pursuant to 28 U.S.C. 1927 to enjoin collection of excess charges

on tax accounts in Case No. 2003-TA1-0-2385 and Case No. 2004-TA1-02802, and on the bill

of costs in Exhibit C-8, in accordance with Ex parte Shaffer and San Antonio Area Foundation.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator prays that the Court grant relief in

law and in equity as he may be justly entitled, including a writ of mandamus to vacate reliance

by the Fourth Court of Appeals on void orders and abuses of discretion by the Probate Court and

the 285th District Court, and a writ of injunction to the County pursuant to 28 U.S.C. 1927.

Dated: November 3, 2015 Respectfully Submitted,

__________/s/____________
Rowland J. Martin

14
 CERTIFICATE OF SERVICE

I certify that I transmitted an electronic copy of this “Petition For Extraordinary Writ

Relief” to the Texas Fourth Court of Appeals, to the Hon. Kelly M. Cross, to the real parties

through Attorney Glen Deadman, Attorneys Conry Davidson and Karen Evertson, and Attorney

Don Stecker, on November 3, 2015.

__________/s/_____________
Rowland J. Martin

CERTIFICATE OF COMPLIANCE

I certify this amended petition for extraordinary relief contains a total of 4,493 words, and

thereby complies with TRAP 9.4(i)(3) (D).

_________/s/______________
Rowland J. Martin

15
 APPENDIX

A-1 Memorandum Opinion in Martin v. Bravenec, et al, Case No. 14-50093, 2015 WL
5752439 (5th Cir, October 2, 2015)

A-2 Fifth Circuit Letter Noticing Acceptance of Motion For Rehearing

A-3 Order on Motion To Expunge of The Bexar County Probate Court #1 dated March 19,
2014

A-4 Motion To Expunge Lis Pendens Of Edward Bravenec

A-5 Answer Of Edward Bravenec To Bill Of Review Petition

A-6 Reporter’s Record and Transcript of Hearing In Bexar County Probate Court #1 on
March 19, 2014.

A-7 Reporter’s Record and Transcript of Hearing In Bexar County Probate Court #1 on
March 31, 2015.

A-8 Third Party Purchase Money Vendor’s Lien Record

A-9 Probate Court Show Cause Orders

A-10 Probate Court Demand For Costs

A-11 Order To Vacate Judgment in Case 2004-TA1-02802

A-12 Order To Vacate Judgment in Case 2003-TA1-02385

A-13 Order To Nonsuit Case 2004-TA1-02802

A-14 Order To Nonsuit Case 2003-TA1-02385

B-1 Temporary Injunction Order of the 285th District Court dated July 17, 2014

B-2 Reporter’s Record and Transcripts of Hearing In the 285th District Court on July 9, 2014

B-3 Reporter’s Record and Transcript of Hearing In The 285th District Court on July 17,
2014.

B-4 Record Excerpts On Forum Shopping Issues From Fifth Circuit Case No. 14-50093

B-5 Admissions of Edward Bravenec in U.S. District Court Case No. SA 11-CV-0414

i
C-1 Order Denying Abatement and Leave To Amend in Case No. 04-15-00271-CV dated
October 20, 2015

C-2 Appellant’s Motion To Abate And For Leave To Amend

C-3 Order Carrying Motion For Damages For Frivolous Appeal in Case No. 04-15-00271-CV
dated October 22, 2015

C-4 Appellee Bexar County’s Motion For Damages For Frivolous Appeal

C-5 Appellant’s Final Supplemental Notice of Appeal in Case NO. 04-15-00271-CV

C-6 Order Denying Motion To Disqualify Pro se Appearances of the 150th District Court

C-7 Bexar County’s Motion To Disqualify Pro Se Appearances

C-8 Orders of the Bexar Appraisal Review Board dated October 23, 2009

C-9 Letter of Attorney Cristina Gonzalez`

C-10 Letter of Claims Adjuster Mario Martinez

C-11 Administrator’s Class 2 Lien Claim

C-12 Answer of Bexar County In Bill Of Review Case 150th District Court Case No. 2015-CI-
04779

ii
 EX PARTE SHAFFER, 649 S.W.2d 300 (Tex. 1983)

Supreme Court of Texas.

EX PARTE SHAFFER

649 S.W.2d 300 (Tex.1983)

Ex parte Craig SHAFFER. his status in retaining an attorney; and (3) to retain an
attorney to represent him in the suit. If these orders
No. C-2019. were not complied with by March 23, Shaffer would
be in contempt and subject to imprisonment.
Supreme Court of Texas.
On March 25, without a formal motion for contempt,
April 20, 1983. notice to Shaffer or a show cause hearing, the court
adjudged him in contempt and ordered Shaffer placed
Appeal from the Probate Court, No . 3, Dallas County
in the county jail "until he purges himself of this con-
tempt . .. . " The court later issued findings of fact and
conclusions of law in support of the contempt order
Dwaine Boydstun, Dallas, for relator.
including statements that: (1) a hearing was held with-
John Exline, Dallas, for respondent. out Shaffer being present; (2) that Shaffer had wholly
failed to comply with the court's order and that such
violation was intentionally designed to delay the tri-
ROBERTSON, Justice. al; and (3) that no motion for contempt, notice, show
cause order or other citation or process was required
In this original habeas corpus proceeding, the relator, because this was a case of direct contempt.
Craig Shaffer, seeks to be discharged from an order of
Probate Court No. 3, Dallas County, committing him The issue here is whether the trial court's March 18
to jail for contempt for failure to comply with an or- order exceeds its statutory authority and is therefore
der of that court requiring him to post a cost bond and void, inasmuch as one may not be held guilty of con-
hire an attorney. We order relator released. tempt for refusing to obey a void order. Ex parte
Lillard, 159 Tex. 18,314 S.W.2d 800 (Tex. 1958); Ex
While serving as Independent Executor for the estate parte Henry, 147 Tex. 31j_,2,1,'i__$_,_W.2d 588 (Tex. 1949) .
of Horace Yates, Shaffer was sued by the widow, Cleta Counsel cites no authority, and indeed we can find
Yates, for alleged breach of his fiduciary duty in that none, which allows a court to require a bond of a de-
capacity. The case was set for trial and continued four fendant or to require any party to retain an attorney.
times at Shaffer's request. On March 16, 1983, Shaffer Rather, in Texas the law is clear that one who invol-
appeared and once again moved for a continuance on untarily comes into court and does not seek any affir-
the grounds that his attorney had been allowed to mative relief cannot be required to post a cost bond.
withdraw three days before trial and he had not yet
Tex.R.Civ.P. 143, 147. Additionally, ordering a party
been able to retain a new attorney. Two days later,
to be represented by an attorney abridges that person's
Judge Ashmore ordered Shaffer (1) to file with the
right to be heard by himself. Tex.R.Civ.P. 7. If Shaf-
court a $10,000 cost bond to indemnify Cleta Yates for
fer's lack of an attorney was being used to unneces-
the costs of delaying trial; (2) to report to the court
sarily delay trial or was abusing the continuance priv-

casetext casetcxt.co m/ case/ ex-parte- shaffer-1 I of 2
 EX PARTE SHAFFER, 649 S.W.2d 300 (Tex. 1983)

ilege, the proper action would have been to order him
to proceed to trial as set, with or without representa-
tion. Accordingly, we hold that the March 18 order is
void.

The relator is discharged.

casetext casetext.com/ case/ ex-parte-shaffer-! 2 of 2
 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT UnitedStatesCourtofAppeals
Fifth Circuit

FILED
October 2, 2015
No. 14-50093
Summary Calendar Lyle W. Cayce
Clerk

ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,

Plaintiff-Appellant
•
V.
•
EDWARD BRAV~NEC, Esquire;•LAW OFFICE OF MCKNIGHT AND
BRAVENEC; 1216 WEST AVENUE, INCORPORATED,

Defendants-Appellees

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:11-CV-414
•

Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Rowland J. Martin, Jr., proceeding prose, appeals orders of the district
court awarding attorney's fees to Edward Bravenec, the Law Office of
McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R.
Crv. P. 11, and striking his pleadings opposing an award offees. 1

·Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

1Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West
Avenue, Incorporated will be referred to collectively as Bravenec.
 No. 14-50093

In 2010, Martin filed a pro se complaint against Bravenec and other
entities alleging multiple causes of action predicated upon a foreclosure
dispute. Bravenec filed a motion for summary judgment that included a
request for sanctions. The district court granted summary judgment to
Bravenec but declined to impose the sanctions requested because Bravenec
failed to comply with the procedural requirements of FED. R. CIV. P. 11(c)(2) .
•
However, the district court sua sponte ordered Martin to show cause why
financial sanctions should not be imposed. Believing that Martin failed to
comply with the show cause order, tlte district court entered an order directing
the clerk of court not to accept additional motions or complaints from Martin
without the court's permission. On appeal, we affirmed the .entry of summary
judgment but did not address the issue of sanctions, as it was not before the
court. See Martin v. Grehn, 546 F. App'x 415 (5th Cir. 2013).
After this Court's opinion issued, Bravenec moved the district court to
expunge a lis pendens lien Martin filed that alleged that the disputed property
was subject to ongoing litigation in federal ~ourt. The district court granted
the motion, and the lien was expunged. Because this Court had not issued the
mandate in Martin's appeal, he filed a new lis pendens lien asserting anew
that the disputed property was subject to ongoing litigation in federal court,
which lead Bravenec to file a motion for sanctions under FED. R. CIV. P. 11 and
TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of
confinement or, alternatively, award attorney's fees in the amount of $10,000.
Without holding a hearing or ordering a response from Martin, the district
court entered an order on December 5, 2013, denying the request for
confinement and granting the request for attorney's fees. The district court
concluded that it was appropriate to award Bravenec attorney's fees because
the district court previously found that Martin violated FED. R. CIV. P. 11(b)(1),

2
 No. 14-50093

(2) and Martin failed to respond to the district court's show cause order.
However, rather than grant Bravenec $10,000 as requested, the district court
ordered Bravenec to file a supplemental motion setting forth the fees actually
incurred during the litigation. Upon receipt of Bravenec's supplemental
motion, the district court determined that Bravenec incurred $7,710 in fees
•
and entered an order on December 27, 2014, awarding that amount to
•
Bravenec. Martin attempted to object to the original and supplemental
motions for a_ttorney's fees on two separate occasions. However, the first set of
pleadings was entered on the docket after the district court's December 5, 2018,
order issued, and the district court ordered the second set of pleadings stricken
on December 30, 2013, on the grounds that the pleadings violated the no filing
sanction previously imposed.
On January 27, 2014, Martin noticed his intention to appeal the district
court's orders granting attorney's fees, affixing the amount of fees to be
awarded, and striking his objections. Martin makes two arguments on appeal.
First, the district court plainly erred in not exercising supplemental
jurisdiction under Sampliner v. Motion Picture Patents Co., 255 F. 242 (2d Cir.
1918), rev'd on other grounds, 254 U.S. 233 (1920), and applying Texas law to
adjudicate his claims against Bravenec. Second, the district court abused its
discretion in awarding Bravenec attorney's fees under Rule 11.
This Court exercises jurisdiction under 28 U.S. C. § 1291, which provides
for an appeal from final orders of the district court. See Southern Travel Club,
Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 130-32 (5th Cir. 1993). The
district court's order awarding attorney's fees under Rule 11 is not final until
the amount to be awarded is determined. Id. at 131. In this case, the order
affixing attorney's fees entered on December 27, 2013, and Martin timely filed

3
 No. 14-50093

his notice of appeal on Monday, January 27, 2014. See FED. R. APP. P.
4(a)(1)(A).
With respect to the first issue, Martin appears to challenge the district
court's entry of summary judgment against Bravenec on the ground that
summary judgment would haYe been improper if the district court correctly
exercised supplemental jurisdiction and applied Texas law to the adjudication
•
of his claims. However, this Court previously affirmed the district court's grant
of summary judgment, and Martin does not explain why he did not or could
not raise the arguments asserted now in his ea.rlier appeal of the judgment.
Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 393
F.3d 599, 607-08 (5th Cir. 2004) (reiterating that a party cannot raise an issue
on appeal that could have been raised in an earlier appeal in the same case).
To the extent that this claim was raised below, it was properly denied.
Turning to the second issue, the district court may sanction a party,
including a pro se litigant, under Rule 11 if it finds that the litigant filed a
pleading for an improper purpose or that the pleading was frivolous. See FED.
R. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon a party's motion if the motion is "made
separately from any other motion," the motion describes the specific conduct
that allegedly violates Rule ll(b), and the motion is served on the party to be
sanctioned 21 days before it is filed in district court. See Marlin v. Moody
National Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing FED. R. CIV.
P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show
cause why conduct specifically described in the order has not violated Rule
11(b). See id. (citing FED. R. CIV. P. 11(c)(3)). Although the district court need
not hold a hearing, it must provide the litigant notice of the proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.

4
 No. 14-50093

See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92 (5th Cir.
1996). The court reviews an award of sanctions under Rule 11 for abuse of
discretion. See Marlin, 533 F.3d at 377. A district court "necessarily abuses
its discretion in imposing sanctions if it bases its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence." Elliott v. Tilton,
64 F.3d 213, 215 (5th. Cir. 1995).
In this case, the district court award of attorney's fees fails to comport
with the requirements. of Rule 11 and denied 1\Zlartin due process. First, the
district court erroneously found that Martin did not .respond to its show cause
order from 2012. In fact, Martin did respond, albeit inarticulately, on January
11, 2013, and January 14, 2013. Next, the district court appears to have
granted Bravenec's motion for attorney's fees without considering Martin's
objections and motions for reconsideration. The district court's original order
granting the motion entered on the docket prior to Martin's objections and fails
to acknowledge the objections. Likewise, the final order assessing the amount
to be paid also fails to reference Martin's December 5, 2013, pleadings and was
entered before Martin's December 27, 2013, objections and motion for
reconsideration, which the district court ordered stricken.
Although the district court may properly enjoin vexatious litigation and
sanction the same, it may not exercise its authority in a manner that deprives
a litigant of his constitutional rights. See Qureshi v. United States, 600 F.3d
523, 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when
it struck Martin's objections. Notably, Martin withdrew the lis pendens lien of
which Bravenec complained upon receiving Bravenec's motion for sanctions
and filed a subsequent lis pendens lien that referenced only state court
litigation. That is the purpose of the 21-day "safe harbor" provision: to provide
a litigant the opportunity to withdraw challenged pleadings and thereby avoid

5
 •
No. 14-50093

sanctions. See In re Pratt, 524 F.3d 580, 586-87 (5th Cir. 2008). Finally,
Bravenec suggested below that the district court's December 2012 show cause
order satisfied the "safe harbor" provision but cited no authority to support
that assertion, and this court has strictly construed the requirements of FED.
R~ Crv. P. 11(c)(2). See, e.g., Pratt, 524 F.3d at 586-87; Marlin, 533 F.3d at 378-
•
79; Brunig v. Clark, 560 F.3d 292, 298 n.20 (5th Cir. 2009). Because Bravenec
did not comply with the safe harbor provisiol\, the district court is deemed to
have awarded the attorney's fees on its own motion, which is improper under
Rule 11. See Marlin, 533 F.3d at 379; Brunig, 560 F. 3d at 298. As this Court
explained in Marlin, sanctions awarded on the court's initiative under Rule 11
"are limited to nonmonetary sanctions or a monetary penalty. paid to the court."
See 533 F.3d at 379.
AFFIRMED in part, VACATED in part, and REMAND ED. Martin's
motion to strike Bravenec's brief is DENIED. Martin's other motions are
DENIED AS MOOT.

6
 United States Court of Appeals
FIFI'H CIRCUIT
OFFICE OF THE CLERK

LYLE W. CAYCE TEL. 504-3 10-7700
CLERK 600 S. MAESTRI PLACE
NEW O RLEANS, LA 70130

October 28, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No . 14 - 50093 Rowland Martin, Jr. v. Charles Grehn , et al
USDC No. 5:11 - CV - 414

The court has granted Appellant ' s motion file petit i on for
rehearing out of time and for an extensi o n of time to and including
October 23, 2015 for filing a petition for rehearing in this case.
The petition for rehearing has been filed as of October 23, 2 0 15
and will be submitted to the court.

Sincerely,
LYLE W. CAYCE , Clerk
l; !:.(_
/'~·,__--.... . . ;¥t.- :----- -
.. ! , ------
By :
Shawn D. Henderson , Deputy Clerk
504 - 310-7668
Mr. Edward L . Bravenec
Mr. Ricardo Briones
Mr. Rowla n d J . Martin Jr .
 CAUSE NO. 2001-PC-1263

IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING, § #1
§
DECEASED § BEXAR COUNTY, TEXAS

ORDER EXPUNGING LIS PENDENS

On this, the 19th day of March, 2014, carne to be heard Movant's Motion to Expunge Lis
Pendens. After hearing evidence and argument, the Court makes the following fmdings of fact and orders:

I. The property with the physical address of 1216 West Ave (New City Block 8806, Block 50, Lot
I) is not an asset owned by the Estate of Johnnie Mae King in Cause No. 200 1-PC-1263, nor does
the estate have an interest in said property.
2. The "Notice of Lis Pendens" filed on or about December 3, 2013, with the County Clerk with
regards to the property at 1216 West Ave. is hereby cancelled, and is null and void.
3. The "Further Notice of Lis Pendens" filed on or about the Th day of March, 2014, with regards to
the property at 1216 West Ave is hereby cancelled and is null and void.

SIGNED on this the \ cy-a:. day ofMarch, 2014.

Q.~~hK ~
HONO \._ JUDGE SPE R
Agreed as to form:

MCKNIGHT & BRAVENEC
1800 W. Commerce St., Suite l
SAN ANTONIO, TX 78207
Tel. (210) 223-4080
Fax. (210) 3-2449
Em "1: br ekni t

V0212qP08bO
- •- -- - il
STATE OF TEXAS COUNT'!' OF BF-XA"\
--' ~
CERTIFIED COPY CERTIFICATE
The page to whicll this certificate Is affixed may havL
been lawfully aits r&d to redact corffidanUal persona !
information but is other.'fise a f1JII, true and connect
copy of the original on file and of necoro In my office
ATIESTED:
SEP 0~- 2015
 CAUSE NO. 2001-PC-1263

IN THE EST ATE OF ) IN THE PROBATE COURT
)
JOHNNIE MAE KING, ) N0.1
)
DECEDENT ) BEXAR COUNTY, TEXAS

ORDER

Came to be heard on January 31,2014, Rowland J. Martin, Administrator for the

Estate of King, on his "Motion for Order To Authorize Terms Of Withdrawal for

Attorney of Record Edward Bravenec." The Court a~itre~r~a~
\.l-~ 0---l. ~ c~.._ s- ~oo ~. rrv:; ~
s
exhibits, including his pdffOfservice, the Motion 'fo Withdraw hied b~
~t~u~-
Reesfd AlbeFt MeK.."light, aHd aa Dist:riet Co011 of Appeals, t efett iRg

to aa "Oeteber 2895 orde1 permitting withdrawal of an attorney,' which me attaehed te- (~

this Ortier The Ctmrt finds that Edwrud Bravenec was not rhe attorney authorized to ·

withdrlt'if' in the October 2005 mde1. Therefere, it is onlerea thftt the Administrator's

'motion is hereby eentinl:les fQr ~!=Iller beariags sa the th dtty of _ __ _ 2014 at

jn the Bexar County Probate Court #I of Bexar County Texas, to

determine the date which the Court wm observe as the effective date of the Probate

.Ce\lrt's :wtaeri:latiog for the withdurwal ofAttomey Edward Bravenec.-

::..ol4
Signed this li_ th day of March~4,

VOZ12qpoq13
r:
STATE OF TEXAS COtrn TY OF"BEXAR
~
CERTIFIED COPY CERTIFICATE
The page to wh ich this certificate Is affixed may havE
be~n la'W'fulty att ere-d to r&dact confide ntial porsona!
information bvt is other.-lise a full , true and correct
copy of the original on file and of record In my office
ATTESTED:
SEP 04 2015
 NO. 2001-PC-1263
Destin
IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS

MOTION TO EXPUNGE LIS PENDENS

This Motion to Expunge Lis Pendens is filed by Edward L. Bravenec, who shows in

support:

I. On December 41h, 2013, for the THIRD time', Rowland Martin has filed a notice
of lis pendens on affecting the following real property:
New City Block 8806, Block 50, Lot I, Except the North West I0.0 I feet
& Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio,
Texas (the "Property").
Exhibit A.
2. Movant holds complete fee simple title to the Property.
3. The filed instrument upon which the notice of lis pendens is based does not
contain a real property claim; indeed, the filed instrument is not a pleading.
4. The claims contained in the notice of lis pendens are not valid.
5. Though the lis pendens is invalid on its face, Movant provides the Court with a
summary of Mr. Rowland Martin' s storied, vexatious, and frivolous litigation against
Movant and related parties. Exhibits B- D.

WHEREFORE, premises considered. Movant prays that the Court grant this Motion to
Expunge Lis Pendens.
Respectfully submitted,

MCKNIGHT & BRA VENEC
1800 W. Commerce, Ste. I

1
True and correct copies of previously filed and subsequently expunged lis pendens by Mr. Martin on this Property
are attached . Exhibit D. ~~~\~F~:org~~g~~~~~~c~~:EXAR
irlQ ~~~;e to wl'llch this celt'flc~t.o Is etnxed mf!)' hove
ue~:1IOY.1ully t:Jrtered to red~ct er.~nfidentlal peraonel
Jn ~;)omatJon but Js othsrw1oo t1 ~Jil, truo end eorroct
c(;;;y cf u'1e Oitgit'la! on n1e end of record In my omce.
/".TTEST!;O·
 •

SAN ANTONIO, TX 78207
Tel: (210) 223-4080
Fax:(210)223-2449

State Bar No. 24069056 .._
E-Mail: braveknight@att.net
Attorney for Movant

Notice of Hearing 2 u •t-1-
The above motion is set for hearing on A~ U/1 d'l \9 til ' at Y·3 () f .m. in Probate
Court No. I of Bexar County.

SIGNED on Mcuch \I~
j =-~ I L.r--2_- ~
u u'

.L.

_ J L..____
L
:-·
- -·

Certificate of Service

I certify that a true copy of the above was served on Rowland Martin in accordance with

the Texas Rules of Civil Procedure on March 11, 2014.

Attorney for Movant ·

s·r;. i ~ u F T~XAS COUNTY OF BEXAR
Clle. State of Te110s

..
My Cornm!NIOn IEiq)if...
June 16, 2017 .
Book 16461
[\ · 'ITE uF TEXAS COUNTY OF BEXAR
v ·U1FiE) COPY CERTIFIC/l.TE
r ,, page to w!11ch this certlftcatols crnx~d merthtwo
~- .. : 1 ta,.,.+~\ly ~ttered to red~ct conndential per¥Jnel •
: . ~

1
, -rr~"-;.'1 t .It 'c- ~· •c•v.lse e f\.Jll, true and co~ct
t. · .. y 0-f ;lt3 cr! ;_:. e:: 'Ill t• rWd Of record ln my ~i"ll,
r "'CSTPil
.
:.

'
u
 NO. 2001-PC-1263

IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS

RESPONDENT'S SPECIAL EXCEPTIONS, PLEA TO THE JURISDICTION, AND
GENERAL DENIAL TO ROWLAND MARTIN'S APPLICATION FOR BILL OF
REVIEW

COMES NOW, Edward L. Bravenec, Respondent, through the undersigned counsel, and files this,
his special exceptions, plea to the jurisdiction, :md general denial. Rowland Martin's application
for a bill of review should be denied. In support thereof, Respondent shows unto the Court the
following:

Special Exceptions
1. Respondent objects to the form of Rowland Martin's Application, to-wit:
a. The Application is not verified. Huddleston v. Western Nat'! Bank, 557 S.W.2d
778, 781 (Tex.App.-Amarillo 1979, writ refd n.r.e.); and
b. The Application does not plead a discovery level. Tex. R. Civ. P. 190 cmt. 1.
2. Respondent objects to the substance of Rowland Martin's Application, to-wit:
a. Applicant appears to have generally plead for a bill of review, but Respondent
cannot ascertain from the Application the nature and basic issues of the controversy
and what testimony will be relevant, and requests that Applicant be required to
plead specifically. Subia v. Texas Debt. Of Human Servs., 750 S.W.2d 827, 829
(Tex.App.- El Paso 1988, no writ).
b. More than two years have passed since the entry of the order from which Applicant
complains, making his Application an equitable bill of review. Rowland Martin· s
Application does not allege the elements necessary for an equitable bill of revie.w.
Mobray v. Avery, 76 S.W.3d 663, 677 (Tex.App.-Corpus Christi 2002, pet.
denied). Because more than two years have passed, Applicant must allege extrinsic
fraud which prohibited him from timely filing a new trial, appeal, or statutory bill
of review. Motgomery v. Kennedy, 669 S.W.2d 309,312 (Tex.1984).
Plea to the Jurisdiction
3. The party seeking relief must alleged facts that affirmatively demonstrate a trial court's
subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). Mr. Martin appears to shirk his duty of diligence prior to filing his
 "Verified Consolidated Application for Statutory Bill ofReview" by misunderstanding the
holding of McDonald v. Carrol/ 1 As such, his application should be dismissed.
4. Additionally, "[a] bill of review to revise and correct an order or judgment may not be filed
more than two years after the date of the order or judgment, as applicable." Tex. Est. Code
§ 55.251(b). Applicant requests a statutory bill of review regarding this Court's October 5,
2005, order authorizing the withdrawal of counsel- a nine-year-old order. Because nine is
greater than two, this Court is without the jurisdiction to review it.
5. Therefore, Respondent requests the Court dismiss Applicant's bill of review for want of
jurisdiction.
General Denial
6. Subject to his special exceptions and plea to the jurisdiction, Respondent invokes the
provisions of Tex. R. Civ. P. 92 and exercises his legal right to require Applicant to prove
all of the allegations contained in his pleading. Respondent denies generally the allegations
of Applicant' s pleading and demands strict proof thereof by a preponderance of the
evidence.
WHEREFORE, premises considered, Respondent, Edward Bravenec, PRAYS for the Court
to grant his special exceptions, dismiss for want of jurisdiction, dismiss this cause with
prejudice, and for any other relief.
Respectfully submitted,
McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449

SBN: 24069056

CERTIFICATE OF SERVICE

I certify that on April).-~015,the foregoing was served on the Rowland J. Martin, Jr., via
certified mail, return receipt requested at:

~------------......
1
Applicant's application, page I, paragraph 2.
 NO. 2001-PC-1263

IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS

ORDER ON RESPONDENT'S SPECIAL EXCEPTIONS

On this day, the Court considered Respondent' special exceptions to Rowland Martin' s
Application for a Bill ofReview. Having reviewed the pleadings, the Court finds that Respondent's
special exceptions are well taken and are hereby GRANTED.

Therefore, the Court hereby ORDERS Applicant, Rowland Martin to amend his pleadings in
conformity with Respondent's special exceptions.

SIGNED this _ day of _ _ _ _ , 2015.

Judge Presiding
AGREED AS TO FORM

McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449
E: braveknight@att.net

~~a~----
SBN: 24069056 ~
 NO. 2001-PC-1263

IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS

ORDER ON RESPONDENT'S PLEA TO THE JURISDICTION

On this day, the Court considered Respondent' Plea to the Jurisdiction to Rowland Martin' s
Application for a Bill of Review. Having reviewed the pleadings, the Court finds that Respondent's
plea is well taken and is hereby GRANTED.

Therefore, the Court FINDS that this Court is without jurisdiction to review an order older than
two years under Tex. Est. Code § 55.251 and HEREBY DISMISSES Rowland Martin' s
Application captioned as "Verified Consolidated Application for Statutory Bill of Review."

SIGNED this_ day of _ _ _ _ _, 2015 :

Judge Presiding

AGREED AS TO FORM:

McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449
E: braveknight@att.net

~~~~---
SBN: 24069056 ----------
 1'_, -.;.••
_,
. ::" "'".
.
~

1 REP 0 R T E R 'S R E C 0 R D
2 VOLUME 1 OF 1

3 TRIAL COURT CAUSE NO . 2001-PC-1263

4
IN THE ESTATE OF IN THE PROBATE COURT
5
JOHNNIE M. KING, NUMBER 1
6
DECEASED BEXAR COUNTY, TEXAS
7

8

9 MOTION TO EXPUNGE LIS PENDENS
MARCH 19 , 2014
10

11

12

13

14
'---
15

16

17

18

19

20

21 On the 19th day of March, 2014 , the following

22 proceedings came on to be heard in the above-entitled and

23 numbered cause before the HONORABLE POLLY JACKSON SPENCER ,

24 Judge Presiding, held in San Antonio, Bexar County , Texas :

25 Proceedings reported by Machine Shorthand.

O~tG\NAL
CHERYL D. HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 -
1
'--
2 A P P E A R A N C E S

3

4 MR. CHRIS POTHOVEN
BAR 24069056
5 McKNIGHT & BRAVENEC
1800 W. Commerce, Suite 1
6 San Antonio, Texas 78207
( 2 1 0 ) 2 2 3 - 4 0 8 0 ; Fax ( 2 1 0 ) 2 2 3 - 2 4 4 9 ,
7 Attorney for Movant Edward Bravenec;

8

9 MR. ROWLAND MARTIN
951 Lombrano
10

11 Respondent, Appearing Pro Se .

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 -
1 CHRONOLOGICAL INDEX OF PROCEEDINGS
'-- 2 March 19, 2014

3 Discussion regarding Notice of Hearing 1

4

5 Request for Jury Trial - - - - - - - - - - - - - 7

6

7 Argument - - - - - - - - - - - - - - - - - - - - - - 7

8

9 Ruling - - - - - - - - - - - - - - - - - - - - - - - 32

10

11 Discussion regarding Withdrawal of Attorney - - - - - 33

12

13 Proceedings Adjourned - - - - - - - - - - - - - - - - 36

14

15

16

17

18

19

20

21

22

23

24

25

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 1

1 MARCH 19, 2014

2 THE COURT : 2001-PC-1263 , the Johnnie Mae King

3 Estate . My docket sheet indicates a Motion to Expunge a Lis

4 Pendens that ' s been filed .

5 MR. POTHOVEN : That is correct, Judge.

6 THE COURT : And that ' s what you all are ready

7 to proceed on, correct?

8 MR . POTHOVEN : Yes, Judge.

9 MR. MARTIN : No , Your Honor . The certificate

10 of servlce says that the motion was mailed on the 11th .

11 However, for whatever reason I actually received it after

12 close of business on Friday , which left me two business days

13 before today. Meaning that I was unable to file motions in

14 the considerably condensed amount of time I had to prepare.

15 I'm prepared to present a case for dismissing the motion . But

16 if we're going to proceed on the merits, there are witnesses

17 that I would need to call .

18 THE COURT: Well, can you speak to the --

19 MR . POTHOVEN: Would you like a response,

20 Judge?

21 THE COURT : Yes. In terms of giving him the

22 notice.

23 MR. POTHOVEN : It was deposited in the ma i l by

24 myself personally by certified mail , return receipt requested,

25 and copied by regular mail on the 11th of this month .

CHERYL D. HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
 ..
2

1 MR. BRAVENEC: Judge, normally I would give a
2 person extra time. I'm actually the one that owns this

3 property that Mr. McKnight's family deeded to me, and I deeded

4 some things to them to settle, or some different things to - -

5 MR. MARTIN: Objection, Your Honor.

6 MR. BRAVENEC: We had a contract to close this

7 in mid - September, and through a series of I want to say six

8 different lis pendens and I don't know how many different

9 motions to reconsider in the Fifth Circuit Court of Appeals

10 which have all been denied, Mr. Martin has delayed this for

11 six months. And we want to close tomorrow. I've had a

12 contract, and my buyers have waited six months. And every

13 single time we come to court, Mr. Martin has a different

14 excuse, so.

15 MR. MARTIN: Your Honor, Mr.

16 MR. BRAVENEC: That's why --

17 MR. MARTIN: Bravenec is presenting his

18 case. He was asked to respond to an issue about certificate

19 of service. And as to what Mr. Pothoven just stated that it

20 was mailed in regular mail and also sent by certified mail,

21 return receipt requested, I can -- I can state unequivocally

22 that I received only the regular service mail Friday after

23 close of business, and that there was no return receipt or

24 certified mail delivered to my address. And he will have no

25 signature from me to establish that the certificate of

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
 3

1 service, the certified mail, return receipt requested, was --

2 was executed.

3 Further, Your Honor , to simplify the whole
4 matter, there are two major problems with the motion . Number

5 one, the motion contests my capacity to file a lis pendens.

6 Rule 93 of the Texas Rules of Evidence requires that a motion,

7 a pleading that contests the opposing party's capacity must be

8 verified. As you will see from your inspection of the motion,

9 the motion there's no verification of the motion . There's

10 a number of controversial factual statements that are

11 contained, but there's no verification of the motion that ' s

12 required by Rule 93.

13 Further , the Lis Pendens Statute requires that

14 when a party moves to cancel a lis pendens, they're required

15 to put up an undertaking , such as a bond, to indemnify the

16 other party. In this case there's no representation made in

17 the motion about any such undertaking .

18 As to the Fifth Circuit, the Fifth Circuit

19 case, the District Court case, the Fifth Circuit case and the

20 Supreme Court Petition for Writ of Certiorari are now pending.

21 I have not received documentation from the Supreme Court,

22 because it was recently filed and they have a clearing process

23 that takes about a week or longer before they forward the

24 motions to their clerk for docketing . However , I do have

25 correspondence from the Fifth Circuit showing that an appeal

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 4

1 was docketed in case number 14 - 50093 , most recently I believe

2 on March 13th , but I ' ve got the letters here . March 13th was

3 t he -- was the last of t h ree notice s that the appeal had b een

4 docketed.

5 So the statement that this - -

6 THE COURT : The appeal pertains to what?

7 MR. MARTIN : The appeal pertains to the federal

8 court appellate proceeding that Mr . Bravenec mentioned. He

9 stated that it had all been denie d. What I ' m saying is

10 THE COURT : Does that pertain to this?

11 MR. MARTIN : Well, you would have to ask hi m,

12 Your Honor. I'm saying he's incorrect in his factual

13 statement that there was a final order . Those matters are

14 still pending . But he would have to establish what the

15 relevance is . Because I have a federal Court order, Your

16 Honor, where he made the same motion . If I may approach?

17 He made the same motion to the federal court,

18 and the federal Court denied the motion on the grounds that

19 the federal court lacked jurisdication.

20 I should say also, Your Honor, that the

21 controversy here has a different posture than the matter in

22 federal court. Completely different posture . And that ' s why

23 the federal court was constrained to deny their mot i on .

24 MR. POTHOVEN: Judge, slnce we ' ve gotten into

25 the merits, I think he's abandoned his not ready. If the

CHERYL D . HESTER, C . S . R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 5

1 Court will allow me to give my argument on why the lis pendens

2 should be expunged?

3 THE COURT : Correct. Do you have proof of the
4 -- your mailing?

5 MR . POTHOVEN: Yes/ Your Honor. If I could
6 approach?

7 THE COURT: Uh huh .

8 MR . POTHOVEN: This is the only copy that I

9 have / Mr. Martin 1 if you ll give that a once - over.
1

10 MR. MARTIN: Okay. The print is kind of s mall 1

11 but I see a description that says no authorized receipt

12 available. Is that your reading of that?

13 MR. POTHOVEN: Is that your address? Is y o ur
14 address 951 --

15 MR. MARTIN : I asked you a question about this

16 statement here . The print is kind of small. Can you read

17 that for me?

18 MR. POTHOVEN: Are you objecting to this?

19 MR. MARTIN : I m asking - - the print is small.
1

20 I don t have glasses.
1
It looks like it says no authoriz ed

21 rece i pt available.

22 THE COURT : That s what it seems to say.
1
Is

23 your address 951 Lombrano Street?

24 MR. MARTIN: Yes/ it lS.

25 MR. POTHOVEN: Your Honor/ one of the

CHERYL D. HESTER C . S.R. - PROBATE COURT NO. 1
1

BEXAR COUNTY COURTHOUSE
SAN ANTONI0 TEXAS 78205
1 (210) 335 - 2359
 6

1 exceptions to the green card not coming back lS when a

2 litigant has a pattern of refusing certified mail. This is,

3 through our storied history between each other, this is - -

4 I'll represent to the Court that he refuses certified mail .

5 For that reason, that's why we are treating Mr. Martin, though

6 he's an attorney, we're treating him as we do any other prose

7 by always sending him certified mail, a copy via regular ma i l.

8 And I know that he got the regular mail.

9 MR. MARTIN: I've already stated

10 THE COURT: I think he just said that.

11 MR. POTHOVEN: Because he replied to the

12 motion.

13 MR. MARTIN: I did not deny that I rece i ved the

14 regular mail. My statement was that I received i t four days

15 after it was sent, after close of business when I returned

16 home on Friday, with less than two days before today's

17 hearing.

18 And while we are discussing conduct, let me say

19 that throughout the course of the other litigation, this and

20 other l i tigat i on, the -- Mr. Bravenec and his attorneys have

21 repeatedly submitted certificates of service that misstate

22 when they -- that mislead the reader as to whether or not I

23 received service or not. And I'd also point out, Your Honor,

24 that Mr . Bravenec has been sanctioned by the 57th Judicial

25 District Court for filing unsupported motions in a fact

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 1 0) 335-23 5 9
 7

1 situation that was -- that closely resembles this one .
-~

2 THE COURT : It is related to this matter?
3 MR . MARTI N: In s o fa r as the pa t tern of
4 conduct, yes, Your Honor .

5 THE COURT : But i t ' s not otherwise related to

6 this?

7 MR. MARTIN: Well , it ' s related in the sense

8 that --

9 THE COURT : I s it r el ated to this matte r ?

10 MR. MARTIN : The law controls, yes. The

11 holding --

12 THE COURT : All I want to know is, lS tha t

13 matter ln which he was sanctioned related to this matter .

14 MR . MARTIN : The authority applies. Other than

15 that, no.

16 THE COURT : Okay . Thank you.

17 Okay . I think we're going to go forward on

18 this matter.

19 MR . MARTIN : Okay. Your Honor, if we go

20 forward, in my response I am requesting a jury trial.

21 THE COURT : Are there fact i ssues upon wh i c h

22 you ' re entitled to have a jury?

23 MR. MARTIN : Yes , Your Honor .

24 MR. POTHOVEN : May I respond to that, Judge?

25 THE COURT : Uh huh .

CHERYL D . HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335 - 2359
 8

1 MR. MARTIN: May I first state what the fact
2 issues are?

3 THE COURT: I'm going to let him answer my
4 question.

5 MR. POTHOVEN: Okay.

6 MR. MARTIN: Okay.

7 In addition to the response, I also filed

8 special exceptions and objections, the substance of which

9 pertain to the attorney-client relationship that that the

10 estate of King had with the Law Firm of McKnight and Bravenec,

11 Albert McKnight and Edward Bravenec, in particular, and also

12 myself, both in the estate matter and other matters. And I

13 object to the representation in the motion, number one,

14 because that attorney-client relationship, and I would have

15 witnesses who are familiar with the estate and with statements

16 that I have made concerning the history of my relationship

17 with -- with McKnight and Bravenec. I believe the entire

18 motion constitutes an adverse representation.

19 I would cite In Re Susan Reed, which is a case

20 where Mr. Bravenec was an -- an attorney of record where the

21 attorney-client privilege was invoked to assert that Susan

22 Reed could not prosecute Albert McKnight because she had

23 assisted him in a previous legal matter. Of course, the

24 Fourth District overruled that, but they pointed out that the

25 the attorney-client privilege and the prohibition against

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 -
9

1 adverse representation that applies i n a -- a nongovernmental
'--
2 attorney-client relationship is much broade r than one that Mr.

3 Bravenec attempted to assert in Reed . And by that authority ,

4 this motion, the subject matter of the motion pertains

5 substantially to the relationship that McKnight and Bravenec

6 had with the -- with the estate and with myself .

7 As a matter of fact , there's a pending motion,

8 as you know, Your Honor, from o ur hearing on January 31st,

9 there's a pending motion requesting an order from the Court

10 essentially to declare Mr. Bravenec ' s status. The motion that

11 was placed on the docket was requested by Albert McKnight , and

12 it was granted to Albert McKnight . However, the the text

13 of the motion does not -- I should say and the text of the

14 motion does not refer in any way to Mr. Bravenec. From the

15 face of the record, he is still an attorney of record whose

16 authorization to withdraw has not been approved by the Court.

17 Now , I'm not saying that I was relying on him

18 to continue with the attorney-client relationship . What I ' m

19 saying is that it was his burden, for the same reason that

20 Albert McKnight moved for a motion t o withdraw , Edward

21 Bravenec had also made appearance t o represent me

22 specifically , and it was his burden to move the Court t o

23 obtain an order authorizing his withdrawal . He fa i led to d o

24 that. And as a result , that affects his capacity to present a

25 motion such as the one he has presented now, where he is

CHERYL D . HESTER, C . S.R . - PROBATE COURT NO. 1
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SAN ANTONIO , TEXAS 78205 (210) 335-2359
 10

1 claiming a lis pendens.

2 In fact, the lien that he -- that led to his

3 possession of the property was acquired during the

4 relationship , during the attorney-client relationship with the

5 estate of King, with me as the administrator, and also at the

6 same time there was a substantial relationship --

7 THE COURT: Back up to the start of that

8 sentence again.

9 MR. MARTIN: I'm sorry. Bit of a run-on. What

10 I was saying is there was a substantial relationship between

11 the subject matter ln the motion and the

12 THE COURT: To remove the lis pendens?

13 MR. MARTIN: I'm sorry?

14 THE COURT: The motion to remove the lis

15 pendens?

16 MR. MARTIN: Yes. Yes, Your Honor . Yes, Your

17 Honor. For example -- for example -- again, I 'm saying that

18 the motion is not verified, so the motion is insufficient on

19 its face and should be dismissed. However, in paragraph 2 Mr.

20 Bravenec states that he holds complete fee simple title to the

21 property. To sustain that proposition, he would have to

22 convince the Court that there was a gift of my purchase money

23 interest ln the property at the time that he acquired it.

24 THE COURT: When -- how did you obtain a

25 purchase money interest in the property?

CHERYL D. HESTER , C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 11

1 MR. MARTIN: Your Honor, I executed a 1031 tax

2 deferred exchange in 2003 . The -- the proceeds from the sale

3 of the original property was rolled over into the property

4 that Mr. Bravenec is claiming an interest in now.

5 THE COURT: Do you have any documentation to

6 support your interest in that property?

7 MR. MARTIN: My tax return for 2003. It's

8 listed-- it's listed under the section for the tax deferred

9 exchange. And the proceeds from my escrow account --

10 THE COURT: If you have a tax deferred

11 exchange, you sell a piece of property and put the money into

12 a different piece of property. Do you have something to show

13 that you invested ln this property on West Avenue?

14 MR. MARTIN: Yes, Your Honor. My tax return.

15 THE COURT: And -- but this tax -- I mean, do

16 you have a copy of a deed or any other matters that support

17 MR. MARTIN: Well, Your Honor, first I would

18 say that an IRS record -- this was a tax return that the IRS

19 received ln 2004 reporting the transaction, which complied

20 with the 1031 requirement. So it should be admissible as

21 evidence of the -- to support the allegation that --

22 THE COURT: This is your tax return, right?

23 MR. MARTIN: Yes, Your Honor.

24 THE COURT: You filed this tax return?

25 MR. MARTIN: If I can explain, that's where the

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 •
12

1 purchase money -- that ' s where the purchase money interest

2 arose, Your Honor, was because the escrow account was in my

3 name.

4 THE COURT : What escrow account?

5 MR . MARTIN: Well, when you execute a 1031

6 exchange, you execute a contract for sale between yourself as

7 seller and another party as a buyer . You also execute an

8 escrow agreement , which I have a copy of . And the escrow , the

9 the gain from the sale, the proceeds from the sale are held ln

10 escrow until the tax deferred -- until the exchanging party

11 identifies a replacement property . In my case I identified

12 1216 West Avenue as the replacement property . However, when I

13 went to close for the acquistion of the replacement

14 property --

15 THE COURT: The 1216 West Avenue?

16 MR . MARTIN : 1216 West Avenue .

17 THE COURT : Did someone sign -- did the owner

18 of 1216 West Avenue sign any documentation indicating that

19 they intended to transfer that property to you?

20 MR . MARTIN : Well , Your Honor , that ' s another

21 reason I would request a continuance.

22 THE COURT : That's my question ,

23 MR. MARTIN : I have --

24 THE COURT : Did someone

25 MR. MARTIN: Yes, someone did sign that.

CHERYL D . HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
 13

1 THE COURT: Who signed that? Was that an owner

2 of 1216 West Avenue?

3 MR. MARTIN : Yes, it was. Yes, it was , Your

4 Honor . I have that documentation, but I don't have it with

5 me.

6 And here's --here was the escrow agreement

7 that I signed with the intermediary for the 1 031 exchange.

8 You'll see in I be li eve paragraph 1 and paragraph 2 it refers

9 to the escrow account, and it says that the proceeds from the

10 sale would be deposited into the escrow account.

11 This was an escrow account in my name. When

12 the purchase of 1216 West Avenue was accomplished, a letter of

13 credit was transferred from that escrow account to the credit

14 of the seller of 1216 West Avenue in the name of Moroco

15 Ventures Limited Liability Company. That qualifies as a

16 purchase money security interest in my favor that's equal to a

17 vendor's lien and is entitled to priority over subsequent

18 subsequent encumbrances. So this is an issue that places Mr.

19 Bravenec's title in question.

20 In addition, Your Honor, the property was the

21 subject of a Chapter 11 bankruptcy at the time that he

22 executed the foreclosure . There has been a change in Texas

23 law on that point from the Texas Supreme Court decision of

24 Larry York v. State of Texas. And that case holds that a

25 post-petition foreclosure of a bankruptcy asset is void ab

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335 - 2359
 14

1 initio. That the state courts do not have jurisdiction to
'-- 2 approve a foreclosure of a bankruptcy asset while the

3 bankruptcy proceeding is in state . And this rule applies even

4 after the bankruptcy case has been dismissed or terminated.

5 It goes to the constitutional jurisdiction of the State

6 courts.

7 And in this case , there was no -- there was no
8 jurisdiction over the parties , because the mortgage broker

9 from whom Mr. Bravenec attempted to acquired the first lien

10 interest was not the -- was not the holder in due course of

11 the note at the time. The 57th District Court did not have

12 jurisdiction over the subject matter because the property

13 itself, the res was an asset of the Moroco Ventures Chapter 11

14 bankruptcy estate .

15 And furthermore, Your Honor, I would say that

16 the court lacked capacity. Because at the time Mr. Bravenec

17 proceeded with the post-petition for foreclosure, he was still

18 an attorney of record in the probate court because he never

19 got an order authorizing his withdrawal. So I would contend

20 that under Rule 319 of the Texas Rules of Civil Procedure ,

21 which states that the probate court is the court of last

22 jurisdiction, in other words, any matter involving an issue

23 about title pertaining to a probate estate, the probate court

24 retains jurisdiction to adjust any order. In this case I'm

25 saying that the order -- it was an order of dismissal on its

CHERYL D. HESTER, C.S . R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 15

1 face from the 57th District Court. But under the law it
~
2 doesn't even constitute a judgment, because the Court has no
3 jurisdiction. But even if it did, the probate court would
4 have -- retain jurisdiction to adjust that dispute.

5 THE COURT: I don ' t see anything in here that
6 mentions 1216 West Avenue .

7 MR. MARTIN: It's ln there. I'll show it to
8 you, Your Honor.

9 Okay. It appears on the section ln the return
10 titled Like Kind Exchanges . And you'll see the exchange

11 property was 1348 Kenton Street in Washington, D.C., and the

12 property below that which identifies the replacement property

13 is 1216 West Avenue.

14 THE COURT: And how did -- where is -- it says

15 Kenton Street in San Antonio, Texas.

16 MR. MARTIN: May I see that?

17 THE COURT: But where is anything that

18 indicates that you received title to 1216 West Avenue?

19 MR. MARTIN: It's in Bexar County Deed Records.

20 I did not bring that document -- I didn't bring that

21 documentation with me. But it

22 THE COURT: But it was a deed from whom?

23 MR. MARTIN: It was a warranty deed from I

24 can't -- I simply cannot recall the gentleman ' s name. Roy

25 Ramspeck is his name. Roy Ramspeck and his wife, they were

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 16

1 joint owners. I don't recall the wife's name, but his name

2 was Roy Ramspeck.

3 So Roy Ramspeck was the owner in fee simple of

4 1216 West Avenue. He sold the property to my limited

5 liability company, Moroco Ventures, in satisfaction of the

6 replacement property requirement for the 1031 exchange, of

7 which I was the -- I was the owner of the funds in the escrow.

8 The escrow agent transmitted a letter of credit to Mr.

9 Ramsbeck's bank, and that was the money that ope rated as the

10 down payment advance to enable Moroco Ventures to acquire the

11 property. So that advance, it was in the amount of $135,000.

12 I'd also say that the -- my understanding of authority on

13 purchase money interest is that there's two burdens that the

14 claimant has to show. One is the price

15 THE COURT: I just wanted to know how you

16 acquired a title to 1216 West Avenue. That's what -- and

17 MR. MARTIN: Well, as I said, Moroco Ventures

18 acquired title to 121 6 West Avenue. I was the purchase money

19 -- I was the purchase money creditor for Moroco Ventures

20 Acquisition, and I was also the sole shareholder of Moroco

21 Ventures. But nonetheless, the purchase money interest

22 survived the foreclosure. That is the point of it. And when

23 we executed the second lien interest with Mr. McKnight and

24 Bravenec --

25 THE COURT: And you executed that --

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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17

1 MR. MARTIN : This was -- this was

2 THE COURT : -- Fo r what reason?

3 MR . MARTIN : Well , ln exchange for legal and

4 financial services on their part .

5 THE COURT : So you gave them a lien --

6 MR. MARTIN : Yes .

7 THE COURT : -- On the property at 1216 West

8 Avenue. Correct?

9 MR. MARTIN : Yes , Your Honor. In cons i dera t ion

10 for legal and financial services , part of which was the

11 expectation that they would continue to represent --

12 THE COURT : That's fine about that. All I'm

13 trying to do is figure out what the title issue is here .

14 MR. MARTIN : Okay . Well, they took a second

15 lien on the property in between that appearance that they made

16 in --

17 THE COURT : I'm not worried about when they --

18 I'm just looking at the title to the property .

19 MR. MARTIN : Okay . We're looking at the t i tle

20 issue . Well, then the argument is that my understanding of

21 Texas law is t hat a purchase money security interest is equ al

22 to a vendor's lien .

23 THE COURT : What do you have that manifests

24 your purchase money security interest?

25 MR . MARTIN : The tax return that I just showed

CHERYL D. HESTER, C.S . R . - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
 18

1 you, and the 1031 escrow agreement with the - - with the

2 intermediary and with the buyer of the original property.

3 THE COURT : And does this in any way mention

4 1216 West Avenue?

5 MR. MARTIN: There is documentation from the - -

6 from the exchange that mentions 1216 West Avenue, but it does

7 not appear in that document .

8 THE COURT: Okay. Do you have documentation

9 with you that supports -- I think what I'm hearing is that you

10 believe you have a prior lien on this property. So I think

11 what happened was they foreclosed their second lien on that

12 property?

13 MR . MARTIN: It's -- that's what they - - well,

14 Your Honor, it's a little more complicated than that. They

15 had a second lien. It's not a yes-or - no question, and it goes

16 to the heart of what you are asking for, so if you'll please

17 bear with me.

18 As I said, at the time they foreclosed, the

19 asset -- the property was an asset in a bankruptcy estate and

20 was being used

21 THE COURT: In whose bankruptcy estate?

22 MR. MARTIN : Moroco Ventures.

23 THE COURT: And you are the principal of Moroco

24 Ventures?

25 MR. MARTIN : I was at that time , yes .

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
 19

1 THE COURT : And you put Moroco Ventures ln
2 bankruptcy?

3 MR . MARTIN: Yes , Your Honor .

4 THE COURT: Okay . And is that bankruptcy still
5 going on?

6 MR. MARTIN : No . That was the subject -- the

7 bankruptcy was part of the controversy that led to the federal

8 court case that -- that Mr . --

THE COURT :

10 MR. MARTIN : -- Mr . Bravenec mentioned . But

11 your question was about --

12 THE COURT: And it's now been dismissed, right?

13 MR. MARTIN: No .

14 THE COURT : The -- the

15 MR. MARTIN : Well, the District Court case

16 THE COURT: No, the bankruptcy proceeding.

17 MR. MARTIN: Oh, yes. Yes.

THE COURT:

19 MR. MARTIN: The bankruptcy proceeding was

20 dismissed because Mr. Bravenec and Mr . McKnight seized the

21 sole asset of the bankruptcy estate . So the reorganization

22 hear i ng was scheduled for the following month . There was --

23 t h ere was nothing --

24 THE COURT: Well --

25 MR. MARTIN: - - To reorganize .

CHERYL D . HESTER, C . S . R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 20

1 THE COURT : But they foreclosed using their

2 second lien to foreclose on that property.

3 MR. MARTIN: Indirectly, Your Honor.

4 Indirectly. What I mean by indirectly is that unknown to me,

5 they were negotiating with a first lien claimant who was also

6 a creditor and who was also representing itself as a creditor

7 in the bankruptcy. The first lien claimant declared a default

8 that was disputed.

9 THE COURT: By whom?

10 MR. MARTIN: By me. By Moroco Ventures and by

11 me. Mr. Bravenec --

12 THE COURT: And what was the judicial outcome

13 of the dispute for the default by the first lien claimant?

14 MR. MARTIN : This is the subject of the ongoing

15 federal appeals now.

16 THE COURT: And who is the owner of the first

17 lien?

18 MR. MARTIN: The owner of the first lien was an

19 undisclosed assignee by the name of Burnhart Properties, I

20 believe Bernhardt Properties II, Limited. They're based in

21 Austin. However, the controversy arises from the fact that

22 the -- the -- the debt collectors who were appearing in the

23 bankruptcy claiming to be first lien owners and holders of the

24 first lien, were not the owners or the holders of the first

25 lien. Bernhardt Properties was the owner and holder of the

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 21

1 first l i en. Mr. Bravenec and Mr. McKnight negotiated with the

2 pretended first lien holder to acquire the -- to subrogate

3 their foreclosure rights.

4 So the foreclosure came about, Your Honor , when

5 Mr. McKnight and Mr. Bravenec alleged to Judge John Gabriel

6 that the pretended first lien owner had reneged on a promise

7 to sell them the first lien note, which he did not own or

8 hold. They proceeded to -- they obtained an ex parte

9 temporary restraining order purporting to enjoin the

10 foreclosure of the first lien and then they proceeded -- they

11 proceeded to foreclosure themselves. And I'm uncertain as to

12 what the legal theory of that -- of their foreclosure was.

13 THE COURT: What did the bankruptcy court do

14 with the piece of property?

15 MR. MARTIN: The event was - - the bankruptcy

16 court dismissed the case, because there was no assets for - -

17 to proceed with the reorganization.

18 THE COURT: Because the property had been

19 foreclosed on, right?

20 MR. MARTIN: Because the property had been

21 seized in a post - petition foreclosure. Those are the facts .

22 This issue was not adjudicated in the bankruptcy court. There

23 was simply a dismissal. It was -- there was a -- there was --

24 there's documentation about these events.

25 As a matter of fact, in the response you will

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 1 0) 335 - 2359
 22

1 see --
~-
2 THE COURT : I don't have a response. Possibly
3 lS this a response?

4 MR. MARTIN: I think it's probably under the
5 first document.

6 THE COURT: Right.

7 MR. POTHOVEN: Your Honor, if I may? It's

8 getting late. I would like to bring the hearing back on
9 track . About 35 minutes ago the Court asked if there ' s any

10 fact question, because respondent is asking for a jury . There
11 -- it's all questions of law. If there is a question of fact,
12 Judge, the Court may take judicial notice. Because our motion

13 only refers to his -- his motion that the lis pendens is

14 referring to.

15 Your Honor, the only question that the Court

16 needs to ask is whether this estate has anything to do with

17 the property that Mr. Martin's recorded his lis pendens on.

18 There is no relationship whatsoever, you know. And you know,

19 part of my sort of mental practice in trying to figure out

20 what's going on lS I put myself ln the shoes of the other

21 party. I try to give the other party as much credit as

22 possible. The closest thing I can come to, Judge, as far as

23 the nexus between this estate and the property that he filed a

24 lis pendens on is that Moroco Ventures once upon a time was an

25 owner of the property. Moroco Ventures was wholly-owned by

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 23

1 Mr. Martin. Mr. Martin is also the administrator of this
2 estate. And we're here and he filed the motion on --

3 through citing the estate . That's -- that's -- and that's

4 I'm, you know, straining logic to come to that conclusion, but

5 that's the only nexus here, Judge, between a claim to title on

6 the property and this probate proceeding. Because there's no

7 nexus , Judge, I'm just asking the Court to expunge the lis

8 pendens that he filed citing this cause. And it's really that

9 simple, Judge.

10 THE COURT: As in the West -- so this was filed

11 by Mr. Martin as the administrator of the estate?

12 MR. POTHOVEN: That's correct, Judge.

13 MR. MARTIN: Yes, Your Honor. Let me explain

14 that, let me respond to Mr. Pothoven's point. He claims that

15 there was no nexus and he claims there's no law to support

16 that.

17 As to the -- as to the nexus, you asked earlier

18 what was the consideration for the lien interest that McKnight

19 and Bravenec acquired. And I responded that the lien was

20 given in exchange for legal and financial services and with

21 the expectation that the financial services would encompass

22 continued representation in the probate estate as attorneys

23 for the estate. That did not happen. After they acquired the

24 lien, they -- they ceased to perform those services, as shown

25 in-- if you flip to the rear of your exhibits, you'll see an

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 24

1 exhibit titled fiduciary affairs and transactions. It will
2 show that I retained McKnight and Bravenec January of --

3 January 1st, on or about January 1st in 2003. That there were
4 -- there was an estate hearing on February 1st of 2005. There

5 was a billing statement on April 1st, 2005. The deed was

6 executed on May 1st, 2005. After that point there were

7 several requests for McKnight and Bravenec to continue

8 services, but they discontinued the services and eventually

9 eventually moved the Court to withdraw from the

10 representation.

11 Your Honor, that was disruptive to the estate

12 administration. And that is - - and the lien that they had

13 acquired was in consideration for services, part partially

14 in consideration for services they were supposed to provide to

15 the estate, of which I was the administrator. So the nexus

16 comes from the fact that they -- that they have retained fees,

17 an in - kind type of fee compensation that far exceeds the value

18 of the services that they rendered.

19 And as to the law that would bring this within

20 the probate jurisdiction, I'm relying on Section 5B of the

21 Texas Probate Code and the interpretation of Section 5B be ln

22 the case of Porter V. Denas . I'm also relying on Smith v .

23 O'Donnell. I'll start with Smith v. O'Donnell.

24 Smith v. O'Donnell, the issue was whether or

25 not an administrator had standing and capacity, a post-mortem

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 25

1 administrator, whether a post-mortem administrator had

2 standing and capacity to sue attorneys who had represented the

3 decedent inter vivos. This was a 2008 decision, and the

4 Supreme Court held that -- that the administrator did have

5 standing and advanced a theory as to how the administrator had

6 privity with the attorneys. If -- if a post-mortem attorney

7 has standing and capacity to sue a inter vivos legal

8 representatives, then certainly in a case such as this, where

9 I'm the post-mortem administrator and I retained the attorneys

10 at McKnight and Bravenec, there was privity between me and

11 them under the auspices of the estate, there was privity

12 between me and them in my personal estate, and there was

13 privity between me and them in my corporate estate. There was

14 no estate that I was in possession of which we were no t in

15 privity and in which they did not take money from me. Yet

16 when it came time for them to perform the services that they

17 were expected to perform --

18 THE COURT: Did you -- did you actually pay

19 them money?

20 MR. MARTIN: Yes. During -- during the

21 relationship, money was paid, yes.

22 THE COURT: Aside from giving them a lien on

23 the property?

24 MR. MARTIN: Aside from giving them a lien on

25 property. So that's the -- that's the factual nexus. The

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
 26

1 legal nexus comes from the fact that I'm an administrator that

2 has privity the attorneys.

3 THE COURT: Is it true that you filed four lis
4 pendens on this property?

5 MR. MARTIN: In connection with the federal

6 proceeding, where I was proceeding as successor in interest in

7 Moroco Ventures, that's correct.

8 THE COURT: And what's happened with those

9 others?

10 MR. MARTIN: Well, before the federal court

11 denied the last one f or the probate court, the court canceled

12 them. That is also a subject of the pending federal appeal,

13 is that the Court - - the proceedings are being challenged on

14 plain error grounds. I don't think it helps at this point, at

15 this late hour to go into that, but this just is another fact

16 issue that requires a jury trial.

17 But as to the law which Mr. Pothoven is

