in Re Rowland Martin ( 2015 )

Case No. 04-14-00841-CV
In Re ROWLAND J. MARTIN TEXAS COURT OF APPEALS
Relator
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RELATOR'S MOTION TO REINSTATE ORIGINAL PROCEEDING ,. i - *a
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IN CASE NO. 04-14-00483^CV 'i hr^ CO
TO THE HONORABLE FOURTH COURT OF APPEALS:
Rowland J. Martin, Relator in the above styled case, files this, his "Relator'sMotion To
Reinstate Original Proceeding For Consolidation With Interlocutory Proceedings In Case No.
04-14-00483-CV," pursuant to Section 27.008 of the Texas Citizen's Participation Act, to move
the Court to re-instate his original proceeding in aid of the Court's jurisdiction in Martin v.
Bravenec et al, Case No. 04-14-00483-CV, and to ask the Court to vacate and expunge from the
record the gag order findings entered on July 17, 2014,, in support of which this is shown:
STATEMENT OF THE CASE
Relator asserts that the trial court misapplied the law of collateral estoppel by crediting
Bravenec's arguments about res judicata and conversely declining to credit Relator's collateral
estoppel defense to Bravenec's tort liability claim. Relator's original petition arose from a
dispute inBravenec v. Martin, Case No. 2014-CI-07644 about a lis pendens filing noticing
purchase money lien interests attached to real property known as 1216 West Ave., in San
Antonio, Texas. In 2005. Edward Bravenec acquired a lien interest in the property from Moroco
Ventures, LLC during an attorney client relationship between Relator and the Law Office of
McKnight and Bravenec. In 2006, he executed a foreclosure against his grantor, Moroco
Ventures, LLC. On March 5,2014, the federal court declined to adjudicate the purchase money
lien. On July 9, 2014 the trial court heard and denied Relator's motion to dismiss under the
Texas Citizen's Participation Act, and granted Bravenec's request for a temporary injunction.
There is no question that the federal district court that granted summary judgment for
Bravenec on the 2006 foreclosure sale also declined jurisdiction to expunge a 2014 lis pendens
filing noticing purchase money claims. See Defendants' Exhibit 2. On cross-examination,
Bravenec argued collateral estoppel does not apply to him:
Q. ... Were you not aware that you would be collaterally estoppel from raising those
issues [about res judicata bars] is a state court forum?
A. I don't think that collateral estoppel would apply to me, so no, I don't agree with
that.
Q. How do you explain [that]?
A. Well, collateral estoppel would be against the losing party. And so we are the
prevailing party. So my interpretation of collateral estoppel... [is] that you were
collaterally estopped from asserting what is essentially a matter that had already
been decided in Federal Court [and] in Probate Court. So I think that was our
argument.
Q. Very well. But [Judge Hudspeth's] order denied you relief, the relief you
requested, did it not?
A. It did.
Q. Okay. So you were the losing party on this motion; is that correct?
A. On that one motion, [I] certainly was.
Court Reporters' Transcriptfor July 9, 2014, pp. 39 (lines 17-25) to 40 (lines 1-11). When
asked whether he could identify the place in his judgment that refers "to a lien interest where
[Relator] served in a capacity as a lien holder," Bravenec stated, "I cannot show you." Id. atp.
46, lines 13-16. Thus, it appears that Bravenec "certainly was" bound by the collateral estoppel
defense arising from the federal district court's decisionto decline jurisdictionover purchase
money issues. Court Reporter Record For July 19, 2014, pp. 39 - 40.
Nonetheless, on July 17, 2014, the trial court adopted Bravenec's theory in ordering
temporary injunctive to suppress Relator's lis pendens notices, and various communications with
anonymous contracting third parties, (hereafter "gag order"). Familiarity with the original
petition and with Relator's "Advisory On Fraud On The Court" filed on February 19, 2015 is
assumed. As set forth below, Relator invokes the Court's TCPA writ jurisdiction for affirmative
relief by way of mandamus and prohibition that is beyond the scope of what is available in the
interlocutory appeal in Case No. 04-14-00493-CV. In re Lipsky, 2013 Tex. App. LEXIS 4975
(Tex. App.—Fort Worth ,2013) (TCPA-related petition for writ of mandamus).
ARGUMENT AND AUTHORITIES
A. The De Novo Standards For Appellate Review Of Res Judicata And Collateral
Estoppel Issues Use Objective Criteria To Detect Abuses Of Discretion.
Relying on the standard of review for mandamus set forth in Relator's original petition,
the Court is requested to hold that the trial court abused its discretion in its treatment of collateral
estoppel doctrine. C.f, Bonniwellv. BeechAircraft Corporation, 663 S.W.2d 816 (Tex.1984).
Under traditional rules of res judicata, a party may be barred from relitigating claims from prior
litigation, or barred from relitigating issues that were previously adjudicated in an earlier
proceeding under the doctrine of collateral estoppel.2
A claim of resjudicataunder Texas lawconsists of three elements:6 (1) a final judgment on the
merits by a courtof competent jurisdiction; (2) identity of parties or those in privity with them; and(3) a
second suit based on claims actually litigated in the first suitor claims which should have been litigated in
the first suit.
For collateral estoppel to apply, three elements mustbe met: (1) the parties were cast as
adversaries inthe prior proceeding; (2) the issues sought tobe litigated inthe current proceeding were
"fully and fairly litigated" in the prior proceeding; and (3) those issues were "essential"to the outcome of
theprior proceeding. Kenedy Mem'l Found, v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Sysco Food
Offensive collateral estoppel describes when a plaintiff seekingto estop a defendant from
relitigating an issue which the defendant previously litigated and lost in a suit involving another
party. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552
(1979). Defensive collateral estoppel occurs when a defendant seeks to prevent a plaintiff from
relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against
the same or a different party. UnitedStates v. Mendoza, 464 U.S. 154, 159 n.4 (1984). Collateral
estoppel is further differentiated according to mutuality versus non-mutuality, i.e. whether parties
with or without privity assert the estoppel bar. See United States v. Mollier, 853 F.2d 1169,1175
n.7 (5th Cir. 1988).
Lastly, when the issue is a question of law rather than of fact, the prior determination is
not conclusive either if injustice would result or if the public interest requires that re-litigation
not be foreclosed. City ofSacramento v. State ofCalifornia, 50 Cal. 3d 51, 64 (1990); Greenfield
v. Mather, 32 Cal. 2d 23, 35 (1948). The public interest exception to res judicata and collateral
estoppel are not confined to cases concerning public agencies, nor does it require that the initial
determination of an issue be "erroneous." Kopp v. Fair Political Practices Com'n, 11 Cal. 4th
607, 622, fn. 16 (1995). In either case, a party must specifically plead an affirmative defense or it
is waived. TEX. R. CIV. P. 94; Kinnear v. Texas Comm'n on Human Rights, 14 S.W.3d 299, 300
(Tex. 2000).A.2d 184 (N.H. 2010).
1. The Trial Court Departed From Guiding Principles By Deferring To
Conflicting Res Judicata Issues In The Real Parties' Pleadings
And Offensive Collateral Estoppel Issues In Bravenec's Testimony.
The major implication of Bravenec's testimony - that there is no such thing as the
defensive use of collateral estoppel by parties on the losing end of a judgment - is simply
Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994); see also, Harvey Specialty'&Supply, Inc. v.
Anson Flowline Equip. Inc., 434 F.3d 320, 323 (5th Cir. 2005).
preposterous. It reflects a common misconception about the meaningof collateral estoppel
doctrine. Although res judicata and collateral estoppel are often improperly argued together, the
Texas Supreme Court has repeatedly disapproved the practice as set forth in Barr v. Resolution
Trust Corp., 837 S.W.2d 627 (Tex. 1992):
an example of the confusion concerning collateral estoppel is the court of appeals'
holding that "res judicata does not preclude relitigation of issues that the first court did
not actually try and determine, unless a determination of those issues was essential to the
judgment in the first suit"... The court relied on Restatement (Second) of Judgments §
27 (1982), which is entitled "Issue Preclusion—General Rule", i.e., collateral estoppel.
See Id. § 17(3), and comment (c). We disapprove similar language in the case cited by
the court, Faour v. Faour, 762 S.W.2d 361 (Tex.App—Houston [1st Dist] 1988, writ
denied). Our own recent holdings have contributed to the confusion by holding without
elaboration that res judicata requires an "identity of issues" between the prior and
subsequent suits. See, e.g., Coalition ofCitiesfor Affordable UtilityRates v. Public
Utilities Commission, 798 S.W .2d 560, 563 (Tex. 1990); Byrom v. Pendley, 717 S.W.2d
602, 606 (Tex. 1986); Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818
(Tex. 1984). If an identity of issues is strictly required, then there is no basis for
precluding issues that should have been raised in the prior suit but were not, and there is
no distinction between claim preclusion and issue preclusion. See Flores v. Edinburg
ConsolidatedIndep. School Dist., 741 F.2d 773, 776 (5th Cir.1984)." fn 2 pp. 628-629.
Id. Evenwhen issue preclusion is plausibly invoked, offensive and defensive uses are subject to
different criteria. Offensive collateral estoppel in favor of a winning party such as a judgment-
creditor is proper only if he or she "can produce record evidence demonstrating that [a prior
court] conducted a hearing in which [it] was put to its evidentiary burden," otherwise "collateral
estoppel may be found to be appropriate." Matter ofPancake, 106 F.3d 1242, 1246 (5th Cir.
1997).
In contrast, whether a losing party in an Anti-SLAPP suit can prevail with a defensive use
of collateral estoppel, Charalambopoulus v. Grammer, Civil Action No. 3:14-CV-2424-D (N.D.
Tex. January 29,2015), or not as in Singh v. Lipworth, CaseNo. C073177 (Cal App. 3rd Dist.
2014), depends on the viability of the evidence presented by the proponent. For example, the
Court ruled for the non-moving party of the Anti-SLAPP motion in Charalambopoulus because
there was "no evidence that would enable the court to identify the issues that the [prior court]
actually decided," Id. at p. 62.
The record evidence distinguishes Bravenec's suit, from the suit brought by the non-
moving party in Charalambopoulus, as a transparent attempt to relitigate a jurisdictional
determination by a federal court that specifically declined on that basis to expunge a purchase
money lis pendens notice he requested. The record evidence includes orders by more than one
federal judge, and all are consistent with the transactional and chain of title details that form the
legal basis of Relator 's collateral estoppel and separate transaction defenses. Anderson v. Law
Firm ofShorty, Dooley & Hall, 393 Fed. Appx. 214 (5th Cir. Aug. 26, 2010) (applying separate
transaction rule of res judicata argument in attorney client dispute).
Bravenec's reliance on res judicata in pleadings and offensive collateral estoppel in
testimony is problematic. While it is true that his judgment is under attack, the forum for the
attack is U.S. Court of Appeals Case No. 14-50093, the court that rendered the final judgment,
not the 285th Judicial District Court, where Relator asserts a purchase money interest. In this
regard, the federal court with competent jurisdiction has not spoken in Case No. 14-50093 about
the issue of finality. While the res judicata argument in his pleadings he refers to preclusion
claims, and his testimony on collateral estoppel refers to preclusion of lis pendens issues, the
same federal judge who authored his judgment - U.S. Senior District Judge Harry Lee Hudspeth
- denied his 2014 post-judgment motion to expunge lis pendens on jurisdictional grounds that
suggest non-identical issues between the federal appellate case and the state interlocutory appeal.
On cross-examination, Bravenec could not identify record citations to the purchase
money issue that was supposed to be barred by his judgment as required by Fifth Circuit doctrine
on offensive collateral estoppel in Pancake, Id. Lastly, here as in Bravenec v. Flores, Case No.
04-11-00444-CV (Tex. App. - San Antonio, 2013), he claimed a need for special measures to
protect him from abuse by an opposing party, but his own conduct presents facts issues about
abuse arising from his undisclosed title transfer to Torralba Properties the day before the
temporary injunction hearing on July 9, 2014. Thus, the trial court departed from guiding
principles. In summary, the trial erred by giving effect as a matter of law to Bravenec's suspect
arguments confusing res judicata and offensive collateral estoppel. Barr, Id.
2. Relator's Collateral Estoppel Defense Complies With The Requirement That
The Parties Be Adversaries In Prior Litigation.
Relator's defensive use of collateral estoppel, like Bravenec's offensive use of the
doctrine, turns in part the adverse relationship in Martin v. Grehn where the parties were "cast as
adversaries" based on Relator's interest as former client of Bravenec's law firm and successor of
Bravenec's grantor, Moroco Ventures, LLC, on one hand, and Bravenec's interest as a grantee of
a second lien interest that relates back to when the attorney client relationship was still in effect,
on the other. Trapnell, 890 S.W.2d at 801. The summary judgment granted by Judge Harry Lee
Hudspeth artin v. Grehn, Case No. 13-50070 (5th Cir. 2013) adjudicated foreclosure proceedings
on the second lien Bravenec acquired in 2005, secondary to purchase money interests of the
seller and Relator, during an attorney client relationship, and with promises to perform legal
services. District Judge David Hittner later ruled favorably on Relator's constitutional standing
in his attached order denying Bravenec's motion to dismiss. Because Relator advanced purchase
money separate from the second lien Bravenec acquired from Moroco Ventures, LLC, his lien
claim does not attack the judgment. See attached "Defendant's Undisputed Statement of Facts."
3. Relator's Collateral Estoppel Defense Showed That The Jurisdictional
Question About The Purchase Money Issue Was "Fully And Fairly
Litigated" In The Proceedings On Judge Hudspeth's March 5,2014 Order
And Without The Filing Of A Notice Of Cross Appeal By The Real Parties.
Courts consider the following factors for inquiring into whether issues have been fully
and fairly litigated: whether the party was fully heard on the issue in the prior proceeding,
whether the decision maker supported its ruling with a reasoned opinion, and whether the
decision was subject to appeal or in fact appealed. Mower, 811 S.W.2d at 562. The specific issue
proposed for preclusion as part of Relator's collateral estoppel defense is Bravenec's allegation
that the federal courts asserted jurisdiction over the purchase money issue and that the res
judicata effect of Martin v. Grehn bars the assertion of purchase money lien interests in the
pending interlocutory appeal. This showing depends on whether the purchase money transaction
was separate from the transaction adjudicated in the federal case, and whether the jurisdictional
question presented by that transaction was adjudicated by Judge Hudspeth's March 5, 2014
order. Bravenec cannot sustain that burden because he testified that he could not specify any
record evidence that a disposition was made in Case SA 1l-CV-0414 on the merits of the
purchase money claim.
Further, following the entry of appellatejudgment in Case No. 13-50070, Judge
Hudspeth's order on March 5, 2014 adjudicated the denial of a motion for expunction and
contempt in which Bravenec sought to penalize the filing of a lis pendens document. See Order
in Defendant's Exhibit 2. The lis pendens filing noticed transactional details involving a purchase
money lien formed on October 31, 2003, with priority over Bravenec's second lien interest,
which originated from funding provided from Relator's personal estate, and was motivated by
the purpose of enabling Moroco Ventures, LLC to purchase the subject property from sellerRoy
Ramspeck. See Lis Pendens Notice in Defendant's Exhibit 7; andsee Opening Statement of
Rowland Martin in Court Reporters' Transcriptfor July 17, 2014, pp.Jl -15. Two orders
entered by U.S. Bankruptcy Judge Leif Clarkcorroborate those assumptions, the first granting a
motion for reconsideration to notice purchase money creditor status in the Bankruptcy Case No.
05-80116, and the second remanding an adversary case involving the same issue. See Judge
Clark's orders attached to Exhibit 7.
The processing of the issue was also minimally fair. Both orders were subject to appeal.
Relator appealed the order by Judge Hudspeth on other grounds and it is under review in Martin
v. Bravenec, Case No. 14-50093, a proceeding in which Bravenec is an appellee. Neither Relator
nor Bravenec appealed the orders by Judge Clark, but one of those orders was eventually
admitted into evidence in the trial court hearing on July 17, 2014 with an express stipulation by
Attorney Deadman that the case was closed. The issue of whether the federal district court
asserted jurisdiction to adjudicate the purchase money lien issue has been fully litigated. The was
evidently fair to Bravenec because he was prevailing party.
4. Relator's Lien And Lis Pendens Interests Were Essential To The March 5th
Order Because They Caused The Court To Decline Federal Jurisdiction.
Third, the foreclosure issue was unquestionably "essential" to the outcome of the federal
court proceeding in Martin v. Grehn. Under this element, courts consider the "ultimate issues" -
the factual determinations that necessarily form the basis of the prior judgment. Tarter v. Metro.
Sav. & Loan Ass'n, 744 S.W.2d 926, 927-28 (Tex. 1988); accord State v. Getman, 255 S.W.3d
381, 384-85 (Tex. App—Austin 2008, no pet.) ("The entire record from the earlier proceeding
must be examined with realism and rationality to determine precisely what fact or combination
of facts were necessarily decided and which will then bar their relitigation").
The element of "essentialness to the outcome" as applied to establish the collateral
estoppel effect of the purchase money lien issue is readily met by the nexus between the
purchase money issue and the March 5,2014 order denying expunction, but the second lien
foreclosure sale transaction was not, for two reasons. First, the foreclosure salejudgment was
already final on March 5, 2014. Second, the federal district court rejectred Bravenec argument
that Relator lacked standing, but declined to exercise federal jurisdiction 2014 to adjudicate the
purchase money interests. Thus, collateral estoppel precludes the argument that the claim
preclusion effect of the foreclosure judgment operates as an adverse ruling on purchase money.
Lastly, three different judges adjudicated the transactional and chain of title evidence that
distinguishes Relator 's purchase money lien claim as a separate transaction from Bravenec's
second lien and its foreclosure in 2006. One set of determinations led Judge Hudspeth and Judge
Hittner to assert federal jurisdiction over the second lien controversy. The purchase money issue
was not essential to Judge Hudspeth's final determination about the 2006 foreclosure, but is was
essential to Judge Hittner's standing setermination. The other set of determinations led Judge
Hudpseth and Judge Clark to decline federal jurisdiction over the purchase money lien claim.
The purchase money lien claim was essential to the latter outcome in that the reviewing judges
noticed standing on a matter for which there was no federal question jurisdiction.
5. Relator's Collateral Estoppel Defense Promotes Public Policy And Fairness
Objectives
In addition to the factors above, the Texas Supreme Court has considered, in determining
whether to apply collateral estoppel, whether the purposes of that doctrine would be served in
applying the doctrine to a particular case. Trapnell, 890 S.W.2d at 801. For example, in Park 100
Investment Group v Ryan, B208189 (Cal. App. 2nd Dist. 2009), the defendants were attorneys
who, in prior lawsuit involving an easement dispute, had filed a lis pendens on a dominant
tenement, and were sued by the owners of the dominant tenement who claimed that the lis
pendens was wrongfully recorded. On appeal under anti-SLAPP laws, the court of appeals
reversed the expunction and denial of dismissal relief, concluding that the filing of the lis
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pendens was illegal as a matter of law, and that the attorneys were not precluded from asserting
the validity of the lis pendens.
Noting that "[collateral estoppel is not an inflexible doctrine," and that "[e]ven if the
minimal requirements for its application are satisfied, the doctrine should not be applied if
considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular
case," the court of appeals reversed the denial of the Anti-SLAPP order as follows:
... the courts have recognized that certain circumstances exist that so undermine the
confidence in the validity of the prior proceeding that the application of collateral
estoppel would be unfair to the defendant as a matter of law. [For example,] application
of collateral estoppel is unfair where the second action affords the defendant procedural
opportunities unavailable in the first action that could readily cause a different result
when Judge Treu was first called upon to address the propriety of the lis pendens in
considering the expungement motion, he was not provided with the proper legal
authority. His ruling was based upon misrepresentations by both parties as to the state of
the law. Both Oviatt and Heron erroneously represented to the court that there was no
legal authority in California discussing the propriety of recording a lis pendens on a
dominant tenement in an easement dispute., when Judge Treu rendered his order
expunging the lis pendens, the legal issues had not been fully presented and his decision
was based on an incomplete and erroneous understanding as to the state of the law. ...
new authority provided a "colorable" argument that the recording of the lis pendens was
permissible. ... In these circumstances it is inherently unfair to conclude that the orders
rendered by Judge Treu, including the expungement order, conclusively establish that the
lis pendens was illegal as a matter of law and thus, it is inappropriate to bind attorneys
Ryan and Brosman to those rulings ... When the question is one of law rather than a
question of fact, a prior conclusion does not prevent a reexamination of the issue, either if
injustice would result or if the public interest requires that relitigation not be foreclosed.
Id. at p. 12-15. The facts here run strikingly parallel to those in Park. In the proceeding below,
Bravnec persuaded the trial court to indulge a "non-mutual" application of collateral estoppel
doctrine, essentially for the benefit of non-party transferees who had not disclosed to the court.
Further, the state court case is a second action that affords Relator the chance to litigate purchase
money lien interests, as opposed to mortgagor rights of redemption, as was the case in federal
court, the presenting "procedural opportunities unavailable in the first action that could readily
11
cause a different result." Larry York v. State ofTexas, 373 S.W.3d 32 (2012); Chisholm v.
Chisholm, 209 S.W.3d 96, 98 (Tex. 2006).
Here too, because the temporary injunction hearing preceded the first Texas case to apply
Anti-SLAPP law to a lis pendens dispute, the trial court "was not provided with the proper legal
authority," and this led to a "ruling was based upon misrepresentations by both parties as to the
state of the law" and "an incomplete and erroneous understanding as to the state of the law."
There are even parallels between the two cases in terms of the nature of the legal disputes. In
Park the question was whether an attorney litigating an easement dispute could file a lis pendens
attaching the dominant estate. Here, the question left open by the order of the Bexar County
Probate Court #1 was whether an Administrator and a purchase money lien holder could file a lis
pendens notice citing a dual interest in a subject property as common fund for satisfaction of
claims by the estate and its administrator, even though the estate, like the subservient tenement,
had no formal legal interest in the property. Credit defensive collateral and deed estoppel is due.
B. Tex. Civ. Prac. & Rem. Code 51.014(a) Does Not Provide An Adequate Remedy At
Law Given Relator's Exceptions To Res Judicata For Public Policy And Unfairness.
In its order of February 2, 2015, the Court denied Appellees' motion to dismiss and
granted their motion for an extension of time, stating that "in disposing of this appeal, this court
will consider only those issues raised in appellant's brief that relate to the orders this court has
expressly identified as the subject of this appeal." Id. Subsequently, the real parties filed a brief
alleging for the first time on appeal an unlitigated cause of action for fraud in supportof their
claim for temporary injunctiverelief. As a result, Relator's burden requires require review of
issues relating to orders other than those disposed by the trial court on July 17,2015. Because the
Court's order limits the adequacy of Section 51.014(a) as a remedy at law for the real parties'
reliance on fraud to support temporary injunctive relief and the error is not harmless for reasons
12
explainedbefore. Relator has thus sustained the secondelement of the case to reinstate original
proceedings for mandamus and prohibition relief. Batzelv. Smith, 333 F.3d 1018,1025 (9th Cir.
2003), cert, denied 541 U.S. 1085 (2004) (Anti-SLAPP immunity).
1. Exceptions On Public Policy Grounds To The Real Parties' Reliance
On Res Judicata Theories To Support Claims For Tortious Interference.
