in the Estate of Johnnie Mae King ( 2015 )

Case No. 04-15-00271-CV
IN THE MATTER OF THE ) IN THE COURT OF APPEALS _
ESTATE OF JOHHNIE MAE KING ) K
ROWLAND J.MARTIN ) °
Appellant ) FOR THE FOURTH DIS" Zl
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BEXAR COUNTY, et al. ) n r-1
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Appellees ) BEXAR COUNTY, TEXAS 5

APPELLANT'S UNOPPOSED MOTION TO ABATE
AND FOR LEAVE TO FILE SECOND AMENDED BRIEF
TO THE HONORABLE FOURTH DISTRICT COURT OF APPEALS:
NOW COMES Appellant, Rowland J. Martin, Administrator for the Estate of King, and
files this, his "Appellant's Unopposed Motion To Abate And For LeaveTo File Second
Amended Brief," requesting theCourt to abate an issue about Attorney Edward Bravenec and his
firm to allow ancillary proceedings andfor leave to amend cite additional authority on the need
forcontinued administration in relation to claims of liability asserted against him, in support of
which the following is shown:
STATEMENT OF THE CASE
Appellant moves the Court to abate proceedings until ftorther notice and for leave to
amend on an issue relating to whether theTexas Supreme Court'sholding inSanAntonio Area
Foundation v. Lang, 2000 WL 1675984 (Tex. 2000) supports a claim for liability against
Attorney Edward Bravenec. See legal authority and lien declarations in APPENDIX. The
requested abatement aids theCourt'ssupervisory jurisdiction to expedite a resolution of the
controversy with the Bexar County Appraisal Authorities, and is permissible according to the
law of the case doctrine, and promotes judicial economy by minimizing unnecessary
expenditures of resources by the Court and the interested parties in Case No. 04-15-00271-CV.
Appellant has diligently conferred with opposing counsel for the Bexar County appraisal
authorities and has been informed that there is no opposition to the motion insofar as it pertains
to a claim for liability for trespass to real chattels by Bravenec and his firm. The primary effect
of the proposed abatement is to afford the parties an opportunity to supplement the record in the
Probate Court and in ancillary proceedings with an eye towards exploring alternatives for a
voluntary settlement of competing claims. Ex parte Shaffer, 649 S.W.2d 300 (Tex. 1983)
(vacating prior restraints abridging pro se administrator's fimdamental rights).
THE LAW OF THE CASE DOCTRINE
The law of the case doctrine has been defined by the Texas Supreme Court as that
principle under which questions of law decided on appeal to a court of last resort will govern the
case throughout its subsequent stages, but does not absolutely bar reconsideration of the same
issue on a subsequent appeal after a party amends his pleadings and adds a new cause of action.
Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009 Tex. App. LEXIS
1707 (Tex. App. - Corpus Christi, 2009, pet. den'd) (applying law of the case doctrine to uphold
estate administrator's right of re-entry); cf., Martin v. Bravenec, et al. Case No. 04-14-00483-
CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June 8,2015). On the
evolving facts of this case, it confers upon Appellant an absolute privilege to engage in judicial
communications concerning his direct interest in the subject property. As indicated by the
materials attached, this second appeal involving issues about Edward Bravenec involves an
intervening change in a prior judgment issued by the U.S. Court of Appeals for the Fifth Circuit,
an intervening lien declaration, and a trespass to chattel issue that did not come before the Court
in the first appeal. See e.g., "Third Party Purchase Money Lien Declaration" citing Bexar
County Deed Records, Vol. 10406 Page 1607 (describing the subject property as "Lots 1,2, and
3, Block 50, new City Block 8806, LOS ANGELES HEIGHTS").
It is evidently permissible in the current state of the record for the parties to supplement
the record of proceedings in the Probate Court and in the affected ancillary courts to reflect new
developments. Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597,600 (Tex. App.~San
Antonio 1996, writ denied) (absolute privilege for lis pendens filing); McKaskey v. McCall, 236
S.W. 432 (Tex. App. - El Paso 1920) (lis pendens expunction on defective rationale is
fundamental error). Given the current state of the record, Appellant's lien declaration constitutes
an authorized communication relating to his property interests in the subject property of the
dispute with Bravenec.' The declaration operates in furtherance of ongoing proceedings in Case
15-0541 on the Texas Supreme Court, Case No. 04-15-00271-CV in this Court and in Case No.
14-50093 in the Fifth Circuit, as well as other on-going proceedings in Probate Case No. 2001-
PC-1263 in Bexar County Probate Court #1, Case No. 2014-CI-07644 in the 285"' District
Court, and Case No. 2015-CI-04779 in the 150th District Court, respectively. As to all the above
referenced proceedings. Appellant asserts that he is the beneficiary of an absolute privilege under
Chale C3arza Investments, Id., that his lien was attached to real property encumbered by a
security interest granted in expectation of legal services for the benefit of the King estate. Archer
V. Griffith, 390 S.W. 735 (Tex. 1965), and that his continuing lien interests in the subject
property is not governed by the collateral interest doctrine followed in Flores v. Haberman, 915
S.W.2d 477,478 (Tex. 1995) (per curiam) (orig. proceeding).