18 claiming does not support my case, the other case -- so under

19 Smith V. O'Donnell, I have standing and capacity to sue

20 McKnight and Bravenec for malpractice in regards to the

21 estate. The facts that would support that -- the prima facie

22 case are outlined in my response and in the special exceptions

23 and objections.

24 The other case that I rely on is Porter v.

25 Denas. In that case there was an administrator or an executor

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 27

1 who sued fiduciaries in the estate who had acquired
-
~

2 nontestamentary assets . These were this was a -- a CD
3 account or something to that effect that fiduciaries had

4 placed in their own name, and they were claiming that it was a

5 gift from the decedent. The executor challenged that , and the

6 the fiduciaries attempted to claim that they were not under a

7 fiduciary obligation and the administrator lacked standing and

8 had not established a prima facie case and the court -- that

9 the court lacked jurisdiction , the probate court lacked

10 jurisdiction because the supposedly nontestamentary -- nontest

11 -- nontestamentary asset was not part of the probate estate.

12 That was - - that was the fiduciary ' s theory in that case .

13 The Fourth District Court of Appeals held that

14 that what brought the matter within the probate court ' s

15 jurisdiciton was the fact that the administrator was a party

16 to the dispute involving the nontest -- testamentary account .

17 The nontestamentary property interest . And that principle

18 applies in this case, as well. Because I'm the administrator,

19 I've -- I've alleged that they were paid in part in kind,

20 there was an attorney-client relationship with the es t ate ,

21 t h ey were paid with the -- they were paid both cash and in

22 k i nd with the expectation that they would continue

23 representation in the estate. They did not. It was

24 disruptive to the to the estate process. And they retained

25 -- t hey retained the the asset which was given to them i n

CHERYL D . HESTER, C.S.R . - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 28

1 consideration for that and of which the estate was a

2 beneficiary.

3 So in the same sense that Porter v. Denas

4 applies to a nontestamentary asset , for the same reason

5 Section 5(b) applies in this case . Because you have a pending

6 dispute not only in this Court, but in two other -- two other

7 courts, which I will explain .

8 There ' s exhibits ln the 150th District Court

9 and the 224th District Court .

10 THE COURT : But the Estate of Johnnie Mae King

11 never had ownership in any way of the property at 1216 West

12 Avenue. Is that - -

13 MR . MARTIN : They were an intended benef i c i ary

14 of the lien that was was --

15 THE COURT : That wasn't my question. They

16 never had ownership in any way of that property.

17 MR. MARTIN : No, they did not own legal title

18 to the property.

19 THE COURT : Okay.

20 MR. MARTIN: But in Porter v. Denas, that was

21 not the criteria that the Fourth District applied. Because i n

22 that case the fiduciary --

23 THE COURT: Did that invovle a lis pendens?

24 MR . MARTIN : No, Your Honor.

25 THE COURT : It just was an argument about a b out

CHERYL D . HESTER, C.S.R. - PROBATE COURT NO . 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 29

1 whether there was jurisdiction in the probate court, right?

2 MR. MARTIN: Well, it was an argument about

3 jurisdiction, and it was an argument about the nature of the

4 nontestamentary property interest that the fiduciaries

5 claimed. And the conclusion was , was that because there was a

6 dispute about those assets and the administrator was a party

7 to that to that dispute, that -- that probate jurisdiction

8 applied .

9 THE COURT: Okay .

10 MR . MARTIN : There's one other thing, Your

11 Honor. May I po i nt out --

12 THE COURT: One other things.

13 MR. MARTIN: As to the ma l practice claim, which

14 lS the gravemen of the nexus with McKnight and Bravenec, when

15 they withdrew, property, real property of the estate was

16 encumbered with l itigation against heirs to collect ad valorem

17 taxes. Mr. Bravenec represents in Exhibit C that the

18 litigation was ln effect that the litigation was frivolous .

19 In the exhibits to the response, Your Honor ,

20 you will find two sets of orders from the 150th District Court

21 and the 224th District Court. The first in that set of orders

22 is an order to vacate judgments that were entered in those

23 cases against the heirs involving estate property , and the

24 second order, the second order from each court is a nonsuit of

25 the litigation in its entirety in that litigation involving

CHERYL D. HESTER , C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 30

1 real property of the estate.

2 Under estate law malpractice , the claims

3 against McKnight and Bravenec arising from the i r negligence in

4 failing to properly represent the estate in those matters, the

5 equitable tolling period expired as of the date that the

6 nonsuit orders were entered, which was January 22nd, 2014. So

7 a malpractice claim ripened in January of 2014 against

8 McKnight and Bravenec. So there is a claim for malpractice

9 that i s within the probate court ' s jurisdiction in wh i ch the

10 estate has a right to attach the property, has a prejudgment

11 right to request that property be attached to secure its

12 interest in -- in securing damages for malpractice . And there

13 is also a separate purchase money interest which I possess

14 individually, but for the benefit of the estate, which clouds

15 title to the property .

16 Further, Your Honor , after the Fifth Circuit of

17 Appeals docketed the second appeal in 14-50093 , I -- I filed a

18 notice of lis pendens to -- to indicate that there was

19 litigation pending on that front, as well . So the motion is

20 also defective, because even if you grant the motion as it's

21 written, it will not terminate the lis pendens dispute .

22 THE COURT : Okay .

23 MR. BRAVENEC: Judge, I'm going to be brief. I

24 think you've already sensed what ended up happening, that we

25 ended up foreclosing on the property , he had two bankruptcies.

CHERYL D . HESTER, C.S . R . - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 31

1 They ended up holding that the foreclosure was okay. He then

2 sued us in federal court, filed a couple lis pendens that were

3 cancelled, went to the Fifth Circuit, who in a written opinion
4 affirmed the summary judgment in the District Court. They
5 ended up giving some 7,000 , $8,000 sanction for filing another

6 lis pendens.

7 MR. MARTIN: Which is on appeal.

8 MR. BRAVENEC: An appeal that was dismissed for

9 want of prosecution on November 27th because he didn't pay
10 the --

11 MR. MARTIN: That's not the appeal, Your Honor.
12 Objection.

13 MR. BRAVENEC: Because he didn't pay the filing

14 fees.

15 MR. MARTIN: That's not the same appeal.

16 MR. BRAVENEC: I think he's appealed the

17 sanct i on order to the Fifth Circuit. I'm not sure. The

18 we're advised by the Supreme Court that his 90-day period ran

19 on February 27th, and he only filed his Writ of Certiorari on

20 February 11th. We are literally ready to close except for the

21 probate. Now he's filed an additional one that deals with the

22 federal matter. And I mean, the federal judge was about as

23 clear as possible that because it was probate court, he wasn't

24 going to jail Mr. Martin.

25 MR. MARTIN: I object, Your Honor. I object to

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 32

1 the --

2 MR . BRAVENEC : I don 't want --

3 MR . MARTIN : I object .

4 THE COURT : I want h im to f i nish talking.

5 Thank you .

6 MR . BRAVENEC : I d o n ' t want him jailed. I

7 mean, I --

8 MR . MARTIN : You don't have a right to have me

9 jailed .

10 MR . BRAVENEC : I really wish he hadn't filed

11 another thing in the federal court . I just want to close

12 tomorrow. But what I ' m asking this Court to do is get rid of

13 the probate lis pendens . I think the Court knows the law

14 pretty well.

15 THE COURT : Granted.

16 MR. MARTIN : Well, Your Honor, I should say

17 that the further notice o f lis pendens that is of record now,

18 and the motion does not apply to the further -- to the further

19 notice , but the motion , the further not i ce identifies the

20 buyer as One for Autism , Incorporated. The buyer is on

21 constructive notice, lS on constructive notice of the

22 litigation in the -- in the federal appeals case and of the

23 pending motion for authorizing terms of withdrawal for Mr .

24 Mr . Bravenec. So the grant of the order will not insulate the

25 buyer from -- from liability for proceeding with the -- f o r

CHERYL D . HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
 33

1 proceeding with the sale .
~-
2 THE COURT : I think these are your original

3 documents.

4 MR . MARTIN : Your Honor, how does this affect

5 the status of the pending mot i on ?

6 THE COURT : Of wha t pending motion?

7 MR. MARTIN: There is a pending motion for an

8 order authorizing Mr. Bravenec, authorizing the terms of

9 withdrawal. Which would --

10 THE COURT : Mr . Bravenec withdrew whenever that

11 was, October of --

12 MR . POTHOVEN : Judge - -

13 THE COURT : October 5th of ' 05, I believe .

14 MR. MARTIN : Your Honor, the record shows that

15 that's when he terminated his appearance, but when was the

16 when was an order entered identifying Mr . Bravenec as the

17 beneficiary of an order of withdrawa l ? I'm not aware of any

18 such order . That was the subject of the hearing on J anuary

19 31st . I spoke to your clerk. The clerk i nformed me that you

20 had requested the transcript from that proceeding to -- t o

21 evaluate --

22 THE COURT : And I've determined that he

23 withdrew as of October the 5th, 2005 .

24 MR. MARTIN : Can we can we memorialize t hat

25 termination as part of this order, as well?

CHERYL D . HESTER, C.S . R . - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
 34

1 THE COURT: There was an order signed on
2 October the 5th of 2005.

3 I suppose we need a copy of that for everybody.
4 MR. MARTIN: What I'm asking for, Your Honor,
5 is a disposition on the motion that I filed that was heard on

6 January the 31st. It sounds like you're denying -- it sounds
7 like the motion is denied. If you're saying that - - you're

8 saying that -- I'm not sure what you're saying about the

9 motion. I understand you would say that your finding is that

10 he withdrew in 2000 - - in October of 2005, but I'm not sure I

11 understand what the disposition of my motion was that was set

12 for January 31st.

13 THE COURT: I don't even -- I don't have a copy

14 of that sitting right here in front of me . I don't - - the
~-
15 motion to authorize terms of withdrawal, I'm not sure -- he

16 withdrew.

17 MR. MARTIN: But it wasn't memorialized, Your

18 Honor. The issue was not that he terminated his appearance,

19 the issue was why there was no order on the record identifying

20 him as an authorized -- as a party authorized to withdraw.

21 MR. POTHOVEN: Judge, I know the Court is still

22 sitting. I think that we've done what we need to do today,

23 and I ask to be excused.

24 MR. MARTIN: Well, Your Honor/ I'm asking that

25 we include in the record of this proceeding, because you've

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
 -
35

1 made a determination, a factual determination that was not
..___-
2 available when we -- when my motion was heard on the 31st, and

3 I would like to get closure on that issue, as well, since you

4 are annoucing in open court that he withdrew -- that in your

5 opin i on that he withdrew , he was au t horized to withdraw in

6 October 2005 . And my motion addressed the issue that there

7 was no order to that effect. And I requested an order stating

8 when -- when , in the Court's opinion , the withdrawal took

9 effect .

10 And also , Your Honor , just for the record , I

11 would like a ruling that the exhibits that were attached to my

12 pleadings were reviewed by the Court and admitted into

13 evidence.

14 THE COURT: Attached to what pleading?

15 MR . MARTIN : There was a response that you

16 examined, then there was also special exceptions and

17 objections that you examined. The -- the exhibits were

18 attached to the response . They consisted of the orders from

19 the 150th and 224th District Court, there was a final account

20 from John Tutt, who was the attorney for Moroco Ventures in

21 the Chapter 11 Bankruptcy

22 THE COURT : Well, it's already been ruled on,

23 and there wasn't any offer at that time . So you had documents

24 attached to your response. I saw them .

25 MR. POTHOVEN: May we be excused, Judge?

CHERYL D . HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 36

1 THE COURT : Okay . This ought to address your
'-- 2 other concern.

3 MR . MARTIN : Thank you, Your Honor .
4 THE COURT : Thank you.

5 (Proceedings Adjourned)

6

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CHERYL D . HESTER , C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 37

1 THE STATE OF TEXAS

2 COUNTY OF BEXAR

3

4 I, Cheryl D. Hester, Official Court Reporter ln

5 and for Probate Court Number 1 o f Bexar County, State of

6 Texas, do hereby certify that the abo ve and foregoing contains

7 a true and correct transcripti o n o f all portions of evidence

8 and other proceedings requested by c ounsel for the parties to

9 be included in this volume o f the Repo rter's Record, in the

10 above-styled and numbered cause , all of which occurred in open

11 court or in chambers and were rep o rted by me.

12 I further certify that this Reporter's Record

13 of the proceedings truly and correctly reflects the exhibits,

14 if any, admitted by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Rep orter' s R:cord is $
0
l ~ ~ ~ OD and was

17 paid / will be paid by bJJ ),)(;.j"'- clllli U/cf0vL
18

19 WITNESS MY OFFICIAL HAND this the 12th day of

20 June, 2015.

21

22
CHERYL D. ESTER, C .S.R.
23 Official ! urt Reporter, Probate Court No . 1
Bexar County, Texas
24 100 Dolorosa
San Antonio, Texas 78205
25 (210 ) 335-2359
Texas CSR #4519 ; Expires 12/31/15

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 1 R E P 0 R T E R 'S R E C 0 R D

2 VOLUME 1 OF 1

3 TRIAL COURT CAUSE NO. 2001 - PC-1263

4
IN THE ESTATE OF IN THE PROBATE COURT
5
JOHNNIE M. KING, NUMBER 1
6
DECEASED BEXAR COUNTY, TEXAS
7

8

9 MOTION TO DISMISS
MARCH 31, 2015
10

11

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19

20
21 On the 31st day of March, 2012, the following

22 proceedings came on to be heard in the above-entitled and

23 numbered cause before the HONORABLE KELLY M. CROSS, Judge

24 Presiding, held in San Antonio, Bexar County, Texas:

25 Proceedings reported by Machine Shorthand.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
1

2 A P P E A R A N C E S

3

4 MS. ELIZABETH CONRY DAVIDSON
BAR 00793586
5 926 Chulie Drive
San Antonio, Texas 78216
6 ( 2 1 0 ) 3 8 0 - 4 8 9 9 ; Fax ( 2 1 0 ) 2 2 5 - 2 3 0 0 ,
Attorney for Bexar Appraisal District;
7

8

9

10 ,
Appearing Pro Se .
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CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 1 CHRONOLOGICAL INDEX OF PROCEEDINGS
March 31, 2015 Page
2
Appearances - - - - - - - - - - - - - - - - - - - 1
3

4 Announcement of Not Ready - 2
Ruling - - - - - - - - 2
5

6 Discussion regarding Adminstrator/Heirs - - - - - - - 3

7
Motion to Dismiss:
8 Argument by Ms. Davidson - - - - - - - - 9
Argument by Mr. Martin - - - - - - 14
9 Argument by Ms. Davidson - - - - - - 37
Argument by Mr. Martin - - - - - - - - 43
10 Ruling - - - - - - - - - - - - 46

11
Oral Motion to Transfer 46
12 Ruling - - - - - - 47

13
Proceedings Adjourned - - - - - - - - - - - - - - - - 48
14

15

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25

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
 1 EXHIBIT INDEX

2

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4 ***NONE MARKED OR ADMITTED***

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CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 1

1 MARCH 31, 2015

2 THE COURT: The Court is going to call

3 2001-PC - 1263. We have a Motion to Dismiss on the Estate of

4 Johnnie M. King.

5 Please make your appearances.

6 MS. DAVIDSON: My name is Elizabeth Conry

7 Davidson. I represent Bexar Appraisal District and Bexar

8 Appraisal Review Board.

9 THE COURT: How do you do?

10 MS. DAVIDSON: Good. How are you?

11 MR. MARTIN: Hello.

12 THE COURT: Hi.

13 MR. MARTIN: I'm Rowland Martin. I'm the

14 administrator for the Estate of King.

15 THE COURT: Okay. I have looked at this file,

16 and I'm a little confused why we still have an active 2001

17 file. With that being said, I've read the pleadings, and I

18 believe it is your Motion to Dismiss.

19 Have a seat.

20 MS. DAVIDSON: So would you -- would the Court

21 like to see a copy, or does the Court have a copy of our

22 motion?

23 THE COURT: I believe I have a copy somehere.

24 MS. DAVIDSON: Okay. I can give you one if you

25 decide you'd like one.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 2

1 THE COURT: I have the - - the only thing that I

2 do not have here on your motion, you said that there was an

3 attached Exhibit A, and there has been no Exhibit A.

4 MS. DAVIDSON: And I have a copy here. I'm

5 sorry about that.

6 THE COURT: Was counsel - - I'm sorry, you're

7 pro se. Was Mr. Rowland Martin given a complete

8 MS. DAVIDSON: He did not receive a copy, but

9 these are orders that he has signed. His signature is on

10 them.

11 MR. MARTIN: Your Honor, I did inquire, but I

12 was not clear about specifically what orders they were

13 refering to. I am aware of these orders. I did sign these

14 orders. But the -- my announcement is not ready today, and

15 that's part of the reason, is that the motion was insufficient

16 on its face. It didn't include the attachments that it cites

17 to substantiate the relief they request.

18 THE COURT: Okay. We're going forward. Your

19 motion, oral motion is denied.

20 Where is --

21 MS. DAVIDSON: May I pass out copies, please?

22 THE COURT: Please.

23 MR. MARTIN: Your Honor?

24 THE COURT: Yes.

25 MR. MARTIN: The other reason for the not ready

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 ,
3

1 announcement was that there was a Motion for Special

2 Exceptions that was filed, and a request to have that motion

3 set for today was made. And I'm not aware of what that Court

4 ruling was, whether that motion is before the Court. Although

5 it's styled as a Motion for Special Exceptions, it addresses

6 some jurisdictional issues. But my understanding, after

7 conferring with opposing counsel, is that opposing counsel is

8 not prepared to address the special exceptions. So that's the

9 reason for the -- for the not ready announcement.

10 THE COURT: Here's what I see. Have a seat,

11 both of you.

12 We're going to end this case one way or

13 another, so we can have a little bit going on right now. But

14 right now what I see is that you do not have a law license,

15 and you're an administrator, and you're not the sole

16 beneficiary. Is that correct?

17 MR. MARTIN: I'm not licensed in Texas. I am

18 pro se. My understanding is that no law license is required

19 for a person to perform the duties of an administrator. There

20 were two heirs of the estate, and one is now deceased.

21 THE COURT: And who takes -- I believe that was

22 Opal, your sister?

23 MR. MARTIN: That was my mother's sister.

24 THE COURT: Your mother's sister.

25 MR. MARTIN: Johnnie Mae King, the decedent,

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 4

1 was my grandmother. I'm the only child of her daughter

2 Loraine King Martin. And Opal Gilliam was my mother's sister.

3 THE COURT: And since the time of the heirship,

4 have you done anything as an administrator in order to gather

5 and disperse this estate to yourself and the other 50 percent

6 owner at the time?

7 MR. MARTIN: There was a -- a settlement

8 agreement that involved a mutual exchange of releases between

9 myself , in my capacity as an heir, and Opal Gilliam, who at

10 that time was deceased and was represented by her -- by her

11 husband. However, there are unresolved matters pertaining to

12 the estate and pertaining to estate property, and there are

13 other proceedings that are ongoing involving the estate. One

14 in the Fourth Court of Appeals, and one in the 150th District

15 Court, and another one that is an unresolved status in the

16 166th District Court. So that's why the estate is - -

17 THE COURT: Here's what the Court sees. You

18 can go ahead and do whatever you want as an administrator

19 representing yourself if you're the sole beneficiary. But you

20 are not representing just yourself, you're in the position of

21 being a fiduciary. The Court is uncomfortable with that,

22 because you are not able to represent the other 50 percent

23 share. If you are going to be pro se, you represent yourself

24 for what you're going to come and get and not get and whatever

25 you're going to do. But you're not. You're a fiduciary for

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335 - 2359
 s

1 somebody who was a SO percent owner. And this lS a 2001 case,

2 and this lS 201S.

3 So we're going to do a couple of things today.

4 We're going to hear what you have to say, and I'm going to

S take both of those things under consideration. And before you

6 leave my court, we're going to set this for mediation, we'll

7 set it for a docket control. And then I'm going to review

8 this file in totality and let you now whether you're going to

9 become and stay the administrator. While you may represent

10 yourself, this Court does not have the same opinion that you

11 are capable and able to represent anyone else other than

12 yourself.

13 MR. MARTIN: Your Honor, I would add, and I

14 respect the Court's opinion, and to aid the Court in the

1S exercise of its jurisdiction, first of all, as I said earlier,

16 there was an heirship settlement agreement where the other SO

17 percent interest holder released all claims against any

18 distribution from the estate. There were -- there were

19 THE COURT: How did she do that, sir? Did she

20 -- did she sign a disclaimer? Did you purchase her share? I

21 don't remember seeing that ln the file. And what benefit did

22 she derive from letting go of her SO percent?

23 MR. MARTIN: That's a fair question, Your

24 Honor. First of all, she was represented by Mark Smith, local

2S attorney Mark Smith, probate attorney here.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 7820S (210) 33S - 23S9
 6

1 THE COURT: Was that settlement on file in my

2 records?

3 MR. MARTIN: Yes, it is.

4 THE COURT: I haven't seen it.

5 MR. MARTIN : I don't know what's ln your

6 immediate file, but it is on record. This occurred in 2008.

7 At that time Ms. Gilliam was deceased, and as I said, her

8 husband, Calvin Gilliam, had assumed responsibility for

9 representing her interest. And Mark Smith represented her

10 part of the -- of the heirship.

11 THE COURT: And was her estate probated so that

12 there was her husband standing a title with Mr. Smith?

13 MR. MARTIN: Mr. Smith would have to answer

14 that question. The -- the settlement was the -- the

15 settlement was approved. That's what I can say, is the

16 settlement

17 THE COURT: By who?

18 MR . MARTIN: By Judge Jackson. The settlement

19 was approved. So I did not although I represented the

20 estate as the administrator, I also had capacity as an heir .

21 And we entered into that settlement agreement as an heir. And

22 I'm not aware of any objection or any second thoughts about

23 that settlement agreement on the part of Mr. Smith from my

24 family members on my-- on Opal Gilliam's side. That's the

25 first thing I would say, Your Honor.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 7

1 So essentially what remains to be done is to

2 remove certain clouds that are on the titles of the real

3 property that remains titled in the estate during the estate

4 administration. And the real property that remains will be

5 distributed to me. What the Gilliam heirs rece i ved were bank

6 accounts that were in dispu te, where these bank accounts were

7 in California. So essentially, as a matter convenience for

8 everyone, even they retained cash assets ln the form of these

9 bank accounts that were in California .

10 I should also explain, my -- my grandmother had

11 Alzheimer's. She was a life-long resident of San Antonio, was

12 domiciled in San Antonio. However, in her later life she

13 developed Alzheimer's, and at that time my mother's --my

14 mother was deceased, and my mother's sister was still alive.

15 So she relocated to California to receive care from the family

16 members in California. Some of her bank accounts from Texas

17 were transferred out to California. That was an issue ln

18 dispute, the status of those accounts, and it was resolved ln

19 the settlement agreement by allowing - -

20 THE COURT: So you, as the administrator and

21 heir, are the heir to a hundred percent of the shares of what

22 is in dispute with the taxing authorities.

23 MR. MARTIN: That is correct.

24 THE COURT: Have a seat . Have you done your

25 inventory -- have you done your annual accountings?

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 8

1 MR. MARTIN: No.

2 THE COURT: Are you a dependent administrator?

3 MR. MARTIN: I'm an independent administrator.

4 THE COURT: Independent administrator.

5 MR. MARTIN: Your Honor, there's one other

6 thing I would point out as to my ability to carry out the

7 functions of the administrator. Although I'm not licensed ln

8 Texas, I've previously been admitted in Washington, D.C.,

9 Pennsylvania, and New York to practice law. I have -- I'm no

10 longer active ln the practice of law, and I have not been

11 since I returned to Texas. But I'm a graduate of Princeton

12 University and of the University of Texas Law School, and do

13 believe I've capable of representing --

14 THE COURT: Again, I'm not going to change my

15 ruling because you have a background. My rule is if you are a

16 fiduciary for someone else other than yourself, you're not

17 going to be able to practice law without a license in my court

18 and represent pro se in that capacity if you are doing it for

19 anybody other than yourself. The settlement agreement with

20 the other 50 percent heirs takes away that concern for me, so

21 I'm back to what I said.

22 The Court's in receipt of the two orders that

23 were supposed to be attached as Exhibit A. It almost looks

24 like the -- it looks like it's signed on the same day. You

25 want to read this one here? I can read the other one, but it

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 9

1 looks like almost the same thing.

2 MS. DAVIDSON: The blurrier one lS the one you
3 want me to read?

4 THE COURT: The darkened one.

5 MS. DAVIDSON: Okay.

6 On this day came on to be considered

7 Administrator's Supplemental Motion for Orders Evidencing a

8 Disposition of Show Cause Proceedings and Motion for

9 Procedural Relief. Having heard the arguments of counsel and

10 the parties, this Court finds that it has no jurisdiction.

11 The discovery is abated until 30 days after the determination

12 of jurisdictional issues as to the -- and I can't read that

13 part.

14 Signed this 15th of November, 2010.

15 And it says signature of Judge Spencer and

16 counsel for the Appraisal District, William Durland, Counsel

17 for the Appraisal Review Board, Peter Low, Mr. Martin, counsel

18 for -- and two counsel from - - or from the Linebarger Firm,

19 who represented the taxing authorities.

20 THE COURT: You want, in about 30 seconds, to

21 tell the Court why the taxing authority has drug this citizen

22 over such small amounts around for years and years and years

23 and years and have not been able to settle this case?

24 MS. DAVIDSON: Well, I can tell you what

25 they've told me. I represent the Appraisal District, and the

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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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10

1 taxing authority is out of this case.

2 They were actually -- they did never file a

3 lawsuit in this case. What they believe, and I'm just telling

4 you what they

5 THE COURT: Who they?

6 MS. DAVIDSON: The Linebarger Firm. I talked

7 took to Don Stecker this morning, who's been handling a lot of

8 this. But what he to l d me, because obviously it's a big cas e

9 and I don't know all the history of it, but he said that they

10 filed tax lawsuits about this property. And around that same

11 t i me period, apparently, they did a protest on at least one of

12 these properties with the Appraisal District. We operate

13 separately in most ways.

14 So yes, it appears to be minimal amounts that

15 the taxing authority has -- has filed suit for. And then some

16 deal was tried to be made by Mr. Martin by giving over

17 property i n lieu of --

18 THE COURT: I read that.

19 MS . DAVIDSON: -- Paying taxes. Yes. And I

20 guess something with that happened and the taxing authority

21 didn't agree with it . Then they intervened in this lawsuit

22 on l y -- to -- to -- this is my understanding, only to set

23 aside those deeds. And that actually happened.

24 And then in 2009, I know that Mr. Martin sued

25 the Appraisal District. I don't know - - I don't think that he

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
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11

1 ever sued the taxing authorities in the case, but I'm not real

2 clear about that. I just know that's when my client got

3 brought in. And my client got brought in because, as the

4 Court can see, the only pleading I have, live pleading that lS

5 his is the verified motion for special exceptions. And he

6 admits that he sued various county officials in 2009, among

7 other things, to enjoin appraisals on nonexistent improvements

8 to real property. And so that's where my client comes in, is

9 where he's trying to change the appraised value of this

10 property.

11 And our argument lS -- does that satisfy you

12 about the delinguent part?

13 THE COURT: Yeah.

14 MS. DAVIDSON: Okay. So as to us, he did file
~

15 -- there was a protest filed on at least one of these pieces,

16 which is attached to another thing he filed, list of exhibits

17 that is a piece on 244 Henry Street. But I think there are a

18 couple other properties involved.

19 In any case, whether he protested all or just

20 one, let's say it's this one, because it's the only one he

21 attaches, he gets an Appraisal Review Board order, and then he

22 sued them ln this Court. And under the Tax Code, which is a

23 pervasive scheme that covers everything that you want to do

24 about an appraisal, anything you want to complain about with

25 the Appraisal District, you first have to go through the

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 12 l
1 Appraisal Review Board, which he did for that piece of

2 property. And then exclusive jurisdiction is in Bexar County

3 District Court.

4 THE COURT: Do you have a copy of the Tax Code

5 42.21? Which is the code

6 MS . DAVIDSON: Yes, I do.

7 THE COURT: That you are arguing?

8 MS. DAVIDSON: Uh huh.

9 And I -- I'll let you read, if that's what you
10 want to do first.

11 THE COURT: So this is talking about an appeal

12 within 60 days with the District Court .

13 MS. DAVIDSON: Yes.

14 THE COURT: Go ahead.

15 MS. DAVIDSON: Yes. So this is what he was

16 required to do if he wanted to appeal the Appraisal Review

17 Board order. And frankly -- well, there are numerous cases

18 enforcing this provision saying you can't file a lawsuit ln

19 any other court. I understand very little about Probate

20 Court, but I know that sometimes the Probate Court has

21 jurisdiction over other things.

22 THE COURT: Well, cite a case.

23 MS. DAVIDSON: Well, I don't have one that says

24 -- I mean, you mean a case that -- that is affirming this

25 provision, basically?

CHERYL D. HESTER, C.S .R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
 13

1 THE COURT: Yes.

2 MS. DAVIDSON: Okay. I can give you one. It's
3 Appraisal Review Board of Harris County and Appraisal District

4 versus Spencer Square, LTD. I can give you a copy of it.

5 THE COURT: Thank you. Right on the money

6 today.

7 MS. DAVIDSON: And there are numerous cases

8 standing for this.

9 Now, I don't find any cases that involve an

10 appraisal district being brought into Probate Court. There's

11 there are different provisions for taxing entities tryi n g

12 to recover funds from an estate, et cetera, and tax money.

13 But I have one of those cases, and I think that although it's

14 not the same, it does support the proposition that even if it

15 were a taxing entity, they would have to sue in District

16 Court. They couldn't just come in Probate Court unless they

17 get, I guess, Probate Code Section 5 or something like that.

18 But this is a jurisdictional problem. And it's

19 just - - there are layers of other things that I can argue

20 about, sovereign immunity and whether - - what he tries to do

21 in his pleadings is argue that this falls outside of the Tax

22 Code requirements and sovereign immunity. But we don't e v en

23 have to get there, because he didn't file suit in the right

24 court. This Court just has no jurisdiction, merely because

25 the Tax Code doesn't allow it.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
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14

1 And unless you have questions, that's really

2 what all I have to say.

3 THE COURT: Well, then we'll let the other side

4 talk.

5 MS. DAVIDSON: Okay.

6 MR. MARTIN: Thank you, Your Honor.

7 THE COURT: You're welcome.

8 MR. MARTIN: First of all, without having --

9 without having read the case that opposing counsel cites,

10 Appraisal Review Board of Harris County Appraisal District

11 versus Spencer, I'm assuming from her -- from her argument

12 that this was a case where there was nonexempt property.

13 Where the appraisal authority that was exercised under the

14 constitutional grant of jurisdiction was directed towards

15 nonexempt, tangible improvements and real property.

16 In this case, what distinguishes the fact

17 situation here from the cases that opposing counsel cites is

18 that the improvements on 244 Henry were demolished ln 2006.

19 And Your Honor, I do have -- I have an

20 affidavit and seven exhibits I would like to admit.

21 THE COURT: If it goes to the Motion to Dismiss

22 based on lack of jurisdiction, I will entertain it. If it

23 goes to the meat of any other issue, I will not.

24 MR. MARTIN: I -- I -- everything that I would

25 like to present addresses the jurisdictional arguments that

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 opposing counsel has made.

2 THE COURT: Go ahead.

3 MR. MARTIN: This is for Your Honor. And this
4 is for the record.

5 THE COURT: Just for your information, slnce

6 this already in the record, the Court's record

7 MR. MARTIN: All those exhibits were attached

8 to my affidavit that I filed, yes.

9 THE COURT: Then I'm going to return this to
10 you. I have your affidavit. The Court will take notice that

11 you filed that and that they are attached.

12 MR. MARTIN: Thank you.

13 THE COURT: Also, everything that he has in
14 there -- and you might want to show opposing counsel. It's
15 already in the Court's file.

16 MS. DAVIDSON: I've seen it.

17 MR. MARTIN: I've --

18 THE COURT: You're comfortable?

19 MS. DAVIDSON: Yes . I don't agree that it goes

20 -- that it meets the requirement you just asked if it met, but

21 that's okay.

22 THE COURT: I don't either. But go right

23 ahead.

24 MR. MARTIN: Okay. The Tax Code delegates

25 appraisal authority to -- to governmental subdivisions in

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 Chapter 42, as counsel has pointed out. However, the

2 statutory grant of authority is subject to a constitutional

3 grant of authority. And the confusion in opposing counsel's

4 argument is that she confuses the limits on the authority of

5 the Appraisal District to correct an appraisal, when the

