                  Case No. 04-14-00483-CV




               IN THE COURT OF APPEALS
        FOURTH SUPREME JUDICIAL DISTRICT
                   SAN ANTONIO, TEXAS
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            ROWLAND J. MARTIN, APPELLANT                     . >>            CD
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 INDIVIDUALLYAND IN HIS REPRESENTATIVE CAPACITYAS
       ADMINISTRATOR FOR THE ESTATE OF KING

                               V.


EDWARD BRAVENECAND THE LAW OFFICE OF MCKNIGHTAND
              BRAVENEC, ETAL, APPELLEES




             APPELLANT'S OPENING BRIEF




                    An Interlocutory Appeal
        From Orders Of The 285th Judicial District Court,
                      Bexar County, Texas


                                              Submitted By:

                                              Rowland J. Martin
                                              951 Lombrano
                                              San Antonio, Texas 78207
                                              (210) 383-3849
                        IDENTITY OF PARTIES & COUNSEL


1.    Appellant:                               Rowland J. Martin
                                               Individually and As Administrator of The
                                               Estate Of King
                                               951 Lombrano
                                               San Antonio, Tx 78207

      Represented by:                          Pro se


      Appellees                                Edward Bravenec, the Law Firm of
                                               McKnight and Bravenec, 1216 West Ave.,
                                               Inc.


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

3.    Interested Third Parties Subject To Joinder:

3a.                                            Bailey Street Properties

      Represented by:                          Law Office of McKnight and Bravenec
                                               405 South Flores
                                               San Antonio, Tx. 78205

3b.                                            Torrabla Properties, LLC
                                               18507 Canoe Brook,
                                               San Antonio, Texas

                                               Office Address:
                                               1626 S.W. Military Dr.
                                               San Antonio, Tx. 78201

      Represented by:                          Unknown
                                     TABLE OF CONTENTS


Identity of Parties and Counsel                                  ,                             2

Table of Contents                                                                          .....4

Index of Authorities                                                                           5


Statement of the Case                                                                          8


Statement of Jurisdiction                                                                     10

Statement of Facts                                                                            12


Standard Of Review                                                                            15


Issues Presented                                                                              11


Argument and Authorities                                                                      23

Conclusion And Prayer                                                                        34

Certificate of Service


Certificate of Compliance
      /                . . . .




Appendix

TAB 1:                   Lis Pendens Speech Regarding 1216 West Ave. 2013-2014

TAB 2:                   Perfected Notice Of Lis Pendens Concerning Purchase Money Lien

TAB 3:                   Docketing Statement For Case No. 04-14-00483-CV And Supporting
                         Exhibits

TAB 4:                   Warranty Deed From Edward Bravenec To Torralba Properties, LLC.

TAB 5:                   Releases Of Liens By Texas Community Bank and By J. J. Bravenec and
                         Sons.


TAB 6:                   Order To Show Cause Of The 285thJudicial District Court

TAB 7:                   Documentation Of Post-Stay Trial Proceedings On December 8, 2014.

TAB 8:                 Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963)
                                  INDEX OF AUTHORITIES


Cases


Airvantage, LLC v. TBANProps. #1, LT.D., 269 S.W.3d 254, 259 (Tex. App.—Dallas 2008,
no pet.)

Alphonso v. Deshotel, All S.W.3d 194 (Tex. App.—El Paso 2013, no pet.)                     46 58

Amalfitano v Rosenberg, 428 F Supp 2d 196 (S.D. .N.Y., 2006) (Amalfitano I),
Amalfitano v Rosenberg, 533 F3d 117, 125 (2d Cir., 2008) (Amalfitano II), and
Amalfitano v Rosenberg, 12 NY3d 8 (N.Y. App., 2009) (Amalfitano III).

Anderson v. Law Firm ofShorty, Dooley & Hall, (E.D. La. Feb 17, 2010) affirmed in 393 Fed.
Appx. 214 (5th Cir. Aug. 26, 2010)

Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963)

Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied).                     11, 16,
17,22

Barranza Family Limited Partnership v. Levitas, Case No. 13-07-00470-CV (Tex.App. 13th
Dist. - Corpus Christi, 2009)                                                        21,26

Better Bus. Bureau ofMetropolitan Dallas v. BHDFW, Inc., 402 S.W.3d 299 (Tex. App.—
Dallas 2013, pet. denied)                                                                     43

Bravenec v. Flores, Case No. 04-11 -00444-CV (Tex. App. - San Antonio, 2013               57, 64

Britton v. Seale, 81 F.3d 602 (5th Cir. 1996) (citing Zuniga)..

Butnaru v. FordMotor Co., 84 S.W.3d 198 (Tex. 2002)                                    34, 66, 68

Chisholm v. Chisholm,209 S.W.3d 96, 98 (Tex. 2006) (per curiam)                               22

Collins v. Tex Mall, L.P.,' 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.)
Criswellv. Ginsberg & Foreman, 843 S.W.2d 304, 306-07 (Tex.App.—Dallas 1992, no
writ)...                                                                      28,59,60

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.,
2008)                                                                                     37,63

Davis v. Huey, 620 S.W.2d 561, 565-66 (Tex. 1981)

Drew v. Unauthorized Practice ofLaw Comm., 970 S.W. 2d 790 , 793 (Tex. App. Austin-
Dallas-1979, no writ.)

                                                 3
Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex. App.—Houston [14th Dist]
1971, no writ)                                                                               45

Dynamic Publ'g & Distrib. L.L.C. v. Unitec Indus. CenterProp. Owners Ass'n, Inc., 167 S.W.3d
341 (Tex. App.—San Antonio 2005, no pet.)

Emeritus Corp. v. Ofczarzak, 198 S.W.3d 222, 225-26 (Tex. App.- San Antonio 2006,
no pet.)

Farias v. Garza, 426 S,W.3d 808 (Tex. App.—San Antonio 2014,
pet. filed May 6, 2014)...:                                                          14,44,45

Fitzmaurice v. Jones, All S.W.3d 627 (Tex. App.—Houston [14th Dist] 2013, no pet.)           45
Frick v. Total Separation Solutions, LLC, (Tex.App.- Houston [14th Dist.]
Jul. 16,2009)                                                                                8

G&R Inv. v. Nance, 588 S.W.2d 804, 806 (Tex. Civ. App.- Houston [14th Dist.] 1979, writ refd
n.r.e.)                                  -.                                          8

Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ refd n.r.e.)

Goad v Zuehl Airport Flying Community-Owners Association, Inc., Case No. 04-11-00293-CV
(Tex. App.-San Antonio, May 23, 2012)                                              .......42

Group Purchases, Inc. v. Lance Invs., Inc., 685 S.W.2d 729, 731-32 (Tex. App.—Dallas 1985,
writ refd n.r.e.).

Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726 (Tex. 1958)                  8

Gulf Coast Investment Corp. v. Brown, 821 S.W.2d 159 (Tex. 1991)

Gulflns. Co. v.Burns Motors, 22 S.W.3d 417, 424 (Tex. 2000)

Gunn v. Minton, 568 U.S. 310 (2013).....

Hansen v. Caffry, 280 A.D.2d 704, 720 N.Y.S.2d 258 (3d Dept. 2001)                     34,34

In the Matter ofEnergytec, Inc., —F.3d- Case No. 12-41162 (5th Cir. Dec. 31, 2013)

In re Liberty Trust Co., 130 B.R. 467 (W.D.Tex. 1991)

In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth 2013, orig. proceeding
[mand. pending])                                                                             42
In re M.B.B-Y., No. 04-10-00541-CV, 2011 LEXIS 2520, (Tex. App.—San Antonio, April 6,
2011, no pet.) (mem. op.)           '.

InreOlshanFound. Repair Co., LLC, 328 S.W.3d 883, 888 (Tex. 2010)

In re S. W. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam)                    22

In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 204 (Tex. 2002)

InwoodN. Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987)

Johnson v. Lockhart, 40 S.W. 640 (Tex. 1897)

Kinney v. BCGAtty. Search, Inc., No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at
*15-16 (Tex. App.—Austin, April 11, 2014, n.p.h.)                                         41

Kittrellv.. CityofRockwell, 526 F.2d 715, 716 (5th Cir. 1976)                            33

Kroger Tex. v.Suberu, 216 S.W.3d 788 (Tex. 2006)                                       26,72

Larry Yorkv. State, 373 S.W. 3d 32 (2012)                                                23

Manuel v. Spector, 112 S.W.2d 219, 221 (Tex. App.—San Antonio 1986, orig.
proceeding)                                                                            36, 64

Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

McKaskey v. McCall, 236 S.W. 432 (Tex. App. -El Paso, 1920)

McKnight andBravenec v. Reliant Financial, Inc. et al, Case No. 2006-CI-15329             18

Merrell Dow Pharm. v. Havner,953 S.W.2d 706, 711 (Tex. 1997)

Mills.v. Green, 159 U.S. 651,653(1895)                                                     62

Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio 1997, writ denied).

Nat 7 Fed'n oftheBlind ofTex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir. 2011)         62

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex. App - 1st
Dist.-Houston2013)                                                                     22,46

New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004)

Pebble Beach Prop. Owners'Ass'n v. Sherer, 2 S.W.3d 283 (Tex. App.—San Antonio 1999,pet.
denied).


                                                5
Pilarcikv. Emmons, 966 S.W.2d 474, 478 (Tex. 1998)

Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, (Tex. App.—Houston [14th Dist.] 2013,
pet. denied)    :                                                               19,40,42,43

Reno v.ACLU, 521 U.S. 844(1997)               '.

Rio Grande H20 Guardian v. Robert Muller Family P 'ship. Ltd., No. 04-13-00441-CV, 2014           ,
WL 309776, at *2 (Tex. App.—San Antonio January 29, 2014, n.pih.)                            42
Rocha v. Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio 1983, no
writ)                                                                                  30,31

Sierra Club v. Andrews County, 418 S.W.3d 711 (Tex. App.—El Paso 2013,
pet. filed March 24, 2014)                                                          38,41,42

State Farm Fire & Casualty Co., v. Gandy, 925 S.W. 2d 696, 707-11 (Tex. 1996)

Teal Trading andDevelopment, LP v. Champee Springs Ranches Property Owners Association, Case
No., 04-12-00623-CV (Tex App.-San Antonio 2014)

Town ofPalm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001) (per curiam)

TravelersIns. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010)....                      36,63

Unifund CCR Partners v. Villa, 273 S.W. 3d 385 (Tex. App. - San Antonio, 2008)               24

United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 627 (5th Cir. 2010)

Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)                     \                   58

Walker v. Schion, 420 S.W.3d 454, (Tex. App.—Houston [14th Dist] 2014, n.p.h.)               44

Wayne Harwell Props, v. Pan Am. Logistics Ctr., Inc., 945 S.W.2d 216, 218 (Tex. App. - San
Antonio 1997, writ denied))

Webb v. Glenbrook Owners' Ass 'n. 298 S.W. 3d 374, 384 (Tex. App. - Dallas 2009, no pet.).

Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568, 570 (Tex., 1961)

Yiamouyiannis v. Thompson, 16A S.W.2d 338 (Tex. App.—San Antonio, 1988, writ
denied)                                                                                      27

Young v. Krantz, 2014 Tex. App. LEXIS 5703 (Tex. App.—Dallas 2014, n.p.h.)             39, 40
Constitutional Provisions, Statutes and Rules

Constitution of the United States. Article I, Section 10, Clause 1 (Contracts Clause)      21

House Comm. on Judiciary, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011)            16

Texas Constitution, art. I, Section 13

Texas Constitution, art V, Section 6                                                       10

Tex. Civ. Prac. & Rem. Code § 16.051                                                       19

Tex. Civ. Prac. & Rem. Code § 27.008                                                       10

Tex. Civ. Prac. & Rem. Code §31.002(a)                                                     24

Tex. Civ. Prac. & Rem. Code Section 51.014                                              8, 10

Tex. Prop. Code Ann. § 12.008

Tex. Prop. Code Ann. § 202.003(a)

Tex. Gov't Code Section 22.221                                                          10, 15
                              APPELLANT'S OPENING BRIEF


       Appellant Rowland J. Martin files his opening brief. The brief refers to Martin as

"Appellant." Appellees Edward Bravenec and the Law Office of McKnight and Bravenec, will

be referred to by name, or collectively as "plaintiffs" or "Appellees" as they were designated

below. As Appellant seeks affirmative relief on the counterclaims that were'pending when the

appeal was filed, and his pending Petition For Writ of Mandamus and Prohibition was denied,

the brief asserts that the sanctions provisions of the Texas Citizen's Participation Act furnish an

adequate remedy at law to support affirmative relief.
                                  STATEMENT OF THE CASE


       Nature of the case. On or about May 13, 2014, Appellees commenced a suit against

Appellant for tortuous interference with contractual relations, based on certain lis pendens

notices affecting a property known as 1216 West Ave., in San Antonio, Texas, and was granted

an ex parte temporary restraining order.. Bravenec's case for tortious interference is in the nature

of a quiet title controversy in which he seeks relief for breach or rescission of title covenants.

