                                                                  ACCEPTED
                                                              02-17-00411-CV
                                                   SECOND COURT OF APPEALS
                                                         FORT WORTH, TEXAS
                                                           12/13/2017 9:53 AM
                                                               DEBRA SPISAK
                                                                       CLERK

        No. 02-17-00411-CV

  SECOND COURT OF APPEALS                      FILED IN
                                        2nd COURT OF APPEALS
      FORT WORTH, TEXAS                   FORT WORTH, TEXAS
                                        12/13/2017 9:53:57 AM
                                            DEBRA SPISAK
 GHRIST LAW FIRM PLLC, ET. AL.,                  Clerk


                           Appellants
                V.
 J. MICHAEL FERGUSON PC, ET. AL.,
                           Appellees


 FROM THE 236TH DISTRICT COURT
   TARRANT COUNTY, TEXAS
    CAUSE NO. 236-295012-17


     BRIEF OF APPELLANTS

                     Ian Ghrist
                     State Bar No. 24073449
                     ian@ghristlaw.com

                     Ghrist Law Firm
                     2735 Villa Creek Drive, Suite 250A
                     Farmer’s Branch, Texas 75234
                     Ph. (817) 778-4136
                     Fax (817) 900-2863

                     ATTORNEY FOR APPELANTS

ORAL ARGUMENT NOT REQUESTED
                IDENTITY OF PARTIES AND COUNSEL


Appellants                      Counsel for Appellants
Ghrist Law Firm PLLC            Ian Ghrist
Ian Ghrist                      Ghrist Law Firm PLLC
Blue Moon Realty Group LLC      State Bar No. 24073449
Wizard Funding LLC              ian@ghristlaw.com
Neighborhood Partner, Inc.      2735 Villa Creek Drive, Suite 250A
Shawn Coker                     Farmer’s Branch, Texas 75234
                                Phone (817) 778-4136
                                Fax (817) 900-2863

Appellees                       Counsel for Appellees
J. Michael Ferguson P.C.        J. Michael Ferguson
MBH Real Estate LLC             62 Main St., Suite 310
AFI Loan Servicing LLC          Colleyville, Texas 76034
Anson Financial Inc.            Tel. (817) 267-1008
                                Fax (817) 485-1117
                                mike@jmichaelferguson.com
                                Attorney for Plaintiffs




BRIEF OF APPELLANTS                                         Page 2 of 82
                                        TABLE OF CONTENTS


GLOSSARY OF DEFINED TERMS ......................................................................10
IDENTITY OF PARTIES........................................................................................11
ABBREVIATIONS AND RECORD REFERENCES ............................................12
STATEMENT OF THE CASE ................................................................................13
STATEMENT REGARDING ORAL ARGUMENT .............................................14
ISSUES PRESENTED .............................................................................................15
STATEMENT OF FACTS ......................................................................................16
SUMMARY OF ARGUMENT ...............................................................................27
STANDARD OF REVIEW .....................................................................................35
ARGUMENT ...........................................................................................................36
I. OPERATION OF THE TCPA EXPLAINED ...................................................39
II. MOVANT’S BURDEN ESTABLISHED AS TO THE RIGHT TO
PETITION IN CAUSE NO. 017-287611-16 ...........................................................41
III. MOVANT’S BURDEN ESTABLISHED AS TO THE RIGHT OF
ASSOCIATION BECAUSE THE DEFENDANTS COMMUNICATED WITH
EACH OTHER FOR THE PURPOSE OF FACILITATING THE SALE OF
ELMER HERNANDEZ’S HOUSE IN A WAY THAT PROTECTED THE
INTERESTS OF ALL PARTIES ............................................................................42
IV. MOVANT’S BURDEN ESTABLISHED AS TO FREE SPEECH
BECAUSE TITLE TO THE PURSELLEY PROPERTY IS A MATTER OF
PUBLIC CONCERN, ALONG WITH ALLEGATIONS THAT AN ATTORNEY
MISAPPROPRIATED FUNDS, AND THE COMMUNICATIONS RELATED
TO THE PROVISION OF A TITLE INSURANCE POLICY BY SENDERA
TITLE, WHICH IS A PRODUCT IN THE MARKETPLACE ..............................43
V. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE CONVERSION CLAIM BECAUSE THE DEPOSIT OF MORTGAGE
PAYOFF FUNDS INTO THE COURT’S REGISTRY WAS NOT WRONGFUL
AND THE FUNDS WERE PROMPTLY RETURNED UPON REQUEST. .........45



BRIEF OF APPELLANTS                                                                                   Page 3 of 82
VI. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE CONSPIRACY CLAIM BECAUSE THE PLAINTIFFS DID NOT PROVE
AN UNDERLYING TORT OR SHOW ANY INJURY. ........................................47
VII. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE BREACH OF FIDUCIARY DUTY CLAIM BECAUSE THERE ARE NO
DAMAGES AND THE DEFENDANTS DID NOT OWE FIDUCIARY DUTIES
TO THE PLAINTIFFS. ...........................................................................................48
VIII. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE DECEPTIVE TRADE PRACTICES CLAIM BECAUSE, AMONG OTHER
THINGS, THE PLAINTIFFS WERE NOT SEEKING OR ACQUIRING GOODS
OR SERVICES FROM THE DEFENDANTS ........................................................49
IX. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE FRAUDULENT LIEN STATUTE BECAUSE THERE IS NO EVIDENCE
OF INTENT TO CAUSE INJURY, ACTUAL INJURY, OR EVEN THAT THE
DOCUMENTS WERE WRONGFUL IN ANY WAY. ..........................................50
X. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE NEGLIGENCE AND GROSS NEGLIGENCE CLAIMS BECAUSE THE
PLAINTIFFS HAD NO DAMAGES, CANNOT SHOW WRONGFULNESS IN
THE DEFENDANTS’ ACTIONS, AND THE PLAINTIFFS’ HAD UNCLEAN
HANDS. ...................................................................................................................53
XI. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE LIBEL CLAIM BECAUSE FERGUSON WAS SUED FOR
MISAPPROPRIATION OF FUNDS, WHICH MEANS THAT THE
STATEMENT THAT HE HAD BEEN SUED FOR SUCH WAS NOT FALSE,
REGARLESS OF THE PENDING AND UNKNOWN OUTCOME OF SUCH
LAWSUIT. ...............................................................................................................54
XII. THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
THE DECLARATORY JUDGMENT CLAIM BECAUSE THE PLAINTIFF
FAILED TO EXPLAIN WHAT KIND OF DECLARATORY RELIEF IS BEING
REQUESTED ..........................................................................................................56
XIII. ABSOLUTE DEFENSES PROVEN—PRIMARILY THE JUDICIAL
PRIVILEDGE ..........................................................................................................56



BRIEF OF APPELLANTS                                                                                         Page 4 of 82
XIV. QUALIFIED PRIVILEGES PROVEN—MOST IMPORTANTLY, THE
STATEMENTS MADE AFFECTED THE INTERESTS OF THE PUBLISHER
AND COMMON INTERESTS OF THE PARTIES ...............................................60
XV. THE DEFENDANTS ALSO SHOWED TRUTH OR SUBSTANTIAL
TRUTH, LACK OF REQUISITE FAULT, AND FAIR COMMENT AS
DEFENSES TO LIBEL OR AS NEGATING THE ELEMENTS OF LIBEL. ......62
XVI. THE TRIAL COURT ERRED BY SUSTAINING OBJECTIONS OR
SPECIAL EXCEPTIONS TO THE MOTION ON THE GROUNDS THAT THE
MOTION DID NOT SPECIFY WHICH CAUSES OF ACTION THE MOTION
WAS FILED ON BECAUSE THE CAUSES OF ACTION DO NOT NEED TO
ARISE FROM THE TCPA STATEMENTS, BUT RATHER ONLY NEED TO
BE EITHER “BASED ON, RELATED TO, OR IN RESPONSE TO” THE TCPA
STATEMENTS ........................................................................................................66
a. THE TRIAL COURT’S OPINION THAT TCPA MOTIONS ARE LIMITED
TO LIBEL OR DEFAMATION IS INCORRECT AS A MATTER OF LAW AND
CLEARLY DID NOT RENDER THE MOTION FRIVILOUS .............................67
XVII.  THE TRIAL COURT’S OPINION THAT TCPA MOTIONS ARE
LIMITED TO LIBEL OR DEFAMATION IS INCORRECT AS A MATTER OF
LAW AND CLEARLY DID NOT RENDER THE MOTION FRIVILOUS .........68
XVIII. THE PLAINTIFFS’ CAUSES OF ACTION CLEARLY DID NOT
FALL UNDER ANY TCPA STATUTORY EXEMPTIONS, MOST
SPECIFICALLY, THE ACTIONS COULD NOT FALL UNDER THE
COMMERCIAL SPEECH EXEMPTION BECAUSE GHRIST DID NOT MAKE
THE STATEMENTS FOR THE PURPOSE OF SELLING GOODS OR ERVICES
TO FERGUSON OR HIS COMPANIES, THE PLAINTIFFS. ..............................69
XIX. WHEN THE TRIAL COURT’S ORDER READ THAT “PLAINTIFFS
OBJECTIONS TO DEFENDANTS MOTION TO DISMISS ARE SUSTAINED,”
THAT LANGUAGE WAS NOT INTENDED TO SUSTAIN EACH OF
PLAINTIFFS’ EXTREMELY VOLUMINOUS EVIDENTIARY OBJECTIONS
FILED ON THE DAY OF THE HEARING, NOT DISCUSSED AT THE
HEARING, AND THAT DEFENDANT HAD NO OPPORTUNITY TO REVIEW
PRIOR TO THE HEARING OR RESPOND TO ...................................................71
XX. EVEN IF ANY OF PLAINTIFFS’ EVIDENTIARY OBJECTIONS HAD
A BASIS, DEFENDANTS’ SHOULD HAVE BEEN GIVEN AN
OPPORTUNITY TO CURE DEFECTS, PARTICULARLY WHEN THE
BRIEF OF APPELLANTS                                                                                   Page 5 of 82
OBJECTIONS WERE FILED ON THE DAY OF THE HEARING, WERE NOT
DISCUSSED AT THE HEARING, AND DEFENDANTS HAD NO
OPPORTUNITY TO REVIEW THE OBJECTIONS PRIOR TO THE HEARING
DUE TO THEIR TARDY FILING .........................................................................75
XXI.     PRAYER .....................................................................................................77
INDEX TO APPENDIX TO BRIEF OF APPELLANTS .......................................82




BRIEF OF APPELLANTS                                                                                    Page 6 of 82
                                         INDEX OF AUTHORITIES


Cases
Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503 (Tex. App.—Houston [1st Dist.]
  2003, no pet.) ........................................................................................................48
Allen v. Albin, 97 S.W.3d 655 (Tex. App.--Waco 2002, no pet.) ..................... 71, 72
Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507 (Tex. App.—Fort
  Worth 2015) ................................................................................................... 30, 44
Anderson v. Limestone Cty., No. 10-07-00174-CV, 2008 Tex. App. LEXIS 5041
  (App.—Waco July 2, 2008) ........................................................................... 71, 72
Avery Pharms, Inc. v. Haynes & Boone, LLP, 2009 Tex. App. LEXIS 769 (Tex.
  App.—Fort Worth 2009, no. pet.) ........................................................................48
Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) ....... 31, 45
Bell v. Lee, 49 S.W.3d 8 (Tex. App.—San Antonio 2001) ........................ 33, 57, 58
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) ...................................34
Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922 (Tex. 1979) ................... 47, 48
Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235 (Tex. App.—Waco 2003)
  ...............................................................................................................................75
Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687 (Tex.App.-Fort Worth
  2006, pet. denied) ..................................................................................................47
D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017) .................78
Deaver v. Desai, 483 S.W.3d 668 (Tex. App.—Houston [14th Dist.] 2015)... 31, 45
Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.—
  Austin 2017).................................................................................................. passim
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017)... 29, 32, 43, 66
Fisher v. Detroit Free Press, Inc., 158 Mich. App. 409, 404 N.W.2d 765 (1987) .55
Gaither v. Davis, 582 S.W.2d 913 (Tex. Civ. App.—Fort Worth 1979) ......... 33, 58
Gower v. Univ. Behavioral Health of Denton, No. 02-16-00245-CV, 2017 Tex.
  App. LEXIS 6746 (App.—Fort Worth July 20, 2017) .........................................75
Hous. Oilers v. Harris Cty., 960 F. Supp. 1202 (S.D. Tex. 1997) ................... 34, 55
Jenevein v. Friedman, 114 S.W.3d 743 (Tex. App.—Dallas 2003) ................. 33, 58
Law Office of David E. Williams, II, P.C. v. Fort Worth Tex. Magazine Venture,
  LP, No. 02-10-00373-CV, 2011 Tex. App. LEXIS 5157 (Tex. App.—Fort Worth
  July 7, 2011, no pet.) (mem. op.) ..........................................................................71


BRIEF OF APPELLANTS                                                                                               Page 7 of 82
Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713 (Tex. App.—Dallas
  2014, pet. denied) ........................................................................................... 45, 46
Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015). ........................................40
McCrann v. Klaneckey, 667 S.W.2d 924 (Tex. App.—Corpus Christi 1984) ........49
Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695 (1990) . 55, 56, 57, 62
Moldovan v. Polito, No. 05-15-01052-CV, 2016 Tex. App. LEXIS 8283 (App.—
  Dallas Aug. 2, 2016) ...................................................................................... 70, 71
Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013)........................................ 55, 62, 63, 65
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71
  (Tex. App.—Houston [1st Dist.] 2013) ......................................................... 69, 70
Neyland v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337
  (App.—Austin Apr. 7, 2015) ......................................................................... 31, 45
Nw. Mall, Inc. v. Lubri-Lon Int'l, Inc., 681 S.W.2d 797 (Tex. App.—Houston [14th
  Dist.] 1984) ...........................................................................................................53
Opperman v. Opperman, No. 07-12-00033-CV, 2013 Tex. App. LEXIS 14867
  (App.—Amarillo Dec. 9, 2013) ............................................................................71
Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942) .............58
Rehak Creative Servs. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.]
  2013) ............................................................................................................. passim
Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881 (Tex. App.—Houston [1st Dist.]
  2015) .....................................................................................................................78
Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) .................. 28, 41, 42
Shaw v. Norwest Bank Tex., N.A., NUMBER 13-99-602-CV, 2001 Tex. App.
  LEXIS 4177 (App.—Corpus Christi June 21, 2001) ...........................................75
Shell Oil Co. v. Writt, 464 S.W.3d 650 (Tex. 2015) ................................................57
Sw. Bell Tel. Co. v. Dixon, 575 S.W.2d 596 (Tex. Civ. App.—San Antonio 1978)
  ........................................................................................................................ 34, 61
Tilton v. Marshall, 925 S.W.2d 672 (Tex.1996)......................................................47
United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146 (Tex. 1994) .................46
Wells Fargo Bank Nw., N.A. v. RPK Capital SVI, L.L.C., 360 S.W.2d 444 (Tex.
  1971) .....................................................................................................................45
Statutes
Tex. Bus. & Com. Code § 17.45 ..............................................................................49
Tex. Civ. Prac. & Rem. Code § 12.002 ...................................................................51
Tex. Civ. Prac. & Rem. Code § 27.001 ...................................................... 36, 39, 40
Tex. Civ. Prac. & Rem. Code § 27.003 ...................................................... 16, 17, 27
BRIEF OF APPELLANTS                                                                                             Page 8 of 82
Tex. Civ. Prac. & Rem. Code § 27.010 ...................................................................69
Tex. Civ. Prac. & Rem. Code § 27.005 ............................................................ 39, 40
Tex. Civ. Prac. & Rem.Code § 73.002 ....................................................................65
Tex. Gov't Code § 51.901 ........................................................................................51
Rules
Tex. R. Civ. P. 166a .................................................................................................75
Treatises
333 Dorsaneo, Texas Litigation Guide § 333.42 (2017) .........................................40
7-101 Dorsaneo, Texas Litigation Guide § 101.05 (2017) ......................................75
Restatement (Second) of Torts § 585 (1977) ................................................... passim




BRIEF OF APPELLANTS                                                                                     Page 9 of 82
                       GLOSSARY OF DEFINED TERMS


Texas Citizens Participation Act (“TCPA”)
Statements that a legal action is based on, relates to, or is in response to that
implicate the right of free speech, the right to petition, or the right of association as
defined by the TCPA (“TCPA Statements”)
J. Michael Ferguson or J. Michael Ferguson P.C. (“Ferguson”)
MBH Real Estate LLC (“MBH Real Estate”)
MBH Real Estate LLC and property recovered from Cause Nos. 236-269254-13
and 236-248435-10 (The “MBH Portfolio”)
AFI Loan Servicing LLC or Anson Financial Inc. (“Anson”)
Neighborhood Partner Inc. (“NPI”)
Blue Moon Realty Group LLC (“BMRG”)
Wizard Funding LLC (“Wizard”)
2420 Purselley Ave, Fort Worth, TX 76112 (The “Subject Property” or the
“Purselley Property”)
J. Michael Ferguson (“Ferguson”)
Deceptive Trade Practices Act (“DTPA”)
Shawn Coker; Neighborhood Partner, Inc.; Blue Moon Realty Group LLC, and
Wizard Funding LLC are sometimes referred to herein as (“Coker et. al.”)




