                                     Case No. 04-14-00483-CV

ROWLAND J. MARTIN                               )       TEXAS COURT OF APPEALS
Appellant                                       )                                              ^     :."-'
                                                )                                    --,       —         ''■'-
v.                                              )       FOR THE FOURTH DISTRICT ^
                                                )                                    1%                     1
EDWARD BRAVENEC AND 1216                        )                                              rvj        -r
WEST AVE. INC.                                  )                                              _,    .- I;!
        Appellees                               )       BEXAR COUNTY, TEXAS/

                         APPELLANT'S MOTION FOR REHEARING                                      ^

        Appellant Rowland J. Martin files this "Motion For Rehearing," to move the Court to


rehear the Appellees' motion for extension of lime to file a responding brief in accordance with


the Court's order of February 2. 2015 stating thai "in disposing of this appeal, this court will


consider only those issues raised in appellant's brief that relate to the orders this court has


expressly identified as the subject of this appeal."


        Appellant reads the order as a conclusion of law about the interlocutory jurisdiction that


the Court possesses to entertain live issues that arc or may be presented in the parties' briefs.

Based on the latter reading of the Court's jurisdiction, a genuine need exists al this time for


information about ownership of the subject property at 1216 West Ave., San Antonio, Texas, in

order to ascertain whether the disclosure by Appellees counsel identifying One For Autism, Inc.


as the pendent lite purchaser was false at the time trial court relied upon it to issue the gag order

on July 9, 2014. and whether Appellee possibly committed jurisdictional fraud on the trial court

an d on this Court by failing to disclose that the subject property had already been transferred

pre-hearing on July 8. 2014. See deed record attachment and Court Reporter's Hearing

Transcript for July 9. 2014, at p. 11 lines 6-12. The facts about Torralba's ownership that

Appellant seeks to elicit are also essential to his defense in that they tend to indicate that the lis


pendens filing in question did not impair the ability of the contracting parties to exercise
whatever rights they claim they already had, and that trial court's post-stay gag order was entered


on July 17,2014 in error or by mistake. James, et al, v. Calkins, Case No. 01-13-0018-CV (Tex.

App. - Houston [1st Dist.] August 21,2014) (applying mootness to resolve Anti-SLAPP lis


pendens dispute). See, case exhibits in Appellant's Supplemental Appendix. See also, Varian

Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180,192 (2005) appealed in Super. Ct. No.


CV780187 (Cal. 2005) (trial court order invalidated based on Anti-SLAPP automatic stay).

       Appellant has previously stated that Attorney Glenn Deadman disclosed in conference


with the undersigned Appellant on or about December 1, 2014 that the West Ave. property had


been sold, and deed records corroborate the veracity of the disclosure. Since the original

admission against interest, however, Attorney Deadman has made representations to the Court

that are inconsistent with, and which tend to conceal, his original disclosure, by stating on

January 30, 2015 that "Appellant continually files lis pendens to cloud the title of the Property


prohibiting Bravenec from utilizing or selling the same." Appellee's motion dated January 30,

2015, at para. 2. Accordingly, the Court is requested upon rehearing to vacate all or part of its

order of February 2,2015, and to authorize the joinder of Torralba Properties and limited

discovery by way of a request for admissions to ascertain the present ownership of the property.

       Legal support for the requested relief is found in the rule that "Jurisdiction over an

interlocutory order when not expressly authorized ... by statute is jurisdictional fundamental

error." N. Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). Appellant


respectfully submits that an expedited dismissal for mootness is probably warranted by the above

referenced jurisdictional fraud and as well as by other changed circumstances that render moot

the post-stay gag order entered on July 17,2014 as a live subject for interlocutory review.
       Appellant will be unduly prejudiced in preparing an effective reply to Appellees


jurisdictional arguments, and in prosecuting his substantive immunities from suit, if he is unable

to conduct limited discovery to ascertain the true state of facts from Attorney Glenn Deadman

and from Torralba Properties, a real party in interest according to deed records. Careful

examination will reveal that the representations that Attorney Deadman made to the Court on


January 30,2015 on behalf of the Appellees are suspect in their own right for evidentiary and


jurisdictional reasons. Even taking as true the representation that Appellees made to secure an

extension of time, their version of the truth would still be insufficient to overcome the absurdity


of their reliance on a non-existent cause of action to enjoin future lis pendens speech. Cf., James,


Id


        In conclusion, Appellant will use the requested discovery to show that Appellees case for

tortious interference relief amounts to nothing more than an unsupported contention that they


have a right to suppress lis pendens speech because they dispute the applicability of the separate


transaction rule of res judicata doctrine to the controversy at bar. Contentions such as these have

been rejected in analogous cases on point. Rose v. Rothrock, Case No. 08-3884 (E.D. Penn,

2009) See case exhibits in Appellant's Supplemental Appendix. Not surprisingly, they offer no


case law precedent to substantiate their novel position other than an inapposite federal court


judgment in Case No. 13-50070 and an inapposite probate court order in Case No. 2001-PC-

1263. Both of the latter actions involve matters facially unrelated to the purchase money subject

matter of the particular lis pendens speech suppressed by the gag order on July 17,2014.

