in Re Rowland J. Martin

FILED
15-0541
11/3/2015 11:51:32 PM
tex-7670900
SUPREME COURT OF TEXAS
15-0849
Case No. ___________
BLAKE A. HAWTHORNE, CLERK
______________________________________________________________________________
IN THE SUPREME COURT OF TEXAS
In re ROWLAND J. MARTIN,
Relator In His Individual Capacities As Heir and Creditor
Of The Estate Of Johnnie Mae King
_____________________________________________________________________________
PETITION FOR WRITS OF MANDAMUS AND INJUNCTION
_____________________________________________________________________________
On Petition For Extraordinary Writ Relief from the Fourth District Court of Appeals,
San Antonio, Texas in Case No. 04-14-00483-CV and Case No. 04-15-00271-CV
_____________________________________________________________________________
Submitted By:
Rowland J. Martin
IDENTITY OF THE INTERESTED PARTIES
1. Petitioner: Rowland J. Martin
In His Individual Capacities As Heir,
Administrator and Class 2 Lienholder of The
Estate Of King
Represented by: Pro se
2. Respondents
a. Texas Fourth District Court of Appeals,
Bexar County, Texas
b. The Bexar Appraisal Review Board and The
Bexar Appraisal District
Represented By: Elizabeth Conry Davidson, Esq.
926 Chulie Drive
San Antonio, TX 78216
c. The County Of Bexar
Represented By: Don Stecker, Esq.
Linebarger, Goggan, Blair And Sampson
711 Navarro, Suite 300
San Antonio, Texas
3. Real Parties:
a. Edward Bravenec, 1216 West Ave., Inc.,
and The Law Office of McKnight and
Bravenec
Represented by: Glenn Deadman, Esq.
509 S. Main Street
San Antonio, Texas, 78204
b. Linebarger, Goggan, Blair And Sampson
Represented by: Don Stecker, Esq.
Linebarger, Goggan, Blair And Sampson
711 Navarro, Suite 300
San Antonio, Texas
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES…………………………………………….…i
TABLE OF CONTENTS…………………………………………………………………….…ii
TABLE OF AUTHORITIES…………………………………………………………………..iii
STATEMENT OF THE CASE…………………………………………………………….…..vi
STATEMENT OF JURISDICTION………………………………………………………….vii
ISSUES PRESENTED………………………………………………………………………...viii
STATEMENT OF THE FACTS…………………………………………………………….….1
A. The Interrelationship Of The Anti-SLAPP And Estates Code Appeals……………...1
B. The Tax Suits Against The Heirs………………………………………………………..1
C. The Probate Court Lis Pendens Expunction …………...………………...……………3
D. The District Court Anti-SLAPP Dismissal Proceeding………………………………..4
ARGUMENT AND AUTHORITIES…………………………………………….…………….5
A. The Standard Of Review For Mandamus Relief………………………………………5
B. The Points Of Error……………………………………………………………………..6
1. The Court of Appeals Abused Its Discretion In The Anti-SLAPP Appeal
By Presuming That The Probate Court Expunction Order Was Valid As
Applied To Relator’s Purchase Money Lien Interest………………………….6
2. The Court Of Appeals Abused Its Discretion In The Anti-SLAPP Appeal By
Stigmatizing Relator With A Misapplication Of The Vexatious Litigant
Statute For The Purpose Of Restraining His Future Speech………………...8
3. The Court Of Appeals Abused Its Discretion In The Estates Code Appeal
By Carrying Issues Over Which This Court Has Dominant Jurisdiction…..11
4. The Bexar County Tax Authorities Abused Their Discretion With Collection
Practices That Departed From The Definition Of Real Property That Was
Judicially Approved In San Antonio Area Foundation...................................13
PRAYER FOR RELIEF………………………………………………………………………14
APPENDIX
ii
TABLE OF AUTHORITIES
Cases:
Akinwamide v. Transportation Insurance, Co., 147 S.W.3d 623 (Tex. App. - 14th
Dist. 2006)………………………………………………………………………………………..10
Archer v. Griffith, 390 S.W. 735 (Tex. 1965)……………………………………………………..8
Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009
Tex. App. LEXIS 1707 (Tex. App. - Corpus Christi, 2009, pet. den’d)………………………….8
Birdo v. Holbrook, 775 S.W.2d 411, 412B13 (Tex. App. Fort Worth 1989,
writ denied)………………………………………………………………………………………10
Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597, 600 (Tex. App.
-San Antonio 1996, writ denied) ……………………………………………………………….5, 9
DaimlerChrysler Corporation v. Inman, 252 S.W.3d 299 (Tex. 2008)………………………….7
Diaz v. Commission For Lawyer Discipline, 953 S.W.3d 435 (Tex. App.-
Austin, 1997)……………………………………………………………………………………..13
Estate of Johnnie Mae King, Case No. 04-15-00271-CV (Tex. App. - San Antonio)……………1
Ex Parte Shaffer, 649 S.W.2d 300 (Tex. 1983)……………………………………………1, 8, 12
Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877)……………………………………..7
Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam)………………………….5,6
San Antonio Area Foundation v. Lang, 2000 WL 1675984 (Tex. 2000)………………. 1, 5, 8, 13
Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.,
Case No. 13-1371, ___ S.Ct. ___ 2015 WL 2473449 (June 25, 2015)……………………………
In re Allstate County Mutual Insurance Company, 2014 WL 5285850 (Tex. App.
—Houston [1st Dist.] Oct. 16, 2014)…………………………………………………………....12
In re Baylor Medical Center at Garland, 280 S.W.3d 227 (Tex. 2008)………………………….6
In re Cohen, 340 S.W.3d 889, 900 (Tex.App.-Houston [1st Dist.] 2011,
orig. proceeding)…………………………………………………………………………………..6
In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204 (Tex. 2009)………………….13
iii
In re Mousa, No. 01–04–00485–CV, 2004 WL 2823172, at *2 (Tex.App.-
Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem.op.)…………………………………..6
In re IH 10 Colony, Case No. 01-14-00775-CV, 2014 WL 7914874 (Tex. App. –
Houston, 2014)………………………………………………………………………………….6,9
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)……………...11
In re Schmidt, 285 S.W.3d 451(Tex. 2009)…………………………………………………...5,6,8
In re SWEPI, LP, 85 S.W.3d 800, 808–09 (Tex. 2002) (orig. proceeding)……………………….6
In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)…….…6
James v. Brown, 637 S.W.2d 914, 916 (Tex.1982)……………………………………………...10
James, et al, v. Calkins, 446 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2014)……………...10
Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931, 934 (Tex.Comm'n
App. 1935, opinion adopted by Sup.Ct.)………………………………………………………….7
Kennedy v. Eden, 837 S.W.2d 98, 98–99 (Tex. 1992) (orig. proceeding) (per curiam)…………..9
Kinney v. BCG Attorney Search, Inc., 443 S.W.3d 87, 98 (Tex., 2014)………………………...10
Larry York v. State, 373 S.W.3d 32 (2012) ..………………………………….………………..11
Long Beach Mortgage Company v. Evans, 284 S.W.3d 406 (Tex.App.-Dallas 2009,
cert denied)…………………………………………………………………………………….….8
Martin v. Bravenec, et al, Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.
- San Antonio, rehearing denied June 8, 2015)…………………………………………………...1
Mart. v. Bravenec, et al, Case No. 14-50093, 2015 WL 5752439 (5th Cir, October
2, 2015)……………………………………………………………………………………………1
National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61-62 (Tex.1993)…...vii
Nwangwu v. Dinkins, No. 14–97–01100–CV, 1997 WL 688943, at *1 (Tex.App.-
Houston [14th Dist.] Nov. 6, 1997, orig. proceeding)…………………………………………….6
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942)…………………………... 9
San Antonio Area Foundation v. Lang, 2000 WL 1675984 (Tex. 2000)……………....1, 8, 13, 14
Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App. – Houston, 2014)………………………...10
iv
Sikes v. Global Marine, 881 F.2d 176 (5th Cir. 1989)…………………………………………..11
Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App. -San Antonio 2000, no pet.)………………...10
Thomas v. Miller, 906 S.W.2d 260 (Tex. App. – Texarkana 1995) …………………………… 11
Univ. of Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961) ……………………………………..10
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000)………………………...12
Statutes
Estates Code Section 1002.027………………………………………………………………….13
Estates Code Section 32.001(c)………………………………………………………………….vii
Tex. Civ. Prac. & Rem Code Section 37.005…………………………………………………….8
Tex. Civ. Prac. & Rem. Code Ann. Section 11.051 (Vernon 2006)……………………………...9
TEX. CIV. REM & PRAC. CODE Section 27.008……………………………………………..vii
TEX. GOV’T CODE § 22.002(a)……………………………………………………………….vii
Tex. Probate Code § 58(c) (Vernon Supp. 1999)……………………………………………….13
Tex. R. Civ. Pro. 301……………………………………………………………………………..7
28 U.S.C. 1927……………………………………………………………………………5, 13, 14
v
STATEMENT OF THE CASE
Nature of the Case: By this mandamus proceeding, Relator seeks to preserve the opportunity
to be heard on rehearing in this Court. The Court of Appeals has asserted
jurisdiction in Case No. 04-15-00271-CV, an Estates Code appeal
asserting that the Probate Court has jurisdiction to correct clouds on title to
real property of the Estate of Johnnie Mae, in a manner that is inherently
interrelated to Case No. 15-5041, an appeal from an appellate judgment
denying anti-SLAPP dismissal relief in Case No. 045-14-00483-CV. The
interrelationship between the cases arises in law because the Estates Code
appeal constitutes an aspect of suit in suit litigation for the Bravenec
controversy, and ion fact because the Bexar County tax authorities’
clouding of title to real property of the Estate of Johnnie Mae King during
the entire course of the probate court appearances by the Law Office of
McKnight and Bravenec, from 2003 to 2005, through nonjusticiable tax
suits against the heirs of the estate that McKnight and Bravenec failed to
contest. In one case, the tax authorities claimed to have authority to collect
taxes against demolished improvements. Relator secured orders to vacate
the judgments but the uncorrected accounts still cloud estate property.
The Respondents: The Fourth District Court of Appeals, Bexar County, Texas; the Bexar
Appraisal Review Board; and the Honorable Carlos Uresti, Tax Assessor-
Collector for Bexar County, Texas.
Course of Proceedings
And The Respondents’
Challenged Actions: Mandamus relief is needed to protect Relator from undue vexatious
litigant treatment arising from a part of the Court of Appeals’ judgment in
Case No. 04-14-00483-CV that was not appealed in Case No. 15-0541,
and from two recent orders in his Estates Code appeal in Case 04-15-
00271-CV. On October 2, 2015, the Fifth Circuit vacated the legal
rationale for a federal court sanctions order which had previously formed
the basis for state court vexatious litigant treatment upheld by the Fourth
Court of Appeals. On October 20, 2015 and October 22, 2015, the Fourth
Court of Appeals declined to abate Relator’s suit in a suit issue in the
Estate Code appeal implicating the Fifth Circuit’s decision, but at the
appellees’ request designated their vexatious litigant issue from Case No.
04-14-00483-CV for review as part of the same appeal. On October 26,
2015 and October 28, 2015, respectively, this Court and the U.S. Court of
Appeals, accepted Relator’s motions for rehearing. Because the rehearing
process deprives the Court of Appeals of jurisdiction over interrelated
matters, mandamus lies to correct the Court of Appeals’ past and present
errors relating to vexatious litigant treatment, and also to correct the tax
authorities’ continuing attempts to enforce their past exertions of tax
power against the estate’s non-taxable property interests.
vii
STATEMENT OF JURISDICTION
This Court has original jurisdiction to issue the requested writ of mandamus and writ of
injunction against the Respondents under TEX. GOV’T CODE § 22.002(a) (writ authority
extends to “any officer of state government except the governor, the court of criminal appeals, or
a judge of the court of criminal appeals”) and Estates Code Section 32.001(c). Although
mandamus jurisdiction is not dependent on appellate jurisdiction, see, e.g., National Union Fire
Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61-62 (Tex.1993) (conditionally granting
mandamus to compel court of appeals to allow filing of statement of facts), the Court’s writ
jurisdiction is enlarged in this particular case by provisions of the Texas Citizens Participation
Act (TCPA) which grant the courts of appeals writ jurisdiction to effectuate the anti-SLAPP
purposes of that act. TEX. CIV. REM & PRAC. CODE Section 27.008. The Court of Appeals
previously denied writ relief from the gag order in Case No. 04-14-0841-CV based on an
analogous petition in the TCPA appeal in Case No. 04-14-00483-CV, and has spoken at least
four different times on the matter of vexatious litigant treatment of which Relator complains –
once by entering judgment for the Bravenec parties in Case No. 04-14000483-CV, twice by
declining to exercise writ jurisdiction in Case No. 04-14-00841-CV, and now once in Case No.
04-15-00271-CV even after the Fifth Circuit’s recent change of position. Each time the Court of
Appeals maintained the status quo ante. Because the matter of vexatious litigant status now lies
within the dominant jurisdiction of this Court, serious harm to the judicial process and the
capacity of this Court to grant effective relief could arise, absent prompt relief from exceptional
circumstances for hich no adequate remedy at law is or will be available by a regular appeal.
viii
ISSUES PRESENTED
1. Whether the Court of Appeals abused its discretion in Case No. 04-14-00483-CV by
presuming the validity of the expunction order issued by the Bexar County Probate Court
#1 on March 19, 2014?
2. Whether the Court of Appeals abused its discretion in Case 04-14-00483-CV by
affirming the temporary injunction order granted orally by the 28th District Court of
Appeals on July 9, 2014 and in writing on July 17, 2014?
3. Whether the Court of Appeals abused its discretion in Case 04-15-00271-CV by carrying
with the appeal issues within the dominant jurisdiction of the Texas Supreme Court?
4. Whether the Bexar County tax authorities created an improper cloud on title within the
remedial jurisdiction of the probate court to correct by exerting ad valorem tax powers
against non-taxable property interests in violation of the judicially-approved statutory
definition of real property in San Antonio Area Foundation v. Lang?
ix
STATEMENT OF THE FACTS
A. The Interrelationship Of The Anti-SLAPP And Estates Code Appeals
Relator seeks extraordinary relief to enforce due process rights in his Anti-SLAPP appeal
in this Court and in his Estates Codes appeal in the Fourth Court of Appeals. The Court’s ability
to grant effective relief in Case No. 15-0541 is impaired by past proceedings of the court of
Apppeals in Martin v. Bravenec, et al, Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.
- San Antonio, rehearing denied June 8, 2015) (“Martin v. Bravenec I”), by recent appellate
orders in Estate of Johnnie Mae King, Case No. 04-15-00271-CV (Tex. App. - San Antonio) on
October 20 and 22, 2015, and by unnoticed proceedings in the Probate Court on July 30, 2014
after the filing of the final notice of appeal on July 27, 2015. On October 2, 2015, the Fifth
Circuit issued a decision to vacate sanctions and is rehearing Martin v. Bravenec, et al, Case No.
14-50093, 2015 WL 5752439 (5th Cir, October 2, 2015). Exhibit A-1. In view of the latter
change in the law of the case, the judicial process is well served by intervention on due process
grounds in the Court of Appeals and the Probate Court. Ex Parte Shaffer, 649 S.W.2d 300 (Tex.
1983) (attached as Exhibit A), and San Antonio Area Foundation v. Lang, 2000 WL 1675984
(Tex. 2000).
B. The Tax Suits Against The Heirs
The operative facts regarding the tax suits against the heir are a matter of record in Case
No. 15-0541 and Case No. 04-15-00271-CV. Tex. R. App. P. 52.7(a)(1). Relator is the surviving
heir and a creditor of the Estate of Johnnie Mae King and is the owner of a purchase money lien
attached to real property known as 1216 West Ave., in San Antonio, Texas, as shown in Exhibits
A-6 to A-8. Real party Edward Bravenec portrays himself as the foreclosing party in an arms-
length second lien transaction, but he and his firm were Relator’s attorneys of record in Probate
1
Case 2001-PC-1263 in his capacity as Estate Administrator. His firm retained unearned
compensation after abandoning the representation without challenging tax suits that clouded real
property of the estate. As a result, Relator was personally compelled to defend the litigation
Bravenec and his firm abandoned. Exhibit A-16.
From 2003 to 2005, while the Law Office of McKnight and Bravenec represented the
Relator and the Estate of King, Bexar County maintained ad valorem tax litigation against the
heirs of the Estate Case No. 2004-TA1-02802 in which it purported to assert claims against the
late Opal Gilliam and Rowland Martin based on their ownership of unliquidated heirship
interests in the estate. From 2006 to 2009, following McKnight and Bravenec’s abandonment of
the case in 2005 and following the demolition of improvements to one of estate’s real properties
in 2006, the private tax collector for the County continued the County’s litigation with
representations to the 224th District Court in Case No. 2004-TA1-02802 that the County had the
right to appraise, assess, and collect ad valorem taxes on improvements which had been
demolished by the City of San Antonio in 2006 and which were known to be nonexistent. See
Exhibits A-11 to A-14, C-9 and C-10.
On October 23, 2009, after the heirs reached a settlement agreement in Exhibit A-15
which assigned to Relator the sole heirship rights to the estate’s real property, and after demands
by Relator to the remove account errors clouding the estate’s title to its property, the Chair of the
Appraisal Review Board for Bexar County, Texas issued a finding which states: “The Board
determined that the appraisal records are correct as to the errors alleged in the protest and
therefore ordered that the protest be denied and the applicable records not be changed as
requested in the protest.” See, Bexar Appraisal Review Board Notice Of Orders, dated October
23, 2009. The County’s private attorneys then proceeded to secure a default judgment against the
2
heirs in Case No. 2004-TA1-02802 while the case had been removed to federal district court.
Exhibit C-8.
Subsequently, Relator sued Bravenec, his firm and his alter-ego company, in federal court
in 2010 to recover the subject property of their post-petition foreclosure in his derivative capacity
as the successor of Moroco Ventures, LLC. Exhibit B-2. Relator also appealed the appraisal
review board decision to the Probate Court, and then commenced a bill of review case against
the County in 2011 in part to set aside a default judgment in Case No. 2004-TA1-02802 by the
224th District Court in which that court granted the County’s claim for taxes against nonexistent
improvements. Exhibit A-7. The 224th District Court vacated the judgment in Case No. 2004-
TA1-02802 in 2013, and the summary judgment for Bravenec that the federal district court
granted in 2012 is the subject a pending rehearing for plain error in Case No. 14-50093 as of
October 2, 2015. Exhibits A-1 to A-14.
C. The Probate Court Lis Pendens Expunction
On March 19, 2014, prior to the Fifth Circuit’s change of position, Probate Judge Polly
Jackson Spencer signed an order granting Bravenec’s motion to expunge two probate court lis
pendens filings, and also noticed Bravenec’s withdrawal from the probate case for the first time
and on unconditional terms. The lis pendens order states that the subject property of the
controversy “… is not an asset owned by the Estate of Johnnie Mae King … nor does the estate
have an interest in said property.” The discharge order states “that Mr. Bravenec withdrew as of
October 5, 2006 and no further action thereon is necessary.” See Exhibits A-3. The signings took
place prior to the termination of her term in office on December 31, 2014.
The Hon. Kelly M. Cross succeeded Judge Spencer as the presiding judge of the Bexar
County Probate Court #1 in 2015. Following the change in office, Relator petitioned the Probate
3
Court for a bill of review to correct the expunction and discharge orders. The Bravenec parties
filed responsive pleadings, but no date for a trial has been set and no pre-trial orders have been
requested. Relator has appeared before Judge Cross on and after March 31, 2015 to oppose the
County’s motion to dismiss his attempts to enforce the real property definition provided under
Estates Code Section 1002.027. The Probate Court granted the motion over Relator’s objections,
and after post-judgment proceedings, an Estates Code appeal was taken to the Fourth District
Court of Appeals in Case No. 04-15-00271-CV. On July 21, 2015, Judge Cross issued a
summons in the name of the “Estate of Rafael G. Trevino” with an order directing that cause be
shown why removal proceeding should be held. After Relator’s filing on July 27, 2015 of a final
notice of appeal addressed to the July 21st show cause order, Judge Cross issued an order
purporting to remove Relator from his appointment as Estate Administrator for which Relator
had no notice until November 2, 2015. Exhibit A-9, A-10 and C-5.
D. The Anti-SLAPP Dismissal Proceeding
Familiarity with Bravenec’s suit for tortious interference with contractual relations in the
285th District Court and the Fourth Court of Appeals is assumed. On October 26, 2015, this
Court accepted Relator’s Motion For Rehearing for filing in Case No. 15-0541 relating back to
the anti-SLAPP proceedings below. The anti-SLAPP appeal implicates the same subject matter
that forms the basis Relator’s motion to abate and for leave to amend in Exhibit C-2 and the
County’s motion for vexatious litigant treatment and damages in Exhibit C-4. Most notably, the
County relies on a misconstruction of stale federal court rulings to contend that the Court of
Appeals should dismiss the Estates Code appeal and assess damages because Relator was
“branded” in the past as a vexatious litigant. Exhibits C-1 to C-4.
4
Due to these exceptional circumstances, Relator takes exception to the state appellate
court’s past and present reliance on the following orders, all of which deprive due process and
structurally impair effective relief in Case No. 15-0541:
(1) the order to expunge lis pendens issued by the Bexar County Probate Court #1 in Probate
Case No. 2001-PC-1263 on March 19, 2014 (Exhibit A-4) which the appellate court
relied upon in Martin v. Bravenec I;
(2) the temporary injunction order of the 285th District Court entered orally on July 9, 20
May 13, 2015 and in written form on July 17, 2014 (Exhibit B-1), and which cites the
federal court judgment that was partially vacated in Martin v. Bravenec, et al, Case No.
14-50093, 2015 WL 5752439 (5th Cir, October 2, 2015) (“Martin v. Bravenec II”); and
(3) the orders on October 20th and 22nd of 2015 in the pending Estates Code appeal in
Estate of Johnnie Mae King, Case 04-15-00271-CV (Exhibits C-1 and C-3).
To avoid piecemeal litigation, Relator joins the matter of the County’s departures from the
Estates Code definition of real property, and requests a writ of injunction pursuant to 28 U.S.C.
1927 to enjoin collection activity on estate accounts in violation of San Antonio Area
Foundation, Id. and to vacate the bill of costs totaling $162.00 issued by Bexar County Clerk
Gerry Rickoff in Exhibit A-10.
ARGUMENT AND AUTHORITIES
A. The Standard Of Review For Mandamus Relief
A writ of mandamus is available to correct a clear abuse of discretion or violation of legal
duty for which no adequate remedy at law is available. In Re Schmidt, 285 S.W.3d 451(Tex.
2009); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). Mandamus
jurisdiction lies to correct trial court orders addressed to the filing of lis pendens notices, Flores
v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam) (orig. proceeding to set aside void
expunction order), and to correct orders that improperly withhold the absolute privilege assigned
by law to a lis pendens filing in an ongoing judicial proceeding, Chale Garza Investments, Inc. v.
5
Madaria, 931 S.W.2d 597, 600 (Tex. App.--San Antonio 1996, writ denied). Mandamus relief
has also been extended to correct an error committed by a judge whose term has ended, In Re
Schmidt, 285 S.W.3d 451(Tex. 2009); to correct a trial court’s violation of TCPA automatic stay
requirements, In re IH 10 Colony, Case No. 01-14-00775-CV, 2014 WL 7914874 (Tex. App. –
Houston, 2014) (mandamus proceeding to correct TCPA automatic stay violation); and to correct
an improper disposition of a party’s motion to abate. In Re Schmidt, Id., and In re Baylor
Medical Center at Garland, 280 S.W.3d 227 (Tex. 2008).
B. The Points Of Error
1. The Court of Appeals Committed An Abuse Of Discretion In The Anti-
SLAPP Appeal By Presuming That The Probate Court Expunction Order
Was Valid As Applied To Relator’s Purchase Money Lien Interest.
a. Mandamus Law
As a general rule, an allegation that a trial court has improperly expunged a notice of lis
pendens states a claim for mandamus relief. Flores v. Haberman, Id. See also, In re Cohen, 340
S.W.3d 889, 900 (Tex.App.-Houston [1st Dist.] 2011, orig. proceeding) (mandamus recognized
as appropriate remedy for lis pendens dispute); In re Mousa, No. 01–04–00485–CV, 2004 WL
2823172, at *2 (Tex.App.-Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem.op.) (writ of
mandamus held appropriate remedy); see also Nwangwu v. Dinkins, No. 14–97–01100–CV,
1997 WL 688943, at *1 (Tex.App.-Houston [14th Dist.] Nov. 6, 1997, orig. proceeding) (appeal
from order cancelling lis pendens corrected by mandamus). Similarly, an action taken by a
probate court acting under a misapprehension of its jurisdiction is correctible with mandamus
relief, In re SWEPI, LP, 85 S.W.3d 800, 808–09 (Tex. 2002) (orig. proceeding); In re Sw. Bell
Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (finding venue order
6
void because it was issued outside of the court’s plenary power, and it, therefore, amounted to an
abuse of discretion).
b. The Expunction Order And Show Cause Order Result From Void Exertions
Of Probate Jurisdiction.
The expunction order departs from guiding jurisdictional principles. As a threshold
matter, the sufficiency of a judgment is ordinarily contingent on compliance with Rule 301 of the
Texas Rules of Civil Procedure which provides in part that “[t]he judgment of the court shall
conform to the pleadings.” Tex. R. Civ. Pro. 301; Jennings v. Texas Farm Mortg. Co., 124 Tex.
593, 80 S.W.2d 931, 934 (Tex.Comm'n App. 1935, opinion adopted by Sup.Ct.). (plaintiff must
recover upon the facts stated in his pleadings and cannot recover on a right different from that
asserted …”). The same guiding principle teaches that “[a] court has no jurisdiction over a claim
asserted by a plaintiff without standing to assert it.” DaimlerChrysler Corporation v. Inman, 252
S.W.3d 299 (Tex. 2008).
Here the Probate court erred in failing to consider that Bravenec’s pleading failed to cite
the March 7, 2014 notice of lis pendens. Exhibit A-4. The third decretal clause of the expunction
order, stating that “The ‘Further Notice of Lis Pendens’ filed on or about March 7, 2014, with
regards to the property at 1216 West Ave. is hereby cancelled and is null and void,” has no
textual support in the underlying expunction motion. For that reason, the Probate Court
misapprehended its expunction jurisdiction in neglecting to consider Relator’s asserted of a
direct interest in the subject property as a purchase money lien holder and de facto creditor of the
estate. Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877). Given Relator’s status as a
purchase money lien holder, Bravenec was estopped by his own deed from contesting an interest
in his chain of title superior to his. The resulting impairment of contractual relations renders the
expunction proceeding void on its face, at least with respect to the lis pendens notice dated
7
March 7, 2014. Long Beach Mortgage Company v. Evans, 284 S.W.3d 406 (Tex.App.-Dallas
2009, cert denied).
c. There Is No Adequate Remedy At Law For The Resulting Impairment Of
Contractual Obligations.