6 constitutional limits on the scope of the ad valorem tax

7 grant --

8 THE COURT: How does that go to whether or not

9 the Probate Court has jurisdiction versus the District Court?

10 MR. MARTIN: It goes to the issue of the -- it

11 goes to the issue of -- of the status of the property. The
12 res of the dispute is estate property. And there is an ultra

13 vires exception that applies where the Appraisal District

14 exceeds its constitutional authority. There is no authority

15 under the constitution for an appraisal district to appraise,

16 assess, or collect taxed against nonexistent improvements.

17 THE COURT: Whether or not the Court agrees

18 with you on your statement, that is not the exception that you

19 would have had to sue a state office and not a subdivision of

20 a piece of government. The Appraisal District. So we're

21 going back to why are we in Probate Court versus District

22 Court. I'm assuming you're trying to keep this case here. So

23 the Tax Code that you just cited and that she gave us says

24 that, you know, if you have an appeal, it's going to come back

25 to the District Court.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 17

1 MR . MARTIN: Well, Your Honor
2 THE COURT: Why are you here?

3 MR. MARTIN: I'm here under authority of -- of

4 the -- this issue has been addressed by the Texas courts. The

5 issue of governmental immunity was addressed in City of El

6 Paso versus Heinrich. Subequently it was addressed by anothe r

7 Court of Appeals in Rourk v. Cameron Appraisal District. And

8 in that --

9 THE COURT: Did that case override El Paso v.

10 Heinrich?

11 MR. MARTON: No, it followed.

12 THE COURT: In Heinrich, didn't that case say

13 that ln order to have that exception that you're speaking of,

14 that the claim has to be brought against a state official for

15 nondiscretionary acts unauthorized by the law? Are you saying

16 that there is one person over at the Appraisal District that

17 is worthy of a lawsuit by you for doing acts outside the scope

18 of their business?

19 MR. MARTIN: Your Honor, yes. The -- at the

20 time -- at the time when the Appraisal District and the

21 Appraisal Review Board were sued the chairman of the Appraisal

22 Review Board was cited, and the chief appraiser of Bexar

23 County was also cited. So

24 THE COURT: Cited or sued?

25 MR. MARTIN: My recollection, and I'l l have to

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 go back, but my recollection is that the chief appraiser was

2 included as a defendant in the suit.

3 And I'd also like to -- to share these two

4 cases with you. These are both Rourk v. Cameron Appraisal

5 District. One addresses the scope of the tax authority's

6 constitutional authority, and this one, the second one

7 addresses the ultra vires exception. The upshot of it, the

8 upshot of it is in the second case, in a situation not unlike

9 this one, where ln Rourk the issue was whether there was

10 governmental immunity from claims for attorney's fees, the

11 ultra vires exception was recognized. And the -- the parties

12 against whom the jurisdictional challenge was leveled were

13 allowed to replead. At the very minimum --

14 THE COURT: Because that was prior to the

15 Heinrich case, it was the court giving them a moment in time,

16 I recall from that case. And again, if the code says that --

17 the Tax Code says that you should be ln District Court, why

18 are you arguing against that?

19 MR. MARTIN: I'm arguing that there's a

20 conflict of laws. There is that provision, but there's also a

21 provision under the Probate Code that grants jurisdiction to

22 the Probate Court to address matters pertaining to estate

23 property.

24 THE COURT: I'm aware of that.

25 MR. MARTIN: So that --

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 THE COURT: Wouldn't you have to ask me to take

2 jurisdiction?

3 MR. MARTIN: Well, Your Honor, we did ask your

4 predecessor to take jurisdiction.

5 THE COURT: And she said no.

6 MR. MARTIN: Well, Your Honor, that's

7 THE COURT: I'm looking at two orders in 2010,

8 one in February and one -- well, they're both February 15th.

9 I don't understand that. But very clearly she says that this

10 Court has no jurisdiction in this matter.

11 MR. MARTIN: Your Honor, I need to clarify.

12 THE COURT: Okay.

13 MR. MARTINE: Opposing counsel has stated that

14 she is not familiar with the case history other than a

15 conversation with Don Stecker from the Linebarger firm, who

16 does not represent the County on this -- on this matter. I

17 call the Court's attention to one of these two orders. The

18 first order dealt with a tender of estate property as an

19 in-kind tax payment.

20 THE COURT: Which one is that?

21 MR. MARTIN: That's the one where the Court

22 says it has no jurisdiction.

23 THE COURT: Both said that.

24 MR. MARTIN: Well, let's take one at a time.

25 Because they're two different matters.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 THE COURT: Maybe it would be helpful if you

2 told me the - - which one we're doing here. We have - - there's

3 no time stamp on this. One says on April 9th, 2010, and the

4 other one says on this day came. Which one do you want to do

5 first?

6 MR. MARTIN: I have mine, so I can show you.

7 THE COURT: Do you have one that reads better

8 than this?

9 MR. MARTIN : Yes. I believe that's -- well,
10 no. That one is this one.

11 THE COURT: This lS the one that we can't see

12 too well. Oh, way good.

13 MR. MARTIN: Here lS another one. The first - -

14 let's take this one first.

15 THE COURT: I have - - let me see. I have this
16 one.

17 MR. MARTIN: Okay. There were two items, there

18 were t wo - - there were two matters in controversy, Your Honor.

19 One was whether or not the Probate Court would approve or

20 disapprove a tender of property as an in-kind tax payment .

21 That is what the first order addresses. And when the Court

22 says it has no jurisidiction, the Court was referring to

23 whether there was jurisdiction to approve or disapprove the

24 tender of the in - kind tax payment. It had nothing to do

25 whatsoever with the appraisal controversy or the -- or the

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 or corrections to an appraisal. So although the Court says it

2 finds it has no jurisdiction in that matter, it had no

3 jurisdiction over the subject matter of the in-kind tax

4 payment.

5 THE COURT: It also says here that the

6 determination of jurisidictional issues were supposed to be

7 completed - - it looks like it was a settling of 8/26/10.

8 MR. MARTIN: I don't

9 THE COURT: As to the First Supplemental

10 Petition for Declaratory and Injunction relief.

11 MR. MARTIN: I don't -- okay. This lS -- this

12 is a separate matter. This was a -- this was a lawsuit that

13 included two associates of the Linebarger firm. The order

14 clearly states, it says that there was -- the issue was

15 whether or not discovery should be allowed to proceed. The

16 order states in the text that the discovery is abated until 30

17 days after the determination of jurisdictional issues.

18 Now, the showing, Your Honor, this was a

19 showing that was filed in response to that. There were some

20 intervening proceedings, so the abatement had not been lifted .

21 I have a copy for you, ma'am. Here you go, Ms.

22 Davidson. Let me just make sure.

23 MS. DAVIDSON: Thanks.

24 MR. MARTIN: There were intervening events that

25 -- that put that on the back burner. But nonetheless, the

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 ('2 10 ) 335-2359
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1 showing was made and the order, the order does not disavow
~-

2 jurisdiction, the order places the burden on the State to

3 establish the jurisidiction. And this is a matter of a

4 lawsuit that includes two of the Linebarger associates and

5 whether discovery should proceed. So

6 THE COURT: And on the other order?

7 MR. MARTIN: Well, we just discussed the other

8 order. The other order was whether or not the Court thought

9 it had jurisdiction to approve or disapprove a tender of

10 property for in-kind tax payments, and --

11 THE COURT: So that brings us up to November

12 2010.

13 MR. MARTIN: And Your Honor, those matters --

14 just bear with me for a moment.

15 The tax authorities, here is a deed of

16 nonacceptance in regard to the in-kind tax payment that was

17 filed in June of 2014. So that -- that was the subject matter

18 of that first order where the Court said flatly that it did

19 not have jurisdiction. And the subject matter of the second

20 order had to do with whether discovery should proceed against

21 the Linebarger firm for their malfeasance in this - - in this

22 matter.

23 So back to the -- the core issue, I believe, is

24 whether the subject matter of the controversy with the

25 Appraisal District involves estate property. The answer to

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 1 0) 335 - 2359
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23

1 this question is yes. It is not disputed by anyone that the
2 property at 244 Henry is property of the Estate of King.

3 The second question is whether the Appraisal

4 District was operating within the scope of its constitutional

5 grant of authority when it appraised -- when it assigned an

6 appraisal value to nonexistent improvements for the tax years

7 2007, 2008, and 2009. The answer to that question is no .

8 There's no one that disputes that the -- that the -- as a

9 matter of fact, Your Honor, in Exhibit B, Plaintiff's Exhibit

10 B, we have tax documentation that's provided by the County.

11 And if you will examine the years 2007, 2008, and 2009, and if

12 you look under the column that says remaining levy, and you

13 compared those amounts to the amounts in 2010, you'll see a

14 precipitous drop. You will also see, under - - in the center
'- 15 of the page where it says 2010 value, it shows $3,000.

16 THE COURT: But sir, we're not arguing the meat

17 of this case. We're not doing pot roast yet. We're just

18 doing the gravy here to get a little broth. The question is,

19 is this going to be held in my Court or ln a District Court.

20 Which the regulatory scheme of things has decided way beyond

21 you and I that this matter should be heard there. In our

22 District Courts. While I may have concurrent jurisidiction, I

23 agree, it does not mean that I have exclusive jurisdiction or

24 that I want to have jurisdiction. Correct?

25 MR. MARTIN: I believe that's correct, Your

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 Honor. But my point is they were the ones that were arguing
,_
2 exclusive jurisdiction. My point was simply that the matter

3 is properly before the Court, and the Rourk decision

4 accomplishes that. Because the ultra vires -- the ultra vires

5 exception to governmental immunity is what creates the

6 exception to the Tax Code that opposing counsel is referring

7 to.

8 I would argue -- I would argue in the first

9 instance, Your Honor, that because there is estate property

10 and this is a dispute pertaining to estate property, that

11 Probate jurisdiction exists. Opposing counsel disagrees with

12 that assessment.

13 As the -- as the alternative argument, the --

14 the Tax Code which delegates sovereign immunity in respect to

15 tax issues has been declared by the Texas Supreme Court and by

16 at least one other Court of Appeals to be subject to ultra

17 vires exception. And in the Rourk case, the problem was that

18 the tax authority, the appraisal authority attempted to assign

19 an appraisal value to recreational vehicles that were not

20 attached to the land. And if they can - - they were - - they

21 were not allowed to do that in the Rourk case. The case went

22 to the Texas Supreme Court, the Supreme Court remanded that

23 issue to the Court of Appeals, and the Court of Appeals sided

24 with the taxpayer. And if the and if the Texas courts say

25 that appraisal authorities cannot apply - - they can not direct

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 25

1 their ad valorem tax authority to tangible personal property,

2 which in Rourk involved recreational vehicles, then certainly

3 they have no authority to assign an appraisal value to

4 nonexistent improvements.

5 And I'm not arguing the ultimate merits of the

6 case, but I'm saying that establishes a jurisdictional fact

7 issue about whether the ultra viries exception applies. And

8 that enables -- by my - - the legal argument ln my motion for

9 special exceptions argues that when a court lS presented with

10 a Plea to the Jurisdiction and a jurisidictional fact issue is

11 raised or evidence is presented that creates a jurisdictional

12 fact issue, in that instance the matter has to be determined

13 by the trier of fact and the Plea to Jurisdiction cannot be

14 granted. This is the authority that I cite, City of El Paso

15 versus Heinrich, which was the seminal case for the ultra

16 vires exception.

17 Your Honor, I would say in this case there is

18 no question that the appeal from the tax protest was timely.

19 I believe that the facts are undisputed. And I'm - - I believe

20 I'm in the position to move for judgment on the pleadings,

21 because there is no authority and no factual evidence to

22 contradict their lack of authority to assign an appraisal

23 value to nonexistent improvements. It's a proper issue for

24 the Probate Court to decide because it involves estate

25 property, and they have no - - they are outside of their

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 1 0) 335-2359
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1 constitutional grant of authority.

2 Now, what they have done, if I may continue,

3 what they have done, Your Honor, is they have -- they have

4 conflated two completely separate issues. On the one hand

5 they have come in and they have said that the Tax Code grants

6 us limited authority to correct appraisals, and he didn't

7 follow the rules for that limited grant, because he filed the

8 case in the wrong court. That's what -- that's what they're

9 saying. But they are confusing that issue, the limits on the

10 statutory grant with the limits on the constitutional grant .

11 And where there is an action in excess of a constitutional

12 grant of jurisdiction, the -- the authorities throw the matter

13 of the exhaustion of remedies and so forth out of the window.

14 I would cite -- in paragraph 14 of the Motion

15 for Special Exceptions I cite Strayhorn versus Lexington

16 Insurance Company for the proposition that the purposes

17 underlying the exhaustion rule are not applicable. In a case

18 of an agency acting outside of its statutory powers, the

19 purposes underlying the exhaustion rule are not applicable,

20 judicial and administrative efficiency are not served, and

21 agency policies and expertise are irrelevant. And that's 128

22 S.W.3d 772 at 780. And this was the Austin Court of Appeals.

23 So as far as their - - as far as their

24 objections to variances from the Tax Code, Your Honor, if --

25 if they had attempted to -- if they were attempting to attach

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
 27

1 property, to appraise property improvements to property that
2 actually existed, that would be one thing. Their argument
3 would be a little bit stronger than it is now. In that case I

4 would still say that because the estate, the property is

5 estate property, that the Probate Court would still have

6 jurisidiction. But in this case they have acted completely

7 outside of the Tax Code, and therefore the Tax Code should

8 provide them no repose and no basis to argue governmental

9 immunity when they have -- when they have acted in a manner

10 that justifies the ultra v ires exception. And that's the

11 essense of it. They have dragged this thing out, as you

12 pointed out earlier, for nominal sums. And for the life of

13 me, Your Honor, I don't understand why they simply can't

14 correct the record. Correct the record and wipe the slate

15 clean.

16 Now, here's the problem with their motion.

17 There's three strikes and a foul. Number one, they came ln

18 with a motion that didn't have all the attachments. That

19 that's a foul. A procedural foul, if you'll go with my

20 metaphor. Then there's three - - there's three strikes for

21 jurisdiction. Number one, they are asking you, Your Honor, to

22 expand the scope of the constitutional grant of ad valorem tax

23 authority so that you can look -- they're asking you to look

24 the other way for the fact that the tax authorities have

25 attempted to appraise nonexhist -- nonexistent property, which

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO . 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 is a constitutionally absurd proposition to begin with.

2 Number two, they've asked you to abrogate the ultra

3 vlres exception to governmental immunity so that they don't

4 have to be accountable for this in your court.

5 Then number three, they're talking about they

6 would ask you -- the matter was filed in this -- this case ln

7 this Court in 2001, and there have been a number of

8 extenuating circumstances that prolonged the administration,

9 this being one of them. The concern I have was the tax

10 authorities, not just the appraisal authorities, but the

11 but the tax assessor-collector -- and for them to show up --

12 to show up and ask you to abrogate the first-filed rule in

13 favor of a District Court because they claim they have

14 governmental immunity under the Tax Code, when the Tax Code --

15 they exited the sphere of the Tax Code when they attempted to

16 appraise nonexistent improvements to the property.

17 So those are the -- three -- those -- those are

18 the -- that's the crux of their jurisdictional argument. I

19 don't think there's any validity to any of those

20 jurisidictional exceptions. I believe my special exceptions,

21 if the Court would entertain them now or if the Court would

22 allow us to argue the Special Exceptions at a future date, I

23 believe those special exeptions are valid. I believe that

24 under Rourk the estate is well within its right to proceed ln

25 this Court, the one that we have chosen and the one that

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
 29

1 avoids piecemeal litigation. We've got litigation, we would

2 have -- if -- if the Court were to -- if the Court were to go

3 with what opposing counsel is saying, it would put the estate

4 ln a position practically of forfeiting the claim. Because we

5 would have to file in another -- in the District Court,

6 outside the statute of limitations, outside the filing period

7 for the protest, number one. Number two, it would be

8 piecemeal litigation, because there's other litigation that's

9 going on with the tax assessor-collectors.

10 The order, the first order, just to put that in

11 context, and not to argue the merits, the first order that you

12 cited, Your Honor, where Judge Jackson stated that she did not

13 believe she had jurisdiction to adjudicate an issue about an

14 in - kind tax payment. Your Honor, the - - the Linebarger firm

15 had presented a claim ln the estate court asking -- in the

16 Probate Court asking the Probate Court to cancel conveyances

17 that were made in satisfaction under the in-kind tax payment

18 code. That constitutes a probate claim. Okay? Whether the

19 Court agreed that it had jurisdiction to adjudicate the merits

20 of it, that constituted a probate claim. The claim was not

21 approved. I disapproved the claim. It involved judgments

22 that were in controversy and that were later vacated. The

23 the tax authority themselves later moved to vacate. And you

24 will see in Plaintiff's Exhibit E --

25 THE COURT: The June of 2013, where the

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1 foreclosure lS vacated and the cause is revived?
2 MR. MARTIN: Yes , Your Honor.
3 THE COURT: It revived all three of those. And

4 so didn't that revive you right back into the District Court?

5 MR. MARTIN: That's the open question that we

6 are litigating in the hundred and -- in the 150th court. My

7 position, Your Honor, is that the tax authorities presented a

8 probate claim when they sought to cancel the in-kind

9 conveyences. The claim was -- the claim was disapproved by

10 the administrator. Their position was they were not granted

11 the relief that they requested from the Probate Court. And

12 they did not appeal. They did not appeal the denial within

13 within 90 days of the time that the -- that the -- that the

14 claim was denied.

15 THE COURT: I don't believe they have to appeal
16 it. I believe that they have to file suit.

17 MR. MARTIN: Your Honor, may I address that?

18 THE COURT: Yes.

19 MR. MARTIN: Okay. I'm not able to cite the

20 code, the code section, but I do cite the case of -- of

21 Andrews versus Aldine Independent School District. This is

22 where they dealt specifically with this matter under the

23 Probate Code. And the probate -- under the old code, there

24 was a section that dealt with suits on rejected claims. And

25 the text of the statute says that if the claim is either

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1 rejected outright or by implication, they have 90 days to

2 appeal the denial. And if they -- if they fail to appeal the

3 denial in the 90 days, they forfeit the -- they forfeit the

4 claim. That is what the Court in Andrews versus Aldine school

5 -- Independent School District held.

6 The new code, the Estates Code has an

7 indentical provision which says the same thing. If there's a
8 probate claim and the probate claim is denied and the

9 creditor, in this case the tax authorities, fail to appeal

10 from the denial of their claim, they forfeit that claim

11 because they -- they invoked the jurisdiction. Rightly or

12 wrongly, they invoked the jurisdiction of the Probate Court

13 and they faild to appeal.

14 So in that case, Your Honor, there is -- this

15 is -- this is an issue that is before the 150th District

16 Court, and it lS -- it is -- it is explanation as to why

17 part of why this matter has -- has dragged out. The tax

18 authorities have skirted the law in every instance where they

19 have had the opportunity to do so. They started out suing the

20 heirs while the probate case was in progress at the beginning

21 of the -- at the beginning of the case. They sued me

22 personally and Opal Gilliam personally in the District Court.

23 The case law on point, and I'm not prepared to

24 cite it, but I can come back and cite it for you, they had no

25 standing to sue the heirs for ad valorem taxes on estate

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1 property. And that court that -- where they got those

2 judgments had no jurisdiction to do that. That was part of --
3 of the controversy that led to the in-kind -- to the attempt

4 to make an in-kind tax payment.

5 THE COURT: Are those the same ones that

6 foreclosures were eventually vacated on? Those are the same

7 tax suits?

8 MR. MARTIN: Yes. One of them is.

9 THE COURT: And the other ones, the judge's

10 notes also say that all three of those tax suits were -- the

11 foreclosures were being vacated and the causes were revived

12 back to District Court.

13 MR. MARTIN: Yes, Your Honor. Now, we're --

14 there is some controversy about that. But yes, that's what

15 the judge 's notes say. And the issue --what happened

16 subsequently, concurrent with the bill of review where the

17 judgments were vacated, there was an interlocutory appeal to

18 the Fourth Court of Appeals on the issue of the suit against

19 the heirs in the first place. Whether there was standing in

20 the tax authorities to sue the heirs for estate property in

21 the District Court while the probate was open.

22 THE COURT: You know, I saw your reference to

23 that, but I didn 't see the I didn't see that that is what

24 the appellate court had said. Rather -- let me find it here.

25 R. MART IN: That would be Exhibit F.

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1 THE COURT: Right . What this said is that they
,_ ~

2 were denying your writ of mandamus.

3 MR. MARTIN: There was there was another
4 issue. There was more than one issue in there. But yes, Your
5 Honor, they did -- they did deny the writ of mandamus. They
6 state in the opinion, they acknowledge the concurrent

7 jurisdiction of the Probate Court.

8 THE COURT: I don't see that here. I see --

9 MR. MARTIN : It's ln the footnote.
10 THE COURT : I see one paragraph.
11 MR. MARTIN : It's ln the footnote.
12 THE COURT: It says where the proceeding is
13 arising out of. I don't --

14 MR. MARTIN: Well, that's how - - that's how
15 it's interpreted, Your Honor.

16 THE COURT: Well, it might be how you're

17 interpreting it, but it's a pretty clean statement. If it
18 comes out of the Probate Court, the proceedings arise out of

19 it. I don't believe your opposing counsel is denying that the

20 Probate Court has the ability to hear claims, to bar claims.

21 I bet opposing counsel has absolutely nothing to say to oppose

22 those two statements. True?

23 MS. DAVIDSON : That is correct.

24 THE COURT: So basically when the foreclosures

25 were vacated, which I thought was a very hard - fought battle,

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1 from reading your pleadings, the foreclosures were all vacated

2 and the cause was revived, I believe that what the judicial

3 notes were saying is it went back to the District Court. And

4 while we may have concurrent jurisdiction, I don't believe I

5 have exclusive jurisdiction.

6 MR. MARTIN: I wouldn't -- I wouldn't deny that
7 assessment, Your Honor. I believe it's -- I believe I

8 believe that's correct, is that this Court would have

9 concurrent jurisdiction with any -- with any District Court

10 that is pursuing the matter that attends to estate property or

11 in which the administrator lS -- lS a party.

12 THE COURT: Now, right now what you have told

13 me is that you are the administrator and sole heir. Right?

14 There's no other persons taking through this?

15 MR. MARTIN: There's no -- there's no other

16 heirship claims. That's correct.

17 THE COURT: So do we have any further need for

18 administration of this estate other than the dispute with the

19 taxing authority?

20 MR. MARTIN: Yes, Your Honor. There's a

21 dispute with a former attorney of record. The law firm of

22 McKnight and Bravenec represented the estate during a stage ln

23 the proceeding. They neglected to contest these lawsuits

24 against the heirs in the District Courts. That lS --

25 THE COURT: Malpractice lawsuit?

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1 MR . MARTIN : Yes, Your Honor.

2 THE COURT: Is there some reason why that has
3 to be in my court?

4 MR. MARTIN: Yes. One of the issues, although

5 again it's subject to concurrent jurisdiction. I would not

6 say that the Court necessarily has exclusive jurisidiction.

7 This would be an instance where the Court clearly has dominant

8 jurisdiction. Because one of the issues pertains to an orde r

9 to the - - to their discharge as attorneys of record. There
10 were two attorneys from the firm that made appearances in the

11 court. One obtained an order authorizing withdrawal , but the

12 other one did not.

13 THE COURT: Did you hire that firm personally?

14 MR. MARTIN: Yes, I did, ma'am.

15 THE COURT: Had you been appo i nted the executor

16 at that time?

17 MR. MARTIN: Yes, I had, Your Honor.

18 THE COURT: So were you hiring them in your

19 individual capacity or that as an executor?

20 MR. MARTIN: As an executor . Adminstrator.

21 THE COURT: And what is the statute of

22 li mitati o ns for that, to bring a lawsuit against them?

23 MR. MARTIN: I believe that not -- not

24 consideri n g, s e t t ing aside issues about equitable tolling and

25 suit-in - a-s u i t litigation, I believe the normal statute of

CHERYL D. HESTER, C . S.R. - PROBATE COURT NO. 1
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1 limitations for a malpractice claim is four years. However,

2 the law on malpractice is very clear where attorneys are

3 involved. If the -- if the malpractice claim arises out of

4 litigation, and that's what they refer to as a suit within the

5 suit, because you have a suit --

6 THE COURT: I get it .

7 MR. MARTIN: Okay. There was suit-in - a - suit
8 litigation. So the law on this point says that the claim does

9 not finally accrue until the conclusion of the -- of the

10 suit-in - a - suit litigation. So yes, there's a four - year

11 statute of limitations, to the best of my understanding, for

12 the malpractice claim. But the claim does not accrue finally

13 until the suit-in-the-suit litigation is complete. And there

14 is still suit - in - a-suit litigation.

15 THE COURT: And I'm not really seeing, although

16 it's a side issue, that we have any reason for a continued

17 administration since you are the sole heir and you can bring

18 that lawsuit on your own. But that being said, have a seat.

19 I'm going ask your opposing counsel to see if she has

20 anything. Because I'm pretty sure I get where you're coming

21 from , Mr . Martin.

22 Ma'am, do you have any kind of a response that

23 you want to make on this, your Motion to Dismiss this from

24 Probate Court?

25 MS. DAVIDSON: I have a lot of notes here. I'm

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1 just going to try to pick the most --

2 THE COURT: While you're looking at that, has

3 there been a lawsuit against one person in the Bexar County

4 Appraisal Review Board that has been sued in their individual

5 capacity?

6 MS. DAVIDSON: By him?

7 THE COURT : Well, yeah.

8 MS. DAVIDSON: No.

9 THE COURT: Do you know, since you have brought

10 a joint motion here, whether or not there has been anyone

11 personally sued in the Review Board?

12 MS. DAVIDSON: There has not.

13 THE COURT: You want to talk to me about El

14 Paso v. Heinrich and whether or not the ultra vires exception

15 is going to apply in this case?

16 MS. DAVIDSON: I honestly didn't think we were

17 going to get into what to me lS the issue of sovereign

18 immunity. But I can talk about it briefly, because I'm

19 familiar with it generally, because -- representing the

20 district. But I mean, I don't think that's relevant to the

21 issue of whether this suit should have been filed in District

22 Court or not.

23 The thing that happened apparently is that the

24 property that no longer had improvements on it was appraised

25 at a high value, I take it. I'm not minimizing what happened,

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 but that -- that is what he protested about. He filed a

2 protest with the Appraisal District, he got an Appraisal

3 Review Board hearing, he got an order from the Appraisal

4 Review Board. And this is what you do. This happens,

5 unfortunately. Appraisal Districts screw up or don't know the

6 property has been razed or whatever. So your remedy - - he had
7 a remedy. It's you go to the Appraisal Review Board, you tell

8 them what happened. And if they agree with you, then they --

9 then they fix it.

10 They didn't agree with him. And at that point

11 in time, Mr. Martin is obviously a very sophisticated

12 litigant, he had a choice of to follow the -- continue

13 following the requirements of the Property Tax Code and file a

14 lawsuit in District Court, which he's obviously able to do,

15 because he's done it ln these other suits he's taking about.

16 But instead he chose to file it in Probate Court. And in our

17 opinion he made a choice that - - that took him outside of, you

18 know, jurisidiction of District Court. And it was his

19 decision to file it here instead of in the correct court.

20 I'm not saying that this Court absolutely

21 doesn't have concurrent jurisidiction, but I would like to

22 show the Court this Moak versus County of Cherokee case, which

23 to me it's about the taxing authorities and their ability to

24 collect taxes and the requirement -- it goes to his discussion

25 about the 90 days for them to appeal and everything, I think.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
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1 According to, I think, Probate Code Section 5,

2 which was new at the time of this case, a taxing authority

3 can, within four years of beginning of administration, make a

4 claim in Probate Court. Otherwise, if it doesn't happen until

5 after four years after the administration started, they have

6 to file their claims in District Court. This actually talks

7 about there not being jurisdiction in the Probate Court after

8 those four years. I'm not familiar with Probate Court rules,

9 but that - - and I can give - - I'll give you guys copies of

10 these.

11 THE COURT: Yet y'all have come in here time

12 and time again. You're still here in 2015. What is still the

13 dispute, ma'am, that this man has to continually fight with

14 you?

15 THE COURT: Well, he has a dispute with the

16 taxing entities. Please -- please remember they ' re the ones

17 that want to collect on delinquent taxes. I mean, I saw the

18 sheet he had against, you know , he -- I don't know. But I

19 mean, one of the things that has happened, apparently, is that

20 he's, you know, I'm gathering that he kept this estate open,

21 he kept the property in this estate, and it seems that he is

22 actually-- it's really- - I'm not trying to be critical, but

23 it's really he who keeps being litigious, who keeps sort of

24 keeping the property in this ongoing administration in an

25 attempt to avoid the collection for delinquent taxes. My dog

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 my client has no -- has no dog in this fight/ really. He
2 if he wanted to complain about what my client did 1
which

3 apparently was appraising their property at higher than it

4 should have been/ he should have gone through the protest

5 process and filed suit in District Court. Then it would have
6 been over 1 you know/ nine years ago.

7 Go ahead.

8 THE COURT: He -- he did 1 to best of his

9 ability/ protest according to the rules.

10 MS. DAVIDS ON: Yes.

11 THE COURT: Why would this Court want to

12 dismiss you/ dismiss this for lack of jurisdiction --

13 MS. DAVIDSON: uh huh.

14 THE COURT: After this man has spent 14
---
15 years fighting a wrong that happened back with the Appraisal

16 Board?

17 (Interruption)

18 THE COURT: The Court is going to take a

19 5-minute recess. Thank you.

20 (Recess)

21 THE COURT: I am sorry/ but you know how real

22 lifes invade your day.

23 MS. DAVIDSON: Yes.

24 THE COURT: I had such a good time listening to

25 you. I'm so sorry. That was my associate judge. We had a

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 little crisis within our family of workers. So apologies to
2 both of you.

3 And I know there's a case after this, and

4 double apologies to y'all.

5 You were saying?

6 MS. DAVIDSON: You asked why should this Court

7 go ahead and accept jurisdiction. Because ostensibly they

8 filed this in the best court they could. And so at first I

9 would say that if this Court -- I'm not completely convinced

10 that this Court could accept jurisdiction, just because the

11 Tax Code provisions are jurisdictional. And - - and my

12 position is that even if this Court has concurrent

13 jurisdiction over many things, I -- I don't know that I agree

14 it does over an ad valorem tax appeal. But assuming that it

15 did and denies our motion, or plea to the jurisdiction, you

16 know, the next thing we'll do lS we're going to litigate

17 sovereign immunity and the ultra vires issue.

18 But you know, the Tax Code was created to make

19 it so that governmental entities don't have to waste their

20 resources being sued when it's inappropriate. It has very

21 strict timelines, deadlines for everybody that applies in

22 District Court, you know, these deadlines and rules do.

23 They're all jurisidictional.

24 So you know, so that -- and so -- and I wanted

25 to say, also, that regarding this thing about how we've been