BRIEF OF APPELLANTS                                                         Page 10 of 82
                           IDENTITY OF PARTIES


Ghrist Law Firm PLLC (Ian Ghrist’s law firm)
J. Michael Ferguson PC (J. Michael Ferguson’s law firm)
Anson Financial, Inc. (J. Michael Ferguson’s wholly-owned mortgage company)
AFI Loan Servicing LLC (J. Michael Ferguson’s wholly-owned loan servicing
company)
MBH Real Estate LLC (A company that Ghrist claims an interest in that Ferguson
formed to hold Coker et. al.’s assets recovered from Cause Nos. 236-269254-13
and 236-248435-10 both in Tarrant County, Texas)
Metro Buys Homes LLC (A company owned by David Boles, who is currently in
federal prison for running a ponzi-type scheme involving owner-financed houses.
This company was in a receivership, Ian Ghrist was the receiver, and Coker et. al.
were the creditors. Ferguson was Coker’s lawyer, but Ferguson has been trying to
take Coker’s assets.)
Elmer Hernandez (J. Michael Ferguson sold the Purselley Property to Mr.
Hernandez and his wife.)
Sendera Title (Sendera Title company handled the sale of Elmer Hernandez’s
house to a buyer who acquired a title insurance policy after the mortgage payoff
funds were deposited into the court’s registry in Cause No. 017-287611-16, 17th
District Court, Tarrant County, Texas).
Elizabeth Espino, Kathy Montes, and Lucy Olivas are employees of Sendera Title
that were sued individually for no discernable reason.
Shawn Coker, Neighborhood Partner Inc., Blue Moon Realty Group LLC, and
Wizard Funding LLC were Attorney Ferguson’s clients in Cause Nos. 236-
269254-13 and 236-248435-10 wherein the Purselley Property was acquired by
Coker et. al. due to Ghrist’s legal work in recovery of assets.




BRIEF OF APPELLANTS                                                    Page 11 of 82
           ABBREVIATIONS AND RECORD REFERENCES



     [Vol.#]CR[page#]     Clerk’s Record
     [Vol.#] RR [Page#]   Reporter’s Record
     Appx. [Tab#]         Appellants’ Appendix
     App. Br. [page#]     Appellants’ Brief




BRIEF OF APPELLANTS                              Page 12 of 82
                        STATEMENT OF THE CASE


      This is an appeal from a motion to dismiss filed pursuant to Chapter 27 of

the Texas Civil Practice and Remedies Code. The motion was filed on 10/16/2017.

The motion was heard 11/13/2017. An order denying the motion was signed

11/14/2017.




BRIEF OF APPELLANTS                                                    Page 13 of 82
            STATEMENT REGARDING ORAL ARGUMENT


  Appellants do not request oral argument.




BRIEF OF APPELLANTS                             Page 14 of 82
                              ISSUES PRESENTED


  1. Should any of Plaintiffs’ claims have been dismissed pursuant to Chapter 27
     of the Texas Civil Practice and Remedies Code?

  2. Were any of the Plaintiffs’ actions exempt from Chapter 27?

  3. Did Defendants’ meet their initial burden of showing that the action was
     based on, relates to, or is in response to the party’s exercise of the right of
     free speech, the right to petition, or the right of association?

  4. Did Plaintiffs’ establish by clear and specific evidence a prima facie case for
     each essential element of their claims?

  5. Did Defendants’ establish any affirmative defenses by a preponderance of
     the evidence?

  6. Was Plaintiffs’ motion to dismiss under Chapter 27 filed solely with intent
     to delay or frivolous?

  7. When the trial court’s order read that “Plaintiffs’ Objections to Defendants’
     Motion to Dismiss are sustained” was that meant to sustain Defendants’
     extremely voluminous evidentiary objections filed on the day of the hearing
     and not discussed at the hearing, or not?

  8. If the portion of the trial court’s order reading “Plaintiffs’ Objections to
     Defendants’ Motion to Dismiss are sustained” could be interpreted as
     sustaining the extremely voluminous evidentiary objections filed the
     morning of the hearing and not discussed at the hearing, then should any of
     those objections have been sustained?




BRIEF OF APPELLANTS                                                       Page 15 of 82
                              STATEMENT OF FACTS


The Libel Claim

       Ian Ghrist wrote a letter to Elmer Hernandez dated February 6th, 2017.1 In

the letter, Ghrist described the allegations made in Cause No. 017-287611-16,

including allegations that Ferguson misappropriated funds, discussed the lis

pendens on file in such case, including the effect of the lis pendens on the sale of

Mr. Hernandez’s house, and suggested that the payoff funds on the mortgage be

deposited to the Court’s registry rather than paid to Ferguson.2 Ferguson filed the

case at bar against Ghrist alleging that the letter constituted libel per se.3 The letter,

however, was based on, related to, or was in response to Ghrist’s exercise of the

right to petition in Cause No. 017-287611-16 and free speech.4

The Myriad Other Claims

       Ferguson also sued Sendera Title Company (the title company that handled

the closing of the sale of Elmer Hernandez’s house) for violation of the fraudulent

lien statute, conversion, conspiracy, breach of fiduciary duty, deceptive trade




1
  2 CR 678.
2
  Id.
3
  1 CR 15-16.
4
  Tex. Civ. Prac. & Rem. Code § 27.003(a).
BRIEF OF APPELLANTS                                                          Page 16 of 82
practices, negligence, and gross negligence.5 Ferguson also sued three employees

of Sendera Title Company for violation of the fraudulent lien statute, conversion,

and conspiracy.6 Ferguson also sued Shawn Coker, Neighborhood Partner Inc.

(“NPI”), Blue Moon Realty Group LLC (“BMRG”), and Wizard Funding LLC

(“Wizard”) for violation of the fraudulent lien statute, conversion, and conspiracy.7

The conspiracy claims are based on, relate to, or are in response to exercise of the

right of association.8 The remaining claims are based on, relate to, or are in

response to exercise of free speech, the right to petition, and the right of

association.9 All claims relate to the sale of Elmer Hernandez’s house and

statements made in connection therewith.

Background

       Ferguson and Ghrist are attorneys who used to work together with Shawn

Coker, NPI, BMRG, and Wizard as clients.10 Ferguson and Ghrist recovered forty-

one (41) mortgages on behalf of Coker, NPI, BMRG, and Wizard from David

Boles and Metro Buys Homes LLC et. al. in two lawsuits, Cause Nos. 236-




5
  2 CR 529.
6
  Id.
7
  Id.
8
  Tex. Civ. Prac. & Rem. Code § 27.003(a).
9
  Id.
10
   1 CR 44-50, 395-400.
BRIEF OF APPELLANTS                                                        Page 17 of 82
269254-13 and 236-248435-10 both in Tarrant County, Texas.11 In a contingency

fee agreement, Coker et. al. were to receive 60% of the mortgages or properties,

while Ferguson would receive 26.66% and Ghrist would receive 13.33%.12 When

the mortgages were acquired, Attorney Ferguson and his wholly-owned

companies, AFI Loan Servicing LLC and Anson Financial Inc. (collectively

“Anson”), serviced the loans, collecting payments from the borrowers.13 After

Attorney Ferguson made inconsistent underpayments to Coker, failed to pay

Ghrist, provided improper accounting, and refused to allow a neutral, independent

third-party to take over handling of the money, Coker et. al. threatened Attorney

Ferguson with suit to compel turnover of the mortgages and funds that Attorney

Ferguson was wrongfully withholding from his client and Ghrist.14

       Coker and Ferguson then entered into a settlement agreement whereby

Ferguson purchased Coker’s stake in the mortgages.15 Coker tried to include Ghrist

in the settlement as Ghrist was demanding payment of Ferguson and had joined in

the demand for a neutral third party to handle the funds, but Ferguson refused to




11
   1 CR 30.
12
   1 CR 47-50, 53-55, 115-16, 324-26.
13
   1 CR 49, 117, 395-99.
14
   1 CR 47-50, 117, 181, 324, 326, 330-31, 335, 397-399.
15
   1 CR 46, 168, 171-72; 2 CR 640.
BRIEF OF APPELLANTS                                                     Page 18 of 82
include Ghrist in settlement talks, let alone the settlement itself, thus, causing the

dispute being litigated in Cause No. 017-287611-16.16

       In Cause No. 017-287611-16, Ghrist et. al. v. Ferguson et. al., 17th Dist. Ct.,

Tarrant County, TX, Ferguson and Ghrist are litigating whether Ghrist acquired a

13.33% interest in MBH Real Estate LLC and property recovered from Cause Nos.

236-269254-13 and 236-248435-10 (The “MBH Portfolio”) and whether Ferguson

and Ghrist were engaged in a joint venture related to the foregoing or whether the

relationship was merely contractual, among other things.17 Ferguson has

acknowledged in writing that Ghrist did acquire an interest in the MBH Portfolio.18

Accordingly, Ghrist will likely prevail on claims of both equitable and legal title.19

Regardless, that dispute is being litigated in a different court and should not be re-

litigated here.

       The gist of Ferguson’s lawsuit in the case at bar appears to be that, despite

Ferguson having agreed in writing to Ghrist’s 13.33% ownership stake in MBH

Real Estate LLC and property recovered from Cause Nos. 236-269254-13 and 236-




16
   1 CR 181, 186-192.
17
   1 CR 124-25; 2 CR 822-23 (the written agreement between Ferguson and Ghrist), 1 CR 53-55,
324-26, 395-99, 406.
18
   1 CR 124-25; 2 CR 822-23 (the written agreement between Ferguson and Ghrist).
19
   1 CR 53-55, 124-25, 127-165, 336, 409; 2 CR 822-23 (the written agreement between
Ferguson and Ghrist); 1 CR 145, 147, 203 (other documents created or propounded by Ferguson
that acknowledge Ghrist’s 13.33% ownership stake).
BRIEF OF APPELLANTS                                                             Page 19 of 82
248435-10,20 Ghrist did not acquire the interest that Ferguson agreed to, and

consequently, Ghrist’s actions in dealing with the lis pendens were wrongful and

that Coker, Wizard, BMRG, NPI, Sendera Title, and Sendera Title’s employees

should all be additionally responsible.21 This is essentially a dispute between two

attorneys about a joint venture between them and involving third-parties like

Sendera Title and Coker et. al. was completely inappropriate and puerile.

The Conveyance of the Purselley Property

       Elmer Hernandez was a borrower on a mortgage acquired by

Ferguson/Ghrist on behalf of Coker et. al. from David Boles et. al.22 Elmer

Hernandez initiated a sale of 2420 Purselley Ave, Fort Worth, TX 761124 (The

“Subject Property” or the “Purselley Property”) with Sendera Title Company.23

Sendera Title Company found the lis pendens filed by Ghrist in Cause No. 017-

287611-16 and contacted Ghrist about releasing the lis pendens.24 Ghrist agreed to

release the lis pendens and lien upon deposit of the mortgage payoff funds into the




20
   1 CR 124-25; 2 CR 822-23 (the written agreement between Ferguson and Ghrist); 1 CR 145,
147, 203 (other documents created or propounded by Ferguson that acknowledge Ghrist’s
13.33% ownership stake).
21
   1 CR 11, 15, 20, 25.
22
   2 CR 680-91; 1 CR 133-34, 306-08; 1 CR 370-71 (Ghrist’s affidavit explaining what
happened).
23
   1 CR 373-91.
24
   Id.
BRIEF OF APPELLANTS                                                              Page 20 of 82
registry of the court in Cause No. 017-287611-16.25 Ghrist sent a letter to Elmer

Hernandez about the foregoing.26 Sendera Title also asked Coker et. al. to sign a

release of judgment.27 Coker et. al. signed the release of judgment.28 Ferguson

alleges that the statements made by the various Defendants in connection with the

foregoing were wrongful, that the lien releases signed by Coker and Ghrist were

wrongful, and that Ferguson suffered injury29 because the payoff funds went

temporarily into the court’s registry on 2/14/201730 only to be released to Ferguson

a few weeks later on 4/12/2017.31 Accordingly, even if Ferguson can prove up

some cause of action, which he cannot, he received all of the money that he

complains of, thus, leaving all Defendants to baffle at why this suit was filed.

       Regarding the release of judgment signed by Coker et. al., the judgment was

taken May 15th, 2013;32 the judgment was extinguished and void on Feb. 20th, 2015

as to the Purselley Property when the property was awarded to the judgment

creditor by turnover order.33 Coker et. al. acknowledged the foregoing on Feb. 9th,




25
   Id.
26
   2 CR 678.
27
   1 CR 373.
28
   2 CR 672-73.
29
   1 CR 11, 15, 20, 25.
30
   2 CR 850.
31
   2 CR 845-46, 852; 1 CR 370, ¶ 15 (Ghrist’s affidavit stating that the payoff funds were paid to
Ferguson).
32
   2 CR 695-714.
33
   1 CR 133-34.
BRIEF OF APPELLANTS                                                                  Page 21 of 82
2017 in response to Sendera Title’s request so as to avoid liability to Elmer

Hernandez for wrongful refusal to acknowledge that the turnover order had

extinguished any judgment lien.34 Ferguson’s only reason for complaining of the

foregoing could be that he intended to fraudulently allege to Elmer Hernandez that

the judgment lien was still valid when it clearly was not. Ferguson’s lawsuit to

protect his wrongful intentions here is utterly groundless. The lien was void and

released long before Ferguson bought the judgment from Coker, the lien clearly

did not encumber Elmer Hernandez’s title, and Coker’s acknowledgement of the

foregoing was proper in every respect.