There is no adequate remedy at law in the Probate Court for the ongoing impairment of
contractual obligations owed by the Bravenec parties under Archer v. Griffith, 390 S.W. 735
(Tex. 1965) because although Relator’s final notice of appeal on July 27, 2015 deprived the
Probate Court of plenary jurisdiction, that Court conducted the show cause hearing in Relator’s
absence on July 30, 2015 and entered a removal order on August 6, 2015 without notice to
Relator. Exhibit A-9. The Probate Court’s reliance on a summons issued Rafael G. Trevino as
the predicate for an order to remove Relator as Administrator unduly impairs contractual
relations. At the time McKnight and Bravenec acquired their security interest, the County was a
party to ad valorem tax suits against heirs of the estate which had clouded title to real property of
the estate under a legal theory that was expressly disapproved in San Antonio Area Foundation,
Id. McKnight and Bravenec failed to challenge the County’s error as a cloud on title to estate
property, and instead abandoned the case in 2005 to foreclose a second deed of trust that had
been granted in contemplation of receiving their services for that purpose. By foreclosing their
second lien interest under these circumstances, they arguably converted their security interest
into compensation that was unearned due to their omission to oppose the County’s tax suits.
Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009 Tex. App. LEXIS
1707 (Tex. App. - Corpus Christi, 2009, pet. den’d) (upholding estate administrator’s right of re-
entry in probate case after a void ab initio post-petition sale of a bankruptcy asset). There is no
adequate remedy at law because the actions taken by the Probate Court in 2014 and 2015 unduly
8
abridge Relator’s right to be heard under provisions of Tex. Civ. Prac. & Rem Code Section
37.005 which guarantee access to the Probate Court. In Re Schmidt, Id.; Ex parte Shaffer, Id.
2. The Court Of Appeals Abused Its Discretion In The Anti-SLAPP Appeal
By Stigmatizing Relator With A Misapplication Of The Vexatious Litigant
Statute For The Purpose Of Restraining Future Speech.
a. Mandamus Law
Mandamus relief clearly lies to correct departures from settled precedent on absolute
privilege, Chale Garza Investments, Id., and to remedy anti-SLAPP law violations, In re IH 10
Colony, Id. Here, recognition of an absolute privilege against vexatious litigant treatment
effectuates the guiding principle that “ … the good it accomplishes in protecting the rights of the
general public outweighs any wrong or injury which may result to a particular individual..."
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942); see also James v. Brown,
637 S.W.2d 914, 916 (Tex.1982) (justice requires full disclosure unhampered retaliatory suits);
and Kennedy v. Eden, 837 S.W.2d 98, 98–99 (Tex. 1992) (orig. proceeding) (per curiam) (stating
that the trial court abused its discretion in banning a party from attending any depositions and
that the gag order left the relator with no adequate remedy on appeal).
b. The Vexatious Litigant Finding Adopted By The State District Court
And Affirmed By The State Court of Appeals Is Intrinsically Void.
It is evident from the face of the record that the appellate court’s judgment departed from
its precedent calling for the extension of absolute privilege for the filing of lis pendens notices
that was recognized in Chale Garza Investments, Id. Exhibits B-1 to B-5. The Court of Appeals’
acknowledgement that the trial court’s temporary injunction order conflicted with the TCPA
automatic stay also calls into question the propriety of the trial court’s decision to issue the gag
order in Exhibit B-4 orally on July 9, 2014 and in writing on July 17, 2014. IH 10 Colony, Id.
Relator notes that the appellate court’s decision to uphold the trial court’s pronouncement of
9
vexatious litigant status was calculated to restrain future speech yet was wholly unsupported by
the statutory requirements of the vexatious litigant statute in Tex. Civ. Prac. & Rem. Code Ann.
Section 11.051 (Vernon 2006).
According to persuasive authority on point, the Texas Courts do not claim to possess
inherent authority to impose vexatious litigant status on the defendant party of a trial court
proceeding. See Akinwamide v. Transportation Insurance, Co., 147 S.W.3d 623 (Tex. App. -
14th Dist. 2006) citing Univ. of Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961); Birdo v.
Holbrook, 775 S.W.2d 411, 412B13 (Tex. App. Fort Worth 1989, writ denied). According to the
latter guiding principle, the decision to uphold the temporary injunction order referring to
vexatious litigant status was void ab inito. Id. The intent of the vexatious litigant statute
moreover is ordinarily to restrain plaintiff parties; even then the proponent-defendant must
timely file a motion to trigger vexatious litigant procedures on or before the 90th day after the
date the filing of his original answer. Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App. -San
Antonio 2000, no pet.) (motion filed outside the ninety-day period was untimely).
The designation is arguably void where, as here, the proponent neglected to move the trial
court pursuant to the statute, where an intervening order vacates the law of the case supporting
the designation, and where the party opposing the designation was in fact engaged in protected
speech covered by Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App. – Houston, 2014) (real
estate dispute involved a matter of public concern), and in protected conduct justifying a
privilege under James, et al, v. Calkins, 446 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2014)
(TCPA holding on lis pendens rights). In fact, several decretal clauses of the injunction order
restraining contacts with potential witnesses qualify as gag orders per se because their text
pertains to future speech. Construed in light of the Fifth Circuit’s change of position on October
10
2, 2015, the outcome in this case illustrates the Court’s well founded warning against prior
restraints on speech in Kinney v. BCG Attorney Search, Inc., 443 S.W.3d 87, 98 (Tex., 2014),
that “even the most narrowly crafted of injunctions risks enjoining protected speech because the
same statement made at a different time and in a different context may no longer be actionable.
Untrue statements may later become true; unprivileged statements may later become privileged.”
Id. at . p. 98
c. The Benefits Of Mandamus Outweigh The Detriments With Respect
To The Setting Aside Of Intrinsically Void Vexatious Litigant Treatment.
There is no adequate remedy at law in Case No. 04-15-0271-CV for the part of the
appellate court’s judgment that affirms the attribution of vexatious litigant treatment in Martin v.
Bravenec I. As a general rule, the adequacy of an appellate remedy in an interlocutory
proceeding is assessed by considering a number of factors and balancing the benefits of
mandamus review against the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex.
2004) (orig. proceeding). Mandamus has detrimental implications for the validity of Bravenec’s
reliance on the federal law paradigm in Sikes v. Global Marine, 881 F.2d 176 (5th Cir. 1989).
Sikes holds that a post-petition foreclosure transaction in violation of an automatic stay is merely
voidable and not void. However, Sikes does not control the facts of this case because Larry York
v. State, 373 S.W.3d 32 (2012) disapproves that result. In this regard, the benefits outweigh the
detriments of mandamus considering that Relator’s speech and conduct in vindication of York is
protected under Chale Garza Investments, Id., and that Bravenec secured the original vexatious
litigant finding by disrupting the machinery of the judicial process to circumvent the
requirements of both the vexatious litigant statute and the TCPA’s automatic stay provisions.
Thomas v. Miller, 906 S.W.2d 260 (Tex. App. – Texarkana 1995) (mandamus to correct post-
petition proceeding).
11
3. The Court Of Appeals Abused Its Discretion In The Estates Code Appeal
By Carrying Issues That Are Inherently Interrelated With Matters Over
Which This Court Has Dominant Jurisdiction.
a. Mandamus Law
Requiring a party to prepare for and litigate claims that are not ripe and may be rendered
moot is an abuse of discretion which has no adequate remedy by appeal. In re Allstate County
Mutual Insurance Company, 2014 WL 5285850 (Tex. App.—Houston [1st Dist.] Oct. 16, 2014).
The ripeness doctrine examines when claims may be brought and asks, “whether, at the time a
lawsuit is filed, the facts are sufficiently developed ‘so that an injury has occurred or is likely to
occur, rather than being contingent or remote.’” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d
849, 851-52 (Tex. 2000).
b. The Denial Of Abatement Relief And Designation Of Vexatious Litigant
Issue For Review In Case No. 04-15-00271-CV Is An Abuse Of Discretion.
Ripeness doctrine is applicable to restrain the Court of Appeals from denying Relator’s
requests for abatement and amendment relief in Exhibit C-2, and from designating the County’s
vextatious litigant issue in Exhibit C-4 for review with the appeal. Both actions in Exhibits C-1
and C-3 subject Relator unjustly to the burden of defending claims that are not ripe for review by
the appellate court and were vacated by the Fifth Circuit’s decision on October 2, 2015. Ex parte
Shaffer, Id.
c. There Is No Adequate Remedy At Law Through A Regular Appeal.
An objective balancing of benefits and detriments indicates that an adequate remedy at
law for this abridgement of Relator’s due process rights is unavailable in the Court of Appeals.
Allowing Bexar County to go forward with its vexatious litigant issue in the Court of Appeals is
unjust in that the County’s motion on October 21, 2015 attempts to relitigate an issue about
Relator’s standing to appear pro se for the Estate of King that was first resolved in his favor in an
12
oral ruling by the Probate Court in Probate Case No. 2001-PC-1263 on March 31, 2015, Exhibit
A-7, and was later resolved in his favor by the 150th District Court in Case No. 2015-CI-04779.
Exhibits C-6 and C-7. An appeal from a future final judgment on a vexatious litigant issue in the
Estates Code appeal, after the Court of Appeals would have already adjudicated the interrelated
subject matter, would simply force Relator to attempt to relitigate in the Texas Supreme Court
the same interrelated subject matter that previously formed the basis of the Estates Code and
Anti-SLAPP appeals. Under the circumstances, mandamus has substantial benefits as an
interlocutory remedy for structural error.
4. The Bexar County Tax Authorities Abuse Their Discretion With Collection
Practices That Depart From The Definition Of Real Property That Was
Judicially Approved In San Antonio Area Foundation And Recodified In
Estates Code Section 1002.027.
“Exceptional circumstances” justify mandamus review when a state actor shows “such
disregard for guiding principles of law that the harm . . . is irreparable.” In Re Columbia Medical
Center of Las Colinas, 290 S.W.3d 204 (Tex. 2009). Here, mandamus relief to enforce 28 U.S.C.
1927 is appropriate in light of the County’s multiplicitous litigation and bad faith conduct
through its tax collection agents. Diaz v. Commission For Lawyer Discipline, 953 S.W.3d 435
(Tex. App.- Austin, 1997) (prohibiting attorney conduct that might corrupt litigation). In San
Antonio Area Foundation, the Court noted 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) (Vernon Supp. 1999)). Estates Code Section 1002.027 applies the same
fundamental definition. Under both, the County abused the judicial process in Case No. 2004-
TA1-02802 and 2003-TA1-02385 by treating subject matter other than real property which the
County has authority to tax as part of the res of its litigation. The practice of subjecting owners
13
of unimproved land to same burdens as an owner of improved land constitutes an arguable form
of systemic economic discrimination in comparison to the treatment of unimproved land owners
who are not subjected to unequal and non-uniform treatment for tax purposes. Cf., Texas Dept.
of Housing and Community Affairs v. Inclusive Communities Project, Inc., Case No. 13-1371,
___ S.Ct. ___ 2015 WL 2473449 (June 25, 2015). The County can and should be restrained from
assessing excess charges for penalties, fees, interest and costs that accrued while Relator’s
demands for correction were ignored by the County and the Probate Court. Relator respectfully
requests a writ of injunction to pursuant to 28 U.S.C. 1927 to enjoin collection of excess charges
on tax accounts in Case No. 2003-TA1-0-2385 and Case No. 2004-TA1-02802, and on the bill
of costs in Exhibit C-8, in accordance with Ex parte Shaffer and San Antonio Area Foundation.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator prays that the Court grant relief in
law and in equity as he may be justly entitled, including a writ of mandamus to vacate reliance
by the Fourth Court of Appeals on void orders and abuses of discretion by the Probate Court and
the 285th District Court, and a writ of injunction to the County pursuant to 28 U.S.C. 1927.
Dated: November 3, 2015 Respectfully Submitted,
__________/s/____________
Rowland J. Martin
14
CERTIFICATE OF SERVICE
I certify that I transmitted an electronic copy of this “Petition For Extraordinary Writ
Relief” to the Texas Fourth Court of Appeals, to the Hon. Kelly M. Cross, to the real parties
through Attorney Glen Deadman, Attorneys Conry Davidson and Karen Evertson, and Attorney
Don Stecker, on November 3, 2015.
__________/s/_____________
Rowland J. Martin
CERTIFICATE OF COMPLIANCE
I certify this amended petition for extraordinary relief contains a total of 4,493 words, and
thereby complies with TRAP 9.4(i)(3) (D).
_________/s/______________
Rowland J. Martin
15
APPENDIX
A-1 Memorandum Opinion in Martin v. Bravenec, et al, Case No. 14-50093, 2015 WL
5752439 (5th Cir, October 2, 2015)
A-2 Fifth Circuit Letter Noticing Acceptance of Motion For Rehearing
A-3 Order on Motion To Expunge of The Bexar County Probate Court #1 dated March 19,
2014
A-4 Motion To Expunge Lis Pendens Of Edward Bravenec
A-5 Answer Of Edward Bravenec To Bill Of Review Petition
A-6 Reporter’s Record and Transcript of Hearing In Bexar County Probate Court #1 on
March 19, 2014.
A-7 Reporter’s Record and Transcript of Hearing In Bexar County Probate Court #1 on
March 31, 2015.
A-8 Third Party Purchase Money Vendor’s Lien Record
A-9 Probate Court Show Cause Orders
A-10 Probate Court Demand For Costs
A-11 Order To Vacate Judgment in Case 2004-TA1-02802
A-12 Order To Vacate Judgment in Case 2003-TA1-02385
A-13 Order To Nonsuit Case 2004-TA1-02802
A-14 Order To Nonsuit Case 2003-TA1-02385
B-1 Temporary Injunction Order of the 285th District Court dated July 17, 2014
B-2 Reporter’s Record and Transcripts of Hearing In the 285th District Court on July 9, 2014
B-3 Reporter’s Record and Transcript of Hearing In The 285th District Court on July 17,
2014.
B-4 Record Excerpts On Forum Shopping Issues From Fifth Circuit Case No. 14-50093
B-5 Admissions of Edward Bravenec in U.S. District Court Case No. SA 11-CV-0414
i
C-1 Order Denying Abatement and Leave To Amend in Case No. 04-15-00271-CV dated
October 20, 2015
C-2 Appellant’s Motion To Abate And For Leave To Amend
C-3 Order Carrying Motion For Damages For Frivolous Appeal in Case No. 04-15-00271-CV
dated October 22, 2015
C-4 Appellee Bexar County’s Motion For Damages For Frivolous Appeal
C-5 Appellant’s Final Supplemental Notice of Appeal in Case NO. 04-15-00271-CV
C-6 Order Denying Motion To Disqualify Pro se Appearances of the 150th District Court
C-7 Bexar County’s Motion To Disqualify Pro Se Appearances
C-8 Orders of the Bexar Appraisal Review Board dated October 23, 2009
C-9 Letter of Attorney Cristina Gonzalez``
C-10 Letter of Claims Adjuster Mario Martinez
C-11 Administrator’s Class 2 Lien Claim
C-12 Answer of Bexar County In Bill Of Review Case 150th District Court Case No. 2015-CI-
04779
ii
EX PARTE SHAFFER, 649 S.W.2d 300 (Tex. 1983)
Supreme Court of Texas.
EX PARTE SHAFFER
649 S.W.2d 300 (Tex.1983)
Ex parte Craig SHAFFER. his status in retaining an attorney; and (3) to retain an
attorney to represent him in the suit. If these orders
No. C-2019. were not complied with by March 23, Shaffer would
be in contempt and subject to imprisonment.
Supreme Court of Texas.
On March 25, without a formal motion for contempt,
April 20, 1983. notice to Shaffer or a show cause hearing, the court
adjudged him in contempt and ordered Shaffer placed
Appeal from the Probate Court, No . 3, Dallas County
in the county jail "until he purges himself of this con-
tempt . .. . " The court later issued findings of fact and
conclusions of law in support of the contempt order
Dwaine Boydstun, Dallas, for relator.
including statements that: (1) a hearing was held with-
John Exline, Dallas, for respondent. out Shaffer being present; (2) that Shaffer had wholly
failed to comply with the court's order and that such
violation was intentionally designed to delay the tri-
ROBERTSON, Justice. al; and (3) that no motion for contempt, notice, show
cause order or other citation or process was required
In this original habeas corpus proceeding, the relator, because this was a case of direct contempt.
Craig Shaffer, seeks to be discharged from an order of
Probate Court No. 3, Dallas County, committing him The issue here is whether the trial court's March 18
to jail for contempt for failure to comply with an or- order exceeds its statutory authority and is therefore
der of that court requiring him to post a cost bond and void, inasmuch as one may not be held guilty of con-
hire an attorney. We order relator released. tempt for refusing to obey a void order. Ex parte
Lillard, 159 Tex. 18,314 S.W.2d 800 (Tex. 1958); Ex
While serving as Independent Executor for the estate parte Henry, 147 Tex. 31j_,2,1,'i__$_,_W.2d 588 (Tex. 1949) .
of Horace Yates, Shaffer was sued by the widow, Cleta Counsel cites no authority, and indeed we can find
Yates, for alleged breach of his fiduciary duty in that none, which allows a court to require a bond of a de-
capacity. The case was set for trial and continued four fendant or to require any party to retain an attorney.
times at Shaffer's request. On March 16, 1983, Shaffer Rather, in Texas the law is clear that one who invol-
appeared and once again moved for a continuance on untarily comes into court and does not seek any affir-
the grounds that his attorney had been allowed to mative relief cannot be required to post a cost bond.
withdraw three days before trial and he had not yet
Tex.R.Civ.P. 143, 147. Additionally, ordering a party
been able to retain a new attorney. Two days later,
to be represented by an attorney abridges that person's
Judge Ashmore ordered Shaffer (1) to file with the
right to be heard by himself. Tex.R.Civ.P. 7. If Shaf-
court a $10,000 cost bond to indemnify Cleta Yates for
fer's lack of an attorney was being used to unneces-
the costs of delaying trial; (2) to report to the court
sarily delay trial or was abusing the continuance priv-
casetext casetcxt.co m/ case/ ex-parte- shaffer-1 I of 2
EX PARTE SHAFFER, 649 S.W.2d 300 (Tex. 1983)
ilege, the proper action would have been to order him
to proceed to trial as set, with or without representa-
tion. Accordingly, we hold that the March 18 order is
void.
The relator is discharged.
casetext casetext.com/ case/ ex-parte-shaffer-! 2 of 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT UnitedStatesCourtofAppeals
Fifth Circuit
FILED
October 2, 2015
No. 14-50093
Summary Calendar Lyle W. Cayce
Clerk
ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,
Plaintiff-Appellant
•
V.
•
EDWARD BRAV~NEC, 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
USDC No. 5:11-CV-414
•
Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Rowland J. Martin, Jr., proceeding prose, 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.
Crv. P. 11, and striking his pleadings opposing an award offees. 1
·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.
1Edward 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, tlte district court entered an order 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 of summary
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 that the disputed property
was subject to ongoing litigation in federal ~ourt. 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 lien 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 that Martin violated FED. R. CIV. P. 11(b)(1),
2
No. 14-50093
(2) and Martin failed to respond to the district court'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 a_ttorney's fees on two separate occasions. However, the first set of
pleadings was entered on the docket after the district court's December 5, 2018,
order issued, and the district court ordered the second set of pleadings 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 of the 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
3
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 haYe been improper if the district court correctly
exercised supplemental jurisdiction and applied Texas law to the adjudication
•
of his 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 ea.rlier 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 an issue
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. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon a party's motion if the motion is "made
separately from any other motion," the motion describes the specific conduct
that allegedly violates Rule ll(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 of the proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.
4
No. 14-50093
See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 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 if it 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 1\Zlartin due process. First, the
district court erroneously found that Martin did not .respond to its show cause
order from 2012. In fact, 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's original 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
a litigant 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 of the 21-day "safe harbor" provision: to provide
a litigant the opportunity to withdraw challenged pleadings and thereby avoid
5
•
No. 14-50093
sanctions. See In re Pratt, 524 F.3d 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~ Crv. P. 11(c)(2). See, e.g., Pratt, 524 F.3d at 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 provisiol\, the district court is deemed to
have awarded the attorney's fees on its own motion, which is improper under
Rule 11. See Marlin, 533 F.3d at 379; Brunig, 560 F.3d at 298. As this Court
explained in Marlin, 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 REMAND ED. Martin's
motion to strike Bravenec's brief is DENIED. Martin's other motions are
DENIED AS MOOT.
6
United States Court of Appeals
FIFI'H CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-3 10-7700
CLERK 600 S. MAESTRI PLACE
NEW O RLEANS, LA 70130
October 28, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No . 14 - 50093 Rowland Martin, Jr. v. Charles Grehn , et al
USDC No. 5:11 - CV - 414
The court has granted Appellant ' s motion file petit i on for
rehearing out of time and for an extensi o n of time to and including
October 23, 2015 for filing a petition for rehearing in this case.
The petition for rehearing has been filed as of October 23, 2 0 15
and will be submitted to the court.
Sincerely,
LYLE W. CAYCE , Clerk
l; !:.(_
/'~·,__--.... . . ;¥t.- :----- -
.. ! , ------
By :
Shawn D. Henderson , Deputy Clerk
504 - 310-7668
Mr. Edward L . Bravenec
Mr. Ricardo Briones
Mr. Rowla n d J . Martin Jr .
CAUSE NO. 2001-PC-1263
IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING, § #1
§
DECEASED § BEXAR COUNTY, TEXAS
ORDER EXPUNGING LIS PENDENS
On this, the 19th day of March, 2014, carne to be heard Movant's Motion to Expunge Lis
Pendens. After hearing evidence and argument, the Court makes the following fmdings of fact and orders:
I. The property with the physical address of 1216 West Ave (New City Block 8806, Block 50, Lot
I) is not an asset owned by the Estate of Johnnie Mae King in Cause No. 200 1-PC-1263, nor does
the estate have an interest in said property.
2. The "Notice of Lis Pendens" filed on or about December 3, 2013, with the County Clerk with
regards to the property at 1216 West Ave. is hereby cancelled, and is null and void.
3. The "Further Notice of Lis Pendens" filed on or about the Th day of March, 2014, with regards to
the property at 1216 West Ave is hereby cancelled and is null and void.
SIGNED on this the \ cy-a:. day ofMarch, 2014.
Q.``hK ~
HONO \._ JUDGE SPE R
Agreed as to form:
MCKNIGHT & BRAVENEC
1800 W. Commerce St., Suite l
SAN ANTONIO, TX 78207
Tel. (210) 223-4080
Fax. (210) 3-2449
Em "1: br ekni t
V0212qP08bO
- •- -- - il
STATE OF TEXAS COUNT'!' OF BF-XA"\
--' ~
CERTIFIED COPY CERTIFICATE
The page to whicll this certificate Is affixed may havL
been lawfully aits r&d to redact corffidanUal persona !
information but is other.'fise a f1JII, true and connect
copy of the original on file and of necoro In my office
ATIESTED:
SEP 0~- 2015
CAUSE NO. 2001-PC-1263
IN THE EST ATE OF ) IN THE PROBATE COURT
)
JOHNNIE MAE KING, ) N0.1
)
DECEDENT ) BEXAR COUNTY, TEXAS
ORDER
Came to be heard on January 31,2014, Rowland J. Martin, Administrator for the
Estate of King, on his "Motion for Order To Authorize Terms Of Withdrawal for
Attorney of Record Edward Bravenec." The Court a~itre~r~a~
\.l-~ 0---l. ~ c~.._ s- ~oo ~. rrv:; ~
s
exhibits, including his pdffOfservice, the Motion 'fo Withdraw hied b~
~t~u~-
Reesfd AlbeFt MeK.."light, aHd aa Dist:riet Co011 of Appeals, t efett iRg
to aa "Oeteber 2895 orde1 permitting withdrawal of an attorney,' which me attaehed te- (~
this Ortier The Ctmrt finds that Edwrud Bravenec was not rhe attorney authorized to ·
withdrlt'if' in the October 2005 mde1. Therefere, it is onlerea thftt the Administrator's
'motion is hereby eentinl:les fQr ~!=Iller beariags sa the th dtty of _ __ _ 2014 at
jn the Bexar County Probate Court #I of Bexar County Texas, to
determine the date which the Court wm observe as the effective date of the Probate
.Ce\lrt's :wtaeri:latiog for the withdurwal ofAttomey Edward Bravenec.-
::..ol4
Signed this li_ th day of March~4,
VOZ12qpoq13
r:
STATE OF TEXAS COtrn TY OF"BEXAR
~
CERTIFIED COPY CERTIFICATE
The page to wh ich this certificate Is affixed may havE
be~n la'W'fulty att ere-d to r&dact confide ntial porsona!
information bvt is other.-lise a full , true and correct
copy of the original on file and of record In my office
ATTESTED:
SEP 04 2015
NO. 2001-PC-1263
Destin
IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS
MOTION TO EXPUNGE LIS PENDENS
This Motion to Expunge Lis Pendens is filed by Edward L. Bravenec, who shows in
support:
I. On December 41h, 2013, for the THIRD time', Rowland Martin has filed a notice
of lis pendens on affecting the following real property:
New City Block 8806, Block 50, Lot I, Except the North West I0.0 I feet
& Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio,
Texas (the "Property").
Exhibit A.
2. Movant holds complete fee simple title to the Property.
3. The filed instrument upon which the notice of lis pendens is based does not
contain a real property claim; indeed, the filed instrument is not a pleading.
4. The claims contained in the notice of lis pendens are not valid.
5. Though the lis pendens is invalid on its face, Movant provides the Court with a
summary of Mr. Rowland Martin' s storied, vexatious, and frivolous litigation against
Movant and related parties. Exhibits B- D.
WHEREFORE, premises considered. Movant prays that the Court grant this Motion to
Expunge Lis Pendens.
Respectfully submitted,
MCKNIGHT & BRA VENEC
1800 W. Commerce, Ste. I
1
True and correct copies of previously filed and subsequently expunged lis pendens by Mr. Martin on this Property
are attached . Exhibit D. ``~\~F~:org``g``````c``:EXAR
irlQ ``~;e to wl'llch this celt'flc~t.o Is etnxed mf!)' hove
ue~:1IOY.1ully t:Jrtered to red~ct er.~nfidentlal peraonel
Jn ~;)omatJon but Js othsrw1oo t1 ~Jil, truo end eorroct
c(;;;y cf u'1e Oitgit'la! on n1e end of record In my omce.
/".TTEST!;O·
•
SAN ANTONIO, TX 78207
Tel: (210) 223-4080
Fax:(210)223-2449
State Bar No. 24069056 .._
E-Mail: braveknight@att.net
Attorney for Movant
Notice of Hearing 2 u •t-1-
The above motion is set for hearing on A~ U/1 d'l \9 til ' at Y·3 () f .m. in Probate
Court No. I of Bexar County.