       Course of proceedings: Appellant filed an answer and counterclaims for legal

malpractice, abuse of process and declaration of purchase money interests in response to

Plaintiffs original petition and application for temporary restraining orders. Thereafter,

Appellant filed a plea to jurisdiction and a motion to dismiss in connection with the hearing set

for July 9, 2014.

       Trial Court disposition: The trial court granted Appellees' motion for temporary

injunction with a trial setting of December 8, 2014, and entered orders denying Appellant's pleas

to jurisdiction were entered on orally on July 9, 2014 and in writing on July 17, 2014. A series of

interlocutory appeals were taken on July 9, 2014 and July 18, 2014, in response to orders entered

by the trial court, including the trial court's "Order on Motion To Dismiss" dated July 17, 2014

("dismissal denial order").
                       ISSUES PRESENTED FOR REVIEW


Issue 1:   The Injunction Order Institutes Unconstitutional Treatment of The Interlocutory
           Appeal Statute And Automatic Stay Mandate In Section 51.014(b) Of The Texas
           Civil Practice And Remedies Code, So As To Restrict Appellant's Common Law
           Rights Of Action As Purchase Money Lien Claimant In Derogation Of The Open
           Courts Doctrine.


Issue 2:   The Trial Court Departed From The Law That Governs Specificity Requirements
           For Temporary Injunctions As Set Forth In Tex. R. Civ. P. 683.

Issue 3:   The Trial Court Misapplied The Law Governing TCPA Burden Shifting
           Procedures For The Processing Of Motions To Dismiss Pursuant Under Section
           27.008 Of The Texas Civil Practice And Remedies Code.




                                          10
                              STATEMENT OF JURISDICTION

       The Court has appellate jurisdiction to consider this appeal as originally noticed pursuant

to TEX. CIV. PRAC. & REM. CODE §51.014(A) (4) and (12) as an appeal from the trial court's

interlocutory grant of temporary injunctive relief and from its denial of a motion to dismiss filed

under the Citizens Participation Act, TEX. CIV. PRAC. & REM. CODE § 27.003 (Tab A). See

also TEX. CIV. PRAC. & REM. CODE § 27.008. Due to the a lapse in the trial setting that

disintegrated the injunction, it appears that the Court may lack jurisdiction over the appeal under

Section 51.014(a)(4) insofar as a significant part of the appeal is now moot. Frick v. Total

Separation Solutions, LLC, (Tex.App.- Houston [14th Dist.] Jul. 16, 2009) (per curiam dismissal

of temporary injunction appeal for mootness with order entered dissolving temporary

injunction); G&R Inv. v. Nance, 588 S.W.2d 804, 806 (Tex. Civ. App.- Houston [14th Dist.]

1979, writ refd n.r.e.); Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726

(Tex. 1958). See, Tex. R. Civ. Pro. Rule 683.




                                                 11
                                   STATEMENT OF THE FACTS


A.      The Interlocutory Appeal Involves A Claim Of Purchase Money Lien Interests
        Running With The Land, And A Tortious Interference Case That Has Been
        Asserted To Collaterally Attack The Purchase Money Lien.

        On May 13, 2014, Appellee Edward Bravenec sued Appellant Rowland Martin for filing

lis pendens notices in Bexar County Deed Records and purchase money pleadings in the 285th

Judicial District Court in a suit for tortious interference with contractual relations relating to a

sale of real property. Appellant asserts for various reasons that the Appellees' case is unfounded.

Farias v. Garza, 426 S.W.3d 808, 820 (Tex. App.—San Antonio 2014, pet. filed May 6, 2014)

(reversing denial of Tex. Civ. Prac. & Rem. Code Section 51.014(a)(12) motion to dismiss); Teal

Trading and Development, LP v. Champee Springs Ranches Property OwnersAssociation, Case No.,

04-12-00623-CV (Tex App. - San Antonio 2014) (estoppels bydeed).1 A lis pendens is a statutorily

authorized notice recorded in the deed records warning all persons that the property is the subject

matter of litigation. Airvantage, LLC. v. TBANProps. #1, LTD., 269 S.W.3d 254, 259 (Tex.

App.—Dallas 2008, no pet.) Under the Texas Property Code, a party to an action involving title

to real property could file a lis pendens notice with the county clerk where the property is

located. Tex. Prop. Code § 12.008. The purpose of the notice of lis pendens is twofold: (1) it

protects the alleged rights of the party filing it, and (2) it puts those interested in the property on

notice of the lawsuit. Collins v. TexMall, LP., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth

2009, no pet.). The effect of a lis pendens remains throughout the appeal of a trial court's



1       "The rationale of the rule [governing on estoppel by deed] is that any description, recital of fact,
or reference to other documents puts the purchaser upon inquiry, and he is bound to follow up this
inquiry, step by step, from one discovery to another and from one instrument to another, until the whole
series of title deeds is exhausted and a complete knowledge of all the matters referred to and affecting the
estate is obtained." Loomis v. Cobb, 159 S.W. 305, 397 (Tex.Civ.App.—El Paso 1913, writ refd). See
also, Wessels v. Rio Bravo Oil Co., 250 S.W.2d 668 (Tex.Civ.App.—Eastland 1952, writ refd) (It is well
settled that "a purchaser is bound by every recital, reference and reservation contained in or fairly
disclosed by any instrument which forms an essential link in the chain of title under which he claims.").

                                                     12
judgment. Group Purchases, Inc. v. Lance Invs., Inc., 685 S.W.2d 729, 731-32 (Tex. App.—

Dallas 1985, writ refd n.r.e.).

       An accurate valuation of Appellant's total losses can only be ascertained through an

equitable accounting for rents and profits. For example, as set forth in Part B, the face value of

Appellant's purchase money lien in the subject property is $135,000. The value of Appellant's

possessory interest in the subject property as a condominium declarant is at least $297,000 at the

time of his ouster by McKnight and Bravenec in November 2006, based on a letter of credit

Appellant secured from Fisher Enterprises of New York, NY to fund the reorganization plan for

Moroco Ventures. The above stated losses exclude legal expenses and net profits from rents and

contract of sale proceeds directly or indirectly accruing to Bravenec.

       Thus, the focus of the interlocutory appeal centers on whether the trial court's

conclusions of law in the context of orders denying dismissal pursuant to the TCPA and granting

temporary injunctive relief were sufficient to release Appellees and their successors in interest

from compliance with restrictive covenants arising from the first and second deeds of trust and

lien agreements which constitute Appellees' chain of title. Torralba Properties, Inc. is a pendent

lite purchaser of record whose acquired the subject property during the pendency of the instant

interlocutory appeal and whose sales proceeds are being held in escrow. As a pendent lite

purchaser under a grant from Appellees, Torralba is accountable with Appellees for the

satisfaction of restrictive covenants that run with the land. Urban Renewal Agency of San

Antonio, Id

B.             McKnight and Bravenec Acquired Their Estate By Special Warranty Deed
               Subject To Purchase Money Liens And Recorded Prescriptive Rights.

       On October 31, 2003, Appellant acquired a lien interest in the subject property by

furnishing the sum of $135,000 to the owners and sellers of the property known as 1216 West


                                                 13
Ave, in San Antonio, Texas Roy Ramspeck, et al, as purchase money for a down payment to

enable the entity known as Moroco Ventures, LLC to acquire title to the property in its own

name on behalf of the Appellant's corporate estate. The first deed of trust and first lien

agreement records prescriptive and rights and exceptions to conveyances and warranties

applicable to Appellant's then unrecorded purchase money lien interest. The record of the

proceeding in In re Estate ofKing, Probate Case No. 2001-CI-1263 establishes that McKnight

and Bravenec were attorneys of record for the Appellant and the Estate of King on May 3, 2005.

See, Appendix to In re Rowland J. Martin, Case No. 04-13-00370-CV (Tex. App. - San Antonio,

2014). The instrument of record giving notice of Plaintiffs rights as a third party in relation to

Moroco Ventures, LLC at the time the parties executed the Second Deed Of Trust was the First

Deed of Trust executed on October 31, 2003. Two other instruments effectuating exceptions to

conveyances and warranties applicable to the Second Deed Of Trust are recorded in Book 12237,

Page 1089, ("Order on Motion For Contempt Against Law Office of McKnight and Bravenec"

Bankruptcy Case 06-50829 dated June 20, 2006), and in Book 12426, Page 2234

("Condominium Declaration of Moroco Ventures, LLC Establishing the Deco Village Annex"

dated October 2, 2006). See Docketing Statement Exhibits E and F. The aforementioned

purchase money lien interest and prescriptive rights were and directly touched and concerned the

land are separate and collateral to the rights of redemption that were then held by Appellant's

corporate estate in terms of time, space, original and motivation.

       On May 3, 2005, McKnight and Bravenec accepted a second deed of trust and lien

agreement subject to recorded exceptions to conveyances and warranties through Appellant's

corporate estate, Moroco Ventiures, LLC. On October 4, 2006, McKnight and Bravenec

conducted a post-petition foreclosure sale, under color of authority granted by the 57th Judicial



                                                 14
District Court while the subject property of Chapter 11 Bankruptcy Estate. McKnight and

Bravenec then proceeded to oust Appellant from the property through a transfer of control to

Bailey Street Properties, Inc., in proceeding in which Bravenec adversely represented Bailey

Street Properties as the plaintiff party in a suit for forceable entry and detainer against Appellant

as the defendant party. On October 3, 2006, the day before the foreclosure, Appellant held a

homestead interest the property and was the beneficial owner of condominium declaration which

together conferred upon him an interest in the nature of an easement by estoppel, in addition to;

his purchase money lien interest and prescriptive rights to an equity of re-entry against Edward

Bravenec.


       On October 31, 2006, the 57th Judicial District Court approved a settlement in Case No.

2006-CI-15329 between Plaintiffs McKnight and Bravenec, and Defendants, Reliant Financial,

Inc., et al. The settlement subrogated McKnight and Bravenec to the position of Reliant

Financial, Inc. as the original grantees of the First Deed of Trust. See Docketing Statement,

Exhibit H. On November 1, 2006, the 57th Judicial District Court entered an order denying

intervention and injunctive relief which adopted the finding that a foreclosure took place on

October 3, 2006 in accordance with the trustee's deed recital that "MOROCO VENTURES LLC

has defaulted in the payment and performance of obligations to ALBERT MCKNIGHT and

EDWARD BRAVENEC." Docketing Statement Exhibit I. In 2007, McKnight and Bravenec

transferred the subject property to a jointly owned corporate entity known as 1216 West Ave.,

Inc. On August 10, 2012, the Hon. Leif M. Clark issued a partial judgment in Bankruptcy Case

No. 05-80116 and Adversary Case No. 11-5141 to retroactively confirm Appellant's status as

purchase money creditor based on proceedings in McKnight and v. ReliantFinancial, Inc. et al,

Cause No. 2006-CI-l5329 in 57th Judicial District Court. The order is cited in Appellant's



                                                 15
Notice of Apparent Liability For Purchase Money Claims and in his Perfected Notice of Lis

Pendens Recording Purchase Money Lien Claims.

       Applying a liberal construction, Bravenec's chain of title shows that his foreclosure

trustee conveyed a special warranty deed subject to restrictive covenants recited in the first and

second deeds of trust and lien agreements, both of which encompass Appellant's Notice of

Apparent Liability For Purchase Money Claims. The latter chain of title evidence indicates

conclusively that the status quo at the time of Appellees' tortious interference suit was based on

actual notice of recorded exceptions to conveyances and warranties, and that the common law

doctrine of estoppel by deed is applicable on that basis to the estate Bravenec conveyed to

Torralba Properties in July 2014.

C.     The Rulings In Question Were Adverse To Appellant's Common Law Right To
       Assert Purchase Money Lien Claims And To Litigate Legal Malpractice Disputes.