          Regarding the release of lien signed by Ghrist,35 that was also done to avoid

liability to Elmer Hernandez for the benefit of Coker, Ghrist, and Ferguson.36

Elmer Hernandez’s closing on the sale of his house was stalled by the lis pendens

on file in Cause No. 017-287611-16.37 No one could reasonably dispute that Mr.

Hernandez was entitled to sell his house, but Ghrist alleged that the proceeds from

the sale belonged to Ghrist because Ferguson had misappropriated Ghrist’s funds




34
   2 CR 672-73; 1 CR 373-91 (emails with Sendera Title); 1 CR 370-71 (Ghrist’s affidavit
explaining what happened).
35
   2 CR 674-75.
36
     1 CR 370-71.
37
 1 CR 373-91 (emails with Sendera Title), 2 CR 716, 759, 845.
BRIEF OF APPELLANTS                                                              Page 22 of 82
by more than the amount of the lien proceeds in connection with the joint venture

between Ghrist and Ferguson, among other allegations.38

Ferguson’s Unclean Hands

       It should be noted that MBH Real Estate LLC was never even the owner of

the Purselley Property or Mr. Hernandez’s mortgage. Ferguson conveyed the

Purselley Property to Metro Buys Homes LLC by trustee’s foreclosure deed

recorded under Instrument No. D215075534 in the Tarrant County, Texas deed

records. Ferguson conveniently left this fact out of his response to the TCPA

motion. Ferguson filed his response to the motion on the morning of the hearing

such that Ghrist did not have time to review the response and add Instrument No.

D215075534 to the record prior to the hearing to correct Ferguson’s materially

misleading omission of this portion of the chain-of-title on the Purselley Property.

Regardless, Ferguson did not and cannot prove that MBH Real Estate LLC ever

owned the Purselley Property, which prevents him from proving up any of the

myriad claims that he raised in this suit. Because MBH Real Estate LLC never




38
  1 CR 53-55, 145, 147, 203, 222-304 (accountant’s report showing funds misappropriated by
Ferguson that belong to Ghrist), 397, 409; 2 CR 822-23 (the written agreement between
Ferguson and Ghrist).
BRIEF OF APPELLANTS                                                               Page 23 of 82
owned the Purselley Property, the Plaintiffs lack standing to assert the claims

asserted.

      Ferguson fraudulently seller-financed the property to Elmer Hernandez

listing MBH Real Estate LLC as the Grantor, after having previously conveyed the

property to Metro Buys Homes LLC. Ferguson, thus, deeded the property to two

different Grantees, which is exactly what landed David Boles (the owner of Metro

Buys Homes) in federal prison. Ferguson never had authority over Metro Buys

Homes LLC (only Ghrist did, as receiver).39 Accordingly, the release of lien that

Ghrist signed was properly signed by Ghrist rather than Ferguson, but that is just

one example of many mistakes caused by and arising from Ferguson’s

inappropriate sale of the property to Elmer Hernandez by an entity that never

owned the property to begin with. Fixing Ferguson’s mistakes so as to avoid

liability to Elmer Hernandez for Ferguson’s misconduct has been a tremendous

burden on Sendera Title, Ghrist, Coker, and especially Mr. Hernandez.




39
 2 CR 724, 799-801.
BRIEF OF APPELLANTS                                                      Page 24 of 82
         Timeline

 February 20th, 2015                             Mortgage note and lien on Purselley
                                                 Property conveyed to Coker et. al. by
                                                 turnover order.40
 April 10th, 2015                                J. Michael Ferguson conveys the
                                                 Purselley Property to Metro Buys
                                                 Homes LLC by trustee’s foreclosure
                                                 deed. Ferguson fraudulently conveyed
                                                 the property here to Metro Buys
                                                 Homes LLC even though he should
                                                 have conveyed it to Coker et. al., being
                                                 the actual noteholder due to the
                                                 turnover order.41
 September 16th, 2015                            Ferguson signs a fraudulent special
                                                 warranty deed on the Purselley
                                                 Property to Elmer Hernandez on behalf
                                                 of MBH Real Estate LLC, an entity not
                                                 in the chain-of-title.42

         The Appellants ask for leave to file a certified copy of Instrument Number

D215075534 in the Tarrant County, Texas Deed Records so as to cure Ferguson’s

material omission from the chain-of-title. The certified instrument is attached

hereto as Appx. 2. However, the turnover order is in the record,43 which means that

Ferguson cannot carry his burden of proof to show that MBH Real Estate LLC




40
     1 CR 133-34.
41
     Instrument No. D215075534 filed in the Tarrant County, Texas Real Property Records, Appx.
2.
42
 2 CR 683.
43
 1 CR 133-34.
BRIEF OF APPELLANTS                                                              Page 25 of 82
ever acquired title, regardless of whether the Court considers Instrument No.

D215075534.




BRIEF OF APPELLANTS                                                     Page 26 of 82
                             SUMMARY OF ARGUMENT


Movant’s Burden

       The movant’s burden is to show that a “legal action is based on, relates to, or

is in response to a party’s exercise of the right of free speech, right to petition, or

right of association.”44 The movant’s burden in this case was established as to the

right to petition, the right of free speech, and the right of association. The TCPA

does not require the movant to present testimony or any evidence as the burden

may be carried solely based upon consideration of the pleadings as evidence.45

       Movant’s Burden—Right to Petition

       Ferguson accuses Ghrist of libel because Ghrist wrote a letter to Hernandez

stating that Ferguson “is the Defendant in a lawsuit involving misappropriation of

funds . . . .”46 Ferguson is the Defendant in Cause No. 017-287611-16 and he has

been accused by Ghrist of misappropriating funds in that case.47 Ghrist has shown

that this legal action relates to statements made in Cause No. 017-287611-16 and

Ghrist’s right to petition therein.




44
   Tex. Civ. Prac. & Rem. Code § 27.003 (LexisNexis, Lexis Advance through the 2017 Regular
Session and 1st C.S., 85th Legislature).
45
   Id.
46
   2 CR 678 (Letter Ghrist Wrote to Hernandez); 1 CR 15 (Plaintiff’s Petition in This Case).
47
   1 CR 393, 400-02, 404.
BRIEF OF APPELLANTS                                                                Page 27 of 82
       If a lawsuit, like this one, is filed in response to allegations being made in

another lawsuit (in this case, being Cause No. 017-287611-16 in the 17th District

Court) then the movant has carried the movant’s burden under the TCPA by

showing statements made in response to the right of petition.48

       Movant’s Burden—Right of Association

       The right of association has been broadly defined as applying to

communications “between individuals who join together to collectively . . .

promote, pursue, or defend common interests.”49 In Elite Auto Body LLC v.

Autocraft Bodywerks, Inc.,50 when former employees left for a new company,

shared information, and the former employer alleged that the information shared

was confidential and should not have been shared, then that sharing of information

was held to be a communication between individuals who joined together to

collectively promote their business interests, thus, satisfying the movant’s TCPA

burden on the right of association. In this case, the Defendants shared information




48
   Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015) (when one lawsuit is filed
in response to another, the movant’s TCPA burden is established because the movant has shown
that the new lawsuit was filed “in response to” the other lawsuit).
49
   Id. at 205.
50
   Id.
BRIEF OF APPELLANTS                                                             Page 28 of 82
(emails)51 and made statements (letter to Elmer Hernandez52 and lien releases)53 for

the purposes of effectuating the sale of Elmer Hernandez’s house in a way that

protected the business interests of all involved in the transaction. Accordingly, the

statements related to the right of association as the statements were made in

connection with Ghrist, Coker, and Sendera Title’s employees’ attempts to join

together to accomplish the sale of Elmer Hernandez’s house in a way that protected

the interests of all parties concerned.

       Movant’s Burden—Free Speech

       “The TCPA defines ‘exercise of the right of free speech’ as ‘a

communication made in connection with a matter of public concern.’ Tex. Civ.

Prac. & Rem. Code § 27.001(3) . . . . [A] ‘'[m]atter of public concern' includes an

issue related to: (A) health or safety; (B) environmental, economic, or community

well-being; (C) the government; (D) a public official or public figure; or (E) a

good, product, or service in the marketplace.’ Id. § 27.001(7).”54 In this case, the

lis pendens, Coker et. al.’s abstract of judgment, the mortgage lien on the Purselley

Property, and the disputed release documents signed by Ghrist and Coker all




51
   1 CR 372-91
52
   2 CR 678-79.
53
   2 CR 672-75.
54
   ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898-99 (Tex. 2017).
BRIEF OF APPELLANTS                                                          Page 29 of 82
related to title to the Purselley Property and to the title insurance policy to be

provided by Sendera Title. Accordingly, those statements were made in connection

with a matter of public concern, being the title to the Purselley Property and the

title insurance policy that Sendera Title put into the marketplace.

      The Texas legislature enacted a comprehensive statutory recording system

for the purpose of putting the public on notice of claims or potential claims

affecting real property.55 In this case, the statements in the emails between Ghrist,

Coker, and Sendera Title; the statements made in the releases that are purported to

be “fraudulent”; and the statements in the letter from Ghrist to Hernandez all relate

to title issues that should be recorded publicly, and as such, are a matter of public

concern.

      The statements about title to the Purselley Property made between Ghrist,

Coker, and Sendera Title’s employees were related to a “good, product, or service

in the marketplace,” specifically the title insurance policy to be provided by

Sendera Title to the buyer of Elmer Hernandez’s house. The house itself was also a

product in the marketplace and the statements made related to liens on the house

and how Sendera Title would clear title to the house before issuing a title policy.




55
  Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 519 (Tex. App.—Fort Worth
2015) (discussing the purpose of the public recording system).
BRIEF OF APPELLANTS                                                         Page 30 of 82
       The statements made also related to economic or community well-being.

Specifically, the allegation that Attorney Ferguson misappropriated funds is a

matter of community and economic well-being. Communications about a lawyer’s

handling of cases has been held to be a matter of public concern.56 Statements

about the possibility that a property manager has misappropriated funds has been

held to be a matter of community and economic well-being.57

Movant’s Burden Met as to More Than Just Libel Claim

       Ferguson also alleged, and the trial judge apparently agreed, that the TCPA

motion was frivilous because the motion failed to state that it was filed solely on

the libel claims,58 however, the TCPA has been broadly applied to far more than

mere defamation and libel. The TCPA has been applied to conversion, civil

conspiracy, misappropriation, breach of contract, and many other causes of

action.59 The TCPA inquiry “does not focus on whether . . . conversion and




56
   Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015); Avila v.
Larrea, 394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied).
57
   Neyland v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337, at *8-9 (App.—
Austin Apr. 7, 2015).
58
   1 RR 16, 27.
59
   Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 733 (Tex. App.—Houston [14th Dist.] 2013)
(movant’s burden on TCPA motion satisfied as to conversion, civil conspiracy, and
misappropriation claims); Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191,
194 (Tex. App.—Austin 2017) (TCPA applied to trade-secret misappropriation, violation of
Texas Uniform Trade Secrets Act, unfair competition, breach of fiduciary duty, and civil
conspiracy).
BRIEF OF APPELLANTS                                                               Page 31 of 82
misappropriation claims arise from the assertedly libelous nature of the . . .

statements” because “[t]he statute broadly encompasses a ‘cause of action’ that

‘relates to’ free speech.”60 In ExxonMobile Pipelinne Co. v. Coleman, the Texas

Supreme Court went so far as to apply the TCPA to internal emails about a

“private employment matter” because the statements related to a pipeline that

could have caused environmental damage, which made the statements a matter of

public concern, despite their private, internal, and employment-related nature.61

Plaintiff’s Lack of Clear and Specific Evidence and Defendants’ Clear
Affirmative Defenses
       The Plaintiffs did not offer clear and specific evidence of how the releases

that were signed were fraudulent, how the Plaintiffs even have standing given that

the Plaintiffs never had title to the Subject Property, how the Plaintiffs experienced

any injuries given that the Plaintiffs ultimately received all of the payoff funds that

the Plaintiffs have complained about, or what the Plaintiffs ultimately seek to

accomplish by this suit, other than to harass and annoy Ghrist and Coker because

the Plaintiffs are very angry that Ghrist sued them in a separate lawsuit alleging

that Ferguson misappropriated funds, among other things.




60
   Rehak, 404 S.W.3d at 733. (finding “no difficulty” in concluding that the movant’s TCPA
burden was established where the conversion and misappropriation causes of action “have a
connection” with a communication related to free speech) (emphasis added).
61
   ExxonMobil Pipeline Co., 512 S.W.3d at 900.
BRIEF OF APPELLANTS                                                                Page 32 of 82
       Ferguson’s Deceptive Trade Practices Act (“DTPA”) claims are utterly

frivolous given that none of the Plaintiffs were seeking or acquiring goods or

services from any of the Defendants. The buyer of Elmer Hernandez’s house was

seeking a title insurance policy from Sendera Title company. Ghrist, Coker et. al.,

and Sendera Title were not selling any goods or services to Ferguson or Ferguson’s

companies, the Plaintiffs. Ferguson was demanding a payoff on a mortgage from

Sendera Title company and was angry that Ghrist’s lis pendens was preventing that

from happening. No one was selling any goods or services to Ferguson or his

companies, the Plaintiffs, in the transaction whereby Elmer Hernandez sold the

Purselley Ave property.

       Several affirmative defenses are clearly shown by the evidence. First, the

judicial privilege62 provides absolute protection from the libel claim because the

allegedly libelous statement was merely a statement that Ferguson was sued for

misappropriation of funds. Ferguson was, in fact, sued for misappropriation of

funds.63 Ghrist also has attorney immunity, which is an unqualified defense even to




62
   Jenevein v. Friedman, 114 S.W.3d 743, 747 (Tex. App.—Dallas 2003); Bell v. Lee, 49 S.W.3d
8, 10-11 (Tex. App.—San Antonio 2001); Gaither v. Davis, 582 S.W.2d 913, 913 (Tex. Civ.
App.—Fort Worth 1979); Restatement (Second) of Torts § 585 (1977).
63
   1 CR 397-411.
BRIEF OF APPELLANTS                                                             Page 33 of 82
conduct alleged to be fraudulent if the conduct is “within the scope of [the

attorney’s] legal representation.”64

       Further, the allegedly wrongful release of judgment and release of lien are

protected by the qualified privilege that applies to protection of interests of the

publisher of the statement.65 Where “offending conduct” is “related to the

legitimate interests of the defendant’s own operations” the conduct is privileged.66

In this case, Coker and Ghrist issued the release of judgment and release of lien so

as to avoid liability to Elmer Hernandez and to protect Ghrist’s and Coker’s

interests. The conduct was, accordingly, privileged from the various tort claims

raised in this suit.