SIGNED on Mcuch \I~
j =-~ I L.r--2_- ~
u u'
.L.
_ J L..____
L
:-·
- -·
Certificate of Service
I certify that a true copy of the above was served on Rowland Martin in accordance with
the Texas Rules of Civil Procedure on March 11, 2014.
Attorney for Movant ·
s·r;. i ~ u F T~XAS COUNTY OF BEXAR
C985 S.W.2d 487 (Tex. App. - San Antonio, 1999}, and Porter v. Denas, Case No.
04-05-004455-CV (Tex. App. --San Antonio, 2006); see also, Rosborough v. Cook, 194 S.W. 131, 132
(191 7). Interested parties are advised that proceedings may continue in other state court tribunals on
reference of the probate court with or without further notice.
Witness my hand, this 351 day of December 2013.
Rowland J. Ma
Acknowledgement
This instrument was acknowledged before me on Dec
Book 16461 Page 311 lpgs
·-··· y0 tl2-194 S.W. 131, 132 (1917); Vehle v. Wagner, 201 S.W.2d 636,642 (Tex. Civ.
App. - El Paso 1947, writ rer d n.r .e.). Therefore the undersigned purchase money security
interest claimant is proceeding in the above named courts to recover possession and ownership of
the property from Bravenec, 1216 West Ave., Inc. or whatever pendant lite purchasers may
come into possession of the property as their assignees and their successors in interest.
Witness my hand, this 151 day ofNovember 2013 .
7pgs
.a IN THE UNITED STATES DISTRICT COURT
l.lJ
2 FOR THE WESTERN DISTRICT OF TEXAS
:z
0
Cf)
ROWLAND J. MARTIN, JR.,
successor in interest to
§
§
Morocco Ventures, LLC, §
§
Plaintiff, §
§
v. § No. SA-11-CA-414
§
EDWARD BRAVENEC, ~SQ., THE §
LAW OFFICE OF MCKNIGHT AND §
BRAVEN~C, AND 1216 WEST AVE, §
INC., §
§
Defendants. §
ORDER CANCELLING LIS PENDENS
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 a the judgment entered by
this Court in the above styled and numbered cause. That judgment
has since been affirmed by the Fifth Circuit and the Defendants
wish to sell the property. Although this case has been resolved in
favor of the Defendants, Martin has failed to cancel his notice of
Lis Pendens relating to the Property.
I~ is therefore ORDERED that Defendants' motion to cancel lis
pendens (Doc. No. 135) be, and it is hereby, GRANTED.
It is further ORDERED that the Notice of Lis Pendens filed by
Rowland J. Martin affecting the fallowing real property be, and it
is hereby, CANCELLED:
-1-
ll
NCB 8806 BLK 50 LOT .1, EXC NW 10.01 FT & 2-3 and commonly
referred to as 1216 West Avenue, Bexar County, San Antonio,
Texas 78201.
Aft) pro'I\Jion h1111n •nidi llilri~ lht !!11, or uu cllh• duuiM6 ml
pr~rl) h~UH 'I IICI is inlliid Jml ~ntniOIC!Iblt ~ndll ftdtra\111
STATE OF TEXAS, COUNTY OF SEXA~
I 1\trt~y Ctrtlfy l~lllhill!strvlltllwu FILED In Fill Jium~tr hqme1 on
lh11 d!IIIJ1d atl~t lillllll&lftPtd hmon br lilt tnd wn duly RECORDED
In Ihe OHiel•l Public Rmrd of Real Properly of 81111 Counlf, iem on.
DEC 31J 20B
_.d ././ /) ~
0 Doc~
``
COUNlY CLERK. BEXAR COUNlY. TEXAS
26130262143 Fees : $20.00
12/30/2013 1:39PM# Pages 2
~iled &Reca~ded
in the Official
Public Reco~ds of BEXAR COUNTY
GERARD C. RICKHOFF COUNTY CLERK
CAUSE NO. 1001-PCw1263 RiD
lN MAllEIIS NCIIA1I
IN THE ESTATE OF ) IN THE PROBATE COURT
) •1 IE •lH P 1&: 3]
JOHNNIE MAE KING, ) N0.1
)
DECEDENT ) BEXAR
NOTICE OF LIS PENDENS
Please take notice that Rowland J. Martin is an estate administrator and litigant in Bexar County
Probate Court No. I, asserting rights as a purchase money security interest claimant, and is proceeding,
among other things, with "Motion For Order Authoriz:ing Terms of Withdrawal For Attorney Of Record
Edward Bravenec. " in probate court against Attorney Edward Bravenec, and his affiliates including the
Law Office of McKnight and Bravenec, and 1216 West Ave., Inc, in Cause No. 2001-PC-1263, styled
as In the Matter of the Estate of Johnnie Mae King, Deceased, a probate case in which Edward
Bravenec appeared as an attorney of record. The dispute concerns competing claims to title to the
property commonly known as 1216 West Ave., in San Antonio, Texas, the legal description of which is
NCB 8806 BLK 50 LOT 1, EXC NW 10.01 FT & 2-3. This notice supercedes the Amended Notice of
Lis Pendens filed on November 1, 2013, in Book 16417 Page ) 510, and is filed in good faith to alert
interested parties about proceedings to recover possession and ownership of the subject property from
Brnvenec , 1216 West Ave., Inc. or whatever pen dante lite purchasers may come into possession of the
subject property as the assignees or successors in interest of Edward Bravenec and his affiliates.
Authority for this filing appears in In re Susan Reed, 137 S.W.3d 676, (Tex. App. San Antonio 2004),
Ballesteros v. Jones, 985 S.W.2d 487 (Tex. App.- San Antonio, 1999), and Porter v. Denas, Case No.
04-05-004455-CV (Tex. App. -- San Antonio, 2006); see also, Rosborough v. Cook, 194 S.W. 131, 132
( 1917). Interested parties are advised that proceedings may continue in other state court tribunals on t'f"'\
reference of the probate court with or without further notice. ::3'
1
Witness my hand, this 3s day of December 2013.
Rowland J. Ma
Acknowledgement
This instrument was acknowledged before me on Dec
It GARCIA
NOIOIV Pul:>lle. State of Te110s
..
My Cornm!NIOn IEiq)if...
June 16, 2017 .
Book 16461
[\ · 'ITE uF TEXAS COUNTY OF BEXAR
v ·U1FiE) COPY CERTIFIC/l.TE
r ,, page to w!11ch this certlftcatols crnx~d merthtwo
~- .. : 1 ta,.,.+~\ly ~ttered to red~ct conndential per¥Jnel •
: . ~
1
, -rr~"-;.'1 t .It 'c- ~· •c•v.lse e f\.Jll, true and co~ct
t. · .. y 0-f ;lt3 cr! ;_:. e:: 'Ill t• rWd Of record ln my ~i"ll,
r "'CSTPil
.
:.
'
u
NO. 2001-PC-1263
IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS
RESPONDENT'S SPECIAL EXCEPTIONS, PLEA TO THE JURISDICTION, AND
GENERAL DENIAL TO ROWLAND MARTIN'S APPLICATION FOR BILL OF
REVIEW
COMES NOW, Edward L. Bravenec, Respondent, through the undersigned counsel, and files this,
his special exceptions, plea to the jurisdiction, :md general denial. Rowland Martin's application
for a bill of review should be denied. In support thereof, Respondent shows unto the Court the
following:
Special Exceptions
1. Respondent objects to the form of Rowland Martin's Application, to-wit:
a. The Application is not verified. Huddleston v. Western Nat'! Bank, 557 S.W.2d
778, 781 (Tex.App.-Amarillo 1979, writ refd n.r.e.); and
b. The Application does not plead a discovery level. Tex. R. Civ. P. 190 cmt. 1.
2. Respondent objects to the substance of Rowland Martin's Application, to-wit:
a. Applicant appears to have generally plead for a bill of review, but Respondent
cannot ascertain from the Application the nature and basic issues of the controversy
and what testimony will be relevant, and requests that Applicant be required to
plead specifically. Subia v. Texas Debt. Of Human Servs., 750 S.W.2d 827, 829
(Tex.App.- El Paso 1988, no writ).
b. More than two years have passed since the entry of the order from which Applicant
complains, making his Application an equitable bill of review. Rowland Martin· s
Application does not allege the elements necessary for an equitable bill of revie.w.
Mobray v. Avery, 76 S.W.3d 663, 677 (Tex.App.-Corpus Christi 2002, pet.
denied). Because more than two years have passed, Applicant must allege extrinsic
fraud which prohibited him from timely filing a new trial, appeal, or statutory bill
of review. Motgomery v. Kennedy, 669 S.W.2d 309,312 (Tex.1984).
Plea to the Jurisdiction
3. The party seeking relief must alleged facts that affirmatively demonstrate a trial court's
subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). Mr. Martin appears to shirk his duty of diligence prior to filing his
"Verified Consolidated Application for Statutory Bill ofReview" by misunderstanding the
holding of McDonald v. Carrol/ 1 As such, his application should be dismissed.
4. Additionally, "[a] bill of review to revise and correct an order or judgment may not be filed
more than two years after the date of the order or judgment, as applicable." Tex. Est. Code
§ 55.251(b). Applicant requests a statutory bill of review regarding this Court's October 5,
2005, order authorizing the withdrawal of counsel- a nine-year-old order. Because nine is
greater than two, this Court is without the jurisdiction to review it.
5. Therefore, Respondent requests the Court dismiss Applicant's bill of review for want of
jurisdiction.
General Denial
6. Subject to his special exceptions and plea to the jurisdiction, Respondent invokes the
provisions of Tex. R. Civ. P. 92 and exercises his legal right to require Applicant to prove
all of the allegations contained in his pleading. Respondent denies generally the allegations
of Applicant' s pleading and demands strict proof thereof by a preponderance of the
evidence.
WHEREFORE, premises considered, Respondent, Edward Bravenec, PRAYS for the Court
to grant his special exceptions, dismiss for want of jurisdiction, dismiss this cause with
prejudice, and for any other relief.
Respectfully submitted,
McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449
SBN: 24069056
CERTIFICATE OF SERVICE
I certify that on April).-~015,the foregoing was served on the Rowland J. Martin, Jr., via
certified mail, return receipt requested at:
~------------......
1
Applicant's application, page I, paragraph 2.
NO. 2001-PC-1263
IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS
ORDER ON RESPONDENT'S SPECIAL EXCEPTIONS
On this day, the Court considered Respondent' special exceptions to Rowland Martin' s
Application for a Bill ofReview. Having reviewed the pleadings, the Court finds that Respondent's
special exceptions are well taken and are hereby GRANTED.
Therefore, the Court hereby ORDERS Applicant, Rowland Martin to amend his pleadings in
conformity with Respondent's special exceptions.
SIGNED this _ day of _ _ _ _ , 2015.
Judge Presiding
AGREED AS TO FORM
McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449
E: braveknight@att.net
``a~----
SBN: 24069056 ~
NO. 2001-PC-1263
IN THE ESTATE OF § IN PROBATE COURT
§
JOHNNIE MAE KING, § N0.1 OF
§
DECEASED §
§ BEXAR COUNTY, TEXAS
ORDER ON RESPONDENT'S PLEA TO THE JURISDICTION
On this day, the Court considered Respondent' Plea to the Jurisdiction to Rowland Martin' s
Application for a Bill of Review. Having reviewed the pleadings, the Court finds that Respondent's
plea is well taken and is hereby GRANTED.
Therefore, the Court FINDS that this Court is without jurisdiction to review an order older than
two years under Tex. Est. Code § 55.251 and HEREBY DISMISSES Rowland Martin' s
Application captioned as "Verified Consolidated Application for Statutory Bill of Review."
SIGNED this_ day of _ _ _ _ _, 2015 :
Judge Presiding
AGREED AS TO FORM:
McKnight & Bravenec
405 S. Presa St.
San Antonio, TX 78205
P: 210-223-4080
F: 210-223-2449
E: braveknight@att.net
````---
SBN: 24069056 ----------
1'_, -.;.••
_,
. ::" "'".
.
~
1 REP 0 R T E R 'S R E C 0 R D
2 VOLUME 1 OF 1
3 TRIAL COURT CAUSE NO . 2001-PC-1263
4
IN THE ESTATE OF IN THE PROBATE COURT
5
JOHNNIE M. KING, NUMBER 1
6
DECEASED BEXAR COUNTY, TEXAS
7
8
9 MOTION TO EXPUNGE LIS PENDENS
MARCH 19 , 2014
10
11
12
13
14
'---
15
16
17
18
19
20
21 On the 19th day of March, 2014 , the following
22 proceedings came on to be heard in the above-entitled and
23 numbered cause before the HONORABLE POLLY JACKSON SPENCER ,
24 Judge Presiding, held in San Antonio, Bexar County , Texas :
25 Proceedings reported by Machine Shorthand.
O~tG\NAL
CHERYL D. HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
-
1
'--
2 A P P E A R A N C E S
3
4 MR. CHRIS POTHOVEN
BAR 24069056
5 McKNIGHT & BRAVENEC
1800 W. Commerce, Suite 1
6 San Antonio, Texas 78207
( 2 1 0 ) 2 2 3 - 4 0 8 0 ; Fax ( 2 1 0 ) 2 2 3 - 2 4 4 9 ,
7 Attorney for Movant Edward Bravenec;
8
9 MR. ROWLAND MARTIN
951 Lombrano
10
11 Respondent, Appearing Pro Se .
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
-
1 CHRONOLOGICAL INDEX OF PROCEEDINGS
'-- 2 March 19, 2014
3 Discussion regarding Notice of Hearing 1
4
5 Request for Jury Trial - - - - - - - - - - - - - 7
6
7 Argument - - - - - - - - - - - - - - - - - - - - - - 7
8
9 Ruling - - - - - - - - - - - - - - - - - - - - - - - 32
10
11 Discussion regarding Withdrawal of Attorney - - - - - 33
12
13 Proceedings Adjourned - - - - - - - - - - - - - - - - 36
14
15
16
17
18
19
20
21
22
23
24
25
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
1
1 MARCH 19, 2014
2 THE COURT : 2001-PC-1263 , the Johnnie Mae King
3 Estate . My docket sheet indicates a Motion to Expunge a Lis
4 Pendens that ' s been filed .
5 MR. POTHOVEN : That is correct, Judge.
6 THE COURT : And that ' s what you all are ready
7 to proceed on, correct?
8 MR . POTHOVEN : Yes, Judge.
9 MR. MARTIN : No , Your Honor . The certificate
10 of servlce says that the motion was mailed on the 11th .
11 However, for whatever reason I actually received it after
12 close of business on Friday , which left me two business days
13 before today. Meaning that I was unable to file motions in
14 the considerably condensed amount of time I had to prepare.
15 I'm prepared to present a case for dismissing the motion . But
16 if we're going to proceed on the merits, there are witnesses
17 that I would need to call .
18 THE COURT: Well, can you speak to the --
19 MR . POTHOVEN: Would you like a response,
20 Judge?
21 THE COURT : Yes. In terms of giving him the
22 notice.
23 MR. POTHOVEN : It was deposited in the ma i l by
24 myself personally by certified mail , return receipt requested,
25 and copied by regular mail on the 11th of this month .
CHERYL D. HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
..
2
1 MR. BRAVENEC: Judge, normally I would give a
2 person extra time. I'm actually the one that owns this
3 property that Mr. McKnight's family deeded to me, and I deeded
4 some things to them to settle, or some different things to - -
5 MR. MARTIN: Objection, Your Honor.
6 MR. BRAVENEC: We had a contract to close this
7 in mid - September, and through a series of I want to say six
8 different lis pendens and I don't know how many different
9 motions to reconsider in the Fifth Circuit Court of Appeals
10 which have all been denied, Mr. Martin has delayed this for
11 six months. And we want to close tomorrow. I've had a
12 contract, and my buyers have waited six months. And every
13 single time we come to court, Mr. Martin has a different
14 excuse, so.
15 MR. MARTIN: Your Honor, Mr.
16 MR. BRAVENEC: That's why --
17 MR. MARTIN: Bravenec is presenting his
18 case. He was asked to respond to an issue about certificate
19 of service. And as to what Mr. Pothoven just stated that it
20 was mailed in regular mail and also sent by certified mail,
21 return receipt requested, I can -- I can state unequivocally
22 that I received only the regular service mail Friday after
23 close of business, and that there was no return receipt or
24 certified mail delivered to my address. And he will have no
25 signature from me to establish that the certificate of
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
3
1 service, the certified mail, return receipt requested, was --
2 was executed.
3 Further, Your Honor , to simplify the whole
4 matter, there are two major problems with the motion . Number
5 one, the motion contests my capacity to file a lis pendens.
6 Rule 93 of the Texas Rules of Evidence requires that a motion,
7 a pleading that contests the opposing party's capacity must be
8 verified. As you will see from your inspection of the motion,
9 the motion there's no verification of the motion . There's
10 a number of controversial factual statements that are
11 contained, but there's no verification of the motion that ' s
12 required by Rule 93.
13 Further , the Lis Pendens Statute requires that
14 when a party moves to cancel a lis pendens, they're required
15 to put up an undertaking , such as a bond, to indemnify the
16 other party. In this case there's no representation made in
17 the motion about any such undertaking .
18 As to the Fifth Circuit, the Fifth Circuit
19 case, the District Court case, the Fifth Circuit case and the
20 Supreme Court Petition for Writ of Certiorari are now pending.
21 I have not received documentation from the Supreme Court,
22 because it was recently filed and they have a clearing process
23 that takes about a week or longer before they forward the
24 motions to their clerk for docketing . However , I do have
25 correspondence from the Fifth Circuit showing that an appeal
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
4
1 was docketed in case number 14 - 50093 , most recently I believe
2 on March 13th , but I ' ve got the letters here . March 13th was
3 t he -- was the last of t h ree notice s that the appeal had b een
4 docketed.
5 So the statement that this - -
6 THE COURT : The appeal pertains to what?
7 MR. MARTIN : The appeal pertains to the federal
8 court appellate proceeding that Mr . Bravenec mentioned. He
9 stated that it had all been denie d. What I ' m saying is
10 THE COURT : Does that pertain to this?
11 MR. MARTIN : Well, you would have to ask hi m,
12 Your Honor. I'm saying he's incorrect in his factual
13 statement that there was a final order . Those matters are
14 still pending . But he would have to establish what the
15 relevance is . Because I have a federal Court order, Your
16 Honor, where he made the same motion . If I may approach?
17 He made the same motion to the federal court,
18 and the federal Court denied the motion on the grounds that
19 the federal court lacked jurisdication.
20 I should say also, Your Honor, that the
21 controversy here has a different posture than the matter in
22 federal court. Completely different posture . And that ' s why
23 the federal court was constrained to deny their mot i on .
24 MR. POTHOVEN: Judge, slnce we ' ve gotten into
25 the merits, I think he's abandoned his not ready. If the
CHERYL D . HESTER, C . S . R. - PROBATE COURT NO. 1
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1 Court will allow me to give my argument on why the lis pendens
2 should be expunged?
3 THE COURT : Correct. Do you have proof of the
4 -- your mailing?
5 MR . POTHOVEN: Yes/ Your Honor. If I could
6 approach?
7 THE COURT: Uh huh .
8 MR . POTHOVEN: This is the only copy that I
9 have / Mr. Martin 1 if you ll give that a once - over.
1
10 MR. MARTIN: Okay. The print is kind of s mall 1
11 but I see a description that says no authorized receipt
12 available. Is that your reading of that?
13 MR. POTHOVEN: Is that your address? Is y o ur
14 address 951 --
15 MR. MARTIN : I asked you a question about this
16 statement here . The print is kind of small. Can you read
17 that for me?
18 MR. POTHOVEN: Are you objecting to this?
19 MR. MARTIN : I m asking - - the print is small.
1
20 I don t have glasses.
1
It looks like it says no authoriz ed
21 rece i pt available.
22 THE COURT : That s what it seems to say.
1
Is
23 your address 951 Lombrano Street?
24 MR. MARTIN: Yes/ it lS.
25 MR. POTHOVEN: Your Honor/ one of the
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1 exceptions to the green card not coming back lS when a
2 litigant has a pattern of refusing certified mail. This is,
3 through our storied history between each other, this is - -
4 I'll represent to the Court that he refuses certified mail .
5 For that reason, that's why we are treating Mr. Martin, though
6 he's an attorney, we're treating him as we do any other prose
7 by always sending him certified mail, a copy via regular ma i l.
8 And I know that he got the regular mail.
9 MR. MARTIN: I've already stated
10 THE COURT: I think he just said that.
11 MR. POTHOVEN: Because he replied to the
12 motion.
13 MR. MARTIN: I did not deny that I rece i ved the
14 regular mail. My statement was that I received i t four days
15 after it was sent, after close of business when I returned
16 home on Friday, with less than two days before today's
17 hearing.
18 And while we are discussing conduct, let me say
19 that throughout the course of the other litigation, this and
20 other l i tigat i on, the -- Mr. Bravenec and his attorneys have
21 repeatedly submitted certificates of service that misstate
22 when they -- that mislead the reader as to whether or not I
23 received service or not. And I'd also point out, Your Honor,
24 that Mr . Bravenec has been sanctioned by the 57th Judicial
25 District Court for filing unsupported motions in a fact
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 situation that was -- that closely resembles this one .
-~
2 THE COURT : It is related to this matter?
3 MR . MARTI N: In s o fa r as the pa t tern of
4 conduct, yes, Your Honor .
5 THE COURT : But i t ' s not otherwise related to
6 this?
7 MR. MARTIN: Well , it ' s related in the sense
8 that --
9 THE COURT : I s it r el ated to this matte r ?
10 MR. MARTIN : The law controls, yes. The
11 holding --
12 THE COURT : All I want to know is, lS tha t
13 matter ln which he was sanctioned related to this matter .
14 MR . MARTIN : The authority applies. Other than
15 that, no.
16 THE COURT : Okay . Thank you.
17 Okay . I think we're going to go forward on
18 this matter.
19 MR . MARTIN : Okay. Your Honor, if we go
20 forward, in my response I am requesting a jury trial.
21 THE COURT : Are there fact i ssues upon wh i c h
22 you ' re entitled to have a jury?
23 MR. MARTIN : Yes , Your Honor .
24 MR. POTHOVEN : May I respond to that, Judge?
25 THE COURT : Uh huh .
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1 MR. MARTIN: May I first state what the fact
2 issues are?
3 THE COURT: I'm going to let him answer my
4 question.
5 MR. POTHOVEN: Okay.
6 MR. MARTIN: Okay.
7 In addition to the response, I also filed
8 special exceptions and objections, the substance of which
9 pertain to the attorney-client relationship that that the
10 estate of King had with the Law Firm of McKnight and Bravenec,
11 Albert McKnight and Edward Bravenec, in particular, and also
12 myself, both in the estate matter and other matters. And I
13 object to the representation in the motion, number one,
14 because that attorney-client relationship, and I would have
15 witnesses who are familiar with the estate and with statements
16 that I have made concerning the history of my relationship
17 with -- with McKnight and Bravenec. I believe the entire
18 motion constitutes an adverse representation.
19 I would cite In Re Susan Reed, which is a case
20 where Mr. Bravenec was an -- an attorney of record where the
21 attorney-client privilege was invoked to assert that Susan
22 Reed could not prosecute Albert McKnight because she had
23 assisted him in a previous legal matter. Of course, the
24 Fourth District overruled that, but they pointed out that the
25 the attorney-client privilege and the prohibition against
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 adverse representation that applies i n a -- a nongovernmental
'--
2 attorney-client relationship is much broade r than one that Mr.
3 Bravenec attempted to assert in Reed . And by that authority ,
4 this motion, the subject matter of the motion pertains
5 substantially to the relationship that McKnight and Bravenec
6 had with the -- with the estate and with myself .
7 As a matter of fact , there's a pending motion,
8 as you know, Your Honor, from o ur hearing on January 31st,
9 there's a pending motion requesting an order from the Court
10 essentially to declare Mr. Bravenec ' s status. The motion that
11 was placed on the docket was requested by Albert McKnight , and
12 it was granted to Albert McKnight . However, the the text
13 of the motion does not -- I should say and the text of the
14 motion does not refer in any way to Mr. Bravenec. From the
15 face of the record, he is still an attorney of record whose
16 authorization to withdraw has not been approved by the Court.
17 Now , I'm not saying that I was relying on him
18 to continue with the attorney-client relationship . What I ' m
19 saying is that it was his burden, for the same reason that
20 Albert McKnight moved for a motion t o withdraw , Edward
21 Bravenec had also made appearance t o represent me
22 specifically , and it was his burden to move the Court t o
23 obtain an order authorizing his withdrawal . He fa i led to d o
24 that. And as a result , that affects his capacity to present a
25 motion such as the one he has presented now, where he is
CHERYL D . HESTER, C . S.R . - PROBATE COURT NO. 1
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1 claiming a lis pendens.
2 In fact, the lien that he -- that led to his
3 possession of the property was acquired during the
4 relationship , during the attorney-client relationship with the
5 estate of King, with me as the administrator, and also at the
6 same time there was a substantial relationship --
7 THE COURT: Back up to the start of that
8 sentence again.
9 MR. MARTIN: I'm sorry. Bit of a run-on. What
10 I was saying is there was a substantial relationship between
11 the subject matter ln the motion and the
12 THE COURT: To remove the lis pendens?
13 MR. MARTIN: I'm sorry?
14 THE COURT: The motion to remove the lis
15 pendens?
16 MR. MARTIN: Yes. Yes, Your Honor . Yes, Your
17 Honor. For example -- for example -- again, I 'm saying that
18 the motion is not verified, so the motion is insufficient on
19 its face and should be dismissed. However, in paragraph 2 Mr.
20 Bravenec states that he holds complete fee simple title to the
21 property. To sustain that proposition, he would have to
22 convince the Court that there was a gift of my purchase money
23 interest ln the property at the time that he acquired it.
24 THE COURT: When -- how did you obtain a
25 purchase money interest in the property?
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1 MR. MARTIN: Your Honor, I executed a 1031 tax
2 deferred exchange in 2003 . The -- the proceeds from the sale
3 of the original property was rolled over into the property
4 that Mr. Bravenec is claiming an interest in now.
5 THE COURT: Do you have any documentation to
6 support your interest in that property?
7 MR. MARTIN: My tax return for 2003. It's
8 listed-- it's listed under the section for the tax deferred
9 exchange. And the proceeds from my escrow account --
10 THE COURT: If you have a tax deferred
11 exchange, you sell a piece of property and put the money into
12 a different piece of property. Do you have something to show
13 that you invested ln this property on West Avenue?