        The court proceedings on the Appellees' tortious interference case took place on July 1,

2014, July 9, 2014 and July 17, 2014 and December 8, 2014, and led to two adverse rulings to

Appellant's common law claim of purchase money lien interests - an order denying a motion to

dismiss and an order granting temporary injunctive relief. On appeal, Appellant asserts eight

points of error in support of the assertion that the trial court's temporary injunction order was

unconstitutional as applied, that the temporary injunction order contravened the specificity

requirements of Tex. R. Civ. P. Rule 683, and that the non-dismissal order misapplied the

TCPA's burden shifting procedures.

       For standing to prosecute their tortious interference case in chief, Appellees alleged an

injury to Bravenec's interest in a single contract of sale with an unspecified buyer. The injury

was purportedly caused by the anticipated lis pendens abuse. Appellees assert that Bravenec's

injury is precluded by the supposed res judicata effect of the federal district court judgment in


                                                 16
Martin v. Grehn, et al, Case No. SA 11-CV-0414-HLH. Throughout their pleadings, Appellees

imply that the res judicata effect of Martin v. Grehn deprives Appellant the opportunity to

litigate purchase money lien claims, but offer no testimony or citations to federal court records to

substantiate their res judicata contentions. The pleadings neither describe nor contain a copy of

the instrument styled as a "Notice ofApparentLiability For Purchase Money Claims, " which

Appellees caused the trial court to cancel the instrument in its original ex parte temporary

restraining order on May 13, 2014. Subsequently, Appellees secured an order to show cause by .

alleging that Appellant committed an act punishable by contempt with the filing of a lis pendens

notice in the docket of their tortious interference case in the 285th Judicial District Court.


       Appellees's treatment of the TCPA is presented in the following statement which implies

ambiguously that Appellees are either exempt from the Act, or that the Act was not intended to

cover lis pendens notices as a form of protected speech and litigation arising from real estate

sales transactions: "Martin refers to 'Texas Citizen's Participation Act' pretty much every chance

he gets. This act is inapplicable. The purpose of this act is to safeguard constitutional rights of

persons to speak freely and associate freely ... It is inapplicable to real property suits and simply

has no bearing on this case." Appellees' Motion To Set Hearing Tex. Civ. Prac. Rem, Code

Section 13.005, " dated August 13, 2014, at p. 2 —3.

       In opposition to Appellees' claim for tortious interference, Appellant relied on Judge

Clark's order of August 10, 2012 to establish his capacity as a purchase money creditor and

former beneficiary of an attorney client relationship, and on that basis asserted various defenses,

affirmative defenses and objections. It is alleged fundamentally by way of defense that

Appellant's lis pendens filings in 2014 merely enabled the contracting parties to exercise the

rights afforded to them at common law. Appellant also alleged arguably dispositive affirmative



                                                  17
defenses based on common law and statutory authority. In particular, it was alleged on July 1,

2014 and July 9, 2014 that the tortious interference claim is both subject to estoppel and is moot

at common law because the lis pendens relief they request is incapable of absolving actual notice

of liability for purchase money claims. It was further alleged on July 9, 2014, July 17, 2014 and

December 8, 2014, pursuant to the Texas Citizens Participation Act, that the tortious interference

case arising from the purported contract of sale was in response to and was based on the exercise

of the right to free speech involving lis pendens notices and the right to petition for redress of

attorney client disputes. Lastly, Appellant objected to the trial court's entry of its temporary

injunction order on July 17, 2014, and to the trial proceedings on December 8, 2014 where

Appellees attempted to prosecute sanctions for discovery violations, both of which proceedings

took place after a timely notice of appeal from the^trial court's order denying Appellant's TCPA

motion to dismiss.


       Ultimately, the trial court denied dismissal and granted temporary injunctive relief. The

non-dismissal order reads in its entirety: "On the 9th day of July came to be heard the Motion to

Dismiss filed by Rowland J. Martin. After the evidence and argument of counsel this court finds

the Motion is without merit." The temporary injunction order was entered the same day, and

contains three findings and five decretal clauses, all of which restrict Appellant's common law

privileges and litigation rights. In effect, both orders adoptAppellees' view that the TCPA's stay

provisions are non-self-executing and non-automatic, and that an order for a stay of proceedings

was required in advance in order to compel the trial court and the Appellees to comply with the

provisions of Section 51.014(b) which states "[a]h interlocutory appeal under Subsection (a) ....

stays commencement of a trial in the trial court pending resolution of the appeal." Tex. Civ. Prac.

Rem Code Section 51.014(a).



                                                 18
                                    STANDARD OF REVIEW


        "To establish a cause of action for tortious interference, a plaintiff must prove that (1) a

 contract subject to interference exists, (2) the defendant committed a willful and intentional act

 of interference with the contract, (3) the act proximately caused injury, and (4) the plaintiff

 sustained actual damages or loss ..." Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,

Ltd., 416 S.W.3d 71, 80 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); Rehak Creative

<Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). In

 reviewing a conclusion of law about legal sufficiency, a court of appeals credits evidence that

 supports the conclusion if reasonable jurors could, and disregard contrary evidence unless

 reasonable jurors could not. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex.

 2006). Evidence is legally insufficient when (1) there is a complete absence of evidence of a vital

 fact; (2) the court is barred by the rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact.

Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

        Under the governing rules of construction, the construction of a restrictive covenant

involves a question of law. Raman Chandler Props., L.C. v. Caldwell's Creek Homeowners

Ass'n,178 S.W.3d 384, 390 (Tex.App.-Fort Worth 2005, pet. denied); see also Kothmainn

 *485485 v. Rothwell, 280 S.W.3d 877, 879 (Tex.App.-Amarillo 2009, no pet.). Consequently, a

court of appeals has no need to defer to the construction assigned by the trial court, and must

address the matter de novo to assure that restrictive covenants are "liberally construed" to give

effect to their purposes and intent. See Tex. Prop. Code Ann. § 202.003(a) (Vernon 2007).

Moreover, when interpreting restrictive covenants, Texas courts apply the general rules of



                                                  19
contract construction. Pilarcikv. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). Under the

governing rules, the courts attempt to ascertain the true intention of the parties as expressed in

the instrument, GulfIns. Co. v. Burns Motors, 22 S.W.3d 417, 424 (Tex. 2000), by examining

the writing as a whole and in light of the circumstances present at its execution. A reviewing

court is obligated to assign the words that appear in the instrument containing the restrictive

covenant their common meaning. Wilmoth v. Wilcox, 734 S.W.2d 656,657-58 (Tex. 1987).

       In applying choice of law criteria in Chisholm v. Chisholm, Case No. 04-06-00504-CV

(Tex. App., San Antonio, May 23, 2007) (an order issued under a complete lack ofjursidiction is

void ab initio), the Court stated that "[a]s an intermediate state appellate court ... in a civil matter

we are bound by the precedent established by the Texas Supreme Court and the United States

Supreme Court, not by Fifth Circuit precedent ...."Id. The undisputed: facts of this case are

controlled by Texas Supreme Court authority in Larry York v. State of Texas, 373 S.W.3d 32

(2012), which holds that '[a]n action taken in violation of the automatic stay is void, not merely

voidable,' and U.S. Supreme Court authority in Cooke et al, v. Avery, \A1 US 375, 13 S.Ct. 340,

37 L. Ed. 209 (1893) and Long Beach Mortg. Co. v. Evans, 284 S.W.3d 406 (Tex. App. Dallas

2009), reh'g overruled, (June 17, 2009) and review denied, (Nov. 20, 2009) and cert, denied, 130

S. Ct. 3470, 177 L. Ed. 2d 1056 (2010),

        York is the controlling Texas Supreme Court decision on automatic stay procedures. The

Supreme Court held in York that trial courts lack competent jurisdiction to disregard automatic

stay requirements due to the laws governing their creation:

       ... treating an action in violation of the automatic stay as void is more consistent with its
       purpose of providing ... a "breathing spell"... Either the debtor must affirmatively
       challenge creditor violations of the stay, or the violations are void without the need for
       direct challenge. If violations of the stay are merely voidable, debtors must spend a
       considerable amount of time and money policing and litigating creditor actions. If
       violations are void, however, debtors are afforded better protection and can focus their


                                                  20
        attention on reorganization. Given the important and fundamental purpose of the
        automatic stay ... we find that Congress intended violations of the automatic stay to be
        void rather than voidable. ... Treating an action taken in contravention of the automatic
        stay as void places the burden of validating the action after the fact squarely on the
        shoulders of the offending creditor. In contrast, treating an action taken in contravention
        of the automatic stay as voidable places the burden of challenging the action on the
        offended debtor. We think that the former paradigm, rather than the latter, best
        harmonizes with the nature of the automatic stay and the important purposes that it serves
         ... ' there are classes of cases over which a court has not, under the very law of its
        creation, any possible power ... In such cases the entire proceedings are coram non
        judice. ...'

Id. An order approving a claim founded on erroneous "purported creditor" status lies within

appellate court's remedial authority under York, Unifund CCRPartners v. Villa, 273 S.W. 3d

385 (Tex. App. - San Antonio, 2008) (upholding a trial court's imposition of sanctions on a

claimant attempting to collect debts that had already been discharged). Conversely, a trial court

has no authority to ratify a post-petition foreclosure without intervention by all interested parties,

see Barranza Family LimitedPartnership v. Levitas, Case No. 13-07-00470-CV (Tex.App. 13th

Dist. - Corpus Christi, 2009), or to rely on misconceptions about whether or not deed covenants

run with the land, Stout v. Rhodes, 373 S.W.2d 94 (Tex. Civ. App.—San Antonio 1963, writ

refd n.r.e.).

        In Cooke, the U.S. Supreme Court endorsed the doctrine of estoppel by deed by expressly

holding that the defendant-grantee "could not question the validity of their grantor's title at the

time of the conveyance to them ... claiming under the same grantor, unless, indeed, they claimed

under a paramount title, which they had acquired or connected themselves with." The

Supreme Court also specifically acknowledged exceptions to res judicata in Cooke that are

highly relevant to the paramount interests in title asserted in the instant case: "It is conceded that

the defendant M. E. Cooke was the wife of her codefendant J. H. Cooke... But it does not follow


that [the] judgment... could be rendered against Mrs. Cooke. The record disclosed nothing to



                                                  21
justify the subjection of her separate estate to such a liability, and there was error in the judgment

in this particular ... This does not involve the disturbance of the verdict, or a reversal of the

judgment in any other respect... The judgment will therefore be affirmed, except... against M.

E. Cooke; and that part thereof will be reversed as to her ... with a direction to the circuit court

to order the judgment to be modified so as to conform to the conclusion above announced." Id.

        In Long Beach Mortg., the U.S. Supreme Court rendered a decision implying that a

fundamental interest exists in lis pendens speech. There, a bankruptcy receiver sought to sell

certain real property, but could not complete the sale as a result of Long Beach's deed of trust,

which clouded title to the property. Long Beach refused to release its lien, and the Receiver filed

suit in Dallas County to clear title to the property, seeking declaratory judgment that the

:Receiver's lis pendens was valid and superior and that Long Beach's lien was therefore invalid

and of no force or effect concerning the Real Property. The Receiver prevailed in the trial court,

and despite three appeals, including to the United State Supreme Court, the trial court's judgment

upholding the lis pendens' validity and superiority was directly or indirectly affirmed.

As a general rule, whether a restrictive covenant runs with the law is a question of law. Id.

        The result in Long Beach is consistent with the state law rule that a real property

covenant runs with the land, and is enforceable according to the doctrine of estoppel by deed,

when it touches and concerns the land, it relates to a thing in existence or specifically binds the

parties and their assigns, it is intended by the parties to run with the land, the successor to the

burden has notice, and there is privity of estate between the parties when the covenant was made.

At common law, it is well settled that a purchase money lien is a type of property interest that is

capable of running with the land so as to bind transferees under the doctrine of estoppel by deed.

Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568, 570 (Tex., 1961) (noting that deed conveying



                                                  22
land subject to a lien for unpaid purchase money is treated as an executory contract); Johnson v.