64
   Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
65
   Restatement (Second) of Torts §§ 594, 596 (1977); Sw. Bell Tel. Co. v. Dixon, 575 S.W.2d
596, 599 (Tex. Civ. App.—San Antonio 1978) (investigation of reports of employee misconduct
privileged, findings of jury to the contrary disregarded because the existence of the privilege is a
matter of law for the Court to decide)
66
   Hous. Oilers v. Harris Cty., 960 F. Supp. 1202, 1208 (S.D. Tex. 1997).
BRIEF OF APPELLANTS                                                                   Page 34 of 82
                            STANDARD OF REVIEW


      A trial court’s ruling on a motion to dismiss under the TCPA is reviewed de

novo. Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 892 (Tex. App.—

Houston [1st Dist.] 2015). A trial court’s ruling on evidentiary objections is

reviewed for abuse of discretion. Lewis v. State, No. 02-16-00179-CR, 2017 Tex.

App. LEXIS 5794, at *26 (App.—Fort Worth June 22, 2017); Owens-Corning

Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.]

1996) (“appellant must show that the trial court’s ruling was erroneous” and that

the error caused improper judgment). Questions of law are subject to de novo

review. Taylor v. Lubbock Reg'l MHMR, No. 07-13-00381-CV, 2015 Tex. App.

LEXIS 10392, at *4 (App.—Amarillo Oct. 7, 2015).




BRIEF OF APPELLANTS                                                       Page 35 of 82
                                       ARGUMENT

       The basis of most claims in this suit is a release of judgment67 signed by

Coker and a release of lien signed by Ghrist.68 The TCPA has been applied to any

“communication” with communication being defined as “the making, or

submitting of a statement or document in any form or medium, including oral,

visual, written, audiovisual, or electronic.”69 The lien releases themselves were

“documents” that were “submitted” for public recording, thus, making them

communications under the TCPA. The TCPA has been applied to statements

“without regard to whether” the “statements effected . . . misappropriation or

misuse of . . . trade secrets or confidential information, or would be constitutionally

unprotected.”70 Accordingly, it matters not whether the lien releases in this case, or

other statements, form the basis of the causes of action or whether the statements

that the judgment was released or the lien was released constituted constitutionally-




67
   2 CR 672-73 (release instrument); 1 CR 11 (Plaintiff’s petition alleging wrongfulness of
instrument).
68
   2 CR 674-75 (release instrument); 1 CR 11 (Plaintiff’s petition alleging wrongfulness of
instrument).
69
   Elite Auto Body, 520 S.W.3d at 204. (referencing Tex. Civ. Prac. & Rem. Code § 27.001(1)).
70
   Id.
BRIEF OF APPELLANTS                                                                 Page 36 of 82
protected speech or not, at least for purposes of the movant meeting the movant’s

initial burden under the TCPA.71

       The movant need only show that statements were made, that those

statements have some connection to the various causes of action, and that the

statements have some relation to free speech, the right to petition, or the right of

association, with all of the foregoing being broadly defined to effectuate the

purpose of the statute.

       For example, when Ghrist stated in the release of lien that the lien had been

released, that statement had a connection to Ghrist’s claims, under his right of

petition, raised in Cause No. 017-287611-16 because Ghrist alleged in such suit

that MBH Real Estate LLC was the product of a joint venture between Ghrist and

Ferguson, and that Ghrist’s 13.33% interest in MBH Real Estate LLC should be

protected from potential liability to Elmer Hernandez by release of the lien on

Elmer Hernandez’s house upon payoff of the mortgage.

       All of the Defendants were engaged in the right of association by joining

together in communications for the purpose of selling Elmer Hernandez’s house to




71
  Id. at 204-05 (pointing out that whether the speech was constitutionally protected or not was
not relevant to the movant’s initial burden, but rather only relevant to the “second part” of the
analysis, in which the nonmovant must establish the claim).
BRIEF OF APPELLANTS                                                                   Page 37 of 82
a buyer with a title insurance policy in a way that protected the legal interests of all

parties involved. If Coker had not signed the release of judgment, then Coker

would have incurred liability to Hernandez. Ghrist similarly would have incurred

liability to Hernandez by failing to assist in the release of the lien. Accordingly,

whether the conduct was wrongful or not, the conduct was part of an association of

persons for the purpose of protecting those person’s interests. Sendera Title

company is in the business of insuring title to real property and joined in

communications with Ghrist and Coker to further Sendera Title’s business

operations.

      Moreover, there is also a connection to the right of free speech because the

nature of the public statutory recording system is such that statements affecting

title, like title to the Purselley Property, are matters of public concern.

Additionally, statements about an attorney’s misappropriation of funds are a matter

of public concern. Finally, statements about the quality or nature of title to real

property are related to a product or service in the marketplace, namely, a title

insurance policy provided by Sendera Title upon payoff of the mortgage lien on the

Purselley Ave property.




BRIEF OF APPELLANTS                                                           Page 38 of 82
     I.   OPERATION OF THE TCPA EXPLAINED

          The basic operation of the TCPA is straightforward: If, as here, a legal action

“is based on, relates to, or is in response to the party’s exercise of: (1) the right of

free speech; (2) the right to petition; or (3) the right of association,” then the claim

is subject to a motion to dismiss that must be granted unless the respondent can

establish “by clear and specific evidence a prima facie case for each essential

element” of his or her claim. 72 Furthermore, if the movant can establish an

affirmative defense by a preponderance of the evidence, the motion must be

granted.73 The movant’s burden of showing that some statements have some relation

to the right of free speech, right to petition, or the right of association is sometimes

referred to as the first prong, step, or stage. The nonmovant’s burden of clear and

specific evidence of each cause of action is sometimes referred to as the second

prong, step, or stage. The affirmative defenses shown by movant are sometimes

referred to as the third prong, step, or stage.

          Matters of public concern include issues related to “environmental, economic,

or community well-being” and “a good, product, or service in the marketplace.”74




72
   Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b), (c) (West 2013) (emphasis added).
73
   Id. at § 27.005(d).
74
   Id. at 27.001(7).
BRIEF OF APPELLANTS                                                             Page 39 of 82
The Texas Supreme Court has interpreted “matters of public concern” broadly.75 The

TCPA defines “exercise of the right of association” broadly to mean “a

communication between individuals who join together to collectively express,

promote, pursue, or defend common interests.”76

       Standards for Granting or Denying the Motion to Dismiss Under the TCPA.

In general, the court must grant a motion under the TCPA and dismiss the action

within the 30-day window if the movant shows by a preponderance of the evidence

that the action is based on, relates to, or is in response to the party’s exercise of the

right of free speech, the right to petition, or the right of association.77 The claimant

may avoid dismissal, however, by establishing through “clear and specific evidence”

a prima facie case for each essential element of the claim in question.78 Even if the

claimant makes the required showing of clear and specific evidence for each

essential element of the claim, the movant may nevertheless obtain dismissal if it

establishes by a preponderance of the evidence each essential element of a valid

defense to the claim.79




75
   Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
76
   Tex. Civ. Prac. & Rem. Code § 27.001(2).
77
   Tex. Civ. Prac. & Rem. Code § 27.005(b).
78
   Tex. Civ. Prac. & Rem. Code § 27.005(c); 20-333 Dorsaneo, Texas Litigation Guide § 333.42
(2017).
79
   Tex. Civ. Prac. & Rem. Code § 27.005(d).
BRIEF OF APPELLANTS                                                             Page 40 of 82
II.     MOVANT’S BURDEN ESTABLISHED AS TO THE RIGHT TO
        PETITION IN CAUSE NO. 017-287611-16

        Ferguson accuses Ghrist of libel because Ghrist wrote a letter to Hernandez

stating that Ferguson “is the Defendant in a lawsuit involving misappropriation of

funds . . . .”80 Ferguson is the Defendant in Cause No. 017-287611-16 and he has

been accused by Ghrist of misappropriating funds in that case.81 Ghrist has shown

that this legal action relates to statements made in Cause No. 017-287611-16 and

Ghrist’s right to petition therein.

     If a lawsuit, like this one, is filed in response to allegations being made in

another lawsuit (in this case, being Cause No. 017-287611-16 in the 17th District

Court) then the movant has carried the movant’s burden under the TCPA by

showing statements made in response to the right of petition.82




80
   2 CR 678 (Letter Ghrist Wrote to Hernandez); 1 CR 15 (Plaintiff’s Petition in This Case).
81
   1 CR 393, 400-02, 404.
82
   Serafine, 466 S.W.3d at 360. (when one lawsuit is filed in response to another, the movant’s
TCPA burden is established because the movant has shown that the new lawsuit was filed “in
response to” the other lawsuit).
BRIEF OF APPELLANTS                                                                  Page 41 of 82
III.    MOVANT’S BURDEN ESTABLISHED AS TO THE RIGHT OF
        ASSOCIATION BECAUSE THE DEFENDANTS COMMUNICATED
        WITH EACH OTHER FOR THE PURPOSE OF FACILITATING
        THE SALE OF ELMER HERNANDEZ’S HOUSE IN A WAY THAT
        PROTECTED THE INTERESTS OF ALL PARTIES

     The right of association has been broadly defined as applying to

communications “between individuals who join together to collectively . . .

promote, pursue, or defend common interests.”83 In Elite Auto Body LLC v.

Autocraft Bodywerks, Inc.,84 when former employees left for a new company,

shared information, and the former employer alleged that the information shared

was confidential and should not have been shared, then that sharing of information

was held to be a communication between individuals who joined together to

collectively promote their business interests, thus, satisfying the movant’s TCPA

burden on the right of association.

     In this case, the Defendants shared information (emails)85 and made statements

(letter to Elmer Hernandez86 and lien releases)87 for the purposes of effectuating

the sale of Elmer Hernandez’s house in a way that protected the business interests

of all involved in the transaction. Accordingly, the statements related to the right of




83
   Id. at 205.
84
   Id.
85
   1 CR 372-91
86
   2 CR 678-79.
87
   2 CR 672-75; 1 CR 370-71 (Ghrist’s affidavit explaining what happened).
BRIEF OF APPELLANTS                                                          Page 42 of 82
association as the statements were made in connection with Ghrist, Coker, and

Sendera Title’s employees’ attempts to join together to accomplish the sale of

Elmer Hernandez’s house in a way that protected the interests of all parties

concerned.


IV.   MOVANT’S BURDEN ESTABLISHED AS TO FREE SPEECH
      BECAUSE TITLE TO THE PURSELLEY PROPERTY IS A
      MATTER OF PUBLIC CONCERN, ALONG WITH ALLEGATIONS
      THAT AN ATTORNEY MISAPPROPRIATED FUNDS, AND THE
      COMMUNICATIONS RELATED TO THE PROVISION OF A TITLE
      INSURANCE POLICY BY SENDERA TITLE, WHICH IS A
      PRODUCT IN THE MARKETPLACE

      “The TCPA defines ‘exercise of the right of free speech’ as ‘a

communication made in connection with a matter of public concern.’ Tex. Civ.

Prac. & Rem. Code § 27.001(3) . . . . [A] ‘'[m]atter of public concern' includes an

issue related to: (A) health or safety; (B) environmental, economic, or community

well-being; (C) the government; (D) a public official or public figure; or (E) a

good, product, or service in the marketplace.’ Id. § 27.001(7).”88 In this case, the

lis pendens, Coker et. al.’s abstract of judgment, the mortgage lien on the Purselley

Property, and the disputed release documents signed by Ghrist and Coker all

related to title to the Purselley Property and to the title insurance policy to be




88
 ExxonMobil Pipeline Co., 512 S.W.3d at 898-99.
BRIEF OF APPELLANTS                                                         Page 43 of 82
provided by Sendera Title. Accordingly, those statements were made in connection

with a matter of public concern, being the title to the Purselley Property and the

title insurance policy that Sendera Title put into the marketplace.

      The Texas legislature enacted a comprehensive statutory recording system

for the purpose of putting the public on notice of claims or potential claims

affecting real property.89 In this case, the statements in the emails between Ghrist,

Coker, and Sendera Title; the statements made in the releases that are purported to

be “fraudulent”; and the statements in the letter from Ghrist to Hernandez all relate

to title issues that should be recorded publicly, and as such, are a matter of public

concern.

      The statements about title to the Purselley Property made between Ghrist,

Coker, and Sendera Title’s employees were related to a “good, product, or service

in the marketplace,” specifically the title insurance policy to be provided by

Sendera Title to the buyer of Elmer Hernandez’s house. The house itself was also a

product in the marketplace and the statements made related to liens on the house

and how Sendera Title would clear title to the house before issuing a title policy.




89
  Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 519 (Tex. App.—Fort Worth
2015) (discussing the purpose of the public recording system).
BRIEF OF APPELLANTS                                                         Page 44 of 82
      The statements made also related to economic or community well-being.

Specifically, the allegation that Attorney Ferguson misappropriated funds is a

matter of community and economic well-being. Communications about a lawyer’s

handling of cases has been held to be a matter of public concern.90 Statements

about the possibility that a property manager has misappropriated funds has been

held to be a matter of community and economic well-being.91


 V.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
         THE CONVERSION CLAIM BECAUSE THE DEPOSIT OF
         MORTGAGE PAYOFF FUNDS INTO THE COURT’S REGISTRY
         WAS NOT WRONGFUL AND THE FUNDS WERE PROMPTLY
         RETURNED UPON REQUEST.

      Conversion is the “unauthorized and wrongful assumption and exercise of

dominion and control over the personal property of another, to the exclusion of or

inconsistent with the owner’s rights.”92 To establish a claim for conversion, a

plaintiff must prove that:

      1. The plaintiff owned or had possession of the property or entitlement to
         possession;




90
   Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015); Avila v.
Larrea, 394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied).
91
   Neyland v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337, at *8-9 (App.—
Austin Apr. 7, 2015).
92
   Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 718 (Tex. App.—Dallas 2014,
pet. denied) (citing Wells Fargo Bank Nw., N.A. v. RPK Capital SVI, L.L.C., 360 S.W.2d 444,
447 (Tex. 1971))).
BRIEF OF APPELLANTS                                                               Page 45 of 82
     2. The defendant unlawfully and without authorization assumed and exercised
        control over the property to the exclusion of, or inconsistent with, the
        plaintiff’s rights as an owner;
     3. The plaintiff demanded return of the property; and
     4. The defendant refused to return the property93

        The plaintiff also must establish it was injured by the conversion.94

        In this case, the payoff funds went temporarily into the court’s registry on

2/14/201795 only to be released to Ferguson a few weeks later on 4/12/2017.96

Accordingly, the Plaintiffs could not have suffered any injury. Moreover, the

undisputed evidence shows that when the Plaintiffs demanded payment of the

payoff funds, Ghrist signed a release of the lis pendens and an agreed order

allowing the Plaintiffs to withdraw the payoff funds from the Court’s registry.

Accordingly, regardless of whether the placement of the funds in the Court’s

registry was wrongful, the funds were promptly returned upon request,97 thus,

negating conversion. Additionally, the placement of the funds into the Court’s

registry was not wrongful, but rather proper in all respects.




93
   Id.
94
   United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1994).
95
   2 CR 850.
96
   2 CR 845-46, 852; 1 CR 370, ¶ 15 (Ghrist’s affidavit stating that the payoff funds were paid to
Ferguson).
97
   2 CR 845-46, 852; 1 CR 370, ¶ 15 (Ghrist’s affidavit stating that the payoff funds were paid to
Ferguson).
BRIEF OF APPELLANTS                                                                  Page 46 of 82
VI.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
         THE CONSPIRACY CLAIM BECAUSE THE PLAINTIFFS DID NOT
         PROVE AN UNDERLYING TORT OR SHOW ANY INJURY.