14 MR. MARTIN: Yes, Your Honor. My tax return.
15 THE COURT: And -- but this tax -- I mean, do
16 you have a copy of a deed or any other matters that support
17 MR. MARTIN: Well, Your Honor, first I would
18 say that an IRS record -- this was a tax return that the IRS
19 received ln 2004 reporting the transaction, which complied
20 with the 1031 requirement. So it should be admissible as
21 evidence of the -- to support the allegation that --
22 THE COURT: This is your tax return, right?
23 MR. MARTIN: Yes, Your Honor.
24 THE COURT: You filed this tax return?
25 MR. MARTIN: If I can explain, that's where the
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1 purchase money -- that ' s where the purchase money interest
2 arose, Your Honor, was because the escrow account was in my
3 name.
4 THE COURT : What escrow account?
5 MR . MARTIN: Well, when you execute a 1031
6 exchange, you execute a contract for sale between yourself as
7 seller and another party as a buyer . You also execute an
8 escrow agreement , which I have a copy of . And the escrow , the
9 the gain from the sale, the proceeds from the sale are held ln
10 escrow until the tax deferred -- until the exchanging party
11 identifies a replacement property . In my case I identified
12 1216 West Avenue as the replacement property . However, when I
13 went to close for the acquistion of the replacement
14 property --
15 THE COURT: The 1216 West Avenue?
16 MR . MARTIN : 1216 West Avenue .
17 THE COURT : Did someone sign -- did the owner
18 of 1216 West Avenue sign any documentation indicating that
19 they intended to transfer that property to you?
20 MR . MARTIN : Well , Your Honor , that ' s another
21 reason I would request a continuance.
22 THE COURT : That's my question ,
23 MR. MARTIN : I have --
24 THE COURT : Did someone
25 MR. MARTIN: Yes, someone did sign that.
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1 THE COURT: Who signed that? Was that an owner
2 of 1216 West Avenue?
3 MR. MARTIN : Yes, it was. Yes, it was , Your
4 Honor . I have that documentation, but I don't have it with
5 me.
6 And here's --here was the escrow agreement
7 that I signed with the intermediary for the 1 031 exchange.
8 You'll see in I be li eve paragraph 1 and paragraph 2 it refers
9 to the escrow account, and it says that the proceeds from the
10 sale would be deposited into the escrow account.
11 This was an escrow account in my name. When
12 the purchase of 1216 West Avenue was accomplished, a letter of
13 credit was transferred from that escrow account to the credit
14 of the seller of 1216 West Avenue in the name of Moroco
15 Ventures Limited Liability Company. That qualifies as a
16 purchase money security interest in my favor that's equal to a
17 vendor's lien and is entitled to priority over subsequent
18 subsequent encumbrances. So this is an issue that places Mr.
19 Bravenec's title in question.
20 In addition, Your Honor, the property was the
21 subject of a Chapter 11 bankruptcy at the time that he
22 executed the foreclosure . There has been a change in Texas
23 law on that point from the Texas Supreme Court decision of
24 Larry York v. State of Texas. And that case holds that a
25 post-petition foreclosure of a bankruptcy asset is void ab
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 initio. That the state courts do not have jurisdiction to
'-- 2 approve a foreclosure of a bankruptcy asset while the
3 bankruptcy proceeding is in state . And this rule applies even
4 after the bankruptcy case has been dismissed or terminated.
5 It goes to the constitutional jurisdiction of the State
6 courts.
7 And in this case , there was no -- there was no
8 jurisdiction over the parties , because the mortgage broker
9 from whom Mr. Bravenec attempted to acquired the first lien
10 interest was not the -- was not the holder in due course of
11 the note at the time. The 57th District Court did not have
12 jurisdiction over the subject matter because the property
13 itself, the res was an asset of the Moroco Ventures Chapter 11
14 bankruptcy estate .
15 And furthermore, Your Honor, I would say that
16 the court lacked capacity. Because at the time Mr. Bravenec
17 proceeded with the post-petition for foreclosure, he was still
18 an attorney of record in the probate court because he never
19 got an order authorizing his withdrawal. So I would contend
20 that under Rule 319 of the Texas Rules of Civil Procedure ,
21 which states that the probate court is the court of last
22 jurisdiction, in other words, any matter involving an issue
23 about title pertaining to a probate estate, the probate court
24 retains jurisdiction to adjust any order. In this case I'm
25 saying that the order -- it was an order of dismissal on its
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1 face from the 57th District Court. But under the law it
~
2 doesn't even constitute a judgment, because the Court has no
3 jurisdiction. But even if it did, the probate court would
4 have -- retain jurisdiction to adjust that dispute.
5 THE COURT: I don ' t see anything in here that
6 mentions 1216 West Avenue .
7 MR. MARTIN: It's ln there. I'll show it to
8 you, Your Honor.
9 Okay. It appears on the section ln the return
10 titled Like Kind Exchanges . And you'll see the exchange
11 property was 1348 Kenton Street in Washington, D.C., and the
12 property below that which identifies the replacement property
13 is 1216 West Avenue.
14 THE COURT: And how did -- where is -- it says
15 Kenton Street in San Antonio, Texas.
16 MR. MARTIN: May I see that?
17 THE COURT: But where is anything that
18 indicates that you received title to 1216 West Avenue?
19 MR. MARTIN: It's in Bexar County Deed Records.
20 I did not bring that document -- I didn't bring that
21 documentation with me. But it
22 THE COURT: But it was a deed from whom?
23 MR. MARTIN: It was a warranty deed from I
24 can't -- I simply cannot recall the gentleman ' s name. Roy
25 Ramspeck is his name. Roy Ramspeck and his wife, they were
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1 joint owners. I don't recall the wife's name, but his name
2 was Roy Ramspeck.
3 So Roy Ramspeck was the owner in fee simple of
4 1216 West Avenue. He sold the property to my limited
5 liability company, Moroco Ventures, in satisfaction of the
6 replacement property requirement for the 1031 exchange, of
7 which I was the -- I was the owner of the funds in the escrow.
8 The escrow agent transmitted a letter of credit to Mr.
9 Ramsbeck's bank, and that was the money that ope rated as the
10 down payment advance to enable Moroco Ventures to acquire the
11 property. So that advance, it was in the amount of $135,000.
12 I'd also say that the -- my understanding of authority on
13 purchase money interest is that there's two burdens that the
14 claimant has to show. One is the price
15 THE COURT: I just wanted to know how you
16 acquired a title to 1216 West Avenue. That's what -- and
17 MR. MARTIN: Well, as I said, Moroco Ventures
18 acquired title to 121 6 West Avenue. I was the purchase money
19 -- I was the purchase money creditor for Moroco Ventures
20 Acquisition, and I was also the sole shareholder of Moroco
21 Ventures. But nonetheless, the purchase money interest
22 survived the foreclosure. That is the point of it. And when
23 we executed the second lien interest with Mr. McKnight and
24 Bravenec --
25 THE COURT: And you executed that --
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1 MR. MARTIN : This was -- this was
2 THE COURT : -- Fo r what reason?
3 MR . MARTIN : Well , ln exchange for legal and
4 financial services on their part .
5 THE COURT : So you gave them a lien --
6 MR. MARTIN : Yes .
7 THE COURT : -- On the property at 1216 West
8 Avenue. Correct?
9 MR. MARTIN : Yes , Your Honor. In cons i dera t ion
10 for legal and financial services , part of which was the
11 expectation that they would continue to represent --
12 THE COURT : That's fine about that. All I'm
13 trying to do is figure out what the title issue is here .
14 MR. MARTIN : Okay . Well, they took a second
15 lien on the property in between that appearance that they made
16 in --
17 THE COURT : I'm not worried about when they --
18 I'm just looking at the title to the property .
19 MR. MARTIN : Okay . We're looking at the t i tle
20 issue . Well, then the argument is that my understanding of
21 Texas law is t hat a purchase money security interest is equ al
22 to a vendor's lien .
23 THE COURT : What do you have that manifests
24 your purchase money security interest?
25 MR . MARTIN : The tax return that I just showed
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1 you, and the 1031 escrow agreement with the - - with the
2 intermediary and with the buyer of the original property.
3 THE COURT : And does this in any way mention
4 1216 West Avenue?
5 MR. MARTIN: There is documentation from the - -
6 from the exchange that mentions 1216 West Avenue, but it does
7 not appear in that document .
8 THE COURT: Okay. Do you have documentation
9 with you that supports -- I think what I'm hearing is that you
10 believe you have a prior lien on this property. So I think
11 what happened was they foreclosed their second lien on that
12 property?
13 MR . MARTIN: It's -- that's what they - - well,
14 Your Honor, it's a little more complicated than that. They
15 had a second lien. It's not a yes-or - no question, and it goes
16 to the heart of what you are asking for, so if you'll please
17 bear with me.
18 As I said, at the time they foreclosed, the
19 asset -- the property was an asset in a bankruptcy estate and
20 was being used
21 THE COURT: In whose bankruptcy estate?
22 MR. MARTIN : Moroco Ventures.
23 THE COURT: And you are the principal of Moroco
24 Ventures?
25 MR. MARTIN : I was at that time , yes .
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1 THE COURT : And you put Moroco Ventures ln
2 bankruptcy?
3 MR . MARTIN: Yes , Your Honor .
4 THE COURT: Okay . And is that bankruptcy still
5 going on?
6 MR. MARTIN : No . That was the subject -- the
7 bankruptcy was part of the controversy that led to the federal
8 court case that -- that Mr . --
THE COURT :
10 MR. MARTIN : -- Mr . Bravenec mentioned . But
11 your question was about --
12 THE COURT: And it's now been dismissed, right?
13 MR. MARTIN: No .
14 THE COURT : The -- the
15 MR. MARTIN : Well, the District Court case
16 THE COURT: No, the bankruptcy proceeding.
17 MR. MARTIN: Oh, yes. Yes.
THE COURT:
19 MR. MARTIN: The bankruptcy proceeding was
20 dismissed because Mr. Bravenec and Mr . McKnight seized the
21 sole asset of the bankruptcy estate . So the reorganization
22 hear i ng was scheduled for the following month . There was --
23 t h ere was nothing --
24 THE COURT: Well --
25 MR. MARTIN: - - To reorganize .
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1 THE COURT : But they foreclosed using their
2 second lien to foreclose on that property.
3 MR. MARTIN: Indirectly, Your Honor.
4 Indirectly. What I mean by indirectly is that unknown to me,
5 they were negotiating with a first lien claimant who was also
6 a creditor and who was also representing itself as a creditor
7 in the bankruptcy. The first lien claimant declared a default
8 that was disputed.
9 THE COURT: By whom?
10 MR. MARTIN: By me. By Moroco Ventures and by
11 me. Mr. Bravenec --
12 THE COURT: And what was the judicial outcome
13 of the dispute for the default by the first lien claimant?
14 MR. MARTIN : This is the subject of the ongoing
15 federal appeals now.
16 THE COURT: And who is the owner of the first
17 lien?
18 MR. MARTIN: The owner of the first lien was an
19 undisclosed assignee by the name of Burnhart Properties, I
20 believe Bernhardt Properties II, Limited. They're based in
21 Austin. However, the controversy arises from the fact that
22 the -- the -- the debt collectors who were appearing in the
23 bankruptcy claiming to be first lien owners and holders of the
24 first lien, were not the owners or the holders of the first
25 lien. Bernhardt Properties was the owner and holder of the
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 first l i en. Mr. Bravenec and Mr. McKnight negotiated with the
2 pretended first lien holder to acquire the -- to subrogate
3 their foreclosure rights.
4 So the foreclosure came about, Your Honor , when
5 Mr. McKnight and Mr. Bravenec alleged to Judge John Gabriel
6 that the pretended first lien owner had reneged on a promise
7 to sell them the first lien note, which he did not own or
8 hold. They proceeded to -- they obtained an ex parte
9 temporary restraining order purporting to enjoin the
10 foreclosure of the first lien and then they proceeded -- they
11 proceeded to foreclosure themselves. And I'm uncertain as to
12 what the legal theory of that -- of their foreclosure was.
13 THE COURT: What did the bankruptcy court do
14 with the piece of property?
15 MR. MARTIN: The event was - - the bankruptcy
16 court dismissed the case, because there was no assets for - -
17 to proceed with the reorganization.
18 THE COURT: Because the property had been
19 foreclosed on, right?
20 MR. MARTIN: Because the property had been
21 seized in a post - petition foreclosure. Those are the facts .
22 This issue was not adjudicated in the bankruptcy court. There
23 was simply a dismissal. It was -- there was a -- there was --
24 there's documentation about these events.
25 As a matter of fact, in the response you will
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1 see --
~-
2 THE COURT : I don't have a response. Possibly
3 lS this a response?
4 MR. MARTIN: I think it's probably under the
5 first document.
6 THE COURT: Right.
7 MR. POTHOVEN: Your Honor, if I may? It's
8 getting late. I would like to bring the hearing back on
9 track . About 35 minutes ago the Court asked if there ' s any
10 fact question, because respondent is asking for a jury . There
11 -- it's all questions of law. If there is a question of fact,
12 Judge, the Court may take judicial notice. Because our motion
13 only refers to his -- his motion that the lis pendens is
14 referring to.
15 Your Honor, the only question that the Court
16 needs to ask is whether this estate has anything to do with
17 the property that Mr. Martin's recorded his lis pendens on.
18 There is no relationship whatsoever, you know. And you know,
19 part of my sort of mental practice in trying to figure out
20 what's going on lS I put myself ln the shoes of the other
21 party. I try to give the other party as much credit as
22 possible. The closest thing I can come to, Judge, as far as
23 the nexus between this estate and the property that he filed a
24 lis pendens on is that Moroco Ventures once upon a time was an
25 owner of the property. Moroco Ventures was wholly-owned by
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1 Mr. Martin. Mr. Martin is also the administrator of this
2 estate. And we're here and he filed the motion on --
3 through citing the estate . That's -- that's -- and that's
4 I'm, you know, straining logic to come to that conclusion, but
5 that's the only nexus here, Judge, between a claim to title on
6 the property and this probate proceeding. Because there's no
7 nexus , Judge, I'm just asking the Court to expunge the lis
8 pendens that he filed citing this cause. And it's really that
9 simple, Judge.
10 THE COURT: As in the West -- so this was filed
11 by Mr. Martin as the administrator of the estate?
12 MR. POTHOVEN: That's correct, Judge.
13 MR. MARTIN: Yes, Your Honor. Let me explain
14 that, let me respond to Mr. Pothoven's point. He claims that
15 there was no nexus and he claims there's no law to support
16 that.
17 As to the -- as to the nexus, you asked earlier
18 what was the consideration for the lien interest that McKnight
19 and Bravenec acquired. And I responded that the lien was
20 given in exchange for legal and financial services and with
21 the expectation that the financial services would encompass
22 continued representation in the probate estate as attorneys
23 for the estate. That did not happen. After they acquired the
24 lien, they -- they ceased to perform those services, as shown
25 in-- if you flip to the rear of your exhibits, you'll see an
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 exhibit titled fiduciary affairs and transactions. It will
2 show that I retained McKnight and Bravenec January of --
3 January 1st, on or about January 1st in 2003. That there were
4 -- there was an estate hearing on February 1st of 2005. There
5 was a billing statement on April 1st, 2005. The deed was
6 executed on May 1st, 2005. After that point there were
7 several requests for McKnight and Bravenec to continue
8 services, but they discontinued the services and eventually
9 eventually moved the Court to withdraw from the
10 representation.
11 Your Honor, that was disruptive to the estate
12 administration. And that is - - and the lien that they had
13 acquired was in consideration for services, part partially
14 in consideration for services they were supposed to provide to
15 the estate, of which I was the administrator. So the nexus
16 comes from the fact that they -- that they have retained fees,
17 an in - kind type of fee compensation that far exceeds the value
18 of the services that they rendered.
19 And as to the law that would bring this within
20 the probate jurisdiction, I'm relying on Section 5B of the
21 Texas Probate Code and the interpretation of Section 5B be ln
22 the case of Porter V. Denas . I'm also relying on Smith v .
23 O'Donnell. I'll start with Smith v. O'Donnell.
24 Smith v. O'Donnell, the issue was whether or
25 not an administrator had standing and capacity, a post-mortem
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
25
1 administrator, whether a post-mortem administrator had
2 standing and capacity to sue attorneys who had represented the
3 decedent inter vivos. This was a 2008 decision, and the
4 Supreme Court held that -- that the administrator did have
5 standing and advanced a theory as to how the administrator had
6 privity with the attorneys. If -- if a post-mortem attorney
7 has standing and capacity to sue a inter vivos legal
8 representatives, then certainly in a case such as this, where
9 I'm the post-mortem administrator and I retained the attorneys
10 at McKnight and Bravenec, there was privity between me and
11 them under the auspices of the estate, there was privity
12 between me and them in my personal estate, and there was
13 privity between me and them in my corporate estate. There was
14 no estate that I was in possession of which we were no t in
15 privity and in which they did not take money from me. Yet
16 when it came time for them to perform the services that they
17 were expected to perform --
18 THE COURT: Did you -- did you actually pay
19 them money?
20 MR. MARTIN: Yes. During -- during the
21 relationship, money was paid, yes.
22 THE COURT: Aside from giving them a lien on
23 the property?
24 MR. MARTIN: Aside from giving them a lien on
25 property. So that's the -- that's the factual nexus. The
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
26
1 legal nexus comes from the fact that I'm an administrator that
2 has privity the attorneys.
3 THE COURT: Is it true that you filed four lis
4 pendens on this property?
5 MR. MARTIN: In connection with the federal
6 proceeding, where I was proceeding as successor in interest in
7 Moroco Ventures, that's correct.
8 THE COURT: And what's happened with those
9 others?
10 MR. MARTIN: Well, before the federal court
11 denied the last one f or the probate court, the court canceled
12 them. That is also a subject of the pending federal appeal,
13 is that the Court - - the proceedings are being challenged on
14 plain error grounds. I don't think it helps at this point, at
15 this late hour to go into that, but this just is another fact
16 issue that requires a jury trial.
17 But as to the law which Mr. Pothoven is
18 claiming does not support my case, the other case -- so under
19 Smith V. O'Donnell, I have standing and capacity to sue
20 McKnight and Bravenec for malpractice in regards to the
21 estate. The facts that would support that -- the prima facie
22 case are outlined in my response and in the special exceptions
23 and objections.
24 The other case that I rely on is Porter v.
25 Denas. In that case there was an administrator or an executor
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
27
1 who sued fiduciaries in the estate who had acquired
-
~
2 nontestamentary assets . These were this was a -- a CD
3 account or something to that effect that fiduciaries had
4 placed in their own name, and they were claiming that it was a
5 gift from the decedent. The executor challenged that , and the
6 the fiduciaries attempted to claim that they were not under a
7 fiduciary obligation and the administrator lacked standing and
8 had not established a prima facie case and the court -- that
9 the court lacked jurisdiction , the probate court lacked
10 jurisdiction because the supposedly nontestamentary -- nontest
11 -- nontestamentary asset was not part of the probate estate.
12 That was - - that was the fiduciary ' s theory in that case .
13 The Fourth District Court of Appeals held that
14 that what brought the matter within the probate court ' s
15 jurisdiciton was the fact that the administrator was a party
16 to the dispute involving the nontest -- testamentary account .
17 The nontestamentary property interest . And that principle
18 applies in this case, as well. Because I'm the administrator,
19 I've -- I've alleged that they were paid in part in kind,
20 there was an attorney-client relationship with the es t ate ,
21 t h ey were paid with the -- they were paid both cash and in
22 k i nd with the expectation that they would continue
23 representation in the estate. They did not. It was
24 disruptive to the to the estate process. And they retained
25 -- t hey retained the the asset which was given to them i n
CHERYL D . HESTER, C.S.R . - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
28
1 consideration for that and of which the estate was a
2 beneficiary.
3 So in the same sense that Porter v. Denas
4 applies to a nontestamentary asset , for the same reason
5 Section 5(b) applies in this case . Because you have a pending
6 dispute not only in this Court, but in two other -- two other
7 courts, which I will explain .
8 There ' s exhibits ln the 150th District Court
9 and the 224th District Court .
10 THE COURT : But the Estate of Johnnie Mae King
11 never had ownership in any way of the property at 1216 West
12 Avenue. Is that - -
13 MR . MARTIN : They were an intended benef i c i ary
14 of the lien that was was --
15 THE COURT : That wasn't my question. They
16 never had ownership in any way of that property.
17 MR. MARTIN : No, they did not own legal title
18 to the property.
19 THE COURT : Okay.
20 MR. MARTIN: But in Porter v. Denas, that was
21 not the criteria that the Fourth District applied. Because i n
22 that case the fiduciary --
23 THE COURT: Did that invovle a lis pendens?
24 MR . MARTIN : No, Your Honor.
25 THE COURT : It just was an argument about a b out
CHERYL D . HESTER, C.S.R. - PROBATE COURT NO . 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
29
1 whether there was jurisdiction in the probate court, right?
2 MR. MARTIN: Well, it was an argument about
3 jurisdiction, and it was an argument about the nature of the
4 nontestamentary property interest that the fiduciaries
5 claimed. And the conclusion was , was that because there was a
6 dispute about those assets and the administrator was a party
7 to that to that dispute, that -- that probate jurisdiction
8 applied .
9 THE COURT: Okay .
10 MR . MARTIN : There's one other thing, Your
11 Honor. May I po i nt out --
12 THE COURT: One other things.
13 MR. MARTIN: As to the ma l practice claim, which
14 lS the gravemen of the nexus with McKnight and Bravenec, when
15 they withdrew, property, real property of the estate was
16 encumbered with l itigation against heirs to collect ad valorem
17 taxes. Mr. Bravenec represents in Exhibit C that the
18 litigation was ln effect that the litigation was frivolous .
19 In the exhibits to the response, Your Honor ,
20 you will find two sets of orders from the 150th District Court
21 and the 224th District Court. The first in that set of orders
22 is an order to vacate judgments that were entered in those
23 cases against the heirs involving estate property , and the
24 second order, the second order from each court is a nonsuit of
25 the litigation in its entirety in that litigation involving
CHERYL D. HESTER , C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
30
1 real property of the estate.
2 Under estate law malpractice , the claims
3 against McKnight and Bravenec arising from the i r negligence in
4 failing to properly represent the estate in those matters, the
5 equitable tolling period expired as of the date that the
6 nonsuit orders were entered, which was January 22nd, 2014. So
7 a malpractice claim ripened in January of 2014 against
8 McKnight and Bravenec. So there is a claim for malpractice
9 that i s within the probate court ' s jurisdiction in wh i ch the
10 estate has a right to attach the property, has a prejudgment
11 right to request that property be attached to secure its
12 interest in -- in securing damages for malpractice . And there
13 is also a separate purchase money interest which I possess
14 individually, but for the benefit of the estate, which clouds
15 title to the property .
16 Further, Your Honor , after the Fifth Circuit of
17 Appeals docketed the second appeal in 14-50093 , I -- I filed a
18 notice of lis pendens to -- to indicate that there was
19 litigation pending on that front, as well . So the motion is
20 also defective, because even if you grant the motion as it's
21 written, it will not terminate the lis pendens dispute .
22 THE COURT : Okay .
23 MR. BRAVENEC: Judge, I'm going to be brief. I
24 think you've already sensed what ended up happening, that we
25 ended up foreclosing on the property , he had two bankruptcies.
CHERYL D . HESTER, C.S . R . - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
31
1 They ended up holding that the foreclosure was okay. He then
2 sued us in federal court, filed a couple lis pendens that were
3 cancelled, went to the Fifth Circuit, who in a written opinion
4 affirmed the summary judgment in the District Court. They
5 ended up giving some 7,000 , $8,000 sanction for filing another
6 lis pendens.
7 MR. MARTIN: Which is on appeal.
8 MR. BRAVENEC: An appeal that was dismissed for
9 want of prosecution on November 27th because he didn't pay
10 the --
11 MR. MARTIN: That's not the appeal, Your Honor.
12 Objection.
13 MR. BRAVENEC: Because he didn't pay the filing
14 fees.
15 MR. MARTIN: That's not the same appeal.
16 MR. BRAVENEC: I think he's appealed the
17 sanct i on order to the Fifth Circuit. I'm not sure. The
18 we're advised by the Supreme Court that his 90-day period ran
19 on February 27th, and he only filed his Writ of Certiorari on
20 February 11th. We are literally ready to close except for the
21 probate. Now he's filed an additional one that deals with the
22 federal matter. And I mean, the federal judge was about as
23 clear as possible that because it was probate court, he wasn't
24 going to jail Mr. Martin.
25 MR. MARTIN: I object, Your Honor. I object to
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335-2359
32
1 the --
2 MR . BRAVENEC : I don 't want --
3 MR . MARTIN : I object .
4 THE COURT : I want h im to f i nish talking.
5 Thank you .
6 MR . BRAVENEC : I d o n ' t want him jailed. I
7 mean, I --
8 MR . MARTIN : You don't have a right to have me
9 jailed .
10 MR . BRAVENEC : I really wish he hadn't filed
11 another thing in the federal court . I just want to close
12 tomorrow. But what I ' m asking this Court to do is get rid of
13 the probate lis pendens . I think the Court knows the law
14 pretty well.
15 THE COURT : Granted.
16 MR. MARTIN : Well, Your Honor, I should say
17 that the further notice o f lis pendens that is of record now,
18 and the motion does not apply to the further -- to the further
19 notice , but the motion , the further not i ce identifies the
20 buyer as One for Autism , Incorporated. The buyer is on
21 constructive notice, lS on constructive notice of the
22 litigation in the -- in the federal appeals case and of the
23 pending motion for authorizing terms of withdrawal for Mr .
24 Mr . Bravenec. So the grant of the order will not insulate the
25 buyer from -- from liability for proceeding with the -- f o r
CHERYL D . HESTER, C . S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO , TEXAS 78205 (210) 335-2359
33
1 proceeding with the sale .
~-
2 THE COURT : I think these are your original
3 documents.
4 MR . MARTIN : Your Honor, how does this affect
5 the status of the pending mot i on ?
6 THE COURT : Of wha t pending motion?
7 MR. MARTIN: There is a pending motion for an
8 order authorizing Mr. Bravenec, authorizing the terms of
9 withdrawal. Which would --
10 THE COURT : Mr . Bravenec withdrew whenever that
11 was, October of --
12 MR . POTHOVEN : Judge - -
13 THE COURT : October 5th of ' 05, I believe .
14 MR. MARTIN : Your Honor, the record shows that
15 that's when he terminated his appearance, but when was the
16 when was an order entered identifying Mr . Bravenec as the
17 beneficiary of an order of withdrawa l ? I'm not aware of any
18 such order . That was the subject of the hearing on J anuary
19 31st . I spoke to your clerk. The clerk i nformed me that you
20 had requested the transcript from that proceeding to -- t o
21 evaluate --
22 THE COURT : And I've determined that he
23 withdrew as of October the 5th, 2005 .
24 MR. MARTIN : Can we can we memorialize t hat
25 termination as part of this order, as well?
