                                    Fourth Court of Appeals
                                            San Antonio, Texas
                                       MEMORANDUM OPINION
                                                No. 04-14-00483-CV

                                              Rowland MARTIN, Jr.,
                                                    Appellant

                                                v.
                              Edward L. BRAVENEC and 1216 West Ave., In
                             Edward L. BRAVENEC and 1216 West Ave., Inc.,
                                             Appellees

                        From the 285th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2014-CI-07644
                                 Honorable Dick Alcala, Judge Presiding

Opinion by:         Sandee Bryan Marion, Chief Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Marialyn Barnard, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: May 13, 2015

AFFIRMED

           This is an accelerated appeal of two orders. The first order grants a temporary injunction,

and the second order denies a motion to dismiss filed pursuant to the Texas Citizens Participation

Act. 1 We affirm both orders.

                                                    BACKGROUND

           Appellee Edward L. Bravenec was a co-owner of a second lien on property located at 1216

West Avenue, San Antonio, Texas (the “Property”). In 2006, the owner of the first lien, Reliant


1
    By order dated December 8, 2014, this court limited this appeal to those two orders.
                                                                                      04-14-00483-CV


Financial, Inc., sought to foreclose on the lien. A dispute arose between the lienholders, and

Bravenec and his co-owner filed a lawsuit seeking to prevent the foreclosure sale. Eventually, the

parties reached a settlement agreeing to dismiss the lawsuit; however, a petition to intervene in the

lawsuit filed by appellant Rowland Martin, Jr. remained pending. In disposing of the lawsuit, the

trial court signed two orders. The first order approved the settlement and dismissed the cause. The

second order denied the intervention and expressly found “the foreclosure having taken place on

the 3rd day of October, 2006 is valid.”

       In 2010, Martin filed a lawsuit in federal district court against Reliant Financial, Bravenec,

and others alleging numerous causes of action relating to the ownership of the Property. The

federal district court granted summary judgments in favor of all the defendants and entered a take

nothing judgment on December 21, 2012. In the summary judgment granted in favor of Bravenec,

the federal district court ordered Martin to show cause why monetary sanctions should not be

imposed against him for: “(1) repeatedly filing lawsuits for the purposes of harassment and the

needless increase of litigation costs; and (2) continuing to assert claims that he knows are non-

meritorious.” On February 1, 2013, the federal district court entered an order imposing sanctions

by directing the district clerk’s office not to accept for filing any further motions filed by Martin

in that case or any new pro se complaints without the prior written approval of a district judge.

The federal district court’s order stated:

       The Court observes that for years Plaintiff has engaged in a campaign of harassing,
       frivolous, and duplicative litigation. His lawsuits have served no purpose other
       than to increase the litigation costs of the Defendants and waste judicial resources.
       The Court finds that it is necessary to take some action to curtail the Plaintiff’s
       propensity to burden the Court with meritless litigation.

The Fifth Circuit Court of Appeals affirmed the federal district court’s judgment and also entered

an order cautioning Martin that if “he continues to engage in frivolous and vexatious litigation —



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                                                                                         04-14-00483-CV


for example, asking for relief the court has repeatedly found is not warranted — sanctions may be

imposed.”

           After the Fifth Circuit affirmed the federal district court’s judgment, the federal district

court entered an order on March 5, 2014, commenting on Martin’s history of filing notices of lis

pendens against the Property as follows:

                   On January 18, 2013, Rowland Martin filed a notice of Lis Pendens
           affecting the real property located at 1216 West Avenue, San Antonio, Texas (the
           Property). The notice of Lis Pendens indicated that Martin intended to appeal the
           judgment entered by this Court in the above styled and numbered cause. After the
           Fifth Circuit affirmed this Court’s judgment and Martin refused to cancel his notice
           of Lis Pendens, this Court entered an order cancelling the Notice. Thereafter,
           Martin filed a motion for rehearing en banc in the Fifth Circuit as well as an
           amended Notice of Lis Pendens. On December 4, 2013, the Fifth Circuit denied
           his petition for a rehearing and the Court entered an order cancelling the amended
           notice of Lis Pendens. That same day, Plaintiff filed a third notice of Lis Pendens,
           this time indicating that title to the Property was affected by a Bexar County Probate
           Court matter styled In re. Estate of Johnnie Mae King, Cause No. 2001-PC-1263.
           The notice of Lis Pendens asserts that Martin was the administrator of the Estate
           and that Defendant Edward Bravenec was “attorney of record.” It did not, however,
           clarify what bearing that probate matter has on the Property at issue in the instant
           suit.