      An actionable civil conspiracy is a combination by “two or more persons to

accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful

means.”98

The essential elements of a civil conspiracy are:

(1) two or more persons;
(2) an object to be accomplished;
(3) a meeting of the minds on the object or course of action;
(4) one or more unlawful, overt acts; and
(5) damages as the proximate result.”99

      A defendant's liability for conspiracy depends on “participation in some

underlying tort for which the plaintiff seeks to hold at least one of the named

defendants liable.”100 Recovery for civil conspiracy is not based on the conspiracy

but on the underlying tort.101 Once a civil conspiracy is proven, each coconspirator




98
   Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701 (Tex.App.-Fort Worth 2006,
pet. denied).
99
   Id.
100
    Id.; see also Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex.1979) (“It is not
the agreement itself, but an injury to the plaintiff resulting from an act done pursuant to the
common purpose that gives rise to the cause of action.”).
101
    Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996) (orig.proceeding) (op. on reh'g).
BRIEF OF APPELLANTS                                                                    Page 47 of 82
 “is responsible for all acts done by any of the conspirators in furtherance of the

 unlawful combination.”102

       In this case, the Plaintiffs received all of the payoff funds,103 and accordingly

 suffered no injury. Moreover, the Plaintiffs failed to prove up any underlying tort

 that the conspiracy could be based upon. The Plaintiffs failed to show that the

 deposit of the payoff funds into the Court’s registry, only to be paid to the

 Plaintiffs a few weeks later was wrongful in some way.

VII.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
          THE BREACH OF FIDUCIARY DUTY CLAIM BECAUSE THERE
          ARE NO DAMAGES AND THE DEFENDANTS DID NOT OWE
          FIDUCIARY DUTIES TO THE PLAINTIFFS.

       The elements for the cause of action of breach of fiduciary duty are:

          1.     Existence of fiduciary duty,
          2.     Breach of that duty, and
          3.     Causation and damages.104

       In this case, the Plaintiffs did not demonstrate that any of the Defendants owed

 fiduciary duties to the Plaintiffs, that any duty was breached, or that the Plaintiffs

 suffered any damages. In fact, the Plaintiffs received the money that they complain



 102
     Carroll, 592 S.W.2d at 926.
 103
     2 CR 845-46, 852; 1 CR 370, ¶ 15 (Ghrist’s affidavit stating that the payoff funds were paid
 to Ferguson).
 104
     Avery Pharms, Inc. v. Haynes & Boone, LLP, 2009 Tex. App. LEXIS 769, *22 (Tex. App.—
 Fort Worth 2009, no. pet.) (citing Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex.
 App.—Houston [1st Dist.] 2003, no pet.).
 BRIEF OF APPELLANTS                                                                  Page 48 of 82
 of, which makes the Defendants wonder why this suit was filed, other than to

 harass and annoy Ghrist, Coker, Sendera Title, and Sendera Title’s employees.

VIII.     THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
          THE DECEPTIVE TRADE PRACTICES CLAIM BECAUSE,
          AMONG OTHER THINGS, THE PLAINTIFFS WERE NOT
          SEEKING OR ACQUIRING GOODS OR SERVICES FROM THE
          DEFENDANTS

       In this case the claim is utterly without merit given that the Plaintiffs did not

 “seek or acquire by purchase or lease, any goods or services.”105

          Related to the sale of the house on Purselly Drive, Elmer Hernandez sought

 to sell the house and the buyer of the house sought to acquire title insurance from

 Sendera Title Company. The Plaintiffs, however, were not purchasing or leasing

 any goods or services from Sendera Title Company or any of the Defendants in

 connection with this transaction. The Plaintiffs sent a payoff quote on a mortgage to

 the Sendera Title. The Plaintiffs were not buying anything from the Defendants in

 connection with the sale of the Purselley Property.

          The Plaintiffs also failed to offer evidence of which portions of the DTPA

 were violated, how they were violated, or how any injuries were suffered as a result.




 105
    Tex. Bus. & Com. Code § 17.45 (LexisNexis, Lexis Advance through the 2017 Regular
 Session and 1st C.S., 85th Legislature); McCrann v. Klaneckey, 667 S.W.2d 924, 926 (Tex.
 App.—Corpus Christi 1984).
 BRIEF OF APPELLANTS                                                              Page 49 of 82
         The DTPA claim is groundless in fact and law. According to Tex. Bus. &

Com. Code § 17.50(c), the Defendants should be awarded reasonable and

necessary attorney’s fees and court costs.

IX.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
         THE FRAUDULENT LIEN STATUTE BECAUSE THERE IS NO
         EVIDENCE OF INTENT TO CAUSE INJURY, ACTUAL INJURY,
         OR EVEN THAT THE DOCUMENTS WERE WRONGFUL IN ANY
         WAY.

      The statute applies to fraudulent court records or fraudulent liens or claims.

Section 51.901 of the Texas Government Code lists liens or claims as being

fraudulent where:

            “(1) the document is a purported judgment or other document purporting
         to memorialize or evidence an act, an order, a directive, or process of:
               (A) a purported court or a purported judicial entity not expressly
         created or established under the constitution or the laws of this state or of the
         United States; or
               (B) a purported judicial officer of a purported court or purported
         judicial entity described by Paragraph (A);
            (2) the document or instrument purports to create a lien or assert a claim
         against real or personal property or an interest in real or personal property
         and:
               (A) is not a document or instrument provided for by the constitution or
         laws of this state or of the United States;
               (B) is not created by implied or express consent or agreement of the
         obligor, debtor, or the owner of the real or personal property or an interest in
         the real or personal property, if required under the laws of this state, or by
         implied or express consent or agreement of an agent, fiduciary, or other
         representative of that person; or
               (C) is not an equitable, constructive, or other lien imposed by a court
         with jurisdiction created or established under the constitution or laws of this
         state or of the United States; or
BRIEF OF APPELLANTS                                                          Page 50 of 82
         (3) the document or instrument purports to create a lien or assert a claim
       against real or personal property or an interest in real or personal property
       and the document or instrument is filed by an inmate or on behalf of an
       inmate.”106

       The Plaintiffs offered no evidence of any making, presenting, or use of any

document or record with

       “(1) knowledge that the document or other record is a fraudulent court
       record or a fraudulent lien or claim against real or personal property or an
       interest in real or personal property;

       (2) intent that the document or other record be given the same legal effect as
       a court record or document of a court created by or established under the
       constitution or laws of this state or the United States or another entity listed
       in Section 37.01, Penal Code, evidencing a valid lien or claim against real or
       personal property or an interest in real or personal property; and

       (3) intent to cause another person to suffer:

          o   (A) physical injury;
          o   (B) financial injury; or
          o   (C) mental anguish or emotional distress.”107

       No Evidence. The Defendants have no evidence of any of the elements of

this claim. Specifically, there is no evidence that any Defendants had knowledge

that a document was a fraudulent court record or a fraudulent lien or claim, intent

that the document be given the same legal effect as a court record or document of a




106
    Tex. Gov't Code § 51.901 (LexisNexis, Lexis Advance through the 2017 Regular Session and
1st C.S., 85th Legislature).
107
    See Tex. Civ. Prac. & Rem. Code § 12.002 (LexisNexis, Lexis Advance through the 2017
Regular Session and 1st C.S., 85th Legislature).
BRIEF OF APPELLANTS                                                            Page 51 of 82
court created by or established under the constitution or laws of this state or other

applicable entity, or that there was intent to cause another person to suffer injury.

   The claims alleged simply fail to meet any requirements of the statute, but

particularly the requirement that the claimant have intent that the document be

given the legal effect of a court record as there was no such intent to draft a

document of a court or other judicial entity and the claims did not purport to be

claims established by any Court, but rather just claims being litigated in Court,

namely the 17th District Court in Cause No. 017-287611-16.

   The Plaintiffs further failed to offer any evidence of instruments that meet the

statutory definition of fraudulent instruments because the only instruments

complained of are instruments describing disputed claims or claims to be resolved

in pending litigation. The lis pendens certainly referenced claims that were in

dispute, but those claims can hardly be considered “fraudulent” where the

legitimacy of the claims depends on the outcome of pending litigation.

   Also, there can be no intent to cause injury or mental distress where the intent

was clearly to protect Ghrist and Coker from liability to Elmer Hernandez. Where

the lien release and judgment release were signed for the purpose of avoiding

liability to Elmer Hernandez and protecting the interests of Ghrist and Coker, no

fraudulent intent can be inferred. Moreover, the releases were proper because the

turnover order extinguished the judgment lien long before Ferguson bought

BRIEF OF APPELLANTS                                                        Page 52 of 82
Coker’s interests in the assets and because Ferguson agreed in writing to Ghrist’s

13.33% stake in MBH Real Estate LLC and must be estopped from asserting

otherwise. Additionally, Ferguson’s unclean hands in conveying the property to

Elmer Hernandez by MBH Real Estate LLC when Metro Buys Homes LLC was,

in fact, the owner must be considered to vitiate any fraud claims and to show that

Ferguson and the Plaintiffs lack standing to complain.

      There are also no damages because the lis pendens was ultimately released and

the funds were ultimately disbursed to the Plaintiffs. Accordingly, regardless of the

other elements, the Plaintiff cannot show any injury.


 X.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
         THE NEGLIGENCE AND GROSS NEGLIGENCE CLAIMS
         BECAUSE THE PLAINTIFFS HAD NO DAMAGES, CANNOT
         SHOW WRONGFULNESS IN THE DEFENDANTS’ ACTIONS, AND
         THE PLAINTIFFS’ HAD UNCLEAN HANDS.

      The elements of negligence are the existence of a duty on the part of one party

to another, a breach of that duty, and damages proximately caused by the breach of

that duty.108




108
   Nw. Mall, Inc. v. Lubri-Lon Int'l, Inc., 681 S.W.2d 797, 802 (Tex. App.—Houston [14th
Dist.] 1984).
BRIEF OF APPELLANTS                                                              Page 53 of 82
      In this case, the Plaintiffs failed to show that the Defendants owed them a duty,

that the duty was breached, and that any damages were suffered, or proximately

caused.

      The facts in this case, where Ghrist and Coker signed proper releases to

accomplish the sale of Elmer Hernandez’s house and the mortgage payoff funds

went temporarily into the Court’s registry due to a lis pendens, only to be

ultimately paid to the Plaintiffs, just utterly fails to factually establish a claim for

negligence.

      Moreover, Ferguson’s unclean hands in wrongfully conveying property that

MBH Real Estate LLC did not own to Elmer Hernandez negates any claims of the

Plaintiffs as MBH Real Estate LLC never owned the property to begin with.


XI.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
         THE LIBEL CLAIM BECAUSE FERGUSON WAS SUED FOR
         MISAPPROPRIATION OF FUNDS, WHICH MEANS THAT THE
         STATEMENT THAT HE HAD BEEN SUED FOR SUCH WAS NOT
         FALSE, REGARLESS OF THE PENDING AND UNKNOWN
         OUTCOME OF SUCH LAWSUIT.

      The libel claim fails due to the substantially true nature of the allegation that

Ferguson was sued for misappropriating funds. He was sued for that regardless of

whether he prevails in the suit or not. See Section XV of this brief for a full

breakdown of the truth defense.


BRIEF OF APPELLANTS                                                           Page 54 of 82
      “Statements that are not verifiable as false cannot form the basis of a

defamation claim.”109 An opinion that is “not reasonably capable of defamatory

meaning” is not actionable.110 “A defamatory communication may consist of a

statement in the form of an opinion, but a statement of this nature is actionable

only if it implies the allegation of undisclosed defamatory facts as the basis for the

opinion.”111 Moreover, “a statement of opinion relating to matters of public

concern which does not contain a provably false factual connotation will receive

full constitutional protection.”112 “[T]here are no standards for objective truth of

statements of evaluation like ‘inadequate,’ ‘obsolete,’ or ‘unfit.’”113

         In this case, the statements made were opinion without defamatory meaning

and there was no implication of undisclosed defamatory facts. Moreover, because

the statements related to a matter of public concern, mainly claims affecting or

potentially affecting the public deed recording system and interests established

therein, those statements receive full constitutional protection under the First

Amendment.114




109
    Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) (citing Milkovich v. Lorain Journal Co., 497
U.S. 1, 21, 110 S. Ct. 2695, 2707 (1990)).
110
    Fisher v. Detroit Free Press, Inc., 158 Mich. App. 409, 414, 404 N.W.2d 765, 768 (1987).
111
    Restatement (Second) of Torts § 566 (1977).
112
    Milkovich v. Lorain Journal Co., 497 U.S. 1, 3, 110 S. Ct. 2695, 2697 (1990).
113
    Hous. Oilers v. Harris Cty., 960 F. Supp. 1202, 1208 (S.D. Tex. 1997).
114
    Milkovich, 497 U.S. 1.
BRIEF OF APPELLANTS                                                                Page 55 of 82
          Finally, the allegedly libelous statements are not verifiable as false because

 the veracity of the statements is currently being litigated in a different court.

 Accordingly, no libel claim can be based on the statements.

XII.      THE PLAINTIFF LACKED CLEAR AND SPECIFIC EVIDENCE ON
          THE DECLARATORY JUDGMENT CLAIM BECAUSE THE
          PLAINTIFF FAILED TO EXPLAIN WHAT KIND OF
          DECLARATORY RELIEF IS BEING REQUESTED

       The Plaintiff has wholly failed to explain what kind of declaratory relief the

 Plaintiff wants from this Court. Moreover, any declaratory relief that could be

 litigated is already being litigated in Cause No. 017-287611-16, Ghrist Law Firm

 et. al. v. J. Michael Ferguson et. al., 17th Judicial District Court, Tarrant County,

 Texas.