Lockhart, 40 S.W. 640 (Tex. 1897) (applying executory contract rule to purchase money

dispute); see also, Davis v. Huey, 620 S.W.2d 561, 565-66 (Tex. 1981) (a grantee is "bound by

those restrictive covenants running with the property of which he has actual or constructive

notice," and is estopped from denying the recitals that appear in his chain of title). In cases where

the purchase money lien runs with the land, the lien holder enjoys a well settled common law

right of action to enforce estoppel by deed and to quiet title to the purchase money interest by

treating conveyances in derogation of the purchase money interests as executory in nature. Id. A ..

pendent lite purchaser can elect to surrender the land and sue to the seller for a breach of a title

warranty, or may negotiate to settle third party claims with the proceeds of a title insurance

policy, and the filings noticingthe lien are generallypresumed to enable the contracting parties .

to exercise whatever rights they already had. A property owner's use of a tortious interference

suit to enlarge a special warranty deed into a general warranty deed for transfer to a pendent lite

purchaser at the expense of the purchase money creditor is facially inconsistent with the liberal

construction the Texas Legislature has directed the state courts to apply, and is both

jurisdictionallyand constitutionally problematic where, as here, the only source of injury alleged

is lis pendens speech by a legal malpractice claimant and adjudged purchase money creditor. Cf,

Archer v. Blakemore. 367 S.W.2d 402, (Tex. App. Austin -1963); see also, Dynamic Publ'g &

Distrib. L.L.C. v. Unitec Indus. Center Prop. Owners Ass'n, Inc., 167 S.W.3d 341 (Tex. App.—

San Antonio 2005, no pet.); Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio 1997,

writ denied); PebbleBeachProp. Owners' Ass'n v. Sherer, 2 S.W.3d 283 (Tex. App.—San

Antonio 1999, pet. denied); Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985,

writ refd n.r.e.).



                                                  23
                              ARGUMENT AND AUTHORITIES

          I.      The Trial Court Orders Under Review Apply An Unconstitutional
                  Construction of The State's Interlocutory Appeal Statute In Section
                  51.014(b) Of The Texas Civil Practice And Remedies Code.

A.      The Open Courts Doctrine Of The Texas Constitution.

        The case presents issues important to the jurisprudence of Texas concerning the

Interrelationship between the Open Courts Doctrine and the TCPA insofar as a compelling

public policyjustification exists for liberal measures to deter suspect applications of the TCPA

mandate for automatic stay relief. Criswell v. Ginsberg & Foreman, 843 S.W.2d 304, 306-07

(Tex.App.—Dallas 1992, no writ). The Texas SupremeCourt has held that the languageof the

Open Courts Doctrine, "All courts shall be open, and every person for an injury done him, in his

lands, goods, person or reputation, shall have remedy by due course of law," Tex. Const, art. I,

section 13, provides a litigant a specific guarantyof a right of access to the courts that constitutes

a substantial right. Id. The legislature cannot arbitrarily or unreasonably interfere with a

litigant's right of access to the courts. Id. A law that practicallytakes away from either party to

litigation the constitutional right to a fair and impartial trial in the courts denies a remedyby due

course of law. Id. The legislature cannot abrogate the right to bring a well-established common

law cause of action without a showing that the legislative basis for the statute outweighs the

denial of the constitutionally guaranteed right of redress. Id. A litigant must show that he has a

cognizable commonlaw cause of action that the statute restricts. A litigant also must show that

the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the

statute. Id.


        Consistent with Criswell, the trial court entered its order under color of the interlocutory

appeal provisions of Section 51.014(a) and (b) of the civil practice and remedies code. The

Legislature's intent to enact an automatic stay obligations is evident from the text of subsection

                                                  24
(c), which states that "A denial of a motion for summaryjudgment, special appearance, or plea to

the jurisdiction .... is not subject to the automatic stay under Subsection (b) ..." The plain

meaningof the words "automatic stay" in subsection (c) indicates that the Legislature intended to

mandate stay provision analogous to those adjudicated by the Texas Supreme Court in York, Id.

       Also consistent with Criswell, Appellant claims ownership of a prima facie common law

right of action to quiet title to purchasemoney lien interests and restrictive covenants that run

with the land. Teal, Id.; cf, In the Matter ofEnergytec, Inc., — F.3d -, Case No. 12-41162 (5th

Cir. Dec. 31, 2013). The underlying purchase money covenant undoubtedly affected the value

and mode of enjoyingthe demisedpremises, in that the purchase was used to cover the down

payment and in that propertywould not have been enjoyed by Moroco Ventures but for

Appellant's decision to fund a part of the purchase price. See, Westland OilDevelopment Corp.

v. GulfOil Corp., 637 S.W.2d 903 (Tex. 1982). As burdens on the subject property, the

restrictive covenants of which Appellant is a beneficiary impact the property's value and

potential use in the eyes of prospective buyers. Id. The second lien agreement executed by the

parties in 2005 stated an intent that interests in recorded exceptions should run with the thing

demised- the land - and the exceptions recorded in the first deed of trust and lien agreement lies

squarely within the scope of the second deed of trust and lien agreement. See, InwoodN.

Homeowners'Ass'n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987). Both the first and second

agreements also reflected the intent to bind the lien grantees andtheir assigns, and to burden a

thing in existence - the land and its use. Id. When Bravenec purchased the property at

foreclosure, he expressly specifically agreed by his acceptance of the trustees' deed to honor the

exceptions notied in the first and second liens, so there is no question that Bravenec had notice.

Id.




                                                 25
        Lastly, regarding privity, the text of the first lien agreement manifests the general intent

of Moroco Ventures to reserve a class of interests that includes purchase money interests, and to

carve out those interests from the first lien.assignment to Rampseck and his assigns. Since the

burden of the latter covenant is on the property owner, the first lien grantee, and grantees of

inferior interests, the privity requirement is met as to the succession of ownership of the

burdened property when the second deed trustee conveyed to McKnight and Bravenec and when

the first lien servicers subrogated first lien interests to them after the foreclosure. In short,

Appellant is the owner of the benefit of recorded exceptions by virtue of horizontal privity of

estate with the property owner and.its first and second lien holders, and by virtue of vertical

privity of estate as a successor in interest through Moroco Ventures at the time of second lien

grant to McKnight and Bravenec see also, 9 RICHARD R. POWELL, POWELL ON REAL

PROPERTY, §•60.04[3][c][iii] (horizontal privity), and § 60.04[3][c][iv] (2010) (vertical

privity). Further, the documents creating the rights were all recorded. Wayne HarwellProps, v.

Pan Am. Logistics Ctr., Inc., 945 S.W.2d 216, 218 (Tex. App. - San Antonio 1997, writ denied)).

In summary, Appellant has a well settled, constitutionally protected, common law right of access

to the courts, within the meaning of York, Cooke, and LongBreach, to file court pleadings and lis

pendens notices. Cf Archer v. Blakemore, Id. The issue presented for discussion is therefore

whether the restriction of Appellant's common law right of action is unreasonable or arbitrary .

when balanced against the purpose and basis of the Legislature's grants of interlocutory appellate

jurisdiction in Section51. 014(a) and (b) of the Texas Civil PracticeAnd Remedies Code.

B.      Application Of the Governing Law

        Appellant disputes the reasonableness, andjurisdictional and constitutional grounds, of

the restrictions the trial court imposed on his common law right of action to enforce purchase

moneyliens. The text of the order states the following: "The Court finds that Courts have already
                                                   26
determined that the rightful owner of the Property is Edward Bravenec. This Court further finds

that in Federal Court Cause No SA-1 l-CI-414 styled Rowland Martin Jr. v. Charles Grehn et al,

the Court found that the 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, Moroco

Ventures, LLC or any successor in interests there to had any interest, legal or equitable in the

Property ... This Court further finds that despite judgments being rendered against Rowland J.

Martin, Jr. that he continues to interfere and cloud the title to the Property or contact potential

buyers and title companies to disrupt or disturb any potential sale of the property by its rightful .

. owner... Therefore it is the ORDER of this court that Rowland J. Martin [is] hereby enjoined by

from filing any document whatsoever with this court, any other court, the Bexar County Clerk's

Deed Records Office that in any way relates to Plaintiffs of the real property ... It is 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,' ...

 'Perfected Lis Pendens' or any like titled document." Temporary Injunction Order, at p. 1 - 2.

        In McKaskey v. McCall, 236 S.W. 432 (Tex. App: - El Paso, 1920), the court of appeals

concluded in an appeal for fundamental error involving lis pendens notices that the judgment

upholding the appellees' lis pendens notice that had been rendered by the trial court could not be

 sustained, and was fundamental error, on the issues submitted in the appellees' pleading. "The

trial court does not indicate in his order, overruling the motion for a new trial, the ground upon

which the order was made, nor does the ground upon which the order was made appear

 elsewhere in the record... The facts relied upon as distinguished from the conclusions of the

 pleader that he has a defense must be stated in the motion.... The first conclusion of law that the

 contract is void for uncertainty is not made a ground in the petition for cancelling the lease." Id.



                                                  27
       Applied to the latter undisputed evidence, McKaskey supports three points of error

demonstrating that the trial court misapplied the interlocutory appeal statute in Section 51.014(b)

on July 17, 2014 and again on December 8, 2014, and that the resulting restrictions on

Appellant's common law rights under color of the state's interlocutory appeal statute are

jurisdictionally and constitutionallyimproper when balanced against the stated purposes of the

Texas Citizens Participation Act and the Texas Civil Practice And Remedies Code. York, Id.

       Regarding the first point of error, the trail court's decision to give precedence to

proceedings on Appellees application for temporary injunctive relief under color of an under-

inclusive reading of the interlocutory appeal statute arbitrarily defeated the purpose of the Act.

The purpose of amending the interlocutory appeal statute to include provisions for TCPA stay

requirements is to effectuate the Act's cost savings and participatory objectives. Not unlike the .

automatic stay provisions discussed in York, the TCPA's automatic stay augment the benefit of

the interlocutory appeal by accelerating the disposition of dismissal controversies, and by

structurally limiting the cost burden for the defendantof defending the contestedsuit. Here, the

trial court's decision to prioritize temporary injunction relief for the Plaintiff of a contested suit,

and to suspend automatic stay requirements, momentarily turned the TCPA and its purpose on

their head. In theory, the doctrine of estoppel by deed can and should be applied to preclude

Appellees' from denying the existence of recorded exceptions to conveyances and warranties

that run with the land. In practice, the trial court's failure to promptly implement TCPA

automatic stay requirements temporarily disfranchised rights to speech and petition that the

TCPA was designedto protect in its injunction order, and later empowered the contested

plaintiffs to attempt to commence the verytrial proceedings that the Act was clearly designed to

postpone. Although the impact of the departure is mitigated in this case by the disintegration of


                                                   28
the temporary injunction by its own terms, Appellees' succeeded both in increasing the cost of

defending the underlying suit, and in postponing the ettlement of Appellant's claims.

        Regarding the second point of error, the restrictions imposed on Appellant's access to the

judicial process under color of the interlocutory appeal statute was not narrowly tailored to

further a legitimate governmental interest. United Healthcare Ins. Co. v. Davis, 602 F.3d 618,

627 (5th Cir. 2010).2 An existing restrictive covenant ofrecord was impaired bythe trial court's
application of the 2013 interlocutory appeal amendments to the civil practice and remedies code.

The text of the order justifies measures to preclude the continued assertions of a right to

redemption of the subject property by successors in interest of Moroco Ventures, but nowhere

does it specifically address enforcement of the various restrictive covenants that survived the

foreclosure sale; nor does it explain the justification for applying measures to deter supposed

abuse of the judicial process in the latter context. Cfi, Goadv Zuehl Airport Flying Community

Owners Association, /nc.; Case No. 04-11-00293-CV (Tex. App. - San Antonio, 2012)

(reversing vexatious litigant finding). In fact, each and every decretal clause in the injunction

order disfranchised civil procedures that are essential for due process and due course of law in

connection with the anticipated trial. Lastly, no legitimate governmental purpose is served by

applying the interlocutory appeal statute to allow Appellees to enlarge the special warranty estate

they acquired in the subject property into a general warranty estate without compensation for the

value of the purchase money interests. Overall, the trial court's process was equivalent in effect

to a Criswell turnover order as applied to a chose of action to enforce purchase money lien




2       Cf, Article I, Section 10, Clause 1 ("No State shall...pass any...Law impairing the Obligation of
Contracts"). Contracts Clause claims are analyzed using a three-step analysis: (1) the state law musthave
substantially impaired a contractual relationship; (2) the state's asserted justification for the impairment
must serve a significant and legitimate public purpose; and (3) the challengedlaw must be reasonably
necessary to achieve the public purpose. United Healthcare, Id.
                                                     29
interests. Cf, Energy Reserves Group, Inc. v. Kansas Power and Light Co, 459 U.S. 400 (1983)

(applying three-part test with a threshold inquiry into "substantial impairment").