After reciting the foregoing history, the federal district court found that it did not have jurisdiction

to cancel the third lis pendens and recommended that a motion to expunge be filed in the Bexar

County Probate Court. Bravenec followed the recommendation, and, on March 19, 2014, the

Bexar County Probate Court entered an order finding that the estate did not have an interest in the

Property and cancelled the notice of lis pendens filed on or about December 3, 2013, and a further

notice of lis pendens filed on or about March 7, 2014.

           On May 13, 2014, appellees Bravenec and 1216 West Ave., Inc. filed the underlying

lawsuit, asserting a claim for tortious interference with contractual relations. 2 The lawsuit alleged

that Martin’s continued filings of notices of lis pendens and other documents has prevented the


2
    The Property is owned by one or both appellees.

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                                                                                       04-14-00483-CV


appellees from selling the Property, asserting, “A title company refuses to insure the transaction

until a lis pendens is removed. Once the lis pendens is removed, Martin simply files another to

delay the transaction.”

       On May 14, 2014, the trial court entered a temporary restraining order cancelling another

document filed by Martin asserting an interest in the Property and enjoining Martin from filing

any further documents in the deed records relating to the Property. The order set a hearing for

May 27, 2014, on whether to convert the temporary restraining order to an injunction; however,

the parties agreed to a continuance and reset the hearing for July 9, 2014.

       On June 2, 2014, Martin filed another notice of lis pendens in the pending lawsuit. On

June 12, 2014, Bravenec filed a motion seeking to hold Martin in contempt for violating the

temporary restraining order. The motion for contempt also was set for a hearing on July 9, 2014.

On July 9, 2014, Martin filed a document entitled “Special Appearance for Pleas to Jurisdiction

and Texas Citizens Participation Act Motion to Dismiss.”

       When the hearing was called on July 9, 2014, Bravenec agreed to a continuance on the

motion for contempt and the hearing proceeded on the temporary injunction and Martin’s motion

to dismiss pursuant to the Texas Citizens Participation Act. At the conclusion of the hearing, the

trial court announced its ruling. The trial court first granted the temporary injunction and stated,

“It is rendered today.” The trial court then denied the motion to dismiss.

       On July 10, 2014, Bravenec filed a motion to enter orders, attaching the draft orders. The

motion was set for a hearing on July 17, 2014, and Bravenec’s attorney presented the draft orders

for the trial court to sign. Martin objected to the entry of the temporary injunction because he filed

a notice of appeal of the trial court’s order denying his motion to dismiss on July 9, 2014. Martin

contended that his filing of the notice of appeal invoked the automatic stay provision set forth in

section 51.014(b) of the Texas Civil Practice and Remedies Code. Concluding that the stay did
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not take effect until the order was signed, the trial court signed the orders. From the reporter’s

record of the hearing, it appears that the trial court signed the order denying the motion to dismiss

before signing the order granting the temporary injunction. Martin appeals those two orders.

                                               ISSUES PRESENTED

         In his brief, Martin lists the following three issues as being presented for review:

         Issue 1: The Temporary Injunction Order Employed a Treatment of the
         Interlocutory Appeal Statute That is Constitutionally Suspect As Applied to
         Comply with Open Courts Doctrine.

         Issue 2: The Trial Court Departed From The Law That Governs Specificity
         Requirements For Temporary Injunction Orders Set Forth in Tex. R. Civ. P. 683.

         Issue 3: The Trial Court Misapplied The Texas Citizens Participation Act’s Burden-
         Shifting Procedures By Failing To Treat Lis Pendens Notices As Incidental To The
         Exercise Of the Rights to Free Speech, To Petition And To Participate in
         Government To The Maximum Extent.

In briefing these issues, Martin makes legal arguments and raises sub-issues which often do not

appear to relate to the general issue presented. 3

         “An issue is multifarious when it generally attacks the trial court’s order with numerous

arguments.” Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth 2009, pet.

denied). “We may disregard any assignment of error that is multifarious.” Id.; see also Shull v.

United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). “Alternatively,

we may consider a multifarious issue if we can determine, with reasonable certainty, the error

about which complaint is made.” Hamilton, 298 S.W.3d at 338 n.3; see also Shull, 4 S.W.3d at

51.