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1 in this suit forever. I mean, I don't believe the District
2 has done really anything in the suit except get sued. And

3 that was in 2009. Because he says we made an

4 extra-constitutional mistake. And then Judge Spencer entered

5 these two orders in 2010, and my client actually believed that

6 they were out of this lawsuit. And so did the taxing

7 entities. The taxing authorities apparently are. Apparently

8 nobody disagrees about that.

9 And when my co-counsel Karen Evertson contacted

10 -- I don't know if it was the probate clerk or if it was --

11 I'm sure it was the probate clerk's office saying we have

12 these orders that Judge Spencer signed saying there's no

13 jurisdiction. And the Court understandably -- or the clerk

14 understandably said they're not specific enough, we aren't
'--
15 really sure what they apply to, so you need to come in and get

16 another order. That's what I'm trying to do today.

17 So I haven't addressed these deeper issues of

18 sovereign immunity or ultra viries and that kind of stuff,

19 which is what, you know, we're talking about today. I was

20 just focused on this one provision of the Tax Code that said

21 here's where you file suit. I mean, you know, I think Probate

22 Court lS different, but I had one of these cases where a guy

23 filed ln municipal court. When he was asked why he did it, he

24 said well, it costs more to file in District Court. Well, you

25 know, that's unfortunate, but he made a choice. So his case

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 was dismissed.

2 Okay. I think that's all I have. Unless you
3 have questions.

4 MR. MARTIN: Your Honor?

5 THE COURT: Sir.

6 MR. MARTIN: I have a very brief -- I realize

7 you allowed me to make a lengthy presentation. I appreciate
8 that. I appreciate opposing counsel's indulgence. I just

9 would like to respond very briefly to comments she made.

10 During your absence, Your Honor, I had a chance

11 to review. Two points that I would like to make pertain to

12 this case of Moak versus County of Cherokee, which I had the

13 opportunity to review in your absence. The second point that

14 I'd like to make has to do with the Open Courts Doctrine under

15 the Texas Constitution.

16 Regarding - - regarding Moak, if you will refer

17 to headnote number 6, it states in the headnote that the

18 savings provision and the general statute of limitations apply

19 to action against heirs or against estate to recover

20 delinquent ad valorem taxes. And then I emphasize the next

21 phrase, in which taxing authorities had complied with the law.

22 This is a case where there was no issue that

23 the tax authorities had complied with the law. Therefore,

24 it's distinguishable from the fact situation here. Because

25 the tax authorities did not comply with the law.

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1 THE COURT : And that ' s because they were trying

2 to tax on improvements that had been razed?

3 MR. MARTIN : That was one point. And the other

4 thing I would clarify, opposing c o unsel inadvertently

5 mischaracterized the decision of the Appraisal Review Board.

6 The implication in opposing cou nsel ' s presentation was that

7 the Review Board reached the merits of the protest. The

8 record will show that that is· no t correct. What happened was,

9 was that the -- is that the Appra i sal Review Board imposed a

10 requirement, a condition for entertaining the protest, that

11 the undisputed parts of the taxes had to paid . That was

12 supposed to be the condition for the -- to entertain the

13 protest. However, my position was that ln computing those

14 amounts, that the value of the demolished improvements were in

15 controversy and that they exceeded the entire amount of the

16 of the tax claim.

17 THE COURT: I read that.

18 MR. MARTIN : And therefore it was on that basis

19 that they denied the protest without ever without ever even

20 considering the merits. So this is an additional -- above and

21 beyond the fact that they were trying to direct their

22 appraisal authority, the constitutional appraisal authority to

23 nonexistent improvements, they denied an opportunity to be

24 heard on a matter that was clearly due for correction.

25 THE COURT: Then you appealed from there to the

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1 Probate Court.

2 MR. MARTIN: Yes , Your Honor.
3 Then the second point, in response to opposing

4 counsel's arguements about the Tax Code and jurisdiction, I

5 think Moak answers part of that, is that here the tax

6 authorities did not comply. The second thing being the Open

7 Courts Doctrine, all things being equal and looking at the --

8 looking at construing the Tax Code as opposing counsel would

9 have you construe the Tax Code, there's still the Open Courts

10 Doctrine to consider. And in the Open Courts Doctrine, if

11 there is a common law right that has been unduly restricted by

12 the application of the statute, the litigant is entitled to

13 invoke the Open Courts Doctrine to have the Court do a

14 balanc~ng as to whether the restriction is justifiable 1n that

15 situation .

16 Here the tax authorities are invoking the Tax

17 Code which they did not comply with in order to restrict the

18 common law right of the estate to oppose an act in excess of

19 their constitutional authority. I would think that at the end

20 of the day, number one , the Court should accept jurisidiction

21 under the Open Courts Doctrine. And number two, if there's

22 any question about the jurisdiction, the estate should be

23 allowed to replead to clarify any issues and to address the

24 issues that opposing counsel has raised. And that would be my

25 -- that would be my position, Your Honor.

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1 MS. DAVIDSON: I don't really have anyt hing
2 else to say.

3 THE COURT: Mr. Martin, you are an eloquent and

4 quite brilliant man who has obviously had some issues with our

5 taxing authority. I have not read all of the file, but I did

6 make a good two-and-a-half-hour plug at it. I read your
7 pleadings, your special exceptions, your affidavit. I am a

8 big believer that the statutory scheme for all taxing

9 authorities should be in District Court. While I understand

10 the wrong that was done to you, and I can't truly comment on

11 if it was in my court how I would have agreed with you, but I

12 definitely see the point that you are coming fro m.

13 That being said, I don't believe this Court has

14 jurisdiction over these issues, and I'm going to go ahead and

15 grant your motion. And I hope you're able to continue

16 forward.

17 MR. MARTIN: Your Honor, may I inquire?

18 THE COURT: Sure.

19 MR. MARTIN: The -- the old Probate Code and

20 the new Estates Code has provisions for a situation where the

21 Probate Court is in doubt of its jurisdiction. And the

22 alternative to dismissal in those instances is an -- is is

23 the Court, even when it concludes that it lacks jurisdiction

24 over the subject matter, it retains transfer -- jurisidiction

25 to transfer the matter in controversy to an appropr~ate court.

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 In this case, were the Court to unconditionally dismiss the

2 case, it would place the standing of the estate to pursue the

3 matter further in question in any in any other court.
4 So reserving -- reserving the privilege of

5 requesting a reconsideration or an appeal, I would ask the

6 Court, rather than dismiss the controversy outright, since the

7 Court has expressed that there is some merit to the

8 controversy, if the Court is of the view that there is doubt

9 about -- about probate jurisdiction over this - - over this

10 issue, that the matter I would ask the Court to exercise

11 transfer jurisidiction to transfer it to the 150th District

12 Court, where the estate has a -- has a matter pertaining to

13 estate ·property that's in controversy with the taxing

14 authority.

15 THE COURT: My issue is that from what you have

16 given me, that the foreclosures being vacated, the causes that

17 were already filed were revived. And as you are saying,

18 they're already in the District Court. I'm - - I'm not going

19 to transfer. I believe that you are the administrator, the

20 sole heir, and other than the miniscule parts, which you -- if

21 you were charging the estate, you would be a very wealthy

22 attorney with all of this. That being said, I believe that

23 using the administration as a cover to keep it ln here no

24 longer works, as there is nothing else to for you to

25 administrate. You are the owner of the properties, and I

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
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1 THE STATE OF TEXAS
..__
2 COUNTY OF BEXAR

3

4 I, Cheryl D. Hester, Official Court Reporter ln

5 and for Probate Court Number 1 of Bexar County, State of

6 Texas, do hereby certify that the above and foregoing contains

7 a true and correct transcription of all portions of evidence

8 and other proceedings requested by counsel for the parties to

9 be included in this volume of the Reporter's Record, in the

10 above - styled and numbered cause, all of which occurred in open

11 court or in chambers and were reported by me.

12 I further certify that this Reporter's Record

13 of the proceedings truly and correctly reflects the exhibits,

14 if any, admitted by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $- - - - - - - and was

17 paid / will be paid by

18

19 WITNESS MY OFFICIAL HAND this the 14th day of

20 May, 2 015.

21

22
CHERYL D. HESTER, C.S.R.
23 Official Court Reporter, Probate Court No. 1
Bexar County, Texas
24 100 Dolorosa
San Antonio, Texas 78205
25 (210 ) 335 - 2359
Texas CSR #4519; Expires 12 / 31 / 15

CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
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2 LIEN TRANSACTION DATE: October 31, 2003 (Deed Records Volume 10406, Pages 1601 and 1606).
. 1ssuea same aay.

GERARD C. RICKHOFF
Clerk of Probate Court No. One of
Bexar County, Texas

1.1 ./7
By {!M;u!L
Deputy

2

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 NO . 2001-PC-1263

IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING , § NUMBER ONE
§
DECEASED § BEXAR COUNTY, TEXAS

COURT ORDER TO APPEAR AND TO SHOW CAUSE
WHY THE ADMINISTRATOR SHOULD NOT BE REMOVED

On this day, the Court on its own motion , complaining of Rowland J. Martin , Jr.,
failure of the Administrator to conclude the administration of this cause , which has been
pending since 2001 and which Rowland J. Martin , Jr., has represented to the Court that
there is 1 beneficiary and 1 remaining asset in the estate, a parcel of land and the
estate is still open .
Texas Estates Code§ 361.052(6)(A) provides , in pertinent part, that the
Administrator may be removed if:
(6) the representative, as executor or administrator, fails to: (A) make a final
settlement by the third anniversary of the date letters testamentary or of
administration are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath ; ...
The Administrator of this estate, Rowland J. Martin , Jr. , has failed to make a final
settlement by the third anniversary of the date that letters of administration were issued
in this cause . The Court has determined that the Administrator should now be cited in
accordance with the law to appear and to show cause, if any, he may have as to why he
should not be removed as Administrator in accordance with the provisions of Texas
Estates Code§§ 361.051 and 361.052, and another administrator or receiver appointed
to conclude the administration of this estate.
IT IS THEREFORE, ORDERED , ADJUDGED AND DECREED by this Court that
Rowland J. Martin , Jr. shall appear and show cause why he should not be removed as
Administrator and the Clerk of this Court be and is hereby directed to issue citation to
Rowland J. Martin, Jr., as Administrator of the Estate of Johnny Mae King , Deceased,
by certified mail , return receipt requested, requiring the Administrator to appear before
this court in the Bexar County Courthouse in Probate Court No. One, located at 100
Dolorosa , Room 123, San Antonio, Bexar County, Texas 78205 on July 30, 2015 , at
9:15a.m. , then and there to show cause, if any, he may have as to why he should not
be removed as Administrator of the Estate of Johnnie Mae King, Deceased .
IT IS FURTHER ORDERED by this court that all costs associated herewith be
charged against Rowland J. Martin, Jr., individually.
Signed July 21 , 2015 .

1

·- v oz 1bo·p qqJ q· SCANNeD
 CERTIFICATE

I hereby certify that the original of this instrument and copy of the COURT ORDER TO
APPEAR AND TO SHOW CAUSE WHY THE ADMINISTRATOR SHOULD NOT BE
REMOVED was mailed by United States Certified United States Mail , Return Receipt
Requested , postage prepaid , to pers9flj' representative and the attorney of record for
the personal representative on this o/JJ day of July, 2015 .

Rowland J. Martin , Jr., ProSe

GERARD C. RICKHOFF
Clerk of Probate Court No. One of
Bexar County, Texas

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Deputy

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 NO. 200 1-PC-1263

IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING, § NUMBER ONE
§
DECEASED § BEXAR COUNTY, TEXAS

ORDER ON COURT ORDER TO APPEAR AND TO SHOW CAUSE
WHY THE ADMINISTRATOR SHOULD NOT BE REMOVED

On July 30, 2015, the Court called the Court Order to Appear and Show Cause
Why the Administrator Should Not Be Removed.
The Court record finds that Rowland J. Martin, Jr. had been served with a copy of
the Order to Show Cause by the Clerk of the Court and that proof of service was in the
file .
Roland J. Martin, Jr. was called by the bailiff in the hallway, and failed and
refused to appear.
A record of proceedings was made by Cheryl D. Hester, Court Reporter for
Probate Court No. 1.
The Court finds that the Administrator may be removed pursuant to Texas
Estates Code § 361.052(6)(A), which provides, in pertinent part, that the Administrator
may be removed if:
(6) the representative, as executor or administrator, fails to: (A) make a final
settlement by the third anniversary of the date letters testamentary or of
administration are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath; ...
The Court finds that the Administrator of this estate, Rowland J. Martin, Jr., has
failed to make a final settlement by the third anniversary of the date that letters of
administration were issued in this cause and failed to appear at the show cause hearing
to explain why he should not be removed
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by this Court that
Rowland J. Martin, Jr. is removed as Administrator of the Estate of Jennie Mae King ,
Deceased.

V02Jb2PoqoJ
 IT IS FURTHER ORDERED that all Letters of Administration issued to Roland J.
Martin, Jr. are CANCELLED AND REVOKED INSTANTER and Roland J. Martin, Jr.
shall surrender and deliver all original Letters of Administration issued to him by delivery
of all the original Letters of Administration to the Clerk of the Probate Court, located at
the Bexar County Courthouse, 100 Dolorosa St., Basement, San Antonio, Texas 78205
on or before August 6, 2015, at 4:00p.m.
IT IS FURTHER ORDERED by this court that all costs associated herewith be
charged against Rowland J. Martin, Jr., individually.
Signed July 30, 2015.

Counsel:

Karen Evertson
State Bar No. 00797745 ~ b~:K~
·. o ·
Mary Sanchez CLE P 1 ~. I N
B X , '
State Bar No. 17570830
.3Y:--=~---
Evertson & Sanchez, PC
c/o Bexar Appraisal District
A TIN: Legal Department
411 North Frio, Second Floor
San Antonio, Texas
Ph : 1.210.242.2407
Fax: 1.210.242.2451
Email:

Roland J. Martin, Jr.

2
Peter Low
Law Office of Peter William Low
3305 Northland Drive, Suite 500
Austin, Texas 78731
Ph: 1.512.302.3403
Fax: 1.512.476.6685
Email: peterwilliamlow@yahoo.com

3

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Article 142a reads It shall be lawfu l for Clerks of the District and County Courts, and justices of the Peace to demand payment of all costs clue in each and every case
pending in their respective Courts up to the adjournment of each term of said Court.

THE STATE OF TEXAS
Estate of: JOHNNIE MAE KING. DECEASED .. . .......... § NO. 2001PC1263

. .. ....... ........ . .. . .. .......... § IN PROB/\ TE COURT NO. I

... ... ..... ....... ... ... .. . .. . ... ......... .. . ................................. ... § Bexar County. Texas
.---------------------------------~T~o~:_O~FF~I~C~ERS.~O~F-=SA~ID~C~O~U~R~T--------------------------.------.
CLERKS'S FEES Dollars SHERIH'S FEES Dollars

Docketing . . Executing Notices.
Filing.. .Papers. Posting Notices.
Taxing Cost and Copy . Summoning . . . ... Witnesses ..
Issuing .. .Notice and. .. .Copies E/(ecuting. ..Citations
Issuing Citations by Certified Mail (2 @ $80 00) . Executing ..... Subpoena ..
Iss uing .. . Writs .. Executing. . .. .Precepts.
. . . ..1 udgment and Decrees .. Mileage ....... ...... . . ............. Miles .
Swearing Witness .
.Oaths with Certificate .. SIIERIFF'S FEES
.Oaths without Certificate ..
lss u in g ....... Subpoenas.. . . Names .
Venue Charge . . COUNTY JUDGE'S FEES
Issuing Commissions to ·rake Depositions
Jury Charge ..
Taking Depositions .. Judges Signature. $ 2.00
Recording Depositions . Granting Applications
Entering. .. .. .Orders Approving. .. .Claims Appointing Appraisers
Recording Waiver .. Approving Bond.
Issuing Letters .. Probating Will ..
Recording ......... . ...... Applications . . .Oaths with Certilicate . .
Recording.. . .. .. .Notices. . .Oaths without Certificate
Recording . Notice to Creditors. .fiats and Certificates ..
Recording . .Citat ions. .Orders of Sale ..
Recording Inventory and Appraisement. .Orders of Approving Report of Sales ..
Recording Oath .. . .... Orders Refusing Sale .
Recording Bond and Oath .. . ......... Orders Refusing)Confirmation of Sale ..
Recording Will . . Decree of Partitio n and Distribution.
Recording Proof of Will .. Approving Report of Commissioners ..
Recording Annual Account. Setting Aside Report of Commissioners ..
Recording Final Account .. Decree(s) Removing ..
Recording Report of Sale .. Making.. Orders other than above.
Rec ording Receipt.. Commissions , / , of I% on $ ... ... .................. ..
Recording Report of Commissioners Commissions. / ,of I% on $ ..
Recording Report of Temporary Administrator .. Commissions. / ,of I% on $ ..
Recording Report of Temporary Guardian .. Commission 2% on $ .... ... .... .. ......... .... lnh Tax up to $30,000
Certified Copies ..
Transcript..
Approving Appeal Bond . JUDGE'S HTS $ 2 ()()
Recording Appeal Bond ..
Recording Artidavit for Tax .. RECAPITULATION
Report of Appraisement . County Clerk's Fees. $ 160.00
Preliminary In heritance Tax Report. Sheriffs Fees.
Report Comptroller County Judge· s Fees. $ 2.00
Appra isers Fees ..
Commercial Recorder.
CLERK'S FEES County Law Library Fund.
Jury Fee. . ... . ..... . .. .

TOTAL FEES
$ 160.00

THE STATE OF TEXAS I he rebv certifv the above to be a true and correct accounting of the Costs in a the above entitled and numbered
County of Bexar btate. ·up ts tl~i s date.
0.., ........~ ... ~
WITNESS my hand and sea l ofth ~J:" ounty Court af.f[x@
j )at office in San Antonio, this 21 s·r day or Jul y. 2015.

j ~ ~, • ~, • •• ·S':' ·. RIC KHOF r c
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 SUIT NO. 2004-TAl-02802

COUNTY OF BEXAR, ET AL §
§
vs. §
§
OPAL GILLIAM, ET AL §

ORDER TO VACATE JUDGMENT

previously entered herein against property described as:
LOT 5 ZARZAMORA PLACE SITU ATED IN NEW CITY BLOCK 06686 IN THE
CITY OF SAN ANTO:t\110, BEXAR COUNTY, TEXAS, AS SHO"WN IN VOLUME
00642 PAGE 0201 OF THE DEED M'D PLAT RECORDS OF BEXAR COUNTY,
TEXAS., Account Number: 066860000050

and, it appearing to the Court that such motion is well taken and should be granted, it is theref?re
ORDERED that the judgment signed herein on December 31, 2009 be, and is hereby, VACATED and
set aside, as authorized by Texas Property Tax Code§ 33.56 and as prescribed by Texas Rules of Civil
Procedure 237a. It is further ORDERED that the above-styled and numbered cause is revived as a
pending suit on the docket of this Court.

SIGNEDon ~ /7; 20 l3
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~ Case Number 2004TA 102802: . Document Type: ORDER TO VACATE JUDGMENT
Page I of3
Suit No. 2004-TAI-02802 Page 3 1233654
 ,, "
,.

APPROVED:
LINEBARGER GOGGAN BLAIR &
SAMPSON, LLP
711 Navarro Ste 300
San Antonio, TX 78205
(210) 225-6763
(210) 225-6410- FAX

Lilia Ledesma
State Bar No . 24006250
Ronald E. Rocha
State Bar No. 24039143
Bradley S. Balderrama
State Bar No. 24040464
Attorneys for Plaintiffs

Rowland J. Martin, Jr., Pro Se
Defendant

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BX Taxing Authorities Petition and Order to Vacate Judgment Page 4 Suit No. 2ob4i~t
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 CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MCKINNEY, BEXAR COUNTY DISTRICT
CLERK , CERTIFY THAT THE FOREGOING IS A TRUE
AND CORRECT COPY OF THE ORIGINAL RECORD AS
INDICATED BY THE VOLUME , PAGE AND COURT ON
SAID DOCUMENT. WITNESSED MY OFFICIAL HAND
AND SEAL OF OFFICE ON THIS:

November 03, 2015

DONNA KAY M£KJNNEY
BEXAR COUNTY, TEXAS

By:
--~~~~~~-----+~~~~~----­
BREN DA TRUJILLO, Deputy District
(NOT 1:-ILJD 11'7THOUT THE CLERKS'S ORJ,

Case Number: 2004TA102802 Document Type : ORDER TO VACATE JUDGMENT
Page 3 of3
 .Ill\ t.t.t.~#~~fi\1111 !""''
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I 2003TA102385-D150
'-- - -·--···-- ..- --- -- )

SUIT NO. 2003-TAl-02385

STATE OF TEXAS, COUNTY OF §
BEXAR,ET AL
§
vs. §
§
OPAL GILLIAM, ET AL §

ORDER TO VACATE JUDGMENT

On this day came on to be heard the Plaintiffs petition to vacate the tax foreclosure judgment
previously entered herein against property described as:
LOT 35 AND THE 6 FEET OF LOT 14 AND THE SOUTHWEST TRIANGULAR
PART OF LOT 15 SITUATED IN NEW CITY BLOCK 02095 BLOCK 020 IN THE
CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, AS SHOWN IN VOLUME
02418 PAGE 0137 OF THE DEED AND PLAT RECORDS OF BEXAR COlJNTY,
TEXAS., Account Number: 020950200350

and, it appearing to the Court that such motion is well taken and should be granted, it is therefore
ORDERED that the judgment signed herein on December 9, 2009 be, and is hereby, VACATED and
set aside, as authorized by Texas Property Tax Code§ 33.56. It is further ORDERED that the above~ .
styled and numbered cause is revived as a pending suit on the docket of this Court.
SIGNED on ~-.!_. j ] ) Z-0 t3
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Suit No. 2003-TAl-02385 Page 3
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APPROVED:
LINEBARGER GOGGAN BLAIR &
SAMPSON, LLP
711 Navarro Ste 300
San Antonio, TX 78205
(21 0) 225-6763
(210) 225-6410- FAX

Lilia Ledesma
State Bar No. 24006250
Ronald E. Rocha
State Bar No. 24039143
Bradley S. Balderrama
State Bar No. 24040464
Attorneys for Plaintiffs

Rowland J. Martin, Jr., Pro Se
Defendant

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BX Taxing Authorities Petition and Order to Vacate Judgment Page 4 Suit No. 2oO:f-¥xf-oq~8's
 CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MCKINNEY, BEXAR COUNTY DISTRICT
CLERK, CERTIFY THAT THE FOREGOING IS A TRUE
AND CORRECT COPY OF THE ORIGINAL RECORD AS
INDICATED BY THE VOLUME , PAGE AND COURT ON
SAID DOCUMENT. WITNESSED MY OFFICIAL HAND
AND SEAL OF OFFICE ON THIS :

November 03, 2015

(NOT r:tLJD WITHOUT THE CLERKS'S OR/

Case Number 2003TA102385 , Document Type ORDER TO VACATE JUDGMENT
Page 3 of3
 1111 ~~~A\11111
2004TA102802-0224
SUIT NO. 2004-TAl-02802

COUNTY OF BEXAR, ET AL § IN THE DISTRICT COURT
§
VS. § 224TH JUDICIAL DJSTRJCT
§
OPAL GILLlAM, ET AL § BEXAR COUNTY, TEXAS

ORDER .F OR NON-SUIT

On this day came on to be heard the above and foregoing motion by Movant(s) for non-suit
and, it appearing to the Court that such motion should be granted, it is hereby ORDERED and
DECREED that the suit by Movant(s) be dismissed without prejudice to the rights of said parties and
impleaded taxing units who have not intervened herein to further pursue their legal remedies at any
future time, and without prejudice to any other taxing unit who has intervened herein to further
prosecute this action on its own behalf.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if this order disposes of all
parties to this cause, then all costs of court incurred herein are forgiven.

SIGNED on ----'=J/A:....::..:N_,!;,:._;;;_2_,Z,.,Cu.~'.L'_ _ _ __ _ , ' - - -
JAN 2 2 2014

Approved:
0 LINEBARGER GOGGAN BLAIR &
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2 711 NAVA TE300
3 SAN A. ONJ , TX 78205
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lilia.ledesma@lgbs.com scanned as filed.
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6 State Bar No . 24039 I 43
5 ronald .rocha@lgbs.com
Bradley S. Balderrama
~ State Bar No . 24040464
brad.balderrama@lgbs.com
2 Attorney for Movant(s)
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Suit No. «SU IT» Page 3 Su it Ke y No. «SUITKEY»
 SUIT NO. 2003-TAl-02385

STATE OF TEXAS, COUNTY OF § IN THE DISTRICT COURT
BEXAR, ET AL
§
VS. § lSOTH JUDICIAL DISTRICT
§
OPAL GILLIAM, ET AL § BEXAR COUNTY, TEXAS

ORDER FOR NON-SUIT

On this day came on to be heard the above and foregoing motion by Movant(s) for non-suit
and, it appearing to the Court that such motion should be granted, it is hereby ORDERED and
DECREED that the suit by Movant(s) be dismissed without prejudice to the rights of said parties and
impleaded taxing . units who have not intervened herein to further pursue their legal remedies at any
future time, and without prejudice to any other taxing unit who has intervened herein to further
prosecute this action on its own behalf.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if this order disposes of all
parties to this cause, then all cost~ of court incurred herein are forgiven.

Approved :
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c; State Bar No . 24040464
brad .baldcrrama@lgbs.com . scanned~~·__ _,.
2 Attorney for Movant(s)
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Suit No. «SU IT» Page 3 Suit Key No. «SUITK EY »
 CAUSE NO. 2001PC1263
/ '

IN THE ESTATE OF § IN TilE PROBATE COURT
§
JOHNNIE MAE KING, § N0. 1
§
DECEDENT § BEXAR COUNTY, TEXAS

ORDER APPROVING JOINT MOTION TO ENFORCE RULE U AGREE:MENT

On this day, came on to be heard the Joint Motion of the parties to approve Compromise

Settlement Agreement. The Court has reviewed the parties' Motion and finds that it is well taken

and should be granted.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Compromise

Settlement Agreement is approved and entered of record.

Signed this ~~day of _ __,~~---'--·_ _ _ , 2008.

<:3 ~ - ;\ .
L.
,J;GE~r~

JUN 0 6 2008
 lFUlb~lQ) OJ/07

CAUSE NO. 2001PC1263 JUN 0 6 2008

IN THE ESTATE OF §
§
JOHNNIE MAE KING, §
§
DECEDENT § BEXAR COUNTY, TEXAS

JOINT MOTION TO ENFORCE RULE 11 AGREEMENT

TO TilE HONORABLE JUDGE OF THE COURT:

NOW CO.rviE the parties to the above-styled and numbered cause and jointly move this

Court to approve the Settlement Agreement attached hereto.

Respectfully submitted,

HEARD & SMITH, L.L.P.
3737 Broadway, Suite 310
San Antonio, Texas 78209
(210) 820-3737

::0)~
MARK STANTON SMITH
State Bar No.: 18649100

ATTORNEYS FOR CALVIN GILLIAM

ROWLAND MARTIN, PRO. SE

VOl 08 0 9 rG 5 B79
 CAUSE NO. 2001-I"C-1263
·•
) IN PROBATE COURT #1
)
ESTATE OJF JOHNNIE MAE KING ) IN Alll"D FOR BEXAR COUNTY, TEXAS

JlUJLEll

SE'I"''LEMENT AGREEMENT

l. The parties to this settlement agreement, Calvin Gilliam and Rowland Martin, agree to
settle all claims and controversies between them which are asserted or assertable in the above captioned
case. The parties believe that the value of the awards, releases and waivers received by each ofthem are
satisfactory as consideration for settlement agreement, and that the terms are in the best interest of the
Estate ar.d the p.uties.

2. The parties agree to the following awards as considerations for entering into this
settlement agreement:
A. The parties agree to an award of the following to .Calvin Gilliam: {1) Bank of America
account #03820-11 014 with the January 2006 balance of$2,893.28; (2) American
Express account 0000-00 ll-387(H)976-002 with an approximate balance of $14,000.
B. The parties agree to an award of the following to Rowland Martin: (1)
Street, San Antonio, Tx, (2) 244 Henry Street, San Antonio, T;t; and (3) Washington
Mutual Account #38636612-6 with the February 2006 balance of approximately $.58.
3. The above captioned proceedings shall be resolved by means of the filing of this Rule 11
Settlement AgreemenL
4. The parties hereto agree to release, discharge and forew- hold the other harmless from
a11y and a!! other claims, demands or suits, known or unknown. fixed or cootingent, liquidated or
unliquidated (whether or not asserted in this case) arising from or related to the events, transactions and
accounts which are the subject matter of this case, including those involving the Conservatorship of King,
Case #PP..()()J988, Los Angeles Superior Court. This mutual release runs to the benefit of all attorneys
and agents of the parties. Parties as used in this release includes all named parties to this case, as well as
Garth Gilliam and Valora Flukers, and all related entities of the parties. Rowland Martin additionally
agrees to ·waive claims for fees for services rendered as administrator in the Estate ofKing cause# 200!-
PC-1263.
5. Each signatory warrants and represents that
A. he has the ~uthority to bind the parties for whom that signatory acts, and
B. the claims, suits rights and/or interests which are the subject !Dlltter hereto are owned by
the party asserting same, have not been assigned (except for attorney's fees), transferred
or sold and are free of encumbrance other than property taxes, assessments, and costs
inciuding demolition fees. rnc parties furu'ler agree to indcrnn1.7 esch oti.er in
connections thereWith.

C. The parties agree to recognize the standing of Calvin Gilliam as a party to the Estate
proceeding for purposes of executing and implementing the terms of this Settlement
Agreement and the Agreed Order and Judgement authorizing it

VOlf 18 0 9 PG 5 8 80
 6. The Motion To Approve Compromise and _Settlement Agieelnel1t with Agreed Order and
Judgement attached are the documents the parties agree to we to effectuate the terms of this settlement
agreement The parties agree to cooperate with such clerical revisions to tb>se dOCllliWilts as are
reasonably required k> implement the terms and spirit of this agreement ·
7. This agreement is made and performable in the cmmty in which the Estate was opened
and shall be construed in accordance with the laws of the State ofTexas.
8. As other terms of settlement, the parties agree to bear all of their own attorney's fees.

9. Each signatory to this settlement has entered into same ti:eely aad without duress after
having consulted with professionals of his choice.
10. This agreement is not subject to revocation.

Vut if 809 Pfi 5 88 I

2
(Page 1 of 2)

DOCUMENT SCANNED AS FILED

1111 f.~~~il\11111
2014CI07644 -D2S~

Cause No.2014-CI-07644

§
EDWARD L. BRAVENEC AND f216 §
WEST AVE., INC. §
Plaintiff §
§
§
vs. §
§
§
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 that the Court is of the opinion that a Temporary Injunction should be issued. This
Court specifically finds that Courts have already detennined 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
I) there to had any interest, legal or equitable, in the Property described as:
7
/ "New City Block 8806, Block 50, Lot 1, Except the North
3. West 10.01 feet & Lots 2 & 3; which property is commonly
1 referred to as 1216 West Ave., San Antonio, Texas" the
•'
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0
~
This Court further finds that despite judgments being rendered against Rowland J.
v Martin, Jr. that he continues to interfere and cloud the title to the Property or contact potential
-0
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
4 .aforementioned federal court case and the subsequent appeal to the Fifth Circuit Court of
2 Appeals in which both courts find his filings to be vexatious and frivolous. But for the
6
7 temporary injunction, it is likely that his conduct is to continue and the damage to the
Plaintiff's in this case would be irreparable and could not be compensated by monies.
F
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0
1
.5- ase Number 2014 CIO 644 _. Document Type: TEMPORARY INJUNCTION
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\. DOCUMENT SCANNED AS FILED
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Th~refore, it is _the ORDER of this court that Rowlan~ J. ~artin, any ~nti~ ~,>J.;~~:r~qlfe~t,~\'4~~#
or -~der hts con~ol, his agents, employees and ~1 th~se actmg m concert wtth ~~:<:~e · herr~Y -~'t(:,.,
enJomed from fihng any document whatsoever wtth this court, any other court, th .~)':aJ_,_C_Q~ty- · ,.. · :;:.
Clerk's Deed Records Office that in any way relates to Plaintiffs or the real prope ~::aescBoed)as' >>" · ·;+ <;~
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New City Block 8806, Block 50, Lot 1, Except the North West 10.01 £ ~'& ·, f·"' .
Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio, Te~as,
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(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
~ereby _enjoU:ed from co~tacting any title comp~y, any potential buyer, b~ o~ otherwise ..Art
mterfenng wtth the potential sale of the Property m any manner whatsoever.. · . :'. ~111

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 is FURTHER ORDERED that this matter be set for trial on the merits on the~ day
ofDecember, 2014 at 9:00a.m.

Plaintiff's 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 may be accomplished by fax, personal service, or private process.
7
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3 Witness my hand this 11_'!:;y of July, 2014, at f :'fP ~-
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v APPROVEDASTOFORM:
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& Glenn J Deadman Rowland J Martin Jr
7 509 South Main Ave ProSe
p San Antonio, Texas 78204
G 210-472-3900
0 gjdeadman@aol.com
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7-ase Number: 2014CI07644 Docufl!ent Type: TEMPORARY INJUNCTION
Page 2 of 3
 CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MQ:: ::. -=. L. e . . i n t he r e i s P o 11 y J a c k s o n S p e n c e r . Attached

25 on L. he oo L.L. o~ l eft is the identification of Chris

CINDY DEES , COU RT REPORTER
288TH DISTRI CT COU RT
 so

1 Pothoven who prepared the order and did the hearing.

2 Q. Okay. Here is a Motion to Expunge the Lis

3 Pendens. This is the motion that was prepared by the

4 Office of McKnight and Bravenec requesting the order that

S was just read. It's dated -- well, I don't -- let's see.

6 Well, it doesn't have a date on it but it said that i t

7 was served on March 11th and this was the subject of the

8 March 19th hearing. I would like to enter that as

9 exhibit four , I guess.

10 MR . DEADMAN: No objection, Judge .

11 THE COURT: I don't even know what it lS

12 or if i t ' s even being offered so I wish you would wait ,

13 Glenn until he offers it and identifies it. What is it,

14 sir?

15 MR. MARTIN: It ' s a Motion to Expunge the

16 Lis Pendens.

17 THE COURT: Are you offering that into

18 evidence .

19 MR. MARTIN: Yes, I am.

20 THE COURT: Defendant ' s 4 is admitted.

Q. ( MR . MARTIN CONTINUING) You recognize that,

= do 't know that I have actually seen this
....... -..--- -.::::::: ......
_... .... - ........ - - - - I
-
~-- = ce~tainly know what it is .

25 Mr . Bravenec?

c - ·:::rr ::: : _: : _: s , CJ" -::o.r·1
Appellees ) BEXAR COUNTY, .).~=,~.
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APPELLANT'S UNOPPOSED MOTION TO ABATE
AND FOR LEAVE TO FILE SECOND AMENDED BRIEF

TO THE HONORABLE FOURTH DISTRICT COURT OF APPEALS:

NOW COMES Appellant, Rowland J. Martin, Administrator for the Estate of King, and

files this, his "Appellant's Unopposed Motion To Abate And For Leave To File Second

Amended Brief," requesting the Court to abate an issue about Attorney Edward Bravenec and his

firm to allow ancillary proceedings and for leave to amend cite additional authority on the need

for continued administration in relation to claims of liability asserted against him, in support of

which the following is shown:

STATEMENT OF THE CASE