        In the current state of the record, the lis pendens challenge Appellees press before this

Court is readily distinguishable from cases where parties opposing a lis pendens filing have

prevailed. Wallace v. Kelley, 2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. 1, 2007). See case
exhibits in Appellant's Supplemental Appendix. Appellees assert a lis pendens fact theory for

extension of time to file an appellate brief that addressed a foreclosure transaction in 2003, and

which facially departed as such from their trial court representations addressing a foreclosure

transaction in 2006. Their implied request for affirmative relief is fatally flawed by the fact that it

was made without the benefit of a notice of cross appeal or petition for extraordinary relief.

Jones v. Beckman, 2007 Cal. App. LEXIS 8326 (Cal. App., 2007). See case exhibits in


Appellant's Supplemental Appendix. Appellees reliance on ancillary federal and probate court


cases is also misplaced because neither of those cases adjudicated the subject matter of the


dispute presented here.


       Under the circumstances, Appellant acknowledges that his Appellate Brief takes issue


with Appellees' lack of constitutional and prudential standing to seek affirmative relief, and that

their implied request for affirmative relief substantiates his contention that the interests in other


litigation they seek to vindicate fall beyond the court's interlocutory jurisdiction. See, James, Id.;

Jones, Id., and Varian, Id. Further, much of the prevailing law of lis pendens would be entirely


meaningless if the Court accepts Appellees's unsupported legal position that a lis pendens

contestant can sustain their burden of proof in an Anti-SLAPP interlocutory appeal, simply by

proffering an inapposite judgment and order from ancillary proceedings that rely on a


transactional theory that is separate and collateral to the transactional theory offered by the lis


pendens claimant. Therefore, Appellant requests the Court to rehear the Appellees' motion, to

allow joinder of Torralba Properties, and to authorize limited discovery to elicit testimony from

Torralba and Attorney Glenn Deadman, and to vacate or amend its order.


        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: February 12, 2015                          Respect!ully Submitted.



                                                         Rowland J. Martm—J
                                                        951 Lombrano
                                                         San Antonio. Tx 78207
                                                        (210)323-3849




                              CERTIFICATE OF SERVICE


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


Deadman on I'ebruary 12, 2015.




                                                                Rowland J.
Bock 16765 Page 975 3pgs                      ~ ~-~      ~    -■•■''           -•-                Doc# 20140116444




                                                                                            STCGHH 402942377
           NOTICE OF CONFEDENnALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
           MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM
           ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT
           IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
           NUMBER OR YOUR DRIVER'S LICENSE NUMBER.


                WARRANTY DEED WITH VENDOR'S LIEN
           STATE OF TEXAS                 *   6
                                              §   KNOW ALL MEM BY THESE PRESENTS:
           COUNTY OF BEXAR                    §

                  THAT, EDWARD L. BRAVENEC, hereinafter called Grantor (whether one or more), for
          and in consideration of the sum of TEN AND NO/100 DOLLARS and other good and valuable
          considerations in hand paid by TORRALBA PROPERTIES, LLC, hereinafter called Grantee
          (whether, one or more), whose mailing address is:                18507 Canoe Brook
            ■ San Antonio, TO 7825B                      , the receipt of which is hereby acknowledged, and
          for the further consideration of the sum of 5239,200.00, to Grantor in h?H paid by
          PROSPERITY BANK, which amount is advanced at the special instance and request of the
          Grantee herein, and as evidence thereof, the Grantee has executed and delivered one certain
          promissory note of even date herewith for the sum of TWO HUNDRED THIRTY NINE
          THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($239,200.00), payable to the order
          of PROSPERITY BANK, whose mailing address is as set forth ia the hereinafter mentioned Deed
          of Trust, bearing interest and payable as in said note provided; said note containing the usual
          provisions for attorney's fees and acceleration of maturity in case of defaijlt,and being secured by
          Vendor's Lien herein and hereby expressly retained in favor of the Gtaptor, on the property
          hereinafter described, and as further security for the payment of said note, the SUPERIOR TITLB
          and VENDOR'S LIEN to said property are hereby transferred and conveyed to PROSPERITY
          BANK without recourse against Grantor, said note being also secured by Deed of Trust of even
          date herewith to DAVID ZALMAN, Trustee; has GRANTED, SOLD and CONVEYED and by
          these presents Grantor does hereby GRANT, SELL and CONVEY unto Grantee herein, the
          following described real property together with all improvements tnereon situated in Bexar
          County, Texas, described as follows, to-wit:

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


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


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

                 Grantee assumes taxes for the current year on the property hereby conveyed

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




                                                                           1216 West Ave., Ssn Antonio, Texas 78201
     EXECUTED ON THE FOLLOWING DATE:            JUL a 8 2014




                                       EDWARD L. BRAVENEC



                           (ACKNOWLEDGEMENT)
STATE OF TEXAS         §
COUNTY OF BEXAR        §

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




AFTER RECORDING RETURN TO:                     PREPARED IN THE OFFICE OF:
Torralba Properties, LLC                     WEST & WEST ATTORNEYS' P.C.
18507 Canoe Brook,                                        2929 Mossrock, Suite 204
San Antonio, Texas 78258                                  Saa Antonio, Texas 78230




                                                  1216 WesfAve, San Antonio, Texsu 78201