3
 To the extent Martin’s reply brief raises additional issues, those issues are waived. See Marin Real Estate Partners,
L.P. v. Vogt, 373 S.W.3d 57, 72 (Tex. App.—San Antonio 2011, no pet.); Lopez v. Montemayor, 131 S.W.3d 54, 61
(Tex. App.—San Antonio 2003, pet. denied).

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                                                                                        04-14-00483-CV


         Applying this legal principle to Martin’s brief, we can determine, with reasonable certainty,

he complains about the following alleged errors:

         (1) the trial court erred in signing the temporary injunction order in violation of the
         automatic stay set forth in section 51.014(b) of the Texas Civil Practice and
         Remedies Code;

         (2) the trial court erred in granting a temporary injunction because the appellees
         failed to plead a justiciable cause of action; and

         (3) the trial court erred in denying his motion to dismiss under the Texas Citizens
         Participation Act because: (a) he met his burden to show that the underlying lawsuit
         was in response to his exercise of the right of free speech or petition; and (b) the
         appellees did not establish, by clear and specific evidence, a prima facie case for
         each essential element of their claim.

Accordingly, we address only these issues. See Hamilton, 298 S.W.3d at 338 n.3; Shull, 4 S.W.3d

at 51.

                     TEMPORARY INJUNCTION ORDER AND AUTOMATIC STAY

         In his first issue, Martin contends the trial court erred in signing the order granting the

temporary injunction in violation of the automatic stay set forth in section 51.014(b) of the Texas

Civil Practice and Remedies Code (“Code”). To support this contention, Martin relies on the

reporter’s record from the July 17, 2014 hearing on the motion to enter orders, from which it

appears the trial court signed the motion denying Martin’s motion to dismiss before signing the

order granting the temporary injunction. Martin also relies on the premature notice of appeal he

filed based on the trial court’s verbal rulings at the July 9, 2014 hearing.

         Section 51.014(a)(12) of the Code allows a person to appeal from an interlocutory order of

a trial court that denies a motion to dismiss filed under section 27.003 of the Texas Citizens

Participation Act (“Act”). TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (West 2015).

Under section 51.014(b), an interlocutory appeal under section 51.014(a)(12) stays all proceedings

in the trial court pending resolution of the appeal. Id. at § 51.014(b). “[T]he stay set forth in


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                                                                                      04-14-00483-CV


section 51.014 is statutory and allows no room for discretion.” Sheinfeld, Maley & Kay, P.C. v.

Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no pet.); see also Waite v. Waite, 76

S.W.3d 222, 223 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

       Section 51.014(a)(12) only permits an appeal from the trial court’s order, not a verbal

ruling. Id. at § 51.014(a)(12). In this case, the trial court did not sign the order denying Martin’s

motion to dismiss until July 17, 2014. Martin contends that because he prematurely filed his notice

of appeal before July 17, 2014, the stay imposed by section 51.014(b) immediately became

effective when the trial court signed the order denying the motion to dismiss. As a result, Martin

asserts the trial court lacked jurisdiction to sign the order granting the temporary injunction after

the trial court signed the order denying the motion to dismiss. Because the trial court signed the

order granting the temporary injunction after the order on the motion to dismiss was signed, Martin

argues the order granting the temporary injunction violated the automatic stay and is void.

       Rule 27.1(a) of the Texas Rules of Appellate Procedure provides, “In a civil case, a

prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event

that begins the period for perfecting the appeal.” TEX. R. APP. P. 27.1(a) (emphasis added).

Accordingly, Martin’s premature notice of appeal was deemed filed on the day that the trial court

signed the order denying his motion to dismiss.

       Martin suggests that rule 27.1(a) dictates that the trial court was subject to the section

51.014(b) stay the instant the trial court signed the order denying Martin’s motion to dismiss.

Under the circumstances of this case, we disagree.