XIII.     ABSOLUTE DEFENSES PROVEN—PRIMARILY THE JUDICIAL
          PRIVILEDGE

          “An attorney at law is absolutely privileged to publish defamatory matter

 concerning another in communications preliminary to a proposed judicial

 proceeding, or in the institution of, or during the course and as a part of, a judicial

 proceeding in which he participates as counsel, if it has some relation to the

 proceeding.”115 “A party to a private litigation or a private prosecutor or defendant




 115
   Id. at § 586.
 BRIEF OF APPELLANTS                                                         Page 56 of 82
in a criminal prosecution is absolutely privileged to publish defamatory matter

concerning another in communications preliminary to a proposed judicial

proceeding, or in the institution of or during the course and as a part of, a judicial

proceeding in which he participates, if the matter has some relation to the

proceeding.”116 “A witness is absolutely privileged to publish defamatory matter

concerning another in communications preliminary to a proposed judicial

proceeding or as a part of a judicial proceeding in which he is testifying, if it has

some relation to the proceeding.”117 Statements “made in the course of a judicial or

quasi-judicial proceeding” are absolutely privileged.118

       Communications in the due course of a judicial proceeding will
       not serve as the basis of a civil action for libel or slander,
       regardless of the negligence or malice with which they are
       made." James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982). This
       absolute privilege extends to a communication "preliminary to a
       proposed judicial proceeding … if it has some relation to the
       proceeding." Id. at 917 (quoting RESTATEMENT (SECOND)
       OF TORTS § 588 (1981)). Whether a statement is made in
       contemplation of a judicial proceeding is a question of law.
       Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App.-San Antonio
       1997, no writ). ‘All doubt should be resolved in favor of the
       communication's relation to the proceeding.’”119




116
    Id. at § 587.
117
    Id. at § 588.
118
    Shell Oil Co. v. Writt, 464 S.W.3d 650, 657 (Tex. 2015).
119
    Bell v. Lee, 49 S.W.3d 8, 10-11 (Tex. App.—San Antonio 2001) (emphasis added).
BRIEF OF APPELLANTS                                                            Page 57 of 82
       “We therefore hold that the privilege attaches if the statement has some

relationship to a contemplated proceeding, regardless of whether it in fact

furthers the representation.” 120 “[C]ommunication in the course of a judicial

proceeding is absolutely privileged whether relevant or not.”121

       "The matter to which the privilege does not extend must be so
       palpably wanting in relation to the subject-matter of the
       controversy that no reasonable man can doubt its irrelevancy and
       impropriety. In order that matter alleged in a pleading may be
       privileged, it need not be in every case material to the issues
       presented by the pleadings. It must, however, be legitimately
       related thereto, or so pertinent to the subject of the controversy
       that it may become the subject of inquiry in the course of the
       trial." Id. (emphasis added) (quoting Taylor v. Iowa Park Gin Co.,
       199 S.W. 853, 855 (Tex. Civ. App.-Galveston 1917, no writ)).
       Subsequently, this Court addressed a related issue, holding that
       the privilege can extend to statements made out of court so
       long as they bear some relation to the proceeding. Russell v.
       Clark, 620 S.W.2d 865, 868 (Tex. Civ. App.-Dallas 1981, writ
       ref'd n.r.e.). We held that "the privilege applies to any statement
       that bears some relation to an existing or proposed judicial
       proceeding," adding, "All doubt should be resolved in favor of
       its relevancy." Russell, 620 S.W.2d at 870.” 122

       “[T]he rule of nonliability prevails even though the statement was not

relevant, pertinent and material to the issues involved in the case.”123




120
    Id. at 11 (emphasis added).
121
    Gaither v. Davis, 582 S.W.2d 913, 913 (Tex. Civ. App.—Fort Worth 1979).
122
    Jenevein v. Friedman, 114 S.W.3d 743, 747 (Tex. App.—Dallas 2003) (emphasis added).
123
    Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 111, 166 S.W.2d 909, 912 (1942).
BRIEF OF APPELLANTS                                                              Page 58 of 82
       In this case, all statements made were absolutely privileged as they certainly

had some relationship to a pending proceeding, namely Cause No. 017-287611-16,

Ghrist Law Firm et. al. v. J. Michael Ferguson et. al., 17th Judicial District Court,

Tarrant County, Texas. The absolute privilege covers all statements by Ghrist,

Ghrist Law Firm, Coker, Neighborhood Partner, Inc., and Blue Moon Realty Group,

LLC, as all of those parties were either parties to the 17th Ct. suit, attorneys for

parties, law firms for the parties, or were witnesses to the suit making statements

with some connection to the suit.124 Coker, for example, gave a deposition in the

suit and was the client that Ghrist and Ferguson jointly represented in the recovery

of all assets in dispute in the underlying causes.

       The First Amendment protects the right to petition and, in this case, the

statements were sufficiently related to the right to petition that the statements are

absolutely privileged and cannot give rise to liability. The statements had sufficient

connection to pending litigation and the lis pendens in the pending litigation for the

privilege to apply.




124
  Restatement (Second) of Torts § 588 (1977) (the judicial privilege extends to witnesses).
BRIEF OF APPELLANTS                                                               Page 59 of 82
XIV.   QUALIFIED PRIVILEGES PROVEN—MOST IMPORTANTLY,
       THE STATEMENTS MADE AFFECTED THE INTERESTS OF THE
       PUBLISHER AND COMMON INTERESTS OF THE PARTIES

       “One who publishes defamatory matter concerning another is not liable
       for the publication if (a) the matter is published upon an occasion that
       makes it conditionally privileged and (b) the privilege is not abused.”
       Restatement (Second) of Torts § 593 (1977). “An occasion makes a
       publication conditionally privileged if the circumstances induce a
       correct or reasonable belief that (a) there is information that affects
       a sufficiently important interest of the publisher, and (b) the
       recipient’s knowledge of the defamatory matter will be of service
       in the lawful protection of the interest.” Id. at § 594 (emphasis added).
       “(1) An occasion makes a publication conditionally privileged if the
       circumstances induce a correct or reasonable belief that (a) there is
       information that affects a sufficiently important interest of the recipient
       or a third person, and (b) the recipient is one to whom the publisher is
       under a legal duty to publish the defamatory matter or is a person to
       whom its publication is otherwise within the generally accepted
       standards of decent conduct. (2) In determining whether a publication
       is within generally accepted standards of decent conduct it is an
       important factor that (a) the publication is made in response to a request
       rather than volunteered by the publisher or (b) a family or other
       relationship exists between the parties.” Id. at § 595. “An occasion
       makes a publication conditionally privileged if the circumstances
       lead any one of several persons having a common interest in a
       particular subject matter correctly or reasonably to believe that
       there is information that another sharing the common interest is
       entitled to know.” Id. at § 596 (emphasis added). “An occasion makes
       a publication conditionally privileged if an inferior administrative
       officer of a state or any of its subdivisions who is not entitled to an
       absolute privilege makes a defamatory communication required or
       permitted in the performance of his official duties.” Id. at § 598A. “An
       occasion makes a publication conditionally privileged if the
       circumstances induce a correct or reasonable belief that (a) there is
       information that affects a sufficiently important public interest, and (b)
       the public interest requires the communication of the defamatory matter
       to a public officer or a private citizen who is authorized or privileged to
       take action if the defamatory matter is true.” Id. at § 598.
 BRIEF OF APPELLANTS                                                       Page 60 of 82
       Texas Courts have interpreted qualified privileges for the protection of

interests broadly.125 Where “offending conduct” is “related to the legitimate

interests of the defendant’s own operations” the conduct is privileged.126


       In this case, the allegedly defamatory statements were made in relation to the

legitimate interests of Ghrist, Coker, and the other Defendants, namely those parties’

interests in the promissory notes secured by the deeds of trust and in facilitating the

sale of Elmer Hernandez’s house despite the lis pendens, which should not have

affected Mr. Hernandez even though Ferguson wrongfully insists that it should have.

       In this case, the allegedly defamatory statements were made to Mary Louis

Garcia, the Tarrant County Clerk, an administrative officer of a state or its

subdivisions for the purpose of informing regarding claims related to a lis pendens

with effects on the public deed recording system and interests in promissory notes

secured by deeds of trust on real estate in Tarrant County, Texas. The statements

were made related to the common interest of Ghrist and Ferguson in the promissory




125
    See e.g. Sw. Bell Tel. Co. v. Dixon, 575 S.W.2d 596, 599 (Tex. Civ. App.—San Antonio
1978) (investigation of reports of employee misconduct privileged, findings of jury to the
contrary disregarded because the existence of the privilege is a matter of law for the Court to
decide).
126
    Hous. Oilers v. Harris Cty., 960 F. Supp. 1202, 1208 (S.D. Tex. 1997) (emphasis added).
BRIEF OF APPELLANTS                                                                   Page 61 of 82
notes secured by the deeds of trusts. The statements were made to protect those

important interests in those properties.

         Ultimately, Ghrist and Coker both had a legitimate business interest in

avoiding liability to Elmer Hernandez for wrongfully refusing to acknowledge

satisfaction of the lien on Elmer Hernandez’s house. Ghrist and Coker are privileged

to protect that interest by acknowledging the lack of encumbrance upon Mr.

Hernandez’s house when Mr. Hernandez tendered all mortgage payoff funds into the

Court’s registry.

XV.      THE DEFENDANTS ALSO SHOWED TRUTH OR SUBSTANTIAL
         TRUTH, LACK OF REQUISITE FAULT, AND FAIR COMMENT AS
         DEFENSES TO LIBEL OR AS NEGATING THE ELEMENTS OF
         LIBEL.

      Substantial truth negates a defamation or libel claim. A statement that is not

verifiable as false cannot be the basis of a defamation or libel claim.127

         “The common law and statutes provide certain defenses and privileges
         to defamation claims. These include the defense of truth, Tex. Civ. Prac.
         & Rem. Code § 73.005, which we have interpreted to require
         defendants to prove the publication was substantially true, Turner
         v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). Moreover,
         statements that are not verifiable as false cannot form the basis of
         a defamation claim. Milkovich, 497 U.S. at 21-22. Further, the
         common law has recognized a judicial proceedings privilege since at
         least 1772 for parties, witnesses, lawyers, judges, and jurors.
         Additionally, one cannot recover mental anguish damages for


127
   Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) (citing Milkovich v. Lorain Journal Co., 497
U.S. 1, 21, 110 S. Ct. 2695, 2707 (1990)).
BRIEF OF APPELLANTS                                                               Page 62 of 82
         defamation of a deceased individual. Renfro Drug Co. v. Lawson, 138
         Tex. 434, 160 S.W.2d 246, 250 (Tex. 1942); see also Restatement
         (Second) Of Torts § 560 (1977). And a qualified privilege exists
         under the common law when a statement is made in good faith and
         the author, recipient, a third person, or one of their family
         members has an interest that is sufficiently affected by the
         statement. Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844
         S.W.2d 198, 210 (Tex. 1992) (Hightower, J., concurring).” 128

         In this case, the Plaintiff’s Response to Defendant’s No-Evidence

Motion for Summary Judgment attached as Exhibit A to the TCPA Motion

demonstrates that the statements were true or substantially true. Specifically,

Ghrist had an interest in MBH Real Estate LLC and Ferguson held funds

belonging to Ghrist without delivering them. Ferguson did not appropriate

the funds to Ghrist as he should have. This is true. Even if Ferguson alleges

that it is false, the statement is not “verifiable as false,” which means that it

cannot support a defamation claim, particularly when the lawsuit that is

pending regarding the issue remains pending in another Court. Additionally,

Ghrist had a membership interest in MBH Real Estate LLC agreed to in

writing by Ferguson.129

      Ghrist, Coker, and the entities represented by Ghrist in this case clearly

had proprietary or other interests that were sufficiently affected by the




128
  Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) (emphasis added).
129
  2 CR 822-23.
BRIEF OF APPELLANTS                                                          Page 63 of 82
statements to be qualifiedly priviledged. Ghrist had an interest in MBH Real

Estate LLC, the property owned by MBH Real Estate LLC, and the joint

venture between himself and Ferguson, while Coker and the entities had an

interest or former interests in the same subject matter. The statements made

were made for the purpose of facilitating the sale of the Purselley property

and protecting the interests protected by the pending lis pendens. Those are

good faith reasons for the statements and no evidence of malice exists. The

statements were privileged because they were made in connection with those

interests affected by the statements.

      Fault Requirement. “One who publishes a false and defamatory communication

concerning a private person, or concerning a public official or public figure in

relation to a purely private matter not affecting his conduct, fitness or role in his

public capacity, is subject to liability, if, but only if, he (a) knows that the

statement is false and that it defames the other, (b) acts in reckless disregard of

these matters, or (c) acts negligently in failing to ascertain them.”130

      In this case, the Plaintiff utterly failed to show any requisite fault on the part of

any of the Defendants. The statements made were true, the Defendants knew the

statements to be true, the Defendants did not act with reckless disregard or




130
  Restatement (Second) of Torts § 580B (1977).
BRIEF OF APPELLANTS                                                            Page 64 of 82
negligence. Specifically, Ghrist hired Brandon Lim, a professional accountant to

evaluate whether Ferguson had not appropriated funds correctly. The accountant

determined that Ferguson did not appropriate the funds correctly and withheld

funds from Ghrist wrongfully.131 Accordingly, Ghrist performed due diligence in

ascertainment of the truth of the claims. Additionally, the statements were true as

shown by the evidence, particularly the evidence in the No-Evidence Summary

Judgment Response attached as Exhibit A to the TCPA Motion.

      Fair comment. a broadcast is privileged if it is a “reasonable and fair comment

on or criticism of an official act of a public official or other matter of public

concern published for general information.”132 In this case, the statements made

were reasonable and fair comments published for general information about the

public deed recording system and claims that could affect interests under that

system.




131
  1 CR 222-304.
132
  Tex. Civ. Prac. & Rem.Code § 73.002(b)(2). Neely v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013).
BRIEF OF APPELLANTS                                                            Page 65 of 82
XVI.      THE TRIAL COURT ERRED BY SUSTAINING OBJECTIONS OR
          SPECIAL EXCEPTIONS TO THE MOTION ON THE GROUNDS
          THAT THE MOTION DID NOT SPECIFY WHICH CAUSES OF
          ACTION THE MOTION WAS FILED ON BECAUSE THE CAUSES
          OF ACTION DO NOT NEED TO ARISE FROM THE TCPA
          STATEMENTS, BUT RATHER ONLY NEED TO BE EITHER
          “BASED ON, RELATED TO, OR IN RESPONSE TO” THE TCPA
          STATEMENTS

       In ExxonMobile Pipelinne Co. v. Coleman, the Texas Supreme Court went so

 far as to apply the TCPA to internal emails about a “private employment matter”

 because the statements related to a pipeline that could have caused environmental

 damage, which made the statements a matter of public concern, despite their

 private, internal, and employment-related nature.133

       The error made by Ferguson and the trial court was in assuming that TCPA

 Statements must constitute the basis for the causes of action that a TCPA motion is

 filed on. Statements made pursuant to the TCPA only need to have some

 connection to the various causes of action, which can include far more than just

 defamation or libel.134 Breach of contract, conversion, breach of fiduciary duty,




 133
    ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017).
 134
    Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 733 (Tex. App.—Houston [14th Dist.] 2013)
 (movant’s burden on TCPA motion satisfied as to conversion, civil conspiracy, and
 misappropriation claims); Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191,
 194 (Tex. App.—Austin 2017) (TCPA applied to trade-secret misappropriation, violation of
 Texas Uniform Trade Secrets Act, unfair competition, breach of fiduciary duty, and civil
 conspiracy).
 BRIEF OF APPELLANTS                                                               Page 66 of 82
statutory causes of action—all of these can be the basis of a TCPA motion and the

movant’s only burden is to show that TCPA Statements were made that have some

connection to the causes of action.


            a. THE TRIAL COURT’S OPINION THAT TCPA MOTIONS
               ARE LIMITED TO LIBEL OR DEFAMATION IS
               INCORRECT AS A MATTER OF LAW AND CLEARLY DID
               NOT RENDER THE MOTION FRIVILOUS

      Ferguson alleged, and the trial judge apparently agreed, that the TCPA motion

was frivilous because the motion failed to state that it was filed solely on the libel

claims.135 The TCPA has, however, been broadly applied to far more than mere

defamation and libel.