Relator requests mandamus relief from the temporary injunction order to vindicate the
public policy rationale for his legitimate use of collateral estoppel for defensive purposes. The
court in Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex.
App - 1st Dist. - Houston 2013) disposed of the tortious interference claim there with the
following holding: "To establish a cause of action for tortious interference, a plaintiff must prove
that (1) a contract subject to interference exists, (2) the defendant committed a willful and
intentional act of interference with the contract, (3) the act proximately caused injury, and (4) the
plaintiff sustained actual damages or loss .. .Ordinarily, merely inducing a contract obligor to do
what it has a right to do is not actionable interference." Id. On this basis, the court of appeals
there reversed a trial court order denying the defendant's TCPA motion to dismiss.
Relator's collateral estoppel defense warrants preclusion of the res judicata theory of the
real parties' tortious interference claim for similar reasons. The real parties are not entitled to
assert injuries due to interference because the lis pendens notice is not a per se attack on
Bravenec's judgment and therefore merely induces the contracting parties to manage the inherent
risk of doing business with Bravenec asthey have a right to do.3 More importantly, the entire
3 Relator's lis pendens notice is distinguishable from the one struck down In Wallace v. Kelley,
2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. 1, 2007), but even there the federal court noted that an
unadjudicated state law claim associated with a lis pendens noticed filed under Nebraska law was
equitablytolled under 28 U.S.C. 1367, even though the court there had sanctioned the pro se plaintiffs for
filing notices of lis pendensafter final dismissals of their federal case against a mortgage backed
securities trust defendant, and after state court proceedings to approve the sale of the subject properties
had concluded. Id.
13
rationale for the underlying claim is disfavored on public policy grounds because Bravenec
acquired his original lien interest in the subject property during a former attorney client
relationship with Relator as was establish in Case No. 04-13-00370-CV,and the use of collateral
estoppel for the offensive purpose of vindicating purchase money lien interests is also justified
for that reason. 4
Under Zuniga v. Grose, Locke, & Hebdon, 878 S.W.2d 313, 318 (Tex. App. San Antonio
1994, writ ref d), the Court undoubtedly retains dominant supervisory jurisdiction and inherent
authority to regulate the activities of the Law Office of McKnight and Bravenec. See, Archer v.
Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963) (quiet title case involving client request
to cancel deed used for in-kind payment); and Barranza Family Limited Partnership v. Levitas,
Case No. 13-07-00470-CV (Tex.App. 13th Dist. - Corpus Christi, 2009) (right of interested party
principle to an accounting). There the Court stated: "For the law to countenance ... abrupt and
shameless shift[s] of positions would give prominence (and substance) to the imagethat lawyers
will take any position, depending upon where the money lies, and that litigation is a mere game
and not a search for truth ..." Zuniga, Id
A diligent search reveals few cases of attorney conduct that even remotely approach the
issues about inequitable conduct in this case. In Amalfitano v Rosenberg, 428 F. Supp. 2d 196
(S.D.N.Y., 2006), appealed in 533 F.3d 117, 125 (2d Cir., 2008), certified to state courtin 12
NY3d 8 (N.Y. App., 2009), an attorney's acts of deceit leading in procuring an erroneous
summaryjudgment in a prior case compelled the federal courts to certify a question for state
court review about whetherdetrimental reliance was a mandatory element for attorney deceit
4 In Rose v. Rothrock, Case No. 08-3884 (E.D. Penn, 2009), a federal court denied a motion to
impose sanctions against a Section 1981 lis pendens claimant who had assertedan unadjudicated interest
in an executory contract of sale that the defendants had allegedly breached. The court reasonedthat the
claimant hadestablished a prima facie case for his lawsuit under Pennsylvania law based onexecutory
interest in a contract of sale and an assertion of first amendmentrights.
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under New York's anti-deceit statute. But this case is worse than Amalfitano by far by Zuniga's
standards. The attorney in Amalfitano acted to secure a benefit for his client. Here, Probate Court
orders entered on March 19,2014, signify that Bravenec's status was that of an undischarged
attorney of record up to that date, implying accountability in that same status at the time he
entered into the contract of sale he purports to enforce in this case. Cf, In re Liberty Trust Co.,
130 B.R. 467 (W.D. Tex. 1991) (disregarding attorney withdrawal unsupported by formal order
of discharge). Despite that status, Bravenec has kept in-kind consideration far exceeding the
quantum merit value of McKnight and Bravenec's unperformed services, executed a post-
petition foreclosure to acquire the first lien note from an adverse party, profited from the rents on
the property through a holding company, 1216 West Ave., Inc., and then secured a gag order to
suppress a former client's attempts to recover purchase money lien interests through fraud on the
court after a covert transfer of the subject property the preceding day. The public policy issue
was unadjudicated in Federal Case SA 1l-CV-0414 and therefore presents a matter this Court is
at liberty to resolve in the interest of deterring attorney transactions that increase and distort
litigation.5
2. Exceptions On Unfairness Grounds To The Real Parties' Reliance On Res
Judicata And Fraud Theories In Support Of Temporary Injunctive Relief.
Relator seeks prohibition relief on grounds of unfairness to preclude the Bexar County
District Courts from extending the judgment in Federal Case No. SA 1l-CV-0414 to sustain the
real parties' unlitigated fraud rationale for temporary injunctive relief. The court of appeals in
5 The fact that trial proceedings were conducted despite an automatic stay in Case No. 2006-CI-
15329 and Case No. 2014-CI-07644 arouses other serious public policy concerns warranting
opportunities to participate in governmentto maximum extent allowed by the law. Relator invoked state
law from Larry York v. State in vain in the federal district, bankruptcy and appellate courts, but none of
the federal courts applied the statecourtchoice of law in response. Goad v Zuehl Airport Flying
Community Owners Association, Inc., CaseNo. 04-11-00293-CV (Tex. App.- SanAntonio, May23,
2012) (rejecting vexatious litigant classification of pro se litigant).
15
James, et al, v. Calkins, Case No. 01-13-0018-CV (Tex. App. - Houston [1st Dist.] August 21,
2014) disposed of a fraud claim pursuant to Tex. Civ. Prac. & Rem. Code Section 12.002(b)
with the following holding: "Appellees claimed ... that appellants knewthat the lis pendens was
fraudulent when it was filed and that [one appellant] admitted under oath that she knew that the
lis pendens was fraudulent. But no evidence supports these assertions, and "[c]onclusory
statements are not probative and accordingly will not suffice to establish a prima facie case ...
The evidence shows thatthatthe lis pendens provided notice of the pendency of the 61st District
Court lawsuit, which requested a declaratory judgment that a 2007 deed conveying [a] home to a
trust creadted and controlled by [appellee] is invalid" James, Id. at p. 28. Here, the probative
evidence flowing from Bravenec's testimony on July 9. 2014 both negates the res judicata and
collateral estoppel theories he alleged, and affirmatively legitimates Relator's use of collateral
estoppel for defensive and offensive purposes. See Part A, supra.
The lis pendens mandamus case in La Chappelle v. Superior Court ofRiverside County,
Case No. E058014 (Cal. App. 4th Dist. 2013) (mandamus proceeding reversing lis pendens
expunction) validates Relator's exceptions to the real parties' maintainence of a fraud claim,
whether on interlocutory appeal or on remand. La Chappelle involved a similar fact situation
where purchasers at a nonjudicial foreclosure sale moved to expungea lis pendens by alleging
that the claimant could not establish the evidentiary merit of his claim. In its ruling, the trial
court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to support its
ruling: "The purchasers title (at a foreclosure sale)... is not encumbered by any interest that is
created and recorded after the deed of trust, but prior to the date of the foreclosure sale, even if
the foreclosure sale purchaser had actual or constructive notice of the intervening lien or
interest." Id atp. 2. On appeal, the La Chappelle court of appeals concluded that the foreclosure
16
judgment was inconclusive about whether or not the underlying deed was void: the lis pendens
claimant "stated grounds to set aside the sale based on the invalidity of the trust deed" and "he
does claim an interest in the real property so that the trial court erred in expunging the notice of
lis pendens." Id. at p. 4.
Here, the purchase money lien encumbrance that Relator noticed in his lis pendens filing
was created long before the second deed of trust Bravenc acquired in 2005 and its foreclosure in
2006. Further, here as in La Chapppelle, the federal court decision is inconclusive for purposes
of the matters in controversy in the pending interlocutory appeal. The simple fact of the matter is
that Bravenec was not the primary beneficiary in Federal Case No. SA 1l-CV-0414 - his co-
defendants Charles Grehn and Reliant Financial were. Bravenec was a tag along first lien
assignee defendant, and a vicarious beneficiary of the judgment for Reliant Financial, due to his
role as the plaintiff of trespass to try title suit against Reliant Financial and his acquisition of first
lien interest through a foreclosure settlement in that suit. Consequently, the judgment in Federal
Case No. SA 1l-CV-0414 offers him no repose from the void order rule, especially not in the
context of unadjudicated state law claims that were equitably tolled under 28 U.S.C. 1367.
La Chappelle teaches that the Court retains extraordinary writ powers to wipe the slate
wiped clean, whereas the inadequacy of remedies at law to accomplish that purpose in the
pending TCPA interlocutory appeal could possibly doom Relator's attempts to correct a manifest
injustice in that forum. Cf, Security StateBank& Trust v. Bexar County, et al, Case No. 04-11-
00928-CV (Tex. App. - San Antonio 2012) (deprivation of due process calls for measures to
wipe the slate clean). For example, contrary to supposed self-executing automatic stay
protection, there were trial proceedings on December 8,2014 in the285th Judicial District Court
and the Monitoring Court. Cf, Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180,192
17
(2005) appealed in Super. Ct. No. CV780187 (Cal. 2005) (lack of trial court jurisdiction due to
appeal in Anti-SLAPP case triggering automatic stay). Although the attached Docket Sheet states
that the setting was "per injunction," there is no reference in the temporary injunction order to
the Monitoring Court, and the proceedings as such were accompanied by a lack of advance
notice to the undersigned Relator of any specific trial court location. Thus, complete relief calls
for a writ of prohibition to address the unfairness of allowing Bravenec to seek repose on a
theory of res judicata. See generally, Appellant's Advisory On Fraud On The Court in Case No.
04-14-00483-CV.
C. The Only Conclusion To Reach From A Correct Application Of Issue And Claim
Preclusion Principles Is That The Lien And Lis Pendens Notices Filed In The Case
Docket Are Protected Speech.
The temporary injunction order on July 17, 2014 purports to suppress a certain notice of
apparent liability for purchase money claims, a communication involving published speech, and
a perfected lis pendens notice, a communication involving present and future speech that is
intertwined without spec in docket records of the trial court. Regarding the lien notice, Relator
invokes Section 8 of the Bill of Rights of the Texas constitution:
Every person shall be at liberty to speak, write or publish his opinions on any subject,
being responsible for the abuse of that privilege; and no law shall ever be passed
curtailing the liberty of speech or of the press. In prosecutions for the publication of
papers, investigating the conduct of officers, or men in public capacity, or when the
matter published is proper for public information, the truth thereof may be given in
evidence.
Id. According to Section 8, the trial court violated the Bill of Rights, first on May 13, 2014, and
again on July 17, 2014, by ordering cancellation withoutmeaningful opportunities to be heardon
evidence about the true chain of title attached in "Defendant's Undisputed Statement of Facts."
The trial court's treatment of Relator's lis pendens notice also was error. The trial court
had a duty to make specific findings supported by evidence that (1) an imminent and irreparable
18
harm to the judicial process will deprive the litigants of a just resolution of their dispute, and (2)
the judicial action represents the least restrictive means to prevent that harm. Markel v. World
Flight, Inc., 938 S.W.2d 74 (Tex. App.-San Antonio 1996, no writ). The only conclusion the trial
court could reach is it does not attack a judgment to enforce deed estoppel against third party
purchase money lien covenants that run with the land described in the record chain of title.
The trial court could also only properly conclude from the injury asserted, the relief
requested, and the underlying evidence, that the lis pendens here posed no harm judicial process.
The injury Bravenec claimed arose from a lis pendens communication equivalent to the one in
James, Id. In James, TCPA remedies were also affirmed because a lis pendens notice by
definition involves a constitutionally protected communication implicating a judicial proceeding:
We agree that appellees' claims in the underlying case are "based on, relatef] to, or [are]
in response to" appellants' exercise of the right to petition as defined by the TCPA. See
id. §§ 27.00l(4)(A)(i), 27.005(b). As pleaded, appellees' actual and constructive fraud
and barratry claims are "based on, relate[] to, or [are] in response to" [the opposing
parties'] allegedly fraudulently claiming that they represent [the beneficiary of
guardianship] in pleadings filed in various lawsuits. See id. § 27.005(b). Likewise,
appellees' fraudulent lien claim is "based on, relates to, or is in response to" the lis
pendens filed by [Appellant] with the Harris County clerk that gave notice of her claims
against [Appellee] in the 61st District Court lawsuit, which seeks to cancel his transfer of
[the beneficiary's] home to a trust controlled by him. All of these are "communication[s]
in or pertaining to a judicial proceeding." See id. § 27.00l(4)(A)(i). Appellees argue that
that these actions cannot be constitutionally protected, but the cases they cite do not apply
the TCPA, or do not involve communications of the type at issue here. Accordingly, we
hold that appellants met their initial burden to prove that appellees' legal action related to
their exercise of the right of petition. See id. § 27.005(c).
The judicial proceeding here involves published communications, and unpublished future
communications. On July 9, 2014 , Bravenec relied on evidence consisting of documents from
the federal case and his owntestimony, but failed to disclose deed records showing he
transferred the subject property to a pedente lite purchaser the preceding day. "[A] trial court
abuses its discretion ... unless it is clearly established by the facts thatone seeking such reliefis
19
threatened with an actual irreparable injury if the injunction is not granted." Markel, Id. Here,
there is only conjecture to suggest that the gag avoided an irreparable injury.
The trial court could also only properly conclude that the lis pendens notice should not
have been expunged prior to the conclusion of the affected judicial proceeding. In Markel, the
Court emphasized the necessity of "a narrowly tailored injunction order." Id. Here, the trial
court ordered Relator on July 9, 2014 to submit to censorship "in the broadest terms," and
indicated by the exchange that ensued when Relator objected at the July 17, 2014 hearing to the
lack of narrow tailoring reflected in the proposed terms of the order:
THE COURT: "... my intent was to draft the order as broadly as possible. I did not
intend the language [to] quote that phrase 'being given its broadest terms' to be included
in the order. Why is it in there?"
MR. DEADMAN: "The only reason that's in there ... [is] the lengthy history in this case
THE COURT: " .. .1 don't know that you need that particular language in the Order. I
don't want to make it so broad that it's subject to constitutional challenge ...."
See, Court Reporters' Transcriptfor July 17, 2014. Relying as before uncritically on Bravenec's
legally unwarranted and factually unsupported preclusion theories, the trial court then deleted
five words, 'being given its broadest terms," but left intact all the original decretal clauses
purporting to broadly enjoin Relator's future speech. Id. Like Markel, there is no evidence of any
nexus with lis pendens speech that justified censorship "in the broadest terms" after title had
already been transferred by the time of the hearing and before the final judgment. Unlike Markel,
the covered individuals are all anonymous and even their existence is mostly hearsay. Thus,
mandamus and prohibition relief is needed to wipe the slate clean. Security State Bank & Trust v.
Bexar County, et al, Case No. 04-11-00928-CV (Tex. App. - San Antonio 2012), atp. 10.6
The problem with issuing an order to censor future speech, then selectively removing only the
clauses that are salutary in nature, in order to avoid making the order look "so broad that it's subject to
20
WHEREFORE, PREMISES CONSIDERED, Relator prays that the Court issue a writ to
vacate and expunge the gag order nunc pro tunc, to prohibit the gag order findings, and for such
other relief both in law and in equity as he may be justly entitled in Case No. 04-14-00483-CV.
Dated: March 13,2015 Respectfully Submitted,
Rowland.
951 Lombrano-
San Antonio, Tx 78207
(210)323-3849
constitutional challenge," is this: "The very enumeration of the right [freedom of speech] takes out of the
hands of government—even the Third Branch of Government—the power to decide on a case-by-case
basis whetherthe right is really worth insisting upon. A constitutional guarantee subject to future judges'
assessments of its usefulness is no constitutional guarantee at all..." NRA v. Bureau ofAlcohol, Tobacco,
Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012) (dissenting opinion). Unlikethe lis pendens in
James, moreover, the one here implicates public policy issues regarding the quality of legal service
provided the Law Office of McKnight and Bravenec and Relator's viewpoints aboutpractices that
prevailed during the mortgage industry crisis. Mortgage-Specialists, Inc. v. Implode-Explode Heavy
Industries, Inc., 999 A.2d 184 (N.H. 2010). (anti-slapp mortgage case); andsee, Cortez v. Johnston, 378
S.W.3d 468 (Tex. App.—Texarkana 2012, pet. denied) (strong matterof public concern involving a
member of the statejudiciary). Lastly, the text of the order, the trial court's misplaced reliance on
erroneous conclusions about res judicata and collateral estoppel, and the illusory nature of the evidence,
provide no reasonable assurance whatsoever that censorship was not the ulterior motive. Butsee, Cortez,
Id.
21
CERTIFICATE OF SERVICE
I mailed a copy of this "Relator's Motion To Reinstate" to Glenn Deadman and Torralba
Properties, LLC on March 13, 2015.
Rowland
22
EXHIBITS
A. Temporary Injunction Order Of The 285th District Court Dated July 17, 2014
B. Defendant's Undisputed Statement Of Facts Concerning Chain Of Title
C. Charalambopoulus v. Grammer, Civil Action No. 3:14-CV-2424-D (N.D. Tex. January
29,2015).
D. Park 100 Investment Group v Ryan, Case No. B208189 (Cal. App. 2nd Dist. 2009).
E. La Chappelle v. Superior Court ofRiverside County, Case No. E058014 (Cal. App. 4th
Dist. 2013).
F Order of U.S. District Judge Harry Lee Hudspeth dated March 5, 2014.
G. Order of U.S. District Judge David Hittner
H. Orders of U.S. Bankruptcy Judge Lief. M. Clark
I. Orders of the Fourth District Court of Appealson Fewbruary 2,2015 and February 24,
2015
23
A
24
(Page 1 of . 2)
DOCUMENT SCANNED AS FILED
2014C107644 -D285
Cause NO.2014-CI-07644
§
EDWARD L. BRAVENEC AND 1216 §
WEST AVE., INC. § IN THE DISTRICT COURT
Plaintiff §
§
§
VS. § 285TH JUDICIAL DISTRICT
§
§
ROWLAND MARTIN, JR. §
Defendants § BEXAR COUNTY, TEXAS
TEMPORARY INJUNCTION
On this day came to be heard the Verified Application for Temporary Restraining Order
(the "Application") filed by Edward Bravenec and 1216 West Ave., Inc. Alter hearing the
argument of counsel and having considered the Verified Petition and Application and the
evidence presented, it clearly appears to the Court that Plaintiffs are entitled to a Temporary
Injunction and that the Court is of the opinion that a Temporary Injunction should be issued. This
Court specifically finds that Courts have already determined mat the rightful owner of the
Property is Edward L Bravenec. This Court further finds that in Federal Court Cause No. SA-11-
CI-414 styled Rowland J. Martin, Jr. et al. v. Charles Grehn et al. the Court found that legal and
equitable title to the Property was vested in Edward L Bravenec and further that neither Rowland
J Martin, Jr. nor the company he owned, Morocco Ventures, LLC or any successor in interest
0 there to had any interest, legal or equitable, in the Property described as:
/ "New City Block 8806, Block 50, Lot 1, Except the North
j West 10.01 feet &Lots 2 &3; which property is commonly
/ referred to as 1216 West Ave., San Antonio, Texas" the
2 ("Property")
I
4
w This Court further finds that despite judgments being rendered against Rowland J.
Q Martin, Jr. that he continues to interfere and cloudthe title to the Property or contactpotential
L buyers and title companies to disrupt or disturb any potential sale of the Property by its
rightful owner. Rowland J. Martin, Jr. has a history which is documented in the
J aforementioned federal court case and the subsequent appeal to the Fifth Circuit Court of
g Appeals in which both courts find his filings to be vexatious and frivolous. But for the
7 temporary injunction, it is likely that his conduct is to continue and the damage to the
~ Plaintiffs in this case would be irreparable and could not be compensated by monies.
G '
G
1
3
6 Z90001- frtr9£OIDH0Z
I
(Page 2 of 2)
DOCUMENT SCANNED AS FILED
a
/•
Therefore, it is the ORDER of this court that Rowland J. Martin, any entity at his request
or under his control, his agents, employees and all those acting in concert with him, are hereby
enjoined from filing any document whatsoever with this court, any other court, the Bexar County
Clerk's Deed Records Office that in any way relates to Plaintiffs or the real property described as
New City Block 8806, Block 50, Lot 1, Except the North West 10.01 feet &
Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio, Texas
(the "Property")
It is FURTHER ORDERED that the Bexar County Clerk cancel, expunge, or otherwise
render ineffective any document filed by Rowland J. Martin, Jr., entitled "Notice of Apparent
Liability for Purchase Money Claims" recorded at Book 16601, Page 2158, "Perfected Lis
Pendens" or any like titled document.
It is FURTHER THE ORDER of this court that Rowland J. Martin, Jr., any entity at his
request or under his control, his agents, employees and all those acting in concert with him are
hereby enjoined from contacting any title company, any potential buyer, bank or otherwise
interfering with the potential sale of the Property in any manner whatsoever, "
It is FURTHER ORDERED that Rowland J Martin, Jr. is prohibited from joining any
third parties or additional defendants to this suit without prior approval of this court.
It isFURTHER ORDERED that this matter be set for trial on the merits on the ^_ day
of December, 2014 at 9:00 a.m.
Plaintiffs bond is hereby set at $500.00, cash or surety. The clerk of the court is to issue
a notice to Defendant of this order and hearing and the hearing scheduled for injunction. Notice
7 may be accomplished byfax, personal service, or private process.
/
Witness my hand this /"89y ofJuly, 2014, at m W
}
I ionorable Judge Presiding
1
4
V APPROVED AS TO FORM:
0
L
A
0 Glenn J Deadman Rowland J Martin Jr
1 509 South Main Ave Pro Se
P San Antonio, Texas 78204 951 Lombrano
G 210-472-3900 San Antonio, Texas 78207
q eideadman@aol.com
i
7
B
25
2014CI07644 -P00106
Cause No. 2014-CI-07644
EDWARD L. BRAVENEC AND 1216 IN THE DISTRICT COURT
WEST AVE., INC.
Plaintiff
ROWLAND MARTIN, JR. 285TH JUDICIAL DISTRICT
Defendants
ROWLAND MARTIN, JR. O
Plaintiff CD
vO
EDWARD L. BRAVENEC, AND THE LAW BEXAR COUNTYfTEXAS ^
OFFICE OF MCKNIGHT AND BRAVENEC, CO
m
CO
Defendants
In Re OLGA VASQUEZ-SILVA d/b/a ONE
FOR AUTISM, INC.