       Regarding the third point of error, the trial court's application of the interlocutory appeal

statute irrationally abrogated the state's judicial policy against immunitizing estate attorneys

from accountability and putative liability for legal malpractice. This Court's decision in Zuniga

v. Grose, Locke, & Hebdon, 878 S.W. 2d 313, 318 (Tex. App. San Antonio 1994, writ refd),

underscores the need for measures to deter and sanction violations of TCPA's automatic stay

provisions comparable to those applied in other settings:

        For the law to countenance ... abrupt and shameless shift[s] of positions would give
         prominence (and substance) to the image that lawyers will take any position, depending
         upon where the money lies, and that litigation is a mere game and not a search for truth
         ... On balance, we conclude that the costs to the legal system ... outweigh its benefits.
     '", We hold that [the] assignment... is invalid.

Id. Not unlike Zuniga, the fact situation here revolves around an executor deed assignment to an

uninterested third party relating back to an unresolved legal malpractice dispute and a pattern of

role-reversing conduct by the assignor-attorney cross-defendant. In fact, Bravenec was a

formally undischarged attorney of record in Probate Case No. 2001-PC-1263 until March 19,

2014, and remains putatively accountable to Appellant along with his firm on that basis. In re

Liberty Trust Co., 130 B.R. 467 (W.D. Tex. 1991) (disregarding informal withdrawal of


3       To prove a prima facie case of legal malpractice, a litigant must demonstrate "that(1) the attorney
owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the
plaintiffs injuries, and (4) damages occurred." Belt, Id. Arguably, McKnight and bravenec failureto
contest tax suits against heirs of the Estate of King in proceedings involving property of the estate,
coupled with the withholding of compensation for a purchase money lien claim arising from a second lien
transaction that originated during an attorney client relationship, satisfies a prima facie case for legal
malpractice. Cf. Archer v. Blakemore, Id. (cancellation of deedused for in-kind payment of legal
expenses where land value exceeded quantum merit value of services provided); seealso, GulfCoast
Investment Corp. v. Brown, 821 S.W.2d 159 (Tex. 1991) (legal malpractice claim and equitable
tolling privileges arising from foreclosure sale).


                                                    30
undischarged attorney for status determination purposes). Allowing a former estate attorney of

record to profit from an assignment without consideration of purchase money liens that existed

during the attorney client relationship clearly discourages, rather than encourages, accountability

for conduct during the attorney client relationship. Cf, Belt v. Oppenheimer, Blend, Harrison &

Tate, Inc., Cause No 04-0681 (May 5, 2006) (noting that denying personal representatives the

right to sue for estate-planning malpractice would "essentially immunize estate-planning

attorneys from liability for breaching their duties to their clients."); and Bravenec v. Flores, Case

No. 04-11-00444-CV (Tex. App. - San Antonio, 2013).

     . In conclusion, the three above cited points of error suggest that the restrictions resulting

from the trial court's application of the interlocutory appeal statute was both arbitrary and

unreasonable when balanced against the objective of the TCPA's 2013 interlocutory appeal

amendment in safeguarding of expression and participatory interests of the citizen in the right to

free speech and to petition, Tex. Civ. Prac. & Rem. Code § 27.002; see Yiamouyjannis v.

Thompson, 764 S.W.2d 338, 340 (Tex. App.-San Antonio, 1988, writ denied), and that the

continuationof proceedings for temporary injunctive relief after the automatic stay took effect

violated the Open Courts Doctrine as applied in Criswell, Id. See, Emeritus Corp. v, Ofczarzak,

198 S.W.3d 222, 225-26 (Tex. App.- San Antonio 2006, no pet.),

          II.    The Trial Court Contravened Rule 683's Specificity Requirements

A.     The Applicable Law

       To obtain a temporary injunction, an applicant must show: (1) a cause of action, (2) a

probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the

interim. Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Under the rules that a temporary injunction is an extraordinaryremedy, the purpose of which is

to preserve the status quo of the litigation's subjectmatter on specific terms pending a trial on
                                                 31
the merits. It follows therefore that the appeal is jurisdictionally moot in part due to the entry and

disintegration of the injunction during the pendency of an automatic stay. Butnaru v. Ford Motor

Po., 84 S.W.3d 198, 204 (Tex. 2002).

       Even if Appellees' application for temporary injunction is considered on the merits, the

temporary injunction applicant bears the burden of production, and must offer evidence on each

of these elements. See In re Tex. Natural Res. Conservation Comm 'n, 85 S.W.3d 201, 204 (Tex.

2002). Further, the governing law does not permit temporary injunctive relief without the

showing of irreparable harm otherwise required by equity. Town ofPalm Valley v. Johnson, 87

S.W.3d 110, 111 (Tex. 2001) (per curiam) (holding that an applicant seeking a temporary

injunction was not exempt from traditional requirement of irreparable harm). The decision to

grant or deny an injunction rests within the trial court's sound discretion. Butnaru, 84 S.W.3d at

204. A court of appeals will reverse the trial court's ruling only if it has abused that discretion.

Id. A trial court abuses its discretion only if it reaches a decision so arbitrary and unreasonable

that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or

apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 888 (Tex. 2010).

        Appellate review of the trial court's decision is limited to the validity of its temporary

injunction order. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). With respect to legal

requirements, however, "[t]he law demands clear and complete orders granting injunctions."

Webb v. Glenbrook Owners'Ass 'n. 298 S.W. 3d 374, 384 (Tex. App. - Dallas 2009, no pet.).

"The injunction must spell out the details of compliance in clear, specific and unambiguous

terms so that such person will readily know exactly what duties or obligations are imposed upon

him." Drew v. UnauthorizedPractice ofLaw Comm., 970 S.W. 2d 790 , 793 (Tex. App. Austin

- Dallas - 1979, no writ.). As general rule, "an injunction should inform a defendant of the acts



                                                  32
he is restrained from doing, without calling on him for inferences or conclusions about which

persons might well differ and without leaving anything for further hearing [and] should not be

framed so broadly as to prohibit the enjoyment of lawful rights." Hellinic Inv. V. Kroger Co.,

166 S.W. 2d 861, 866 (Tex. App. -Houston [1st Dist.] 1977, no writ).

B.     The Injunctive Order Rests On Conclusions Of Law Arising From A Pleading That
       Failed To State A Justiciable Cause Of Action (Fourth Point Of Error).

       "To obtain an injunction a party must first assert a cause of action." Cooper v. Litton

Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet. denied) (citing

Brittingham v. Ayala, 995 S.W.2d 199, 201 (Tex. App.—San Antonio 1999, pet. denied)). The

cause of action plead by Appellees deprived fair notice of a claim upon which relief can be

granted because an injunction is not a cause of action in itself but an equitable remedy, Id., while

an application to cancel a lis pendens does not qualifyas a causeof action at law for affirmative

relief standingalone because the purpose of the notice is simplyto disclose pending litigation.

Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex. App.—Houston [14th Dist.] 1991, no writ).

Applying the latter authorities, Appellant asserts that the trial courterred in granting injunctive

relief unsupported by pleadingwith allegations to support a recognized cause of action. Manuel

v. Spector, 712 S.W.2d 219, 221 (Tex. App.—San Antonio 1986, orig. proceeding).

       A trial court has no power to enter judgments and orders on the behalf of the court in

which he or she sits if that court lacks jurisdiction over the parties, over the subject matter and

legal capacityto act. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008) ("A

court has no jurisdiction over a claim made by a plaintiffwithout standing to assertit.");

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (subject matter and capacity to

act). "A court's jurisdiction to render judgment is invoked by pleadings, and a judgment

unsupported by pleadings is void."Moneyhon v. Moneyhon, 278 S.W.3d 874, 878-9 (Tex.

                                                  33
App.— Houston [14th Dist.] 2009, no pet.)("petition must give fair and adequate notice of the

claims being asserted..." and it was error to grant relief on a breach of duty when no claim of

breach was plead or tried by consent)..

        At the temporary injunction hearing, Appellees' asserted the conclusion that Appellant's

interests in the subject property were extinguished by res judicata. The proof, however,

consisted solely of Appellant's original complain in Martin v. Grehn, Case No. SA 1l-CV-0414

(W.D. Tex. 2013), along with numerous other statements unsupported by reference to chain of

title evidence or recorded exceptions to conveyances and warranties, thus depriving Appellanbt

notice of the true nature of their claim. "Texas is a 'fair notice' state, which means that all parties

are entitled to fair notice of a claim." In re M.B.B-Y., No. 04-10-00541-CV, 2011 LEXIS 2520,

(Tex. App.—San Antonio, April 6, 2011, no pet.) (mem. op.). The "fair notice" standard for -

pleading looks to whether the opposing party can ascertain from.the pleading the nature and

basic issues of the controversy and what testimony will be relevant, and holds that a petition is

adequately pleaded only if one can reasonably infer a cause of action from what is stated in the

petition. Contrary to the rule, the inference here is that Appellees failed to plead, and the trial

court failed to adjudicate, a cause of action for tortuous interference upon which relief can be

granted. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Boyles v.

Kerr, 855 S.W.2d 593, 601 (Tex. 1993).4



4        Mere averments contained in pleadings are not proper evidence and will not sustain a trial court's
action. Laidlaw Waste Sys. (Dallas), Inc. v. CityofWilmer, 904 S.W.2d 656, 660 (Tex. 1995)
("Generally, pleadings are not competent evidence, even if sworn or verified.").In Bart Turner &
Associates v. Krenke, No. 3:13-cv-2921-L, 2014 WL 1315896 (N.D.Tex. Mar. 31, 2014), the court found
that allegations which it described as "bare-bone" and "threadbare " were wholly conclusory, and did not
meet the "fair-notice" standard of Tex. R. Civ. P. 91(a). See also, GoDaddy.com v. Toups, No. 09-13-
00285-CV, 2014 WL 1389776 (Tex.App.-Beaumont Apr. 10, 2014) (unpublished) (noting that Rule 91a
is analogous to Federal Rule 12(b)(6) and citing case law applying Rule 12(b)(6)to set forth the standard
for a motion to dismiss).

                                                    34
C.      The Res Judicata Provisions Of The Order On July 17, 2014 Do Not Establish A
        Probable Right To Relief Based On The Absence Of Restrictive Covenants That
        Run With The Land, And Depart Both From Fifth Circuit Jurisprudence (Fifth
        Point Of Error).

        Appellant relies on Plaintiffs Exhjbit      and Defendant's Exhibit       to refute the

contention that the trial court has jurisdiction to give res judicata effect to the federal court

judgment in SA 1l-CV-0414 as an adverse ruling on purchase money issues. Plaintiffs Exhibit

     consisting of a judgment by the Hon. Harry Lee Hudspeth in Case No. SA 1l-CV-0414

establishes that the court of competent jurisdiction for the transaction that Appellant litigated as

successor in interest to Moroco Ventures, LLC is the U.S. District Court for the Western District

Of Texas. Defendant's Exhibit        consisting of a judgment by the Hon. Leif M. Clark in Case

No. 05-80116 indicates that the court of competent jurisdiction for the transaction Appellant

litigated as purchase money creditor of Moroco Ventures, LLC and its assigns is the U.S.

Bankruptcy Court for the Western District of Texas. Here, there were few or no pleadings citing

legal authority to support that conclusions of law about res judicata and vexatious litigant status

that appear in the decretal clauses of the trial court's orders. This runs afoul of Rule 91(a)'s fair

notice requirements. For the most part, these arguments are fatally flawed because they

improperly conflate multiple property transactions, involving multiple parties with different

rights and different cases in different courts. The Fifth Circuit has expressed disapproved this

approve to res judicata argument. See, Anderson v. LawFirm ofShorty, Dooley & Hall, (E.D.

La. Feb 17, 2010) affirmed in 393 Fed. Appx. 214 (5th Cir. Aug. 26, 2010). Appellees'

arguments about res judicata and vexatisou litigant status are entirelyunavailingwhen

considered in the context of their accountability under the doctrine of estoppel by deed.

         In order determine whether two suits involve the same cause of action, the federal courts

use the "transactional" test. Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571


                                                   35
(Cir. 5th 2005). Under the transactional test, a prior judgment's preclusive effect extends to all

rights of the plaintiff with respect to all or any part of the transaction, or series of connected

transactions, out of which the original action arose. Id. at 395-96. Whether a group of facts

constitutes a "transaction" or "series of transactions" is determined pragmatically, weighing

whether the facts are related in time, space, origin, or motivation. Id. The critical issue is

whether the two actions are based on the "same nucleus of operative facts." Id. The res judicata

effect of a prior judgment is a question of law that a court reviews de novo. Proctor & Gamble

Co., v. Amway Corp., 242 F. 3d 539, 546 (5th Cir. 2001). A judgment adjudicating one

transaction has no res judicata effect to preclude enforcement of rights arising from a transaction

founded on a separate and collateral nucleus of facts. Hornbeck Offshore Servs., L.L.C. v.