      The TCPA has been applied to conversion, civil conspiracy, misappropriation,

breach of contract, and many other causes of action.136 The TCPA inquiry “does

not focus on whether . . . conversion and misappropriation claims arise from the

assertedly libelous nature of the . . . statements” because “[t]he statute broadly




135
   1 RR 16, 27.
136
   Rehak, 404 S.W.3d at 733 (Tex. App.—Houston [14th Dist.] 2013) (movant’s burden on
TCPA motion satisfied as to conversion, civil conspiracy, and misappropriation claims); Elite
Auto Body LLC, 520 S.W.3d at 194 (Tex. App.—Austin 2017) (TCPA applied to trade-secret
misappropriation, violation of Texas Uniform Trade Secrets Act, unfair competition, breach of
fiduciary duty, and civil conspiracy).
BRIEF OF APPELLANTS                                                                Page 67 of 82
  encompasses a ‘cause of action’ that ‘relates to’ free speech.”137 Accordingly, the

  movant’s burden is not to show that (1) the TCPA Statements gave rise to the

  causes of action, or (2) the statements were made in exercise of protected

  speech.138 Instead, the movant’s burden is merely to show that statements were

  made or actions taken that have some connection to free speech, the right of

  association, or the right to petition and that those statements or actions have some

  relationship to the causes of action alleged.

XVII.      THE TRIAL COURT’S OPINION THAT TCPA MOTIONS ARE
           LIMITED TO LIBEL OR DEFAMATION IS INCORRECT AS A
           MATTER OF LAW AND CLEARLY DID NOT RENDER THE
           MOTION FRIVILOUS

        When Ghrist prevails in the 17th District Court on his claims to a joint venture

  in MBH Real Estate LLC, then there can no longer be any dispute regarding

  whether the lien releases or other statements in connection with the closing of the

  sale of Elmer Hernandez’s house were wrongful. The motion was clearly not

  frivolous as there were statements made that had a connection to the right to

  petition, the right of association, and free speech.




  137
      Id. (finding “no difficulty” in concluding that the movant’s TCPA burden was established
  where the conversion and misappropriation causes of action “have a connection” with a
  communication related to free speech) (emphasis added).
  138
      Elite Auto Body, 520 S.W.3d at 204-05 (pointing out that whether the speech was
  constitutionally protected or not was not relevant to the movant’s initial burden, but rather only
  relevant to the “second part” of the analysis, in which the nonmovant must establish the claim)
  BRIEF OF APPELLANTS                                                                   Page 68 of 82
XVIII.     THE PLAINTIFFS’ CAUSES OF ACTION CLEARLY DID NOT
           FALL UNDER ANY TCPA STATUTORY EXEMPTIONS, MOST
           SPECIFICALLY, THE ACTIONS COULD NOT FALL UNDER THE
           COMMERCIAL SPEECH EXEMPTION BECAUSE GHRIST DID
           NOT MAKE THE STATEMENTS FOR THE PURPOSE OF
           SELLING GOODS OR SERVICES TO FERGUSON OR HIS
           COMPANIES, THE PLAINTIFFS.

         Under Tex. Civ. Prac. & Rem. Code § 27.010(b), the TCPA exempts from

   coverage

           “a legal action brought against a person primarily engaged in the
           business of selling or leasing goods or services, if the statement or
           conduct arises out of the sale or lease of goods, services, or an insurance
           product, insurance services, or a commercial transaction in which the
           intended audience is an actual or potential buyer or customer.”139
           The burden of proving the applicability of this exemption, known as the

   “commercial speech exemption,” is on the party asserting it.140 This exemption can

   apply only where a statement was made for the purpose of securing sales of the

   goods or services of the person making the statement.141 For example, where

   statements could have been read by potential customers of a newspaper, but the




   139
       Tex. Civ. Prac. & Rem. Code § 27.010(b)
   140
       Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 89 (Tex.
   App.—Houston [1st Dist.] 2013).
   141
       Id. at 88
   BRIEF OF APPELLANTS                                                                Page 69 of 82
statements were not directed to the customers for the purpose of selling

newspapers, the exemption was inapplicable.142

      In this case, Ghrist and Coker were not selling anything to anybody,

especially the Plaintiffs, and Sendera Title was selling a title insurance policy to

the buyer of Elmer Hernandez’s house, not to the Plaintiffs or the Defendants.

Ghrist and Coker et. al. made no statements to the Plaintiffs for the purpose of

selling the Plaintiffs any goods or services, and in fact, Ghrist and Coker et. al.

would never want the Plaintiffs as customers after the Plaintiffs defrauded them.

The Plaintiffs allege that Ghrist and Coker et. al. sell goods and services in general,

but wholly failed to demonstrate that Ghrist and Coker et. al. were marketing

goods or services to the Plaintiffs in connection with the sale of the Purselley

Property.

      Where statements are made about a dispute between the parties rather than

for the purpose of selling goods or services to the Plaintiffs, then the commercial

speech exemption does not apply.143 In this case, the emails with Sendera Title, the

allegedly wrongful releases, and all other statements were not made for the purpose




142
  Id.
143
  Moldovan v. Polito, No. 05-15-01052-CV, 2016 Tex. App. LEXIS 8283, at *12 (App.—
Dallas Aug. 2, 2016).
BRIEF OF APPELLANTS                                                         Page 70 of 82
 of selling goods or services to the Plaintiffs, but rather to effectuate the sale of

 Elmer Hernandez’s house. Elmer Hernandez is not a plaintiff herein.


XIX.      WHEN THE TRIAL COURT’S ORDER READ THAT “PLAINTIFFS
          OBJECTIONS TO DEFENDANTS MOTION TO DISMISS ARE
          SUSTAINED,” THAT LANGUAGE WAS NOT INTENDED TO
          SUSTAIN EACH OF PLAINTIFFS’ EXTREMELY VOLUMINOUS
          EVIDENTIARY OBJECTIONS FILED ON THE DAY OF THE
          HEARING, NOT DISCUSSED AT THE HEARING, AND THAT
          DEFENDANT HAD NO OPPORTUNITY TO REVIEW PRIOR TO
          THE HEARING OR RESPOND TO

       The party who fails to obtain a written ruling on each objection waives

 objection.144 The Fort Worth Court of Appeals has agreed that a written ruling on

 each objection is required or strongly preferred.145 An order on a motion does not

 constitute an implicit ruling that either sustains or overrules objections to the

 evidence.146 Objections to form of evidence are preserved for appellate review only




 144
     Id.
 145
     Opperman v. Opperman, No. 07-12-00033-CV, 2013 Tex. App. LEXIS 14867, at *7 (App.—
 Amarillo Dec. 9, 2013) (We agree with [the Fort Worth Court of Appeals] that the better practice
 would be for the trial court to disclose, in writing, its ruling on all summary judgment evidence
 before the time it enters an order granting or denying summary judgment.); Law Office of David
 E. Williams, II, P.C. v. Fort Worth Tex. Magazine Venture, LP, No. 02-10-00373-CV, 2011 Tex.
 App. LEXIS 5157, at *7 (Tex. App.—Fort Worth July 7, 2011, no pet.) (mem. op.).
 146
     Anderson v. Limestone Cty., No. 10-07-00174-CV, 2008 Tex. App. LEXIS 5041, at *4-5
 (App.—Waco July 2, 2008) (citing Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App.--Waco 2002,
 no pet.)).
 BRIEF OF APPELLANTS                                                                   Page 71 of 82
if those objections are made and ruled on in the trial court.147 The trial court should

disclose, in writing, its rulings on each evidentiary objection.148

      In this case, the Plaintiffs failed to obtain a written ruling on each objection.

The Plaintiffs filed myriad evidentiary objections on the morning of the hearing,

did not discuss any evidentiary objections at the hearing,149 and submitted a

proposed order that the trial judge ultimately signed that merely sustained

objections, but did not refer to whether the objections to the motion that were

raised at the hearing were being sustained,150 or rather, all of the voluminous

evidentiary objections that were not presented at the hearing and that the judge

could not have had time to review prior to the hearing.

      The hearing on the TCPA motion to dismiss was held on November 13th, 2017

starting at 11:40 am.151 The hearing had been set for 11:00 am, but Judge Lowe did

not arrive until 11:40 am due to dealing with a personal matter. The Plaintiffs’

responses to the motion, being objections, special exceptions, and two separate




147
    Id.
148
    Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App.—Waco 2002).
149
    1 RR passim.
150
    1 RR 16 (the only objection discussed at the hearing was the objection to the motion to
dismiss having been filed as to more than just the libel claim).
151
    1 RR 1, 4.
BRIEF OF APPELLANTS                                                                 Page 72 of 82
response documents, were filed on the morning of the hearing.152 As those

documents were filed on the morning of the hearing, Mr. Ghrist, counsel for the

Defendants, had no time or opportunity to review the documents prior to the

hearing. Even the trial judge could not have possibly had time to review the

response to the motion because it was filed the morning of the hearing while the

judge was dealing with a personal matter.

       The documents filed on the day of the hearing contained lengthy, and mostly

frivolous, objections to the Defendants’ evidence attached to the motion to

dismiss.153 None of these objections were discussed at the hearing except that

Ferguson told the trial judge that he had objected to the motion as being frivolous

because it was filed on more than just the libel claim.154 The trial judge apparently

agreed by signing the order prepared and submitted by Ferguson on the day after

the hearing,155 but as explained above,156 the TCPA clearly has coverage far more

broad than mere defamation and libel, so a finding that the motion was frivolous




152
    2 CR 455 (Plaintiffs Objections to the Motion); 2 CR 484 (Plaintiffs’ Special Exceptions); 2
CR 502 (Plaintiffs’ Response to Additional Briefing); 2 CR 520 (Plaintiffs’ Response to the
TCPA Motion).
153
    2 CR 455-83.
154
    1 RR 16, 27.
155
    2 CR 858.
156
    Section XVI of this brief.
BRIEF OF APPELLANTS                                                                 Page 73 of 82
because it was not limited to the libel claim was wholly unwarranted by the facts or

law.

       Under the foregoing circumstances, the part of the order stating that

“Plaintiffs’ Objections to Defendants’ Motion to Dismiss are sustained” should not

be interpreted as sustaining each and every one of Plaintiffs’ extremely voluminous

evidentiary objections that neither the Court or Defendants’ counsel could have

possibly reviewed before or at the hearing due to the late nature of the filing.

       In response to the evidentiary objections, the Defendants have submitted

responses to each objection under Appendix 3 to this brief. Defendants would ask

that all evidentiary objections to Defendants’ evidence be denied. If the trial

court’s order could be construed as a blanket sustaining of all of Plaintiffs’

evidentiary objections, then the trial court erred on every evidentiary objection

because each and every evidentiary objection raised by the Plaintiffs were

groundless.157




157
  Appx. 3.
BRIEF OF APPELLANTS                                                       Page 74 of 82
XX.      EVEN IF ANY OF PLAINTIFFS’ EVIDENTIARY OBJECTIONS
         HAD A BASIS, DEFENDANTS’ SHOULD HAVE BEEN GIVEN AN
         OPPORTUNITY TO CURE DEFECTS, PARTICULARLY WHEN
         THE OBJECTIONS WERE FILED ON THE DAY OF THE
         HEARING, WERE NOT DISCUSSED AT THE HEARING, AND
         DEFENDANTS HAD NO OPPORTUNITY TO REVIEW THE
         OBJECTIONS PRIOR TO THE HEARING DUE TO THEIR TARDY
         FILING

      Where a trial court finds evidentiary deficiencies in pre-trial motions, the party

offering the evidence should be given an opportunity to cure if it is possible to do

so.158 The trial court should be lenient in granting opportunities to cure so that the

party has a fair opportunity to demonstrate that a claim is not frivolous.159

Affording the opportunity to cure evidentiary defects is particularly important

where the defect is to form rather than substance.160 The movant should be allowed

to amend to cure technical defects.161 The motion should not be denied until the

party has an opportunity to cure evidentiary objections by amendment and

refuses.162




158
    Gower v. Univ. Behavioral Health of Denton, No. 02-16-00245-CV, 2017 Tex. App. LEXIS
6746, at *25 (App.—Fort Worth July 20, 2017).
159
    Id.
160
    Tex. R. Civ. P. 166a; 7-101 Dorsaneo, Texas Litigation Guide § 101.05 (2017).
161
    Shaw v. Norwest Bank Tex., N.A., NUMBER 13-99-602-CV, 2001 Tex. App. LEXIS 4177, at
*16-17 (App.—Corpus Christi June 21, 2001).
162
    Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003).
BRIEF OF APPELLANTS                                                               Page 75 of 82
   In this case, the evidentiary objections were filed on the morning of the hearing

and were not discussed at the hearing. Moreover, the Plaintiffs submitted certified

public records to show that Mr. Ferguson conveyed the Subject Property from

MBH Real Estate LLC to Elmer Hernandez, but omitted the foreclosure sale deed

signed by Ferguson wherein Ferguson conveyed the Subject Property to Metro

Buys Homes LLC, not to MBH Real Estate LLC, which caused the very title issues

of which Plaintiffs complain.

   The Defendants should have had an opportunity to amend and cure any

evidentiary defects if the trial court’s order can even be construed as sustaining the

Plaintiffs’ evidentiary objections. The Defendants should also be able to show

Instrument No. D215075534 in the Tarrant County, Texas deed records, Appx. 2

herein, which is an essential component of the chain-of-title that Ferguson

misleadingly omitted from his documents submitted the morning of the TCPA

hearing. Regardless, Ferguson had the burden of showing enough of the chain-of-

title to establish his claim, and so, he failed to carry that burden by offering any

evidence that MBH Real Estate LLC was ever in the chain-of-title to the Subject

Property.

   This is true regardless of whether this Court considers Instrument No.

D215075534 in the Tarrant County, Texas deed records, being the foreclosure sale


BRIEF OF APPELLANTS                                                        Page 76 of 82
deed from Ferguson to Metro Buys Homes LLC because the turnover order163

showing Coker et. al. to be in the chain-of-title, before any conveyance involving

MBH Real Estate LLC, is in the record. Mr. Ferguson’s burden is not met

regardless, but is particularly not met when the turnover order is in this Court’s

record.164

                                   XXI.      PRAYER

       The Defendants ask this Court to reverse the trial court’s order and render

judgment dismissing Plaintiffs’ suit with prejudice, awarding attorney’s fees,165

costs, and sanctions to Ghrist’s clients. In the alternative, Defendants ask that this

Court reverse the trial court’s order and render judgment dismissing Plaintiffs’

claims against Defendants with prejudice, awarding attorney’s fees,166 costs, and

sanctions to the Defendants, and leaving Plaintiffs’ claims against Sendera Title167

and its employees unaffected. In the further alternative, the Defendants ask this

Court to dismiss each cause of action that this Court finds should be dismissed,

award attorney’s fees,168 costs, and sanctions to appellants, and affirm the trial




163
    1 CR 133-34.
164
    Id.
165
    1 CR 368-70.
166
    1 CR 368-70.
167
    1 RR 29-30 (the Sendera defendants appeared at the hearing by counsel and orally joined in
the motion to dismiss).
168
    1 CR 368-70.
BRIEF OF APPELLANTS                                                               Page 77 of 82
court’s order as to the remaining claims. The trial court should have considered a

partial grant of the TCPA motion instead of finding that the motion was frivolous

for failure to limit the motion to the libel claim.169 If the motion is partially

granted, then attorney’s fees and sanctions should be awarded on the claims that

the motion is partially granted on.170

       Defendants ask this Court to overrule Plaintiffs’ evidentiary objections.