       In this case, the record clearly reflects that the trial court was simultaneously executing

orders based on its prior verbal rulings. In pronouncing its verbal rulings, the trial court first

granted the temporary injunction. Given these circumstances, interpreting rule 27.1(a) in the

manner suggested by Martin would lead to an absurd result, i.e., depriving a trial court of the
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authority to simultaneously execute orders in accordance with its prior verbal rulings. Just as this

court will not construe statutes in a manner that leads to an absurd result, this court also will not

construe an appellate rule in such a manner. See Tex. Lottery Comm’n v. First State Bank of

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (noting courts will not construe plain meaning of

statute to lead to absurd result); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)

(noting Texas Supreme Court has instructed the courts of appeals to construe the Rules of

Appellate Procedure reasonably); In re Emeritus Corp., 179 S.W.3d 112, 114 (Tex. App.—San

Antonio 2005, orig. proceeding [mand. dism’d]) (noting courts apply same rules of construction

to procedural rules as applied to statutes); State v. Mercer, 164 S.W.3d 799, 810-11 (Tex. App.—

Corpus Christi 2005, pet. ref’d) (noting rules of statutory construction apply to construction of

rules of appellate procedure); Mercier v. State, 96 S.W.3d 560, 562 (Tex. App.—Fort Worth 2002,

pet. stricken) (same).

       Because the trial court simultaneously executed the order granting the temporary injunction

and the order denying the motion to dismiss under section 27.003 based on its prior verbal rulings,

we hold the section 51.014(b) automatic stay did not deprive the trial court of the jurisdiction to

execute the order granting the temporary stay. Martin’s first issue is overruled.

                                  JUSTICIABLE CAUSE OF ACTION

       In his second issue, Martin contends the temporary injunction is void because the appellees

did not allege a justiciable cause of action in their pleadings. Martin specifically argues that neither

an application to cancel a lis pendens nor an allegation of res judicata allege a cause of action

sufficient to support the issuance of a temporary injunction.

       “An injunction is an equitable remedy, not a cause of action.” Brittingham v. Ayala, 995

S.W.2d 199, 201 (Tex. App.—San Antonio 1999, pet. denied). “To obtain an injunction, a party



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must prove a probable right of recovery through a claim or cause of action.” Id. “If a claim or

cause of action is not alleged, the trial court lacks authority to issue an injunction.” Id.

         Although Martin’s brief correctly acknowledges the foregoing legal principle, Martin does

not properly construe the appellees’ pleadings. In this case, the appellees’ pleadings plainly allege

a claim for tortious interference with contract. 4 The appellees’ petition contains a subheading

entitled “Tortious Interference with Contractual Relations.” The petition sets forth the elements

of such a claim and contains allegations relating to each of those elements. Texas has long-

recognized a cause of action for tortious interference with contract. See Creditwatch, Inc. v.

Jackson, 157 S.W.3d 814, 818 (Tex. 2005); see also Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d

711, 712-13 (Tex. 2001) (noting Texas also “has long recognized a tort cause of action for

interference with a prospective contract or business relation”).                       Accordingly, because the

appellees’ pleading alleges a claim for tortious interference with contract, Martin’s second issue is

overruled. 5

                                    TEXAS CITIZENS PARTICIPATION ACT

         In his final issue, Martin contends the trial court misapplied the burden shifting procedures

of the Texas Citizens Participation Act (“Act”) by “neglecting to notice that lis pendens filings

involve protected speech.” Martin also asserts the appellees failed to offer clear and specific

evidence to substantiate each element of their cause of action.


4
  The appellees’ brief refers to a second claim alleging the filing of a fraudulent lien which was added in an amended
petition filed on July 8, 2014, the day before the trial court’s hearing. Because we hold the tortious interference claim
was sufficient to support the issuance of the temporary injunction, we do not address this second claim.
5
  In this issue, Martin also refers to the requirement that a party must establish the existence of an imminent injury to
obtain injunctive relief. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (listing “a probable,
imminent, and irreparable injury in the interim” as an element an applicant for a temporary injunction must plead and
prove). In addition to this reference making the issue multifarious, we note Martin refers to a “transfer to Torrabla”
as evidence to defeat this element. This reference, however, relies on evidence outside our appellate record. This
court may not consider matters outside the appellate record. See Mauldin v. Clements, 428 S.W.3d 247, 262 n.3 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); In re D.A.M., No. 04-13-00601-CV, 2013 WL 6546950, at *1 (Tex. App.—
San Antonio Dec. 11, 2013, pet. denied) (mem. op.); Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex. App.—El Paso 1995,
no writ).

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                                                                                       04-14-00483-CV


       A.         Overview of the Act and Standard of Review

       Among other purposes, the Act is designed to “encourage and safeguard the constitutional

rights of persons to petition . . . and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002

(West 2015). The Act is to “be construed liberally to effectuate its purpose and intent fully.” Id.

at § 27.011(b).