Impleaded Third Party JURY TRIAL REQUESTED
DEFENDANT'S UNDISPUTED STATEMENT OF FACTS REGARDING
RECORDED EXCEPTIONS TO CONVEYANCES AND WARRANTIES AFFECTING
THE REAL PROPERTY KNOWN AS 1216 WEST AVE.. SAN ANTONIO, TEXAS
TO THE HONORABLE COURT:
NOW COMES ROWLAND J. MARTIN, JR., Plaintiff in the above entitled and
numbered cause, and files this "Defendant's UndisputedStatementofFacts Regarding
Exceptions To Conveyances And Warranties Affecting The Real PropertyKnown As 1216 West
Ave., San Antonio, Texas, " in support of which the following is shown:
The following statement of facts is submitted in support of Defendant's reliance on the
doctrine of estoppel by deed in the above styled cause for tortuous interference with contractual
relations which Plaintiffs commenced on May 13, 2014.
DOCUMENT SCANNED AS FILED
1. The purchase of the subject property by Moroco Ventures. LLC from Roy
Ramspeck, et al, on October 31, 2003, which is documented in a First Deed of Trust discussed in
paragraph 2 below, was enabled by Defendant's advance of purchase money on the same date.
Specifically, the 1031 Corp., Inc., withdrew a sum in the amount of $135,000 form Plaintiffs
escrow account to execute a payment to the seller's title;company, American Title Company.
The title company issued a receipt of deposit reflecting acceptance of the money for the purchase
of the subject property by the buyer, Moroco Ventures, LLC. See Exhibits A and B.
2. The First Deed of Trust between Moroco Ventures, LLC and seller Roy
Rampseck is recorded at Book 10406, Page 1606. The First Deed of Trust contains a clause
entitled,"Exceptionto Conveyances and Warranty," which expressly reserves"prescriptive
rights, whether oj record or not... and all rights, obligations, and other matters emanating from
and existing byreason of the ... operation of any governmental district, agency or authority."
See Exhibit C (emphasis added). A notice of Appellant's concurrent interest as a third party
purchase money creditor relating back to the purchase on October 31, 2003 is recorded in Bexar
County Deed Records in Book 16601 Page 2158 ("Notice of Apparent Liability For Purchase
Money Claims"). See, Exhibits A and B.
3. The Second Deed of Trust dated May 3, 2005, recorded at Book 11578 Page 940
reflects McKnight and Bravenec's acquisition of security interest attached 1216 West Ave. in
San Antonio, Texas, and was subject to "exceptions to conveyances and warranties" that
Appellees voluntarily accepted as second deed grantees. See, Exhibit D. In particular, the deed
contains the following recital: "Other Exceptions to Conveyance and Warranty: None not of
record." Defendant was a co-party with the debtor, Moroco Ventures, to the exceptions to
conveyances and warranties under the Second Deed Of Trust.
DOCUMENT SCANNED AS FILED
4. The record of the proceeding in In re Estate ofKing, Probate Case No. 2001 -CI-
1263 establishes that McKnight and Bravenec were attorneys of record for the Appellant and the
Estate of King on May 3, 2005. See, Appendix to In re Rowland J. Martin, Case No. 04-13-
00370-CV (Tex. App. - San Antonio, 2014). The instrument of record giving notice of Plaintiffs
rights as a third party in relation to Moroco Ventures, LLC at the time the parties executed the
Second Deed Of Trust was the First Deed of Trust executed on October 31, 2003. Two other
instruments effectuating; exceptions to conveyances and warranties applicable to the Second
Deed Of Trust are recorded in Book 12237,Page 1089, ("Order on Motion For Contempt
Against Law Office of McKnight and Bravenec" Bankruptcy Case 06-50829 dated June 20,
2006), and in Book 124261, Page 2234 ("Condominium Declaration of Moroco Ventures, LLC
Establishing the Deco Village Annex" dated October 2, 2006). See Exhibits E andF.
5. On October 5, 2005, Albert McKnight withdrew as an attorney of record from the
engagement between McKnight and Bravenec and the Estate of King, but not Edward Bravenec
did not seekorder form the ProbateCourt to memorialize his withdrawal. See, Appendix to In re
Rowland J. Martin, Case No. 04-13-00370-CV (Tex. App, - San Antonio, 2014).
6. Oh October 3, 2006, McKnight and Bravenec executed their second foreclosure
under their second deed of trust resulting in the filing ofa Substitute Trustee's Deed under the
supervision of the 57th Judicial District Court. See, Exhibit G. The trustee's deeds state that
"MOROCO VENTURES LLC has defaulted in the payment and performance of obligations to
ALBERT MCKNIGHT and EDWARD BRAVENEC," and that the conveyance was "subject to
any prior liens, obligations for taxes, arid other exceptions to conveyances and warranty in the
Deed Of Trust." As of October 3, 2006, exceptions to conveyances and warranty were reflected
in four instruments of record, including the Second Deed Of Trustdated May3, 2005.
DOCUMENT SCANNED AS FILED
7. On October 31, 2006, the 57th Judicial District Court approved a-settlement in
Case No. 2006-CI-15329 between Plaintiffs McKnight and Bravenec, and Defendants,Reliant
Financial, Inc., et al. The settlement subrogated McKnight and Bravenec to the position of
Reliant Financial, Inc. as the original grantees of the First Deed of Trust. See, Exhibit H. On
November 1, 2006, the 57th Judicial District Court entered an order denying intervention and
injunctive relief which adopted the finding that a foreclosure took place on October 3, 2006 in
accordance with the trustee's deed recital that "MOROCO VENTURES LLC has defaulted in
the payment and performance of obligations to ALBERT MCKNIGHT and EDWARD
BRAVENEC." See, Exhibit I.
8. In 2012, the U.S. Bankruptcy Court entered orders noticing Defendant's claim as
a third party purchase money creditor in Chapter 13 Case 05-80116-LMC, and remanding a
proceeding removed from the 57th Judicial District Court in Adversary Case 11-5141. See,
Exhibits J and K. The U.S. District Court denied Defendants' motion for withdrawal of
references mMartin v. Bexar County, et al, Case No. SA 12-CV-0998 (W.D. Tex. 2012),
through which Defendant sought to consolidate the purchase money claim with the claims in
Case No. SA 11 -CV-0414-HLH.
9. In 2013, the U.S: Court of Appeals affirmed a summary judgment by the U.S.
District Court for the Westeril District Of Texas in Martin v. Grehn, et al, Case No. SA 11 -CV-
0414-HLH, in favor of McKnight and Bravenec. In pertinent part, the U.S. Court ofAppeals
affirmed the validity of the 2006 foreclosure sale as adjudged by the 57th Judicial District Court,
the non-justiciability of Moroco Ventures' right of redemption, and the take nothingjudgment of
the federal district court adjudicating Defendant's rights in his capacity as the successor in
interest to the right of redemption claimed by Moroco Ventures, LLC. See, Rowland J. Martin,
DOCUMENT SCANNED AS FILED
Successor in Interest To Moroco Ventures, LLC v. Charles Grehn, etal, Case No. 13-50070 (5th
Cir., December 4, 2013). The U.S. Court of Appeals declined to review bankruptcy court orders
cited in Case No. SA 12-CV-0998 pursuant to Rule 8002(a) of the Federal Rules of Bankruptcy
Procedure. Id.
10.. Thejudgments of theU.S. District Court and Court of Appeals affirming the 2006
foreclosure sale aresilent with respect to the specific matterof the exceptions to conveyances and
warranties cited in paragraphs 1 - 8. Cf., Anderson v. LawFirm ofShorty, Dooley & Hall, (E.D. La. Feb
17, 2010), affirmed[in 393 Eed.Appx. 214 (5th Cir. Aug. 26, 2010). The settlement of first and second
deed interests by the 57lh Judicial District Court in 2006, which was affirmed by the federal court
judgments in 2013, remains subject to exceptions to conveyances and warranties noted in
paragraphs 1 - 10, including Defendant's "exception clause" privileges, and Plaintiffs'
corresponding "exception clause" obligations in their capacities as former attorneys of the -
Defendant and theEstate of King, second liengrantees, and firstlien subrogees, respectively.
11. In 2013, Plaintiff Bravenec recorded a deed recorded an instrument captioned as a
"Warranty Deed" in Bexar County Deed Records which omits to disclose exceptions to
conveyances and warranties noted in paragraphs 1—8. Bravenec and Yulalee McKnight, acting
through 1216 West Ave, Inc., were the grantors of the warranty deed they conveyed to
Bravenec. Bravenec is charged with notice of exceptions to conveyances and warranties in the
chain of title of the Second Deed of Trust and SubstituteTrustees Deed naming him as grantee.
12. On March 19, 2014) afterBravenec recorded the warranty deed described in
paragraph 11, the Bexar County Probate Court #1 entered an original order to memorialize his
withdrawal as an attorney of record in thatcase onOctober5, 2005. On the same day, the Court
cancelled a lis pendens notice Defendant filed for the proceeding to declare Bravenec's
withdrawal, and made the finding that the Estate of Kinghad no interest in title to the West Ave.
.5: '
5
DOCUMENT SCANNED AS FILED
property. The Court took no action on allegations about legal malpractice and purchase money
issues that were asserted in Defendant's capacity as Administrator for the Estate of King.
13. On May 13, 2014, Bravenec commenced the instant suit against Defendant for
tortuous interference with contractual relations. He alleges that he has executed a contract for
sale pertaining to the subject property at 1216 West Ave., in San Antonio, Texas, and asks the
Court to permanentlyenjoin Defendant'slis pendens activities pertaining to the subject property,
suggesting that the exercise ofprescriptive rights reserved in the First Deed of Trust and
exceptions to conveyances and warranties in the Second Deed of Trust are precluded by the
judgments in Case No. SA 11-CV-0414-HLH and Case No. 13-50070.
14. The statute of limitations for a cause of action to litigate the rescission or breach
ofa warranty of title to real property in the State of Texas is four years. Tex. Civ; Prac. & Rem
Code Section 16.051. The tortuous interference suit was commenced almost four years after the
expiration of the four year period following the entry of the Bankruptcy Court order on June 20,
2014 which constructively evicted McKnight and Bravenec form the subject property in 2006.
15. The counterclaims Defendant asserts against the Bravenec plaintiffs in response to the
tortuousinterference suit were brought withintwo years from the date of the BankruptcyCourt order on
August 10, 2012 noticingDefendant's individual standingto prosecute turnover relief as a third party
purchase money claimant. The counterclaims are based on prescriptive rights recorded in Book
16601 Page 2158in favor ofDefendant.relating back to the purchase transaction in 2003 and others
recorded in Probate Case 2001-PC-1263: As such, the counterclaims are legally and factually distinct
from the separate and collateral Second Deed of Trust transaction in 2005 that recorded Moroco
Ventures' rights of redemption in Book 11578 Page 940, and that later formed the basis of the foreclosure
sale adjudicated in Case No; SA l-CV-0414 and Case No. 13-50070.
DOCUMENT SCANNED AS FILED
16. Defendant filed a notice of appeal on July 8, 2014 and supplemented the notice in
part on July 9, 2014 and July 18, 2014, in accordance with Rule 25.1 of the Texas Rules of
Appellate Procedure: It is alleged that the Plaintiffs failed to sustain their burden of proofin response
to a motion to dismiss thetortuous interference suit, and thatthe 285th Judicial District Court entered a
temporary injunction orderoh Julyl 7, 2014 afteran automatic staytook effect underthe supplemental
notice of appeal filed onJuly 9,2014.
Dated: November 19, 2014. Respectfully Submitted,
lowland J. Ma
951 Lombrano
San Antonio, Tx. 78207
(210)323-3849
DOCUMENT SCANNED AS FILED
CERTIFICATE OF SERVICE
I, Rowland J. Martin, certifythat a copy of this "Defendant's Undisputed Statement of
Facts Regarding Exceptions To Conveyances And Warranties Affecting The Real Property
Known As 1216 West Ave., San Antonio, Texas, " was submitted to the Court's clerk for
electronic service to Attorney Glenn Deadman.
Dated: November 19, 2014
Rowland J. Marti:
VERIFICATION
I, Rowland Martin declare under penalty ofperjury that the statements of fact in the
above "Defendant's Undisputed Statement ofFactsRegarding Exceptions To Conveyances And
Warrarities Affecting The Real PropertyKnown As 1216 West Ave., San Antonio, Texas, "are
true to the best of my knowledge, information and belief.
Dated: November 19, 2014
Rowland J. Marti
DOCUMENT SCANNED AS FILED
EXHIBITS
A. 1031 Corp. Escrow Account Statement
B. Receipt ForDeposit In The Amount of $135,000
G. Deed of Trust dated October 31,2014 (1st)
D. Deed ofTrust dated May 2,2014 (2nd)
E. Order On Motion For Contempt dated June 20, 2006
F. Condorninium Declaration dated October 2,2006
G. Substitute Trustees' Deed dated October 3,2006
H. Amended Agreed Order of Dismissal hi McKnight and Bravenec v. Reliant Financial, et al.,
Case No. 2006-CI-15329, 57th Judicial District Court, dated October 31, 2014
I OrderDenying Restraining OrderAnd Temporary Injunction in McKnight andBravenec v.
Reliant Financial, et al, Case No. 2006-CI-15329, dated November 1,2006.
J. Order of the Hon. LiefM. Clark in Bankruptcy Case No. 05-80116, dated August 10,2012.
K. Order ofthe Hon. LiefM. Clark inAdversary Case No. 11-5141 dated September 24, 2012.
DOCUMENT SCANNED AS FILED
A
10
DOCUMENT SCANNED AS FILED
Rowland Martin Page 1 of2
From: Sue Umstead
To: moroco676
Subject: Rowland.Martin
Date: Thu, May 29, 2014 2:48 pm
Attachments: Statement.doc (108K)
Rowland,
Attached is the Escrow Account Statement we discussed.
I wi|| be in touch with any additional information I can find.
Sue
ORE
SUSAN UMSTEAD, CES®
Senior Vice President | Certified Exchange Specialist®
1031 CORP.
100 Sprihghouse Drive, Suite 203, Collegeville, PA 19426
ToU-Free: 1.800.828.1031 I Office: 610.792.4880 ext. 208
"Rootle: 610.75578520 | Fax: 610.489743^5
Email: suefo), 103lCORP.com | www. 103lCQRP.com
Sign up for our Monthly Newsletter
ADVISORY: 1031 CORP-serves as a Qualified Intermediary and cannot providetax and/or legal advice. Please discussyour particular
situation with your tax and/or legaladvisor.
11
DOCUMENT SCANNED AS FILED
1031 Corp.
Full Service Intermediary
1031 CORP. ESCROW ACCOUNT STATEMENT
Name: Rowland J. Martin, Jr.
Case Number: 7200086872, Commerce Bank
Taxpayer ED #: XXX-XX-XXXX
Date Type of Transaction Amount Balance
6-25-03 Initial Deposit --- $182,238.77 $182,238.77
4-28-03 withdrawal _..... $ 2,000.00 $180,238.77
8-21-03 Withdrawal $ 450.00 $179,788.77
10-30-03 Withdrawal $135,000.00 $ 44,788.77
11-12-03 • Interest $ 1,155.04 $ 45,943.81
11-12-03 Withdrawal $ 45,943.81 $ 0.00
EXPLANATION OF ACCOUNT ACTIVITY
Date Transaction Amount Explanation '
6-25-03 Deposit . $182,238.77 Initial Deposit
7-28-03 Withdrawal $ 2,000.00 Earnest money deposit on 1216
West Ave., San Antonio, TX
8-21-03 Withdrawal $ 450.00 Fee for Home Inspection paid
to Longhorn Home Inspections
12
1200East High Street, Suite 217,Pottstown, Pennsylvania 19464
for inspection of 1216 West
Avenue, San Antonio, TX 78201
10-30-03 Withdrawal $135,000.00 Wire transfer to First
American Title Insurance
Company for acquisition of
1216 West Avenue, San
Antonio, TX
11-12-03 Withdrawal $ 45,943.81 Wire transfer to Rowland
Martin, balance of exchange
funds
13 1200 East High Street, Suite217, Pottstown, Pennsylvania 19464
(610)970-1300 1-800-828-1031 FAX# (610) 970-2258
—-,... . _.... ~. htW^!rT3^NTP'SC!ANNB^:l$^h^aiiffiMcorp.com
B
14
DOCUMENT SCANNED AS FILED
^♦■^L.. *'ci First American Title Company
1846 NLoop 1604 W, Suite 101 San Antonio, TX 78248
PR:SOCENT Ofc: 1830 DATE: 10/30/2003
RECEIPT NO.: 18305465
FILE NO.: TX03246428-SA30
RECEIPT FOR DEPOSIT
FUNDS IN THE AMOUNT OF: S 135,000.00
WERE RECEIVED FROM: 1031 Corp- for buyer-WI
CREDITED TO THE ACCOUNT OF: Other
TYPE OF DEPOSIT: Wire REPRESENTING: Closing Costs-wi
Comments:
Property Location: 1216 West Ave, San Antonio, TX 78213
BY: Gail Harris, 10/30/2003
ESCROW OFFICER: Karin Brown
"The validity of this receipt, for the deposit referenced,
is subject to clearance by the depository financial institution and credit to our account"
Other Copy
15
DOCUMENT SCANNED AS FILED
FW: FileNumber-246428-Address-1216 West Ave (Email Ref-920037075.) Page 2 of 2
To: lanysek, Kristi
Subject: File Number-246428-Address-1216 West Ave (Email Ref=920037075)
File No.: TX03 246428' SA30
Buyer: Moroco Ventures, LLC
Seller: Roy M. Ramspeck
Property Address: 1216 West Ave, San Antonio, TX 78213
You can download Acrobat Reader at http://w^rw.adobe.com/products/acrobat/readstep2.html
Kristi Janysek
Escrow Officer
First American Title Company
Phone: 210-390-3597 Ext.
Fax: 866-739-2652 Ext.
This message contains confidential information intended only for the use ofthe intended recipient(s) and may contain
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http://mail.aol.eom/3 8571 - rJ^fetoT^gtSi" 5/3 l,2m
c
10
17
DOCUMENT SCANNED AS FILED
. 06-50829-rbk Doc#34-1 Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg 6 of 12
M=
Doctt a0030288822
DEED OF TRUST
Date: October 31,2003
Grantor: MOROCO VENTURES, LLC
Grantor's Mailing Address (including county):
Trustee: SID LAWRENCE, IE
Trustee's Mailing Address (including county):
P.O. Box 781166
San Antonio, Bexar County, Texas 78278
Beneficiary: ROY M. RAMSPECK and ANNETTE G. HANSON, husband and wife
Beneficiary'sMailing Address (including county):
A>Pm Av^n'^, -T7C "7fa3<
<7>
Note(s)
Date: October 31,2003
cr»
Amount: One Hundred Forty-Nine Thousand Five Hundred and No/100 Dollars
($149,500.00)
Maker: Moroco Ventures, LLC
Payee: Roy M. Ramspeck and AnnetteG. Hanson, husband and wife
Final Maturity Date: November 1, 2006
Terms ofPayment(optional): As provided in the note.
Property (including any improvements):
Lots 1, 2 and 3, Block 50, New City Block 8806, LOS ANGELES HEIGHTS
DEED OF TRUST
CAM)fllei\CllcnftTnle Compai/PA - lefXXRflroipert Hanson DT.wpd
Psige 1 flf6
18
DOCUMENT SCANNED AS FILED
06-50829-rbk Doc#34-1 Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg7pf12
ADDITION, situated in the City ofSan Antonio, Bexar County, Texas, according to
platthereofrecorded in Volume 150, Pages 284-286, of theDeed andPlatRecords
ofBexar County, Texas, SAVE AND EXCEPT therefrom atract ofland containing
0.00049 ofan acre, being 21.51 square feet, more or less, same being out ofLot I,
said tract conveyed to the City of San Antonio by deed dated October .10, 1991*
recorded in Volume 5180, Page 1873, Real Property Records of Bexar County'
Texas, being more particularly described bymetes and bounds asfollows:
BEGINNING at an iron rod found at the northwest corner ofthe said Lot 1, said
point being the POINT OF BEGINNING ofthe herein described tract;
THENCE S 89* 51'30" E along the south line of West Olmos 10.01 feet to an iron
rod setat the Point of Curvature of a curve having a radius of 10.00 feet, a central
angle of 90' 03' 30", an arc length of 15.72 feet, and whose radius point bears 90"
southerly from said line of West Olmos;
THENCE along the arc of said curve 15.72 feet to aniron rod seton the east lineof
WestAvenue at the Point of Tangency of said curve;
THENCE N 00* 05' 00" E along the east line of West Avenue 10.01 feet to the
POINT OF BEGINNING, containing 0.00049 acres (21.5.1 square feet).
Prior Liens(s) (including recording information): None.
Other Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not; all
presentlyrecorded restrictions, reservations, covenants, conditions, oiland gas leases,
mineral severances, and other instruments, other than liens and conveyances, that
affect theproperty; rights of adjoining owners in any walls and fences situated ona en
common boundary; any discrepancies, conflicts, orshortages inarea orboundary CD
lines; any encroachments oroverlappingofimprovements; all rights, obligations, and
0-feLraattersjimariatingjro
maintenance, and operation ofany governmental district, agency, orauthority.
For value received and to secure payment ofthe note, Grantor conveys the property to
Trustee in trust. Grantor warrants and agrees to defend the title to the property. IfGrantorperforms
all the covenants and pays the note according to its terras, this deed oftrust shall have no rurther
effect; and Beneficiary shallrelease it at Grantofs expense.
DEED0FTRUST
C:\Myfi!«VC|iaift'niIeCempaisy\FA- 1604\Ram«pede Hanson DT.wpd
P»gc2of6
19
DOCUMENT SCANNED AS FILED
06-50829-rbk Doc#34-1, Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg8of12
Grantor's Obligations
Grantor agrees to:
1. keep the property in good repair and condition;
2. pay all taxes and assessments on the property when due;
3. preserve the lien's priority as it is establishedin this deed of trust;
4. maintain, in a form acceptable to Beneficiary, an insurance policy that:
a. covers all improvements for their full insurable value as determined when the
policy is issued and renewed, unless Beneficiary approves a smaller amount in
writing;
b. contains an 80% coinsurance clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary with a standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard area;
and
f. contains such other coverage as Beneficiary may reasonably require;
5. complyat all times with the requirements ofthe 80% coinsurance clause;
6. deliver the insurance policy to Beneficiaryand deliver renewals to Beneficiaryat least
ten days before expiration;
7. keep any buildings occupied as required by the insurance policy;
8. ifthis is not a first lien, pay all prior lien notes that Grantor is personally liable to pay
and abide by all prior lien instruments;
9. furnish to Beneficiary annually, before the taxes become delinquent, evidence that
all taxes on the property have been paid; and
10. furnish to Beneficiary annually evidence of paid-up casualty insurance naming XT
Beneficiary as an additional loss payee.
CTV
Beneficiary's Rights
cr>
1. Beneficiary may appoint in writing a substitute or successor trustee, succeedingto all O
rights and responsibilities of Trustee. co
-2: —If-the proceeds ofthe note are-used-to payanydebt-secured-by-prior4iensrBeneficiary-—
lis subrogated to all ofthe rights and liens ofthe holdersofany debt SO paid.