' See also, Barras v. Barras, 396 S.W.3d 154 (Tex. App. 2013), reh'g overruled (Apr. 11,2013),
review denied (Aug. 30,2013) (purchase money claim); Long Beach Mortgage Companyv. Evans, 284
S.W.3d 406 (Tex.App.-Dallas 2009, cert denied) (awarding property to lis pendent claimant with
purchase money interest); Cohrs v. Scott, 338 S.W. 2d 127,130 (Tex. 1960) (payment of purchase money
for acquisition of land by another supports remedy of resulting trust); and Johnson v. Wood, 157 S.W.2d
146 (Tex. 1941).
ARGUMENT AND AUTHORITIES
A. SAAF Supports The Conclusion That The Chose Of Action Embodied By Probate
Case # 2001-PC-1263, And The Purchase Money Lien Interest Expended
inadvertently For The Benefit Of The Estate, Are Real Chattel Interests That Were
Subjected To Interference By Bravenec's Unilateral Abandonment Of The Probate
Case In 2005.
One of several reasons there is a need for proceedings in the probate court results from
interference with estate administration that began during the attorney client relationship with
against Bravenec and his firm, in re Estate of Vaidez, 406 S.W.3d 228,233 (Tex. App.—San
Antonio 2013, pet. denied); Omnibus int'i, inc. v. AT & T, inc.. Ill S.W.3d 818, 826 (Tex.App.-
Dallas 2003, pet. granted, remanded by agreement) (trespass to chattels case). The Court said in
Vaidez that the elements of action for trespass to chattel are "(1) that an interference with one's
property or property rights occurred; (2) such interference was intentional and caused damage;
and (3) the interference was conducted with neither just cause nor legal excuse." id. Appellant
submits that the law applied in SAAF, and by the Fifth Circuit appeal in Martin v. Bravenec, et
ai, Case No. 14-50093,2015 WL 5752439 (5th Cir, October 2,2015), and in DTND Sierra
Investments v. HSBD Bank U.S.A., Case No. 14-51142,2015 WL 5332725 (5th Cir., 2015),
substantiate the legal basis for the proposed abatement and remand.
In SAAF, the Texas Supreme Court notes that "[t]he Probate Code defines personal
property as 'interests in goods, money, choses in action, evidence of debts, and chattels real' ...
Promissory notes, net-profit agreements, and cash are personal property, not real property." id.
(citing Tex. Probate Code § 58(c) (Vemon Supp. 1999)). Appellant asserts that Probate Case No.
2001-PC-1263 is a chose in action of which he is the equitable owner, and that his lien
declaration and perfected notice of lis pendens encumbering the property known as 1216 West
Ave., in San Antonio Texas are evidence of debt in the nature of a promissory note. In this
regard, SAAF substantiates a need for administration to prosecute claims for tort liabilityand
turnover relief against Bravenec and his contracting parties.
In SAAF, the Texas Supreme Court construedSection 58(c) for the first time in a case
where a Testatrix devised certain real property to a niece and nephew, and where the the probate
court initially ruled that assets related to that real property, such as promissory notes, collections,
and net profit interests, were not encompassed by the term "real property" and thus they passed
to the residuary beneficiary. The probate court refused to admit extrinsic evidence showing that
Testatrix thought of the land, the notes, and the profits as one "investment package" which she
meant to pass by the devise to Niece and Nephew. Section 58 (c) stated in pertinent part as
follows: "A devise of real property does not include any personal property located on or
associated with the real property or any contents of personal property located on the real property
unless the will directs that the personal property or contents are included in the devise." Tex.
Probate Code § 58(c) (Vemon Supp. 1999).
On appeal, this court reversed the probatecourt in Langv. San Antonio Area Foundation,
5 S.W.3d 738 (Tex. App.—San Antonio 1999), and held instead that the probate court should
have considered the extrinsic evidence because the evidence created a fact issue regarding
Testatrix's intent. However, the Supreme Court of Texas reversed in a unanimous opinion and
reinstated the probate court's judgment in favor of the residuary beneficiary. The Supreme Court
recognized that the term "real property" has a settled legal meaning and that a reviewing court
cannot look beyond the terms of the will to find Testatrix's intent. The SAAFdecision implies
that a duty exists on the part of counsel to oppose a cloud on title to real property of an estate
where the plaintiff tax authorities have designated personal property owners as defendants in a
suit for collection of ad valorem taxes assessed against real property of a pending estate.
B. SAAF Supports An Attribution Of Intent To Harm Real Chattel interests Stemming
From Bravenec's Retention Of in Kind Compensation in Excess Of The Quantum
Merit Value Of His Services And His Subsequent Prosecution Of A Motion To
Expunge Lis Pendens That Was Adverse To The Estate He Once Represented.
Regarding the second element. Section 58 resolves the definition of real property in
favor of a conclusion of law that personal property is categorically excluded from the delegation
of authority to impose ad valorem taxes on real property. Bravenec's original undocumented
withdrawal from the Probate Case supports an attribution of intentionality and causation of harm.
At common law, the rule was that "one who intentionally intermeddles with another's chattel is
subject to liability ... if his intermeddling is harmful to the possessor's materially valuable
interest in the value of the chattel, or if the possessor is deprived of the use of the chattel for a
substantial time, or some other legally protected interests of the possessor is affected."
Restatement (Second) Torts, p. 218. It is now recognized that trespass to chattels is one of the
"other legal theories might be employed concerning the misappropriation of or interference with
intangibles." Thrifty-Tel, Inc., v. Bezenek, 46 Gal. App. 4th 1559,1567 (Cal.).