       In order to promote these purposes, the Act “creates an avenue at the early stage of

litigation for dismissing unmeritorious suits that are based on the defendant’s exercise of the rights

of free speech, petition, or association” as the Act defines those rights. In re Lipsky, 411 S.W.3d

530, 539 (Tex. App.—Fort Worth 2013, orig. proceeding [mand. pending]). In this regard, the Act

contains “a burden-shifting mechanism” in seeking and defending against a dismissal. Rio Grande

H2O Guardian v. Robert Muller Fam. P’ship Ltd., No. 04-13-00441-CV, 2014 WL 309776, at *2

(Tex. App.—San Antonio Jan. 29, 2014, no pet.); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d

716, 723 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The moving party must show by

a preponderance of the evidence that the legal action it seeks to dismiss is “based on, relates to, or

is in response to the party’s exercise of” the right of free speech, petition, or association. TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(b) (West 2015); see also Rio Grande H2O Guardian,

2014 WL 309776, at *2; In re Lipsky, 411 S.W.3d at 539; Rehak, 404 S.W.3d at 723. If the moving

party meets this burden, the burden shifts to the party bringing the legal action to establish “by

clear and specific evidence a prima facie case for each essential element of the claim in question.”

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); see also Rio Grande H2O Guardian, 2014 WL

309776, at *2; In re Lipsky, 411 S.W.3d at 539; Rehak, 404 S.W.3d at 723-24. We review both

steps in this analysis under a de novo standard of review. See Rio Grande H2O Guardian, 2014

WL 309776, at *2; Rehak, 404 S.W.3d at 724-27.
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        B.      Exercise of Right to Petition

        Focusing on the first step in our analysis, the appellees’ tortious interference claim relates

to Martin’s continual filings of notices of lis pendens and documents with the district clerk and in

the deed records clouding title to the Property. In fact, the appellees’ motion for contempt that

remains pending in the trial court directly relates to Martin’s filing of a notice of lis pendens in the

underlying cause notifying potential purchasers of his pending counterclaims regarding title to the

Property.

        The “exercise of the right to petition” includes a “communication in or pertaining to a

judicial proceeding” and a “communication in connection with an issue under consideration or

review by a . . . judicial . . . body.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i), (4)(B)

(West 2015). In this case, the lis pendens and documents filed by Martin all relate to his pending

claim in the underlying lawsuit that he has an interest in the Property. Accordingly, we hold Martin

met his burden of showing by a preponderance of the evidence that the appellees’ lawsuit is “based

on, relates to, or is in response to [Martin’s] exercise of” the right of petition. TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(b) (West 2015); see also James v. Calkins, 446 S.W.3d 135, 147-48

(Tex. App.—Houston [1st Dist.] 2014, pet. filed) (holding filing of notice of lis pendens and

pleadings in lawsuit are communication in or pertaining to a judicial proceeding and lawsuit

alleging claims based on those actions related to exercise of right to petition).

        C.      Clear and Specific Evidence

        Because Martin satisfied the first step of our analysis, the burden shifts to the appellees to

establish “by clear and specific evidence a prima facie case for each essential element” of their

tortious interference claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); see also Rio Grande

H2O Guardian, 2014 WL 309776, at *2; In re Lipsky, 411 S.W.3d at 539; Rehak, 404 S.W.3d at

723-24. The Act “does not define what sort of evidence satisfies the ‘clear and specific’ qualitative
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                                                                                     04-14-00483-CV


standard, but it expresses that in determining the propriety of dismissal, courts may consider ‘the

pleadings and supporting and opposing affidavits stating the facts on which the liability or defense

is based.’” In re Lipsky, 411 S.W.3d at 539 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.006(a)); see also Rio Grande H2O Guardian, 2014 WL 309776, at *2. “‘Clear and specific

evidence’ has been described as evidence that is ‘unaided by presumptions, inferences, on

intendments.’” Rio Grande H2O Guardian, 2014 WL 309776, at *2 (quoting Rehak, 404 S.W.3d

at 726). “‘Prima facie evidence is evidence that, until its effect is overcome by other evidence,

will suffice as proof of a fact in issue.’” Rio Grande H2O Guardian, 2014 WL 309776, at *2

(quoting Rehak, 404 S.W.3d at 726). “‘In other words, a prima facie case is one that will entitle a

party to recover if no evidence to the contrary is offered by the opposite party.’” Rio Grande H2O