3. Beneficiary may apply any proceeds received under the insurance policy either to
reduce the note or to repair or replace damaged or destroyed improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the note is payable
foranysumsso paid,including attorney'sfees,plus interest on those sums from thedatesofpayment
at the rate stated in the note for matured, unpaid amounts. The sum to be reimbursed shall be
secured by this deed of trust.
5. If Grantor defaults on the note or fails to perform any of Grantor's obligationsor if
default occurs on a prior lien note or other instrument, and thedefault continues after Beneficiary
gives Grantor notice of thedefault and thetime within which it must becured, asmay berequired
DEEOOFTRUST
GSMyFiluCliouVriUe Compjn)\FA • 16M\R»msjxxk Hanson DT.wpd
Pige J of 6
20
DOCUMENT SCANNED AS FILED
06-50829-rbk Doc#34-1 Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg9of12
by law orbywritten agreement, then Beneficiary may:
a. declare the unpaid principal balance and earned interest on the note
immediately due;
b. request Trustee to foreclose this lien, in which case Beneficiary or
Beneficiary's agent shall give notice ofthe foreclosure sale as provided bythe Texas
Property Code as then amended; and
c. purchase the property atany foreclosure sale by offering the highest bid and
then have the bid credited on the note.
Trustee's Duties
Ifrequested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice ofthe foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all orpart ofthe property to the highest bidder for cash with ageneral
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance and warranty;
and
3. from the proceeds of the sale,pay, in this order:
a. expenses offoreclosure, including acommission toTrustee of5% ofthe bid;
b. toBeneficiary, the full amount ofprincipal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts required by law to be paidbefore payment to Grantor; and
d. to Grantor, any balance.
General Provisions
1. If any of the property is sold under this deed oftrust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails todo so, Grantor shall become a tenant at CD
sufferance ofthe purchaser, subject to an action for forcible detainer.
2. Recitals inany Trustee's deed conveying the property will be presumed tobe true.
3. Proceeding under this deed oftrust, filing suit for foreclosure, or pursuing any other
.remedy_wilLnot.constitute-anelection-otremediesr
4. This lien shall remain superior to liens later created even ifthe time ofpayment of so
all orpartofthe note is extended or part ofthe property is released.
5. Ifany portion ofthe note cannot be lawfully secured by this deed oftrust, payments
shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation ofall or part ofthe property, from private sale in lieu ofcondemnation, and from
damages caused by public works or construction on or near the property. After deducting any
expenses incurred, including attorney's fees, Beneficiarymay release anyremaining sums to Grantor
orapply such sums to reduce the note. Beneficiary shall not be liable for failure to collect orto
exercise diligence in collecting anysuch sums.
7. Grantor assigns to Beneficiaryabsolutely, not onlyas collateral, all present and future
DEED OF TRUST
CAMyTilcsVaienATiUe Compin^A • 1604\Rimspeck Hamot DT.i«pd
Pige 4 of$
21
DOCUMENT SCANNED AS FILED
06-50829-rbk Doc#34-1.. Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg 10 of 12
rent and other income and receipts from the property. Leases are not assigned. Grantor warrants.the
validity and enforceability ofthe assignment. Grantor may as Beneficiary's licensee collect rent and
other income and receipts as long as Grantor is not in default under the note or this deed of trust.
Grantor will apply allrentand other income and receipts to payment of thenote and performance
ofthis deed of trust, but if the rent and other income and receipts exceed the amount due under the
note and deed oftrust, Grantor may retain the excess. If Grantor defaults in payment ofthe note or
performance ofthis deed oftrust, Beneficiary may terminateGrantor's license to• collect and then as
Grantor's agent may rent the property ifit is vacant and collect all rent and other income and receipts.
Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any
occupant of the property. Beneficiary may exercise Beneficiary's rights and remedies under this
paragraph without taking possession of the property. Beneficiary shall apply all rent and other
income and receipts collected under this paragraph first to expenses incurred in exercising
Beneficiary's rights and remedies and then to Grantor's obligations under the note and this deed of
trust in the order determined by Beneficiary. Beneficiary is not required to act under this paragraph,
and acting under this paragraph does not waive any of Beneficiary's other rights or remedies. If
Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in
bankruptcy will be tantamount to the appointment ofa receiver under Texas law.
8. Interest on the debt secured by this deed of trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received
under law; any interest in excess of that maximum amount shall be credited on the principal ofthe
debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment,
any such excess shall be canceled automatically as ofthe acceleration or prepayment or, ifalready
paid, credited on the principal of the debt or, if the principal ofthe debt has been paid, refunded.
This provision overrides other provisions in this and all other instruments concerning the debt.
9. When the context requires, singular nouns and pronouns include the plural.
10. The term "note" includes all sums secured by this deed of trust.
11. This deed oftrust shall bind, inure to the benefit of, and be exercised by successors
CD
in interest of all parties.
12. If Grantor and Maker are not the same person, the term "Grantor" shall include
Maker. ^
13. Grantor represents that this deed of trust and the note are given for the following cr»
purposes: ~"
The debt evidenced by the note is in part payment ofthe purchase price ofthe
property; the debt is secured both by this deed of trust and by a vendor's lien on the
property, which is expressly retained in a deed to Grantor of even date. This deed of
trust does not waive the vendor's lien, and the two liens and the rights created by this
instrument shall be cumulative. Beneficiary may elect to foreclose under either of
the liens without waiving the other or may foreclose under both. The deed is
incorporated into this deed of trust.
14. If all or any part of the property is sold, conveyed, leased for a period longer than
three (3) years, leased with an option to purchase, or otherwise sold (including any contract for
deed), withoutthe prior written consentof Beneficiary, Beneficiary may declare the balance of the
DEEDOFTRUST
CAMyRleiVDitnftTitlc CompanyNFA- 1604\Ramspeclt Hanson DT.wpd.
Pige5 oft
22
DOCUMENT SCANNED AS FILED
06-50829-rbk Doc#34-1 Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg 11 of 12
noteto be immediately due and payable. The creationof a subordinate lien, any conveyanceunder
threator order ofcondemnation, any deed solely between Grantor, the passage of title by reason of
the death of a Grantor or by operation of law will not entitle Beneficiary to exercise the remedies
provided in this paragraph.
,•>..-.-Sft y-.'-' •-.•?' MOROCO VENTURES, LLC
•':%'•' .-f.
f..flfo$*4f:-
By:.
Rowland J- M^rjftn, Jr.
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on the r dayof "f^rtJU^~r2003.
by Rowland J- Martin, Jr of MOROCO VENTURES, LLC, a vjlli^t^
limited liability company, on behalf of said limited liability company.
«.T>
KARIN BROWN Notary Public, State of Texas
Notary Public
STATE OFTEXAS
My Comm. Exp. 11-17-2009
CD
CI
a*
AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF:
Sid Lawrence, TH
512 Heimer Road
San Antonio, Texas 78232
(210)495-5560
Sun pK\to\U~r)c ir£3i
DEEDOFTRUST
CVMyTiteJVCHeaftTiilc CompuiyiM • l604\R»huped( Hinjon DT.wpd
P»gc6or6
23
DOCUMENT SCANNED AS FILED
.06-50829-rbk Doc#34-1 .Filed 06/21/06 Entered 06/21/06 13:35:02 Exhibit Pg 12 of 12
EXHIBIT "A"
Lots 1, 2 and 3, Block SO, New City Block 8806, I«09 ANGELES HEIGHTS ADDITION,
Bituated in the City of San Antonio, Bexar County, Texas, according to plat therec
recorded in Volume 150, Page(s) 2B4-2B6, &1 the Deed and Plat Records of Bexar
County, Texas, Save and except therefrom a tract of land containing 0.00049 of an
acre, being 21.51 square feet, more or less, same being out of Lot 1, said tract
conveyed to the City of San Antonio by deed dated October 10, 1991 recorded in
Volume 5180, page 1873, Heal Property Records of Bexar County, Texas, and being mo.
particularly described by metes and bounds as follows: • -
BEGINNING at an iron rod found at the northwest corner of the said Lot 1, said poi>
being the POINT OF BEGINNING of the herein described tract;
THENCE S 89° 51' 30° E. along the south line of West Olmos 10.01 f^et to an iron re
set at the Point of Curvature of a curve having a radius of 10.00 feet, a central
angle of 90° 03' 30", an arc length of 15.72 feet, and whose radius point bears 90'
southerly from said 9outh line of West Olmos;
THENCE along the arc of said curve 15.72 feet to an iron rod set on the east line o
West Avenue at the Point of Tangency of Bald curve;
THENCE N. 00° OS1 00" E. along the east line of West Avenue 10.01 feet to the.POINI
BEGINNING, containing 0.00049 acre (21.51 square feet).
24
DOCUMENT SCANNED AS FILED
D
11
25
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-0> )4-HLH Document 122-4 Filed OL )lZ Page 2of 7
DEEDOFTRUST
Date: May 3, 2005 .
Grantor: Rowland Martin and Moroco Ventures, LLC
Grantor's Mailing Address (including county): 1216 WestAvenue, San Antonio,
• Bexar County,Texas 78.201
Trustee: Louis Martinez
Trustee's Mailing Address (including county): 1727 W. Hildebrand, San Antonio,
Bexar.County, Texas 78201
Beneficiary: Albert W. McKnight &Edward L. Bravenec".
Beneficiary's Mailing Address (including county): 721 S. Presa, San Antonio, Bexar
• ' County, Texas 78210
Note(s) •
Date: May 3, 2005
• Amount: $20,000.00
Maker: Rowland Martin
Payee: Albert W. McKnight & Edward L. Bravenec
•Final Maturity Date: When paid in full
Terms ofPayment (optional): Principal and interest shall be due and payablein
monthly installments of$500.00 dollars. Beginning on the 1st day ofAugust 2005
for one year. After one ye:ar $1,000.00 per month until paid in full. Debtor will
provide proof of paym.eriLon-the 1*TieiU>toe^o4ater-than-^
beginning on the 5th day ofJuly, 2005. If debtor misses a payment on his first
Lien Note then debtor is in default and Trustees are allowed to foreclose Deed of
Trust.. • ' .
Property (including any improvements): • *
Lots 1, 2 and 3, Block 50, New City Block 8806, LOS ANGELES
HEIGHTS ADDITION, situated in the City of San Antonio, Bexar
County, Texas, according to plat thereof recorded in Volume 150, Pages
284-286, ofthe Deed and Plat Records of Bexar County, Texas, SAVE
AND EXCEPT therefrom a tract of land containing 0.00049 of. an acre,
OSCA5 2276
26
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-0v /4-HLH Document 122.-4'" Filed OL. A3 Page 3 of 7
being 21.51 square feet, more' or less, same being out'of Lot 1, said tract
conveyed to the City of San Antonio by deed dated October 10, 1991,
recorded in Volume 5180, Page' 1873, Real Property Records of Bexar
County, Texas, being more particularly described by metes and bounds as
follows: •
BEGINNING at an iron rod found at.the northwest corner of the said. Lot
1, said point being the POINT OF BEGINNB^G of the herein described
tract;
THENCE 89*5i'30" E along the south line of West Olmos; 10-01 feet to an.
iron rod set at the Point of Curvature of a curve having a radius of 10.00'
feet, a central angle of 90" 03! 30", an arc length of 15.72 feet, and whose
radius point bears 90" southerly from said line of West Olmos;
THENCE along the arc of said curve 15.72 feet to an iron rod set on tha
east line of WestAvenue at the Point of Tangencyof said curve;
THENCE N 00" 05' 00" E along the east line of West Avenue" 10.01 feet to:
the POINT OF BEGINNING, containing 0.00049 acres (21.51 square
feet). • •
Prior Lien(s) including recording information: First Lien Note to RoyM. Ramspeck and
Annette G. Hanson dated 31st day of October, 2003 in the original principal amount of
$149,500:
Other Exceptions to Conveyance and Warranty: None not of Record
For value received and' to secure payment of the note, Grantor conveys the
property to.Trustee in trust. Grantor warrants and agrees to defend the title to the
property. If Grantor performs all the covenants 'and pays the note according to its terms;
HrHsJdeed~of"trusrshalhhave^o-f"
expense.-
Grantor's Obligations.
Grantor agrees to: '
1. keep the property in good repair and condition;
2. ' pay all taxes and assessments on the property when due;
3. preservethe lien's priority as it is established in this deed of trust;
4. maintain, in a form acceptable to Beneficiary, an insurance policy that:
USGA52177
27
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-0v. /4-HLH Document 122-4 Filed 01/. )l3 Page 4 of 7
a. covers all improvements for their full- insurable value as determined
when the policy is issued and renewed, unless Beneficiary -approves a
smaller amount in writing;
b. contains an 80% coinsuranGe clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary witha standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard
area; and
f. contains such other coverage as Beneficiary may reasonable require;
5. comply at all times with the requirements of the 80% coinsurance clause;
6. deliver the insurance policy to Beneficiary and deliver renewals to
Beneficiary at least ten days before expiration; •
7. keep any buildings occupied as required by the insurance pohcy; arid
8. if this is not a first lien, pay all prior lien notes that Grantor is personally
liable to pay and abide by all prior lien instruments.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee,
succeeding to all rights and responsibilities of Trustee.
.2. If the proceeds of the note are usedto pay any debt secured by prior liens,
Beneficiary is subrogated to all ofthe rights andliens ofthe holders of any debt so paid,
3. Beneficiary may'apply any proceeds received under me insurance policy
either to reduce the note or to repair or replace damaged or destroyed improvements
covered by the policy.
• 4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may
perform those obligations and be reimbursed by Grantor on demand at the place where
thenote is payable for any sums so paid, including attorney's fees,: plus interest on those
sums from the dates, of payment at the rate stated, in the note for matured, unpaid,
amounts. The sum to be reimbursed shall be secured by this deed of trust.
~ 5: If"Grantor defaults on the note or fails to perform any of^GrffitoW"
obligations or if default occurs on' a prior lien note or other mstrurhent, arid the, default
continues after Beneficiary gives Grantor notice of the default and the time within which
it iriust be cured, as may be required by law or by written agreement, then Beneficiary
may:
a. declare the unpaid principal balance arid' earned interest on the note
immediately due;
b. request Trustee to. foreclose this lien, in which case Beneficiary or
Beneficiary's agent shall give notice ofthe foreclosure sale as provided by the
Texas Property Code as then amended; and
USGA5227.H
28
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-0>. \-HLH Document 122-4 Filed 01/ )l3 Page 5 of 7
c. purchase the property at any foreclosure sale by offering the highest bid and
then have the bid credited on the note.
Trustee's Duties
If requested by Beneficiary to foreclose this fieri, Trustee shall:
!. either .personally or by agent give notice of the foreclosure sale as required by-
the Texas Property.Code as then amended;
2. sell and convey all or part of the property to the highest bidder for cash with a
general warranty binding Grantor, subject to prior liens and: to other exceptions to
conveyance and warranty; and
3.,from the proceeds of the sale.payj in this order:
a. expenses of foreclosure, including a.commission to Trustee of 5% of
• the.bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees,
and other charges due and unpaid;
c. any amounts required byJaw-to bepaid before payment to Grantor; and •
d. to Grantor, any balance.
General Provisions
1. . If •any of the property is sold under this deed of trust, Grantor shall
immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor
shall become a tenant at sufferance of the purchaser, subject to an action for forcible
detainer.
2. Recitals.in any Trustee's deed conveying the property -will be presumed to be
true.
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of
payme'nref^ior'pattT^lre'W —~
5. If any portion of the note cannot be lawfully secured by this deed of trust,
payments shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payableto of received by Grantor from
condemnation.of all or part of the property, from private sale in lieu of condemnation,
-and from damages caused by public works or construction on or near the property. After
deducting any expenises incurred, including attorney's fees, Beneficiary may release any
remaining sums to Grantor or apply such sumsto reduce the note. Beneficiary shall not
be liable for failure to collect or to exercisediligencein collecting any.such sums.
• . / • ••
USCA5227!>
29
DOCUMENT SCANNED AS FILED
' Case 5:ll-cy-0. /4-HLH Document 122-4 Filed 01/ A3 Page 6 of 7
7. Grantor assigns to beneficiary absolutely, not only as collateral, all present and
future rent and other income and receipts from the property. Leases are not assigned.
Grantor warrants the validity and enforceability of the assignment. Grantor may as
Beneficiary's licensee collect rent and other income and receipts as long as Grantor is not.
in default under the note or this deed of trust. Grantor will apply all. rent and other
income and receipts to payment of the riote andperformance of this deed of trust; but if
the rent and other income and receipts exceed the amount due under the note and deed of
trust, Grantor may retain the excess, If Grantor defaults in payment ofthe note or
performance of this deed of trust, Beneficiary may terminate Grantor's license to collect,
and then as Grantor's agent may rent the property if it is vacant and collect all rent and
other income and receipts. Beneficiary neither has norassumes any obligations as lessor
or landlord with respect to any occupant of the property. Beneficiary may exercise.
Beneficiary's rights and remedies under this paragraph without "takingpossession ofthe
property-. Beneficiary shall apply all rent and other income :and receipts collected under
this paragraph.first to expenses.incurred in exercising Beneficiary's-rights and. remedies
and then to Grantor's obligations under, the note and this deed of trust in, the order
determined by Beneficiary. Beneficiary isnot required to act under this a paragraph, and
acting under this paragraph does not waive any ofBeneficiary's other rights or remedies.
If Grantor, becomes a voluntary or involuntary bankrupt; Beneficiary's filing a proofof
claim in bankruptcy will be tantamount to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this deed of trust shall not exceed me maximum;
amount of nonusurious interest that may be contracted for, taken, reserved, charged, or
received under law; any interest•'•in excess of that maximum amount shall be credited on •
the principal of the debt or, if that has been paid, refunded. On any acceleration or
required or permitted prepayment, any such excess shall be canceled automatically as of
theacceleration or prepayment or, if already paid, credited on the principal of the debt or,,
if the principal of the debt has been paid, refunded. This provision overrides other
provisions in this and all other instruments concerning the debt.
9. When the contextrequires, singular nouns'arid pronouns
include the plural.
10. The tenri note includes all sums secured by this deed of trust. .
11. This deed of trust shall bind, inure to the benefit of, and be exercised.by
successors in interest of all parties.
12. If Grantor and Maker are not the same person the term Grantor shall include
Maker.
IJSCAS 2280
30
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-0i Vhlh Document 122-4 Filed 01/. i3 Page 7-6f 7
13. Grantor specifically states that the property subject to this deed of trust
is not his homestead. /^?>7
ROWLAND MARTIN ROWLAND MARTIN
Individually President, Moroco Ventures^ LLC
(Acknowledgement)
STATE OF TEXAS '
COUNTY OF BEXAR
This instrument was acknowledged before me on the *%?&. day of pk&*s\
2005 by Rowland Martin individually and Moroco Ventures, LLC by its President
Rowlarid Martin. "•
ROWLAND MARTIN tOWLAND MARTIN
Individually President, Moroco Ventures, LLC
1 run arm*
uAn+JJste—
Notary Public in and for
State of Texas
My Commission Expires: &`` Zl-ZOQ^
AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF
McKnight & Bravenec
721 S. Presa
San Antonio, Texas 78210
(210) 223--4080
USCA5 228I
31
DOCUMENT SCANNED AS FILED
E
12
32-
DOCUMENT SCANNED AS FILED
< •'<•> \>
The relief described hereinbelow is SO ORDERED.
Signed June 20, 2006.
Ronald B. King 0
United States Bankruptcy Judge
United States Bankruptcy Court
Western District of Texas
San Antonio Division
IN RE:
Case No. 06-50829 RBK
MOROCO VENTURES, LLC,
Chapter 11
DEBTOR
ORDER ON MOTION FOR CONTEMPT
AGAINST LAW OFFICE OF McKNIGHT & BRAVENEC,
albert w. Mcknight, and edward l. bravenec
AND RESPONSE TO DEBTOR'S MOTION FOR CONTEMPT
AND MOTION FOR CONTEMPT AGAINST ROWLAND MARTIN
AND MOROCO VENTURES LLC
On June 19, 2006 the Motion for Contempt Against Law Office of McKnight &
Bravenec, Albert W. McKnight, and Edward L. Bravenec, and the Response to Debtor's Motion
for Contempt and Motion for Contempt Against Rowland Martin and Moroco Ventures LLC,
came on for consideration by the Court. After hearing the evidence, and the arguments of
counsel, the Court makes the following orders. It is
ORDERED, that the Motion for Contempt Against Law Office of McKnight & Bravenec.
Albert W. McKnight. and Edward L. Bravenec is denied without prejudice; and it is <$£&•&*$&?&
FURTHER ORDERED, that the Motion for Contempt Against Rowla'nd"r^panal'^
Moroco Ventures LLC is denied without prejudice; and it is .,,,r
m
/N%
'<>:'.-/
,mmil>W$ll-T«aq-2 X
1LT2-12237
V(S»*>
DOCUMENT SCANNED AS FILED
FURTHER ORDERED, that the Substitute Trustee's Deed dated May 2, 2006 from
Louis D. Martinez to Albert W. McKnight and Edward L. Bravenec is VOID and the property
title to the following described real property is in the name of Moroco Ventures LLC:
Lots 1, 2, and 3, Block 50, New City Block 8806, LOS ANGELES HEIGHTS
ADDITION, situated in the City of San Antonio, Bexar County, Texas,
according to plat thereof recorded in Volume 150, Pages 284 - 286 of the Deed
and Plat Records of Bexar County, Texas, SAVE AND EXCEPT therefrom a
tract of land containing 0.00049 of an acre being 21.51 square feet, more or less,
same being out of Lot 1, said tract conveyed to the City of San Antonio by deed
dated October 10, 1991, recorded in Volume 5180, Page 1873, Real Property
Records of Bexar County, Texas.
an
Submitted by:
John M Tutt
10010 San Pedro, Suite 660
San Antonio, TX 78216-3804
(210)366-9676
(210) 366-0412 fax
mmftpQuixnct.nel
Anifpro*j*». hsreJi.wiii* reiKcts S»Kb, o,- m « g» dams** ma
IhBHibjr csrffy (ha 1Mb htfcumem was FILED hfito Nw*m Smsm. ,*.
JUL 0 7 2006
COUNTY CLERK BEXAR COUKTY, TEXAS
D««"2«B6Bi59613 Fees': $28.08
.^ftr/MM 12:«Pn « Pages 2
Filed & Recorded in «» v"1"
Record* of BEX«COUMTY
GERRY RICKHOFF COUNTY CLERK
t;)(l»»
JV
DOCUMENT SCANNED AS FILED
WE&rf mSZ
.* • -\* '••' ':.:' ' '.-' • .-; :' • dQ*fc. OMVVi •- " •' „•
•=•!?
*• cave 4 exi erf vo l,5>i*c/ to. i&-!->,
•v.i Ni>l/=:T4:?/fe,.ucK mo. _5i£_ NC.a. ££.&& AoD.r.OM or suaoiviswNt^A^guj^ tLtJGlits.ACQmcti
5Ur^-._._,br^ ...^ voLumE J£5__. PACE2.6_i-_2A^. octc, a»o ™«coiw"or
i»i.rcKi«cc NAM£_-.wM_eiT£._Q4.jtjA.y_soM srRt£1 A^oRcssJBZw-^v"^xjS^ric • £).:_.;. ;_;..t Sr;rE"o7"i^ ' o"
rvv piref amencam tn'Le-
««» »• -SuHBVlttta Of Ihi iwonjin kout Oia-Jl|X I* IWtwlMlWimPhWiHirtw hqwo"
••Mtari rtftttoi MwrtlwM kjrMMtf mb«*RECOSED
b •»CAN«•» »«»* <*"M *»*«¥ tf.tew Carty:T« AO 20/X
GERRY RICKHOFF
COUNTY CLERK
BEXAR COtrffTY. TEXAS
-/?