Defendants ask this Court to find that the trial court’s order sustaining objections to

the motion itself did not also sustain the Plaintiffs’ voluminous evidentiary

objections filed the morning of the hearing and not discussed at the hearing.

       In the further alternative, Defendants ask that this Court issue an opinion and

reverse and remand for further proceedings pursuant to such opinion as necessary.

       Regardless of what other actions this Court takes, the Defendants ask that

this Court find that the motion filed under the TCPA was not frivolous or solely

intended to delay and deny any recovery of attorney’s fees to the Plaintiffs’ for




169
    Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 890 (Tex. App.—Houston [1st Dist.]
2015) (partial grant of TCPA motion as to some claims but not others proper); D Magazine
Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017) (granting TCPA motion as to statutory
claims, like DTPA, but denying it as to defamation was proper).
170
    D Magazine, 529 S.W.3d at *30 (attorney’s fees must be awarded to the movant when TCPA
motion is partially granted as to some claims but not others); Sullivan v. Abraham, 472 S.W.3d
677, 683 (Tex. App.—Amarillo 2014), rev’d on other grounds, 488 S.W.3d 294 (Tex. 2016)
(award of some sanctions are mandatory even if movant fails to adequately support claim for
attorney’s fees).
BRIEF OF APPELLANTS                                                                 Page 78 of 82
defense of the motion. In the alternative, Defendants ask for a hearing on the

attorney’s fees because the fee request was filed on the morning of the hearing on

the TCPA motion and Defendants had no opportunity to review or challenge the

amount of fee request before the hearing began.

      With regard to attorney’s fees and sanctions requested by Defendants, the

Defendants request $6,550.00 in attorney’s fees on the TCPA motion, $5,000.00

for the appeal, and three times the foregoing as sanctions.171 In the further

alternative, Defendants ask the Court to remand to the trial court for further

proceedings in connection with this Court’s opinion to be rendered.




171
  1 CR 369-70.
BRIEF OF APPELLANTS                                                       Page 79 of 82
                      Respectfully submitted,
                      _____/s/ Ian Ghrist__________________
                      Ian Ghrist
                      State Bar No. 24073449
                      ian@ghristlaw.com
                      Ghrist Law Firm
                      2735 Villa Creek Drive, Suite 250A
                      Farmers Branch, Texas
                      Telephone: (817) 778-4136
                      Fax:      (817) 900-2863
                      ATTORNEY FOR APPELLANTS




BRIEF OF APPELLANTS                                  Page 80 of 82
                      CERTIFICATE OF COMPLIANCE
       Pursuant to Texas Rules of Appellate Procedure 9.4, I hereby certify that,
absent the caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendices,
the computer program used to prepare this document prior to its conversion to
portable document format calculates the number of words in the foregoing brief as
14,085. I further certify that this brief complies with the typeface requirements of
Texas Rule of Civil Procedure 9.4(e) because this brief has been prepared in a
proportionately spaced typeface using “Microsoft Word” in fourteen (14) point
“Times New Roman” style font.
                                        ____/s/ Ian Ghrist__________________
                                        Ian Ghrist


                          CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing has been served
                                                       13th
on the following via electronic service upon this the ______   day of
 December
_______________,    2017 to the following counsel of record via electronic filing.
J. Michael Ferguson                         Salvador Espino
62 Main St., Suite 310                      1205 N Main St.
Colleyville, Texas 76034                    Fort Worth, Texas 76164
Tel. (817) 267-1008                         Phone (817) 624-3352
Fax (817) 485-1117                          Fax (817) 624-6104
                                            sal_fw@yahoo.com
mike@jmichaelferguson.com
                                            Attorney for Sendera Title and employees
Attorney for Plaintiffs
                                 ___/s/ Ian Ghrist______________
                                 Ian Ghrist




BRIEF OF APPELLANTS                                                       Page 81 of 82
                            No. 02-17-00411-CV

                      SECOND COURT OF APPEALS
                         FORT WORTH, TEXAS


                       GHRIST LAW FIRM ET. AL.,
                                         Appellants
                                 V.

                   J. MICHAEL FERGUSON PC, ET. AL.
                                        Appellees


                   FROM THE 236TH DISTRICT COURT
                     TARRANT COUNTY, TEXAS
                      CAUSE NO. 236-295012-17


          INDEX TO APPENDIX TO BRIEF OF APPELLANTS

  1. Order Appealed From

  2. Instrument No. D215075534 in the Tarrant County, Texas Deed Records,
     being the foreclosure sale deed from J. Michael Ferguson as grantor to
     Metro Buys Homes LLC as grantee

  3. Evidentiary Objection Responses




BRIEF OF APPELLANTS                                                Page 82 of 82
                                      236-295012-17




                                                                           Appx. 1
                                CAUSE NO. 236-295012-17

 MBH REAL ESTA TE, LLC.                         §                 IN THE DISTRICT COURT
 AF! LOAN SERVICING, LLC.                       §
 ANSON FINANCIAL, INC.                          §
 J. MICHAEL FERGUSON. P.C.                      §
                                                §
 Plaintiff~                                     §
                                                §                  236TH DISTRICT COURT
 V.                                             §
                                                §
 IAN GHRIST. GHRIST LAW                         §
 FIIUvt, PLLC, SHAWN COKER,                     §
 NEIGHBORHOOD PARTNER,                          §
 INC., BLUE MOON REALTY                         §
 GROUP. LLC AND WIZARD                          §
 FUNDING. LLC, SILVER STAR                      §
 TITLE, LLC OBA SENDERA                         §
 TITLE. ELIZABETH ESPINO.                       §
 KATHYE. MONTES, and LUCY                       §
 OLIVAS                                         §
                                                §
 D~fe ndants                                    §              TARRANT COUNTY, TEXAS

       ORDER DENYING GHRIST DEFENDANTS AND COKER DEFENDANTS
      MOTION TO DISMISS PURSUANT TO CHAPTER 27 & ORDER SUSTAINING
        PLAINTIFFS' OBJECTIONS TO DEFENDANTS' MOTION TO DISMISS


        CAME ON Tl!IS DAY TO BE HEARD, Defendants IAN GHRIST. GHRIST LAW

FIRM. PLLC, SHAWN COhER. NEIGHBORHOOD PARTNER, INC., BLUE MOON

REALTY GROUP, LLC, WIZARD FUNDING, LLCs' Motion to Dismiss Pursuant to Chapter

27 of the Texas Civil Practice and Remedies Code. This Cou1t, after considering the pleadings,

the response, the objections to Defendants• Motion to Dismiss, the competent evidence, the

documents. the arguments of counsel and the applicable law is of the opinion that Plaintiffs'

objections to Defendants' Motion to Dismiss should he sustained and that Defendants' Motion to

Dismiss should be denied.
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                                                                                         856
         It is therefore ORDERED that Plaintiffs' Objections to Defendants' Motion to Dismiss are

sustained.

         It is titrther ORDERED that Defendants IAN GHRIST, GHRIST LAW FIRM, PLLC,

SHA\VN COKER. NEIGHBORHOOD PARTNER, INC .. BLUE 1-.100N REALTY GROUP,

LLC, WIZARD FUNDING, LLCs' Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil

Practice and Remedies Code is denied.

         This Court finds:

    I.       THE GHRIST DEFENDANTS and THE COKER DEFENDANTS have no standing

             to assert a SLAPP Motion on behalf of Sendera Title and its employees.

   2.        Portions of Defendants· Motion to Dismiss were based upon claims ,vhich have not

             been brought against the Defendants, and are therefore denied;

   3.        A Motion to Dismiss pursuant to Chapter 27 does not apply to Declaratory Judgment

             Actions to determine the rights. status. or other legal relations in relation to the property

             or to determine the validity arising under the instrument, statute, ordinance, contract,

             or franchise and obtain a declaration of rights, status. or other legal rdations thereunder

             as expressly authorized by Chapter 3 7 of the Tex.Civ.Prac.Rem.Code;

   4.        Defendants have not met their initial burden of proof to show that the action is based

             on, relates to, or is in response to a party's exercise of the right of free speech, the right

             of petition. or the right of association:

   5.        Even if Defendants could show that the actions brought by Plaintiffs are based on,

             relates to. or is in response to a party's exercise of the right of free speech, the right of

             petition. or the right of association, the actions are exempt from Chapter 27:




                                                                                               2[Pagc



                                                                                                     857
   6.       Further, even if Defendants could show that the actions brought by Plaintiffs based on,

            relates to, or is in response to a patty's exercise of the right of free speech, the right of

            petition. or the right of association, Plaintiffs have produced clear and specific evidence

            which establishes a prima facie case for each essential element of Plaintiffs' claims

            such that the Defendants' Motion must be dismissed; and

   7.       Defendants cannot establish a valid defense to Plaintiffs' claims: and

   8.       Defendants' motion to dismiss filed under this chapter is frivolous or solely intended

            to delay.

        By separate Order, the Comt has ordered the parties to mediate this case.

        This Court is withholding its ruling on Plaintiffs' requests for an award of court costs and

   reasonable attorney's fees for responding to the Motion to Dismiss to give the parties time to

   n1ediate this case. Jn tlie e, c1.t thnt the pttz tics do nut Icsol \'C their disputes at 1nccliatisn, th is

   C--0nrt ,rill issue ilP Or~ ar on its rwli11.::- 011 PLtintirfs' 1cqacsts fut costs ~nttl 1c.1so1u1blc atto111c..4 •.1

   k!es b..e Bcccn1be1 1.:, lQ17.

        It is further ORDERED that the automatic abatement of discovery pursuant to 27.003 of

   Tex.Civ.Prac.Rem. Code is removed.

        It is further ORDERED that the parties shall confer and submit an agreed scheduling order

   to this court within the next 3"=>days.

Signed on this the   J!f_     day of November 2017.




                                                                                                            3IPagc



                                                                                                                  858
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS     Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2




                                                                            Appx. 2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
A True and Correct Copy of Original Record Filed in Tarrant County, TEXAS   Tarrant County Clerk
Verify Certification at https://tcrecordsonline.com
Verify Key:y8ru6dh2
                                                                         Appx. 3
                                   Cause No. 236-295012-17
 MBH REAL ESTATE LLC,                   § IN THE DISTRICT COURT
 AFI LOAN SERVICING, LLC,               §
 ANSON FINANCIAL, INC.,                 §
 J. MICHAEL FERGUSON, P.C.              §
    Plaintiffs                          §
                                        §
 V.                                     § 236TH JUDICIAL DISTRICT
                                        §
 IAN GHRIST, GHRIST LAW FIRM, PLLC,     §
 SHAWN COKER, NEIGHBORHOOD PARTNER, §
 INC., BLUE MOON REALTY GROUP, LLC,     §
 WIZARD FUNDING, LLC, SILVER STAR TITLE §
 , LLC DBA SENDERA TITLE, ELIZABETH     §
 ESPINO, KATHY E. MONTES, AND LUCY      §
 OLIVAS                                 §
    Defendants                          § TARRANT COUNTY, TEXAS



      DEFENDANTS’ REQUEST TO OVERRULE PLAINTIFFS’ VOLUMINOUS
                     EVIDENTIARY OBJECTIONS


Plaintiffs’ made the following evidentiary objections, which should be overruled:




                                          Page 1 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Moreover, the best evidence
rule was inapplicable as the affidavit did not try to prove the contents of documents and the
documents themselves were offered.




                                          Page 2 of 29
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Page 6 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Moreover, the best evidence
rule was inapplicable as the affidavit did not try to prove the contents of documents and the
documents themselves were offered. Also, the interested witness rule only applies to plaintiff’s
traditional summary judgment motions that are based solely on the affidavit of an interested
witness—obviously inapplicable here.




RESPONSE: This exhibit was relevant to show the course of dealing between Ghrist and
Ferguson, which helps explain the proper interpretation of the written separation agreement.

                                          Page 7 of 29
RESPONSE: The statement was authenticated by Ghrist’s affidavit, also attached to the motion,
was relevant to show the parties’ course of dealing, and was a proved-up business record.




                                         Page 8 of 29
Page 9 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Moreover, the best evidence
rule was inapplicable as the affidavit did not try to prove the contents of documents and the
documents themselves were offered. Also, the interested witness rule only applies to plaintiff’s
traditional summary judgment motions that are based solely on the affidavit of an interested
witness—obviously inapplicable here.




RESPONSE: Ferguson has alleged that Ghrist did not work on the recovery of all of the property
that is the subject of the case and should not be paid for all of it. This exhibit proves that the
disputed property was part of Ghrist’s work as Ghrist drafted and filed the turnover motion and
order, which resulted in the recovery of that property.




                                          Page 10 of 29
Page 11 of 29
Page 12 of 29
Page 13 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Moreover, the best evidence
rule was inapplicable as the affidavit did not try to prove the contents of documents and the
documents themselves were offered. Also, the interested witness rule only applies to plaintiff’s
traditional summary judgment motions that are based solely on the affidavit of an interested
witness—obviously inapplicable here.




                                          Page 14 of 29
Page 15 of 29
Page 16 of 29
Page 17 of 29
Page 18 of 29
Page 19 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Moreover, the best evidence
rule was inapplicable as the affidavit did not try to prove the contents of documents and the
documents themselves were offered. Also, the interested witness rule only applies to plaintiff’s
traditional summary judgment motions that are based solely on the affidavit of an interested
witness—obviously inapplicable here. Several objections raised here are not even evidentiary
objections at all and are frivolous and intended to delay and annoy.




                                          Page 20 of 29
Page 21 of 29
RESPONSE: A lay witness can testify as to the value of his own property. Accordingly, it is
irrelevant whether Ghrist qualifies as an expert. Ghrist does, however, in fact qualify as an
expert.




RESPONSE: Ferguson swore to these facts. Amending the pleadings does not mean that he did
not previously make those statements under oath. The statements were relevant.




RESPONSE: How can Ferguson argue that his own pleading is not relevant? Why plead what
was pled if it was not relevant?




                                          Page 22 of 29
Page 23 of 29
Page 24 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Also, the interested witness rule
only applies to plaintiff’s traditional summary judgment motions that are based solely on the
affidavit of an interested witness—obviously inapplicable here. Several objections raised here
are not even evidentiary objections at all and are frivolous and intended to delay and annoy.




                                         Page 25 of 29
Page 26 of 29
Page 27 of 29
RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, authenticated, and not hearsay. Also, the interested witness rule
only applies to plaintiff’s traditional summary judgment motions that are based solely on the
affidavit of an interested witness—obviously inapplicable here. Several objections raised here
are not even evidentiary objections at all and are frivolous and intended to delay and annoy.




RESPONSE: These objections go to weight and credibility of the evidence, not admissibility,
and the evidence was competent, relevant, authenticated, and not hearsay.




                                         Page 28 of 29
          Respectfully submitted,
          Ghrist Law Firm PLLC


          ___/s/ Ian Ghrist____________________
          By: Ian Ghrist
          SBOT No. 24073449
          2735 Villa Creek Drive, Suite 250A
          Farmers Branch, Texas 75234
          Phone (817) 778-4136
          Fax (817) 900-2863
          ian@ghristlaw.com
          Attorney for Ian Ghrist; Ghrist Law Firm,
          PLLC; Shawn Coker; Neighborhood
          Partner, Inc.; Blue Moon Realty Group,
          LLC; and Wizard Funding, LLC




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