Appellant moves the Court to abate proceedings until further notice and for leave to

amend on an issue relating to whether the Texas Supreme Court's holding in San Antonio Area

Foundation v. Lang, 2000 WL 1675984 (Tex. 2000) supports a claim for liability against

Attorney Edward Bravenec. See legal authority and lien declarations in APPENDIX. The

requested abatement aids the Court's supervisory jurisdiction to expedite a resolution of the

controversy with the Bexar County Appraisal Authorities, and is permissible according to the

law of the case doctrine, and promotes judicial economy by minimizing unnecessary

1
expenditures of resources by the Court and the interested parties in Case No. 04-15-00271-CV.

Appellant has diligently conferred with opposing counsel for the Bexar County appraisal

authorities and has been infonned that there is no opposition to the motion insofar as it pertains

to a claim for liability for trespass to real chattels by Bravenec and his finn. The primary effect

of the proposed abatement is to afford the parties an opportunity to supplement the record in the

Probate Court and in ancillary proceedings with an eye towards exploring alternatives for a

voluntary settlement of competing claims. Ex parte Shaffer, 649 S.W.2d 300 (Tex. 1983)

(vacating prior restraints abridging prose administrator's fundamental rights).

THE LAW OF THE CASE DOCTRINE

The law of the case doctrine has been defined by the Texas Supreme Court as that

principle under which questions of law decided on appeal to a court of last resort will govern the

case throughout its subsequent stages, but does not absolutely bar reconsideration of the same

issue on a subsequent appeal after a party amends his pleadings and adds a new cause of action.

Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009 Tex. App. LEXIS

1707 (Tex. App. -Corpus Christi, 2009, pet. den' d) (applying law of the case doctrine to uphold

estate administrator's right of re-entry); cf., Martin v. Bravenec, et al, Case No. 04-14-00483-

CV, 2015 WL 2255139 (Tex. App.- San Antonio, rehearing denied June 8, 2015). On the

evolving facts of this case, it confers upon Appellant an absolute privilege to engage in judicial

communications concerning his direct interest in the subject property. As indicated by the

materials attached, this second appeal involving issues about Edward Bravenec involves an

intervening change in a prior judgment issued by the U.S. Court of Appeals for the Fifth Circuit,

an intervening lien declaration, and a trespass to chattel issue that did not come before the Court

in the first appeal. See e.g., "Third Party Purchase Money Lien Declaration" citing Bexar

2
County Deed Records, Vol. 10406 Page 1607 (describing the subject property as "Lots 1, 2, and

3, Block 50, new City Block 8806, LOS ANGELES HEIGHTS").

It is evidently permissible in the current state of the record for the parties to supplement

the record of proceedings in the Probate Court and in the affected ancillary courts to reflect new

developments. Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597,600 (Tex. App.--San

Antonio 1996, writ denied) (absolute privilege for lis pendens filing); McKaskey v. McCall, 236

S.W. 432 (Tex. App.- El Paso 1920) (lis pendens expunction on defective rationale is

fundamental error). Given the current state of the record, Appellant's lien declaration constitutes

an authorized communication relating to his property interests in the subject property of the

dispute with Bravenec. 1 The declaration operates in furtherance of ongoing proceedings in Case

15-0541 on the Texas Supreme Court, Case No. 04-15-00271-CV in this Court and in Case No.

14-50093 in the Fifth Circuit, as well as other on-going proceedings in Probate Case No. 2001-

PC-1263 in Bexar County Probate Court #1, Case No. 2014-CI-07644 in the 285th District

Court, and Case No. 2015-CI-04779 in the I 50th District Court, respectively. As to all the above

referenced proceedings, Appellant asserts that he is the beneficiary of an absolute privilege under

Chale Garza Investments, Id., that his lien was attached to real property encumbered by a

security interest granted in expectation of legal services for the benefit of the King estate, Archer

v. Griffith, 390 S.W. 735 (Tex. 1965), and that his continuing lien interests in the subject

property is not governed by the collateral interest doctrine followed in Flores v. Haberman, 915

S.W.2d 477,478 (Tex. 1995) (per curiam) (orig. proceeding).

See also, Barras v. Barras, 396 S.W.3d 154 (Tex. App. 2013), reh'g overruled (Apr. II, 2013),
review denied (Aug. 30, 2013) (purchase money claim); Long Beach Mortgage Company v. Evans, 284
S.W.3d 406 (Tex.App.-Dallas 2009, cert denied) (awarding property to lis pendent claimant with
purchase money interest); Cohrs v. Scott, 338 S.W. 2d 127, 130 (Tex. 1960) (payment of purchase money
for acquisition of land by another supports remedy of resulting trust); and Johnson v. Wood, 157 S.W. 2d
146 (Tex. 1941).

3
 ARGUMENT AND AUTHORITIES

A. SAAF Supports The Conclusion That The Chose Of Action Embodied By Probate
Case #_2001-PC-1263, And The Purchase Money Lien Interest Expended
Inadvertently For The Benefit Of The Estate, Are Real Chattel Interests That Were
Subjected To Interference By Bravenec's Unilateral Abandonment Of The Probate
Case In 2005.

One of several reasons there is a need for proceedings in the probate court results from

interference with estate administration that began during the attorney client relationship with

against Bravenec and his firm. In re Estate of Valdez, 406 S.W.3d 228,233 (Tex. App.-San

Antonio 2013, pet. denied); Omnibus lnt'l, Inc. v. AT & T, Inc., 111 S.W.3d 818, 826 (Tex.App.~

Dallas 2003, pet. granted, remanded by agreement) (trespass to chattels case). The Court said in

Valdez that the elements of action for trespass to chattel are "(1) that an interference with one's

property or property rights occurred; (2) such interference was intentional and caused damage;

and (3) the interference was conducted with neither just cause nor legal excuse." ld. Appellant

submits that the law applied in SAAF, and by the Fifth Circuit appeal in Martin v. Bravenec, et

al, Case No. 14-50093, 2015 WL 5752439 (5th Cir, October 2, 2015), and in DTND Sierra

Investments v. HSBD Bank U.S.A., Case No. 14-51142, 2015 WL 5332725 (5th Cir., 2015),

substantiate the legal basis for the proposed abatement and remand.

In SAAF, the Texas Supreme Court notes that "[t]he Probate Code defines personal

property as 'interests in goods, money, chases in action, evidence of debts, and chattels real' ...

Promissory notes, net-profit agreements, and cash are personal property, not real property." Id.

(citing Tex. Probate Code§ 58(c) (Vernon Supp. 1999)). Appellant asserts that Probate Case No.

200 1-PC-1263 is a chose in action of which he is the equitable owner, and that his lien

declaration and perfected notice of lis pendens encumbering the property known as 1216 West

Ave., in San Antonio Texas are evidence of debt in the nature of a promissory note. In this

4
regard, SMF substantiates a need for administration to prosecute claims for tort liability and

turnover relief against Bravenec and his contracting parties.

In SMF, the Texas Supreme Court construed Section 58(c) for the first time in a case

where a Testatrix devised certain real property to a niece and nephew, and where the the probate

court initially ruled that assets related to that real property, such as promissory notes, collections,

and net profit interests, were not encompassed by the term "real property" and thus they passed

to the residuary beneficiary. The probate court refused to admit extrinsic evidence showing that

Testatrix thought of the land, the notes, and the profits as one "investment package" which she

meant to pass by the devise to Niece and Nephew. Section 58 (c) stated in pertinent part as

follows: "A devise of real property does not include any personal property located on or

associated with the real property or any contents of personal property located on the real property

unless the will directs that the personal property or contents are included in the devise." Tex.

Probate Code§ 58(c) (Vernon Supp. 1999).

On appeal, this court reversed the probate court in Lang v. San Antonio Area Foundation,

5 S.W.3d 738 (Tex. App.-san Antonio 1999), and held instead that the probate court should

have considered the extrinsic evidence because the evidence created a fact issue regarding

Testatrix's intent. However, the Supreme Court of Texas reversed in a unanimous opinion and

reinstated the probate court's judgment in favor of the residuary beneficiary. The Supreme Court

recognized that the term "real property" has a settled legal meaning and that a reviewing court

cannot look beyond the terms of the will to find Testatrix's intent. The SMF decision implies

that a duty exists on the part of counsel to oppose a cloud on title to real property of an estate

where the plaintiff tax authorities have designated personal property owners as defendants in a

suit for collection of ad valorem taxes assessed against real property of a pending estate.

5
B. SAAF Supports An Attribution Of Intent To Harm Real Chattel Interests Stemming
From Bravenec's Retention Of In Kind Compensation In Excess Of The Quantum
Merit Value Of His Services And His Subsequent Prosecution Of A Motion To
Expunge Lis Pendens That Was Adverse To The Estate He Once Represented.

Regarding the second element, Section 58 resolves the defmition of real property in

favor of a conclusion of law that personal property is categorically excluded from the delegation

of authority to impose ad valorem taxes on real property. Bravenec's original undocumented

withdrawal from the Probate Case supports an attribution of intentionality and causation of harm.

At common law, the rule was that "one who intentionally intermeddles with another's chattel is

subject to liability ... if his intermeddling is harmful to the possessor's materially valuable

interest in the value of the chattel, or if the possessor is deprived of the use of the chattel for a

substantial time, or some other legally protected interests of the possessor is affected."

Restatement (Second) Torts, p. 218. It is now recognized that trespass to chattels is one of the

"other legal theories might be employed concerning the misappropriation of or interference with

intangibles." Thrifty-Tel, Inc., v. Bezenek, 46 Cal. App. 4th 1559, 1567 (Cal.).

Appellant submits that Bravenec caused intentional harmful interference to the King

estate and to the Appellant on two grounds. Bravenec recklessly endangered the estate's chose in

action in Probate Case No. 2001-PC-1263 through the failure of his fmn to challenge the tax

authorities' standing to prosecute tax suits against heirs of a pending estate from 2003 to 2005

and his abrupt abandonment of the attorney client relationship in October 2005. He has also

recklessly endangered Appellant's purchase money interests by converting security interests that

were granted in expectation of legal service into unearned compensation in a post-petition

foreclosure transaction in October of2006, and by subverting Appellant's absolute privilege to

recover the subject property through lis pendens expunction proceedings directed at the estate.

6
 For the same reason that extrinsic evidence was disallowed in SAAF as offered to

demonstrate that a gift of real property includes personal property, extrinsic evidence cannot

enable him to avoid culpability for his failure to abate clouds on title to estate property resulting

from unopposed tax suits against the heirs:

Real property is defined as "land, and generally whatever is erected or growing upon or
affixed to land." Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.l985) (Gonzalez, J.,
concurring) (quoting black's Law Dictionary 1096 (5th ed.l979)). The Probate Code
defines "real property" as including "estates and interests in land, corporeal or
incorporeal, legal or equitable, other than chattels real." Tex.Prob.Code § 3(dd).
Personal property is defined broadly to include everything that is subject to ownership
not falling under the definition of real estate. Erwin v. Steele, 228 S.W.2d 882, 885
(Tex.Civ.App.-Dallas 1950, writ refd n.r.e.); see also black's Law Dictionary 1233 (7th
ed.l999)... Thus, because real property has a settled legal meaning, we need not look
beyond the terms of the will to find Ruth's intent.

This conclusion is supported by section 58(c) of the Probate Code, which mandates that
"[a] devise of real property does not include any personal property located on or
associated with the real property, unless the will directs that the personal property . [is]
included in the devise." Tex. Prob.Code § 58(c). Because the real estate lien notes
and net-profit agreements ... are personal property, they would not pass with the devise
of real property unless [the Testatrix] otherwise specifically directed in her will ...

SAAF, Id. (bracketed language added). In short, SAAF implies that the tax litigation was coram

non judice because "the settled meaning of real property" and "the directions of the Probate

Code" remain constant regardless of extrinsic evidence about the circumstances of the estate. Id.

Further, the Supreme Court specifically noted that, prior to San Antonio Area

Foundation, Section 58 of the Probate Court had not been previously construed, and that

""Respected legal commentators . . . advise that 'to the extent that either a statute or established

rule of decision attributes a certain meaning to particular words, that meaning must be accepted.'

A. Leopold G. Beyer, 10 Texas Law of Wills Practice,§ 47.3, p. 209-10 (Texas Practice Series,

West 1992) (quoting from T. Atkinson, Law of Wills§ 146 (2d ed. 1953))." ld. Here as in

7
SAAF, the statutory provision that took effect on January 1, 2014 attributes a meaning to the term

real property which renders Bravenec and his firm putatively liable for acts of reckless

endangerment that are "inconsistent with long-standing Texas jurisprudence." SAAF, ld.

C. A Need For Administration Exists So The Probate Court And Affected Ancillary
Courts Can Inquire Into Whether Liability Should Be Imposed For The
Interferences With Estate Administration That Bravenec And Those In Privity
With Him Have Caused.
Regarding the third element, Appellant relies on the attached material to support his

denial that there is any just cause or legal excuse for Bravenec to evade liability much less to

retain ownership of real property which he took subject to a second lien chain of title that is

executory in nature, Johnson, Id., and in contemplation of legal services to the client estate and

its administrator that he never performed, Archer, Id.

Applying governing law to the factor of just cause, the law of the case doctrine in

Barranza authorizes the Court to disregard its past interlocutory findings about the probate court

proceedings in light of intervening changes in the governing law reflected by the Fifth Circuit's

fmdings in Martin v. Braevnec, et al, Case No. 14-50093 and DTND Sierra Investments, ld. 2 On

October 2, 2015, the Fifth Circuit issued a Memorandum Opinion that finds Bravenec at fault for

prosecuting a federal court motion for contempt that was previously referenced in Case No. 04-

14-00483-CV and concludes as a matter of law that the federal district court abused its discretion

and violated due process requirements. As a general matter, the Fifth Circuit established that the

two federal court lis pendens filings cited in Bravenec's tort liability case operated in furtherance

The Court has previously stated, for example, that "[w]ith regard to the occurrence of an act of
interference, the pleadings alleged Martin had •'admitted, in open court, his intention to obstruct [the] sale
of the [P]roperty," and evidence was introduced at the hearing of a series of willful, intentional acts taken
by Martin to interfere with the appellees' ability to sell the Property, including the filing of at least four
prior lis pendens that were cancelled and expunged by various courts. The evidence also included the
Perfected Notice of Lis Pendens filed by Martin in the underlying cause in response to which Bravenec
filed his motion for contempt alleging Martin had violated the trial court's temporary restraining order
... "Memorandum Opinion in Case No, -04-14-00483-CV, Id.
8
on on-going judicial proceedings at the time of their filing. The Fifth Circuit concluded that the

Rule 11 sanctions imposed by the federal district court constituted an abuse of discretion and

deprived due process as applied to punish the filing of lis pendens notices. Further, the Fifth

Circuit's evidentiary record on the second issue, concludes that "Bravenec did not comply with

[Rule II 's] safe harbor provision" due to his reliance on a pleading that was itself unsupported,

substantiates the contrary inference that Bravenec's tortious interference case essentially

continues a course of action involving de facto abuses of process under Rule 11 in the federal

district court. Memorandum Opinion in Case No. 14-50093, at p. 4- 6.

DTND Sierra Investments, ld. affirms sanctions for meritless litigation in a fact situation

that directly parallels tactics that Bravenec used to the detriment of the Appellant and the estate

in 2006. The Fifth Circuit described the meritless litigation in DTND as follows:

DTND engaged in a scheme to delay foreclosures by petitioning for temporary
restraining orders in state court and dismissing those claims upon removal. DTND was
also party to four materially identical actions that were dismissed on the merits. This
shows that DTND had knowledge its claims were meritless but nevertheless filed to delay
foreclosure. The district court's findings that DTND's claims were meritless and intended
to harass or delay were reasonable and proper.

Id. at p. 5. Here, it is undisputed that Bravenec petitioned the 57th District Court for a temporary

restraining order against first lien servicer Reliant Financial, Inc. in a state court trespass to try

title case. He foreclosed an inferior second lien on terms that hindered Appellant's interests both

as a purchase money creditor and as a beneficiary of an undischarged attorney client relationship,

He then promptly dismissed the trespass to title claim upon securing a release of liability from

defendant Reliant Financial, Inc., before Appellant could intervene to prosecute requests for

reconsideration. Bravenec later participated in at least one materially similar pattern of conduct

in which this Court upheld sanctions in 2013. Bravenec v. Flores, Case No. 04-11-00444-CV

2013 WL 1149418 (Tex. App.- San Antonio 20I3) (improper purpose). This pattern of events

9
shows that Bravenec knew or should have known before the end of 2013 that his litigation tactics

were improper. Nonetheless, he moved the federal district court to cite Appellant for criminal

contempt and incarceration. Upon failing to accomplish his improper purpose in that forum, he

then moved the Probate Court for expunction relief citing the outcome of a judgment the Fifth

Circuit has now vacated. Unlike the offending attorneys in DTND, Bravenec was judicially

undischarged as an attorney of record in the probate case at all times until March 19, 2014 and

this omission repeatedly disrupted the machinery of various curts by confounding the law of the

case that should have been applied to him. Thus, there is good cause to argue for plain error by

the federal district court under DTND Sierra Investments, ld.

Regarding legal excuse, Bravenec's testimony at the hearing in the 285th District Court

on July 9, 2014 suggests that he does not comprehend that the law permits a third party to assert

a purchase money lien interest against the subject property of a purchase that the third party's

funding enabled. Vol2 (Case No. 04-14-00483-CV) RR 51 (line 17) (""I don't know what this is,

sir."). This testimony flies in the face of the rule against impairment of contractual obligations:

It will not do for a man to enter into a contract, and, when called upon to respond to its
obligations, to say that he did not [ 1know what it contained. If this were permitted,
contracts would not be worth the paper on which they are written ... [He] must stand by
the words of his contract; and, if he will not [ 1he alone is responsible for his omission.

Upton v. Tribilcock, 91 U.S. 45, 50 (1875) (brackets added). Bravenec knew or should have

known that the controversy here is about competing rights to quiet title relief, and that a suit to

quiet title in intended to "enable the holder of the feeblest equity to remove from his way to legal

title any unlawful hindrance having the appearance of better right." Thomson v. Locke, 1

S.W.112, 115 (Tex. 1886)). Appellant requests an abatement to supplement the probate court and

requests leave to amend pleadings to cite SAAF, ld., and other controlling authority on third party

purchase money liens in Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877).

10
 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.

Dated: October 14, 2015 Respectfully Submitted,

!_kwMA:b-
Rowland J. Martin

CERTIFICATE OF SERVICE

I delivered a copy of this, "Appellant's Unopposed Motion To Sever And To Remand,"

to Attorney Elizabeth Conry Davidson via email c/o Bexar Appraisal District, 411 S. Frio, San

Antonio, Texas, 78204 on October 14,2015.

Dated: October ~ 2015 I~ L~t14;
J.
Rowland Martin

CERTIFICATE OF CONFERENCE

I certify that I conferred with Attorney Elizabeth Conry Davidson via email on or about

September 3, 2015 about the substance of the abatement proposal in the foregoing motion and

she advised in her response that there is no opposition to the motion, nor is there opposition to

leave to amend.

ikvUr}LLtf:
Rowland J. Martin

11
 APPENDIX

A. Martin v. Bravenec, et al, Case No. 14-50093, 2015 WL 5752439 (5th Cir, October 2,
2015)

B. THIRD PARTY PURCHASE MONEY VENDOR'S LIEN

C. ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES
CODE

12
.-
A
 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIR CUlT United States Court of Appeals
fifth Circuit

FILED
October 2, 2015
No. 14-50093
Summary Calendar Lyle W. Cayce
Clerk

ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,
0
Plaintiff-Appellant

v.

EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND
BRAVEN~C; 1216 WEST AVENUE, INCORPORATED,

Defendants-Appellees

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:11-CV-414

Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Rowland J. Martin, Jr., proceeding pro se, appeals orders of the district
court awarding attorney's fees to Edward Bravenec, the Law Office of
McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R.
CIV. P. 11, and striking his pleadings opposing an award offees. 1

·Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

I Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West
Avenue, Incorporated will be referred to collectively as Bravenec.
 No. 14-50093

In 2010, Martin filed a pro se complaint against Bravenec and other
entities alleging multiple causes of action predicated upon a foreclosure
dispute. Bravenec filed a motion for summary judgment that included a
request for sanctions. The district court granted summary judgment to
Bravenec but declined to impose the sanctions requested because Bravenec
failed to comply with the procedural requirements of FED. R. CIV. P. 11(c)(2).
However, the district court sua sponte ordered Martin to show cause why
financial sanctions should not be imposed. Believing that Martin failed to
comply with the show cause order, the district court entered an order directing
the clerk of court not to accept additional motions or complaints from Martin
without the court's permission. On appeal, we affirmed the entry of summary
judgment but did not address the issue of sanctions, as it was not before the
court. See Martin v. Grehn, 546 F. App'x 415 (5th Cir. 2013).
After this Court's opinion issued, Bravenec moved the district court to
expunge a lis pendens lien Martin filed that alleged that the disputed property
was subject to ongoing litigation in federal court. The district court granted
the motion, and the lien was expunged. Because this Court had not issued the
mandate in Martin's appeal, he filed a new lis pendens lien asserting anew
that the disputed property was subject to ongoing litigation in federal court,
which lead Bravenec to file a motion for sanctions under FED. R. CIV. P. 11 and
TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of
confinement or, alternatively, award attorney's fees in the amount of $10,000.
Without holding a hearing or ordering a response from Martin, the district
court entered an order on December 5, 2013, denying the request for
confinement and granting the request for attorney's fees. The district court
concluded that it was appropriate to award Bravenec attorney's fees because
the district court previously found that Martin violated FED. R. CIV. P. 11(b)(1),

2
 No. 14-50093

(2) and Martin failed to respond to the district court's. show cause order.
However, rather than grant Bravenec $10,000 as requested, the district court
ordered Bravenec to file a supplemental motion setting forth the fees actually
incurred during the litigation. Upon receipt of Bravenec's supplemental
motion, the district court determined that Bravenec incurred $7,710 in fees
and entered an order on December 27, 2014, awarding that amount to
Bravenec. Martin attempted to object to the original and supplemental
motions for a.ttorney's fees on two separate occasions. However, the first set of
pleadings was entered on the docket after the district court's December 5, 2013,
order issued, and the district court ordered the second set of pleadings stricken
on December 30, 2013, on the grounds that the pleadings violated the no filing
sanction previously imposed.
On January 27, 2014, Martin noticed his intention to appeal the district
court's orders granting attorney's fees, affixing the amount of fees to be
awarded, and striking his objections. Martin makes two arguments on appeal.
First, the district court plainly erred in not exercising supplemental
jurisdiction under Sampliner v. Motion Picture Patents Co., 255 F. 242 (2d Cir.
1918), rev'd on other grounds, 254 U.S. 233 (1920), and applying Texas law to
adjudicate his claims against Bravenec. Second, the district court abused its
discretion in awarding Bravenec attorney's fees under Rule 11.
This Court exercises jurisdiction under 28 U.S.C. § 1291, which provides
for an appeal from final orders of the district court. See Southern Travel Club,
Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 130-32 (5th Cir. 1993). The
district court's order awarding attorney's fees under Rule 11 is not final until
the amount to be awarded is determined. Id. at 131. In this case, the order
affixing attorney's fees entered on December 27, 2013, and Martin timely flied

3
 No. 14-50093

his notice of appeal on Monday, January 27, 2014. See FED. R. APP. P.
4(a)(1)(A).
With respect to the first issue, Martin appears to challenge the district
court's entry of summary judgment against Bravenec on the ground that
summary judgment would have been improper if the district court correctly
exercised supplemental jurisdiction and applied Texas law to the adjudication
of his claims. However, this Court previously affirmed the district court's grant
of summary judgment, and Martin does not. explain why he did not or could
not raise the arguments asserted now in his earlier appeal of the judgment.
Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 393
F.3d 599, 607-08 (5th Cir. 2004) (reiterating that a party cannot raise an issue
on appeal that could have been raised in an earlier appeal in the same case).
To the extent that this claim was raised below, it was properly denied.
Turning to the second issue, the district court may sanction a party,
including a pro se litigant, under Rule 11 if it finds that the litigant flied a
pleading for an improper purpose or that the pleading was frivolous. See FED.
R. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon a party's motion if the motion is "made
separately from any other motion," the motion describes the specific conduct
that allegedly violates. Rule 11(b) and the motion is served on the party to be
1

sanctioned 21 days before it is filed in district court. See Marlin v. Moody
National Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing FED. R. CIV.
P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show
cause why conduct specifically described in the order has not violated Rule
11(b). See id. (citing FED. R. CIV. P. ll(c)(3)). Although the district court need
not hold a hearing, it must provide the litigant notice of the proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.

4
 No. 14-50093

See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92 (5th Cir.
1996). The court reviews an award of sanctions under Rule 11 for abuse of
discretion. See Marlin, 533 F.3d at 377. A district court "necessarily abuses
its discretion in imposing sanctions if it bases its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence." Elliott v. Tilton,
64 F.3d 213, 215 (5th Cir. 1995).
In this case, the district court award of attorney's fees fails to comport
with the requirements of Rule 11 and denied Martin due process. First, the
district court erroneously found that Martin did not respond to its show cause
order from 2012. In fact, Martin did respond, albeit inarticulately, on January
11, 2013, and January 14, 2013. Next, the district court appears to have
granted Bravenec's motion for attorney's fees without consi~ering Martin's
objections and motions for reconsideration. The district court's original order
granting the motion entered on the docket prior to Martin's objections and fails
to acknowledge the objections. Likewise, the final order assessing the amount
to be paid also fails to reference Martin's December 5, 2013, pleadings and was
entered before Martin's December 27, 2013, objections and motion for
reconsideration, which the district court ordered stricken.
Although the district court may properly enjoin vexatious litigation and
sanction the same, it may not exercise its authority in a manner that deprives
a litigant of his constitutional rights. See Qureshi v. United States, 600 F. 3d
523, 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when
it struck Martin's objections. Notably, Martin withdrew the lis pendens lien of
which Bravenec complained upon receiving Bravenec's motion for sanctions
and filed a subsequent lis pendens lien that referenced only state court
litigation. That is the purpose of the 21-day "safe harbor" provision: to provi~e
a litigant the opportunity to withdraw challenged pleadings and thereby avoid

5
 No. 14-50093

sanctions. See In re Pratt, 524 F.3d 580, 586-87 (5th Cir. 2008). Finally,
Bravenec suggested below that the district court's December 2012 show cause
order satisfied the "safe harbor" provision but cited no authority to support
that assertion, and this court has strictly construed the requirements of FED.
R. CIV. P. ll(c)(2). See, e.g., Pratt, 524 F.3d at 586-87; Marlin, 533 F.3d at 378-
79; Brunig v. Clark, 560 F.3d 292, 298 n.20 (5th Cir. 2009). Because Bravenec
did not comply with the safe harbor provision, the district court is deemed to
have awarded the attorney's fees on its own motion, which is improper under
Rule 11. See Marlin, 533 F.3d at 379; Brunig, 560 F. 3d at 298. As this Court
explained in Marlin, sanctions awarded on the court's initiative under Rule 11
"are limited to nonmonetary sanctions or a monetary penalty paid to the court."
See 533 F.3d at 379.
AFFIRMED in part, VACATED in. part, and REMANDED. Martin's
motion to strike Bravenec's brief is DENIED. Martin's other motions are
DENIED AS MOOT.

6
B

14
 llllllllllllllllllllllllllllllll\11" 111111
PI2-20150198558-3

THIRD PARTY PURCHASE MONEY VENDOR'S LIEN

LIEN TRANSACTION DATE: October 31, 2003 (Deed Records Volume 10406, Pages 1601 and 1606).

SUBJECT PROPERTY: 1216 West Ave., City San Antonio and County of Bexar, Texas

GRANTOR: Moroco Ventures, LLC.

GRANTEE AND OWNER: Rowland J. Martin, Jr.

THIRD PARTY BENEFICIARIES
AND INDEMNITEES: Estate of Johnnie Mae King, Probate Case No. 2001-PC-1263 and
Nicolas Williams.

MAILING ADDRESS:

PURPOSE OF THE RECORDING: This re-recording of the lien interest created on October 31, 2003
memorializes the property interests that vested in the Owner on that
date for ease of reference in on-going judicial proceedings. It is
expressly disclaimed that the lien was first created on October 14, 2015.

CONSIDERATION: The lien re-recorded herein is claimed against the grantor, Moroco
____ --~yentures_,__~~c. and all those claiming under the grants r~~ord~d as the (Fir~)_ D~~-of Trust to Roy
Ramspeck and Annette G. Hanson, and as the (Second) Deed Of Trust to Albert McKnight and Edward
Bravenec. The lien constitutes consideration for a payment in the amount of $135,000, which was
made by the Owner, in his individual capacity, to Roy Ramspeck and Annette G. Hanson as a credit to
enable the grantor and debtor entity, Moroco Ventures, LLC, to acquire the subject property for a
purchase price of $284,500. The lien is referenced in the Warranty Deed with Vendor's Lien recorded in
Volume 10406 Page 1601 as "other valuable consideration," and is further referenced in the (First) Deed
Of Trust recorded in Volume 10406 Page 1606, in the section on "Other exceptions to Conveyances and
Warranty," by way of express words of reservation stating that the conveyance is subject to "other than
liens and conveyances," and in paragraph 14 of "General Provisions," where it is expressly stated that
"The creation of a subordinate lien ••. will not entitle Beneficiary to exercise the remedies provided" for
the acceleration of the note. Consideration was given by Albert McKnight and Edward Bravenec, during
an attorney client relationship in Probate Case No. 2001-PC-1263, in the Second Deed Of Trust granted
by Moroco Ventures, LLC in Document #20050099395 on May 5, 2005, by way of "Prior Lien"
reservations , and by way of the stipulation in paragraph 4 of the "General Provisions," with limitations
on the second lien stating that "This lien shall remain superior to liens created later[)."

PROPERTY DESCRIPTION: The property commonly known as 1216 West Ave, in San Antonio,
Texas, is legally described as "Lots 1, 2, and 3, Block SO, new City Block
8806, LOS ANGELES HEIGHTS," and as further described in the
attachment to this record.

Book 17508 Page 1659 3pgs
1
 RETROACTIVE RESERVATIONS AND EXCEPnONS TO CONVEYANCES AND WARRANTIES:

1. Until further notice, the lien interest herein re-recorded is subject to the indemnification
obligations set forth in the Heirship Settlement Agreement in Probate case No. 2001-PC-1263. It is
declared that any and all interests in title claimed under the second deed of trust granted to Albert
McKnight and Edward Bravenec are subject to the priority assigned by law to the vendors' lien herein
recorded. The latter is made executory and inferior in relation to the purchase money lien by virtue of
contractual exceptions to the conveyance in the first deed of trust, to wit: "all rights, obligations, and
other matters emanating from and existing by reason of the ... operation of any governmental district,
agency or authority," Bexar County Deed Records, Vol. 10406 Page 1607. By virtue of express
provisions that subject the second deed of trust to the first deed of trust, Owner claims eq_uitable title
under DTND Sierra Investments v. HSBD Bank U.S.A., Case No. 14-51142 (5th Cir., 2015), a court decision
which by operation of law renders the interests acquired by Albert McKnight and Edward Bravenec by
foreclosure on October 3, 2006 executory ~nd inferior in relation to the lien herein re-recorded.

2. It is declared that deed transfers from Albert McKnight and Edward Bravenec to assignees and
successors in interest, including 1216 West Ave., Inc. , Edward Bravenec, and Torralba Properties, Inc.,
are subject to the notice of lis pendens, and future amendments thereto if any, which was referenced
in the decision of the Texas Fourth District Court Of Appeals in Martin v. Bravenec, eta/, Case No. 04-14-
00483-cv, 2015 WL 2255139 (Tex. App. -San Antonio, rehearing denied June 8, 2015).