'^y/^V
ANY-PRO^ISION HEREIN WHICH RESTRICTS THE SALE, RENTAL, OR USE OF THE
DESCRIBED REAL PROPERTY BECAUSE OF RACE. COLOR, RELIGION. SEX.
HANDICAP. FAMILIAL STATUS OR NATIONAL ORIGIN IS INVALID AND
UNENFORCEABLE UNDER FEDERAL LAW.
41
DOCUMENT SCANNED AS FILED
G
14
42
DOCUMENT SCANNED AS FILED
I, Case 5:ll-ev-00414-HLH Document 16-2 Filed 02/09/11 Page 5 of 18
Pate: October 3,2006
Da*(=3fcfay20QS
Grantor; Moxoco Venlnrcs LLC
ReconfangmfcBnaton: Vol 11578, Page 940mBerarQMnry
Property:
Note
**"*« October3,2006
Priaeipelaiwafc 20LO0Q.00
Borrower: Monaco Ventures LLC
aofctot Albert W. Mrf&ugbl and Ettrorf L. Bmv«« .
i): 2 May 2006
TineefSale: 230PM
B«^AlIxrtV.McIM8te^Edw^LRn^ __
Boyer** MefiaKAdtdren:
Sau Antama, IX 7S2I0
effete S49£M40
43
DOCUMENT-SCANNED ~AS FILED"
Case 5:ll-cv-00414-HLH Document 16-2 Filed 02/09/11 Page 6 of 18
"W*V were seat,posted, and fifcd^pnwTrnsteeinWperacBal^orbvafiBntasv^nr*"* T*. ,_
tieDeed ofTrust Suhstinrte Tiwtee sold the Ptroertv toBnws- ^T"S^.^,?^Property Code and
12; 15 o'clock Pit nTOOT™1^ot!^b^*tteT^
have andto hold it in RnvM-»ui !»»-_> __r~»™* "*= "sws ana •w%uivUdnces theretoraany way belonging,to
heir,, soccerand esagc"~"""Vmt"B""'
I^Tj^TO THBPMPERTYOi^
"ASEX^a^Y""^!"
THE MAXIMUM EX3EKTPEsSSSl4WTM"S"ESSLYAGREES-^AT. TO
K-ar••. .....Z— .__
OFANYiaNr>(piuL"
^IMPRC>VTZM"MraSNG"
^ VALTJE.CONI>mOHMEM" (D
a^ROVEMlOfrSTHEREON^
MATERIAL rj^RP^LXTO^n" °*
QUAUIY.iHATBOFREPAriioi"
NOT, DOES NOT ANDWriiNOTMAKB AW"^n""""^AmORBAr
TO COMPLIANCE Wm ANY ENVnUOT"^Sr^3*'5 ORWARRANT^ WIT* REGARD "
KttES.REGOIATTONS, O^HSSR"^Sm"SP^<*LAND"SeS^
PERTAINING TO THE USE, H^S"^f"X^GSmvOTJ^riEDTOrHOSE
HAZARDOUS WASTE, HAZARdSSSS^S^1™0' ^P^NO ORDTSPOSINQ OPANY
DEED. GRANTEEACCEPTS TBEPKDJERtV-A^f--mSS^F SHALL S^VTVE DELIVERY OF TBE
WARRAlmES,E^rHEREW"^JXnAiSv"RE1^,• ANOWith AIX FAULTS. WTTHNO
™^CnON.GRANT£l£"
g^AlMERSH^NOTD"
LOUIS.*, MARJINEZ; Sobstitute Trustee tnxierthe Deed ofW
1727 W. HQdetnnd Ave
SanAntonio, TX 78201
(210)222-8785
44
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-00414-HLH Document 16-2 Filed 02/09/11 Page 7 of 18
<*Q»*°ber3»20()a>au<»DcA^
C""Te^c^taeWlS^
AeForedosnieetletonetwWdderatftemV " MAEJUiEZ, Sofettnte Hastes,
powerofsafe granted by*deed oftmtf ml«*-*""^rporaaitftot',ft
"WbrqsagedFwper^i"
tin^iheSdatitoteTT."
"£*^f^5*«*e^fc^
tttsafeto MaofifyfliMBBofvBaL
votane
LLC
«W*wwithanaBpwwao,,,a^Md"gJ"^BDWARDLBRAVENBcr
Lotsl,2,wl3»
45
DOCUMENT SCANNED AS FILED
Case 5:ll-cv-00414-HLH Document 16-2 Filed 02/09/11 Page 8 of 18
»*S^1!!!p%i"
aafarthedeed rt^m******^??^™^1- a8AVEKBC.tto«aeBarba«1&ilt_
•**?
7. Arc)hw) '.'•
0CTr»2flQ6
KIMIUMWW«imi.MJB>l
46
DOCUMENT"SCANNED AS FILED
» Case 5:ll-cv-00414-HLH Document 16-2 Filed 02/09/11 Page 9 of 18
STATE OF TEXAS
§
COUNTY OF BEXAR i
§
this
LOUTS MAR3TNBZ. SrfartBto testee? ,2006; by
AFTER RECORDINQ RBTURHTtfc
ALBERTW. MCKNIGHT
EDWARD L. BRAVENEC
72iaPresa
SanAntocao. TX 78210
47
DOCUMENT SCANNED AS FILED
H
15
48
DOCUMENT SCANNED AS FILED
Casgafe4(5rMQa6994I^efcliliJ}Heri5deamihlBll-fri T»S©liW0VO/n»/'F€agBa1dfio3a8f 35
Cause No. 2006-CM 5329
ALBERT MCKNIGHT § IN THE DISTRICT COURT
AND § BEXAR COUNTY
EDWARD BRAVENEC §
§
VS §
§
RELIANT FINANCIAL INC. §
AND § 57r" JUDICIAL DISTRICT
CAROLYN A.TAYLOR §
HUGHES, WAITERS §
& ASKANASE §
AMENDED
AGREED ORDER OF DISMISSAL
In return for the receipt of a payoff amount of S172.163.42 on October 13, 2006,
Reliant Financial, Inc.agrees to a release of lien pursuant to the Deed of Trust securing the
note on 1216 West Avenue, San Antonio, Texas to Albert W. McKnight and Edward L.
Bravenec. \
The Court, after examining the pleadings and the proposed agreement, finds that
this settlement is fair and equitable to each side. Therefore, the above agreement is
approved, and the above-styled cause is hereby dismissed. Each side to bear their own
costs.
it is so ORDERED.
Signed this. 2Z. day of October, 2006.
"PRESTDING-jpDGE-^reH 0>-.-<3jai> W.eL
n ^
u QJ^mP\-
Wi.
lomintqlic IVM. Varner '~r\bk>NGl'lT
TBAS 00791182 TBA8/
Hughes, Watters & Askanase, L.L.P.
Three Allen Center
333 Clay, 29"' Floor Edward Bravenec
Houston, TX 77002 TBA ft
(713)759-0818 721 S. Prcsa
San Antonio, Texas 78210
(210)223-4080
14-50093.71
DOCUMENT SCANNED AS FILED
I
16
50
DOCUMENT SCANNED AS FILED
Casgate40ScMQ^894BeaiIuMerD)deam*itei}-ei T»Sffll$W0W/IBl/-R&gea^erj1l8f 35
CAUSE NO. 2006-CM5329
ROWLAND MARTIN D/B/A IN THE DISTRICT COURT
DECO VILLAGE ANNEX
BEXAR COUNTY
VS
a l b e r t Mcknight
AND
EDWARD BRAVENEC, ET AL
AND
CAROLYN TAYLOR AND OTHER
SUBSTITUTE TRUSTEES OF AEGIS
MORTGAGE COMPANY
tTH
IN RE MOROCO VENTURES, LLC 57'" JUDICIAL DISTRICT
ORDER DENYING RESTRAINING ORDER AND
TEMPORARY INJUNCTION
On the 30,h day ofOctober came on to be heard the Motion ofRoland Martin and
Moroco Venturesfor Temporary Restraining Order restraining Albert McKnight and
Edward Bravenec from taking possession ofthe property known as 1216 West Avenue in
the City of San Antonio, Texas.
Movant alleged that there were no irregularities in the foreclosure and purchase of
said properly. The court finds that the foreclosure took place on the 3rd of October 2003.
The court, after hearingthe argument of council and Roland Martin representing
himselfand Moroco Ventures, denies both Movants' right to intervene and finds that the
o
foreclosure having taken place onthe 3'd day ofOctober, 2006 is valid.
T
Signed this 1 day ofNovember, 2006.
v
©
L.
John D. Gab
S» Judge Presid
'r
-11
11
•A\-
51 14-50093.72
DOCUMENT SCANNED AS FILED
J
18
52
DOCUMENT SCANNED AS FILED
The clerk shall file this order In the main bankruptcy case as well as
In this adversary proceeding.
SO ORDERED.
SIGNED this 10th day of August, 2012.
LEIF M. CLARK
BANKRUPTCY JUDGE
BV THE U.S. BANKRUPTCY COURT
FORTHE UNITED STATESDISTRICT COURT
FOR THE WESTERN DISTRICT OFTEXAS
SAN ANTONIO DIVISION
Rowland J. Martin ) Adversary Case 11-05141-LMC
Plaintiff
)
)
v.
)
)
Edward Bravenec )
Defendant
)
)
la Re ROWLANDJ. MARTIN,JR, ) Case No. 05-80116-LMC
DEBTOR
)
AMENDED ORDER REOPENING BANKBirPTCY CASK NO, 05-80116-1 Mf:
The Court, having considered "Debtor's Motion For ReliefFrom The Bankruptcy Court's
Order OfJuly 28, 2011 And To Compel Turnover OfAssets," finds that the post-petition foreclosure
ofinvolving the property at 1216 West Ave., in San Antonio, Texas, an asset ofthe Chapter 11 estate
in Bankruptcy Case 06-50829 on October 3,2006, is subject to this Court's in custodio legis authority
53
028573 72705028601011
DOCUMENT SCANNED AS FILED
under Bustamonte v. Cueva, 2004,371 R3d 232, rehearing denied U.S. App. LEXIS 11719 (5th Cir.
Tex, June 14,2004) cited in Ashley Place. Inc. v. Nichnknn imi U.S. Dist. LEXIS 24801 (W.D.
Tex. 2007) (Civil Action No. SA-06-CV-999-XR), and that me Debtor has demonstrated standing as a
purchase money creditor offormer Debtor in Possession Moroco Ventures, LLC. Therefore, the Court
finds that the Debtor'smotion for further proceeding in me above Adverse
should be GRANTED in part, and designated for hearing in part, pursuant to Bankruptcy Code
Sections 105,362, and 542. IT ISTHEREFORE,
ORDERED, "Debtor'sMotion For ReliefFrom The Bankruptcy Court's Order OfJuly 28,
201J And To Compel Turnover OfAssets" is hereby granted in part to authorize nuncpro tunc relief
from the Courfs Order ofJuly 28,2011 in Bankruptcy Case No. 05-80116-LMC. and
IT IS FURTHER ORDERED, that the Debtor is authorized'to prosecute turnover relief in
the above Adversary Case Adversary Case 11-05141-LMC, based on his standing as apurchase
money creditor of former Debtor in Possession Moroco Ventures, LLC, and that Edward Bravenec,
1216 WestAve., Inc., Bailey Street Properties, Inc., the Law Office ofMcKnight and Bravenec, and
the Law Firm of Hughes Walters Askanase are designated as Respondents and Defendants in this
matter.
tttfft
54
028573 7 2 70 5 0 28601011
DOCUMENT SCANNED AS FILED
c
26
Case 3:14-cv-02424-D Document 40 Filed 01/29/15 Page 1 of 65 PagelD 701
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIMITRICHARALAMBOPOULOS, §
§
Plaintiff-counterdefendant, §
§ Civil Action No. 3:14-CV-2424-D
VS. §
§
CAMILLE GRAMMER, §
§
Defendant-counterplaintiff. §
MEMORANDUM OPINION
AND ORDER
In this removed action brought against an American television personality by her
former boyfriend—whom she has accused of assaulting and stalking her—the court must
analyze and apply the Texas Citizens' Participation Act ("TCPA"), Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-27.011 (West Supp. 2014), an anti-SLAPP statute.' Plaintiff-
counterdefendant Dimitri Charalambopoulos ("Charalambopoulos") sues defendant-
counterplaintiff Camille Grammer ("Grammer") to recover on claims for defamation,
defamation per se, malicious prosecution, negligence, gross negligence, fraud, and intentional
infliction of emotional distress ('TIED"). Grammer moves to dismiss under the TCPA, to
stay discovery, and for a hearing on her motion to dismiss. Charalambopoulos moves the
'SLAPP is an acronym for strategic lawsuit against public participation. See, e.g., In
re Lipsky, 411 S.W.3d 530, 536 n.l (Tex. App. 2013, orig. proceeding) ("Chapter 27, also
known as the Texas Citizens' Participation Act, is 'considered to be anti-SLAPP legislation.
SLAPP stands for Strategic Lawsuit Against Public Participation, and approximately
twenty-seven states have enacted anti-SLAPP legislation.'" (quoting Jenningsv. WallBuilder
Presentations, Inc., 378 S.W.3d 519, 521 & n.l (Tex. App. 2012, pet. denied)).
AUTHENTICATED ,
U.S. GOVERNMENT
INFORMATION ' J
I CPO.
Case 3:14-cv-02424-D Document 40 Filed 01/29/15 Page 60 of 65 PagelD 760
the privilege, the burdenshiftsto theplaintiffto provethatthe defendant madethe statements
with actual malice." Burbage v. Burbage, 447 S.W.3d 249,254 (Tex. 2014) (citingDun &
Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896, 898 (Tex. 1970)). "Actual malice, in the
defamation context, means 'the making ofa statementwith knowledge that it is false, or with
reckless disregard of whether it is true.'" Id. (quotingHaglerv. Proctor & Gamble Mfg. Co.,
884 S.W.2d 771, 772 (Tex. 1994) (per curiam)).
Grammer has failed to prove that her statements to Officer Vo were qualifiedly
privileged. Grammer contends that she can establish the absence of malice on the basis that
Charalambopoulos is collaterally estopped from arguing that he did not abuse her. The court
concludes below that Grammer has failed to establish that the doctrine of collateral estoppel
applies. Because Grammer has not adduced any other evidence to prove the absence of
malice, the court concludes she is not entitled to dismissal under § 27.005(d) of
Charalambopoulos' defamation claims based on Grammer's statements to Officer Vo.
D
1
Grammer contends that Charalambopoulos' claims based on the assertion that she
fabricated the allegations of assault are barred under the doctrine of collateral estoppel
because, in issuing the Restraining Order, the Los Angeles County Superior Court found by
a preponderance ofthe evidence that Charalambopoulos had "engaged in a past act of abuse
against Grammer." D. Br. 15. Grammer posits that Charalambopoulos is collaterally
estopped from relitigating the issue of whether he engaged in the conduct that Grammer
-60-
Case 3:14-cv-02424-D Document 40 Filed 01/29/15 Page 61 of 65 PagelD 761
alleged occurred on the morning of October 16, 2013, and that "he cannot impugn the
California court's determination by asserting claims premised on the factual contention that
he did not engage in such conduct and that Grammer fabricated the allegations of assault."
Id. at 15-16.
Charalambopoulos responds that the claims in this lawsuit are not "identical" to those
in the California action; that the case on which Grammer relies, Ritchie v. Konrad, 10 Cal.
Rptr. 3d 387 (Cal. Ct. App. 2004), expressly limits itselfto the renewal of a restraining order
and does not announce any sweeping collateral estoppel of civil actions brought on
defamation or malicious prosecution claims; and that, in any event, an equitable exception
to collateral estoppel applies because Grammer fraudulently obtained the Restraining Order
by presenting false testimony.
2
"To determine the preclusive effect of a state court judgment in a federal action,
federal courts must apply the law ofthe state from which the judgment emerged." Blackv.
N. Panola Sch. Dist., 461 F.3d 584,588 (5th Cir. 2006) (citation and internal quotation marks
omitted). Under California law, collateral estoppel applies when (1) the issue sought to be
precluded from relitigation is identical to one decidedin a formerproceeding; (2) the issue
was actually litigated in the former proceeding; (3) the issue was necessarily decided in the
formerproceeding; (4) the decision in the formerproceeding is final and based on the merits;
and (5) the party against whom preclusion is sought is the same as, or in privity with, the
party to the former proceeding. Lucido v. Superior Court, 795 P.2d 1223,1225 (Cal. 1990).
-61-
Case 3:14-cv-02424-D Document 40 Filed 01/29/15 Page 62 of 65 PagelD 762
Grammer contends that, in issuing the Restraining Order, the Los Angeles County
Superior Court was required to find by a preponderance of the evidence that
Charalambopoulos had engaged in a past act of abuse against Grammer.29 In support, she
cites the minutes from a January 6,2014 hearing, which state, in pertinent part: "The Court
grants petitioner's request for domestic violence restraining order based on a preponderance
ofthe evidence, for a period of three years. Restraining Order after Hearing is signed and
filed this date. Order expires on January 6, 2017." D. App. 73. These minutes do not
establish by a preponderance of the evidence, however, that the remaining issues to be
litigated here—e.g., whether the allegedly defamatory statements Grammer made about
Charalambopoulos to Officer Vo were true—is identical to one that was necessarily decided
in the California proceedings. Because the minutes are not specific in this respect, and
because Grammer offers no other evidence that would enable the court to identify the issues
that the Los Angeles County Superior Court actually decided in issuing the Restraining
Order, Grammer has failed to establish each essential element ofthe defense of collateral
29The Domestic Violence Prevention Act("DVPA"), Cal. Fam. Code Ann. § 6200 et
seq., authorizes the court to issue a restraining order for the purpose of preventing a
recurrence ofdomestic violence and ensuring a period ofseparation ofthe persons involved,
ifan affidavit or testimony shows,"to the satisfactionofthe court, reasonableproof of a past
act or acts of abuse." Cal. Fam. Code Ann. § 6300. "Abuse" is defined as intentionally or
recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person
"in'reasonable apprehension of imminent seriousbodilyinjury'" to thatpersonorto another.
Gonzalez v. Munoz, 67 Cal. Rptr. 3d 317, 322 (Cal. Ct. App. 2007) (quoting Cal. Family
Code § 6203). Courts construe the DVPA liberally, and may issue a domestic violence
restraining orderwhenthe applicant makes the required showing by a preponderance ofthe
evidence. See Gdowski v. Gdowski, 95 Cal. Rptr. 3d 799, 805 (Cal. Ct. App. 2009).
62
Case 3:14-cv-02424-D Document 40 Filed 01/29/15 Page 63 of 65 PagelD 763
estoppel. See, e.g., People v. Sterling, 2002 WL 1998213, at *5 (Cal. Ct. App. 2002)
("[WJithout persuasive evidence ofthe ground of Judge Arnason's ruling, [the court could
not] conclude that the [issue raised in present case] was the same issue as that actually ruled
on [in case before Judge Arnason]. As [defendant] had the burden ofproof on this issue, he
has failed to establish this essential element ofcollateral estoppel."). Accordingly, Grammer
is not entitled to dismissal of Charalambopoulos' claims on this basis.
XIV
Grammer moves under § 27.003(c) to stay all discovery in this case until the court
decides her motion to dismiss under the TCPA. She has also filed an unopposed motion for
a hearing on her motion to dismiss.
The court denies Grammer's motion to stay discovery, in part as moot and in part
becausethe court ispermittingCharalambopoulos to conductspecifiedand limiteddiscovery
under § 27.006(b). The motion is moot in part because discovery has been stayed while the
motion to dismiss has been pending, and, except as permitted under this memorandum
opinion and order, it will remain stayed until the court enters a final decision on the
remaining defamation claims that are covered by the TCPA. It is denied in part because the
court is allowing Charalambopoulos to conduct some discovery. Under § 27.003(c), the
suspension of discovery during the pendency of a motion to dismiss does not apply when
discovery is allowed under § 27.006(b).
The court also denies Grammer's motion for a hearing. Although the motion is
unopposed, and although § 27.004 provides for a hearing and imposes time limits on when
-63-
NO. 2012CR2973
STATE OF TEXAS § IN THE DISTRICT COURT
§
vs. § 226TH JUDICIAL DISTRICT
§
LEE VALDEZ § BEXAR COUNTY, TEXAS
APPEARANCE OF COUNSEL
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Gerald Kubena and hereby files this appearance as attorney of record for Lee
Valdez, Defendant. Defendant, Lee Valdez, retained Gerald Kubena, and he consents to Gerald
Kubena's appearance as attorney of record in this cause.
Respectfully submitted,
Office of Gerald Kubena
606 N. Presa, No. 303
San Antonio, TX 78205
(210)290-7339
Gerald Kubena
State Bar No. 00794122
Attorney for Lee Valdez
Consented to,
Lee Valdez, Defendant
CERTIFICATE OF SERVICE
This is to certify that on March , 2015, a true and correct copy ofthe above and foregoing
document was served on the District Attorney's Office, Bexar County, 300 Dolorosa, San
Antonio, TX 78205, by hand delivery.
Gerald Kubena
D
27
Filed 12/23/09
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PARK 100 INVESTMENT GROUP II, etc., B208189
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC385309)
v.
GREGORY R. RYAN et al.,
Defendants and Appellants.
APPEAL from an order ofthe Superior Court of Los Angeles County,
Charles C. Lee, Judge. Reversed.
Lewis Brisbois Bisgaard 8c Smith, Roy G. Weatherup, Bartley L. Becker
and Barry Zoller for Defendants and Appellants.
Freedman & Taitelman, Bryan J. Freedman, Jacqueline C. Brown and
Bradley H. Kreshek for Plaintiff and Respondent.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion
is certified for publication with the exception of part IV, B. 3.
I.
INTRODUCTION
The defendants in this case are attorneys who, in the course of representing
a real property owner in a prior lawsuit involving an easement dispute, filed a lis
pendens on a dominant tenement. The owners ofthe dominant tenement turned
around and, in the present case, sued the attorneys claiming the lis pendens was
wrongfully recorded. The attorneys appeal from the denial of their anti-SLAPP
motion (Code Civ. Proc, § 425.16).1
In the published portions of this opinion, we hold that it is proper to record
a notice of pendency of action, commonly called a lis pendens, on a dominant
tenement when the litigation is an easement dispute. In the unpublished portion of
this opinion (part IV, B. 3.), we hold that the attorneys are not foreclosed by the
doctrine of collateral estoppel from addressing the validity ofthe lis pendens. We
reverse the trial court's order denying the attorneys' anti-SLAPP motion and direct
the court to enter an order granting the motion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlyingfacts.
The Oviatt Building is a historic building built on a parcel of real property
located at 617 South Olive Street, in downtown Los Angeles (the Oviatt property).