CHERYL D . HESTER, C.S . R . - PROBATE COURT NO. 1
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SAN ANTONIO , TEXAS 78205 (210) 335-2359
34
1 THE COURT: There was an order signed on
2 October the 5th of 2005.
3 I suppose we need a copy of that for everybody.
4 MR. MARTIN: What I'm asking for, Your Honor,
5 is a disposition on the motion that I filed that was heard on
6 January the 31st. It sounds like you're denying -- it sounds
7 like the motion is denied. If you're saying that - - you're
8 saying that -- I'm not sure what you're saying about the
9 motion. I understand you would say that your finding is that
10 he withdrew in 2000 - - in October of 2005, but I'm not sure I
11 understand what the disposition of my motion was that was set
12 for January 31st.
13 THE COURT: I don't even -- I don't have a copy
14 of that sitting right here in front of me . I don't - - the
~-
15 motion to authorize terms of withdrawal, I'm not sure -- he
16 withdrew.
17 MR. MARTIN: But it wasn't memorialized, Your
18 Honor. The issue was not that he terminated his appearance,
19 the issue was why there was no order on the record identifying
20 him as an authorized -- as a party authorized to withdraw.
21 MR. POTHOVEN: Judge, I know the Court is still
22 sitting. I think that we've done what we need to do today,
23 and I ask to be excused.
24 MR. MARTIN: Well, Your Honor/ I'm asking that
25 we include in the record of this proceeding, because you've
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
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35
1 made a determination, a factual determination that was not
..___-
2 available when we -- when my motion was heard on the 31st, and
3 I would like to get closure on that issue, as well, since you
4 are annoucing in open court that he withdrew -- that in your
5 opin i on that he withdrew , he was au t horized to withdraw in
6 October 2005 . And my motion addressed the issue that there
7 was no order to that effect. And I requested an order stating
8 when -- when , in the Court's opinion , the withdrawal took
9 effect .
10 And also , Your Honor , just for the record , I
11 would like a ruling that the exhibits that were attached to my
12 pleadings were reviewed by the Court and admitted into
13 evidence.
14 THE COURT: Attached to what pleading?
15 MR . MARTIN : There was a response that you
16 examined, then there was also special exceptions and
17 objections that you examined. The -- the exhibits were
18 attached to the response . They consisted of the orders from
19 the 150th and 224th District Court, there was a final account
20 from John Tutt, who was the attorney for Moroco Ventures in
21 the Chapter 11 Bankruptcy
22 THE COURT : Well, it's already been ruled on,
23 and there wasn't any offer at that time . So you had documents
24 attached to your response. I saw them .
25 MR. POTHOVEN: May we be excused, Judge?
CHERYL D . HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
36
1 THE COURT : Okay . This ought to address your
'-- 2 other concern.
3 MR . MARTIN : Thank you, Your Honor .
4 THE COURT : Thank you.
5 (Proceedings Adjourned)
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CHERYL D . HESTER , C.S.R. - PROBATE COURT NO. 1
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1 THE STATE OF TEXAS
2 COUNTY OF BEXAR
3
4 I, Cheryl D. Hester, Official Court Reporter ln
5 and for Probate Court Number 1 o f Bexar County, State of
6 Texas, do hereby certify that the abo ve and foregoing contains
7 a true and correct transcripti o n o f all portions of evidence
8 and other proceedings requested by c ounsel for the parties to
9 be included in this volume o f the Repo rter's Record, in the
10 above-styled and numbered cause , all of which occurred in open
11 court or in chambers and were rep o rted by me.
12 I further certify that this Reporter's Record
13 of the proceedings truly and correctly reflects the exhibits,
14 if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Rep orter' s R:cord is $
0
l ~ ~ ~ OD and was
17 paid / will be paid by bJJ ),)(;.j"'- clllli U/cf0vL
18
19 WITNESS MY OFFICIAL HAND this the 12th day of
20 June, 2015.
21
22
CHERYL D. ESTER, C .S.R.
23 Official ! urt Reporter, Probate Court No . 1
Bexar County, Texas
24 100 Dolorosa
San Antonio, Texas 78205
25 (210 ) 335-2359
Texas CSR #4519 ; Expires 12/31/15
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
1 R E P 0 R T E R 'S R E C 0 R D
2 VOLUME 1 OF 1
3 TRIAL COURT CAUSE NO. 2001 - PC-1263
4
IN THE ESTATE OF IN THE PROBATE COURT
5
JOHNNIE M. KING, NUMBER 1
6
DECEASED BEXAR COUNTY, TEXAS
7
8
9 MOTION TO DISMISS
MARCH 31, 2015
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21 On the 31st day of March, 2012, the following
22 proceedings came on to be heard in the above-entitled and
23 numbered cause before the HONORABLE KELLY M. CROSS, Judge
24 Presiding, held in San Antonio, Bexar County, Texas:
25 Proceedings reported by Machine Shorthand.
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
1
2 A P P E A R A N C E S
3
4 MS. ELIZABETH CONRY DAVIDSON
BAR 00793586
5 926 Chulie Drive
San Antonio, Texas 78216
6 ( 2 1 0 ) 3 8 0 - 4 8 9 9 ; Fax ( 2 1 0 ) 2 2 5 - 2 3 0 0 ,
Attorney for Bexar Appraisal District;
7
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Appearing Pro Se .
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CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
1 CHRONOLOGICAL INDEX OF PROCEEDINGS
March 31, 2015 Page
2
Appearances - - - - - - - - - - - - - - - - - - - 1
3
4 Announcement of Not Ready - 2
Ruling - - - - - - - - 2
5
6 Discussion regarding Adminstrator/Heirs - - - - - - - 3
7
Motion to Dismiss:
8 Argument by Ms. Davidson - - - - - - - - 9
Argument by Mr. Martin - - - - - - 14
9 Argument by Ms. Davidson - - - - - - 37
Argument by Mr. Martin - - - - - - - - 43
10 Ruling - - - - - - - - - - - - 46
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Oral Motion to Transfer 46
12 Ruling - - - - - - 47
13
Proceedings Adjourned - - - - - - - - - - - - - - - - 48
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CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335-2359
1 EXHIBIT INDEX
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4 ***NONE MARKED OR ADMITTED***
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CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
1
1 MARCH 31, 2015
2 THE COURT: The Court is going to call
3 2001-PC - 1263. We have a Motion to Dismiss on the Estate of
4 Johnnie M. King.
5 Please make your appearances.
6 MS. DAVIDSON: My name is Elizabeth Conry
7 Davidson. I represent Bexar Appraisal District and Bexar
8 Appraisal Review Board.
9 THE COURT: How do you do?
10 MS. DAVIDSON: Good. How are you?
11 MR. MARTIN: Hello.
12 THE COURT: Hi.
13 MR. MARTIN: I'm Rowland Martin. I'm the
14 administrator for the Estate of King.
15 THE COURT: Okay. I have looked at this file,
16 and I'm a little confused why we still have an active 2001
17 file. With that being said, I've read the pleadings, and I
18 believe it is your Motion to Dismiss.
19 Have a seat.
20 MS. DAVIDSON: So would you -- would the Court
21 like to see a copy, or does the Court have a copy of our
22 motion?
23 THE COURT: I believe I have a copy somehere.
24 MS. DAVIDSON: Okay. I can give you one if you
25 decide you'd like one.
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
2
1 THE COURT: I have the - - the only thing that I
2 do not have here on your motion, you said that there was an
3 attached Exhibit A, and there has been no Exhibit A.
4 MS. DAVIDSON: And I have a copy here. I'm
5 sorry about that.
6 THE COURT: Was counsel - - I'm sorry, you're
7 pro se. Was Mr. Rowland Martin given a complete
8 MS. DAVIDSON: He did not receive a copy, but
9 these are orders that he has signed. His signature is on
10 them.
11 MR. MARTIN: Your Honor, I did inquire, but I
12 was not clear about specifically what orders they were
13 refering to. I am aware of these orders. I did sign these
14 orders. But the -- my announcement is not ready today, and
15 that's part of the reason, is that the motion was insufficient
16 on its face. It didn't include the attachments that it cites
17 to substantiate the relief they request.
18 THE COURT: Okay. We're going forward. Your
19 motion, oral motion is denied.
20 Where is --
21 MS. DAVIDSON: May I pass out copies, please?
22 THE COURT: Please.
23 MR. MARTIN: Your Honor?
24 THE COURT: Yes.
25 MR. MARTIN: The other reason for the not ready
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
,
3
1 announcement was that there was a Motion for Special
2 Exceptions that was filed, and a request to have that motion
3 set for today was made. And I'm not aware of what that Court
4 ruling was, whether that motion is before the Court. Although
5 it's styled as a Motion for Special Exceptions, it addresses
6 some jurisdictional issues. But my understanding, after
7 conferring with opposing counsel, is that opposing counsel is
8 not prepared to address the special exceptions. So that's the
9 reason for the -- for the not ready announcement.
10 THE COURT: Here's what I see. Have a seat,
11 both of you.
12 We're going to end this case one way or
13 another, so we can have a little bit going on right now. But
14 right now what I see is that you do not have a law license,
15 and you're an administrator, and you're not the sole
16 beneficiary. Is that correct?
17 MR. MARTIN: I'm not licensed in Texas. I am
18 pro se. My understanding is that no law license is required
19 for a person to perform the duties of an administrator. There
20 were two heirs of the estate, and one is now deceased.
21 THE COURT: And who takes -- I believe that was
22 Opal, your sister?
23 MR. MARTIN: That was my mother's sister.
24 THE COURT: Your mother's sister.
25 MR. MARTIN: Johnnie Mae King, the decedent,
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
4
1 was my grandmother. I'm the only child of her daughter
2 Loraine King Martin. And Opal Gilliam was my mother's sister.
3 THE COURT: And since the time of the heirship,
4 have you done anything as an administrator in order to gather
5 and disperse this estate to yourself and the other 50 percent
6 owner at the time?
7 MR. MARTIN: There was a -- a settlement
8 agreement that involved a mutual exchange of releases between
9 myself , in my capacity as an heir, and Opal Gilliam, who at
10 that time was deceased and was represented by her -- by her
11 husband. However, there are unresolved matters pertaining to
12 the estate and pertaining to estate property, and there are
13 other proceedings that are ongoing involving the estate. One
14 in the Fourth Court of Appeals, and one in the 150th District
15 Court, and another one that is an unresolved status in the
16 166th District Court. So that's why the estate is - -
17 THE COURT: Here's what the Court sees. You
18 can go ahead and do whatever you want as an administrator
19 representing yourself if you're the sole beneficiary. But you
20 are not representing just yourself, you're in the position of
21 being a fiduciary. The Court is uncomfortable with that,
22 because you are not able to represent the other 50 percent
23 share. If you are going to be pro se, you represent yourself
24 for what you're going to come and get and not get and whatever
25 you're going to do. But you're not. You're a fiduciary for
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (2 10) 335 - 2359
s
1 somebody who was a SO percent owner. And this lS a 2001 case,
2 and this lS 201S.
3 So we're going to do a couple of things today.
4 We're going to hear what you have to say, and I'm going to
S take both of those things under consideration. And before you
6 leave my court, we're going to set this for mediation, we'll
7 set it for a docket control. And then I'm going to review
8 this file in totality and let you now whether you're going to
9 become and stay the administrator. While you may represent
10 yourself, this Court does not have the same opinion that you
11 are capable and able to represent anyone else other than
12 yourself.
13 MR. MARTIN: Your Honor, I would add, and I
14 respect the Court's opinion, and to aid the Court in the
1S exercise of its jurisdiction, first of all, as I said earlier,
16 there was an heirship settlement agreement where the other SO
17 percent interest holder released all claims against any
18 distribution from the estate. There were -- there were
19 THE COURT: How did she do that, sir? Did she
20 -- did she sign a disclaimer? Did you purchase her share? I
21 don't remember seeing that ln the file. And what benefit did
22 she derive from letting go of her SO percent?
23 MR. MARTIN: That's a fair question, Your
24 Honor. First of all, she was represented by Mark Smith, local
2S attorney Mark Smith, probate attorney here.
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1 THE COURT: Was that settlement on file in my
2 records?
3 MR. MARTIN: Yes, it is.
4 THE COURT: I haven't seen it.
5 MR. MARTIN : I don't know what's ln your
6 immediate file, but it is on record. This occurred in 2008.
7 At that time Ms. Gilliam was deceased, and as I said, her
8 husband, Calvin Gilliam, had assumed responsibility for
9 representing her interest. And Mark Smith represented her
10 part of the -- of the heirship.
11 THE COURT: And was her estate probated so that
12 there was her husband standing a title with Mr. Smith?
13 MR. MARTIN: Mr. Smith would have to answer
14 that question. The -- the settlement was the -- the
15 settlement was approved. That's what I can say, is the
16 settlement
17 THE COURT: By who?
18 MR . MARTIN: By Judge Jackson. The settlement
19 was approved. So I did not although I represented the
20 estate as the administrator, I also had capacity as an heir .
21 And we entered into that settlement agreement as an heir. And
22 I'm not aware of any objection or any second thoughts about
23 that settlement agreement on the part of Mr. Smith from my
24 family members on my-- on Opal Gilliam's side. That's the
25 first thing I would say, Your Honor.
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SAN ANTONIO, TEXAS 78205 (210) 335 - 2359
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1 So essentially what remains to be done is to
2 remove certain clouds that are on the titles of the real
3 property that remains titled in the estate during the estate
4 administration. And the real property that remains will be
5 distributed to me. What the Gilliam heirs rece i ved were bank
6 accounts that were in dispu te, where these bank accounts were
7 in California. So essentially, as a matter convenience for
8 everyone, even they retained cash assets ln the form of these
9 bank accounts that were in California .
10 I should also explain, my -- my grandmother had
11 Alzheimer's. She was a life-long resident of San Antonio, was
12 domiciled in San Antonio. However, in her later life she
13 developed Alzheimer's, and at that time my mother's --my
14 mother was deceased, and my mother's sister was still alive.
15 So she relocated to California to receive care from the family
16 members in California. Some of her bank accounts from Texas
17 were transferred out to California. That was an issue ln
18 dispute, the status of those accounts, and it was resolved ln
19 the settlement agreement by allowing - -
20 THE COURT: So you, as the administrator and
21 heir, are the heir to a hundred percent of the shares of what
22 is in dispute with the taxing authorities.
23 MR. MARTIN: That is correct.
24 THE COURT: Have a seat . Have you done your
25 inventory -- have you done your annual accountings?
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1 MR. MARTIN: No.
2 THE COURT: Are you a dependent administrator?
3 MR. MARTIN: I'm an independent administrator.
4 THE COURT: Independent administrator.
5 MR. MARTIN: Your Honor, there's one other
6 thing I would point out as to my ability to carry out the
7 functions of the administrator. Although I'm not licensed ln
8 Texas, I've previously been admitted in Washington, D.C.,
9 Pennsylvania, and New York to practice law. I have -- I'm no
10 longer active ln the practice of law, and I have not been
11 since I returned to Texas. But I'm a graduate of Princeton
12 University and of the University of Texas Law School, and do
13 believe I've capable of representing --
14 THE COURT: Again, I'm not going to change my
15 ruling because you have a background. My rule is if you are a
16 fiduciary for someone else other than yourself, you're not
17 going to be able to practice law without a license in my court
18 and represent pro se in that capacity if you are doing it for
19 anybody other than yourself. The settlement agreement with
20 the other 50 percent heirs takes away that concern for me, so
21 I'm back to what I said.
22 The Court's in receipt of the two orders that
23 were supposed to be attached as Exhibit A. It almost looks
24 like the -- it looks like it's signed on the same day. You
25 want to read this one here? I can read the other one, but it
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 looks like almost the same thing.
2 MS. DAVIDSON: The blurrier one lS the one you
3 want me to read?
4 THE COURT: The darkened one.
5 MS. DAVIDSON: Okay.
6 On this day came on to be considered
7 Administrator's Supplemental Motion for Orders Evidencing a
8 Disposition of Show Cause Proceedings and Motion for
9 Procedural Relief. Having heard the arguments of counsel and
10 the parties, this Court finds that it has no jurisdiction.
11 The discovery is abated until 30 days after the determination
12 of jurisdictional issues as to the -- and I can't read that
13 part.
14 Signed this 15th of November, 2010.
15 And it says signature of Judge Spencer and
16 counsel for the Appraisal District, William Durland, Counsel
17 for the Appraisal Review Board, Peter Low, Mr. Martin, counsel
18 for -- and two counsel from - - or from the Linebarger Firm,
19 who represented the taxing authorities.
20 THE COURT: You want, in about 30 seconds, to
21 tell the Court why the taxing authority has drug this citizen
22 over such small amounts around for years and years and years
23 and years and have not been able to settle this case?
24 MS. DAVIDSON: Well, I can tell you what
25 they've told me. I represent the Appraisal District, and the
CHERYL D. HESTER, C.S . R . - PROBATE COURT NO. 1
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10
1 taxing authority is out of this case.
2 They were actually -- they did never file a
3 lawsuit in this case. What they believe, and I'm just telling
4 you what they
5 THE COURT: Who they?
6 MS. DAVIDSON: The Linebarger Firm. I talked
7 took to Don Stecker this morning, who's been handling a lot of
8 this. But what he to l d me, because obviously it's a big cas e
9 and I don't know all the history of it, but he said that they
10 filed tax lawsuits about this property. And around that same
11 t i me period, apparently, they did a protest on at least one of
12 these properties with the Appraisal District. We operate
13 separately in most ways.
14 So yes, it appears to be minimal amounts that
15 the taxing authority has -- has filed suit for. And then some
16 deal was tried to be made by Mr. Martin by giving over
17 property i n lieu of --
18 THE COURT: I read that.
19 MS . DAVIDSON: -- Paying taxes. Yes. And I
20 guess something with that happened and the taxing authority
21 didn't agree with it . Then they intervened in this lawsuit
22 on l y -- to -- to -- this is my understanding, only to set
23 aside those deeds. And that actually happened.
24 And then in 2009, I know that Mr. Martin sued
25 the Appraisal District. I don't know - - I don't think that he
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11
1 ever sued the taxing authorities in the case, but I'm not real
2 clear about that. I just know that's when my client got
3 brought in. And my client got brought in because, as the
4 Court can see, the only pleading I have, live pleading that lS
5 his is the verified motion for special exceptions. And he
6 admits that he sued various county officials in 2009, among
7 other things, to enjoin appraisals on nonexistent improvements
8 to real property. And so that's where my client comes in, is
9 where he's trying to change the appraised value of this
10 property.
11 And our argument lS -- does that satisfy you
12 about the delinguent part?
13 THE COURT: Yeah.
14 MS. DAVIDSON: Okay. So as to us, he did file
~
15 -- there was a protest filed on at least one of these pieces,
16 which is attached to another thing he filed, list of exhibits
17 that is a piece on 244 Henry Street. But I think there are a
18 couple other properties involved.
19 In any case, whether he protested all or just
20 one, let's say it's this one, because it's the only one he
21 attaches, he gets an Appraisal Review Board order, and then he
22 sued them ln this Court. And under the Tax Code, which is a
23 pervasive scheme that covers everything that you want to do
24 about an appraisal, anything you want to complain about with
25 the Appraisal District, you first have to go through the
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 Appraisal Review Board, which he did for that piece of
2 property. And then exclusive jurisdiction is in Bexar County
3 District Court.
4 THE COURT: Do you have a copy of the Tax Code
5 42.21? Which is the code
6 MS . DAVIDSON: Yes, I do.
7 THE COURT: That you are arguing?
8 MS. DAVIDSON: Uh huh.
9 And I -- I'll let you read, if that's what you
10 want to do first.
11 THE COURT: So this is talking about an appeal
12 within 60 days with the District Court .
13 MS. DAVIDSON: Yes.
14 THE COURT: Go ahead.
15 MS. DAVIDSON: Yes. So this is what he was
16 required to do if he wanted to appeal the Appraisal Review
17 Board order. And frankly -- well, there are numerous cases
18 enforcing this provision saying you can't file a lawsuit ln
19 any other court. I understand very little about Probate
20 Court, but I know that sometimes the Probate Court has
21 jurisdiction over other things.
22 THE COURT: Well, cite a case.
23 MS. DAVIDSON: Well, I don't have one that says
24 -- I mean, you mean a case that -- that is affirming this
25 provision, basically?
CHERYL D. HESTER, C.S .R. - PROBATE COURT NO. 1
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1 THE COURT: Yes.
2 MS. DAVIDSON: Okay. I can give you one. It's
3 Appraisal Review Board of Harris County and Appraisal District
4 versus Spencer Square, LTD. I can give you a copy of it.
5 THE COURT: Thank you. Right on the money
6 today.
7 MS. DAVIDSON: And there are numerous cases
8 standing for this.
9 Now, I don't find any cases that involve an
10 appraisal district being brought into Probate Court. There's
11 there are different provisions for taxing entities tryi n g
12 to recover funds from an estate, et cetera, and tax money.
13 But I have one of those cases, and I think that although it's
14 not the same, it does support the proposition that even if it
15 were a taxing entity, they would have to sue in District
16 Court. They couldn't just come in Probate Court unless they
17 get, I guess, Probate Code Section 5 or something like that.
18 But this is a jurisdictional problem. And it's
19 just - - there are layers of other things that I can argue
20 about, sovereign immunity and whether - - what he tries to do
21 in his pleadings is argue that this falls outside of the Tax
22 Code requirements and sovereign immunity. But we don't e v en
23 have to get there, because he didn't file suit in the right
24 court. This Court just has no jurisdiction, merely because
25 the Tax Code doesn't allow it.
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1 And unless you have questions, that's really
2 what all I have to say.
3 THE COURT: Well, then we'll let the other side
4 talk.
5 MS. DAVIDSON: Okay.
6 MR. MARTIN: Thank you, Your Honor.
7 THE COURT: You're welcome.
8 MR. MARTIN: First of all, without having --
9 without having read the case that opposing counsel cites,
10 Appraisal Review Board of Harris County Appraisal District
11 versus Spencer, I'm assuming from her -- from her argument
12 that this was a case where there was nonexempt property.
13 Where the appraisal authority that was exercised under the
14 constitutional grant of jurisdiction was directed towards
15 nonexempt, tangible improvements and real property.
16 In this case, what distinguishes the fact
17 situation here from the cases that opposing counsel cites is
18 that the improvements on 244 Henry were demolished ln 2006.
19 And Your Honor, I do have -- I have an
20 affidavit and seven exhibits I would like to admit.
21 THE COURT: If it goes to the Motion to Dismiss
22 based on lack of jurisdiction, I will entertain it. If it
23 goes to the meat of any other issue, I will not.
24 MR. MARTIN: I -- I -- everything that I would
25 like to present addresses the jurisdictional arguments that
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 opposing counsel has made.
2 THE COURT: Go ahead.
3 MR. MARTIN: This is for Your Honor. And this
4 is for the record.
5 THE COURT: Just for your information, slnce
6 this already in the record, the Court's record
7 MR. MARTIN: All those exhibits were attached
8 to my affidavit that I filed, yes.
9 THE COURT: Then I'm going to return this to
10 you. I have your affidavit. The Court will take notice that
11 you filed that and that they are attached.
12 MR. MARTIN: Thank you.
13 THE COURT: Also, everything that he has in
14 there -- and you might want to show opposing counsel. It's
15 already in the Court's file.
16 MS. DAVIDSON: I've seen it.
17 MR. MARTIN: I've --
18 THE COURT: You're comfortable?
19 MS. DAVIDSON: Yes . I don't agree that it goes
20 -- that it meets the requirement you just asked if it met, but
21 that's okay.
22 THE COURT: I don't either. But go right
23 ahead.
24 MR. MARTIN: Okay. The Tax Code delegates
25 appraisal authority to -- to governmental subdivisions in
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 Chapter 42, as counsel has pointed out. However, the
2 statutory grant of authority is subject to a constitutional
3 grant of authority. And the confusion in opposing counsel's
4 argument is that she confuses the limits on the authority of
5 the Appraisal District to correct an appraisal, when the
6 constitutional limits on the scope of the ad valorem tax
7 grant --
8 THE COURT: How does that go to whether or not
9 the Probate Court has jurisdiction versus the District Court?
10 MR. MARTIN: It goes to the issue of the -- it
11 goes to the issue of -- of the status of the property. The
12 res of the dispute is estate property. And there is an ultra
13 vires exception that applies where the Appraisal District
14 exceeds its constitutional authority. There is no authority
15 under the constitution for an appraisal district to appraise,
16 assess, or collect taxed against nonexistent improvements.
17 THE COURT: Whether or not the Court agrees
18 with you on your statement, that is not the exception that you
19 would have had to sue a state office and not a subdivision of
20 a piece of government. The Appraisal District. So we're
21 going back to why are we in Probate Court versus District
22 Court. I'm assuming you're trying to keep this case here. So
23 the Tax Code that you just cited and that she gave us says
24 that, you know, if you have an appeal, it's going to come back
25 to the District Court.
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1 MR . MARTIN: Well, Your Honor
2 THE COURT: Why are you here?
3 MR. MARTIN: I'm here under authority of -- of
4 the -- this issue has been addressed by the Texas courts. The
5 issue of governmental immunity was addressed in City of El
6 Paso versus Heinrich. Subequently it was addressed by anothe r
7 Court of Appeals in Rourk v. Cameron Appraisal District. And
8 in that --
9 THE COURT: Did that case override El Paso v.
10 Heinrich?
11 MR. MARTON: No, it followed.
12 THE COURT: In Heinrich, didn't that case say
13 that ln order to have that exception that you're speaking of,
14 that the claim has to be brought against a state official for
15 nondiscretionary acts unauthorized by the law? Are you saying
16 that there is one person over at the Appraisal District that
17 is worthy of a lawsuit by you for doing acts outside the scope
18 of their business?
19 MR. MARTIN: Your Honor, yes. The -- at the
20 time -- at the time when the Appraisal District and the
21 Appraisal Review Board were sued the chairman of the Appraisal
22 Review Board was cited, and the chief appraiser of Bexar
23 County was also cited. So
24 THE COURT: Cited or sued?
25 MR. MARTIN: My recollection, and I'l l have to
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 go back, but my recollection is that the chief appraiser was
2 included as a defendant in the suit.
3 And I'd also like to -- to share these two
4 cases with you. These are both Rourk v. Cameron Appraisal
5 District. One addresses the scope of the tax authority's
6 constitutional authority, and this one, the second one
7 addresses the ultra vires exception. The upshot of it, the
8 upshot of it is in the second case, in a situation not unlike
9 this one, where ln Rourk the issue was whether there was
10 governmental immunity from claims for attorney's fees, the
11 ultra vires exception was recognized. And the -- the parties
12 against whom the jurisdictional challenge was leveled were
13 allowed to replead. At the very minimum --
14 THE COURT: Because that was prior to the
15 Heinrich case, it was the court giving them a moment in time,
16 I recall from that case. And again, if the code says that --
17 the Tax Code says that you should be ln District Court, why
18 are you arguing against that?