Salazar, No. 11- 30936, 2013 WL 1437675 (5th Cir. Apr. 9, 2013) (declining to apply res

judicata effect to post-order transaction).

        In reviewing the trial court's orders on July 17, 2014 under the governing law of res

judicata, it is clear that the trial court made no attempt to pragmatically differentiate the lis

pendens transactions forming the basis of Appellees' toritious interference claim, and that the

divergence of operative facts is fatal to Appellees' res judicata analysis. The parties to the second

lien transaction recorded in 2005, which involved McKnight and Bravenec as lien assignees,

were not identical with the parties to the purchase money transaction executed in 2003, which

involved only the seller Roy Ramspeck. Whether federal district court order on post-judgment lis

pendens notices in the prior action in Martin v. Grehn, Case No. 13-50070 (5th Cir. 2013) was

rendered by a federal court of competentjurisdiction is an open question under on-going review

in Martin, v. Bravenec, Case No. 14-50093 (5th Cir., Notice of Appeal filed January 27, 2014).

The prior action in Martin v. Grehn was continued without a finaljudgment in Martin v.



                                                   36
Bravenec with respect to federal court jurisdiction over lis pendens notices referencing Probate

Case No. 2001-PC-1263. Whereas the litigation in Martin v. Grehn adjudicated a transaction

involving lien rights granted by Moroco Ventures, and foreclosure rights executedby McKnight

and Bravenec; the transaction referenced in the lis pendens notices in the instant litigation

involves purchase money interests that werereserved in recorded exceptions to conveyances and

warranties.


       Thus, the trial court's order are fatally flawed in that there was no pragmatic weighing of

the factors pertinent to time, space, origin, or motivation indicated by the trial court's orders on

July 17, 2014. Under the circumstances, moreover, the federal law rule of decision is supplied

not by the doctrine of res judicata, but by the law of the casedoctrine which confers discretion to

disregard a prior misapplication of law in order to avoid manifest injustice. Thus, the trial court

erred in deferring to the lower federal courts' choice of law on issues about contractual

interference and vexatious litigant status that are fundamentally unrelated to the deed exceptions

•and purchase money transactions that from the basis of Appellees' contractual obligations under

the doctrine of estoppels by deed. Appellees have not shown that the failure to issue the

injunction would result in irreparable harm to any probable right of recovery theyhad on their

cause of action or that Appellant's conduct would render any judgment they might obtain

ineffectual. Therefore the Court should reverse the trial court, dissolve the injunction, and

declare the trial court's order void.

D.      The Purchase Money Provisions Of The Injunction Order Have No Specific Basis In
        The Pleadings And Testimony Of Record, And Instead Rest Solely On Unsupported
        Conclusions Of Law And Unwarranted Presumptions About Irreparable Harm
        (Sixth Point Of Error).

        Lastly, there were also no pleadings to support the conclusion that restrictions were

necessary because the outcome would have been different if the lis pendens filings and purchase

                                                  37
money lien pleadings in 2014 had never been filed. "[A]n injunction will not lie to prevent an

alleged threatened act, the commission of which is speculative and the injury from which is

purely conjectural." Markel v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.—San Antonio

1996, no writ). Injunctive relief is ordinarily available if a wrongful act gives rise to imminent

and irreparable harm for which there is no adequate remedy at law. Jim Rutherford Invs., Inc. v.

Terramar Beach Cmty. Ass'n,25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied). To obtain injunctive relief, one must generally establish the existence of imminent

harm. Operation Rescue-Nat'I v. Planned Parenthood ofHouston & Se. Tex., Inc., 975 S.W.2d

546, 554 (Tex. 1998);). "Fear of a possible injury is not sufficient." Frey v. DeCordova Bend

Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983).

       A "purchaser pendente lite" sustains no harm from a lis pendens notice filed during the

pendency of quiet title litigation. Rio Bravo Oil Co. v. Hebert, 106 S.W.2d 242, 247 (Tex. 1937).

Although the general rule is that "a covenantto pay an encumbrance does not run with the land,"

El Paso Refinery, LP v. TRMIHoldings, Inc. (In re El Paso Refinery, LP), 302 F.3d 343 (5th Cir.

2002), a property owner is generallycharged with actual notice where recitals in his chain of title

indicate title is encumbered by restrictive covenants running with the law, and that the actual

notice so afforded renders moot the issue of whether constructive notice was achieved through a

lis pendens filing, see e.g. Urban Renewal Agency, Id. (finding trial court's judgment was

improper, and reversing so as to enjoin use of propertyin violation of covenants runningwith

land); Davis v. Huey, 620 S.W.2d 561, 567 (Tex. 1981) (constructive of actual notice required).

Thus, where a creditor who has provided purchase money has recorded an express lien on the

land, the general rule is that he holds the superior titleuntil purchase moneydebts are paid which

cannotbe defeated by foreclosure of an inferior securityinstrument or statute of limitations bars.



                                                 38
Johnson v. Lockhart, Id. The omission of pleadings to address these dispositive points of law is

indicative of a fatal legal insufficiency in the Appellees' pleadings. Lastly, the available evidence

shows that Appellee Bravenec secured temporary injunctive relief in May 2914 by raising fact

issues about Appellant's alleged indigence which he later abandoned in order to oppose

Appellant's formal indigency affidavit. The latter admission against interest during the

indigency contest supports the conclusion that the injunction order was legally insufficient as a

basis for finding irreparable harm caused by the filing of purchase money lien notices. Goad; Id.

  III.     The Trial Court Misapplied Law Governing TCPA Burden Shifting Procedures.

A.       The Applicable Law.

         Appellant submits that Appellees are also grossly mistaken in their assumption of law

that a case for tortious interference lies - during the pendency of a TCPA automatic stay - to

exempt a contract of sale from TCPA compliance at the expense of a recorded purchase money

lien of a former client that runs with the land. The Texas Citizens Participation Act was enacted

"to encourage and safeguard the constitutional rights of persons to petition, speak freely,

associate freely, and otherwiseparticipate in government to the maximum extent permittedby

law and,,at the same time, protect the rights of a person to file meritorious lawsuits for

demonstrable injury." TEX. CIV. PRAC. & REM. CODE § 27.002. (Tab A.) Courts are

instructed to "construe [the statute] liberally to effectuate its purpose and intent fully." Id. §

27.011(b). Against this backdrop, the Court's inquiry in this review is twofold:

         (i)    Did Appellant show "by a preponderance of the evidence that
                plaintiffs' suit [wa]s based on, relate[d] to, or [wa]s in response
                to exercise of the right of free speech...?"

         (ii)    Did plaintiffs marshal "clear and specific evidence of a prima
                facie case for each essential element of the claim in question?"




                                                   39
TEX. CIV. PRAC. & REM. CODE § 27.005(b) and (c). Both of these are questions of law this

Court reviews denovo. Farias v. Garza, 426 S.W.3d 808,'820 (Tex. App.—San Antonio 2014,

pet. filed May 6, 2014); Sierra Club v. Andrews County, 418 S.W.3d 711, 715 (Tex. App.—El

Paso 2013, pet. filed March 24, 2014).

B.     The Face Of Appellees' Pleadings Establish That Their Suit Is Based On, Related
       To, And In Response To The Exercise Of Rights To Free Speech And To Petition
       (Seventh Point Of Error).

       With only two exceptions, the TCPA provides that a trial court "shall dismiss a legal

action against the moving party if the moving party shows by a preponderance of the evidence

that the legal action is based on, relates to, or is in response to the party's exercise of... the right

of free speech." Farias, Id.; Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 723 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied). The exception: "The court may not dismiss a

legal action under this section if the party bringing the legal action establishes by clear and

specific evidence a prima facie case for each essential element of the claim in question. Id. at

723-24; TCPA § 27.005(c); see also Farias, 426 S.W.3d at 813. (reversing trial court's refusal to

dismiss). The other exception is applicable to exemptions from the Act, for which the proponent

of the exemption bears the burden of proof. '"Exercise of the right of free speech' means a

communication made in connection with a matter of public concern." TCPA § 27.001(3); Rehak,

404 S.W.3d at 723. Among other things, a '"[m]atter of public concern' includes an issue related

to ... the quality of services and government...." Id. § 27.001(7);Rehak, 404 S.W.3d at 723.

        Under the reasoning followed in Farias, Appellant's threshold burden to demonstrate by

a preponderance of the evidence that plaintiffs' claims are "based on, relate to, or are in response

to appellants' exercise of the right of free speech" wasmet at the hearing on July 9, 2014 by the

admission into evidence of his "Perfected Lis Pendens Noticing Purchase Money Lien Claims."



                                                   40
Young v. Krantz, 2014 Tex. App. LEXIS 5703 at *6 (Tex. App.—Dallas 2014, n.p.h.); Better

Bus. Bureau ofMetropolitan Dallas v. BHDFW, Inc., 402 S.W.3d 299, 307 (Tex. App.—Dallas

2013, pet. denied). Further, Appellees' petition specifically alleging that their suit was based on

lis pendens speech involving legal services and litigation alleging improprieties by the judicial

branches of state and federal government government in Martin v. Grehn, Case No. 14-50070,

essentially admits that their suit targets speech and petitions for judicial redress of grievances.

Thus, the preponderant evidence consisting of Appellant's perfected lis pendens notice and

Appellees' pleadings of record and litigation-related exhibits together indisputably establish that

the rights implicated by Appellees suit clearly touch and concern multiple matters of public

concern. The major issue in Martin v Grehn, though not a live issue in this case, arise from

alleged forum shopping by McKnight and Bravenec in the court of the presiding judge of the

foreclosure proceeding in 2006, who coincidentally received campaign contributions from

Bravenec during the term in which the foreclosure occurred. Whether a judge has an interest in

the subject matter of case before him represents a constitutional issue of public concern of the

same nature as the speech interests this Court intervened to protect in Farias, Id.; cf, Rocha v.

Ahmad, 662 S.W.2d 77 (Tex. App.~San Antonio 1983, no writ) (noting theoretical possibility of

financial interest disqualification based on campaign contribution by a party who is an attorney).

A litigant's.liberty interests in free speech and the right to petition are particularly protected as a

matter of public concern "[w]here a person's good name, reputation, honor or integrity is at stake

because of what the government is doing to him..." Wisconsin v. Constantinueau, 400 U.S. 433,

437, 91 S. Ct. 507, 510, 27 L.Ed. 2d 515 (1966); cf, Young, 2014 Tex. App. LEXIS 5703 at *14.

        In response, Appellees failed to rebut the applicability of TCPA safeguards. Farias, Id.
                                                    i

At the temporary injunction hearing, Appellees implied that TCPA protection is unavailable on



                                                  41
the facts of this case because Appellant's lis pendens speech was subject to preclusion under the

doctrine of res judicata, and that the subject matter of the real estate controversy is exempt from

coverage. The flawed logic of plaintiffs' argument has already been considered and rejected by

the Courts that have reviewed the question. In re Lipsky, Al1 S.W.3d 530, 543 (Tex. App.—Fort

Worth 2013, orig. proceeding [mand. pending]) [emphasis added]; see also Kinney v. BCGAtty.

Search, Inc., No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at *15-16 (Tex. App.—Austin,

April 11, 2014, n.p.h.). Further, the commercial exemption is applicable only where the

defendant is a market participant engaged in a commercial transaction, Newspaper Holdings, Id.,

a threshold criteria clearly not met by this case. Id. Under the latter circumstances, Appellees

cannot escape their statutory burden to bring forth "clear and specific evidence" below by

arguing that Appellant must first prove a negative —that his alleged lis pendens speech and

litigation were non-frivolous and mnon-commercial. Because the preponderant evidence

indisputably establishes that plaintiffs' suit fell within the scope of the TCPA, the burden shifted

to plaintiffs to establishby "clear and specific evidence" a prima facie case for each essential

element of their claims. Farias, Id.

C.     Appellees Failed To Offer "Clear And Specific Evidence" To Substantiate Each
       Element Of Their Cause Of Action (Eight Point Of Error).