The Oviatt property is immediately south of, and adjacent to, the Heron Building
located at the corner of Sixth Street and Olive Street at 510 West Sixth Street, Los
Angeles. There is an alley between the two buildings. This 15-foot private
alleyway lies on the real property upon which the Heron is built (the Heron
property).
1 "SLAPP is an acronym for strategic lawsuit against public participation.
[Citation.]" (Salmav. Capon (2008) 161 Cal. App. 4th 1275, 1283, fn. 4.)
At the rear ofthe Oviatt Building, in the alley, is a large, stationary trash
compactor as well as a number of large trash receptacles that serve the building
and its tenants. By virtue ofthe manner in which the Oviatt Building was
permitted to be constructed, there is nowhere else to place the trash receptacles or
the compactor other than in the alley. Further, the only way the Oviatt property
owners and tenants and the Oviatt Building's waste removal company can access
the large trash compactor and receptacles is through the alley. Thus, if the Oviatt
Building did not have access to the alley, it could not service the needs ofthe
building and its tenants.
In October 1985, the owners ofthe two properties entered into a 10-year
contract by which the owners ofthe Oviatt property could use the alley. This
easement contract called for a one-time payment of $12,500 and the installation of
a gate. It did not require the payment of a monthly fee. Even though the non
exclusive easement stated it was only to be used in the case of an emergency, the
Oviatt property owners used the easement for other purposes, including access to
the Oviatt Building's trash bins.
The Oviatt property is the dominant tenement as the easement attaches to
its property. Because the easement burdens the Heron property, it is the servient
2 v
tenement.
The Oviatt property owners continued to use the easement after the
easement contract expired in October 1995.
In December 2003, plaintiff and respondent Park 100 Investment Group II,
a limited liability company (Park 100) purchased the Oviatt property. (Park 100
was formerly known as the Oviatt Investment Group, LLC.) For ease of reference,
hereinafter, we refer to Park 100 as Oviatt.
Blackmore v. Powell (2007) 150 Cal. App. 4th 1593, 1599; Civil Code
section 803 ["DESIGNATION OF ESTATES. The land to which an easement is
attached is called the dominant tenement; the land upon which a burden or
servitude is laid is called the servient tenement."].
Sixth & Olive, Inc. owns the Heron property. For ease of reference,
hereinafter, we refer to 6th & Olive as Heron.
Defendants and appellants are Gregory R. Ryan and Wayne B. Brosman.
They are the attorneys who represented Heron in 2005. In June and July 2005,
attorney Brosman wrote to Oviatt threatening to deny all access to the alley if a
new easement agreement was not agreed upon. The owners ofthe two properties
could not come to a consensus as to the terms of a new easement agreement.
In January 2006, the Oviatt property was marketed for sale. Its estimated
value was between $15 and $19 million.
In February 2006, attorney Brosman wrote to Oviatt requesting payment of
$116,000 for the use ofthe alley from May 1996 through February 2006, and the
payment of $1,000 per month beginning in March 2006. Attorney Brosman
mailed a copy ofthe letter to the listing broker who was handling the sale ofthe
Oviatt property.
Oviatt received several offers. In February 2006, Oviatt entered into
negotiations with JMF Development for the sale ofthe property for $16.9 million.
By March 2006, Oviatt and JMF Development had agreed to a purchase and sale
agreement.
In March 2006, Oviatt rejected attorney Brosman's demand to enter into a
new easement agreement. Oviatt informed attorney Brosman by email that it had
the right to use the easement pursuant to a prescriptive easement and pursuant to a
covenant running with the Heron building's land, recorded in 1985. Oviatt also
notified attorney Brosman that the Oviatt property was on the market, and warned
that there could be liability if Heron falsely stated that Oviatt could not use the
alley.
B. The quiet title action {Case No. BC349120).
1. The complaint, lispendens, and expungement ofthe lis pendens.
It appears that in March 2006, Heron prevented Oviatt from using the alley
to access its trash receptacles and compactor.
4
On March 16, 2006, attorneys Ryan and Brosman filed a verified complaint
in Case No. BC349120 to quiet title on behalf of Heron against Oviatt.3 In its one
cause of action to quiet title, Heron sought to establish that there was no easement
on its property "except for an easement for pedestrian egress from a fire escape at
the rear ofthe Oviatt Building, for emergency fire, life or safety circumstances."
On March 20, 2006, attorneys Ryan and Brosman recorded a notice of
pending action (a lis pendens) against both properties.
Two days later, on March 22, 2006, JMF Development notified Oviatt by
email that it was withdrawing from the sales agreement because "1. The ongoing
litigation ofthe Heron and the filing ofthe Lis [Pendens] could potentially drag
out a closing date which would not work in terms of my acquisition criteria,
ffl] 2. I was unaware that there was no [conditional use permit] for the rooftop
Space and the [absence] ofthe rooftop income would be detrimental to the
business model. Hf] [T]hese two unforeseen issues make the purchase [too]
risky."
On May 5, 2006, Oviatt filed a verified cross-complaint and filed a lis
pendens only with regard to the Heron property.
On May 30, 2006, Oviatt filed a motion to expunge the lis pendens that had
been recorded on its property. Among other grounds, Oviatt alleged that the quiet
title action did not involve title or the right to the Oviatt property (the dominant
tenement).
At the hearing on the motion to expunge, both counsel informed the trial
court that there was no legal authority addressing whether a lis pendens could
reference the dominant tenement in an easement dispute.
In a June 21, 2006 four-page ruling, the Honorable Rolf M. Treu granted
the motion to expunge concluding the litigationdid not involvetitle or possession
The named defendant in the lawsuit was Oviatt Investment Group, LLC,
previously known as La Cienega Investment Group, LLC, and subsequently
known as Park 100 Investment II, LLC.
ofthe Oviatt property, and hence, there was no real property claim justifying a lis
pendens on that property. Judge Treu determined it would suspend any award of
attorney fees and costs, pending further action. On June 26, 2006, Judge Treu
entered an order expunging the lis pendens that had been recorded against the
Oviatt property.
) On August 4, 2006, Oviatt amended its previously filed verified
cross-complaint that still sought to quiet title in the claimed prescriptive easement.
The cross-complaint also alleged causes of action for intentional interference with
economic advantage and slander of title based on the allegation that the filing of
the lis pendens on its property was wrongful and caused Oviatt to lose the sale of
its property. Oviatt further alleged that the lis pendens was used as a means to
extort over $116,000 from Oviatt and force Oviatt to enter into a new easement
agreement.
2. The overruling ofHeron's demurrer.
Arguing it was absolutely privileged (Civ. Code, § 47) to record the lis
pendens on the Oviatt property, Heron demurred to the intentional interference
with prospective economic advantage and slander of title causes of action in
Oviatt's amended cross-complaint. On October 12, 2006, Judge Treu overruled
the demurrer citing his June 2006 expungement order and indicating that Heron
had not stated a real property claim and thus, the recordation ofthe lis pendens
was improper.
In October 2006, Oviatt filed a motion for sanctions against attorneys
Brosman and Ryan for filing the demurrer. Attorneys Ryan and Brosman argued
that Heron had the right to file a lis pendens on a dominant tenement in an
easement dispute and argued that the prior rulings on this issue were erroneous.
Attorneys Ryan and Brosman asked Judge Treu to reconsider its prior ruling in
light ofKendall-BriefCo. v. Superior Court (1976) 60 Cal. App. 3d 462 {Kendall-
Brief) and Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130
Cal. App. 4th 559 {Woodridge). Judge Treudeclined to reconsider his priorruling,
6
but denied the sanction request concluding that the attorneys had a colorable
argument in suggesting it was permissible to file a lis pendens on the Oviatt
property, i.e., the dominant tenement.
3. The denial ofHeron's motionfor summary adjudication.
On November 22, 2006, Heron filed a motion for summary adjudication of
the intentional interference with prospective economic advantage and slander of
title causes of action in Oviatt's first amended cross-complaint. Heron argued that
an easement is a property interest that affects two separate parcels of real property,
such that a lis pendens may be recorded on both parcels, the dominant and servient
tenements. Among other authority, Heron cited Kendall-Brief supra, 60
Cal. App. 3d 462 and Woodridge, supra, 130 Cal. App. 4th 559. Thus, Heron
suggested the lis pendens was privileged and not actionable. Heron noted that at
the hearing on the expungement motion, both counsel made a misstatement ofthe
law as both were unaware of Kendall-Briefand Woodridge.
In opposing the motion for summary adjudication, Oviatt did not argue that
the authority presented by Heron was not controlling. Rather, Oviatt contended
the expungement order conclusively established that the lis pendenswas
wrongfully recorded and not privileged, and the trial court couldnot make rulings
inconsistent with its prior rulings. Oviatt also argued Heron could not use
summary adjudication as a substitute for a reconsideration motion.
The trial court denied Heron's motion for summary adjudication.
In October 2007, the Oviatt property was sold for $13.5 million.
On January 22, 2008, Oviatt abandoned its claim for a prescriptive
easement through its request to quiet title, thereby leaving only the intentional
interference with prospective economic advantage and slander of title causes of
action.
C. This litigation (Case No. BC385309).
On February 11, 2008, Oviatt filed a complaint (Case No. BC385309)
against attorneys Ryan and Brosman. Oviatt asserted three causes of action:
(1) intentional interference with prospective economic advantage; (2) negligent
interference with economic advantage; and (3) slander of title. The gravamen of
the complaint was that the recording ofthe lis pendens on the Oviatt property (the
dominant tenement) in Case No. BC349120 was improper.
Attorneys Ryan and Brosman filed an anti-SLAPP motion pursuant to Code
of Civil Procedure section 425.16. They argued Oviatt could not prevail on its
complaint because it was barred by the litigation privilege (Civ. Code, § 47, subd.
(b)), the lis pendens was properly recorded against the Oviatt property, and the
interim rulings in the quiet title case were not binding in this lawsuit filed by
Oviatt.
Oviatt opposed the anti-SLAPP motion arguing: (1) the rulings by Judge
Treu in the quiet title action established that the lis pendens was improperly
recorded, and these rulings were binding in the present case; and (2) Civil Code
section 47, subdivision (b) expressly excluded an improperly recorded lis pendens
from the litigation privilege. Oviatt further contended that it had a reasonable
probability of prevailing on its case against attorneys Ryan and Brosman because
the lis pendens was properly expunged in Case No. BC349120.
The trial court, the Honorable Charles C. Lee, denied the anti-SLAPP
motion.
Attorneys Ryan and Brosman appealed from the denial of their anti-SLAPP
motion. We reverse.
III.
SUMMARY
We hold that attorneys Ryan and Brosman met their burden to establish that
the challenged action of filing the lis pendens on the Oviatt property arose from
protected activity. We further hold that Oviatt cannot meet its burden to
demonstrate a probability of prevailing on its claim because in an easement
dispute, a lis pendens may be recorded on the dominant tenement, here the Oviatt
property.
8
IV.
DISCUSSION
A. Motions to strike under Code ofCivil Procedure section 425.16.
The Legislature enacted Code of Civil Procedure section 425.16 in an effort
to curtail lawsuits "brought primarily to chill the valid exercise ofthe
constitutional rights of freedom of speech and petition for the redress of
grievances." (Code Civ. Proc, § 425.16, subd. (a).) Code of Civil Procedure
section 425.16 provides in part: "A cause of action against a person arising from
any act of that person in furtherance ofthe person's right of petition or free speech
under the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail
on the claim." (§ 425.16, subd. (b)(1).)
As pertinent here, Code of Civil Procedure section 425.16, subdivision (e)
states that an " 'act in furtherance of a person's right of petition or free speech
under the United States or California Constitution in connection with a public
issue' includes: (1) any written or oral statement or writing made before a...
judicial proceeding, or any other official proceeding authorized by law; [and]
(2) any written or oral statement or writing made in connection with an issue under
consideration or review by a... judicial body, or any other official proceeding
authorized by law . . . ."
Pursuant to Code of Civil Procedure section 425.16, the party moving to
strike has the initial burden of establishing that the challenged cause of action
arises from protected activity. Then, the burden switches to the plaintiff to
demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1);
Navellier v. Sletten (2002) 29 Cal. 4th 82, 88; Governor Gray Davis Com. v.
American Taxpayers Alliance (2002) 102 Cal. App. 4th 449, 456.)
We review an order granting an anti-SLAPP motion de novo and therefore,
we conduct an independent review ofthe entire record. {Governor Gray Davis
9
Com. v. American Taxpayers Alliance, supra, 102 Cal.App.4th at p. 456; Terry v.
Davis Community Church (2005) 131 Cal. App. 4th 1534, 1544.)
B. Filing the lis pendens was protected activity.
The first step in the analysis is to determine if attorneys Ryan and Brosman
made a threshold showing that the challenged act of filing the lis pendens in Case
No. BC349120 is one arising from protected activity. {Navellier v. Sletten, supra,
29 Cal.4th at p. 88.)
1. A lis pendens is protected activity.
Communications in connection with matters related to a lawsuit come
within the scope ofthe litigation privilege and are acts arising from this protected
activity. {SylmarAir Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal. App. 4th 1049, 1056.) "The filing of a notice of lis pendens falls squarely
within [Code of Civil Procedure section 425.16's definition of a protected
activity]. [Citations.]" {Manhattan Loft, LLCv. MercuryLiquors, Inc. (2009) 173
Cal. App. 4th 1040, 1050; accord, Salma v. Capon (2008) 161 Cal. App. 4th 1275,
1285 [the "filing ofthe notice of lis pendens in superior court and the naming of
... lenders as defendants in his lawsuit were writings made in a judicial
proceeding. They are squarely covered by section 425.16, subdivision (e)(1)"].)
2. The lis pendens was not illegal as a matter oflaw.
Oviatt suggests attorneys Ryan and Brosman failed to meet their burden to
show that the act of filing the lis pendens in Case No. BC349120 arose from
protected activity because the activity was illegal as a matter of law. Oviatt cites
Flatley v. Mauro (2006) 39 Cal. 4th 299 for this proposition. In Flatley, the
defendant attorney's criminal acts of sending letters and making telephone calls to
extort money were deemed not protected by Code of Civil Procedure section
425.16. {Flatley v. Mauro, supra, at pp. 305, 333.) Flatley held that where "the
defendant concedes, or the evidence conclusively establishes, that the assertedly
protected speech or petition activity was illegal as a matter of law, the defendant is
precluded from using the anti-SLAPP statute to strike the plaintiffs action." {Id.
10
at p. 320.) Flatley emphasized that in the examination ofthe first prong ofthe
anti-SLAPP analysis, an activity was not protected as a matter of law only when
the evidence conclusively established the illegality. Otherwise, it was an issue to
be addressed when the plaintiff was called upon to provide a prima facie showing
ofthe merits ofthe case. {Id. at pp. 319-320.) Flatley does not assist Oviatt.
An illegal act is one that is forbidden by law. {Soukup v. Law Offices of
HerbertHafif'(2006) 39 Cal. 4th 260, 283.) Even if a lis pendens is not appropriate
under the circumstances, it is not an illegal act forbidden by law. (E.g., Manhattan
Loft, LLCv. Mercury Liquors, Inc., supra, 173 Cal. App. 4th 1040-1050
[defendants' conduct in filing lis pendens was protected activity even if the lis
pendens was invalid as it did not refer to a pending lawsuit, but referred to
arbitration proceedings; thus, even if a lis pendens was not properly filed, the
defendants met their burden of showing that the act of filing the lis pendens was
protected activity].) Additionally, as we discuss below, the filing ofthe lis
pendens here was authorized by law.
In the unpublished portion (part IV, B. 3.) of this opinion, we find
unpersuasive Oviatt's contention that the rulings in Case No. BC349120 (the
expungement order, the overruling ofthe demurrer and the denial ofthe motion
for summary adjudication) conclusively establish that the filing ofthe lis pendens
was illegal as a matter of law. This finding rejects Oviatt's collateral estoppel
argument.
[[Begin nonpublished portion]]
3. The doctrine ofcollateral estoppel does not apply here.
Oviatt contends attorneys Ryan and Brosman are foreclosed from
addressing the propriety ofthe lis pendens because the expungement order, as well
as the order overruling the demurrer and the denial ofthe motion for summary
adjudication, conclusively established that the lis pendens was illegal as a matter
11
of law. In support of this contention, Oviatt looks to the doctrine of collateral
estoppel.
"Res judicata prohibits the relitigation of claims and issues which have
already been adjudicated in an earlier proceeding. The doctrine has two
components. ' "In its primary aspect the doctrine of res judicata [or 'claim
preclusion'] operates as a bar to the maintenance of a second suit between the
same parties on the same cause of action."... The secondary aspect is "collateral
estoppel" or "issue preclusion," which does not bar a second action but "precludes
a party to an action from relitigating in a second proceeding matters litigated and
determined in a prior proceeding." ' [Citations.]" {Kelly v. Vons Companies, Inc.
(1998) 67 Cal. App. 4th 1329, 1335; see also Vandenbergv. Superior Court (1999)
21Cal.4th815, 828.)
"Collateral estoppel or issue preclusion bars the relitigation of an issue that
was previously adjudicated if (1) the issue is identical to an issue decided in a
prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily
decided; (4) the decision in the prior proceeding is final and on the merits; and
(5) the party against whom collateral estoppel is asserted was a party to the prior
proceeding or in privity with a party to the prior proceeding. [Citation.] 'The
"identical issue" requirement addresses whether "identical factual allegations" are
at stake in the two proceedings, not whether the ultimate issues or dispositions are
the same. [Citation.]' [Citation.] The 'necessarily decided' requirement means
only that the resolution ofthe issue cannot have been ' "entirely unnecessary" to
the judgment in the initial proceeding.' [Citation.]" {Bostick v. Flex Equipment
Co., Inc. (2007) 147 Cal. App. 4th 80, 96-97.)
"The purposes of collateral estoppel are to prevent inconsistent judgments
that undermine the integrity of the judicial system, promote judicial economy by
minimizing repetitive litigation, and protect litigants from harassment by vexatious
litigation. [Citations.] Collateral estoppel is not an inflexible doctrine. Even if
the minimal requirements for its application are satisfied, the doctrine should not
12
be applied if considerations of policy or fairness outweigh the doctrine's purposes
as applied in a particular case. [Citations.] 'In deciding whether the doctrine is
applicable in a particular situation a court must balance the need to limit litigation
against the right of a fair adversary proceeding in which a party may fully present
his case. [Citation.]' [Citation.] 'Moreover, a particular danger of injustice arises
when collateral estoppel is invoked by a nonparty to the prior litigation.
[Citations.] Such cases require close examination to determine whether
nonmutual use ofthe doctrine is fair and appropriate. [Citations.]' [Citation.]"
{Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 97; Roos v. Red
(2005) 130 Cal. App. 4th 870, 880.)
"To that end, the courts have recognized that certain circumstances exist
that so undermine the confidence in the validity ofthe prior proceeding that the
application of collateral estoppel would be 'unfair' to the defendant as a matter of
law. [Citation.] [For example,] application of collateral estoppel is unfair where
the second action 'affords the defendant procedural opportunities unavailable in
the first action that could readily cause a different result.' [Citation.]" {Roos v.
Red, supra, 130 Cal.App.4th at p. 880, fn. omitted.)
We recognize that collateral estoppel is designed to prevent the relitigation
of issues previously determined and to put an end to a dispute rather than creating
a continuing cycle of litigation. Here, Oviatt insists that the trial court's orders in
the prior lawsuit decisively control the outcome in this case as in those orders
Judge Treu held that the lis pendens was improper. Thus, according to Oviatt,
attorneys Ryan and Brosman are foreclosed from addressing whether it is proper
to record a lis pendens on the Oviatt property, the dominant tenement, as that issue
has been previously decided.
However, when Judge Treu was first called upon to address the propriety of
the lis pendens in considering the expungement motion, he was not provided with
the proper legal authority. His ruling was based upon misrepresentations by both
parties as to the state ofthe law. Both Oviatt and Heron erroneously represented
13
to the court that there was no legal authority in California discussing the propriety
of recording a lis pendens on a dominant tenement in an easement dispute.
Thereafter, when Heron opposed Oviatt's motion for sanctions, Heron requested
the trial court reconsider its prior ruling and brought forth the pertinent authority,
including Kendall-Brief supra, 60 Cal. App. 3d 462. As discussed more fully in
the published portions of this opinion, Kendall-Brief'holds that a dispute as to the
use of an easement over the servient tenement affects title and possession ofthe
dominant tenement and justifies a lis pendens on the dominant tenement. Judge
Treu denied the sanction request, but did not address the newly discovered legal
authority. Thereafter, when Heron filed its demurrer and motion for summary
adjudication, it again brought forth authority to show the validity ofthe lis
pendens.
Thus, when Judge Treu rendered his order expunging the lis pendens, the
legal issues had not been fully presented and his decision was based on an
incomplete and erroneous understanding as to the state ofthe law. Thereafter,
when faced with the correct and controlling authority, Judge Treu declined to
reconsider his prior ruling even though he noted that this new authority provided a
"colorable" argument that the recording ofthe lis pendens was permissible. Heron
unsuccessfully tried two more times to have Judge Treu reexamine the issue and
consider controlling authority. It appears that throughout the proceedings, Judge
Treu relied on his initial analysis, yet that analysis did not include consideration of
the appropriate law as both parties were unaware ofthe pertinent authority.
In these circumstances it is inherently unfair to conclude that the orders
rendered by Judge Treu, including the expungement order, conclusively establish
that the lis pendens was illegal as a matter of law and thus, it is inappropriate to
bind attorneys Ryan and Brosmanto those rulings. (Compare with, Sabek, Inc. v.
Engelhard Corp. (1998) 65 Cal. App. 4th 992 [in factual dispute as to if party had
minimum contacts with California, property owner is foreclosed from trying to
prove properservice aftertrial court issues third orderquashing service].) When
14
the question is one of law rather than a question of fact, a prior conclusion does
not prevent a reexamination ofthe issue "either if injustice would result or if the
public interest requires that relitigation not be foreclosed. [Citations.]"
{Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal. 3d
891, 902, distinguished on other grounds in Kowis v. Howard (1992) 3 Cal. 4th
888, 896-899, & fn. 2.)
[[ End nonpublished portion. ]]
4. Attorneys Ryan and Brosman met their burden.
As stated above, we have found unpersuasive Oviatt's argument that the lis
pendens in Case No. BC349120 was illegal as a matter of law. Also, we have
concluded (in the unpublished portion of this opinion) that attorneys Ryan and
Brosman are not foreclosed by the doctrine of collateral estoppel from addressing
the validity ofthe lis pendens. Thus, attorneys Ryan and Brosman have met their
burden of establishing that the activity of filing the lis pendens arises from
protected activity. The burden now shifts to Oviatt to demonstrate a probability of
prevailing on the claim.
C. Oviattcannot meet its burden to demonstrate a probability ofprevailing
on its claims.
In this litigation, Oviatt asserted three causes of action against attorneys
Ryan and Brosman: (1) intentional interference with prospective economic
advantage; (2) negligent interference with prospective economic advantage; and
(3) slander of title. All are based on the argument that the filing ofthe notice of
pendency of action in Case No. BC349120 was improper. This argument is
premised upon Oviatt's contention that it was improper for attorneys Ryan and
Brosman to file the lis pendens on the Oviatt property, which is the dominant
tenement. Oviatt's analysis fails because a lis pendens can be recorded against a
dominant tenement in an easement dispute.