------c3,- · ·--The owner disclaims liability for-the recording of notices of lis pendens under .authority oUhe - - - - - -·-·- -
decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Bravenec, et al, Case No. 14-50093
(5th Cir., judgment filed October 2, 2015), wherein the court vacated the order of the U.S. District Court
in case No. SA 11-CV-0414 dated December 27, 2013, on abuse of discretion and due process grounds.

4. The Owner received a leasehold interest in the subject property in lieu of monetary
consideration which was recorded in the records of the Bexar County Appraisal District as a homestead.

Dated: October 14, 2015
!~~~
Individually and As Administrator For
The Estate of Johnnie Mae King

STATEOFTEXAS )
COUNTY OF BEXAR )

This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as a third party purchase money lien creditor of the limited liability company
known as Moroco Ventures, LLC, whose charter is presently inactive.

2
 EXll'IJl :tT "A II

s. The land referred to In this Polley iS described as follows:
Lots 1, 2 and 3, Block SO, New Oty Block 8806, LOS ANGELES HEIGHTS ADDITION, situated
In the 0ty of San Antonio, Bexar County, Texas, according to plat thereof recorded In
Volume lSO, Pages 284-286, of the Deed and Plat Record of Bexar County, Texas, SAVE
AND EXCEPT there from a tract of land containing 0.00049 of an aae, being 21.51 square
feet,. more or less, same being out of Lot 1, said tJact conveyed to the City of San Antonio
by deed dated October 10, 1991 recorded in Volume S180, Page 1873, Real Pn:lperty
Records of Bexar County, Texas, being more particularly described by metes and bounds as
follows:

BEGINNING at an Iron rod found at the northwest comer of the said Lot 1, said point being
the POINT OF BEGINNING of the herein desa1bed tract;
THENCE s 890 s1• 30" E along the south line of West Olmos 10.01 feet to an Iron rod set at
the Point of Curvature of a curve having a radius of 10.00 feet. a central angle of 9QO 03•
30" an arc length of 15.72 feet, and whose radius point bears goo southerly from said line of
West Olmos;

THENCE along the arc of said curve 15.72 feet to an Iron rod set on the east line of West
Avenue at the Point of Tangency of said curve;

THENCE N 000 as• 00" E along the east line of West Avenue 10.01 feet to the POINT OF
BEGINNING, containing 0.00049 acres (21.51 square feet).

- -- ---------~-

OCT 1 4 2015

Doc# 20150198558 Fe~: $34.00
10/14/2015 4:49PM # Pages 3
Filed & Recorded in the Official
·Public Records of BEXAR COUNTY
GERARD C. RICKHOFF COUNTY CLERK
 ... ;,...

15
 Cause No. 2001-PC-1263

IN THE MATTER OF THE ESTATE OF ) IN THE PROBATE C~lmi · ·:--:-~-:-:·-:;.-·-
JOHNNIE MAE KING ) NUMBERONE
) FOR BEXAR COUNTY, TEXAS

ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE

LIEN RECORDING DATE: October 14, 2014

SUBJECT PROPERTY:

GRANTOR: ~state of Johnnie Mae King

GRANTEE: Rowland J. Martin, Jr., Independent Administrator for the Estate of
Johnnie Mae King

MAILING ADDRESS: 951 Lombrano
. San Antonio, Texas 78207

PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial
proceedings to the Class 2 lien that is hereby declared pursuant to
Estates Code Section 355.066(b), in consideration for (1) services
- - - - - - - - - · · - - - - - · · . __ r~n..dered and in satisfaction of related expenses incurred during the
decedent's last illness in the approximate amount of $12;ooo, (2) fof"the
unspecified value of services rendered to correct clouds on title to real
property of the estate due to coram non judice tax suit litigation that
was vacated by the 150th District Court and the 224th District Court in
2013; and (3) for the expenditure of in kind resources from the Grantees
individual estate in the amount of $135,000 during the attorney client
relationship with the Law Office of McKnight and Bravenec.

CONSIDERATION: The Administrator warrants, particularly in relation to the Bexar County
Tax Authorities' tax suit litigation in the 150th District Court in Case No. 2014-TA1-00224, that he is a
bona fide creditor of the decedent; that he faithfully rendered services for the benefit of the decedent
during·her last illness through the formation and administrc,tion of the Johnnie Mae King Trust; that he
incurred expenses for the benefit of the decedent during the last illness after the assets of the trust
were assigned by mutual agreement to Opal Gilliam, through her husband Calvin Gilliam, as part of an
heirship settlement; that he sustained losses to his personal estate as a benefactor of unperformed legal
services promised by former attorneys of record, Albert McKnight and Edward Bravenec, who appeared
through Law Office of McKnight and Bravenec in 2005. By virtue of the latter expenses, Grantee qualifies
as a creditor and lien holder of the highest priority under Estates Code Section 355.066(b), separate and
apart from future interests arising under the Heirship Settlement Agreement executed In 2008.

PROPERTY DESCRIPTION: The property commonly known as in San Antonio, Texas,
is legally described as "NCB 2095 BLK 20 LOT 35 E FT OF 14 & SW TRI OF
15".

1
 EXCEPTIONS TO CONVEYANCES AND WARRANTIES:

1. The lien is recorded by the power vested in Grantee by the Probate Court as an Independent
Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit in
the amount of $147,000 and judicial review by courts with probate jurisdiction in due course.

2. Out of an abundance of caution to enable·satisfaction of contingent liabilities against the Estate
of King, Grantee has made a concurrent assignment of lien interests to implement the indemnification
obligations set forth in the Heirship Settlement Agreement filed in Probate Case No. 2001-PC-1263. In
order to honor and comply with Heirship Agreement indemnification obligations owed to the successors
in interest of the late Opal Gilliam, beloved daughter of Johnnie Mae King, it is declared that the Estate
of Johnnie Mae King is a beneficiary of the third party purchase money lien claim recorded on October
14, 2015 by Rowland J. Martin in his individual capacity against the property commonly known as 1216
West, in San Antonio, Texas, and which was originally recorded in Bexar County Deed Records Volume
10406, Pages 1601 and 1606•. By the latter declaration, the Estate of Johnnie Mae King is also made a
beneficiary of the express contractual exceptions to the conveyance in the first deed of trust granted by
Moroco Ventures, LLC on October 31, 2003 which extends to "all rights, obligations, and other matters
emanating from and existing by reason of the ••• operation of any governmental district, agency or
authority," Bexar County Deed Records, Vol.10406 Page 1607.

3. In acco.rdance with contractual exceptions for governmental matters, Grantee expressly
---~-~-·-..disclaims liabilityJor.the recording of liens and notices o.fJis_pendens..agaJnst.t!teproperty kQQ.Wn as
1216 West Ave. in San Antonio, Texas, and asserts that the exceptions recorded herein supersede the lis
pendens expunction order which was entered by the Probate Court on March 19, 2014, and which was
further referenced in the decision of the Texas 4th District Court Of Appeals in Martin v. Bravenec, et al,
Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.- San Antonio, (ehearing denied June 8, 2015).

3. Grantee also disclaims liability for the recording of liens and notices of lis pendens under
authority of the decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Bravenec, eta/,
Case No. 14-50093 (5th Cir., judgment filed October 2, 2015), wherein the court vacated the order of the
U.S. District Court in Case No. SA 11-CV-0414 dated December 27, 2013.

Dated: October 14,2015 ~~
Rowland J. Martt
•

As Administrator For
The Estate of Johnnie Mae King
STATE OF TEXAS )
COUNTY OF BEXAR )

This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as Administrator for the Estate of Johnnie Mae King.

~
IJ:~t-\
\ ..~.~).. ~
CHARLCYE LANAI GUNEWINKEL
Notorv Public. Stote of Texos
My CommissiOn Expires
~~T~exas '

Vf,:;,;;;.~V June 02. 2019 2
 jf ourtb QCourt of ~ppeals
~an ~ntonio, Z!texas
October 22, 2015

No. 04-15-00271 -CV

ESTATE OF JOHNNIE MAE KING .

From the Probate Court No 1, Bexar County , Texas
Trial Court No. 2001-PC-1263
Kelly Cross, I udge Presiding

ORDER
Appell ees filed the ir brief on October 21, 2015. Simultaneousl y, ap pellees filed : (1) a
motion to di smiss; (2) a mo tion for damages for frivolous appeal; and (3) a request that this court
take ju dicial notice ol' ce rtain public records. After reviewing the motions and the request, we
ORDE R all th ree carried with tbe appeal. Both the motions and the request will be ruled upon
w hen the ap peal is Sdbmi ttcd and decided.

IN WITNESS WHEREOF. T have hereunto set my hand and affixed the seal of the said
. ._.Jrt o n ·J:i::. 2:2 nd ~~ y of Ocrober, 20 15.

Clerk of Court
 ACCEPTED
04-15-00271-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/21/2015 4:24:26 PM
KEITH HOTTLE
CLERK

No. 04-15-00271-CV
______________________________________________

IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
______________________________________________

ROWLAND J. MARTIN,
Appellant
v.

BEXAR APPRAISAL REVIEW BOARD AND BEXAR APPRAISAL
DISTRICT
Appellees.

MOTION FOR DAMAGES FOR FRIVOLOUS APPEAL

ELIZABETH CONRY DAVIDSON
Attorney at Law
State Bar No. 00793586
926 Chulie Drive
San Antonio, TX 78216
Telephone No.: (210) 380-4899
Facsimile No.: (210) 568-4036

EVERTSON & SANCHEZ, P.C.
Karen Evertson
State Bar No. 00797745
8213-A Shoal Creek Boulevard, Suite 109
Austin, Texas 78757
Telephone No.: (512) 323-0797
Facsimile No.: (512) 532-6598

Attorneys for Appellees
TO THE HONORABLE JUDGES OF THIS COURT:

Appellees, Bexar Appraisal District and Bexar Appraisal

Review Board respectfully present this their Motion for Damages for

Frivolous Appeal, and in support thereof would show the Court as

follows:

BACKGROUND

Mr. Martin is basically a career litigant. A search on the federal

court database (www.pacer.gov) reveals four bankruptcy

proceedings, an adversary proceeding, eight civil suits, and three

appeals to the Fifth Circuit in which Martin was a litigant. See search

results from Pacer Case Locator attached as Exhibit “K.” The Bexar

County Clerk records reveal eighteen cases in which Martin was a

party; ten of them were delinquent tax suits. See search results from

Bexar County District Clerk attached as Exhibit “L.” Finally, a search

on TAMES reveals only two cases, but Martin has attempted to file

many appeals with this Court. See search result from TAMES Bexar

County District Clerk and TAMES attached as Exhibit “M.”

Although he attended law school and was once admitted to

practice in New York and Pennsylvania, he is no longer. See search
results from the Texas Bar, New York Bar and Pennsylvania Bar

attached as Exhibit “A.” He is not and has never been licensed to

practice law in the State of Texas.1 Despite that, he has continued to

prosecute this appeal, on behalf of the Estate of Johnnie Mae King,

even though he was relieved of his duties and removed as

administrator last July.

Martin has been branded a vexatious ligitant by the Western

District of Texas and the Fifth Circuit, and this Court has recognized

as much. In a recent opinion, this Court in Martin v. Bravenec, No. 04-

14-00483-CV, 2015 WL 2255139 (Tex. App. – San Antonio May 13,

2015, pet. denied) recognized that inn a 2010 lawsuit against Edward

Bravenec (Martin’s former attorney in this probate proceeding, whom

he now accuses of malpractice) the federal district court granted

summary judgment in Bravenec’s favor, ordering him to show cause

why monetary sanctions should not be imposed against him for: “(1)

repeatedly filing lawsuits for the purposes of harassment and the

needless increase of litigation costs; and (2) continuing to assert

1
 Martin admitted this in the hearing from which this appeal arose. Additionally,

a search on the Texas Bar site for his name yields no results. See
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&Tem
plate=/CustomSource/MemberDirectory/Search_Form_Client_Main.cfm&Find
=1.

-3 -
claims that he knows are non-meritorious.” Id. at * 1. He was in fact

sanctioned by the federal district court on February 1, 2013 when the

clerk’s office was ordered not to accept for filing any further motions

filed by Martin in that case or any new pro se complaints without

prior written approval of a district judge. Id. The federal district

court’s order stated:

The Court observes that for years Plaintiff has engaged in
a campaign of harassing, frivolous, and duplicative
litigation. His lawsuits have served no purpose other than
to increase the litigation costs of the Defendants and
waste judicial resources. The Court finds that it is
necessary to take some action to curtail the Plaintiff’s
propensity to burden the Court with meritless litigation.

Id. The Fifth Circuit Court of Appeals affirmed that judgment and

also entered an order cautioning Martin that if “he continues to

engage in frivolous and vexatious litigation—for example, asking for

relief the court has repeatedly found is not warranted—sanctions

may be imposed.” Id.

This Court went on to quote from the Fifth Circuit’s order4

commenting on Martin’s history of filing notices of lis pendens

regarding the property at issue there (1216 West Avenue). After the

Fifth Circuit had entered two separate orders canceling the notice of

-4 -
lis pendens, Martin filed a third notice in probate court. Id. “This time

indicating that title to the Property was affected by a Bexar County

Probate Court matter styled In re Estate of Johnnie Mae King, Cause

No. 2001-PC-1263. The notice of Lis Pendens assert[ed] that Martin

was the administrator of the Estate and that Defendant Edward

Bravenec was “attorney of record.” Id. It did not, however, clarify

what bearing that probate matter ha[d] on the property at issue in the

[Bravenec federal] suit.” Id. The third lis pendens was canceled by the

probate court after it found on March 19, 2014 that the estate had no

interest in the West Avenue property. Id.

While Martin’s actions in past cases are not proof that his

appeal here is frivolous, they certainly demonstrate a pattern of

callous and intentional disregard for the rules and a propensity to file

frivolous and baseless pleadings and lawsuits with impunity. This

case is no exception. As set out in the Appellees’ Brief, Martin has

tried to harness the power of the probate court to forestall or prevent

the collection of delinquent ad valorem taxes that he rightly owes.

His sole purpose in keeping the estate of his grandmother open is to

avoid paying taxes on property that he now resides in and has a

-5 -
homestead exemption on. Finally the probate court recognized this

and removed him as administrator. Despite that, he continued with

this appeal although he no longer has standing to represent the estate

in any way.

The Appellees were dragged into probate court by Martin in

2009 to stall the pending delinquent tax lawsuits, and he has no

interest in completing his case against the Appellees. As long as it is

pending, the Taxing Authorities must wait to collect taxes he owes.

Consequently, this case has simply sat for six years while Martin

fights his numerous legal battles simultaneously.

As set out in great detail in the Appellees’ Brief, Martin never

had a chance with his claims in probate court. He had even less of a

chance in this Court. Specifically, he failed to meet the jurisdictional

prerequisites to judicial review of the District’s alleged error by not

paying the taxes on the properties. Payment of taxes is a requirement

to being entitled to judicial review and he forfeited this right many

years ago. He also failed to file suit timely, which is a jurisdictional

bar as well. Finally, he failed to file his suit in the right court: probate

court has no jurisdiction over ad valorem tax appeals. Thus, it was

-6 -
correct for the probate court to dismiss his case. His appeal,

particularly as his brief is drafted, could not possibly result in a

reversal of the probate court’s ruling, and Martin should have

realized that. As a result, this Court should find the appeal is

frivolous and award the Appellees’ damages.

ARGUMENT AND AUTHORITIES

A. Rule 45 authorizes damages for frivolous appeals.

Texas Rule of Appellate Procedure 45 authorizes courts of

appeals to award sanctions in appeals. The Rule reads:

Damages for Frivolous Appeals in Civil Cases

If the court of appeals determines that an appeal is
frivolous, it may — on motion of any party or on its own
initiative, after notice and a reasonable opportunity for
response — award each prevailing party just damages. In
determining whether to award damages, the court must
not consider any matter that does not appear in the
record, briefs, or other papers filed in the court of
appeals.

Tex. R. App. P. 45.

Although Rule 45 does not prescribe a method for determining

the amount of the “just damages,” courts have awarded just damages

based on proof of expenditures incurred by the appellee as a result of

the frivolous appeal. See Chapman v. Hootman, 999 S.W.2d 118, 123–25

-7 -
(Tex.App.—Houston [14th Dist.] 1999, no pet.) Hatton v. Grigar, No.

14–09–00630–CV, 2011 WL 175501, at *3 (Tex.App.—Houston [14th

Dist.] Jan. 20, 2011, no pet.) (ordering appellant and appellant's

attorney to pay Rule 45 damages to appellee) (mem.op.); Lookshin v.

Feldman, 127 S.W.3d 100, 105-107 (Tex.App.—Houston [1st Dist.]

2003, pet. denied) (ordering only appellant's attorney to pay Rule 45

damages to appellee).

In London v. London, 349 S.W.3d 672, 675-76 (Tex. App.--

Houston [14 Dist.] 2011, no pet.), the court said:

If an appeal is frivolous, the appellate court may award
the prevailing party just damages. Tex. R. App. P. 45. To
determine if an appeal is frivolous, we review the record
from the viewpoint of the advocate and decide whether
there were reasonable grounds to believe the case could
be reversed. Glassman v. Goodfriend, 347 S.W.3d 772, 782
(Tex. App.-- Houston [14th Dist.] 2011, pet. filed) (en
banc). Because the question of whether there were
reasonable grounds for such a belief is an objective one,
an appeal can be frivolous even absent bad faith. Id. at
781. After reviewing the record from the viewpoint of
Jeffrey's counsel, we conclude that there were reasonable
grounds to believe that this court could reverse the trial
court's order.

In Pantlitz v. Sikkenga, 2011 WL 5116464, *5 (Tex. App.--Houston

[1st Dist.] 2011, no pet.), the First Court of Appeals said:

We apply an objective test to determine whether an

-8 -
 appeal is frivolous and conduct a full examination of the
record and all the proceedings from the viewpoint of the
advocate. Smith, 51 S.W.3d at 381. The goal of this inquiry
is to determine whether the advocate had reasonable
grounds to believe that the trial court's judgment should
be reversed. Id. We exercise prudence and caution and
deliberate most carefully before awarding damages under
rule 45. Id. We award sanctions in truly egregious
circumstances. Goss v. Houston Cmty. Newspapers, 252
S.W.3d 652, 657 (Tex. App.--Houston [14th Dist.] 2008, no
pet.).

In D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205 (Tex.

App.--Dallas 2011, no pet.), the Dallas Court of Appeals cited four

factors indicating that an appeal is frivolous:

Four factors that tend to indicate an appeal is frivolous
are (1) the unexplained absence of a statement of facts, (2)
the unexplained failure to file a motion for new trial when
it is required to successfully assert factual sufficiency on
appeal, (3) a poorly written brief raising no arguable
points of error, and (4) the appellant's unexplained
failure to appear at oral argument.

In keeping with these criteria, the Fourteenth Court of Appeals

awarded damages for a frivolous appeal in Riggins v. Hill, 461 S.W.3d

577 (Tex. App. – Houston [14th Dist.] 2015, pet. denied). That case

involved an appeal from an order enforcing an earlier judgment

enforcing a settlement, in which trial court found it lacked

jurisdiction over the motions filed after issuance of an appellate

-9 -
mandate affirming the judgment. Id. at 584. The appellant attempted

to re-litigate the issues already resolved by the judgment, which was

final by appeal. Id.

The court pointed out that she had not shown, and the record

did not reflect “any reasonable ground for concluding that the

Judgment is void.” Id. She also did not make “any other argument

that, if successful, would allow her to obtain relief inconsistent with

the Judgment.” Id. After reviewing the appellate file, and considering

it from the viewpoint of her attorney, the court concluded that he had

“no reasonable grounds to believe that the case could be reversed.”

Id. Consequently, the court made “an objective determination that

this appeal is frivolous.” Id. The court found this warranted an award

to the landlord and associated parties of frivolous appeal damages

against tenant's attorney. Id.

The Riggins court In this case, concluded that just damages

should be calculated based upon the attorney's fees and expenses

incurred by the opposing party as a result of the appeal. Id. at 584.

Therefore, it calculated just damages based on the attorney's fees and

expenses in the case from the point the appeal was perfected. The

-10-
uncontroverted proof of reasonable attorney's fees during this period

was in the amount of $12,175.50 with $161.28 in expenses, for a total

of $12,336.78. Id.

B. There were no reasonable grounds for Martin to believe that
the probate court’s ruling could be reversed.

Martin made no viable arguments in the probate court to

prevent dismissal of his claims against the District and Board. The

bottom line is that Martin did not even take the actions required to be

afforded a protest hearing: paying the taxes due on the properties.

This was also a prerequisite to judicial review, which Martin ignored.

Clearly, his entire lawsuit was frivolous from the onset. However, he

filed it anyway and fought dismissal tooth and nail. His appellate

strategy is really no better, and just highlights the frivolity of his

whole case.

Now on appeal he is making completely new arguments that

were never made in probate court. His arguments on appeal also are

completely irrelevant to either 1) his claims in the underlying lawsuit

or 2) the dismissal of those claims. They present absolutely no reason

that his appeal should be successful. As a result, this appeal was

-11-
frivolous, the Appellees have been damaged, and Martin should be

ordered to pay those damages.

Specifically, the issues that Martin presents in this appeal are as

follows:

1. Whether the probate court’s treatment of Estates Code section
1002.027 constitutes fundamental error?

2. Whether the probate court’s treatment of 42 U.S.C. § 1983
constitutes fundamental error?

3. The probate court’s findings of fact constitute fundamental
error?

4. Whether the probate court’s treatment of the “open courts”
doctrine constitutes fundamental error?
See Brief at ix. Needless to say, not one of these issues was raised in

the probate court. Even the substance of his arguments in his brief

reveals nothing that was presented below to the probate court in

favor of retaining the case.

Inexplicably, Martin builds his entire argument around a new

provision of the Estates Code: section 1002.027, which took effect on

January 1, 1014, so it is inapplicable in this case anyway. Regardless,

its potential relevance in Martin’s mind is inexplicable. The section

merely defines “real property” to include “estates and interests in

land, whether corporeal or incorporeal or legal or equitable. The term

-12-
does not include a real chattel.” Texas Estates Code § 1002.027.

Martin, suggests that he has identified a conflict between the Estates

Code and the Tax Code that inures to his benefit somehow and that

the probate court’s interpretation of that section (which wasn’t even

raised) is fundamental error. See Brief at 14-17.

Martin throws in an argument that the probate court treated his

claim under 42 U.S.C. § 1983 poorly, resulting in fundamental error,

though one was never pleaded in probate court. See Brief at 17-20.

Martin contends next that the probate court’s findings of fact

constitute fundamental error. See Brief at 20-24. Yet the probate court

did not make any findings of fact and was not required to. Not only

was there no evidence presented at the hearing on the motion to

dismiss, but Martin failed to timely request that the court prepare

findings of fact and conclusions of law. (Supp. CR 153-165)

Finally, Martin argues that the probate court’s treatment of the

open courts doctrine was fundamental error. See Brief at 24-29. As

with the other arguments, this one was never made in the probate

court and is being made for the first time in Martin’s brief.

-13-
 Martin cannot raise these issues here because he did not raise

them in the probate court. Powell v. Powell, 604 S.W.2d 491, 493 (Tex.

Civ. App. – Dallas 1980, no writ). The orderly administration of

justice requires that issues and objections be raised in the trial court

so that justice may be done there rather than to permit a litigant to

wait until after the trial court has acted adversely and then complain

for the first time on appeal. National Lloyds Ins. Co. v. McCasland, 566

S.W.2d 565, 568-69 (Tex.1978); State of California Dept. of Mental

Hygiene v. Bank of the Southwest Nat’l Ass’n, 163 Tex. 314, 354 S.W.2d

576, 581 (1962); Slaughter Inv. Co. v. Cooper, 597 S.W.2d 455, 457

(Tex.Civ.App.-Dallas 1980, no writ).

Moreover, Martin’s arguments are not clear and do not present

any legal principles supporting his contentions, or supporting the

positions he took in the probate court. See Ratsavong v. Menevilay, 176

S.W.3d 661, 666 (Tex. App. –El Paso 2005, pet. denied). Martin also

fails to cite to any legal authority to support the issues he raises or to

connect them to the probate court’s ruling dismissing his case. Id. The

brief “must contain a succinct, clear, and accurate statement of the

arguments made in the body of the brief.” Tex.R.App. P. 38.1(g).

-14-
 Rule 38 requires Martin to provide the Court with such

discussion of the facts and the authorities relied upon as may be

requisite to maintain the point at issue. See Tesoro Petroleum Corp. v.

Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st

Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711

(Tex.App.-Amarillo 1998, no pet.). This is not done by merely

uttering brief conclusory statements, unsupported by legal citations.

Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such

attenuated, unsupported arguments, this Court should conclude that

Martin’s appeal is frivolous.

As demonstrated in the Appellees’ brief, Martin did not even

manage to meet the jurisdictional requirements for a protest

hearing—payment of taxes. There is no way that he could achieve

reversal of the probate court’s decision by appealing to this Court,

particularly with the arguments he has made here. His appeal is

clearly frivolous.

C. The Appellees have been damaged by this frivolous appeal.

Obviously Martin’s filing of this appeal required the Appellees

to respond, and this has required them to retain appellate counsel to

-15-
do so. Since this appeal was initiated on April 16, 2015, the

undersigned has spent in excess of seventy-five hours working on it.

This work has included reviewing the complex history of this case,

the properties involved, Martin’s other lawsuits, his history of being

a vexatious litigant, his lack of standing to continue to pursue this

case, reviewing and supplementing the record on appeal, legal

research and drafting of this brief and several motions. As set out in

the attached declaration by the undersigned, at her hourly rate of

$250.00 this totals $18,750.00 in legal fees incurred by the Appellees.

See Declaration of Conry Davidson attached as Exhibit 1.

Additionally, the Appellees have been required to expend costs on

this appeal, which now total roughly $350.00. These amounts are the

damages incurred by the Appellees because of this frivolous appeal,

and Appellees respectfully request this Court to award them these

damages.

CONCLUSION AND PRAYER

Based upon the foregoing, Appellees respectfully request that

this Court determine that this is a frivolous appeal and that

-16-
Appellees are entitled to damages for defending same in the amount

of $15,300.00.

WHEREFORE, PREMISES CONSIDERED, Appellees pray that

this Court will grant their motion .

Respectfully submitted,

Elizabeth Conry Davidson
926 Chulie Drive
San Antonio, Texas 78216
Telephone No. (210) 380-4899
Facsimile No. (210) 225-2300
conrydavidson@gmail.com

/s/ Elizabeth Conry Davidson
Elizabeth Conry Davidson
State Bar No. 00793586
ATTORNEY FOR APPELLEES

CERTIFICATE OF CONFERENCE

I hereby certify that I have conferred with the opposing party,
Rowland Martin, regarding the subject matter and substance of the
foregoing Motion and he has indicated that he does oppose this
Motion.

/s/Elizabeth Conry Davidson
ELIZABETH CONRY DAVIDSON

CERTIFICATE OF SERVICE

-17-
 I hereby certify that a true and correct copy of the foregoing
instrument was delivered to the following in accordance with the
Texas Rules of Civil and Appellate Procedure on this the 21st day of
October, 2015:

Rowland J. Martin

/s/ Elizabeth Conry Davidson
ELIZABETH CONRY DAVIDSON

-18-
 AFFIDAVIT OF CONRY DAVIDSON

“My name is Conry Davidson I am over eighteen (18) years of age, reside in Bexar
County, Texas, and I am fully competent to make this Affidavit. I have personal knowledge
of the facts stated herein and they are all true and correct. I have never been convicted of a
crime of moral turpitude.

“I am a duly licensed attorney , having been licensed in Texas since November, 1995.
My license to practice law in Texas is in good standing with the State Bar of Texas. I am
licensed to practice law in the Western and Northern Districts of Texas, and before the U.S.
Fifth Circuit and U.S. Supreme Court. I am also Board Certified by the Texas Board of Legal
Specialization in Civil Appellate Law.

“I am familiar with the ordinary, customary and reasonable fees charged in Bexar
County for appellate representation. When I handle legal matters on an hourly fee basis, I
generally charge at least $250.00 per hour for my services. In my opinion, the rate of $275.00
per hour for my legal services is reasonable in this area for the services I perform.

“I am the lead counsel on appeal for the Appellees in the lawsuit styled Rowland
Martin v. Bexar Appraisal District and Bexar Appraisal Review Board; Case No. 04-15-
00271-CV pending in the Fourth District Court of Appeals at San Antonio, Texas. I was
retained to handle the dismissal hearing in March, 2015 and then to handle this appeal on
behalf of the Appellees.

“In the context of handling this appeal, I have been required to supplement the
clerk’s record more than once, review the pleadings and history in this case that has been
pending for fifteen years, learn and comprehend the history of the tax delinquency issues
that have been pending for years, including the procedural history of numerous lawsuits and
appeals involving Mr. Rowland Martin, conduct extensive legal research regarding the brief
and the motions that have been required in this appeal, extensive conferring with co-counsel
and the lawyers for the Taxing Authorities to understand the case and to present the brief in
as cogent a fashion as possible, and I have worked extensively on the brief and the attendant
motions in an effort to present this case as concisely and clearly as possible, despite its
tortured history and the events underlying the case. Consequently, it has taken me over
seventy-five hours of time to handle the appeal, up to the date of preparing this affidavit.
Under the circumstances, spending seventy-five hours on this appeal was reasonable and
necessary. Consequently a reasonable fee for the time spent on this matter is at least
$18,750.00.

“As stated, I have been retained to represent the Appellees in this appeal. The
damages that they have incurred due to Mr. Martin’s filing of this frivolous appeal are the
attorneys fees that they must pay me, as well as the costs incurred in the defense of the
appeal. The costs incurred by the Appellees are approximately $350.00 at this time in
defending this appeal. The total damages caused by Mr. Martin’s frivolous appeal total
$19,100.00

  1
EXHIBIT 1
 “My name is Conry Davidson. My date of birth is July 4, 1968 and my address is 926
Chulie Drive, San Antonio, Texas 78216 and I declare under penalty of perjury that the
foregoing is true and correct.

“FURTHER AFFIANT SAYETH NOT.”

Executed in Bexar County, State of Texas, on the 21st day of October, 2015.

/s/Conry Davidson
Conry Davidson, Declarant

  2
EXHIBIT 1
PACER Case Locator - View https://pcl.uscourts.gov/view?rid=7onB7yK9VZYhhG5SAXxL...

All Court Types Party Search
Wed Aug 12 15:45:28 2015
19 records found

User: ec0709
Client: Bexar Appraisal District
Search: All Court Types Party Search Name Martin, Rowland All Courts Page: 1

Bankruptcy Results

Court Case Ch Date Filed Date Disposition
Party Name Closed

1 Martin, Rowland (intp) txwbke 5:06-bk-50829 11 05/02/2006 03/22/2007 Dismissed for Other Reason 01/08/2007
Moroco Ventures LLC
2 Martin, Rowland, Jr. (aty) txwbke 5:06-bk-50203 11 02/06/2006 04/05/2006 Dismissed for Other Reason 03/02/2006
Moroco Ventures, LLC
3 Martin, Rowland J, Jr (db) txwbke 5:05-bk-80116 13 12/05/2005 08/27/2012 Dismissed for Other Reason 06/20/2006
Rowland J Martin
4 Martin, Rowland J, Jr (pla) txwbke 5:11-ap-05141 09/06/2011 09/13/2011 Dismissed or Settled Without Entry of Judgment
09/13/2011
Martin and Bexar County
5 Martin, Rowland T (db) mssbke 3:06-bk-00462 7 03/31/2006 01/29/2010 Standard Discharge 01/29/2010
Rowland T Martin

Civil Results

Party Name Court Case NOS Date Filed Date Closed

6 Martin, Rowland J., Jr. (inre) txwdce 5:2012-cv-00998 423 10/17/2012 12/20/2012
Martin v. Bexar County et al
7 Martin, Rowland J., Jr. (pla) txwdce 5:2012-cv-00998 423 10/17/2012 12/20/2012
Martin v. Bexar County et al
8 Martin, Rowland J., Jr. (dft) txwdce 5:2009-cv-00949 890 11/30/2009 04/14/2010
County of Bexar et al v. Gilliam et al
9 Martin, Rowland J. (pla) txwdce 5:2014-cv-00524 442 06/10/2014 04/27/2015
Martin v. Claudette Yarbrough, et al
10 Martin, Rowland J. (cd) txwdce 5:2014-cv-00524 442 06/10/2014 04/27/2015
Martin v. Claudette Yarbrough, et al
11 Martin, Rowland (dft) flsdce 1:1993-cv-01785 470 09/16/1993 02/28/1994
Fior Industries v. Leach & Garner, et al
12 Martin, Rowland J., Jr. (pla) txsdce 4:2010-cv-03644 290 10/04/2010 05/18/2011
Martin v. Grehn et al. Case electronically transferred to the Western District of Texas (San Antonio Division).
13 Martin, Rowland (pla) txwdce 5:2008-cv-00484 440 06/18/2008 12/08/2009
King et al v. City of San Antonio
14 MARTIN, ROWLAND J. (pla) dcdce 1:2012-cv-01281 442 07/30/2012 02/25/2014
MARTIN v. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al
15 MARTIN, ROWLAND J. (cd) dcdce 1:2012-cv-01281 442 07/30/2012 02/25/2014
MARTIN v. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al
16 Martin, Rowland J., Jr. (pla) txwdce 5:2011-cv-00414 290 05/25/2011 12/21/2012
Martin v. Grehn et al.

Appellate Results

Party Name Court Case NOS Date Filed Date Closed

17 Martin, Rowland J., jr (pty) 05cae 13-51023 3290 11/01/2013 11/27/2013
Rowland Martin, Jr. v. Charles Grehn, et al
18 Martin, Rowland J., jr (pty) 05cae 13-50070 3290 01/29/2013 09/25/2013
Rowland Martin, Jr. v. Charles Grehn, et al
19 Martin, Rowland J., jr (pty) 05cae 14-50093 3290 02/03/2014
Rowland Martin, Jr. v. Charles Grehn, et al
Receipt 08/12/2015 15:45:29 20473806
User ec0709
Client Bexar Appraisal District
Description All Court Types Party Search
Name Martin, Rowland All Courts Page: 1
Pages 1 ($0.10)

1 of 1 8/12/15, 3:48 PM
TAB K
19 records match search criteria.
Cause No. Last / Business Name Suf First Name MI Date Filed Litigant Type SID Court Case Description Case Status View Case
1986TA200081 MARTIN ROWLAND 02/28/86 DEFENDANT N/A 073 DELINQUENT TAXES DISPOSED
2006CI15329 MARTIN ROWLAND 10/13/06 OTHER N/A 057 INJUNCTION DISPOSED
2014CI07644 MARTIN JR ROWLAND 05/13/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
2014CI07644 MARTIN JR ROWLAND 07/14/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
2014CI07644 MARTIN ROWLAND 08/05/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