19 MR. MARTIN: I'm arguing that there's a
20 conflict of laws. There is that provision, but there's also a
21 provision under the Probate Code that grants jurisdiction to
22 the Probate Court to address matters pertaining to estate
23 property.
24 THE COURT: I'm aware of that.
25 MR. MARTIN: So that --
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1 THE COURT: Wouldn't you have to ask me to take
2 jurisdiction?
3 MR. MARTIN: Well, Your Honor, we did ask your
4 predecessor to take jurisdiction.
5 THE COURT: And she said no.
6 MR. MARTIN: Well, Your Honor, that's
7 THE COURT: I'm looking at two orders in 2010,
8 one in February and one -- well, they're both February 15th.
9 I don't understand that. But very clearly she says that this
10 Court has no jurisdiction in this matter.
11 MR. MARTIN: Your Honor, I need to clarify.
12 THE COURT: Okay.
13 MR. MARTINE: Opposing counsel has stated that
14 she is not familiar with the case history other than a
15 conversation with Don Stecker from the Linebarger firm, who
16 does not represent the County on this -- on this matter. I
17 call the Court's attention to one of these two orders. The
18 first order dealt with a tender of estate property as an
19 in-kind tax payment.
20 THE COURT: Which one is that?
21 MR. MARTIN: That's the one where the Court
22 says it has no jurisdiction.
23 THE COURT: Both said that.
24 MR. MARTIN: Well, let's take one at a time.
25 Because they're two different matters.
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1 THE COURT: Maybe it would be helpful if you
2 told me the - - which one we're doing here. We have - - there's
3 no time stamp on this. One says on April 9th, 2010, and the
4 other one says on this day came. Which one do you want to do
5 first?
6 MR. MARTIN: I have mine, so I can show you.
7 THE COURT: Do you have one that reads better
8 than this?
9 MR. MARTIN : Yes. I believe that's -- well,
10 no. That one is this one.
11 THE COURT: This lS the one that we can't see
12 too well. Oh, way good.
13 MR. MARTIN: Here lS another one. The first - -
14 let's take this one first.
15 THE COURT: I have - - let me see. I have this
16 one.
17 MR. MARTIN: Okay. There were two items, there
18 were t wo - - there were two matters in controversy, Your Honor.
19 One was whether or not the Probate Court would approve or
20 disapprove a tender of property as an in-kind tax payment .
21 That is what the first order addresses. And when the Court
22 says it has no jurisidiction, the Court was referring to
23 whether there was jurisdiction to approve or disapprove the
24 tender of the in - kind tax payment. It had nothing to do
25 whatsoever with the appraisal controversy or the -- or the
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 or corrections to an appraisal. So although the Court says it
2 finds it has no jurisdiction in that matter, it had no
3 jurisdiction over the subject matter of the in-kind tax
4 payment.
5 THE COURT: It also says here that the
6 determination of jurisidictional issues were supposed to be
7 completed - - it looks like it was a settling of 8/26/10.
8 MR. MARTIN: I don't
9 THE COURT: As to the First Supplemental
10 Petition for Declaratory and Injunction relief.
11 MR. MARTIN: I don't -- okay. This lS -- this
12 is a separate matter. This was a -- this was a lawsuit that
13 included two associates of the Linebarger firm. The order
14 clearly states, it says that there was -- the issue was
15 whether or not discovery should be allowed to proceed. The
16 order states in the text that the discovery is abated until 30
17 days after the determination of jurisdictional issues.
18 Now, the showing, Your Honor, this was a
19 showing that was filed in response to that. There were some
20 intervening proceedings, so the abatement had not been lifted .
21 I have a copy for you, ma'am. Here you go, Ms.
22 Davidson. Let me just make sure.
23 MS. DAVIDSON: Thanks.
24 MR. MARTIN: There were intervening events that
25 -- that put that on the back burner. But nonetheless, the
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1 showing was made and the order, the order does not disavow
~-
2 jurisdiction, the order places the burden on the State to
3 establish the jurisidiction. And this is a matter of a
4 lawsuit that includes two of the Linebarger associates and
5 whether discovery should proceed. So
6 THE COURT: And on the other order?
7 MR. MARTIN: Well, we just discussed the other
8 order. The other order was whether or not the Court thought
9 it had jurisdiction to approve or disapprove a tender of
10 property for in-kind tax payments, and --
11 THE COURT: So that brings us up to November
12 2010.
13 MR. MARTIN: And Your Honor, those matters --
14 just bear with me for a moment.
15 The tax authorities, here is a deed of
16 nonacceptance in regard to the in-kind tax payment that was
17 filed in June of 2014. So that -- that was the subject matter
18 of that first order where the Court said flatly that it did
19 not have jurisdiction. And the subject matter of the second
20 order had to do with whether discovery should proceed against
21 the Linebarger firm for their malfeasance in this - - in this
22 matter.
23 So back to the -- the core issue, I believe, is
24 whether the subject matter of the controversy with the
25 Appraisal District involves estate property. The answer to
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 this question is yes. It is not disputed by anyone that the
2 property at 244 Henry is property of the Estate of King.
3 The second question is whether the Appraisal
4 District was operating within the scope of its constitutional
5 grant of authority when it appraised -- when it assigned an
6 appraisal value to nonexistent improvements for the tax years
7 2007, 2008, and 2009. The answer to that question is no .
8 There's no one that disputes that the -- that the -- as a
9 matter of fact, Your Honor, in Exhibit B, Plaintiff's Exhibit
10 B, we have tax documentation that's provided by the County.
11 And if you will examine the years 2007, 2008, and 2009, and if
12 you look under the column that says remaining levy, and you
13 compared those amounts to the amounts in 2010, you'll see a
14 precipitous drop. You will also see, under - - in the center
'- 15 of the page where it says 2010 value, it shows $3,000.
16 THE COURT: But sir, we're not arguing the meat
17 of this case. We're not doing pot roast yet. We're just
18 doing the gravy here to get a little broth. The question is,
19 is this going to be held in my Court or ln a District Court.
20 Which the regulatory scheme of things has decided way beyond
21 you and I that this matter should be heard there. In our
22 District Courts. While I may have concurrent jurisidiction, I
23 agree, it does not mean that I have exclusive jurisdiction or
24 that I want to have jurisdiction. Correct?
25 MR. MARTIN: I believe that's correct, Your
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1 Honor. But my point is they were the ones that were arguing
,_
2 exclusive jurisdiction. My point was simply that the matter
3 is properly before the Court, and the Rourk decision
4 accomplishes that. Because the ultra vires -- the ultra vires
5 exception to governmental immunity is what creates the
6 exception to the Tax Code that opposing counsel is referring
7 to.
8 I would argue -- I would argue in the first
9 instance, Your Honor, that because there is estate property
10 and this is a dispute pertaining to estate property, that
11 Probate jurisdiction exists. Opposing counsel disagrees with
12 that assessment.
13 As the -- as the alternative argument, the --
14 the Tax Code which delegates sovereign immunity in respect to
15 tax issues has been declared by the Texas Supreme Court and by
16 at least one other Court of Appeals to be subject to ultra
17 vires exception. And in the Rourk case, the problem was that
18 the tax authority, the appraisal authority attempted to assign
19 an appraisal value to recreational vehicles that were not
20 attached to the land. And if they can - - they were - - they
21 were not allowed to do that in the Rourk case. The case went
22 to the Texas Supreme Court, the Supreme Court remanded that
23 issue to the Court of Appeals, and the Court of Appeals sided
24 with the taxpayer. And if the and if the Texas courts say
25 that appraisal authorities cannot apply - - they can not direct
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
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1 their ad valorem tax authority to tangible personal property,
2 which in Rourk involved recreational vehicles, then certainly
3 they have no authority to assign an appraisal value to
4 nonexistent improvements.
5 And I'm not arguing the ultimate merits of the
6 case, but I'm saying that establishes a jurisdictional fact
7 issue about whether the ultra viries exception applies. And
8 that enables -- by my - - the legal argument ln my motion for
9 special exceptions argues that when a court lS presented with
10 a Plea to the Jurisdiction and a jurisidictional fact issue is
11 raised or evidence is presented that creates a jurisdictional
12 fact issue, in that instance the matter has to be determined
13 by the trier of fact and the Plea to Jurisdiction cannot be
14 granted. This is the authority that I cite, City of El Paso
15 versus Heinrich, which was the seminal case for the ultra
16 vires exception.
17 Your Honor, I would say in this case there is
18 no question that the appeal from the tax protest was timely.
19 I believe that the facts are undisputed. And I'm - - I believe
20 I'm in the position to move for judgment on the pleadings,
21 because there is no authority and no factual evidence to
22 contradict their lack of authority to assign an appraisal
23 value to nonexistent improvements. It's a proper issue for
24 the Probate Court to decide because it involves estate
25 property, and they have no - - they are outside of their
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1 constitutional grant of authority.
2 Now, what they have done, if I may continue,
3 what they have done, Your Honor, is they have -- they have
4 conflated two completely separate issues. On the one hand
5 they have come in and they have said that the Tax Code grants
6 us limited authority to correct appraisals, and he didn't
7 follow the rules for that limited grant, because he filed the
8 case in the wrong court. That's what -- that's what they're
9 saying. But they are confusing that issue, the limits on the
10 statutory grant with the limits on the constitutional grant .
11 And where there is an action in excess of a constitutional
12 grant of jurisdiction, the -- the authorities throw the matter
13 of the exhaustion of remedies and so forth out of the window.
14 I would cite -- in paragraph 14 of the Motion
15 for Special Exceptions I cite Strayhorn versus Lexington
16 Insurance Company for the proposition that the purposes
17 underlying the exhaustion rule are not applicable. In a case
18 of an agency acting outside of its statutory powers, the
19 purposes underlying the exhaustion rule are not applicable,
20 judicial and administrative efficiency are not served, and
21 agency policies and expertise are irrelevant. And that's 128
22 S.W.3d 772 at 780. And this was the Austin Court of Appeals.
23 So as far as their - - as far as their
24 objections to variances from the Tax Code, Your Honor, if --
25 if they had attempted to -- if they were attempting to attach
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1 property, to appraise property improvements to property that
2 actually existed, that would be one thing. Their argument
3 would be a little bit stronger than it is now. In that case I
4 would still say that because the estate, the property is
5 estate property, that the Probate Court would still have
6 jurisidiction. But in this case they have acted completely
7 outside of the Tax Code, and therefore the Tax Code should
8 provide them no repose and no basis to argue governmental
9 immunity when they have -- when they have acted in a manner
10 that justifies the ultra v ires exception. And that's the
11 essense of it. They have dragged this thing out, as you
12 pointed out earlier, for nominal sums. And for the life of
13 me, Your Honor, I don't understand why they simply can't
14 correct the record. Correct the record and wipe the slate
15 clean.
16 Now, here's the problem with their motion.
17 There's three strikes and a foul. Number one, they came ln
18 with a motion that didn't have all the attachments. That
19 that's a foul. A procedural foul, if you'll go with my
20 metaphor. Then there's three - - there's three strikes for
21 jurisdiction. Number one, they are asking you, Your Honor, to
22 expand the scope of the constitutional grant of ad valorem tax
23 authority so that you can look -- they're asking you to look
24 the other way for the fact that the tax authorities have
25 attempted to appraise nonexhist -- nonexistent property, which
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1 is a constitutionally absurd proposition to begin with.
2 Number two, they've asked you to abrogate the ultra
3 vlres exception to governmental immunity so that they don't
4 have to be accountable for this in your court.
5 Then number three, they're talking about they
6 would ask you -- the matter was filed in this -- this case ln
7 this Court in 2001, and there have been a number of
8 extenuating circumstances that prolonged the administration,
9 this being one of them. The concern I have was the tax
10 authorities, not just the appraisal authorities, but the
11 but the tax assessor-collector -- and for them to show up --
12 to show up and ask you to abrogate the first-filed rule in
13 favor of a District Court because they claim they have
14 governmental immunity under the Tax Code, when the Tax Code --
15 they exited the sphere of the Tax Code when they attempted to
16 appraise nonexistent improvements to the property.
17 So those are the -- three -- those -- those are
18 the -- that's the crux of their jurisdictional argument. I
19 don't think there's any validity to any of those
20 jurisidictional exceptions. I believe my special exceptions,
21 if the Court would entertain them now or if the Court would
22 allow us to argue the Special Exceptions at a future date, I
23 believe those special exeptions are valid. I believe that
24 under Rourk the estate is well within its right to proceed ln
25 this Court, the one that we have chosen and the one that
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1 avoids piecemeal litigation. We've got litigation, we would
2 have -- if -- if the Court were to -- if the Court were to go
3 with what opposing counsel is saying, it would put the estate
4 ln a position practically of forfeiting the claim. Because we
5 would have to file in another -- in the District Court,
6 outside the statute of limitations, outside the filing period
7 for the protest, number one. Number two, it would be
8 piecemeal litigation, because there's other litigation that's
9 going on with the tax assessor-collectors.
10 The order, the first order, just to put that in
11 context, and not to argue the merits, the first order that you
12 cited, Your Honor, where Judge Jackson stated that she did not
13 believe she had jurisdiction to adjudicate an issue about an
14 in - kind tax payment. Your Honor, the - - the Linebarger firm
15 had presented a claim ln the estate court asking -- in the
16 Probate Court asking the Probate Court to cancel conveyances
17 that were made in satisfaction under the in-kind tax payment
18 code. That constitutes a probate claim. Okay? Whether the
19 Court agreed that it had jurisdiction to adjudicate the merits
20 of it, that constituted a probate claim. The claim was not
21 approved. I disapproved the claim. It involved judgments
22 that were in controversy and that were later vacated. The
23 the tax authority themselves later moved to vacate. And you
24 will see in Plaintiff's Exhibit E --
25 THE COURT: The June of 2013, where the
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1 foreclosure lS vacated and the cause is revived?
2 MR. MARTIN: Yes , Your Honor.
3 THE COURT: It revived all three of those. And
4 so didn't that revive you right back into the District Court?
5 MR. MARTIN: That's the open question that we
6 are litigating in the hundred and -- in the 150th court. My
7 position, Your Honor, is that the tax authorities presented a
8 probate claim when they sought to cancel the in-kind
9 conveyences. The claim was -- the claim was disapproved by
10 the administrator. Their position was they were not granted
11 the relief that they requested from the Probate Court. And
12 they did not appeal. They did not appeal the denial within
13 within 90 days of the time that the -- that the -- that the
14 claim was denied.
15 THE COURT: I don't believe they have to appeal
16 it. I believe that they have to file suit.
17 MR. MARTIN: Your Honor, may I address that?
18 THE COURT: Yes.
19 MR. MARTIN: Okay. I'm not able to cite the
20 code, the code section, but I do cite the case of -- of
21 Andrews versus Aldine Independent School District. This is
22 where they dealt specifically with this matter under the
23 Probate Code. And the probate -- under the old code, there
24 was a section that dealt with suits on rejected claims. And
25 the text of the statute says that if the claim is either
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1 rejected outright or by implication, they have 90 days to
2 appeal the denial. And if they -- if they fail to appeal the
3 denial in the 90 days, they forfeit the -- they forfeit the
4 claim. That is what the Court in Andrews versus Aldine school
5 -- Independent School District held.
6 The new code, the Estates Code has an
7 indentical provision which says the same thing. If there's a
8 probate claim and the probate claim is denied and the
9 creditor, in this case the tax authorities, fail to appeal
10 from the denial of their claim, they forfeit that claim
11 because they -- they invoked the jurisdiction. Rightly or
12 wrongly, they invoked the jurisdiction of the Probate Court
13 and they faild to appeal.
14 So in that case, Your Honor, there is -- this
15 is -- this is an issue that is before the 150th District
16 Court, and it lS -- it is -- it is explanation as to why
17 part of why this matter has -- has dragged out. The tax
18 authorities have skirted the law in every instance where they
19 have had the opportunity to do so. They started out suing the
20 heirs while the probate case was in progress at the beginning
21 of the -- at the beginning of the case. They sued me
22 personally and Opal Gilliam personally in the District Court.
23 The case law on point, and I'm not prepared to
24 cite it, but I can come back and cite it for you, they had no
25 standing to sue the heirs for ad valorem taxes on estate
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1 property. And that court that -- where they got those
2 judgments had no jurisdiction to do that. That was part of --
3 of the controversy that led to the in-kind -- to the attempt
4 to make an in-kind tax payment.
5 THE COURT: Are those the same ones that
6 foreclosures were eventually vacated on? Those are the same
7 tax suits?
8 MR. MARTIN: Yes. One of them is.
9 THE COURT: And the other ones, the judge's
10 notes also say that all three of those tax suits were -- the
11 foreclosures were being vacated and the causes were revived
12 back to District Court.
13 MR. MARTIN: Yes, Your Honor. Now, we're --
14 there is some controversy about that. But yes, that's what
15 the judge 's notes say. And the issue --what happened
16 subsequently, concurrent with the bill of review where the
17 judgments were vacated, there was an interlocutory appeal to
18 the Fourth Court of Appeals on the issue of the suit against
19 the heirs in the first place. Whether there was standing in
20 the tax authorities to sue the heirs for estate property in
21 the District Court while the probate was open.
22 THE COURT: You know, I saw your reference to
23 that, but I didn 't see the I didn't see that that is what
24 the appellate court had said. Rather -- let me find it here.
25 R. MART IN: That would be Exhibit F.
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1 THE COURT: Right . What this said is that they
,_ ~
2 were denying your writ of mandamus.
3 MR. MARTIN: There was there was another
4 issue. There was more than one issue in there. But yes, Your
5 Honor, they did -- they did deny the writ of mandamus. They
6 state in the opinion, they acknowledge the concurrent
7 jurisdiction of the Probate Court.
8 THE COURT: I don't see that here. I see --
9 MR. MARTIN : It's ln the footnote.
10 THE COURT : I see one paragraph.
11 MR. MARTIN : It's ln the footnote.
12 THE COURT: It says where the proceeding is
13 arising out of. I don't --
14 MR. MARTIN: Well, that's how - - that's how
15 it's interpreted, Your Honor.
16 THE COURT: Well, it might be how you're
17 interpreting it, but it's a pretty clean statement. If it
18 comes out of the Probate Court, the proceedings arise out of
19 it. I don't believe your opposing counsel is denying that the
20 Probate Court has the ability to hear claims, to bar claims.
21 I bet opposing counsel has absolutely nothing to say to oppose
22 those two statements. True?
23 MS. DAVIDSON : That is correct.
24 THE COURT: So basically when the foreclosures
25 were vacated, which I thought was a very hard - fought battle,
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1 from reading your pleadings, the foreclosures were all vacated
2 and the cause was revived, I believe that what the judicial
3 notes were saying is it went back to the District Court. And
4 while we may have concurrent jurisdiction, I don't believe I
5 have exclusive jurisdiction.
6 MR. MARTIN: I wouldn't -- I wouldn't deny that
7 assessment, Your Honor. I believe it's -- I believe I
8 believe that's correct, is that this Court would have
9 concurrent jurisdiction with any -- with any District Court
10 that is pursuing the matter that attends to estate property or
11 in which the administrator lS -- lS a party.
12 THE COURT: Now, right now what you have told
13 me is that you are the administrator and sole heir. Right?
14 There's no other persons taking through this?
15 MR. MARTIN: There's no -- there's no other
16 heirship claims. That's correct.
17 THE COURT: So do we have any further need for
18 administration of this estate other than the dispute with the
19 taxing authority?
20 MR. MARTIN: Yes, Your Honor. There's a
21 dispute with a former attorney of record. The law firm of
22 McKnight and Bravenec represented the estate during a stage ln
23 the proceeding. They neglected to contest these lawsuits
24 against the heirs in the District Courts. That lS --
25 THE COURT: Malpractice lawsuit?
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1 MR . MARTIN : Yes, Your Honor.
2 THE COURT: Is there some reason why that has
3 to be in my court?
4 MR. MARTIN: Yes. One of the issues, although
5 again it's subject to concurrent jurisdiction. I would not
6 say that the Court necessarily has exclusive jurisidiction.
7 This would be an instance where the Court clearly has dominant
8 jurisdiction. Because one of the issues pertains to an orde r
9 to the - - to their discharge as attorneys of record. There
10 were two attorneys from the firm that made appearances in the
11 court. One obtained an order authorizing withdrawal , but the
12 other one did not.
13 THE COURT: Did you hire that firm personally?
14 MR. MARTIN: Yes, I did, ma'am.
15 THE COURT: Had you been appo i nted the executor
16 at that time?
17 MR. MARTIN: Yes, I had, Your Honor.
18 THE COURT: So were you hiring them in your
19 individual capacity or that as an executor?
20 MR. MARTIN: As an executor . Adminstrator.
21 THE COURT: And what is the statute of
22 li mitati o ns for that, to bring a lawsuit against them?
23 MR. MARTIN: I believe that not -- not
24 consideri n g, s e t t ing aside issues about equitable tolling and
25 suit-in - a-s u i t litigation, I believe the normal statute of
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1 limitations for a malpractice claim is four years. However,
2 the law on malpractice is very clear where attorneys are
3 involved. If the -- if the malpractice claim arises out of
4 litigation, and that's what they refer to as a suit within the
5 suit, because you have a suit --
6 THE COURT: I get it .
7 MR. MARTIN: Okay. There was suit-in - a - suit
8 litigation. So the law on this point says that the claim does
9 not finally accrue until the conclusion of the -- of the
10 suit-in - a - suit litigation. So yes, there's a four - year
11 statute of limitations, to the best of my understanding, for
12 the malpractice claim. But the claim does not accrue finally
13 until the suit-in-the-suit litigation is complete. And there
14 is still suit - in - a-suit litigation.
15 THE COURT: And I'm not really seeing, although
16 it's a side issue, that we have any reason for a continued
17 administration since you are the sole heir and you can bring
18 that lawsuit on your own. But that being said, have a seat.
19 I'm going ask your opposing counsel to see if she has
20 anything. Because I'm pretty sure I get where you're coming
21 from , Mr . Martin.
22 Ma'am, do you have any kind of a response that
23 you want to make on this, your Motion to Dismiss this from
24 Probate Court?
25 MS. DAVIDSON: I have a lot of notes here. I'm
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1 just going to try to pick the most --
2 THE COURT: While you're looking at that, has
3 there been a lawsuit against one person in the Bexar County
4 Appraisal Review Board that has been sued in their individual
5 capacity?
6 MS. DAVIDSON: By him?
7 THE COURT : Well, yeah.
8 MS. DAVIDSON: No.
9 THE COURT: Do you know, since you have brought
10 a joint motion here, whether or not there has been anyone
11 personally sued in the Review Board?
12 MS. DAVIDSON: There has not.
13 THE COURT: You want to talk to me about El
14 Paso v. Heinrich and whether or not the ultra vires exception
15 is going to apply in this case?
16 MS. DAVIDSON: I honestly didn't think we were
17 going to get into what to me lS the issue of sovereign
18 immunity. But I can talk about it briefly, because I'm
19 familiar with it generally, because -- representing the
20 district. But I mean, I don't think that's relevant to the
21 issue of whether this suit should have been filed in District
22 Court or not.
23 The thing that happened apparently is that the
24 property that no longer had improvements on it was appraised
25 at a high value, I take it. I'm not minimizing what happened,
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1 but that -- that is what he protested about. He filed a
2 protest with the Appraisal District, he got an Appraisal
3 Review Board hearing, he got an order from the Appraisal
4 Review Board. And this is what you do. This happens,
5 unfortunately. Appraisal Districts screw up or don't know the
6 property has been razed or whatever. So your remedy - - he had
7 a remedy. It's you go to the Appraisal Review Board, you tell
8 them what happened. And if they agree with you, then they --
9 then they fix it.
10 They didn't agree with him. And at that point
11 in time, Mr. Martin is obviously a very sophisticated
12 litigant, he had a choice of to follow the -- continue
13 following the requirements of the Property Tax Code and file a
14 lawsuit in District Court, which he's obviously able to do,
15 because he's done it ln these other suits he's taking about.
16 But instead he chose to file it in Probate Court. And in our
17 opinion he made a choice that - - that took him outside of, you
18 know, jurisidiction of District Court. And it was his
19 decision to file it here instead of in the correct court.
20 I'm not saying that this Court absolutely
21 doesn't have concurrent jurisidiction, but I would like to
22 show the Court this Moak versus County of Cherokee case, which
23 to me it's about the taxing authorities and their ability to
24 collect taxes and the requirement -- it goes to his discussion
25 about the 90 days for them to appeal and everything, I think.
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1 According to, I think, Probate Code Section 5,
2 which was new at the time of this case, a taxing authority
3 can, within four years of beginning of administration, make a
4 claim in Probate Court. Otherwise, if it doesn't happen until
5 after four years after the administration started, they have
6 to file their claims in District Court. This actually talks
7 about there not being jurisdiction in the Probate Court after
8 those four years. I'm not familiar with Probate Court rules,
9 but that - - and I can give - - I'll give you guys copies of
10 these.
11 THE COURT: Yet y'all have come in here time
12 and time again. You're still here in 2015. What is still the
13 dispute, ma'am, that this man has to continually fight with
14 you?
15 THE COURT: Well, he has a dispute with the
16 taxing entities. Please -- please remember they ' re the ones
17 that want to collect on delinquent taxes. I mean, I saw the
18 sheet he had against, you know , he -- I don't know. But I
19 mean, one of the things that has happened, apparently, is that
20 he's, you know, I'm gathering that he kept this estate open,
21 he kept the property in this estate, and it seems that he is
22 actually-- it's really- - I'm not trying to be critical, but
23 it's really he who keeps being litigious, who keeps sort of
24 keeping the property in this ongoing administration in an
25 attempt to avoid the collection for delinquent taxes. My dog
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1 my client has no -- has no dog in this fight/ really. He
2 if he wanted to complain about what my client did 1
which
3 apparently was appraising their property at higher than it
4 should have been/ he should have gone through the protest
5 process and filed suit in District Court. Then it would have
6 been over 1 you know/ nine years ago.
7 Go ahead.
8 THE COURT: He -- he did 1 to best of his
9 ability/ protest according to the rules.
10 MS. DAVIDS ON: Yes.
11 THE COURT: Why would this Court want to
12 dismiss you/ dismiss this for lack of jurisdiction --
13 MS. DAVIDSON: uh huh.
14 THE COURT: After this man has spent 14
---
15 years fighting a wrong that happened back with the Appraisal
16 Board?
17 (Interruption)
18 THE COURT: The Court is going to take a
19 5-minute recess. Thank you.
20 (Recess)
21 THE COURT: I am sorry/ but you know how real
22 lifes invade your day.
23 MS. DAVIDSON: Yes.
24 THE COURT: I had such a good time listening to
25 you. I'm so sorry. That was my associate judge. We had a
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1 little crisis within our family of workers. So apologies to
2 both of you.
3 And I know there's a case after this, and
4 double apologies to y'all.