15
1. The lis pendens statutory scheme.
" 'A lis pendens is a recorded document giving constructive notice that an
action has been filed affecting title or right to possession ofthe real property
described in the notice.' [Citation.]" {Kirkeby v. Superior Court (2004) 33
Cal. 4th 642, 647.)
California's notice of pendency of action, or lis pendens, scheme is codified
in Code of Civil Procedure section 405.1 et seq. Section 405.1 states, " 'Claimant'
means a party to an action who asserts a real property claim and records a notice
ofthe pendency ofthe action." The purpose of this section is to "clarify that the
party recording a lis pendens must be a party asserting a Real Property Claim as
defined in [Code of Civil Procedure section] 405.4." (Code com., 14A West's
Ann. Code Civ. Proc. (2004 ed.) foil. § 405.1, at p. 312.) Pursuant to Code of
Civil Procedure section 405.4, a " '[r]eal property claim' means the cause or
causes of action in a pleading which would, if meritorious, affect (a) title to, or the
right to possession of, specific real property or (b) the use ofan easement
identified in the pleading, other than an easement obtained pursuant to statute by
any regulated public utility." (Italics added.) This definition is consistent with the
definition found in Code of Civil Procedure section 405.2: " 'Notice of pendency
of action' or 'notice' means a notice ofthe pendency of an action in which a real
property claim is alleged."
Parties to an action asserting "a real property claim may record a notice of
pendency of action in which that real property claim is alleged." (Code Civ. Proc,
§ 405.20.) Parties and nonparties "with an interest in the real property affected
thereby, may apply to the court in which the action is pending to expunge the
notice." (Code Civ. Proc, § 405.30.) Courts "shall order the notice expunged if
the court finds that the pleading on which the notice is based does not contain a
real property claim." (Code Civ. Proc, § 405.31.) Further, if a real property claim
has been pled and as pled lacks evidentiary merit, the lis pendens shall be
expunged. {Palmer v. Zaklama (2003) 109 Cal. App. 4th 1367, 1377-1378.) As
16
stated in Code of Civil Procedure section 405.32, "the court shall order that the
notice be expunged if the court finds that the claimant has not established by a
preponderance ofthe evidence the probable validity ofthe real properly claim."
"In making [determination as to whether a real property claim is being
asserted], the court must engage in a demurrer-like analysis. 'Rather than
analyzing whether the pleading states any claim at all, as on a general demurrer,
the court must undertake the more limited analysis of whether the pleading states a
real property claim.' (Code com., 14A West's Ann. Code Civ. Proc, supra, foil.
§ 405.31, at p. 342.) Review 'involves only a review ofthe adequacy ofthe
pleading and normally should not involve evidence from either side, other than
possibly that which may be judicially noticed as on a demurrer.' (Code com., 14A
West's Ann. Code Civ. Proc, supra, foil. § 405.30, at p. 337.) Therefore, review
of an expungement order under section 405.31 is limited to whether a real property
claim has been properly pled by the claimant. (Code com., 14A West's Ann. Code
Civ. Proc, supra, foil. § 405.31, at p. 342.)" {Kirkeby v. Superior Court, supra,
33 CaUth at pp. 647-648.)
When a lis pendens has been expunged, the claimant only may record
another notice of pendency of action with leave of court. (Code Civ. Proc,
§ 405.36.) An order expunging a lis pendens is not appealable, but must be
challenged by petition for writ of mandate. (Code Civ. Proc, § 405.39.)
2. An easement dispute is a real property claim that affects the title
and right topossession ofthe dominant and tenement properties.
In Kendall-Brief supra, 60 Cal. App. 3d 462, owners of lots adjacent to a
parcel owned by developer Kendall-Brief Company sought to restrain the
developer from using a private road (an easement) located on theirproperty. The
owners filed a quiet title lawsuit and recorded a lis pendens against both parcels of
property wishing to restrain the developers' use ofthe easement. The developer
filed a motion to expunge the lis pendens as to its property, noting that it was the
dominant tenement and the easement was located onthe adjacent lots' property.
17
When the expungement motion was denied, the developer requested the court of
appeal issue a writ of mandate. {Id. at pp. 464-465.)
The appellate court framed the issue before it as: "The primary issue for
decision is whether the existence or nonexistence of an easement of right-of-way
over a servient tenement affects title to or right of possession ofthe dominant
tenement." {Kendall-Brief supra, 60 Cal.App.3d at p. 464.) Kendall-Brief slated
that the "test to be applied is whether the main action, involving the existence of
an easement of right-of-way over the servient tenement, affects the title or right of
possession ofthe dominant tenement." {Id. at p. 467.) Kendall-Briefasserted that
although the title to the owners' dominant tenement would not be directly affected
if an easement right was shown to exist, the owners' right to possession clearly
would be affected as access to the property would be impaired. The appellate
court went on to conclude that an easement dispute did affect the title or right of
possession ofthe dominant tenement: "Although title to the dominant tenement
would not be affected if petitioner were to suffer an adverse result in the main
action, the right of possession ofthe real property definitely would be affected
inasmuch as access to such property would seriously be impaired. In our view,
'right of possession' encompasses more than mere ownership of a lot in a land
locked subdivision; it includes the right to have access to and to occupy such
property." {Id. at p. 468.)
Five years later, Woodcourt II Limitedv. McDonald Co. (1981) 119
Cal. App. 3d 245 {Woodcourt) was decided. In Woodcourt, the appellate court held
that a notice of a lis pendens was made in the course of a judicial proceeding, and
privileged pursuant to Civil Code section 47.
Oviatt recognizes that the definition of a "real property claim" in Code of
CivilProcedure section 405.4 includes the use of an easement. Oviattargues,
however, that this definition should be limited to permit (1) the recording of a lis
pendens on the servient tenement or (2) the recording of a lis pendens on the
dominant tenement only whenthe dispute involves a landlocked piece of property,
18
as in Kendall-Brief supra, 60 Cal. App. 3d 462. Thus, Oviatt asserts the lis
pendens filed on its property in Case No. BC349120 was improper. However, this
argument fails to recognize that even where a parcel is not landlocked, the lack of
access to an easement can have devastating effects. The dominant tenement's title
is affected as the easement carries with it the right to use the servient tenement.
For example, here, if Oviatt was unsuccessful in its battle with Heron, Oviatt
would have lost the use ofthe easement, thereby severely restricting the use of
Oviatt's property. In Oviatt's verified cross-complaint, Oviatt admitted that the
use ofthe alley affected its property by stating that if it was excluded from using
the alley, it would not be able to service its trash needs. Therefore, Oviatt's right
to use the easement is a right of possession encompassing its right to have access
to, and occupy the Heron property.4
Further, Oviatt's interpretation ofthe present statutory scheme is contrary
to the legislative history and those who have examined the statute. The legislative
history and respected treatises consistently state that Kendall-Briefs holding was
codified in the 1992 amendments to Code of Civil Procedure sections 405.4 and
405.20. This change in the law was intended to include within the definition of a
"real property claim" a lis pendens recorded on either the dominant or servient
In presenting its argument below, Heron cited to Woodridge, supra, 130
Cal. App. 4th 559. In Woodridge, a homeowner had a side yard easement over the
adjoining property of his neighbor. The easement prohibited the dominant
tenement from installing most permanent structures on the easement. {Id. at
p. 563.) The homeowners' association filed a lis pendens on the homeowner's
property in conjunction with its lawsuit against the homeowner for declaratory and
injunctive relief after the homeowner refused to remove a deck he had built that
encroached upon the easement. The trial court granted the homeowner's motion
to expunge the lis pendens filed on his dominant tenement. {Id. at pp. 564-565.)
Before Woodridge addressed the issues before it, the appellate court noted that in
an unpublished opinion filed the prior year, the same appellate court had held that
"the association was entitled to writ relief because [the association] had asserted a
'real property claim' against [the homeowner]." {Id. at p. 566.)
19
tenements in an easement dispute, i.e., the use of an easement upon or appurtenant
to the property affected by the action.
The 1992 amendments to Code of Civil Procedure sections 405.4 and
405.20 codified proposals made by the Real Property Law Section ofthe State Bar
of California after a two year study. These amendments comprehensively revised
the lis pendens statutes. (Real Property Law Section of State Bar of Cal,
Proposed New Lis Pendens Law With California Code Comments (Sept. 1991)
[hereafter Section report]; Legis. Counsel's Dig., Assem. Bill No. 3620 (1991-
1992 Reg. Sess.) ch. 883, p. 3535; Assem. Com. on Judiciary, com. on Assem. Bill
No. 3620 (as amended Apr. 29, 1992) (1991-1992 Reg. Sess.).) As stated in the
Section's report, the new law was intended to codify the holdings in Kendall-Brief
and Woodcourt. The Section report stated in part: "Prior statutory law was not
clear regarding the availability ofthe lis pendens procedure in cases involving
easements. An easement does not technically 'affect' title in the sense of changing
it, nor does the existence of an easement oust the title holder of possession.
Nevertheless, California title insurance practice treats an easement as both an
insurable interest and an exception to title. This state of law and practice created
confusion regarding the availability ofthe lis pendens procedure in cases
involving easements. See Kendall-Brief Co. v. Superior Court[, supra,] 60
Cal. App. 3d 462 and Woodcourt IILimited v. McDonald Co.[, supra,] 119
Cal. App. 3d 245. [^f] This section expressly includes cases affecting the use of
easements within the definition of 'Real Property Claim.' Use of this definition in
[Code of Civil Procedure section] 409.210 ('Notice of pending action, required
comments, recordation.') thus expressly makes the lis pendens procedure available
in all cases which affect the use of an easement upon or appurtenant to the
property affected by the action." (Section report, supra, at p. 7, italics added; see
also, Code com. 1, Deering's Ann. Code Civ. Proc (2009 supp.) foil. § 405.4,
p. 143.)
20
Further, pertinent references in the statutory history discussing the
Legislature's intent in enacting the 1992 amendments to Code of Civil Procedure
section 405.4 to include disputes over easements in the definition of a "real
property claim" do not make the distinction urged by Oviatt. Documents in the
legislative history make no distinction between those lis pendens placed on a
dominant or a servient tenement. Nor do treatises make the distinction Oviatt
urges.
The reports submitted to the Legislature discuss all easements. For
example, a report to the assembly committee on judiciary stated that the new
amendments were "intended to resolve any confusion by recognizing that lis
pendens are available in cases involving easements." (Assem. Com. on Judiciary,
com. on Assem. Bill No. 3620 (as amended Apr. 29, 1992) (1991-1992 Reg.
Sess.), p. 5; accord, Sen. Com. on Judiciary, com. on Assem. Bill No. 3620 (as
amended Apr. 29, 1992) (1991-1992 Reg. Sess.), p. 6.)
Treatises on the subject agree that the pertinent statutes presently permit
and codify Kendall-Briefs holding and these treatises do not state that such
codification was limited to permitting a lis pendens on the dominant easement
when there is a landlocked parcel of property. Witkin states: "The Kendall-Brief
Co. holding was codified in 1992. [Code of Civil Procedure sections] 405.4 and
405.31, read together, provide that an expungement motion premised on the failure
to plead a real property claim may be successfully resisted by showing that the
action was based on a pleading that would affect the use of an easement identified
in the pleading (other than an easement obtained pursuant to statute by any
regulated public utility)." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 401,
p. 509.) Miller & Starr cite Code of Civil Procedure section 405.4, Kendall-Brief
supra, 60 Cal. App. 3d 462, and Woodcourt, supra, 119 Cal. App. 3d 245, and state:
"There are numerous types of actions that may include a real property claim and
therefore may be appropriate for the recordation of a lis pendens [such as, ajctions
regarding easements, including an action to establish an easement, to enforce the
21
claimant's rights under an easement, or affecting the use of an easement, but
excluding the right of use of an easement obtained pursuant to statute by a
regulated public utility." (5 Miller & Starr, Cal. Real Estate, Recording and
Priorities (3d ed. 2000) § 11:150, pp. 11-464 - 11-466, fns. omitted.)
Because a lis pendens affects the use of an easement upon or appurtenant
to the property affected by the action, as a matter of law, attorneys Ryan and
Brosman were entitled to file, on behalf of Heron, the lis pendens on the Oviatt
property as they were asserting a real property claim. Even though we cannot
correct the trial court's expungement order (as it occurred in the prior litigation
involving the easement) it cannot be used by Oviatt to establish that there is a
probability it will prevail on its claims in this case against attorneys Ryan and
Brosman for intentional interference with prospective economic advantage and
slander of title.
3. Filing the lis pendens on the Oviattproperty was privileged and
thus, Oviatt has not met its burden ofproof.
As stated above, Woodcourt, supra, 119 Cal. App. 3d 245, which had cited
Albertson v. Raboff{\956) 46 Cal. 2d 375, held that a notice of a lis pendens filed
in the course of a judicial proceeding was privileged pursuant to Civil Code
section 47. Additionally, section 47, subdivision (b)(4) provides an absolute
privilege to the filing ofthe lis pendens in this case. This statute states that "A
privileged publication or broadcast is one made: [f] (b) In any .. . (2) judicial
proceeding,... except as follows: fl|] ... [%] (4) A recorded lis pendens is not a
privileged publication unless it identifies an action previously filed with a court of
competent jurisdiction which affects the title or right ofpossession ofreal
property, as authorized or required by law." (Italics added.) This exception was
added to the statutory scheme in 1992, the same year the Legislature clarified the
lis pendens statutes to adopt the holding in Kendall-Brief supra, 60 Cal. App. 3d
462. (Stats. 1992, ch. 615, § 1; Palmer v. Zaklama, supra, 109 Cal.App.4th at
22
pp. 1377-1379.)5 "Therefore, if the pleading filed bythe claimant inthe
underlying action does not allege a real property claim, or the alleged claim lacks
evidentiary merit, the lis pendens, in addition to being subject to expungement, is
not privileged (See Cal. Lis Pendens Practice [(Cont.Ed.Bar 2d ed. 2001)]
§ 2.8, pp. 36-37; 5 Miller & Starr, Cal. Real Estate [, supra,] § 11:45, p. 115-119;
Greenwald & Asimow, Cal. Practice Guide: Real Property Transactions (The
Rutter Group 2002) 111:608, p. 11-99.)" {Palmer v. Zaklama, supra, at p. 1380.)
Since the filing ofthe lis pendens on the Oviatt property in Case
No. BC349120 alleged a real property claim and was privileged, and because
Oviatt has made no argument that the lis pendens lacked merit for other reasons,
recordation ofthe lis pendens cannot be the basis for intentional interference with
prospective economic advantage or slander of title causes of action, even if Heron
acted with malice. {SylmarAir Conditioning v. Pueblo Contracting Services, Inc.,
supra, 122 Cal.App.4th at pp. 1058-1059 [where act is privileged, plaintiff cannot
show a probability of prevailing]; Navarro v. IHOP Properties, Inc. (2005) 134
Cal. App. 4th 834, 843-844 [same]; Albertson v. Raboff supra, 46 Cal.2d at
pp. 378-382; Woodcourt, supra, 119 Cal.App.3d at pp. 249-251; Delia Penna v.
Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal. 4th 376, 393 [to plead intentional
interference with prospective economic advantage, defendant had to engage in
some act that was wrongful by some measure other than the fact of interference
itself]; Palmer v. Zaklama, supra, 109 Cal.App.4th at pp. 1378-1379; National
Medical Transportation Networkv. Deloitte & Touche (1998) 62 Cal. App. 4th 412,
440 [independently wrongful act is required to prove negligent interference with
prospective economic advantage]; Brody v. Montalbano (1978) 87 Cal. App. 3d
725, 738.)
5 The 1992 amendment toCivil Code section 47, subdivision (b)(4) was
originally enacted as subdivision (b)(3). (Stats. 1992, ch. 615, § 1.) It partially
abrogated Albertson v. Raboff, supra, 46 Cal. 2d 375. {Palmer v. Zaklama, supra,
109Cal.App.4thatpp. 1378-1380.)
23
The trial court erred in denying the anti-SLAPP motion filed by attorneys
Ryan and Brosman as they were privileged to file the lis pendens in the prior
lawsuit.
V.
DISPOSITION
The order is reversed. Costs on appeal are awarded to appellants
Gregory R. Ryan and Wayne B. Brosman.
CERTIFIED FOR PARTIAL PUBLICATION
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
24
E
28
Filed 4/16/13 LaChapelle v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
FRANK LACHAPELLE,
Petitioner, E058014
(Super.Ct.No. INC1101291)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
HANSEN MCCOY INVESTMENTS,
LLC, et al.,
Real Parties in Interest.
APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther,
Judge. (Retired judge ofthe Sacramento Sup. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 ofthe Cal. Const.) Petition granted.
John C. Torjesen & Associates and John C. Torjesen for Petitioner.
No appearance for Respondent.
Theresa A. Jones for Real Parties in Interest.
In this matter we have reviewed the petition and the opposition thereto, which we
conclude adequately address the issues raised by the petition. We have determined that
resolution ofthe matter involves the application of settled principles of law, and that
issuance of a peremptory writ in the first instance is therefore appropriate. {Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171, 178.)
In the underlying action, petitioner alleges that the security instrument that was
executed and recorded when he refinanced his home is void because it was procured by
fraud and forgery. Thus, he asserts the real parties in interest, who were purchasers at a
non-judicial foreclosure sale and their successors in interest, did not acquire valid title.
He asks in an amended pleading for cancellation of their deeds and for quiet title.
Petitioner filed a notice of lis pendens on February 25. 2011.
Real parties moved to expunge the lis pendens on the ground that petitioner cannot
establish the probable validity of his claim. They contend that their trustee's deed relates
back to the recording ofthe trust deed in 2008 and petitioner can claim no present interest
in the property. They also contend that his claim of fraud can form a basis for a claim for
money damages only—and not a claim for title or possession ofthe property.
The trial court ordered the notice of lis pendens expunged. In its tentative ruling,
the trial court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to
support its ruling: "The purchasers title (at a foreclosure sale)... is not encumbered by
any interest that is created and recorded after the deed of trust, but prior to the date ofthe
foreclosure sale, even if the foreclosure sale purchaser had actual or constructive notice
ofthe intervening lien or interest." The court recited the facts that the notice of default
here showed that the trust deed foreclosed upon was last modified and recorded on
November 5, 2009; petitioner's first lis pendens notice was not recorded until February
15, 2011, and that his second one naming moving parties was not recorded until January
3, 2013. "Thus, the moving defendants' trustees' deed relates back to the date of 11/5/09
trust deed and is effective prior to any notice of lis pendens. As a result, there is no basis
for a lis pendens to remain against the property."
The parties presented no additional argument at the hearing and the tentative
ruling became the court's ruling. Petitioner seeks review of this ruling pursuant to Code
of Civil Code section 405.39. We conclude that the court's stated reasons do not support
the order for expungement.
Justification for setting aside a foreclosure sale is that the deed of trust is void.
{Lona v. Citibank, N.A. (2011) 202 Cal. App. 4th 89, 104-105; see Stockton v. Newman
(1957) 148 Cal. App. 2d 558, 563-564 [trustor sought rescission of promissory note on
grounds of fraud].) There, Lona's home was sold at a nonjudicial foreclosure sale. Lona
sued the lender, the loan servicer, and others to set aside the trustee's sale, claiming he
was a victim of predatory lending in that the loan broker ignored his inability to repay the
loan and Lona, lacking fluency in English, did not understand many ofthe details ofthe
transaction. The court reversed summary judgment for the lenders, concluding that Lona
had raised a triable issue that the underlying loan was illegal and unconscionable, thus
excusing him from the requirement he tender full payment ofthe debt to obtain relief.
Plaintiffs notice of lis pendens is not a lien itself, but simply gives notice that
plaintiff was challenging the validity ofthe trust instrument. Here, at least in the Fifth
Amended Complaint, petitioner is claiming that the trust deed is void because of fraud in
the inducement and forgery. Petitioner's position is much like Lona's—the security
instrument was void and he filed suit challenging it. Thereafter, the nonjudicial
foreclosure sale took place, which he now seeks to set aside. Indeed, in the same section
cited by the trial court (3rd. ed., § 10.208), Miller and Starr also states that in certain
cases the purchaser's title following a foreclosure sale is subject to being recovered by
the trustor by an attack on the validity ofthe instrument. Thus, it appears he has stated
grounds to set aside the sale based on the invalidity ofthe trust deed—he does claim an
interest in the real property so that the trial court erred in expunging the notice of lis
pendens
Real parties' argument that fraud is simply a monetary claim is not well taken, and
we note that petitioner alleges that he acted to rescind the original agreement based on
this fraud and forgery. Real parties also argue that the judgment of foreclosure and the
eviction have conclusive effect, but in the case relied on, Malkoskie v. Option One
Mortgage Corp. (2010) 188 Cal. App. 4th 968, there was a claim that there were
irregularities in the foreclosure sale itself. The judgment of foreclosure was conclusive as
to the purchaser's title. Here, as discussed above, petitioner is challenging the security
instrument as void. Thus, the foreclosure judgment is not conclusive that that instrument
was valid.
We offer no opinion whether the trial court may correctly base an order for
expungement on other factors showing petitioner cannot establish the probable validity of
his claim. We merely conclude that the trial court's ruling was based on a narrow ground
regarding the priority ofthe purchaser's deed, which is not justified based on the face of
petitioner's pleadings. Thus, we conclude that the petition must be granted and the trial
court directed to reconsider the motion. The trial court is in no way precluded on
reconsideration from reaching the same result, i.e., finding that petitioner has not shown
the probable validity of his claim under Code of Civil Procedure section 405.32.
DISPOSITION
Let a peremptory writ of mandate issue directing the Riverside Superior Court to
set aside and vacate its order granting the motion to expunge lis pendens and to
reconsider the matter in accordance with the views expressed herein.
Petitioner is directed to prepare and have the peremptory writ of mandate issued,
copies served, and the original filed with the clerk of this court, together with proof of
service on all parties.
Petitioner is to recover his costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
We concur:
RAMIREZ
P.J.
KING
F
29
Case 5:ll-cv-00414 Document 173 Filed 03/05/2014CPage 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ROWLAND J. MARTIN, JR.,
Plaintiff,
v. No. SA-ll-CA-414
EDWARD BRAVENEC, ESQ., THE
LAW OFFICE OF MCKNIGHT AND §
BRAVENEC, AND 1216 WEST AVE, §
INC., §
§
Defendants. §
ORDER
On January 18, 2013, Rowland Martin filed a notice of Lis
Pendens affecting the real property located at 1216 West Avenue,
San Antonio, Texas (the Property). The notice of Lis Pendens
indicated that Martin intended to appeal the judgment entered by
this Court in the above styled and numbered cause. After the Fifth
Circuit affirmed this Court's judgment and Martin refused to cancel
his notice of Lis Pendens, this Court entered an order cancelling
the Notice. Thereafter, Martin filed a motion for rehearing en banc
in the Fifth Circuit as well as an amended Notice of Lis Pendens.