Appellant submits that Bravenec caused intentional harmful interference to the King
estate and to the Appellant on two grounds. Bravenec recklessly endangered the estate's chose in
action in Probate Case No. 2001-PC-1263 through the failure of his firm to challenge the tax
authorities' standing to prosecute tax suits against heirs of a pending estate from 2003 to 2005
and his abrupt abandonment of the attorney client relationship in October 2005. He has also
recklessly endangered Appellant's purchase money interests by converting security interests that
were granted in expectation of legal service into unearned compensation in a post-petition
foreclosure transaction in October of 2006, and by subverting Appellant's absolute privilege to
recover the subject property through lis pendens expunction proceedings directed at the estate.
For the same reason that extrinsic evidence was disallowed in SAAF as offered to
demonstrate that a gift of real property includes personal property, extrinsic evidence cannot
enable him to avoid culpability for his failure to abate clouds on title to estate property resulting
from unopposed tax suits against the heirs:
Real property is defined as "land, and generally whatever is erected or growing upon or
affixed to land." Chastain v. Koonce, 700 S.W.2d 579,584 (Tex.1985) (Gonzalez, J.,
concurring) (quoting black's Law Dictionary 1096 (5th ed.l979)). The Probate Code
defines "real property" as including "estates and interests in land, corporeal or
incorporeal, legal or equitable, other than chattels real." Tex.Prob.Code § 3(dd).
Personal property is defined broadly to include everything that is subject to ownership
not falling under the definition of real estate. Erwin v. Steele, 228 S.W.2d 882, 885
(Tex.Civ.App.-Dallas 1950, writ refd n.r.e.); see also black's Law Dictionary 1233 (7th
ed.l999)... Thus, because real property has a settled legal meaning, we need not look
beyond the terms of the will to find Ruth's intent.
This conclusion is supported by section 58(c) of the Probate Code, which mandates that
"[a] devise of real property does not include any personal property located on or
associated with the real property, unless the will directs that the personal property . [is]
included in the devise." Tex. Prob.Code § 58(c). Because the real estate lien notes
and net-profit agreements ... are personal property, they would not pass with the devise
of real property unless [the Testatrix] otherwise specifically directed in her will...
SAAF, Id. (bracketed language added). In short,SAAF implies that the tax litigation was coram
non judice because "the settled meaning of real property" and "the directions of the Probate
Code" remain constant regardless of extrinsic evidence about the circumstances of the estate. Id.
Further, the Supreme Court specifically noted that, prior to San Antonio Area
Foundation, Section 58 of the Probate Court had not been previously construed, and that
"Respected legal commentators ... advise that 'to the extent that either a statute or established
rule of decision attributes a certain meaning to particular words, that meaning must be accepted.'
A. Leopold G. Beyer, 10 Texas Law of Wills Practice, § 47.3, p. 209-10 (Texas Practice Series,
West 1992) (quoting from T. Atkinson, Law of Wills § 146 (2d ed. 1953))." Id. Here as in
SAAF, the statutory provision that took effecton January 1, 2014 attributes a meaning to the term
real property which renders Bravenec and his firm putativeiy liable for acts of reckless
endangerment that are "inconsistent with long-standing Texas jurisprudence." SAAF, Id.
C. A Need For Administration Exists So The Probate Court And Affected Ancillary
Courts Can Inquire into Whether Liability Should Be imposed For The
interferences With Estate Administration That Bravenec And Those in Privity
With Him Have Caused.
Regarding the third element, Appellant relies on the attached material to support his
denial that there is any just cause or legal excuse for Bravenec to evade liability much less to
retain ownership of real property which he took subject to a second lien chain of title that is
executory in nature, Johnson, id., and in contemplation of legal services to the client estate and
its administrator that he never performed. Archer, id.
Applying governing law to the factor of just cause, the law of the case doctrine in
Barranza authorizes the Court to disregard its past interlocutory findings about the probate court
proceedings in light of intervening changes in the goveming law reflected by the Fifth Circuit's
findings in Martin v. Braevnec, atai, Case No. 14-50093 and DTND Sierra investments, id.^ On
October 2,2015, the Fifth Circuit issued a Memorandum Opinion that finds Bravenec at fault for
prosecuting a federal court motion for contempt that was previously referenced in Case No. 04-
14-00483-CV and concludes as a matter of law that the federal district court abused its discretion
and violated due process requirements. As a general matter, the Fifth Circuit established that the
two federal court lis pendens filings cited in Bravenec's tort liability case operated in furtherance
^ TheCourt has previously stated, for example, that"[w]ith regard to the occurrence of an actof
interference, the pleadings alleged Martin had "admitted, in open court, his intention to obstruct [the] sale
of the [PJroperty," and evidence was introduced at the hearing of a series of willful, intentional acts taken
by Martin to interfere with the appellees' ability to sell the Property, includingthe filing of at least four
prior lis pendens that were cancelled and expunged by various courts. The evidence also included the
Perfected Notice of Lis Pendens filed by Martin in the underlying cause in response to which Bravenec
filed his motion for contempt alleging Martin had violated the trial court's temporary restraining order
..." Memorandum Opinion in Case No, -04-14-00483-CV, Id.