       1.      The Applicable Law

       The TCOA required Appellees to bring forth "clear and specific" evidence that, unaided

by inferences, would establish each essential element of each their claims. Farias, Id. The TCPA

requires this Courtto dismiss plaintiffs' claims unless plaintiffs brought forth clear and specific

evidence of a prima facie case for each essential elementof the claim in question. TCPA §

27.005(c); Farias, 426 S.W.3d at 813 (reversing trial court's refusal to dismiss); Rehak, 404

S.W.3d at 723. Whether the trial court should have granted a TCPA motion to dismiss is a


                                                 42
question of law based on the evidence before the trial court. TCPA § 27.006(a); Sierra Club, 418

S.W.3d at 720. On questions of law such as these, this Court renders the judgment that the trial

court should have rendered. TEX. R. APP. P. 43.3; Sierra Club, 418 S.W.3d at 720.

      . The TCPA provides no guidance as to the quantum of proof necessary to constitute "clear

and specific evidence," therefore in Farias the Court gave these terms their ordinary meaning:

" 'Clear' means 'free from obscurity or ambiguity,' 'easily understood,' 'free from doubt' or

'sure.' 'Specific means 'constituting or falling into a specific category,' 'free form ambiguity' or

'accurate.' 'Clear and specific has also been described as evidence that is 'unaided by

presumptions, inferences, or intendments." Farias, Id. at p. 813-814. See Rehak, 404 S.W.3d at

726. ("clear and specific evidence" requirement means that the non-movant must satisfy an

"elevated" evidentiary standard under § 27.005). The operative standard is whether plaintiffs

brought forth "a minimum quantum of clear and specific evidence that, unaided by inferences,

would establish each essential element of the claim in question if no contrary evidence is

offered." Farias, 426 S.W.3d at 814 [emphasis added], citing Duncan v. Butterowe, Inc., A1A

S.W.2d 619, 621 (Tex. App.—Houston [14th Dist.] 1971, no writ).5
       2.       Application Of The Governing Law

       The sufficiency of the Appellees' pleadings and the trial court's non-dismissal order is

controlled by case law authority in Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012,

pet. denied) (applying TCPA case to trial court denial of motion to dismiss legal action in

response to criticism about the quality of legal services), and Newspaper Holdings, Id. The Avila

5        A plurality of courts hold that adverse inferences may not be considered in determining whether
"clear and specific evidence" has been produced to overcome a motion to dismiss under the Citizens
Participation Act. See,Walker v. Schion, 420 S.W.3d 454, 457 (Tex. App.—Houston [14thDist.] 2014,
n.p.h.); Rio GrandeH20 Guardianv. Robert MullerFamilyP'ship. Ltd., No. 04-13-00441-CV, 2014 WL
309776, at *2 (Tex. App.—San Antonio January 29, 2014, n.p.h.); Sierra Club, 418 S.W.3d at 715
Fitzmaurice v. Jones, 417 S.W.3d 627, 632 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Alphonso v.
Deshotel, 417 S.W,3d 194, 197-98 (Tex. App.—El Paso 2013, no pet.); and Rehak, 404 S.W.3d at 727.

                                                  43
court held that a party engaged in speech about the quality of services offered in the marketplace

is entitled to TCPA protection, even when the content of the speech relates to legal services.

Avila, Id. The Newspaper Holdings court held that under the law tortious interference, "merely

inducing a contract obligor to do what it has a right to do is not actionable interference." Id. The

NewspaperHoldings court reversed and rendered dismissal relief there because "Nothing in the

record suggests that [appellants] influenced the [third party contractors] to do anything other than

exercise [their] option[s]. [Plaintiffs] therefore fail to sustain their burden to make a prima facie

case of interference with a contractual obligation." Id. If Appellant is correct in his contention

thatthe law of tortuous intereference does not recognize a indepdent cause of action for lis

pendens abuses, the Appellees entire case is a non sequitur for TCOA purposes. But based on the

Court's ruling in Farias,-even if such a cause of action is found to exist, Appellees failed to

substantiate it with proof supporting "each element of every claim asserted with clear and

specific evidence." TEX. CIV. PRAC. & REM. CODE § 27.005(b), (c); Farias, 426 S.W.3d at

813 [emphasis added].

       Contractual Rights. The threshold element for a case of tortuous interference with

contractual relations calls for proof of an existing contract. Newspaper Holdings, Id. In their

original petition, Appellees alleged that "Martin's continued filings of lis pendens and other

documents, all without merit, have prevented Plaintiff from selling 1216 West Ave. to a buyer

since September 2013. A title company refuses to insure the transaction until a lis pendens is

removed." Plaintiffs Original Petition, atpara. 20. However, deed records referring to Torralba

Properties filed by Bravenecafter the hearing on July 9,2014 suggest that Appellees erroneously

plead interference with an existing contract, when in fact the contract contemplated by the

tortuous interference claim they plead was either non-existent or executory at the time the trial



                                                  44
court first granted temporary injunctive relief on May 13, 2014 and later on July 9, 2014. See

Appendix: If so, Plaintiffs' pleading of tortious interference with contractual relations necessarily

fails because it does not make clear whether plaintiffs allege interference with existing contracts

or interference with prospective business relations—distinct torts of which the elements are

different. The cognizable evidence of record on contractual rights consists of recorded

exceptions and restrictive covenants in favor of Appellant's purchase money lien claim from

which one can reasonably infer that any contract claimed by Bravenec is executor in nature.

        In either case, Appellees references to "a buyer" and a title company" are entirely .

unsupported evidence:- clear and specific or otherwise - to substantiate the contract element of

the tortuous interference claim. Here as in McKaskey, Appellees' pleadings of record refer to

other litigation but fail in those references to demonstrate the absence of restrictive covenants on

various points for which they bear the burden of proof, and in fact, the docket evidence from

Martin v. Grehn they rely upon for affirmative relief specifically confirms the existence of

recorded exceptions to conveyances and warranties. On May 13, 2014, for example, Appellees

commenced their suit by alleging that Appellant had filed notices in deed records and had also

communicated directly with an unnamed contracting party whom they identified as the original

pendent lite purchaser. On July 9, 2014, Appellees tendered docket records from in Martin v.

. Grehn that specifically refer to recorded exceptions, and simultaneously waived objections to the

admission of Judge Clark's order for the bankruptcy court of August 10, 2012. On July 17, 2014

and December 8, 2014, Appellees argued anecdotally that they had no duty to comply with

automatic stay requirements in Section 51.014(b) of the civil practice and remedies code, despite

satisfaction of the statutory conditions of a notice of appeal and an order denying a TCPA motion

to dismiss. According to Appellees, they were under no duty to refrain from proceeding because



                                                 45
no court had ordered them to do so. For all the reasons above, Appellees' theory of tortious

interference fails on the first element the prima facie case because there is no evidence of a

contract from which to reasonably establish that Appellant's alleged interfering conduct actually

disabled the contracting parties from negotiating the sale of the subject property from Bravenec

to Torralba Properties, Inc. or from securing releases from third party investors.

        Interference. Regarding the element of interference, it is not clear what justification

Appellees rely upon to support exceptions from the doctrine of estoppel by deed; and they offer

no specific evidence to substantiate their presumptions about prudential standing to dispute

purchase money covenants that arguably ruriwith the land. Teal, Id. In contrast, the proposed

treatment of Appellant's prescriptive rights is fully consistent with the Court's analysis of

restrictive covenants in Stout v. Rhodes, 373 S.W.2d 94 (Tex. Civ. App.—San Antonio 1963,

writ refd n.r.e.) for two reasons. First, Stout merely held that the "subject to" clause referring to

the restrictive covenant in that case were "words of notice," and that the "subject to" clause in

question did not estop the grantee from disputing the "validity and subject matter of the "restrictive

covenant in question. Unlike the restrictive covenant in Stout, the prescriptive rights here pertain

to affirmative property interests in a purchase money estate that runs with the land. Second, the



6       Property "excepted" or"reserved" under a deed is"never included inthe grant" and is
"something to be deducted from the thing granted, narrowing and limiting what would otherwise pass by
the general words of the grant." King v. First Nat'IBank ofWichita Falls, 192 S.W.2d 260, 262 (Tex.
1946). See Cockrellv. Tex. GulfSulphur Co., 299 S.W.2d 672-676 (Tex. 1956) ("[A] warranty deed will
pass all of the estate owned by the grantor at the time of the conveyance unless there are reservations or
exceptions which reduce the estate conveyed," in which case the "subject to" clause defines the estate
conveyed, and the nature, extent and character of such estate). Reservations must be made by "clear
language," and courts do not favor reservationsby implication. Monroe v. Scott, 707 S.W.2d 132, 133
(Tex. App.—Corpus Christi 1986, writ refd n.r.e.). Exceptions "must identify, with reasonable certainty,
the property to be excepted from the larger conveyance." Angell v. Bailey, 225 S.W.3d 834, 840 (Tex.
App.—El Paso 2007, no pet.). However, special rules of constructionare applied where special
relationship are involved. Estate ofGriffin v. Sumner, 604 S.W.2d 221, 228 (Tex..App.~San Antonio
1980, writ refd n.r.e.) ("different instmments whereby a single purpose or transaction is consummated are
to be taken together as one contract.").

                                                   46
statute of limitations for asserting claims about breach or rescission of a deed covenant arguably

precludes Appellees from asserting claims to rescind recorded exceptions that they earlier failed

to timely assert after those claims first accrued in 2006.        Considering limitations bars, it appears

that Bravenec and his assignees are both barred and collaterally precluded from contesting the

enforceability of deed exceptions in any manner. Thus, there is no conflict between the proposed

application of the doctrine of estoppel by deed here and the governing law in Teal, Id.

        Proximate Causation. Regarding the element of proximate causation, there was no

material evidence offer to support this element. In HMC Hotel, the Texas Supreme Court

reviewed the resolution of liability questions that has been submitted to the jury under a

proximate-cause standard, which was held to include two elements: cause in fact and

foreseeability. Akin, Gump, Strauss, Hauer &Feld, L.L.P.v. Nat'lDev. and Research Corp., 299

S.W.3d 106, 122 (Tex. 2009). The cause-in-fact element is satisfied by proof that (1) the act was

a substantial factor in bringing about the harm at issue, and (2) absent the act ("but for" the act),

the harm would not have occurred. Id. These elements cannot be established by mere conjecture,

guess, or speculation. Doe v. Boys Clubs ofGreater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.

1995). Applying the governing standard in HMC Hotels, the Supreme Court concluded from the

record and despite expert testimony about the availability of title insurance that the deal failed


7 .     In May 2006, Bravenec executed the first of two post-petition foreclosure sales to seize the
subject property of Moroco Ventures' Chapter 11 Bankruptcy Case No. 06-50829. McKnight and
Bravenec contended that the foreclosure conferred constructive possession of the subject property to
them, and converted the status of the debtor, Moroco Ventures, to that of a tenant at sufferance. The
Bankruptcy Court invalidated the foreclosure, and awarded conditional lift stay relief in lieu of claims
breach or rescission of title warranties which they could have asserted. Arguably, the running of the
limitation period for asserting a claim to rescind the exceptions clause obligations began to run when the
Bankruptcy Court entered its conditional lift stay order in Case No. 06-50829, and thereby effected a
constructive eviction of the grantees sufficient to trigger the four year limitations period for title warranty
claims. See also, Tex. Civ. Prac. & Rem.Code § 16.051 (four year period). On these facts, the limitations
period for Appellees' exception clause claims accrued in May of 2006, and had already expired by
December 5, 2014, and later on December 27, 2014, when the trial concluded mistakenly that Appellees
had been harassed by lis pendens activities in derogation to its judgment.

                                                      47
not because of a letter transmitted by a defendant-lease tenant asserting the existence of a right of

first refusal, but because the seller was unable to convince the tenant to voluntarily relinquish its

rights. "The impossible does not become possible merely because someone wishes or works in

vain to make it so. ... Testimony about what the insurers might have done differently is

conclusory—"[b]are, baseless opinions [that] will not support a judgment even if there is no

objection to their admission in evidence." See City ofSanAntonio v. Pollock, 284 S.W.3d 809,

816 (Tex. 2009); see also Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 183 (Tex.

1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)

(testimony that a property owner could have avoided foreclosure had a tenant not vacated was

"so weak as to do no more than create a mere surmise or suspicion of its existence and in legal

effect, is no evidence."). The Supreme Court also concluded that the title-insurance witnesses'

testimony about the effect of Host's letter on the transaction is not tantamount to testimony that

the outcome would have been any different if the right of first refusal claimant had not sent its

letter.


          The record in this case does not support a departure from precedent in HMC Hotels.