On December 4, 2013, the Fifth Circuit denied his petition for a
rehearing and the Court entered an order cancelling the amended
notice of Lis Pendens. That same day, Plaintiff filed a third
notice of Lis Pendens, this time indicating that title to the
Property was affected by a Bexar County Probate Court matter styled
In re. Estate of Johnnie Mae King, Cause. No. 2001-PC-1263. The
-1-
Case 5:ll-cv-00414 Document 173 Filed 03/05/2014CPage 2 of 2
notice of Lis Pendens asserts that Martin was the administrator of
the Estate and that Defendant Edward Bravenec was "attorney of
record." It did not, however, clarify what bearing that probate
matter has on the Property at issue in the instant suit.
On February 13, 2014, Defendants filed a motion to expunge Lis
Pendens and a motion for contempt. When the Plaintiff failed to
respond to the motion, the. Court ordered him to explain the
relationship, if any, between his administration of the Estate of
Johnnie Mae King and the title to the Property. Plaintiff has filed
no fewer than three responses to that order. It appears from those
responses that the Plaintiff, as the administrator of the estate of
Johnnie Mae King, is attempting to re-open and re-litigate a
probate matter against Edward Bravenec and the Law Offices of
McKnight and Bravenec. The propriety of that action and the
accompanying Lis Pendens is well outside of the scope of this
Court's jurisdiction. If the Defendants wish to pursue their
motion, they should file it in Bexar County Probate Court Number 1.
It is therefore ORDERED that the Defendants' motion for
contempt and to cancel lis pendens (Doc. No. 162) be, and it is
hereby, DENIED.
SIGNED AND ENTERED THIS ay of March, 2014.
RY LE$ HUDSI
SENIOR UNI STATES DISTRITSS-'JUDGE
•2-
G
30
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROWLAND J. MARTIN, JR. §
SUCCESSOR IN INTEREST TO §
MOROCO VENTURES, LLC §
§
Plaintiff, §
§
v- § Civil Action No. H-10-3644
§
CHARLES GREHN, RELIANT §
FINANCIAL, INC., EDWARD §
BRAVENEC, ESQ., THE LAW §
OFFICE OF MCKNIGHT AND §
BRAVENEC, and 1216 WEST §
AVE., INC., §
§
Defendants. §
ORDER
Pendingbeforethe Courtis Defendant Edward Bravenec's Motionto Transfer
Venue, Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial,
Specific Denials, and Motion for Protective Order (Document No. 9). Having
considered the motion, submissions, and applicable law, the Court determines the
motion should be granted in part and denied in part.
I. BACKGROUND
Plaintiff Rowland J. Martin, Jr. ("Martin") brings this suit as successor in
interest to Moroco Ventures, Inc. ("Moroco") challenging the October 3, 2006
foreclosure ofMoroco's real property located at 1216 West Avenue in San Antonio,
14-50093.724
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 2 of 11
Texas (the "Property"). Martin alleges Defendants Edward Bravenec ("Bravenec")
and the Law Office of McKnight and Bravenec (collectively, "Bravenec's Firm"),
second lien holders on the Property and Martin's former attorneys, improperly
foreclosed on the Property. Martin further alleges Defendants Reliant Financial, Inc.
("Reliant") and Charles Grehn ("Grehn") (collectively, "Reliant"), both former first
lien holders on the Property, allegedly committed acts ofprohibited trade practices,
fraud, and fraudulent transfers for its collection efforts prior to the challenged
October 3,2006 foreclosure. The relevant facts leading up to Martin's lawsuit are
as follows. On October 31, 2003, Moroco executed adeed of trust on the Property
in favor ofRoy M. Ramspeck and Annette G. Hanson (the "Grantees") to secure
payment of a note in the amount of $145,000.00. On June 21, 2004, the Grantees
assigned their rights and interests under the note and deed of trust to Reliant.
Thereafter, Reliant's servicing agent, Aegis Mortgage Corporation ("Aegis"), began
servicing the note. On July 26, 2004, Reliant assigned its rights and interests under
the note and deed oftrust toBernhardt Properties I, Ltd. ("Bernhardt"), a nonparty to
this suit. Despite Reliant's assignment to Bernhardt, Aegis continued servicing the
note.
On May 3, 2005, Moroco executed a second deed of trust on the Property in
favor of Bravenec to secure payment ofa second note in the amount of $20,000.00.
14-50093.725
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 3 of 11
When Moroco defaulted on the second note, Bravenec commenced foreclosure
proceedings. On May 2, 2006, asubstitute trustee held apublic sale, and Bravenec
was the successful bidder. On this same day, Moroco filed avoluntary petition for
Chapter 11 bankruptcy in the United States Bankruptcy Court for the Western District
ofTexas, San Antonio Division. On June 20,2006, the bankruptcy court ordered the
May 2,2006 foreclosure sale void and declared that Moroco held title to the Property.
Shortly thereafter, Aegis, as anamed secured creditor in Moroco's bankruptcy
suit, filed a Motion for Relief from the Automatic Stay. On July 31, 2006, the
bankruptcy court signed an "Agreed Order" stating that the automatic stay would
remain in effect but that Moroco should continue making monthly payments to Aegis
or the Property would be subject to foreclosure without further notice or action by the
bankruptcy court. On August 16, 2006, Aegis, pursuant to the Agreed Order, filed
a Notice ofTermination ofthe Automatic Stay with the bankruptcy court stating that
Moroco was in default of the first lien note. Thereafter, Reliant commenced
foreclosure proceedings on the Property. Reliant's substitute trustee issued a notice
of public foreclosure scheduled for October 3, 2006.
On October 2, 2006, Bravenec filed suit in the 57th Judicial District Court of
Bexar County, Texas to prevent Reliant from moving forward with the October 3,
2006 foreclosure sale. Bravenec then acquired Reliant's first lien interest and
14-50093.726
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 4 of 11
proceeded in place of Reliant at the October 3,2006 foreclosure sale. Bravenec again
was the successful bidder at the sale. Asubstitute trustee's deed was issued to this
effect and subsequently recorded.
On October 13, 2006, Martin filed athird-party petition and application for a
temporary restraining order in the 57th Judicial District Court challenging the
October 3, 2006 foreclosure sale and asserting claims for wrongful foreclosure and
other prohibited transactions. On October 30, 2006, after hearing argument, the
presiding Bexar County judge denied Martin's application for temporary restraining
order and declared the October 3,2006 foreclosure sale valid.
Now in federal court, Martin claims Defendants engaged in numerous
irregularities relating to Moroco's bankruptcy proceedings and the October 3,2006
foreclosure sale. Martin asserts the following mixed bag ofclaims: (1) common law
fraud; (2) fraudulent breach of legal and financial fiduciary duties; (3) violations of
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692E; (4) violations
of his civil rights under the Civil Rights Act, 42U.S.C. § 1983; (5)violations of the
Clayton Anti-Trust Act, 15 U.S.C. § 1; (6) violations oftheSherman Anti-Trust Act,
18 U.S.C. § 1962(c); (7) declaratory judgment on suit in trespass to try title; (8)
injunctive relief to enjoin Defendants' unlawful acts; and (9) negligent infliction of
emotional distress.
14-50093.727
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 5 of 11
Bravenec moves in the alternative for transfer of venue under 28 U.S.C.
§ 1404, for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction, or for a protective order.1 With respect to transfer,
Bravenec contends that three ofthe five defendants—Bravenec, Bravenec's Firm, and
the Property—reside in San Antonio. Bravenec contends that Martin and potential
witnesses also reside in San Antonio. Thus, Bravenec argues it would be more
convenient for the parties and witnesses and in the interest ofjustice for this case to
be heard in the Western District of Texas, San Antonio Division. Reliant opposes
transfer and Martin does not respond. For the reasons provided below, the Court
1Bravenec's grounds for lack ofsubject-matterjurisdiction and for aprotective order
are notpersuasive, and his motion is denied on those points. The Court notes that Reliant
also moves todismiss for lack ofsubject-matterjurisdiction in a separate motion, Document
No. 18, not ruled on by the Court. There, Reliant argues that because Martin never held legal
title to the Property, he lacks standing to sue as successor in interest to Moroco. While
Reliant articulates the constitutional elements of Article III standing—injury-in-fact,
causation, and redressability—Reliant offers no argument and no authority that Martin
actually lacks Article III standing. Rather, Relaint's argument relies on Texas case law
holding that a shareholder lacks standing to pursue the corporation's cause of action. See,
e.g., Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990); El T. MexicanRestaurants, Inc.
v. Bacon, 921 S.W.2d 247, 253 (Tex. App.—Houston [1st Dist.] 1995, writ denied).
Reliant's challenge is construed in actuality as an objection to the prudential limitations on
the Court's exercise of federal jurisdiction. See, e.g.,Ensley v. Cody Resources, Inc., 171
F.3d 315, 319-21 (5th Cir. 1999). Prudential limitations are distinct from the Article III
standing requirements and are governed under Rule 17 ofthe Federal Rule ofCivil Procedure
concerning real parties in interest. Id. Even assuming forthe sakeof argument thatMoroco
is the proper real-party-in-interest plaintiff, the Court has serious doubts as to whether
Moroco continues to existas an active Texas corporation given that itscharter wasforfeited
by the Texas Secretary of State over three years ago. See Tex. Bus. & Org. Code
§§11.001(4)(A)-(5), 11.356(a)(3).
14-50093.728
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 6 of 11
finds transfer is warranted.
II. LAW & ANALYSTS
Amotion to transfer venue from one federal district court to another iswithin
the transferor court's sound discretion. 28 U.S.C. §1404(a); see also Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 253 (1981). Transfer of venue is only appropriate ifa
two-part test is satisfied. First, this Court, as the transferor court, must determine if
the action might have been brought in the transferee court. See 28 U.S.C. §1404(a);
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); In re Horseshoe Entm 't,
337 F.3d 429, 433 (5th Cir. 2003). Second, this Court, as the transferor court, must
ascertain whether transfer is for the convenience ofthe parties and witnesses and in
the interest of justice. Id. Under § 1404(a), the movant carries the burden of
persuading a court thattransfer ofvenue is warranted. See In re Volkswagen ofAm.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008) (citing Time, Inc. v. Manning, 366 F.2d 690,
698 (5th Cir. 1966)). To prevail, the moving party must show that "the balance of
convenience and justice weighs heavily in favor of the transfer." Gundle Lining
Constr. Corp. v. Fireman's FundIns. Co., 844 F. Supp. 1163,1165 (S.D. Tex. 1994)
(Crone, J.). Thus, the Court must determine if transferring venue would make it
"substantially more convenient for the parties to litigate the case." See id.
When evaluating whether transfer is in the interest of justice and for the
14-50093.729
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 7 of 11
convenience ofparties and witnesses, "convenience" depends on private and public
interest factors, none ofwhich is given dispositive weight. In re VolkswagenAG, 371
F.3d at 203. Courts consider the following private interest factors: (1) the relative
ease ofaccess to sources ofproof; (2) the availability ofcompulsory process to secure
the attendance ofwitnesses; (3) the cost ofattendance for willing witnesses; and (4)
all other practical problems that make trial of a case easy, expeditious and
inexpensive. Id. at 203 (citing Piper Aircraft, 454 U.S. at 241 n.6). The public
interest factors encompass: (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized interests decided at home; (3) the
familiarity ofthe forum with the law that will govern the case; and (4) the avoidance
ofunnecessary problems in conflict oflaws, or in the application offoreign law. Id.
These factors are neither exhaustive or exclusive, nor is any one factor dispositive on
the issue of transfer. Gapp v. Linde Gas N. Am., LLC, Civil Action No. H-10-4642,
2011 WL 1770837, at *2 (S.D. Tex. May 9, 2011) (Atlas, J.) (citing Action Indus.,
Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)).
A. Whether this case might have been brought in the Western District ofTexas.
The Court finds jurisdiction and venue are proper in the Western District of
Texas, San Antonio Division. Martin asserts claims under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692E, the Civil Rights Act, 42 U.S.C. §1983, the Clayton
14-50093.730
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 8 of 11
Anti-Trust Act, 15 U.S.C. §l,2 and the Sherman Anti-Trust Act, 18 U.S.C. 1962(c),3
and therefore invokes federal question jurisdiction under 28 U.S.C. § 1331. The
location ofthe Property underlying the basis ofMartin's claims, as well as three of
the five named defendants, reside in San Antonio.4 Moreover, all of Martin's
allegations concerning the events giving rise to his claims occurred in San Antonio.
Thus, Martin's suit could have been brought in the Western District of Texas, San
Antonio Division. See 28 U.S.C. § 1391 ("A civil action wherein jurisdiction is not
founded solely on diversity ofcitizenship may, except as otherwise provided by law,
be brought only in ... (2) ajudicial district in which a substantial part ofthe events
or omissions giving rise to the claim occurred, or a substantial part ofproperty that
is the subject ofthe action is situated...."). Having determined the first prerequisite
totransferring venue issatisfied, the Court next weighs the private and public interest
factors to determine whether transfer would be for the convenience oftheparties and
2In Martin's Original Complaint under the heading, "FIFTH CLAIM FOR RELIEF."
Martin identifies the Clayton Anti-Trust Act, yet he cites the statutory reference 15 U.S.C.
§ 1, which in actuality is the Sherman Act.
3InMartin's Original Complaint under the heading, "SIXTH CLAIM FOR RELIEF."
Martin identifies the Sherman Anti-Trust Act, yet hecites the statutory reference 18 U.S.C.
1962(c), which in actuality is the Racketeer Influenced and Corrupt Organizations Act
(RICO).
4Bravenec, Bravenec's Firm, and the Property all reside in San Antonio, Texas.
Reliant and Grehn reside in Harris County, Texas.
14-50093.731
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 9 of 11
witnesses, and in the interest ofjustice.
B. Whether transfer isfor the convenience oftheparties andwitnesses, and in the
interest ofjustice.
1. Private interestfactors
The private interest factors weigh in favor oftransfer. First, Martin, Bravenec,
Bravenec's Firm, and the Property are all situated in San Antonio. Second, Martin's
allegations complain ofevents that occurred in San Antonio. Third, Neither Martin
nor Defendants have named any witnesses who might testify, but given the location
of the alleged events, its likely that any potential witnesses will reside in San
Antonio. Fourth, Most, ifnot all, ofthe relevant documents, including filed deeds of
trusts, state-court filings and orders, and bankruptcy court filings and orders, are in
San Antonio. Finally, while Reliant contends transferring this case would impose a
burden on it and Grehn, Reliant does not appear to have encountered any
inconveniences while participating in Moroco's bankruptcy proceedings, conducting
foreclosure proceedings on theProperty, ordefending against Brevenec'sstate-court
action to prevent Reliant from moving forward with the October3, 2006 foreclosure
sale, all of which occurred in San Antonio. Thus, the Court concludes that the
general consideration of convenience for the parties, witnesses, and the overall
efficiency ofthe case, would be betterserved bytrial inthe Western District ofTexas.
14-50093.732
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 10 of 11
2. Public interestfactors
The public interest factors are neutral in the Court's analysis. First, none ofthe
parties have presented any evidence or statistics that the Western District of Texas's
court congestion is greater than this Court. Second,the Western District ofTexas has
no apparent "localized interest" inresolving this case. Third, the Western District of
Texas is well-equipped to apply the federal and state laws that govern this case. And
finally, the Court finds this case does not require resolving problems in conflicts of
law nor the application of foreign law. Accordingly, the public interest factors add
no weight to the balance favoring transfer.
III. CONCLUSION
Having considered theprivate and public interest factors, theCourt determines
that on balance, these factors weight in favor of transfer to the Western District of
Texas, San Antonio Division. Accordingly, the Court hereby
ORDERS that Defendant Edward Bravenec's Motion to Transfer Venue,
Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial, Specific
Denials, and Motion for Protective Order (Document No. 9) is GRANTED INPART
and DENIED IN PART. The Court further
ORDERS that this caseis hereby TRANSFERRED to the UnitedStatesDistrict
Court for the Western District of Texas, San Antonio Division. The Court further
10
14-50093.733
Case 5:ll-cv-00414-HLH Document 48 Filed 05/18/11 Page 11 of 11
ORDERS that Defendant's Motion to Dismiss for Lack of Subject-Matter
Jurisdiction and Motion for Protective Order are DENIED.
SIGNED at Houston, Texas, on this /g day ofMay, 2011.
DAVID HITTNER
United States District Judge
11
14-50093.734
H
31
The clerk shall file this order In the main bankruptcy case as well as
In this adversary proceeding.
SO ORDERED.
SIGNED this 10th day of August, 2012.
LEIF M. CLARK
BANKRUPTCY JUDGE
IN THE US. BANKRUPTCY COURT
FOR THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
Rowland J. Martin ) Adversary Case 11-05141-LMC
Plaintiff )
)
v.
)
)
Edward Bravenec )
Defendant )
)
la Re ROWLAND J. MARTTNfJR, ) Case No. 05-80116-LMC
DEBTOR )
AMENDED ORDER REOPENING BANKRUPTCY CASE NO. 05-80116-LMC
The Court, having considered "Debtor's Motion For ReliefFrom The Bankruptcy Court's
Order OfJuly 28, 2011 And To Compel Turnover OfAssets," finds that the post-petition foreclosure
ofinvolving the property at 1216 West Ave., in San Antonio, Texas, an asset ofthe Chapter 11 estate
in Bankruptcy Case 06-50829 on October 3,2006, is subject to this Court's in custodiolegis authority
53
028573 72705028601011
DOCUMENT SCANNED AS FILED
under Bustambnte v. Cueva, 2004,371 F.3d 232, rehearing denied U.S. App. LEXIS M719 (5th Cir.
Tex, June 14,2004) cited in Ashley Place. Inc. v. Nichnknn 2007 U.S. Dist. LEXIS 24801 (WD.
Tex. 2007) (Civil Action No. SA-06-CV-999-XR), and that the Debtor has demonstrated standing as a
purchase money creditorofformer Debtor in Possession Moroco Ventures, LLC. Therefore, me Court
finds that the Debtor's motion for further proceeding in the above Adversary Case 11-05141-LMC
should be GRANTED in part, and designated for hearing in part, pursuant to Bankruptcy Code
Sections 105,362, and 542. ITISTHEREFORE,
ORDERED, "Debtor'sMotion For ReliefFrom The Bankruptcy Court's Order OfJuly 28,
2011 And To Compel Turnover. OfAssets,"is hereby granted in part to authorize nuncpro tunc relief
from the Court's Order ofJuly 28,2011 in Bankruptcy Case No,05-80H6-LMQ and
IT IS FURTHER ORDERED, that the Debtor is authorized to prosecute turnover relief in
the above Adversary Case Adversary Case 11-05141-LMC, based on bis standing as apurchase
money creditor offormer Debtor in Possession Moroco Ventures, LLC, and that Edward Bravenec,
1216 West Ave., Inc., Bailey Street Properties, Inc., the Law Office ofMcKnight and Bravenec, and
the Law Firm of Hughes Walters Askanase are designated as Respondents and Defendants in this
matter.
MMM
trffft
54
028573 7 2 705 028601 011
DOCUMENT SCANNED AS FILED
SO ORDERED.
SIGNED this 24th day of September, 2012
LEIF M. GLARK
BANKRUPTCY JUDGE
United States Bankruptcy Court
Western District of Texas
San Antonio Division
!n re • Bankr. Case No.
Rowland J. Martin 05-80116^
Debtor Chapter 13
Roland J. Martin
Plaintiff
v. Adv. No. 11-5141
Bexar County & Edward Bravenec
Defendants
Rowland J. Martin
Plaintiff Adv. No. 12-...
y.
Albert McKnight & Edward Bravenec
Defendants
Order Title
56
011577 76904011588010
DOCUMENT SCANNED AS FILED
SO ORDERED.
SIGNED this 24th day of September, 2012
LEIF M. CLARK
BANKRUPTCY JUDGE
United States Bankruptcy Court
Western District of Texas
San Antonio Division
In re • Bankr. Case No.
Rowland J. Martin 05-80116-C
Debtor Chapter 13
Roland J. Martin
Plaintiff
v. Adv. No. 11-5141
Bexar County & Edward Bravenec
Defendants
Rowland J. Martin
Plaintiff Adv: No. 12-
v.
Albert McKnight & .Edward Bravenec
Defendants
Order Title
56
Ol1577 76904011588010
DOCUMENT SCANNED AS FILED
Came on for consideration the foregoing matter. Plaintiff Rowland Martin seeks
reconsideration of this court's order abstaining from consideration of the lawsuit the
subject of his removal, Martin v. Bexar County et al., pending in state court. Along the
way, it appears that, by amendment, he also seeks to remove another piece of state
court litigation, Martin v. McKnight et al. He argues that the orders entered in that case
might well be void ab initio under recent Texas Supreme Court authority.
The court declines to reconsider its earlier ruling regarding abstention. The court
further remands Martin v. McKnight, to the extent that this pleading might be considered
to be a removal of that action. The reasons are simple. There is no reason why these
matters cannot be argued to the state court. Indeed, they are better being argued to the
state court, as federal jurisprudence in this circuit differs from state court jurisprudence.
The state court rule of law on this issue is more favorable to the plaintiff. He is better off
in state court.
With regard to Martin v. McKnight, the court must remand that action, as the
matter caiinot be heard by this court. It does not fall within this court's subject matter
jurisdiction. See 28 U.S.C. § 1334(b), 1452(b). The state court, by contrast, has plenary
jurisdiction to decide the matters.' The state court is permitted to construe and to apply
federal law in a state court proceeding, just as federal courts are permitted to construe
and to apply state law in federal proceedings.
The motion to reconsider is denied. The abstention order with regard to Martin v.
Bexar County stands. The suit styled Martin v. McKnight is remanded to state court (to
the extent it was ever removed).
57
011577 76904011588010
DOCUMENT SCANNED AS FILED
I
32
r\
jFourtl) Court of Appeals?
H>an Antonio, TEexag
February 2, 2015
No. 04-14-00483-CV
Rowland MARTIN, Jr.,
Appellant
Edward L. BRAVENEC and 1216 West Ave., Inc.,
Appellees
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-07644
Honorable Dick Alcala, Judge Presiding
ORDER
Appellee has filed a Motion to Dismiss or in the Alternative Motion to Re-Plead or in the
Alternative Request for Extension of Time. Noting this court's prior orders dated December 4,
2014, and December 8, 2014, specifying the two trial court orders before the court in this appeal,
appellee asserts the appellant's brief ignores those orders and "addresses every issue ever
litigated." Appellee's motion to dismiss and motion to re-plead are DENIED; however, in
disposing of this appeal, this court will consider only those issues raised in appellant's brief that
relate to the orders this court has expressly identified as the subject of this appeal. Appellee's
request for an extension of time is GRANTED. Appellee's brief must beJiled no later than
March 2, 2015.
$AwJ
Jasor/PVilliam, Justice
IN Wq$«S5^rjMfe^E I have hereunto set hand and affixed the seal of the said
court on thi^H^a"f'-eb.Eu^L'^lS
<&* o ••"
KeithTi Hottle
Clerk of Court
FILE COPY
Jfourtf) Court of appeals!
^>an Antonio, tEexatf
February 24, 2015
No. 04-14-00483-CV
Rowland MARTIN, Jr.,
Appellant
Edward L. BRAVENEC and 1216 West Ave., Inc.,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-07644
Honorable Dick Alcala, Judge Presiding
ORDER
The Appellant's Motion for Rehearing is DENIED.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of February, 2015.
flft OF At>£%
J&
\-yJk
\<'% Kei
Clerk of Court
''/AllHHIlltAV