280403 MARTIN ROWLAND 01/27/03 PLAINTIFF N/A 005 APPEAL FROM J.P. COURTS PENDING
1995TA104007 MARTIN JR ROWLAND J. 12/13/95 DEFENDANT N/A 166 DELINQUENT TAXES DISPOSED
1999TA100884 MARTIN JR ROWLAND J. 04/01/99 DEFENDANT N/A 150 DELINQUENT TAXES DISPOSED
2001TA100481 MARTIN JR ROWLAND J. 02/20/01 DEFENDANT N/A 408 DELINQUENT TAXES DISPOSED
2001TA104071 MARTIN JR ROWLAND J. 11/06/01 DEFENDANT N/A 045 DELINQUENT TAXES DISPOSED
2003TA102385 MARTIN JR ROWLAND J. 06/18/03 DEFENDANT N/A 150 DELINQUENT TAXES DISPOSED
2004TA102802 MARTIN JR ROWLAND J. 06/22/04 DEFENDANT N/A 224 DELINQUENT TAXES DISPOSED
2005CI18113 MARTIN JR ROWLAND J. 11/14/05 PLAINTIFF N/A 073 DECLARATORY JUDGMENT DISPOSED
2005CI18113 MARTIN ROWLAND J. 12/12/05 PLAINTIFF N/A 073 DECLARATORY JUDGMENT DISPOSED
2009TA101454 MARTIN JR ROWLAND J. 04/16/09 DEFENDANT N/A 288 DELINQUENT TAXES DISPOSED
2010CI19099 MARTIN ROWLAND J. 11/15/10 PROPIA PERSONA N/A 150 OTHER TAX DISPOSED
2014TA100159 MARTIN JR ROWLAND J. 02/28/14 DEFENDANT N/A 166 DELINQUENT TAXES DISPOSED
2014TA100224 MARTIN JR ROWLAND J. 03/06/14 DEFENDANT N/A 045 DELINQUENT TAXES PENDING
11-E-0201038-01 MARTIN ROWLAND J. 01/21/03 PLAINTIFF N/A JP1 APPEAL FROM J.P. COURTS CLOSED

TAB L
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285th
In re
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04-14-00841-CV Rowland Mandamus 2014CI07644Bexar COA04
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Rowland J. Martin Jr.
PA Attorney ID: 52047
Current Status: Administrative Suspension
Date of Admission: 05/18/1988
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Other Organization: Co-Counsel, Inc.
District: O
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Registration
Department of Admission: 1
Law School: UNIVERSITY OF TEXAS
Resources Registration Status: Suspended
Next Registration: Jan 2017
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Disciplinary History:
Suspended Effective Date: 10/21/2010
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The Detail Report above contains information that has been provided by the attorney
listed, with the exception of REGISTRATION STATUS, which is generated from the
OCA database. Every effort is made to insure the information in the database is accurate
and up-to-date.

The good standing of an attorney and/or any information regarding
disciplinary actions must be confirmed with the appropriate Appellate
Division Department. Information on how to contact the Appellate
Divisions of the Supreme Court in New York is available at
www.nycourts.gov/courts.

If the name of the attorney you are searching for does not appear, please try again with a
different spelling. In addition, please be advised that attorneys listed in this database are
listed by the name that corresponds to their name in the Appellate Division Admissions
file. There are attorneys who currently use a name that differs from the name under
which they were admitted. If you need additional information, please contact the NYS
Office of Court Administration, Attorney Registration Unit at 212-428-2800.

www.NYCOURTS.gov

1 of 1 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm

Matter of Attorneys Who Are in Violation of Judiciary Law Section 468-a

2010 NY Slip Op 07468 [79 AD3d 81]

October 21, 2010

Per Curiam

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431.

As corrected through Wednesday, January 26, 2011

[*1]
In the Matter of Attorneys in Violation of Judiciary Law § 468-a,
Respondents. Departmental Disciplinary Committee for the First Judicial
Department, Petitioner.

First Department, October 21, 2010

APPEARANCES OF COUNSEL

Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York
City (Mady J. Edelstein of counsel), for petitioner.

No appearances for respondents.

{**79 AD3d at 81} OPINION OF THE COURT

Per Curiam.

Section 468-a of the Judiciary Law requires every resident and nonresident attorney
admitted to practice in the State of{**79 AD3d at 82} New York to file a biennial
registration statement with the administrative office of the courts. A biennial registration
fee must be paid at the time the statement is filed. This registration statement, which is
mailed every two years by the Office of Court Administration to every attorney so

1 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm

admitted, must be timely filed and the fee paid regardless of whether the attorney is
actually engaged in the practice of law in New York or elsewhere. Attorneys who certify to
the Chief Administrator of the Courts that they have retired from the practice of law are
exempt from paying the registration fee at the time the statement is filed. Subdivision (5)
of the statute provides further that "[n]oncompliance by an attorney with the provisions of
this section and the rules promulgated hereunder shall constitute conduct prejudicial to the
administration of justice and shall be referred to the appropriate appellate division of the
supreme court for disciplinary action."

Pursuant to this provision, petitioner Departmental Disciplinary Committee seeks an
order suspending from the practice of law certain attorneys (whose last name begins with
the letters L through Z) who are in violation of the statute, in that they have failed to file
the registration statement and pay the registration fee for one or more registration periods
after due purported notification. This is another in a series of motions to suspend attorneys
who have failed to file biennial registration statements with the Office of Court
Administration. This Court has previously held that failure to register or reregister, and
pay the biennial registration fee constitutes professional misconduct warranting discipline
(see Matter of Pierini, 21 AD3d 42 [2005]). Since 1997 this Court has granted similar
motions and suspended attorneys en masse for such failure to register or reregister, and
pay the registration fee pursuant to Judiciary Law § 468-a (see Matter of Attorneys in
Violation of Judiciary Law § 468-a, 257 AD2d 127 [1999]).

The attorneys in question have been duly notified of their noncompliance and given
an opportunity to cure their default. The Office of Court Administration mailed each of the
defaulting attorneys a biennial registration form to their last known home address, a
second notice to their last known business address, and a final notice to their home
address. Attorneys who remained in default following these three notices were referred to
the Disciplinary Committee. On October 31, 2008, this Court published notice in the New
York Law Journal that the Disciplinary Committee would institute an omnibus disciplinary
proceeding seeking immediate suspension from the practice of{**79 AD3d at 83} law
against those attorneys who did not cure their default by November 24, 2008. Thereafter, a
list of approximately 1700 attorneys who failed to submit satisfactory proof of registration
and payment of fees was forwarded to the Committee. The Committee then filed its

2 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm

motion for service by publication of the notice of petition to suspend.

Pursuant to the order of this Court entered May 27, 2010, which provided for service
of the petition to suspend by publication in the New York Law Journal for five consecutive
days, a list of the defaulting attorneys along with their last known business addresses or in
the absence of a business address, the home address of the defaulting attorney, was so
published commencing June 8, 2010. A notice was also posted on the Court's Web site.
The order further provided that attorneys on the default list may submit proof from the
Office of Court Administration that they are in compliance with all the registration
requirements (including payment of registration fees), [*2]and an explanation of their
failure to respond to previous notifications of default, within 30 days of the return date of
the notice of petition, or they would be subject to a further order of the Court immediately
suspending them from the practice of law in the State of New York.

The attorneys who remain in noncompliance with Judiciary Law § 468-a despite the
notification process described above are the subject of the Committee's instant motion to
suspend. No opposition has been filed.

Accordingly, due to the continued failure to comply with the statute, petitioner's
motion to suspend such attorneys shall be granted to the extent of suspending those
attorneys whose names are enumerated in the attached schedule from the practice of law in
the State of New York, effective immediately.

Tom, J.P., Andrias, Saxe, Friedman and Nardelli, JJ., concur.

Attorneys whose names are enumerated in the schedule attached to the opinion per
curiam suspended from the practice of law in the State of New York, effective
immediately, and until the further order of this Court, as indicated.
Oath
Name Address Dept.
Date
Karlin & Pimsler Inc.
Ladden, 205 Lexington Ave.
2/2/98 1
Andrew 6th Floor
New York, NY 10016

3 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm

Michael David Mann Esq
Mann, 44 Broad St.
2/5/90 1
Michael David St 600 the Grant Building
Atlanta, GA 30303
Mao, 4F, No.3, Alle57, Lane 16, Shien-Yen Road
7/30/01 1
Lihuei Taipei, 117Taiwan
Department of Attorney General
Maranjian,
150 South Main St. 8/10/92 1
Emily
Providence, RI 2903
The Bronx Defenders
Marchesi,
890 Grant Ave. 1/22/01 1
Sarah Lockwood
Bronx, NY 10451
Datz & Goldberg
Markowitz,
1311 Spruce St. 8/23/79 1
Sayde Joy
Philadelphia, PA 19107
Marlow, 109 Atlantic St.
8/26/85 1
Tracy A. Stamford, CT 6901
Best Cellars Inc.
Marmet, 1120 Avenue of the Americas
2/3/86 1
Richard Arthur Suite 4106
New York, NY 10036
NYU Law School
Marotta,
40 Washington Sq. S 6/20/03 1
Florencia
New York, NY 10012
Diamond, Ruthman, Costello & Silberglitt
Marshall, 291 Broadway
2/4/87 2
Mariann Suite 1100
New York, NY 10007
Larry Scott Marso, Esq.
Marso, 41 West 74th St.
1/11/93 1
Larry Scott #5B
New York, NY 10023
39 E. 39th St.
Martin, Jr.,
#8-S 3/24/97 1
Rowland J.
Paterson, NJ 7514
City College of New York
Marx,
138th St. & Convent Ave. 8/4/97 1
Andrew Lawrence
New York, NY 10031
Stadard & Poors
Mason,
55 Water St. 4/26/95 2
M Scott

12 of 135 10/20/15, 12:46 PM
 ...,

Cause No. 2001-PC-1263 -
- . -........
I
I
I
I
IN THE MATTER OF ESTATE OF ) IN THE PROBATE fll~~l 2 ? p,'f . ? I
42
______________________________ )
KING )
I
ADMINISTRATOR FOR ESTATE OF KING) NUMBER ONE .: I .
I
Petitioner ) I
v. )
RL_ I
I
) I
BEXAR COUNTY, ET AL ) I
Respondents, ) FOR BEXAR COUNTY, TEXAS I

FINAL SUPPLEMENTAL NOTICE OF APPEA.I..x . ~ ~:·
Notice is hereby given, pursuant to Tex. R. App. Pro 27.1 and subjJ ~
. t~ere ,.... liJ; ~~
l 0
X N ;.?f,~
requested in Appellant's pending motion for abatement relief, that an appe~fr~robate'C~~

the~~· ~xru;~~
0
No. 2001-PC-1263 is taken in the Texas Fourth Court of Appeals from

County Probate Court #1, dated June 29, 2015, and from administrative findings of factCIP!te~ ..

by the Probate Court on July 21, 2015. Appellant construes the events of June 29, 2015 and on

July 21,2015 as a manifestation of the Probate Court's intention to accord finality the dismissal

of Appellant's claims for relief, in that the fmal order grants the respondents' motion for a nunc

pro tunc dismissal order in lieu of the erroneously dated order on March 31. 2015, and in that

the administrative findings operate as a fmal response to Appellant's notice of late filing of

findings of fact and conclusions of law filed on July 10,2015. Appellant reserves special

exceptions to the actions taken on July 21, 2015 on jurisdictional and evidentiary grounds, and

reserves challenges to their legal insufficiency for presentation as part of his regular appeal.

Dated: July 27,2015 Respectfully Submitted,

f)tt~..
RowlandJ . M

1
 ' -
A CERTIFICATE OF SERVICE

I delivered a copy of this, "Final Supplemental Notice of Appeal," to Attorney Karen ~

2

•
 CASE NUMBER 2015-CI-04779

ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 1501h JUDICIAL DISTRICT
BEXAR COUNTY, 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 PROSE FOR THE ESTATE OF JOHNNIE MAE KING

Be it remembered that on the $.o day of April, 20 15 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. After considering the Motion and pleadings 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 the Estate of Johnnie Mae King. Is hereby, in all things,
denied.

SIGNED AND ENTERED this ~ day of April, 2015.

JUDGE PRESIDING
 CASE NUMBER 2015-CI-04779

ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 150th JUDICIAL DISTRICT
BEXAR COUNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
:c-
INDEPENDENT SCHOOL DISTRICT § -o
Respondents § BEXAR COUNT ,TEgS ~
~ U1
-1
-< lJ
MOTION TO DISQUALIFY ROWLAND J. MARTIN, JR., TO PPEAR
PROSE FOR THE ESTATE OF JOHNNIE MAE KIN
w
.c
TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Bexar County and file this Motion to Disqualify Rowland J. Martin, Jr. to
Appear Pro Se for the Estate of Johnnie Mae King and would respectfully show the Court the
following:
l.
Rowland I. Martin, Jr., previously qualified to serve as the Administrator of the Estate of
Johnnie Mae King and Bexar County believes Rowland J. Martin, Jr., continues to serve in that
capacity.
II.
The real property which is the basis of this case is alleged by the Petitioner to be the
property of the Estate of King, to which Rowland J. Martin alleges to be the Estate
Administrator. (Verified Consolidated Application for Statutory Bill of Review, para. 2).
III.
Bexar County believes and therefore assert that Rowland J. Martin, Jr., is not licensed to
practice law in the State ofTexas.
IV.
Rowland J. Martin, Jr. is not qualified by law to appear pro se for the Estate of Johnnie
Mae King in his representative capacity. Bexar County would show the Court that an Estate
Representative may not appear for the Estate pro se and therefore, Rowland J. Martin, Jr. , is
 I
I

disqualified from appearing and representing the Estate of Johnnie Mae King in his pro se
capacity.
V.
Bexar County requests that this case be abated for thirty (30) days to afford Petitioner the
opportunity to retain qualified legal counsel to represent Petitioner.
WHEREFORE, PREMISES CONSIDERED, Bexar County prays that upon hearing of
this Motion, that Rowland J. Martin, Jr., be disqualified from representing the Estate of Johnnie
Mae King in his pro se capacity, and for such other and further relief, at law or in equity, to
which Taxing Authorities may show themselves justly entitled to receive.
Respectfully submitted,

LINEBARGER, GOGGAN, BLAIR & SAMPSON, L.P.
00
/

ATTORNEYS FOR RESPONDENT,
BEXAR COUNTY
 CERTIFICATE OF CONFERENCE

The undersigned attorney of record for Bexar County certifies that he has attempted to
confer with Rowland J. Martin, Jr. prior to setting this Motion for hearing but has been unable to
successfully contact him. Therefore, this Motion is submitted to the Court for resolution.

Don Stecker

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Respondent's Motion to
Disqualify Rowland J. Martin, Jr., to Appear ProSe for the Estate of Johnnie Mae King has been
delivered pursuant to Texas Rule of Civil Procedure 21 a to the following:

Rowland J. Martin

PETITIONER

Savita Rai
Samuel Adams
Office of the City Attorney
City of San Antonio
401 S. Frio
San Antonio, Texas 78207
RESPONDENT, CITY OF SAN ANTONIO
I
I

on this the _ _ day of April, 20 15.

[
Don Stecker
 CASE NUMBER 2015-CI-04779

ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING , §
Petitioner §
VS. §
§ 150th mDICIAL DISTRICT
BEXAR COlJNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS

ORDER SETTING MOTION TO DISQUALIFY ROWLAND J. MARTIN, JR., TO
APPEAR PRO SE FOR THE ESTATE OF JOHNNIE MAE KING

The Motion to Disqualify Rowland J. Martin, Jr. , to Appear Pro Se for the Estate of

Johnnie Mae King in the above styled and numbered cause is hereby set for hearing for the 30th

day of April, 2015, at 8:30 o'clock A.M. , in the Courtroom of the Presiding Judge of Bexar

County, Texas, Room 109, Bexar County Courthouse, San Antonio , Texas.
APR 1 5 2015
SIGNED on -----------------------------------
Cathleen M. Stryker
Presiding Judge
224th District Court
JUDGE PRESIDING
 Bexar Appraisal Review Board 411 N Frio l San Antonio l Texas 78207 Telephone (210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009

The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board . 244 HENRY ST ,

#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR

7009 1410 0002 4744 6296

The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:

ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)

The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.

PROTESTED YEAR : 2006

VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $9,200
LAND AG!TIM VALUE: $0 TOTAL MARKET VALUE : $15,720
LAND HOMESTEAD VALUE: $6,520 TOTAL NEW ASSESSED VALUE: $15 ,720
LAND NON HOMESITE: $0

THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.

YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.

Signed 10/23/09.
/0 ~
~~::tf~
George Ybarra, Chair
Appraisal Review Board

PACS:BO CHG
 Bexar Appraisal Review Board 411 N Frio I San Antonio I Texas 78207 Telephone {210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009

The notice of KING JOHNNIE MAE EST OF OWNER :
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,

#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR

7009 1410 0002 4744 6296

The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented , the Board has made a
determination with a quorum present as to the following issues:

ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)

The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.

PROTESTED YEAR: 2007

VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $11 ,780
LAND AG/TIM VALUE: $0 TOTAL MARKET VALUE: $19,280
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $19,280
LAND NON HOMESITE: $0

THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.

YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.

Signed 10/23/09.
/0
AS/~[1~
w
George Ybarra, Chair
Appraisal Review Board

PACS :BO CHG
 Bexar Appraisal Review Board 411 N Frio l San Antonio l Texas 78207 Telephone (21 0) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009

The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,

#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR

7009 1410 0002 4744 6296

The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:

ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)

The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.

PROTESTED YEAR : 2008

VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $10,980
LAND AG!TIM VALUE: $0 TOTAL MARKET VALUE: $18,480
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $18,480
LAND NON HOMESITE: $0

THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.

YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.

Signed 10/23/09.

~11~~
v ~·

George Ybarra, Chair
Appraisal Review Board

PACS:BO CHG
 Bexar Appraisal Review Board 411 N Frio I San Antonio I Texas 78207 Telephone (210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009

The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,

#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOT5
MARTIN ROWLAND J JR

7009 1410 0002 4744 6296

The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:

ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)
Value Over Market

The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.

PROTESTED YEAR: 2009

VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $10,620
LAND AG/TIM VALUE: $0 TOTAL MARKET VALUE: $18,120
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $18,120
LAND NON HOMESITE: $0

THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.

YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.

Signed 10/23/09.

4~~
George Ybarra, Chair
Appraisal Review Board

PACS:BO CHG
Bexar CAD - Property Details Page 1 of2

Bexar CAD

Property Search Results> 381482 KING JOHNNIE MAE EST OF for Year 2010

Property

Account
Property ID: 381482 Legal Description: NCB 6686 BLK LOT 5
Geographic ID: 06686-000-0050 Agent Code:
Type: Real
Location
Address: 244 HENRY ST Mapsco : 615F2
Neighborhood: 26TH/ZARZAMORA Map ID:
Neighborhood CD: 57018
Owner
Name: KING JOHNNIE MAE EST OF Owner ID: 288459
Mailing Address: % ROWLAND J MARTIN JR %Ownership: 100.0000000000%

Exemptions:

Values

(+)Improvement Homesite Value: + $0
(+)Improvement Non-Homesite Value: + $0
(+)Land Homesite Value: + $0
(+)Land Non-Homesite Value: + $3,000 Ag I Timber Use Value
(+)Agricultural Market Valuation: + $0 $0
(+)Timber Market Valuation: + $0 $0

(=)Market Value: $3 ,000
(-) Ag or Timber Use Value Reduction: - $0

(=)Appraised Value: $3,000
(-) HS Cap: $0

(=)Assessed Value: $3 ,000

Taxing Jurisdiction

Owner: KING JOHNNIE MAE EST OF
% Ownership: 100.0000000000%
Total Value: $3 ,000

Entity Description Tax Rate Appraised Value Taxable Value Estimated Tax
06 BEXAR CO RD & FLOOD 0.030679 $3 ,000 $3,000 $0.92
08 SA RIVER AUTH 0.015951 $3,000 $3,000 $0.48
09 ALAMO COM COLLEGE 0.135855 $3,000 $3,000 $4.08
10 UN IV HEALTH SYSTEM 0.266235 $3,000 $3,000 $7 .99
11 BEXAR COUNTY 0.296187 $3 ,000 $3,000 $8 .89
21 CITY OF SAN ANTONIO 0.565690 $3 ,000 $3,000 $16.97
57 SAN ANTONIO lSD 1.249700 $3,000 $3 ,000 $37.49
CAD BEXAR APPRAISAL 0.000000 $3,000 $3,000 $0.00
DISTRICT
Total Tax Rate: 2.560297
Taxes w/Current Exemptions: $76 .81

http://www.bcad.org/ClientDB/Property.aspx?prop_id=381482 8/9/20 10
Bexar CAD- Property Details Page 2 of2

Taxes w/o Exemptions: $76 .81

Improvement I Building

No improvements exist for this property.

Land

# Type Description Acres Sqft Eft Front Eft Depth Market Value Prod. Value
1 VLR Vacant Regu lar Lot 0.0459 2000.00 25.00 80.00 $3,000 $0

Roll Value History

Year Improvements Land Market Ag Valuation Appraised HS Cap Assessed
2011 N/A N/A N/A N/A N/A N/A
2010 $0 $3,000 0 3,000 $0 $3,000
2009 $10,620 $7,500 0 18,120 $0 $18,120
2008 $10,980 $7,500 0 18,480 $0 $18,480
2007 $11,780 $7,500 0 19 ,280 $0 $19 ,280
2006 $9,200 $6,520 0 15,720 $0 $15 ,720

Deed History- (Last 3 Deed Transactions)

# Deed Date Type Description Grantor Grantee Volume Page

2011 data current as of Aug 9 2010 1:42AM.
2010 and prior year data current as of Jul 18 2010 2:39PM
For property information, contact (210) 242-2432 or (210) 224-8511 or email.
For website information, contact (210) 242-2500.

Database last updated on: 8/9/2010 1:42 © 2010 True Automation, Inc. All Rights
Website version : 1.2.2.2
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http://www.bcad.org/ClientDB/Property.aspx?prop_id=381482 8/9/2010
 LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
ATIORNEYS AT LAW
711 NAVARRO, SUITE 300
SAN ANTONIO, TX 78205

(210) 225-6763
(21 0) 225-6410 - Fax

NOTICE OF INTENT TO ENFORCE JUDGMENT
August 6, 20 10

Rowland J. Martin, Jr.

RE: Suit No. 2004-TAl-02802; Account No. 066860000050

Dear Mr./Ms. Martin, Jr.:

This law firm represents Bexar County in the collection of delinquent property taxes. A
judgment was entered previously in favor of Bexar County against OPAL GILLIAM, ET AL in the
above referenced lawsuit. Before enforcing the judgment, Bexar County has directed that the property
owners be afforded the opportunity to pay the amounts owed.

This is your final notice that all amounts secured by the judgment, including court costs, must
be paid in order to prevent further action against this property. Please contact Donna B. Stein at (21 0)
225 -4422 within ten days from the date of this letter to confirm the amounts due and to make
arrangements to pay. If not contacted in ten days, we will proceed toward the immediate
execution of the judgment. At that time, all non-exempt property will be seized and sold at
public auction to the highest bidder.

We strongly urge that you give this matter your immediate attention.

Sincerely,
LINEBARGER GOGGAN
BLAIR & SAMPSON, LLP

c~~r~
Cristina Gonzalez
Attorney at Law
CG/dbs

Esta correspondencia se trata de sus impuestos y Ia posibilidad de perder su propiedad. Si usted no
puede leer esta carta, por favor llame a (21 0) 225-4422 y alguen le podra ayudar.
 LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
ATTORNEYS AT LAW
711 NAVARRO, SUITE 300
SAN ANTONIO, TX 78205
PHONE: (210) 362-9000
FAX: (210) 225-6410

August 6, 2010
T4 -PO-S899

11111111111111111111111111111111 11111 11111111111111111111111
BASE AMOUNT: $1,312 .57
INTEREST $546.90
#BWNGWXX TOTAL DUE $1,859.47
#10290981259#
KING JOHNNIE MAE EST OF LEGAL DESCRIPTION: NCB
%ROWLAND J MARTIN JR 6686 BLK LOT 5

11 ••• 11 •• 1••• 1.111 ••• 1••• 1••• 11 ••• 11 ••• 11.1 •• 1.1.1 •••• 11 •• 11.1

IUE: 0668600000500
Code Compliance Charges
Dear City Resident:
Our law firm has been retained to institute forced collection proceedings to collect the above-referenced amounts owed to the City of
San Antonio.
The City of San Antonio records indicate that you remain in default and currently owe the City $1,859 A 7 for the charges and interest
on the above referenced property_
These amounts may already be included in a delinquent tax suit wherein we will seek a court judgment aganist you which may
adversely affect your credit rating and/or create a cloud upon the title of any real property you own. Additional costs will be incurred
as the suit progresses.
If you believe that you do not owe this charge, want to dispute the validity of the charge, or if you do not own the property, please
WRITE a detailed letter and supply the ACCOUNT NUMBER to the following address:

CITY OF SAN ANTONIO
FINANCE DEPARTMENT
ATTN : CODE COMPLIANCE
P.O. BOX 839975
SAN ANTONIO, TX 78283-3975

If you prefer, please call (210) 207-8690 or (210) 207-8746.
Please note that there is no grace period; you may already have been sued. If you choose to avoid further costs by paying the total
amount due immediately, please return the enclosed statement along with your check. Thank you for your cooperation.

Sincerely,
LINEBARGER GOGGAN BLAIR & SAMPSON, LLP

c~~r~
Cristina Gonzalez
Attorney at Law

ESTA CORRESPONDENCIA SE TRATA DE LA CONFORMIDAD DE CODIGOS Y LA POSIBILIDAD DE UNA DE MAN DA ACE RCA DE
SU PROPIEDAD. SI USTED DESEA AS ISTENCIA POR UNA PERSONA QUE HABLA ESPANOL, LLAME USTED A (21 0) 207-8677 Y
UNA PERSONA LE A YUDARA.
 ·KETlJKN THIS STATI<;MI<;NT WITH YUlJK YAYMI<;NT

MAKE YOUR CHECK, MONEY ORDER
OR CASHIER'S CHECK PAY ABLE TO:

CITY OF SAN ANTONIO

MAKE SURE THE ADDRESS APPEARS IN THE WINDOW ENVELOPE WHEN MAILING PAYMENT TO:

CITY OF SAN ANTONIO
FINANCE DEPARTMENT
ATTN: CODE COMPLIANCE
P.O. BOX 839975
SAN ANTONIO, TEXAS 78283-3975

KING JOHNNIE MAE EST OF ACCOUNT NUMBER:
%ROWLAND J MARTIN JR 0668600000500
LEGAL DESCRIPTION:
NCB 6686 BLK LOT 5

Code Compliance Charges
INTEREST AS OF AUGUST 2010
SERVICE DATE ' . ' TYPE OF SERVICE AMOUNT DUE
July 20, 2006 Demolition 1,859.47

PAY THIS AMOUNT
This amount is valid through August 31, 2010 only.
If you pay after that date, please contact the Finance Department at (21 0) 207-8690 for the correct amount due.
 .. ,

Seli'qwick CMS
·~
P0Box 14499
Lexington, KY 40512-4499 · . Sedgwick CMS
Sed9'Yi<::k Claims Maoagern<;nl Services, Inc.
Phone: (210)332-1500 Fax: (210)332-1590 -· ·· ·
December 17, 2009

Rowland Martin, Jr.

.;
Re: Our Client:
Claimant:
Date of Loss:
,.. ·--.,..::

Dear Mr. Martin:
.' ~·

Sedgwick CMS is a third-party clai!JlS ad~strator retained by the .City of San Antonio
to handk its · claims. ·.As such, 'Ye haye .investigated the facts surrounding your claim
referenced above. · ·~ "' ·

Municipalities in Texas are . immune from liability ex~pt when that immunity is
expressly waived by statute. -· ~ this particular. claim, our _investigation revealed that no
such waiver of immumty applies. The inveS'tigation. re:Veals the City of San · Antonio
mailed proper notices to the 'oWn.ers.prior to ihe dimo~ti~~ofthe property at 244 Henry
Street. _; · i: \. , ,., · · '/ ~;~ .~ ~ : ·

Accordingly, we cannot r~commend payment ofy~ur ~laim..... ..;;,_·
~
-~ ·.'
Sincerely,

Mario Martinez
Claims Examiner Ill
210-332-1633

·..· .

' '·
12/17/2009 300903166740001
. . 562009121701906
,...~ '• ~

•
• ...J:• ~
 2015 OCT Ilt P l*: 4b

Cause No. 2001-PC-1263

IN THE MATTER OF THE ESTATE OF IN THE PROBATE COUR-=F · ~;;-;-;·
, ._ < '
-::;.-- --
1

JOHNNIE MAE KING NUMBER ONE ' ..
FOR BEXAR COUNTY, TEXAS

ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE

LIEN RECORDING DATE: October 14, 2014

SUBJECT PROPERTY:

GRANTOR: Estate of Johnnie Mae King

GRANTEE: Rowland J_ Martin, Jr., Independent Administrator for the Estate of
Johnnie Mae King

MAILING ADDRESS:

PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial
proceedings to the Class 2 lien that is hereby declared pursuant to
Estates Code Section 355.066(b), in consideration for (1) services
rendered and in satisfaction of related expenses incurred during the
decedent's last illness in the approximate amount of $12,000, (2) for the
unspecified value of services rendered to correct clouds on title to real
property of the estate due to coram non judiCe tax suit litigation that
1
was vacated by the 150 h District Court and the 2241h District Court in
2013; and (3) for the expenditure of in kind resources from the Grantees
individual estate in the amount of $135,000 during the attorney client
relationship with the Law Office of McKnight and Bravenec.

CONSIDERATION: The Administrator warrants, particularly in relation to the Bexar County
Tax Authorities' tax suit litigation in the 1501h District Court in Case No. 2014-TA1-00224, that he is a
bona fide creditor of the decedent; that he faithfully rendered services for the benefit of the decedent
during her last illness through the formation and administration of the Johnnie Mae King Trust; that he
incurred expenses for the benefit of the decedent during the last illness after the assets of the trust
were assigned by mutual agreement to Opal Gilliam, through her husband Calvin Gilliam, as part of an
heirship settlement; that he sustained losses to his personal estate as a benefactor of unperformed legal
services promised by former attorneys of record, Albert McKnight and Edward Bravenec, who appeared
through Law Office of McKnight and Bravenec in 2005. By virtue of the latter expenses, Grantee qualifies
as a creditor and lien holder of the highest priority under Estates Code Section 355.066(b), separate and
apart from future interests arising under the Heirship Settlement Agreement executed in 2008.

PROPERTY DESCRIPTION: The property commonly known as , in San Antonio, Texas,
is legally described as "NCB 2095 BLK 20 LOT 35 E FT OF 14 & SW TRI OF
15".

1
EXCEPTIONS TO CONVEYANCES AND WARRANTIES:

1. The lien is recorded by the power vested in Grantee by the Probate Court as an Independent
Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit in
the amount of $147,000 and judicial review by courts with probate jurisdiction in due course.

2. Out of an abundance of caution to enable satisfaction of contingent liabilities against the Estate
of King, Grantee has made a concurrent assignment of lien interests to implement the indemnification
obligations set forth in the Heirship Settlement Agreement filed in Probate Case No. 2001-PC-1263. In
order to honor and comply with Heirship Agreement indemnification obligations owed to the successors
in interest ofthe late Opal Gilliam, beloved daughter of Johnnie Mae King, it is declared that the Estate
of Johnnie Mae King is a beneficiary of the third party purchase money lien claim recorded on October
14, 2015 by Rowland J. Martin in his individual capacity against the property commonly known as 1216
West, in San Antonio, Texas, and which was originally recorded in Bexar County Deed Records Volume
10406, Pages 1601 and 1606. By the latter declaration, the Estate of Johnnie Mae King is also made a
beneficiary of the express contractual exceptions to the conveyance in the first deed of trust granted by
Moroco Ventures, LLC on October 31, 2003 which extends to /fall rights, obligations, and other matters
emanating from and existing by reason of the ... operation of any governmental district, agency or
authority," Bexar County Deed Records, Vol. 10406 Page 1607.

3. In accordance with contractual exceptions for governmental matters, Grantee expressly
disclaims liability for the recording of liens and notices of lis pendens against the property known as
1216 West Ave. in San Antonio, Texas, and asserts that the exceptions recorded herein supersede the lis
pendens expunction order which was entered by the Probate Court on March 19, 2014, and which was
further referenced in the decision of the Texas 4th District Court Of Appeals in Martin v. Bravenec, et of,
Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.- San Antonio, rehearing denied June 8, 2015).

3. Grantee also disclaims liability for the recording of liens and not ices of lis pendens under
authority of the decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Brave nee, et of,
Case No. 14-50093 {5 1h Cir., judgment filed October 2, 2015), wherein the court vacated the order of the
U.S. District Court in Case No. SA 11-CV-0414 dated December 27, 2013.

Dated: October 14, 2015
R~~~ ·
As Administrator For
The Estate of Johnnie Mae King
STATE OF TEXAS )
COUNTY OF BEXAR )

This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as Administrator for the Estate of Johnnie Mae King.

~~
2
 CASE NUMBER 2015-CI-04779

ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 150th JUDICIAL DISTRICT
BEXAR COUNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS

. !ffiSPO~DEN_'['_§_Q;RIGIN'_~L ANSWER,

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Bexar County, one of the Respondents in the above styled and numbered

cause, and reservii1g the right to file other and further pleadings, exceptions, challenges to

jurisdiction and denials, files this its Original Answer to Petitioner's Verified Consolidated

Application for Statutory Bill of Review. In support thereof, said Respondent would respectfully

show unto the Court as follows:

I.
GENERAL DENIAL

Subject to, and without waiver of any Plea to the Jurisdiction which may be set forth in
this case, Bexar County denies each and every, all and singular, the allegations contained in
Petitioner's Petition. Such allegations are not true, either in whole or in part, and said
Respondent demands strict proof thereof, along with all statutory prerequisites to any such cause
of action.

II.
AFFIRMATIVE DEFENSES

Pleading further by way of affirmative defense, Bexar County would specifically raise
the defense of res judicata.

1
r
Pleading further by way of affirmative defense, Bexar County would specifically state
that it is a political subdivision and governmental entity of the State of Texas, and, without
waiving any of the privileges, defenses and/or immunities pled herein, Bexar County asserts all
of the rights and privileges associated with its status as a governmental entity, including
sovereign immunity and governmental immunity from all claims alleged by Petitioner.

Pleading further by way of affirmative defense, if such is necessary, and without waiving
any of the privileges, defenses and/or immunities pled herein, Bexar County asserts sovereign
immunity and governmental immunity from all damages, actual or exemplary, and further asserts
sovereign immunity and governmental immunity from costs and attorneys' fees.

Pleading further by way of affirmative defense, if such is necessary, and without waiving
any of the privileges, defenses and/or immunities pled herein, Bexar County specifically asserts
it has not waived or excused any defenses to Petitioner's allegations and/or causes of action and
demand strict proof of all condition precedents to Petitioner maintaining this cause of action.

WHEREFORE, PREMISES CONSIDERED, Respondent, Bexar County prays that the
Court deny the relief sought by Petitioner, enter Judgment in favor of Respondent, and grant
their costs of court, and for all such further relief to which they prove to be entitled.

Respectfully submitted,

LINEBARGER, GOGGAN, BLAIR & SAMPSON, L.P.

Lilia Gibs 006 0)
L1 . 1 son@LGBS.com
Brad Balderrama (SBN: 24040464)
Brad.Balerrama@LGBS.com
Don Stecker (SBN: 19095300)
Don.Stecker@LGBS .com

ATTORNEYS FOR RESPONDENT,
BEXAR COUNTY

2
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Respondent's Original
Answer has been delivered pursuant to Texas Rule of Civil Procedure 21a to the following:

Rowland J. Martin

PETITIONER

Savita Rai
Samuel Adams
Office of the City Attorney
City of San Antonio
401 S. Frio
San Antonio, Texas 78207
RESPONDENT, CITY OF SAN ANTONIO

on this the ~day of April, 2015.

3