8
on on-going judicial proceedings at the time of their filing. The Fifth Circuit concluded that the
Rule 11 sanctions imposed by the federal district court constituted an abuse of discretion and
deprived due process as applied to punish the filing of lis pendens notices. Further, the Fifth
Circuit's evidentiary record on the second issue, concludes that "Bravenec did not comply with
[Rule 11 's] safe harbor provision" due to his reliance on a pleading that was itself imsupported,
substantiates the contrary inference that Bravenec's tortious interference case essentially
continues a course of action involving de facto abuses of process imder Rule 11 in the federal
district court. Memorandum Opinion in Case No. 14-50093, at p. 4 - 6.
DTND Sierra Investments, Id. affirms sanctions for meritless litigation in a fact situation
that directly parallels tactics that Bravenec used to the detriment of the Appellant and the estate
in 2006. The Fifth Circuit described the meritless litigation in DTND as follows:
DTND engaged in a scheme to delay foreclosures by petitioning for temporary
restraining orders in state court and dismissing those claims upon removal. DTND was
also party to four materially identical actions that were dismissed on the merits. This
shows that DTND had knowledge its claims were meritless but nevertheless filed to delay
foreclosure. The district court's findings that DTND's claims were meritless and intended
to harass or delay were reasonable and proper.
Id. atp. 5. Here, it isundisputed that Bravenec petitioned the 51^ District Court for a temporary
restraining order against first lien servicer Reliant Financial, Inc. in a state court trespass to try
title case. He foreclosed an inferior second lien on terms that hindered Appellant's interests both
as a purchase money creditor and as a beneficiary of an imdischarged attorney client relationship,
He then promptly dismissed the trespass to title claim upon securing a release of liability from
defendant Reliant Financial, Inc., before Appellant could intervene to prosecute requests for
reconsideration. Bravenec later participated in at least one materially similar pattern of conduct
in which this Court upheld sanctions in 2013. Bravenec v. Flores, Case No. 04-11-00444-CV
2013 WL 1149418 (Tex. App. - San Antonio 2013) (improper purpose). This pattern of events
shows that Bravenec knew or should have known before the end of 2013 that his litigation tactics
were improper. Nonetheless, he moved the federal district court to cite Appellant for criminal
contempt and incarceration. Upon failing to accomplish his improper purpose in that forum, he
then moved the Probate Court for expunction relief citing the outcome of a judgment the Fifth
Circuit has now vacated. Unlike the offending attorneys in DTND, Bravenec was Judicially
undischarged as an attorney of record in the probate case at all times until March 19,2014 and
this omission repeatedly disrupted the machinery of various curts by confounding the law of the
case that should have been applied to him. Thus, there is good cause to argue for plain error by
the federal district court under DTND Sierra Investments, Id.
Regarding legal excuse, Bravenec's testimony at the hearing in the 285*'' District Court
on July 9,2014 suggests that he does not comprehend that the law permits a third party to assert
a purchase money lien interest against the subject property of a purchase that the third party's
funding enabled. Vol 2 (Case No. 04-14-00483-CV) RR 51 (line 17) ("I don't know what this is,
sir."). This testimony flies in the face of the rule against impairment of contractual obligations:
It will not do for a man to enter into a contract, and, when called upon to respond to its
obligations, to say that he did not [ ] know what it contained. If this were permitted,
contracts would not be worth the paper on which they are written ... [He] must stand by
the words of his contract; and, if he will not [ ] he alone is responsible for his omission.
Upton V. TribilCOCk, 91 U.S. 45,50 (1875) (brackets added). Bravenec knew or should have
known that the controversy here is about competing rights to quiet title relief, and that a suit to
quiet title in intended to "enable the holder of the feeblest equity to remove from his way to legal
title any unlawful hindrance having the appearance of better right." Thomson v. Locke, 1
S.W.112,115 (Tex. 1886)). Appellant requests an abatement to supplement the probate court and
requests leave to amend pleadings to cite SAAF, Id., and other controlling authority on third party
purchase money liens in Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877).
10
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court grant relief
in all things, for such other relief both in law and in equity as he may be justly entitled.
Dated: October 14,2015 Respectfully Submitted,
Rowland J. Martin
951 Lombrano
San Antonio,Tx 78207
(210) 323-3849
CERTIFICATE OF SERVICE
1delivered a copy of this, "Appellant's Unopposed Motion To Sever And To Remand,"
to Attorney Elizabeth Conry Davidson via email do Bexar Appraisal District, 411 S. Frio, San
Antonio, Texas, 78204 on October 14,2015. ^
Dated: October 2015
Rowland J. Martin
951 Lombrano
San Antonio, Tx 78207
(210) 323-3849
CERTIFICATE OF CONFERENCE
1certify that 1conferred with Attomey Elizabeth Conry Davidson via email on or about
September 3,2015 about the substance of the abatement proposal in the foregoing motion and
she advised in her response that there is no opposition to the motion, nor is there opposition to
leave to amend.
Rowland J. Martin
11
APPENDIX
A. Martin v. Bravenec, et al. Case No. 14-50093,2015 WL 5752439 (5th Cir, October 2,
2015)
B. THIRD PARTY PURCHASE MONEY VENDOR'S LIEN
C. ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES
CODE
12
13
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United Stat^ Court ofAppeals Fifin Ctrcun
FILED
October 2, 2015
No. 14-50093
Summary Calendar '•y'®
Clerk
ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,
Plaintiff-Appellant
V.
EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND
BRAVENEC; 1216 WEST AVENUE, INCORPORATED,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDCNo. 5:11-CV-414
Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Rowland J. Martin, Jr., proceeding pro se, appeals orders of the district
court awarding attorney's fees to Edward Bravenec, the Law Office of
McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R.
Civ. p. 11, and striking his pleadings opposing an award of fees.^
* Pursuant to 5TH CiR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CiR. R. 47.5.4.
' Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West
Avenue, Incorporated will be referred to collectively as Bravenec.
No. 14-50093
In 2010, Martin filed a pro se complaint against Bravenec and other
entities alleging multiple causes of action predicated upon a foreclosure
dispute. Bravenec filed a motion for summary judgment that included a
request for sanctions. The district court granted summary judgment to
Bravenec but declined to impose the sanctions requested because Bravenec
failed to comply with the procedural requirements of FED. R. CiV. P. 11(c)(2).
However, the district court sua sponte ordered Martin to show cause why
financial sanctions should not be imposed. Believing that Martin failed to
comply with the show cause order, the district court entered anorder directing
the clerk of court not to accept additional motions or complaints from Martin
without the court's permission. On appeal, we affirmed the entry ofsummary
judgment but did not address the issue of sanctions, as it was not before the
court. See Martin v. Grehn, 546 F. App'x 415 (5th Cir. 2013).
After this Court's opinion issued, Bravenec moved the district court to
expunge a lis pendens lien Martin filed that alleged thatthe disputed property
was subject to ongoing litigation in federal court. The district court granted
the motion, and the lien was expunged. Because this Court had not issued the
mandate in Martin's appeal, he filed a new lis pendens Hen asserting anew
that the disputed property was subject to ongoing litigation in federal court,
which lead Bravenec to file a motion for sanctions under FED. R. CiV. P. 11 and
TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of
confinement or, alternatively, award attorney's fees in the amount of $10,000.
Without holding a hearing or ordering a response from Martin, the district
court entered an order on December 5, 2013, denying the request for
confinement and granting the request for attorney's fees. The district court
concluded that it was appropriate to award Bravenec attorney's fees because
the district court previously found thatMartin violated FED. R. CiV. P. 11(b)(1),
No. 14-50093
(2) and Martin failed to respond to the district coxirt's show cause order.
However, rather than grant Bravenec $10,000 as requested, the district court
ordered Bravenec to file a supplemental motion setting forth the fees actually
incurred during the litigation. Upon receipt of Bravenec s supplemental
motion, the district court determined that Bravenec incurred $7,710 in fees
and entered an order on December 27, 2014, awarding that amount to
Bravenec. Martin attempted to object to the original and supplemental
motions for attorney's fees on two separate occasions. However, the first set of
pleadings was entered on the docket after the district court's December 5, 2013,
order issued, and the district court ordered the second set ofpleadings stricken
on December 30, 2013, on the grounds that the pleadings violated the no filing
sanction previously imposed.
On January 27, 2014, Martin noticed his intention to appeal the district
court's orders granting attorney's fees, affixing the amount of fees to be
awarded, and striking his objections. Martin makes two arguments on appeal.
First, the district court plainly erred in not exercising supplemental
jurisdiction under Sampliner v. Motion Picture Patents Co., 255 F. 242 (2d Cir.
1918), rev'd on other grounds, 254 U.S. 233 (1920), and applying Texas law to
adjudicate his claims against Bravenec. Second, the district court abused its
discretion in awarding Bravenec attorney's fees under Rule 11.
This Court exercises jurisdiction under 28 U.S.C. §1291, which provides
for an appeal from final orders ofthe district court. See Southern Travel Club,
Inc. V. Carnival Air Lines, Inc., 986 F.2d 125, 130-32 (5th Cir. 1993). The
district court's order awarding attorney's fees under Rule 11 is not final until
the amount to be awarded is determined. Id. at 131. In this case, the order
affixing attorney's fees entered on December 27, 2013, and Martin timely filed
No. 14-50093
his notice of appeal on Monday, January 27, 2014. See FED. R. APP. P.
4(a)(1)(A).
With respect to the first issue, Martin appears to challenge the district
court's entry of summary judgment against Bravenec on the ground that
summary judgment would have been improper if the district court correctly
exercised supplemental jurisdiction and applied Texas law to the adjudication
ofhis claims. However, this Court previously affirmed the district court's grant
of summary judgment, and Martin does not explain why he did not or could
not raise the arguments asserted now in his earlier appeal of the judgment.
Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 393
F.3d 599, 607-08 (5th Cir. 2004) (reiterating that a party cannot raise anissue
on appeal that could have been raised in an earlier appeal in the same case).
To the extent that this claim was raised below, it was properly denied.
Turning to the second issue, the district court may sanction a party,
including a pro se litigant, under Rule 11 if it finds that the litigant filed a
pleading for an improper purpose or that the pleading was frivolous. See FED.
R. Crv. P. 11(b) &(c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon aparty's motion ifthe motion is "made
separately from any other motion," the motion describes the specific conduct
that allegedly violates Rule 11(b), and the motion is served on the party to be
sanctioned 21 days before it is filed in district court. See Marlin v. Moody
National Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing FED. R. CiV.
P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show
cause why conduct specifically described in the order has not violated Rule
11(b). See id. (citing FED. R. CiV. P. 11(c)(3)). Although the district court need
not hold a hearing, it must provide the litigant notice ofthe proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.