Guardian, 2014 WL 309776, at *2 (quoting Rehak, 404 S.W.3d at 726). “Therefore, in analyzing

the second step, ‘we determine de novo whether the record contains a minimum quantum of clear

and specific evidence that, unaided by inferences, would establish each essential element of the

claim in question if no contrary evidence is offered.’” Rio Grande H2O Guardian, 2014 WL

309776, at *2 (quoting Rehak, 404 S.W.3d at 727). We also note that unlike other types of cases

where pleadings are not considered evidence, section 27.006 of the Act, which is entitled

“Evidence,” expressly provides, “In determining whether a legal action should be dismissed under

this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating

the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN

§ 27.006(a). Therefore, we may consider the appellees’ pleadings as evidence in this case. Rio

Grande H2O Guardian, 2014 WL 309776, at *3.

       The elements of a tortious interference with contract claim are: (1) the existence of a

contract subject to interference, (2) the occurrence of an act of interference that was willful and

intentional, (3) the act was a proximate cause of the plaintiff's damage, and (4) actual damage or
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loss occurred. Holloway v. Skinner, 898 S.W.2d 793, 795-96 (Tex. 1995); Benavides v. Mathis,

433 S.W.3d 59, 63 n.3 (Tex. App.—San Antonio 2014, pet. denied). With regard to the existence

of a contract, the pleadings alleged the appellees have a contract to sell the Property, and Bravenec

identified the name of the prospective purchaser at the hearing. With regard to the occurrence of

an act of interference, the pleadings alleged Martin had “admitted, in open court, his intention to

obstruct [the] sale of the [P]roperty,” and evidence was introduced at the hearing of a series of

willful, intentional acts taken by Martin to interfere with the appellees’ ability to sell the Property,

including the filing of at least four prior lis pendens that were cancelled and expunged by various

courts. The evidence also included the Perfected Notice of Lis Pendens filed by Martin in the

underlying cause in response to which Bravenec filed his motion for contempt alleging Martin had

violated the trial court’s temporary restraining order. The appellees’ pleadings further allege that

Martin’s acts have prevented them from selling the Property since September of 2013, and the title

company refused to insure the pending transaction until the lis pendens and other documents filed

by Martin are removed. Bravenec also testified at the hearing that he had been trying to sell the

Property for nine months, and Martin’s actions had prevented any sale. Having reviewed the

pleadings and the entire record, we hold the appellees met their burden of establishing by clear and

specific evidence a prima facie case for each essential element of their tortious interference claim. 6



6
  In arguing this issue in his brief, Martin again makes statements referring to a sale to Torrabla Properties as evidence
to defeat the elements of the appellees’ tortious interference claim. As previously noted, however, this evidence is
outside our record and will not be considered. See Mauldin, 428 S.W.3d at 262 n. 3, In re D.A.M., 2013 WL 6546950,
at *1, Siefkas, 902 S.W.2d at 74. Additionally, in Martin’s reply brief, Martin makes several references to defenses
to appellees’ tortious interference claim. It appears these references may be an effort to rely on section 27.005(d) of
the Act which provides that if the non-movant satisfies its burden of establishing a prima facie case on each element
of its claim, the trial court shall still dismiss the legal action if the moving party establishes each essential element of
a valid defense. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) (West 2015). As previously noted, this court
will not consider issues raised for the first time in a reply brief. Marin Real Estate Partners, L.P., 373 S.W.3d at 72;
Lopez, 131 S.W.3d at 61. In briefing the issue regarding the trial court’s denial of his motion to dismiss under the Act
in his initial brief, Martin did not argue that the trial court erred in denying his motion to dismiss because he presented
evidence of each essential element of a valid defense under section 27.005(d). Accordingly, we will not consider that
issue in resolving this appeal.

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                                                                                         04-14-00483-CV


        D.      Conclusion

        Because Martin satisfied his burden of showing the underlying action related to his exercise

of the right to petition, the burden shifted to the appellees to establish by clear and specific evidence

a prima facie case for each essential element of their tortious interference with contract claim.

Because we hold the appellees satisfied this burden, the trial court did not err in denying Martin’s

motion to dismiss under the Act.

                                             CONCLUSION

        The trial court’s orders granting a temporary injunction and denying Martin’s motion to

dismiss under the Act are affirmed.

                                                     Sandee Bryan Marion, Chief Justice




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