Appellees offered no evidence to rebut the inference that the cause of nondisbursement of escrow

funds is the self-interest of the buyer and the title agent in reserving the right to hold Bravenec in

default for conveying a general warranty deed subject to title defects and clouds on title.. The

only testimony offered to support Appellees' theory of proximate causation at all consisted of

statements by Bravenec unsupported by corroborating testimony from title company sources or

any other source to show that the outcomein terms of the buyers liability would have been

different if the lis pendens notices prior to 2014 had never been filed. Under the circumstances,

Bravenec's own post-hearing deed records filings provide conclusive evidence that Appellees,



                                                  48
and their privies including Torralba Properties, LLC, the Texas Community Bank and J.J.

Bravenec & Sons, were all able to exercise their rights without judicial intervention in a final
                                                           o


order on Appellees' claim for tortious interference.

        Damages. Regarding damages, it is not clear what standing Appellees have to claim

damages if the contract rights they possess or possessed are executor in nature. From Appellees

allegations, it appears that the buyer who received a deeded interest in the subject property

deposited the sale price with the closing agent, and that the title company that served as closing

agent for the transfer has assumed the posture of a resulting trustee by refusing to insure the

transaction and release the sales proceeds being held in escrow until the dispute concerning

Appellant's purchase money interests is resolved. Because the proximate cause of the title

company's refusal to disburse sales proceeds is Bravenec's own conduct is attempting to retain

the value of sale without consideration for the release of Appellant's prescriptive rights, the grant

of injunctive relief to enjoin lis pendens and lien notices will not remove the clouds on his

transferee's special warranty deed estate. Bravenec's conduct is clearly wrongful from this

perspective because he indisputably assented to the above referenced recorded exceptions to

conveyances and warranties relating back to a purchase money transaction in 2003 are recorded

in Bexar County Deed Records in Book 16601 Page 2158, and are reserved in the Second Deed

of Trust conveyed on May 3, 2005, in the "Substitute Trustee's Deed" filed on October 3, 2006,



8       " .... [E]ven if counsel were ableto get a witness to agree to language reflecting the causation
standard at issue in this case, the bare assertions of the title-insurance witnesses in response to carefully
worded questions from counsel do not constitute evidence of causation. See Jelinekv. Casas, 328 S.W.3d
526, 538 (Tex. 2010) (quoting Pollock, 284 S.W.3d at 818) ("[I]f no basis for the opinion is offered, or
the basis offered provides no support, the opinion is merely a conclusory statement and cannot be
considered probative evidence."); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) ("But it is the basis
of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an
issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.").
There is no "magic language" that checks the causation box in a sufficiency-of-the-evidence review. See
Schaeferv. Tex. Empr'sIns. Ass'n, 612 S.W.2d 199, 205 (Tex. 1980)."

                                                      49
and in the First Deed of Trust which they settled on October 31, 2016. As stated before, judicial

support for Appellant's claim of a paramount interest in title is found in two orders of the Hon.

Leif M. Clark, in Chapter 13 Case Bankruptcy Case No. 05-80116 and Adversary Case No. 11-

5141. In 2012, the U.S. Bankruptcy Court entered an order in Bankruptcy Case No., 05-80116

noticing Defendant's claim as a third party purchase money creditor, and an order in Adversary

Case 11-05141 remanding the 2006 foreclosure proceeding in the 57th Judicial District Court

which Appellant had removed to the adversary case. See, Docketing Statement, Exhibits J and K.

Although the U.S. District Court denied Appellant's motion for withdrawal of references in

Martin v. Bexar County, et al, Case No. SA 12-CV-0998 (W.D. Tex. 2012), through which he

sought to consolidate the purchase money claim with the claims in Case No. SA 1l-CV-0414-

HLH, the bankruptcy court order noticing purchase money rights was uncontested and was

admitted into the record at the temporary injunction hearing below.

D.     Proactive Measures To Deter A Repetition Of The TCPA Violations That Occurred
       In This Case BY Similarly Situated Persons Are Both Necessary And Appropriate.

       As a general rule, a court's decisionto impose sanctions under TCPA § 27.009 calls for

reference to what justice and equity may require, what is reasonable, and what the Court

determines to be a sufficient deterrent. See, William's v Cordillera, Civil Action No. 2:13-CV-

124 (S.D. Tex. 2014);see also, American Heritage Capital, LP. V. Dinal Gonzalez andAlan

Gonzalez, Cause No. DC-11-13741-C (68th Judicial District, Dallas County, 2012) (sanctions

awarded); and Rustic Cedar Cabins ofTexas, Inc. v. John Cortell, Cause No. 28-500 (12st

Judicial District, Bastrop County, 2012) (sanctions awarded). In Schlumberger Ltd. v.

Rutherford, 2014-13621, (127th Judicial District Court, Dallas County, 2013), a court imposed

monetary sanctions totaling $600,000. The facts of this case indicate a repetition of conduct in

bravenecv. Flores warrantingstrong measures to deter a repetitionof the frivolous litigationand

                                                50
exceptions to estoppels by deed as are alleged in this appeal. Cf, Texas Deceptive Trade

Practices Act, Section 17.50(a)(2) (providing that a consumer may maintain an action under the

Act for breach of an express or implied warranty.)                      r

       The trial court's disparaging findings about frivolous litigation, as reflected first in the

trial court's temporary restraining order and later in temporary injunction order, are largely

attributable to vexatious conduct in state and federal by the Appellees and their counsels of

record, attorneys Ricardo Briones and Glenn Deadman. Nonetheless, even if one takes the

Appellees' factual allegations as true, together with inferences reasonably drawn from them,

Appellees pleadings would still not entitle them as a matte rof law to the tortuous interference

relief they seek. The major fallacy in the Appellees' line of argument is their attempt to

prosecute tortious interference relief, based on supposed lis pendens abuse, with the ignoratio

elenehe assertion that the federal courts adjudicated the separate and collateral issue about

successorship interests claimed in the name of the Chapter 11 debtor. In short, Texas law

provides no independent cause of action for lis pendens abuse, and even the statutorily

authorized procedures for lis pendens cancellation are not meant to constitute a form of

affirmative relief as would be the case if the Legislature intended to establish a substantive right

to lis pendens cancellation.

       Careful examination of other pleadings filed by Appellees' in state and federal court

further supports the conclusion that no reasonably informed and impartial person could construe

Appellees' pleas to res judicata and tortuous interference claims as well founded. In effect,

Appellees asked the state courts, including the 285th Judicial District Court, to give res judicata

effect to a federal court judgment in Case No. 13-50070, and a transaction involving a

foreclosure sale in 2006 under a Second Deed Of Trust, in which Moroco Ventures, held a right



                                                 51
of redemption. Yet, their responding brief to the U.S. Court of Appeals in Martin v. Bravenec et

al, Case No. 14-50093 in September of 2014 clearly indicates their subjective awareness that

neither proposition is true: "... the court denied Appellees' motion to expunge the third lis

pendens ... because it found that it did not in fact have jurisdiction to do so," Appellees'

Responding BriefFifth Circuit Case 14-50093, atp. 7. Elsewhere they state that "[i]f the District

Court was without the authority [to expunge post-judgment lis pendens notices] ... the issue has

been mooted by the Probate Court of Bexar County, expunging [the third lis pendens notice]."

Appellees' Responding Brief in Fifth Circuit Case 14-50093, 'Arguments And Authorities "atp.

6. In fact, the U.S. Court of Appeals' rendition ofjudgment based on a fact situation where the

losing plaintiff had no deeded interests and the prevailing defendant was not a party to a

controversy about deed,exceptions for conveyances and warranties. Kittrell v. City ofRockwell,

526 F.2d 715, 716 (5th Cir. 1976). In short, Appellees' reliance on a federal court judgment for

evidence of res judicata is entirelymisplaced in the state court settingbecause their assertionof

federal questionjurisdiction in the federal district court is framed such that it can only be

sustained by reference to a probate court order decided after the district court had already

rendered the federal judgment in question.

        On various other occasions, Appellees offended Zuniga's public policy against conduct

degrading to the legal profession by reversing course on factual allegations without any plausible

legal justification. On May 23, 2014, Appellees alleged in support of their request for temporary

restraining orders that "harm to Plaintiffis irreparable if the injunctionis not grantedbecause

because a money judgment cannot be successfully executed against Martin, an indigent person."

Plaintiff's Original Petition, atpara. 29. Contrary to their original position, Appellees later

contested Appellant's indigency at the hearing on or about August 14, 2014. Similarly, on May



                                                  52
23, 2014, Appellees represented to the trial court that the alleged tortuous conduct consisted of

the filing of lis pendens notices and similar instruments in Bexar County Deed Records. On July

1, 2014, Appellees defended their motion to punish Appellent for a filing in the trial court's

docket with a finding of contempt notices as an act in furtherance of the temporary restraining

order they secured on May 13, 2014. Lastly, opposing counsel judicially admitted at the July 17,

2014 hearing that a TCPA stay becomes effective once a trial court signs the order denying

dismissal. At the trial proceeding on December 8, 2014 conducted over Appellant's objection,

Appellees maintained that the conditions precedent for stay relief had not been not met, and that

Appellant violated discovery rules by invoking the TCPA automatic stay prior to the expiration

of time to comply with the discovery request. On each of these,three occasions, the sole purpose

for the role reversing conduct was to replace the special warranty deed that Appellee Bravenec

acquired in 2006 with a general warranty deed, without compensating purchase money interests.

                                CONCLUSION AND PRAYER


       For the reasons explained above, Appellant respectfully prays that the Court reverse the

denial of his motion to dismiss and render judgment dismissing plaintiffs' claims with prejudice

toward all actions taken in violation state automatic stay laws. The temporary injunction order is

erroneous on the merits, moot for purposes of appeal and is arguably unconstitutional under the

Open Courts Doctrine with respect to its application of the interlocutory appeal statute. Further,

the preponderant evidence shows that Appellees' lawsuit is "based on, relates to, or is in

response to" Appellant's exercise of the right of free speech and petition. A diligent search for

authority on points reveals few cases involving role reversals and vexatious attorney conduct of

the nature and extent that is documented in this case. Amalfitano v Rosenberg, 428 F Supp 2d




                                                 53
196 (S.D. .N.Y., 2006), Amalfitano v Rosenberg, 533 F3d 117, 125 (2d Cir., 2008), and

Amalfitano v Rosenberg, 12 NY3d 8 (N.Y. App., 2009).

       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: January 5, 2015                                 Respectfully Submitted,


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




                                                  54
                    CERTIFICATE OF WORD COUNT COMPLIANCE

       In compliance with TEX. R. APP. P. 9.4, relying on the word count function in the word

processing software used to produce this document, I certify that the number of words in this

document including footnotes (excluding captions, identity of parties and counsel, statement

regarding oral argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement ofjurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix) is 14, 891.

Dated: January 5, 2015
                                                      Rowland J. Martin



                                 CERTIFICATE OF SERVICE


       I, Rowland J. Martin, certify that a copy of this 'Appellant's Motion For Contempt And

Motion For Reconsideration Of The Court's Order Denying Consolidation, " will be submitted

to Glenn Deadman. Torralba Properties will also be served through its Registered Agent, Carlos

L. Torralba, at 1626 S.W. Military Drive San Antonio, TX 78221.

Dated: January 5, 2015
                                                      Rowland J. Martin




                                                 55
196 (S.D. .N.Y., 2006), Amalfitano vRosenberg, 533 F3d 117, 125 (2d Cir., 2008), and

Amalfitano v Rosenberg, 12 NY3d 8 (N.Y. App., 2009).

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

in all things, for such other reliefbothin law and in equity as he maybe justly entitled.

Dated: January 5, 2015                                Respectfully Submitted,


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




                                                 54
                    CERTIFICATE OF WORD COUNT COMPLIANCE

       In compliance with TEX. R. APP. P. 9.4, relying on the word count function in the word

processing software used to produce this document, I certify that thenumber of words in this

document including footnotes (excluding captions, identity of parties and counsel, statement

regarding oral argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement ofjurisdiction, statement ofprocedural history, signature, proofof

service, certification, certificate of compliance, and appendjix) is 14, 891.

Dated: January 5, 2015
                                                        Rowland J. M



                                  CERTIFICATE OF SERVICE

        I, Rowland J. Martin, certify that a copyof this "Appellant's Motion For Contempt And

Motion For Reconsideration OfThe Court's Order Denying Consolidation, "willbe submitted

to Glenn Deadman. Torralba Properties will also be served through its Registered Agent, Carlos

L, Torralba, at 1626 S.W. Military Drive San Antonio, P97822L

Dated: January 5, 2015
                                                        Rowland J. Marjin




                                                   55