No. 14-50093
See Merriman v. Sec. Ins. Co. of Hartford, 100 F.Sd 1187, 1191-92 (5th Cir.
1996). The court reviews an award of sanctions under Rule 11 for abuse of
discretion. See Marlin, 533 F.3d at 377. A district court "necessarily abuses
its discretion in imposing sanctions ifit bases its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence." Elliott v. Tilton,
64 F.3d 213, 215 (5th Cir. 1995).
In this case, the district court award of attorney's fees fails to comport
with the requirements of Rule 11 and denied Martin due process. First, the
district court erroneously found that Martin did not respond to its show cause
order from 2012. Infact, Martin did respond, albeit inarticulately, on January
11, 2013, and January 14, 2013. Next, the district court appears to have
granted Bravenec's motion for attorney's fees without considering Martin's
objections and motions for reconsideration. The district court soriginal order
granting the motion entered on the docket prior to Martin's objections and fails
to acknowledge the objections. Likewise, the final order assessing the amount
to be paid also fails to reference Martin's December 5, 2013, pleadings and was
entered before Martin's December 27, 2013, objections and motion for
reconsideration, which the district court ordered stricken.
Although the district court may properly enjoin vexatious litigation and
sanction the same, it may not exercise its authority in a manner that deprives
alitigant of his constitutional rights. See Qureshi v. United States, 600 F.3d
523, 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when
it struck Martin's objections. Notably. Martin withdrew the lis pendens lien of
which Bravenec complained upon receiving Bravenec's motion for sanctions
and filed a subsequent lis pendens lien that referenced only state court
litigation. That is the purpose ofthe 21-day "safe harbor" provision: to provide
alitigant the opportunity to withdraw challenged pleadings and thereby avoid
No. 14-50093
sanctions. See In re Pratt, 524 F.Sd 580, 586-87 (5th Cir. 2008). Finally,
Bravenec suggested below that the district court's December 2012 show cause
order satisfied the "safe harbor" provision but cited no authority to support
that assertion, and this court has strictly construed the requirements of FED.
R. CIV. P. 11(c)(2). See, e.g., Pratt, 524 F.Sdat 586-87; Marlin, 533 F.3d at 378-
79; Brunig v. Clark, 560 F.3d 292, 298 n.20 (5th Cir. 2009). Because Bravenec
did not comply with the safe harbor provision, the district court is deemed to
have awarded the attorney's fees on its own motion, which is improper under
Rule 11. SeeMarlin, 533 F.3d at 379; Brunig, 560 F.3d at 298. As this Court
explained inMarlin, sanctions awarded on the court's initiative under Rule 11
"are limited to nonmonetary sanctions or a monetary penalty paid to the court.
See 533 F.3d at 379.
AFFIRMED in part, VACATED in. part, and REMANDED. Martin's
motion to strike Bravenec's brief is DENIED. Martins other motions are
DENIED AS MOOT.
B
14
P12-20150198558-3
o
lU
THIRD PARTY PURCHASE MONEY VENDOR'S UEN
LIEN TRANSACTION DATE: October 31,2003 (Deed Records Volume10406, Pages 1601 and 1606).
<
c
SUBJECT PROPERTY: 1216 West Ave., City San Antonio and County of Bexar, Texas
CO
GRANTOR: Moroco Ventures, LLC.
GRANTEE AND OWNER: Rowland J. Martin, Jr.
THIRD PARTY BENEFICIARIES
AND INDEMNITEES: Estate of Johnnie Mae King, Probate Case No. 2001-PC-1263 and
Nicolas Williams.
MAIUNG ADDRESS: 951 Lombrano
San Antonio, Texas 78207
PURPOSE OFTHE RECORDING: This re-recording of the lien interest created on October 31,2003
memorializesthe property interests that vested in the Owner on that
date for ease of reference in on-going judicial proceedings. It is
expressly disclaimed that the lien was first created on October 14,2015.
CONSIDERATION: The lien re-recorded herein is claimed against the grantor, Moroco
Ventures, LLC, and all those claiming underthe grants recorded a^ the (First) Deed of Trust to Roy
Ramspeck and Annette G. Hanson, and asthe (Second) Deed OfTrust toAlbert Mcknight and Edward
Bravenec. The lien constitutes consideration for a payment in the amount of $135,000, which was
made bythe Owner,in his individual capacity, to Roy Ramspeck and Annette G. Hanson as a credit to
enable the grantor and debtor entity, Moroco Ventures, LLC, to acquirethe subject property for a
purchase priceof $284,500. The lien is referenced in the WarrantyDeedwith Vendor'sLien recorded in
Volume 10406 Page1601 as "other valuableconsideration," and isfurther referenced in the (First) Deed
OfTrust recorded in Volume 10406 Page 1606, in the section on "Other exceptions to Conveyancesand
Warranty," bywayof expresswords of reservation statingthat the conveyance issubjectto "other than
liens and conveyances,"and in paragraph 14 of "General Provisions," where it is expresslystated that
"The creation of a subordinate lien... will not entitle Beneficiary to exercise the remedies provided" for
the acceleration of the note. Consideration was given by Albert McKnight and Edward Bravenec, during
an attorney client relationship in Probate CaseNo. 2001-PC-1263, inthe SecondDeedOfTrustgranted
by Moroco Ventures, LLC in Document #20050099395 on May5,2005, by wayof "PriorLien"
reservations, and by wayof the stipulationin paragraph 4 of the "General Provisions," with limitations
on the second lien stating that "This lien shall remain superior to liens created later[]."