5 You were saying?
6 MS. DAVIDSON: You asked why should this Court
7 go ahead and accept jurisdiction. Because ostensibly they
8 filed this in the best court they could. And so at first I
9 would say that if this Court -- I'm not completely convinced
10 that this Court could accept jurisdiction, just because the
11 Tax Code provisions are jurisdictional. And - - and my
12 position is that even if this Court has concurrent
13 jurisdiction over many things, I -- I don't know that I agree
14 it does over an ad valorem tax appeal. But assuming that it
15 did and denies our motion, or plea to the jurisdiction, you
16 know, the next thing we'll do lS we're going to litigate
17 sovereign immunity and the ultra vires issue.
18 But you know, the Tax Code was created to make
19 it so that governmental entities don't have to waste their
20 resources being sued when it's inappropriate. It has very
21 strict timelines, deadlines for everybody that applies in
22 District Court, you know, these deadlines and rules do.
23 They're all jurisidictional.
24 So you know, so that -- and so -- and I wanted
25 to say, also, that regarding this thing about how we've been
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1 in this suit forever. I mean, I don't believe the District
2 has done really anything in the suit except get sued. And
3 that was in 2009. Because he says we made an
4 extra-constitutional mistake. And then Judge Spencer entered
5 these two orders in 2010, and my client actually believed that
6 they were out of this lawsuit. And so did the taxing
7 entities. The taxing authorities apparently are. Apparently
8 nobody disagrees about that.
9 And when my co-counsel Karen Evertson contacted
10 -- I don't know if it was the probate clerk or if it was --
11 I'm sure it was the probate clerk's office saying we have
12 these orders that Judge Spencer signed saying there's no
13 jurisdiction. And the Court understandably -- or the clerk
14 understandably said they're not specific enough, we aren't
'--
15 really sure what they apply to, so you need to come in and get
16 another order. That's what I'm trying to do today.
17 So I haven't addressed these deeper issues of
18 sovereign immunity or ultra viries and that kind of stuff,
19 which is what, you know, we're talking about today. I was
20 just focused on this one provision of the Tax Code that said
21 here's where you file suit. I mean, you know, I think Probate
22 Court lS different, but I had one of these cases where a guy
23 filed ln municipal court. When he was asked why he did it, he
24 said well, it costs more to file in District Court. Well, you
25 know, that's unfortunate, but he made a choice. So his case
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1 was dismissed.
2 Okay. I think that's all I have. Unless you
3 have questions.
4 MR. MARTIN: Your Honor?
5 THE COURT: Sir.
6 MR. MARTIN: I have a very brief -- I realize
7 you allowed me to make a lengthy presentation. I appreciate
8 that. I appreciate opposing counsel's indulgence. I just
9 would like to respond very briefly to comments she made.
10 During your absence, Your Honor, I had a chance
11 to review. Two points that I would like to make pertain to
12 this case of Moak versus County of Cherokee, which I had the
13 opportunity to review in your absence. The second point that
14 I'd like to make has to do with the Open Courts Doctrine under
15 the Texas Constitution.
16 Regarding - - regarding Moak, if you will refer
17 to headnote number 6, it states in the headnote that the
18 savings provision and the general statute of limitations apply
19 to action against heirs or against estate to recover
20 delinquent ad valorem taxes. And then I emphasize the next
21 phrase, in which taxing authorities had complied with the law.
22 This is a case where there was no issue that
23 the tax authorities had complied with the law. Therefore,
24 it's distinguishable from the fact situation here. Because
25 the tax authorities did not comply with the law.
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1 THE COURT : And that ' s because they were trying
2 to tax on improvements that had been razed?
3 MR. MARTIN : That was one point. And the other
4 thing I would clarify, opposing c o unsel inadvertently
5 mischaracterized the decision of the Appraisal Review Board.
6 The implication in opposing cou nsel ' s presentation was that
7 the Review Board reached the merits of the protest. The
8 record will show that that is· no t correct. What happened was,
9 was that the -- is that the Appra i sal Review Board imposed a
10 requirement, a condition for entertaining the protest, that
11 the undisputed parts of the taxes had to paid . That was
12 supposed to be the condition for the -- to entertain the
13 protest. However, my position was that ln computing those
14 amounts, that the value of the demolished improvements were in
15 controversy and that they exceeded the entire amount of the
16 of the tax claim.
17 THE COURT: I read that.
18 MR. MARTIN : And therefore it was on that basis
19 that they denied the protest without ever without ever even
20 considering the merits. So this is an additional -- above and
21 beyond the fact that they were trying to direct their
22 appraisal authority, the constitutional appraisal authority to
23 nonexistent improvements, they denied an opportunity to be
24 heard on a matter that was clearly due for correction.
25 THE COURT: Then you appealed from there to the
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
45
1 Probate Court.
2 MR. MARTIN: Yes , Your Honor.
3 Then the second point, in response to opposing
4 counsel's arguements about the Tax Code and jurisdiction, I
5 think Moak answers part of that, is that here the tax
6 authorities did not comply. The second thing being the Open
7 Courts Doctrine, all things being equal and looking at the --
8 looking at construing the Tax Code as opposing counsel would
9 have you construe the Tax Code, there's still the Open Courts
10 Doctrine to consider. And in the Open Courts Doctrine, if
11 there is a common law right that has been unduly restricted by
12 the application of the statute, the litigant is entitled to
13 invoke the Open Courts Doctrine to have the Court do a
14 balanc~ng as to whether the restriction is justifiable 1n that
15 situation .
16 Here the tax authorities are invoking the Tax
17 Code which they did not comply with in order to restrict the
18 common law right of the estate to oppose an act in excess of
19 their constitutional authority. I would think that at the end
20 of the day, number one , the Court should accept jurisidiction
21 under the Open Courts Doctrine. And number two, if there's
22 any question about the jurisdiction, the estate should be
23 allowed to replead to clarify any issues and to address the
24 issues that opposing counsel has raised. And that would be my
25 -- that would be my position, Your Honor.
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
46
1 MS. DAVIDSON: I don't really have anyt hing
2 else to say.
3 THE COURT: Mr. Martin, you are an eloquent and
4 quite brilliant man who has obviously had some issues with our
5 taxing authority. I have not read all of the file, but I did
6 make a good two-and-a-half-hour plug at it. I read your
7 pleadings, your special exceptions, your affidavit. I am a
8 big believer that the statutory scheme for all taxing
9 authorities should be in District Court. While I understand
10 the wrong that was done to you, and I can't truly comment on
11 if it was in my court how I would have agreed with you, but I
12 definitely see the point that you are coming fro m.
13 That being said, I don't believe this Court has
14 jurisdiction over these issues, and I'm going to go ahead and
15 grant your motion. And I hope you're able to continue
16 forward.
17 MR. MARTIN: Your Honor, may I inquire?
18 THE COURT: Sure.
19 MR. MARTIN: The -- the old Probate Code and
20 the new Estates Code has provisions for a situation where the
21 Probate Court is in doubt of its jurisdiction. And the
22 alternative to dismissal in those instances is an -- is is
23 the Court, even when it concludes that it lacks jurisdiction
24 over the subject matter, it retains transfer -- jurisidiction
25 to transfer the matter in controversy to an appropr~ate court.
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
47
1 In this case, were the Court to unconditionally dismiss the
2 case, it would place the standing of the estate to pursue the
3 matter further in question in any in any other court.
4 So reserving -- reserving the privilege of
5 requesting a reconsideration or an appeal, I would ask the
6 Court, rather than dismiss the controversy outright, since the
7 Court has expressed that there is some merit to the
8 controversy, if the Court is of the view that there is doubt
9 about -- about probate jurisdiction over this - - over this
10 issue, that the matter I would ask the Court to exercise
11 transfer jurisidiction to transfer it to the 150th District
12 Court, where the estate has a -- has a matter pertaining to
13 estate ·property that's in controversy with the taxing
14 authority.
15 THE COURT: My issue is that from what you have
16 given me, that the foreclosures being vacated, the causes that
17 were already filed were revived. And as you are saying,
18 they're already in the District Court. I'm - - I'm not going
19 to transfer. I believe that you are the administrator, the
20 sole heir, and other than the miniscule parts, which you -- if
21 you were charging the estate, you would be a very wealthy
22 attorney with all of this. That being said, I believe that
23 using the administration as a cover to keep it ln here no
24 longer works, as there is nothing else to for you to
25 administrate. You are the owner of the properties, and I
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
49
1 THE STATE OF TEXAS
..__
2 COUNTY OF BEXAR
3
4 I, Cheryl D. Hester, Official Court Reporter ln
5 and for Probate Court Number 1 of Bexar County, State of
6 Texas, do hereby certify that the above and foregoing contains
7 a true and correct transcription of all portions of evidence
8 and other proceedings requested by counsel for the parties to
9 be included in this volume of the Reporter's Record, in the
10 above - styled and numbered cause, all of which occurred in open
11 court or in chambers and were reported by me.
12 I further certify that this Reporter's Record
13 of the proceedings truly and correctly reflects the exhibits,
14 if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $- - - - - - - and was
17 paid / will be paid by
18
19 WITNESS MY OFFICIAL HAND this the 14th day of
20 May, 2 015.
21
22
CHERYL D. HESTER, C.S.R.
23 Official Court Reporter, Probate Court No. 1
Bexar County, Texas
24 100 Dolorosa
San Antonio, Texas 78205
25 (210 ) 335 - 2359
Texas CSR #4519; Expires 12 / 31 / 15
CHERYL D. HESTER, C.S.R. - PROBATE COURT NO. 1
BEXAR COUNTY COURTHOUSE
SAN ANTONIO, TEXAS 78205 (210) 335-2359
lllllllllllllllllllllllllllllllllllllllllll
PI2-20150198558-3
·c
w THIRD PARTY PURCHASE MONEY VENDOR'S LIEN
2
2 LIEN TRANSACTION DATE: October 31, 2003 (Deed Records Volume 10406, Pages 1601 and 1606).
2015 WL 2255139 (Tex. App. -San Antonio, rehearing denied June 8, 2015).
3. The owner disclaims liability for the recording of notices of lis pendens under authority of the
decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Bravenec, eta/, Case No. 14-50093
•
(5th Cir., judgment filed October 2, 2015), wherein the court vacated the order of the U.S. District Court
in Case No. SA 11-CV-0414 dated December 27, 2013, on abuse of discretion and due process grounds .
•
4. The Owner received a leasehold interest in the subject property in lieu of monetary
consideration which was recorded in the records of the Bexar County Appraisal District as a homestead.
Dated: October 14, 2015 •
Individually and As Administrator For
The Estate of Johnnie Mae King
STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as a third party purchase money lien creditor of the limited liability company
known as Moroco Ventures, LLC, whose charter is presently inactive.
2
I
I
I EXHIJHT ".A"
5. The land referred to In this policy is described as follows:
Lots 1, 2 and 3, Block 50, New City Block 8806, LOS ANGElES HEIGHTS ADDmON, situated
in the oty of San Antonio, Bexar County, Texas, according to plat thereof recorded in
I Volume 150, Pages 284-286, of the Deed and Plat Record of Bexar County, Texas, SAVE
AND EXCEPT there from 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 Oty of San Antonio
by deed dated October 10, 1991 recorded in Volume 5180, Page 1873, Real Property
I Records of Bexar County, Texas, being 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;
I THENCE S 890 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 a,pgle of goo 03'
30" an arc length of 15.72 feet, and whose radius point bears 90° southerTy 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 POINT OF
BEGINNING, containing 0.00049 acres (21.51 square 'teet) .
•
Any provision herein whi'h res• 1;, •• 1h •
property because of we·`` in· •,·.~·· .! s.le, or us; of the described r•al
STATE DF TE.XAS, couim oF'``xJ.~d unenforceable under Federal/a~
I hereby Cert1fy that this instru 1 . .
!his date and at the time itamp~e~e;a:as ~/lEO In F1le llumber Sequence on
In the Ohicial Public Record cf R , rn ; me and was duly RECORDED
. 1ssuea same aay.
GERARD C. RICKHOFF
Clerk of Probate Court No. One of
Bexar County, Texas
1.1 ./7
By {!M;u!L
Deputy
2
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NO . 2001-PC-1263
IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING , § NUMBER ONE
§
DECEASED § BEXAR COUNTY, TEXAS
COURT ORDER TO APPEAR AND TO SHOW CAUSE
WHY THE ADMINISTRATOR SHOULD NOT BE REMOVED
On this day, the Court on its own motion , complaining of Rowland J. Martin , Jr.,
failure of the Administrator to conclude the administration of this cause , which has been
pending since 2001 and which Rowland J. Martin , Jr., has represented to the Court that
there is 1 beneficiary and 1 remaining asset in the estate, a parcel of land and the
estate is still open .
Texas Estates Code§ 361.052(6)(A) provides , in pertinent part, that the
Administrator may be removed if:
(6) the representative, as executor or administrator, fails to: (A) make a final
settlement by the third anniversary of the date letters testamentary or of
administration are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath ; ...
The Administrator of this estate, Rowland J. Martin , Jr. , has failed to make a final
settlement by the third anniversary of the date that letters of administration were issued
in this cause . The Court has determined that the Administrator should now be cited in
accordance with the law to appear and to show cause, if any, he may have as to why he
should not be removed as Administrator in accordance with the provisions of Texas
Estates Code§§ 361.051 and 361.052, and another administrator or receiver appointed
to conclude the administration of this estate.
IT IS THEREFORE, ORDERED , ADJUDGED AND DECREED by this Court that
Rowland J. Martin , Jr. shall appear and show cause why he should not be removed as
Administrator and the Clerk of this Court be and is hereby directed to issue citation to
Rowland J. Martin, Jr., as Administrator of the Estate of Johnny Mae King , Deceased,
by certified mail , return receipt requested, requiring the Administrator to appear before
this court in the Bexar County Courthouse in Probate Court No. One, located at 100
Dolorosa , Room 123, San Antonio, Bexar County, Texas 78205 on July 30, 2015 , at
9:15a.m. , then and there to show cause, if any, he may have as to why he should not
be removed as Administrator of the Estate of Johnnie Mae King, Deceased .
IT IS FURTHER ORDERED by this court that all costs associated herewith be
charged against Rowland J. Martin, Jr., individually.
Signed July 21 , 2015 .
1
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CERTIFICATE
I hereby certify that the original of this instrument and copy of the COURT ORDER TO
APPEAR AND TO SHOW CAUSE WHY THE ADMINISTRATOR SHOULD NOT BE
REMOVED was mailed by United States Certified United States Mail , Return Receipt
Requested , postage prepaid , to pers9flj' representative and the attorney of record for
the personal representative on this o/JJ day of July, 2015 .
Rowland J. Martin , Jr., ProSe
GERARD C. RICKHOFF
Clerk of Probate Court No. One of
Bexar County, Texas
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Deputy
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NO. 200 1-PC-1263
IN THE ESTATE OF § IN THE PROBATE COURT
§
JOHNNIE MAE KING, § NUMBER ONE
§
DECEASED § BEXAR COUNTY, TEXAS
ORDER ON COURT ORDER TO APPEAR AND TO SHOW CAUSE
WHY THE ADMINISTRATOR SHOULD NOT BE REMOVED
On July 30, 2015, the Court called the Court Order to Appear and Show Cause
Why the Administrator Should Not Be Removed.
The Court record finds that Rowland J. Martin, Jr. had been served with a copy of
the Order to Show Cause by the Clerk of the Court and that proof of service was in the
file .
Roland J. Martin, Jr. was called by the bailiff in the hallway, and failed and
refused to appear.
A record of proceedings was made by Cheryl D. Hester, Court Reporter for
Probate Court No. 1.
The Court finds that the Administrator may be removed pursuant to Texas
Estates Code § 361.052(6)(A), which provides, in pertinent part, that the Administrator
may be removed if:
(6) the representative, as executor or administrator, fails to: (A) make a final
settlement by the third anniversary of the date letters testamentary or of
administration are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath; ...
The Court finds that the Administrator of this estate, Rowland J. Martin, Jr., has
failed to make a final settlement by the third anniversary of the date that letters of
administration were issued in this cause and failed to appear at the show cause hearing
to explain why he should not be removed
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by this Court that
Rowland J. Martin, Jr. is removed as Administrator of the Estate of Jennie Mae King ,
Deceased.
V02Jb2PoqoJ
IT IS FURTHER ORDERED that all Letters of Administration issued to Roland J.
Martin, Jr. are CANCELLED AND REVOKED INSTANTER and Roland J. Martin, Jr.
shall surrender and deliver all original Letters of Administration issued to him by delivery
of all the original Letters of Administration to the Clerk of the Probate Court, located at
the Bexar County Courthouse, 100 Dolorosa St., Basement, San Antonio, Texas 78205
on or before August 6, 2015, at 4:00p.m.
IT IS FURTHER ORDERED by this court that all costs associated herewith be
charged against Rowland J. Martin, Jr., individually.
Signed July 30, 2015.
Counsel:
Karen Evertson
State Bar No. 00797745 ~ b~:K~
·. o ·
Mary Sanchez CLE P 1 ~. I N
B X , '
State Bar No. 17570830
.3Y:--=~---
Evertson & Sanchez, PC
c/o Bexar Appraisal District
A TIN: Legal Department
411 North Frio, Second Floor
San Antonio, Texas
Ph : 1.210.242.2407
Fax: 1.210.242.2451
Email:
Roland J. Martin, Jr.
2
Peter Low
Law Office of Peter William Low
3305 Northland Drive, Suite 500
Austin, Texas 78731
Ph: 1.512.302.3403
Fax: 1.512.476.6685
Email: peterwilliamlow@yahoo.com
3
voztb2Poqos
Article 142a reads It shall be lawfu l for Clerks of the District and County Courts, and justices of the Peace to demand payment of all costs clue in each and every case
pending in their respective Courts up to the adjournment of each term of said Court.
THE STATE OF TEXAS
Estate of: JOHNNIE MAE KING. DECEASED .. . .......... § NO. 2001PC1263
. .. ....... ........ . .. . .. .......... § IN PROB/\ TE COURT NO. I
... ... ..... ....... ... ... .. . .. . ... ......... .. . ................................. ... § Bexar County. Texas
.---------------------------------~T~o~:_O~FF~I~C~ERS.~O~F-=SA~ID~C~O~U~R~T--------------------------.------.
CLERKS'S FEES Dollars SHERIH'S FEES Dollars
Docketing . . Executing Notices.
Filing.. .Papers. Posting Notices.
Taxing Cost and Copy . Summoning . . . ... Witnesses ..
Issuing .. .Notice and. .. .Copies E/(ecuting. ..Citations
Issuing Citations by Certified Mail (2 @ $80 00) . Executing ..... Subpoena ..
Iss uing .. . Writs .. Executing. . .. .Precepts.
. . . ..1 udgment and Decrees .. Mileage ....... ...... . . ............. Miles .
Swearing Witness .
.Oaths with Certificate .. SIIERIFF'S FEES
.Oaths without Certificate ..
lss u in g ....... Subpoenas.. . . Names .
Venue Charge . . COUNTY JUDGE'S FEES
Issuing Commissions to ·rake Depositions
Jury Charge ..
Taking Depositions .. Judges Signature. $ 2.00
Recording Depositions . Granting Applications
Entering. .. .. .Orders Approving. .. .Claims Appointing Appraisers
Recording Waiver .. Approving Bond.
Issuing Letters .. Probating Will ..
Recording ......... . ...... Applications . . .Oaths with Certilicate . .
Recording.. . .. .. .Notices. . .Oaths without Certificate
Recording . Notice to Creditors. .fiats and Certificates ..
Recording . .Citat ions. .Orders of Sale ..
Recording Inventory and Appraisement. .Orders of Approving Report of Sales ..
Recording Oath .. . .... Orders Refusing Sale .
Recording Bond and Oath .. . ......... Orders Refusing)Confirmation of Sale ..
Recording Will . . Decree of Partitio n and Distribution.
Recording Proof of Will .. Approving Report of Commissioners ..
Recording Annual Account. Setting Aside Report of Commissioners ..
Recording Final Account .. Decree(s) Removing ..
Recording Report of Sale .. Making.. Orders other than above.
Rec ording Receipt.. Commissions , / , of I% on $ ... ... .................. ..
Recording Report of Commissioners Commissions. / ,of I% on $ ..
Recording Report of Temporary Administrator .. Commissions. / ,of I% on $ ..
Recording Report of Temporary Guardian .. Commission 2% on $ .... ... .... .. ......... .... lnh Tax up to $30,000
Certified Copies ..
Transcript..
Approving Appeal Bond . JUDGE'S HTS $ 2 ()()
Recording Appeal Bond ..
Recording Artidavit for Tax .. RECAPITULATION
Report of Appraisement . County Clerk's Fees. $ 160.00
Preliminary In heritance Tax Report. Sheriffs Fees.
Report Comptroller County Judge· s Fees. $ 2.00
Appra isers Fees ..
Commercial Recorder.
CLERK'S FEES County Law Library Fund.
Jury Fee. . ... . ..... . .. .
TOTAL FEES
$ 160.00
THE STATE OF TEXAS I he rebv certifv the above to be a true and correct accounting of the Costs in a the above entitled and numbered
County of Bexar btate. ·up ts tl~i s date.
0.., ........~ ... ~
WITNESS my hand and sea l ofth ~J:" ounty Court af.f[x@
j )at office in San Antonio, this 21 s·r day or Jul y. 2015.
j ~ ~, • ~, • •• ·S':' ·. RIC KHOF r c
:1 ' ,, _, R BATE A O UNTY C OLJ R IS
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SUIT NO. 2004-TAl-02802
COUNTY OF BEXAR, ET AL §
§
vs. §
§
OPAL GILLIAM, ET AL §
ORDER TO VACATE JUDGMENT
previously entered herein against property described as:
LOT 5 ZARZAMORA PLACE SITU ATED IN NEW CITY BLOCK 06686 IN THE
CITY OF SAN ANTO:t\110, BEXAR COUNTY, TEXAS, AS SHO"WN IN VOLUME
00642 PAGE 0201 OF THE DEED M'D PLAT RECORDS OF BEXAR COUNTY,
TEXAS., Account Number: 066860000050
and, it appearing to the Court that such motion is well taken and should be granted, it is theref?re
ORDERED that the judgment signed herein on December 31, 2009 be, and is hereby, VACATED and
set aside, as authorized by Texas Property Tax Code§ 33.56 and as prescribed by Texas Rules of Civil
Procedure 237a. It is further ORDERED that the above-styled and numbered cause is revived as a
pending suit on the docket of this Court.
SIGNEDon ~ /7; 20 l3
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Page I of3
Suit No. 2004-TAI-02802 Page 3 1233654
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APPROVED:
LINEBARGER GOGGAN BLAIR &
SAMPSON, LLP
711 Navarro Ste 300
San Antonio, TX 78205
(210) 225-6763
(210) 225-6410- FAX
Lilia Ledesma
State Bar No . 24006250
Ronald E. Rocha
State Bar No. 24039143
Bradley S. Balderrama
State Bar No. 24040464
Attorneys for Plaintiffs
Rowland J. Martin, Jr., Pro Se
Defendant
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~Case Nombe' 2004TA102802 : . Document Type: ORDE R TO VACATE JUDGMENT
BX Taxing Authorities Petition and Order to Vacate Judgment Page 4 Suit No. 2ob4i~t
-£!8d2
CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MCKINNEY, BEXAR COUNTY DISTRICT
CLERK , CERTIFY THAT THE FOREGOING IS A TRUE
AND CORRECT COPY OF THE ORIGINAL RECORD AS
INDICATED BY THE VOLUME , PAGE AND COURT ON
SAID DOCUMENT. WITNESSED MY OFFICIAL HAND
AND SEAL OF OFFICE ON THIS:
November 03, 2015
DONNA KAY M£KJNNEY
BEXAR COUNTY, TEXAS
By:
--``````-----+````~----­
BREN DA TRUJILLO, Deputy District
(NOT 1:-ILJD 11'7THOUT THE CLERKS'S ORJ,
Case Number: 2004TA102802 Document Type : ORDER TO VACATE JUDGMENT
Page 3 of3
.Ill\ t.t.t.~#``fi\1111 !"''
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I 2003TA102385-D150
'-- - -·--···-- ..- --- -- )
SUIT NO. 2003-TAl-02385
STATE OF TEXAS, COUNTY OF §
BEXAR,ET AL
§
vs. §
§
OPAL GILLIAM, ET AL §
ORDER TO VACATE JUDGMENT
On this day came on to be heard the Plaintiffs petition to vacate the tax foreclosure judgment
previously entered herein against property described as:
LOT 35 AND THE 6 FEET OF LOT 14 AND THE SOUTHWEST TRIANGULAR
PART OF LOT 15 SITUATED IN NEW CITY BLOCK 02095 BLOCK 020 IN THE
CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, AS SHOWN IN VOLUME
02418 PAGE 0137 OF THE DEED AND PLAT RECORDS OF BEXAR COlJNTY,
TEXAS., Account Number: 020950200350
and, it appearing to the Court that such motion is well taken and should be granted, it is therefore
ORDERED that the judgment signed herein on December 9, 2009 be, and is hereby, VACATED and
set aside, as authorized by Texas Property Tax Code§ 33.56. It is further ORDERED that the above~ .
styled and numbered cause is revived as a pending suit on the docket of this Court.
SIGNED on ~-.!_. j ] ) Z-0 t3
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Suit No. 2003-TAl-02385 Page 3
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APPROVED:
LINEBARGER GOGGAN BLAIR &
SAMPSON, LLP
711 Navarro Ste 300
San Antonio, TX 78205
(21 0) 225-6763
(210) 225-6410- FAX
Lilia Ledesma
State Bar No. 24006250
Ronald E. Rocha
State Bar No. 24039143
Bradley S. Balderrama
State Bar No. 24040464
Attorneys for Plaintiffs
Rowland J. Martin, Jr., Pro Se
Defendant
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BX Taxing Authorities Petition and Order to Vacate Judgment Page 4 Suit No. 2oO:f-¥xf-oq~8's
CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MCKINNEY, BEXAR COUNTY DISTRICT
CLERK, CERTIFY THAT THE FOREGOING IS A TRUE
AND CORRECT COPY OF THE ORIGINAL RECORD AS
INDICATED BY THE VOLUME , PAGE AND COURT ON
SAID DOCUMENT. WITNESSED MY OFFICIAL HAND
AND SEAL OF OFFICE ON THIS :
November 03, 2015
(NOT r:tLJD WITHOUT THE CLERKS'S OR/
Case Number 2003TA102385 , Document Type ORDER TO VACATE JUDGMENT
Page 3 of3
1111 ``~A\11111
2004TA102802-0224
SUIT NO. 2004-TAl-02802
COUNTY OF BEXAR, ET AL § IN THE DISTRICT COURT
§
VS. § 224TH JUDICIAL DJSTRJCT
§
OPAL GILLlAM, ET AL § BEXAR COUNTY, TEXAS
ORDER .F OR NON-SUIT
On this day came on to be heard the above and foregoing motion by Movant(s) for non-suit
and, it appearing to the Court that such motion should be granted, it is hereby ORDERED and
DECREED that the suit by Movant(s) be dismissed without prejudice to the rights of said parties and
impleaded taxing units who have not intervened herein to further pursue their legal remedies at any
future time, and without prejudice to any other taxing unit who has intervened herein to further
prosecute this action on its own behalf.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if this order disposes of all
parties to this cause, then all costs of court incurred herein are forgiven.