PROPERTY DESCRIPTION: The property commonly known as 1216 West Ave, in San Antonio,
Texas, is legally described as "Lots 1,2, and 3, Block 50, new City Block
8806, LOS ANGELES HEIGHTS," and as further described in the
attachment to this record.
Book 17508 Page 1659 3pgs
RETROACTIVE RESERVATIONS AND EXCEPTIONS TO CONVEYANCES AND WARRANTIES:
1. Until further notice, the lien Interest herein re-recorded Issubject to the Indemnification
obligations set forth In the Helrship Settlement Agreement In Probate Case No. 2001-PC-1263. ItIs
declared that anyand all Interests In title claimed underthe second deed of trust granted to Albert
McKnight and Edward Bravenec are subject to the priority assigned by law to the vendors' lien herein
recorded. The latter Is made executory and Inferior In relation to the purchase money lien byvirtue of
contractual exceptions to the conveyance In the first deed oftrust, to wit: "all rights, obligations, and
other mattersemanating from and existing by reason of the... operation of anygovernmental district,
agency or authority," Bexar County Deed Records, Vol. 10406 Page 1607. By virtue of express
provisions that subject the second deedoftrustto the first deedoftrust,Owner claims equitable title
under DTNDSierra Investments v. HSBD Bank U.SA., Case No. 14-51142 (S"* CIr., 2015), a courtdecision
which by operation oflaw renders the interests acquired by Albert McKnight and Edward Bravenec by
foreclosure on October 3,2006 executoryand Inferior Inrelationto the Hen herein re-recorded.
2. It is declared that deed transfers from Albert McKnight and Edward Bravenecto assignees and
successorsIn interest, including 1216 West Ave., Inc., Edward Bravenec, and Torralba Properties, Inc.,
aresubject to the notice oflls pendens, and future amendments thereto ifany, which was referenced
In the decision of the Texas Fourth DistrictCourt OfAppealsIn Martin v.Bravenec, et al. Case No.04-14-
00483-CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June8,2015).
-3 - -The owner disclaims liability for-the recording of notices of lls pendens underauthority of the—
decision ofthe U.S. Courtof Appeals for the Fifth Circuit In Martin v. Bravenec, et ai, Case No. 14-50093
(5*" CIr., judgment filed October 2,2015), wherein the court vacated the orderofthe U.S. District Court
InCase No. SA ll-CV-0414 dated December 27,2013, on abuse of discretion and due process grounds.
4. The Owner received a leasehold Interest Inthe subject property in lieu of monetary
considerationwhichwas recorded in the recordsof the Bexar County Appraisal District as a homestead.
Dated: October 14,2015
Rowland J. Mar
Individually and As Administrator For
The Estate of Johnnie Mae King
STATEOFTEXAS )
COUNTYOF BEXAR )
This Instrument was acknowledged before meon the 14"* day of October 2015, by Rowland J.
Martin In his capacity as a third party purchase money Hen creditorof the limited liability company
known as Moroco Ventures, LLC, whose charter Is presently inactive.
-it CHARIC*E lANAE GltNEWt^lAtl.
Nototy Public. Stote oi j Notary PublK, St of Texas
s.- .^5 My Commission E«p'ie- i
June 02. 20W
EXMiniT "A"
The land referred to In this policy is described as follows:
Lots 1, 2 and 3, Block SO, New Qty Block 8806, LOS ANGELES HEIGHTS ADomON, situated
In the Qty of San Antonio, Bexar County, Texas, according to plat ttiereof recorded in
Volume ISO, Pages 284-286, of the Oe^ and Plat Record of BexarCounty, Texas, SAVE
AND EXCEPT there from a tract of land containing 0.00049 of an acre, being 21S1 square
feet, nnore or less, same being out of Lot 1, said tract conveyed to the Oty of San Antonio
by deed dated October 10, 1991 recorded in Volume 5180, Page 1873, Real Property
Records of Bexar County, Texas, tieing more particularly described by metes and bounds as
follows:
BEGINNING at an Iron rod found at the northwest comer of the said Lot 1, said point 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 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 tiears 90° southerly from said line of
West Olmos;
THENCE along the arc of said curve 15.72 feet to an Iron rod set on the east line of West
Avenue at the Point of Tangency of said curve;
THENCE N 00° OS' 00" E along the east line of West Avenue 10.01 feet to the POINTOF
BEGINNING, containing 0.00049 acres (21.51 square feet).
A-''j pfcv.'sljriiijrsjn,!,,;/.
Jfupfrh tecjiiss since is iriyiVj."^',. " "j/" ihnriMnsi
S.ATE 05 rcxiS, CeONIY Of KXAS •' "iliffstesi fav
vais a, [fig sfsmnr4 h/'-ft k - J
OCT 11 2015
cown-c. frk bexar county^exas
925?-?Si?2^9®558 Fees: $34.00
14/2015 4:4SPn ti Pages 3
ft,iff
P"Pl*c&Records
Recordedof in BEXRR
the Official
COUNTY
GERPRO C. RICKHOFF COUNTY CLERK
15
2015 OCT lU P
r"-
ij'" • pfiuRTS
Cause No. 2001-PC-1263 ccA.'"^- •
^•••*•
'vry i^AS
IN THE MATTER OF THE ESTATE OF ) IN THE PROBATE CStmT " " "
JOHNNIE MAE KING ) NUMBER ONE
) FOR BEXAR COUNTY, TEXAS
ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE
LIEN RECORDING DATE: October 14,2014
SUBJECT PROPERTY: 951 Lombrano, City San Antonio and County ofBexar, Texas
GRANTOR: Estateof Johnnie Mae King
GRANTEE: Rowiand J. Martin, Jr., Independent Administrator for the Estate of
Johnnie Mae King
MAIUNG ADDRESS: 951 Lombrano
. San Antonio, Texas 78207
PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial
proceedings tothe Class 2lien that is hereby declared pursuant to
Estates Code Section 355.066(b), in consideration for(1) services
rendered and in satisfaction ofrelated expenses incurred during the _
decedent's last illness in the approximate amount of$12,000, (2) for the
unspecified value of services rendered to correct clouds on title to real
property of the estate due to coram non Judice tax suit litigation that
w/as vacated by the ISO*** District Court and the224 District Court in
2013; and (3) for theexpenditure ofin kind resources from theGrantees
individual estatein theamount of$135,000 during the attorney client
relationship with the Law Office of McKnight and Bravenec.
CONSIDERATION: The Administrator warrants, particularly in relation to the Bexar County
Tax Authorities' tax suit litigation in the 150'" District Court in Case No. 2014-TA1-00224, that he is a
bona fide creditor of the decedent; that he faithfully rendered services for the benefit of the decedent
during her last illness through the formation and administration ofthe Johnnie Mae KingTrust; that he
incurred expenses for the benefit of the decedent during the last illness after the assets ofthe trust
were assigned by mutual agreement to Opal Gilliam, through her husband Calvin Gilliam, as part of an
heirship settlement; that he sustained losses to his personal estate as abenefactor of unperformed legal
services promised by former attorneys of record, Albert McKnight and Edward Bravenec. who appeared
through Law Office of McKnight and Bravenec in 2005. By virtue ofthe latter expenses. Grantee qualifies
as acreditor and lien holder of the highest priority under Estates Code Section 355.066(b), separate and
apart from future interests arising under the Heirship Settlement Agreement executed in 2008.
PROPERTY DESCRIPTION: The property commonly known as 951 Lombrano, in San Antonio, Texas,
is legally described as "NCB 2095 BLK 20 LOT 35 EFT OF 14 &SW TRI OF
15".
EXCEPTIONS TO CONVEYANCES AND WARRANTIES:
1. The lien is recorded by the power vested In Grantee by the Probate Court asan Independent
Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit In
the amountof $147,000 and judicial review by courts with probatejurisdiction indue course.
2. Out of an abundance of caution to enable satisfaction of contingent liabilities againstthe Estate
ofKing, Grantee has made a concurrent assignment oflien interests toimplement the indemnification
obligations setforth in the Heirship Settlement /^reement filed in Probate Case No. 2001-PC-1263. In
orderto honor and comply with Heirship Agreement indemnification obligations owed to the successors
in interest ofthe late Opal Gilliam, beloved daughter ofJohnnie Mae King, itis declared thatthe Estate
ofJohnnie Mae King is a beneficiary ofthethird party purchase money lien claim recorded on October
14,2015 by Rowland J. Martin in his individual capacity against the property commonly known as1216
West, in San Antonio, Texas, and which was originally recorded in Bexar County Deed Records Volume
10406, Pages 1601 and 1606. By the latter declaration, the Estate ofJohnnie Mae King Is also made a
beneficiary ofthe express contractual exceptions tothe conveyance in the first deed oftrust granted by
Moroco Ventures, LLC onOctober 31,2003 which extends to "all rights, obligations, and othermatters
emanating from and existing by reason ofthe... operation ofany governmental district, agency or
authority," Bexar County Deed Records, Vol. 10406 Page1607.
3. In accordance with contractual exceptions forgovernmental matters. Grantee expressly
-disclaims liability for the recording ofliens and notices ofjis.pendens against theproperty known as
1216 West Ave. inSan Antonio, Texas, and asserts that the exceptions recorded herein supersede the Us
pendens expunction order which was entered by the Probate Court on March 19,2014, and which was
further referenced inthe decision of the Texas 4*^ District Court OfAppeais inMartin v. Brovenec, et al.
Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June 8,2015).
3. Grantee also disclaims iiabiiity forthe recording of liens and notices of lis pendens under
authority ofthedecision ofthe U.S. Court ofAppeais for theFifth Circuit in Martin v. Bravenec, et al.
Case No. 14-50093 (5*^ Cir., judgment filed October 2,2015), wherein thecourt vacated theorder ofthe
U.S. District Court in Case No. SA ll-CV-0414 dated December 27,2013.
Dated: October 14,2015
Rowland J. MartiT
As Administrator For
The Estate of Johnnie Mae King
STATE OFTEXAS )
COUNTY OF BEXAR )
This instrument was acknowledged before me onthe 14"* day ofOctober 2015, by Rowland J.
Martinin hiscapacity as Administrator for the Estateof Johnnie Mae King.
CHARLCYE lANAE GlENEWlNKEl Notary Public. Si
Notoiv Public, stole of Texas
Mv CommissionExpiies
J"®