SIGNED on ----'=J/A:....::..:N_,!;,:._;;;_2_,Z,.,Cu.~'.L'_ _ _ __ _ , ' - - -
JAN 2 2 2014
Approved:
0 LINEBARGER GOGGAN BLAIR &
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2 711 NAVA TE300
3 SAN A. ONJ , TX 78205
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L State Bar No. 24006250 Document
lilia.ledesma@lgbs.com scanned as filed.
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1 Ronald E. Rocha
6 State Bar No . 24039 I 43
5 ronald .rocha@lgbs.com
Bradley S. Balderrama
~ State Bar No . 24040464
brad.balderrama@lgbs.com
2 Attorney for Movant(s)
5
4
7
Suit No. «SU IT» Page 3 Su it Ke y No. «SUITKEY»
SUIT NO. 2003-TAl-02385
STATE OF TEXAS, COUNTY OF § IN THE DISTRICT COURT
BEXAR, ET AL
§
VS. § lSOTH JUDICIAL DISTRICT
§
OPAL GILLIAM, ET AL § BEXAR COUNTY, TEXAS
ORDER FOR NON-SUIT
On this day came on to be heard the above and foregoing motion by Movant(s) for non-suit
and, it appearing to the Court that such motion should be granted, it is hereby ORDERED and
DECREED that the suit by Movant(s) be dismissed without prejudice to the rights of said parties and
impleaded taxing . units who have not intervened herein to further pursue their legal remedies at any
future time, and without prejudice to any other taxing unit who has intervened herein to further
prosecute this action on its own behalf.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if this order disposes of all
parties to this cause, then all cost~ of court incurred herein are forgiven.
Approved :
0
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'
2
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1
4
I
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Iilia desma@lgbs.com
4 nald E. Rocha
1
5 State Bar No. 24039143
1 ronald.rocha@lgbs.com
p Bradley S. Balderrama
Document
c; State Bar No . 24040464
brad .baldcrrama@lgbs.com . scanned``·__ _,.
2 Attorney for Movant(s)
·- ------
9
5
5
Suit No. «SU IT» Page 3 Suit Key No. «SUITK EY »
CAUSE NO. 2001PC1263
/ '
IN THE ESTATE OF § IN TilE PROBATE COURT
§
JOHNNIE MAE KING, § N0. 1
§
DECEDENT § BEXAR COUNTY, TEXAS
ORDER APPROVING JOINT MOTION TO ENFORCE RULE U AGREE:MENT
On this day, came on to be heard the Joint Motion of the parties to approve Compromise
Settlement Agreement. The Court has reviewed the parties' Motion and finds that it is well taken
and should be granted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Compromise
Settlement Agreement is approved and entered of record.
Signed this ``day of _ __,``---'--·_ _ _ , 2008.
<:3 ~ - ;\ .
L.
,J;GE~r~
JUN 0 6 2008
lFUlb~lQ) OJ/07
CAUSE NO. 2001PC1263 JUN 0 6 2008
IN THE ESTATE OF §
§
JOHNNIE MAE KING, §
§
DECEDENT § BEXAR COUNTY, TEXAS
JOINT MOTION TO ENFORCE RULE 11 AGREEMENT
TO TilE HONORABLE JUDGE OF THE COURT:
NOW CO.rviE the parties to the above-styled and numbered cause and jointly move this
Court to approve the Settlement Agreement attached hereto.
Respectfully submitted,
HEARD & SMITH, L.L.P.
3737 Broadway, Suite 310
San Antonio, Texas 78209
(210) 820-3737
::0)~
MARK STANTON SMITH
State Bar No.: 18649100
ATTORNEYS FOR CALVIN GILLIAM
ROWLAND MARTIN, PRO. SE
VOl 08 0 9 rG 5 B79
CAUSE NO. 2001-I"C-1263
·•
) IN PROBATE COURT #1
)
ESTATE OJF JOHNNIE MAE KING ) IN Alll"D FOR BEXAR COUNTY, TEXAS
JlUJLEll
SE'I"''LEMENT AGREEMENT
l. The parties to this settlement agreement, Calvin Gilliam and Rowland Martin, agree to
settle all claims and controversies between them which are asserted or assertable in the above captioned
case. The parties believe that the value of the awards, releases and waivers received by each ofthem are
satisfactory as consideration for settlement agreement, and that the terms are in the best interest of the
Estate ar.d the p.uties.
2. The parties agree to the following awards as considerations for entering into this
settlement agreement:
A. The parties agree to an award of the following to .Calvin Gilliam: {1) Bank of America
account #03820-11 014 with the January 2006 balance of$2,893.28; (2) American
Express account 0000-00 ll-387(H)976-002 with an approximate balance of $14,000.
B. The parties agree to an award of the following to Rowland Martin: (1)
Street, San Antonio, Tx, (2) 244 Henry Street, San Antonio, T;t; and (3) Washington
Mutual Account #38636612-6 with the February 2006 balance of approximately $.58.
3. The above captioned proceedings shall be resolved by means of the filing of this Rule 11
Settlement AgreemenL
4. The parties hereto agree to release, discharge and forew- hold the other harmless from
a11y and a!! other claims, demands or suits, known or unknown. fixed or cootingent, liquidated or
unliquidated (whether or not asserted in this case) arising from or related to the events, transactions and
accounts which are the subject matter of this case, including those involving the Conservatorship of King,
Case #PP..()()J988, Los Angeles Superior Court. This mutual release runs to the benefit of all attorneys
and agents of the parties. Parties as used in this release includes all named parties to this case, as well as
Garth Gilliam and Valora Flukers, and all related entities of the parties. Rowland Martin additionally
agrees to ·waive claims for fees for services rendered as administrator in the Estate ofKing cause# 200!-
PC-1263.
5. Each signatory warrants and represents that
A. he has the ~uthority to bind the parties for whom that signatory acts, and
B. the claims, suits rights and/or interests which are the subject !Dlltter hereto are owned by
the party asserting same, have not been assigned (except for attorney's fees), transferred
or sold and are free of encumbrance other than property taxes, assessments, and costs
inciuding demolition fees. rnc parties furu'ler agree to indcrnn1.7 esch oti.er in
connections thereWith.
C. The parties agree to recognize the standing of Calvin Gilliam as a party to the Estate
proceeding for purposes of executing and implementing the terms of this Settlement
Agreement and the Agreed Order and Judgement authorizing it
VOlf 18 0 9 PG 5 8 80
6. The Motion To Approve Compromise and _Settlement Agieelnel1t with Agreed Order and
Judgement attached are the documents the parties agree to we to effectuate the terms of this settlement
agreement The parties agree to cooperate with such clerical revisions to tb>se dOCllliWilts as are
reasonably required k> implement the terms and spirit of this agreement ·
7. This agreement is made and performable in the cmmty in which the Estate was opened
and shall be construed in accordance with the laws of the State ofTexas.
8. As other terms of settlement, the parties agree to bear all of their own attorney's fees.
9. Each signatory to this settlement has entered into same ti:eely aad without duress after
having consulted with professionals of his choice.
10. This agreement is not subject to revocation.
Vut if 809 Pfi 5 88 I
2
(Page 1 of 2)
DOCUMENT SCANNED AS FILED
1111 f.``~il\11111
2014CI07644 -D2S~
Cause No.2014-CI-07644
§
EDWARD L. BRAVENEC AND f216 §
WEST AVE., INC. §
Plaintiff §
§
§
vs. §
§
§
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. After 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 detennined that 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
I) there to had any interest, legal or equitable, in the Property described as:
7
/ "New City Block 8806, Block 50, Lot 1, Except the North
3. West 10.01 feet & Lots 2 & 3; which property is commonly
1 referred to as 1216 West Ave., San Antonio, Texas" the
•'
-')
'
... ("Property")
0
~
This Court further finds that despite judgments being rendered against Rowland J.
v Martin, Jr. that he continues to interfere and cloud the title to the Property or contact potential
-0
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
4 .aforementioned federal court case and the subsequent appeal to the Fifth Circuit Court of
2 Appeals in which both courts find his filings to be vexatious and frivolous. But for the
6
7 temporary injunction, it is likely that his conduct is to continue and the damage to the
Plaintiff's in this case would be irreparable and could not be compensated by monies.
F
G
0
1
.5- ase Number 2014 CIO 644 _. Document Type: TEMPORARY INJUNCTION
~ Z9~001 - ``9L0I~vt0Z
Page I of 3
Jllllilrliiilt~lll ~ ,/
.,
( Page 2 of 2)
\. DOCUMENT SCANNED AS FILED
-~
/'
- -`` ......,~
Th~refore, it is _the ORDER of this court that Rowlan~ J. ~artin, any ~nti~ ~,>J.;``:r~qlfe~t,~\'4``#
or -~der hts con~ol, his agents, employees and ~1 th~se actmg m concert wtth ``:<:~e · herr~Y -~'t(:,.,
enJomed from fihng any document whatsoever wtth this court, any other court, th .~)':aJ_,_C_Q~ty- · ,.. · :;:.
Clerk's Deed Records Office that in any way relates to Plaintiffs or the real prope ~::aescBoed)as' >>" · ·;+ <;~
1--- I \ -•,,4
. . _'!J._ ·. ({ ~'
New City Block 8806, Block 50, Lot 1, Except the North West 10.01 £ ~'& ·, f·"' .
Lots 2 & 3; commonly referred to as 1216 West Ave., San Antonio, Te~as,
·~·.•
·· ··•···
/ t;)
~--:!B
'
(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
~ereby _enjoU:ed from co~tacting any title comp~y, any potential buyer, b~ o~ otherwise ..Art
mterfenng wtth the potential sale of the Property m any manner whatsoever.. · . :'. ~111
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 is FURTHER ORDERED that this matter be set for trial on the merits on the~ day
ofDecember, 2014 at 9:00a.m.
Plaintiff's bond is hereby set at $500.00, cash or surety. The clerk of the court is to issue
notice to Defendant of this order and hearing and the hearing scheduled for injunction. Notice
0 may be accomplished by fax, personal service, or private process.
7
/
3 Witness my hand this 11_'!:;y of July, 2014, at f :'fP ~-
~
5
!
v APPROVEDASTOFORM:
0
L
4
& Glenn J Deadman Rowland J Martin Jr
7 509 South Main Ave ProSe
p San Antonio, Texas 78204
G 210-472-3900
0 gjdeadman@aol.com
1"Z,
7-ase Number: 2014CI07644 Docufl!ent Type: TEMPORARY INJUNCTION
Page 2 of 3
CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MQ16 P. l aintiff First Request for Admissions 69
19
20
2 :_
.:::.2
22
24
25
CI NDY DEES , COURT REPORTER
288 TH DISTRICT COURT
5
1
THE COURT: The Court will call for
2 hearing cause number 2014 - CI - 07644, styled Edward
3 Bravenec and 1216 West Avenue versus Rowland Martin , Jr.
4 Let me please ask for introductions and announcements and
5 then after that, I will take an opening statement.
6 MR. DEADMAN: Glenn Deadman for the
7 Plaintiff ' s.
8 THE COURT: You're ready?
9 MR . DEADMAN: We're ready.
10 MR . MARTIN: Rowland Martin , Pro Se,
11 making a Special Appearance with Plea to the Jurisdiction
12 and Motion to Dismiss under the Texas Citizens
13 Participation Act .
14 THE COURT : And are you ready on that?
15 MR. MARTIN: Yes, Your Honor . I would
16 disclose that Notice for Appeal was filed yesterday on
17 the -- on two issues from the hearing on July 1st before
18 Judge Alcala . One issue concerns the denial of Amended
19 Motion to Disso l ve the Temporary Restraining Order. It
20 was denied. So it was an Interlocutory Appeal that was
21 taken from that issue.
22 It was also a denial of a Motion to Quash
23 t he Contempt -- the sh o w cause order for contempt and
24 Lh a t was treated as an issue under the Texas -- the TCPA
25 a n d it was also submitted for Interlocutory Appeal .
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
6
1 THE COURT: Okay. But the Court of
2 Appeals has not is sued any stay o rder s so we move forward
3 to da y. Tell me what lS set today , please, Glen n, and
4 then I will give you an opportunity , sir.
5 MR . DEADMAN : Judge , the two matters that
6 are set are a Temporary Injuction Hearing that flows from
7 a Temporary Restr ainin g Order , and then a Motion for
8 Contempt.
9 THE COURT: All right . So if I am looking
10 at what pleading -- if we are not going to look at your
11 First Amended , where do I look in your book?
12 MR . DEA DMAN: The first Amended , you can
13 look at -- the only thing that is different fro m the
14 Original and the Third Amended lS paragraph 29.
15 THE COURT : Okay .
16 MR . DEADMAN: In which added violat i ons of
17 Chapter 12 of the Civil Practice and Remedy Code , that is
18 not at issue today.
19 THE COURT: All right . You want to give
20 me ju s t a minute 's worth --
21 MR . DEADMAN: For th e Motion for
22 En f orcement an d Contempt , that ' s at tab D.
23 T HE COURT: That is also set for today?
24 MR . DEADMAN : It ls, Your Honor .
25 MR . t1ARTIN : You r Honor , if it please this
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
7
1 Court. I also -- the two items that were appealed for
2 Interlocutory Review, the denial of the Amended Motion to
3 Dis s olve and the Motion to Quash, the issuance of the
4 citation and Show Cause Order, I would request that we
5 abate the matter of criminal contempt proceedings because
6 my part is on appeal and i t ' s inextricably intertwined
7 with their part. I can --- I will - - I will deny their
8 facts and allegations, but because they are interrelated,
9 I would request that the Court abate - -
10 MR . DEADMAN: Judge, first of all, the
11 Motion to Dissolve the Temporary Restraining Order is not
12 an appealable order , the grating or denying of the
13 Injunction --
14 THE COURT: He ' s asking on the contempt.
15 You think that is an appr o priate thing to do to make that
16 pending ruling of the Court of Appeals?
17 MR. DEADMAN : I don't .
18 THE COURT: Tell me what is going o n.
19 We ' ve got two h o urs. I am quitting after two hours . Let
20 me explain to Mr. Martin what happens , you know this, but
21 if y'all have under announced substantially , what happens
22 l S that I declare a mistrial , send you back to Presiding
23 and sa y , Judge Noll , these folks really meant to announce
24 : ou r hours n ot two hours, start them over with somebody
25 e _ se , maybe me , maybe another Judge, with a legitimate
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
8
1 four hour announcement. If you think now if this lS
2 really more than two hours, tell me know, don't get two
3 hours into it and sa y oops , we under announced.
4 MR. DEADMAN: It ' s not, Judge.
5 THE COURT: Okay. Tell me what lS going
6 on , please.
7 MR. DEADMAN: Okay. Judge , if I can refer
8 you to Exhi b it A in the notebook , which is the Fi rs t
9 Amended Petition. The background facts have not changed
10 from the or igi nal petition.
11 In 2004, Mr . Martin , through a previous
12 entity that he owned , I believe that it was called Morco
13 Ventures, obtained a loan secured by a pi ece of property
14 that is identified in the facts. That property is the
15 1216 West Avenue. And i t ' s that property that re al ly
16 forms the basis of this entire suit .
17 In May 2005 , Mr. Martin took out a second
18 lien on th at proper ty and the holder of the lien was Mr .
19 Br avenec ' s law off i ce . Mr. Martin became delinquent in
20 -che pa y ment s, a foreclosure was he ld and the foreclosure
21 was held v alid and the property transferred to Mr.
Th at issue has then been litigated ln District
23 CoucL , in Bankrup tcy Co urt, in Federal Court, ln the
24 ?i : -ch Circui-c Court of App ea l s. And in every stage , Mr.
25 Martin lo s t and ha s been h e ld th at Mr. Bravenec is the
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
"'
9
1 owner of the property.
2 Mr. Martin continues to interfere with the
3 property by filing Lis Pendens and like documents that
4 interfere with the ownership of the property and the sale
5 of the property.
6 Once the Fifth Circuit Court of Appeals
7 procedure was denied and Judge Hudspeth in the Federal
8 Court dismissed all of Mr. Martin's pleadings, we fil ed
9 this suit with a Temporary Restraining Order restraining
10 Mr. Martin from filing anything in the deed records that
11 interfered with the ownership of the property. We are
12 asking that i t be converted to an Injunction because
13 despite the Restraining Order , he then filed what he
14 referred to Effective Notice of Lis Pendens and put i t ln
15 the court r eco rds .
16 I can put Mr . Bravenec on the stand for
17 the purpose of walking through of what's been marked as
18 E xhib i ts 1 through 8, but all of those are court
::_ 9 docum ents . They are from different courts . If you wish
2J ~e ~o put him on the stand to walk through
THE COURT: Let me stop and say, that it ' s
``~ ~ - wis h, i t ' s what you need for the purpose of
So , I will let you handle i t however you
~
2~
0 •
..... - -v .- -
just asking for an opening
25 s~2~e:--:-.e`` .
CI · oy D `` S , CO``~ _ S? O ~_ER
28BTH o = s``= ~ cou~ ~
10
1 MR. DEADMAN: If I can refer you to what
2 would be the evidence in this case, starting at tab one .
3 TH E COURT: Well, short opening statement.
4 You can make your record in a minute . All right . So
5 you ' re going to prove to me that yo u're entitled to an
6 injunction?
7 MR . DEADMAN: Entitled to the injunction,
8 and that Mr. Martin should not in any way, manner or
9 course interfere with this property.
10 THE COURT: All right. And then tell me
11 about the contempt .
12 MR. DEADMAN: While the Restraining Order
13 was in effect , he filed a Perfected Notice of Lis Pe ndens
14 and sent it to the potential buyer of the property in an
15 attempt to preclude the sale. The Restraining Order said
16 don ' t file anything . And I believe that Mr. Martin ' s
17 argument is going to be, it said don't file anything with
18 the County Court deed records , that he filed it with the
19 District Court and sent it to the seller, so it 's not
20 really a contempt .
21 THE COURT : Okay. Just to educate myself
22 quickl y , the prop erty is where Eddie ' s law office is?
23 MR . DEADMAN: Used to be.
24 TH E COURT : Us ed to be. Who is physically
25 ln t he property now .
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
12
1 managed by 1031 Corporation. There are intermediaries
2 for tax deferred exchange. And you will see in my - -
3 it 's the document that is in the first tab . It's titled
4 as the Perfected Notice of Lis Pendens . You will see in
5 that document that there are - -
6 THE COURT: Your tabs are not numbered.
7 MR . MARTIN: Yes, s l r , Your Honor. It's
8 th e first one .
9 THE COURT: Okay.
10 MR . MARTIN: You will see attached to that
11 document an escrow statement showing balances that were
12 in my personal estate . When it came time to acquire the
13 re p lacement proper t y , the title to the replacemen t
14 property was taken under the name of Moroco Ventures as
15 the legal owner of the property.
16 The intermediary disbursed 135 thousand
17 dollars directly to the seller, Roy Ramspect . You will
18 see a receipt in there for First American Title wh ich was
19 the closing argument. So there was a disbursement of 135
20 thousand dollars on a purchase price of about 285 minus
21 some change , 284 , 050 , I believe.
22 The balance of the purchase price was
23 fun ded with a fir st lien note that was taken back by the
24 seller . So , I was a third - party purchase money provider
25 ~o Mo r o c o Ventures , which enabled Moroco Ventures to
CIN DY DEES, COURT REPORTER
288TH DISTRICT COURT
13
1 acquire t he pr oper t y .
2 You will see from those documents that the
3 purchase money did not past through Moroco Ventures. I
4 did not deposit th e mon e y into the account for Moroco
5 Ventures and then disperse it to the seller , rather the
6 money -- the p urch as e mo ney came from Roy Ra mspec t, the
7 seller and financi e r of the first lien note and 135
8 thousand doll a rs wh ich was transmitted directly from my
9 personal escrow account to Roy Ramspec t' s agent , c losing
10 agent .
11 My un der s tanding of Te x as la w is that
12 that a third - party purchase money lien holder is
13 equivale n t to a mortgag e e , and that a i nterest , the lien
14 interest equivalent to a vendors lien a ttaches to the
15 property when there is closing transaction of that
16 nature .
17 So , while the history that the Plaintiff ' s
18 present concernlng the formation of Mo r oco Ventures , and
19 th e litigation that ensued , that litig a tion was conducted
20 in my ca pacity as a successor in interest to Moroco
21 Ve ntures the debto r. I n fac t, it was e ssen ti ally
22 der ivative in nature of the - - of the injuries that
22 :~o :: oco Ventur es sustained, or allegedly sustained as the
24 cieb r.or . Th e matt er of the lien that I am claiming now is
25 a complet e ly diffe re nt -- o f a different character . It
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
14
1 derives from my standing and my capacity I and
2 third - party purchase money lien holder .
3 My reading of the case law on tort i ou s
4 interference with contractual relations leads me to a
5 case , H & C Hotels . This was a case from San Antonio
6 that we nt through the Fourth District . There was a
7 tenant in the River City Mall . And the owner of the mall
8 was attempting to sell the property . The tenant had a
9 lease contract . And in the lease contract , the believed
10 that they were entitled to some type of right of first
11 refusal .
12 On appeal, the Fourth District ruled for
13 the owner in saying that the four elements of tortious
14 interference claim were met . That there was a contract ,
15 there was an interference with the contract . It was
16 proximate cause an d there were damages . The case was
17 appealed from the Fourth District to the Supreme Court
18 a nd the decision was rendered on June 13, holding that
19 th ere was no tortious interference. And the reasoning of
20 that de cision was essentially that the lessee in that
2~ case had a privile g e and jus ti ficatio n under its existing
22 conL~acL and tha t the disclosure of that informati o n
__)
:r d~o~'L do anything ot her than cause the title ag ents to
24 exe~cise rights th a t th e y wo ul d hav e had u nder any
25 u .. der any circumstances . So ther e was no but for
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
15
1 causation of interference .
2 The analogy to this case is as a
3 third - party purchase money lien holder , I have a
4 privilege that is more substantial than the lessee ln the
5 H & C Hotel ' s case , because Mr. Bravenec and the late
6 Albert McKnight acquired their second lien interest in
7 the subject property during attorney client relationship.
8 They were representing me as the Administrator and heir
9 of the estate of Johnnie Mae King in Bexar County Probate
10 Number 1 . Subsequent to their acquisit i on of the lien - -
11 my understanding was that they would continue to
12 represent me. Subsequent to that time - -
13 THE COURT : You ' re trying the case now. I
14 just wanted an introductory , opening statement. Let me
15 get to a really relevant question , are we going to be
16 able to do this now in about an hour and 45 minutes? We
17 going to be able to get all these facts before the Court?
18 MR . DEADMAN : Yes , sir .
19 THE COURT: I am asking him . He seems to
20 be a l i t tle verbose on all of this. That ' s why I ' m
2::._ asking 0 Ar e we going to be able to do this , sir?
MR . MARTIN: I am trying my best , Your
23 ;-; o :: c::::- 0 =• m not a l i t i g at o r.
24 THE COURT : You ' re no t o bliga t e d . I am
25 ``9ly asking -- here ' s what I don ' t want t o h appen. I
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
16
1 don't want to happen when we get to two hours ln this and
2 y ' all are half done and I have to declare a mistrial and
3 send you back to start over. It's better if you start
4 over now. We can't do it in two hours, we need four
5 hours. How long do you now think that you need to do all
6 this?
7 MR. MARTIN: Your Honor, I don ' t have much
8 experience in estimating --
9 THE COURT: He tells me the lssue today is
10 whether or not he's entitled to a Temporary Injunction to
11 keep you from filing any more documents.
12 MR . MARTIN: The short and simple answer
13 to t hat is that under the law of tortious interference, I
14 am entitled to rebut the elements of their case. And I
15 can also assert a prima facia affirmative defense based
16 on privilege or justification . So, my prima facia
17 affirmative defense, is that I was a third party --
18 THE COURT: Sir , we are now trying the
19 case again . The question is can we do in what is an hour
20 and 45 minutes including put on evidence and argue all
21 the law? That's all that I am asking. If you can't tell
22 me, if you say , no , we really need three or four hours, I
23 jus t don ' t want to get at five minutes to 12 and say
24 yo u're half done or two - thirds of the way done, you
25 cou ldn't do it. Go start over. That's all that I am
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
17
1 ask in g.
2 MR . MARTIN : I think that we can do i t .
3 THE COURT: Okay. I don ' t, but I will
4 give you a shot at it. I asked you for a short , which
5 means two minutes introductory statement and you have
6 gone ten minutes. So you don ' t think they are entitled
7 to a Temporary Injunction against you?
8 MR. MARTIN: They haven ' t
9 THE COURT : You see that ' s a yes or no
10 question .
11 MR. MARTIN: No, I don't.
12 THE COURT : And yo u don ' t believe that
13 you ' re in contempt for violating a Temporary Restraining
14 Ord e r?
15 MR. MARTIN : Abs o lutely no t , Your Honor.
16 The text of t he Order r ef ers t o the deed records . There
17 was nothing in the Order that k e pt me from filing things
18 in the docket with the court.
19 And by the way , Your Honor , the respective
20 purchase r has been joined as Plea to the Third - Party , so
~\ - oosit i on is that the injunctive relief is essentially
~hey were asking for relief based on Lis Pendens
: ~ _ ~ :--. :; .s , ·.-: :--. .:. c h i s a cons t r uct i ve f orm of not i ce , but n ow
2t; ~eg.:..s~e~ed agent , whose n a me lS Olg a Vasquez
25 Si~ -,2 \ s.:..c ) , 2cco~d::.ng to the records f r om th e Secr e tary
CINDY DEE S , COU RT REPO RTER
288 TH DI STR I CT COU RT
18
1 of S tate , no w that that person lS a pleaC.:ed party in the
2 case , the original relief is essentially moot becaus e it
3 would not insulate them from actual notic e of t he lien
4 c la i m .
5 THE COURT : What is all this about now
6 your Ple a to the Jurisdiction and Motion to Dismiss?
7 When do I have to take that up?
8 MR . MARTIN : T hat would be today , Your
9 Honor.
10 MR. DEADMAN : You know , Judge , I was just
11 handed this today and I haven't had t hre e days noti ce .
12 We are not ready on that .
13 MR . MARTIN: Well , that ' s part of my show
14 cause showing is the Pl e a to the Jurisdictio n and the
15 Moti o n to Dismiss . So if that - - if they are not ready ,
16 we s houl d res e t or continue.
17 THE COURT : Okay . I was not aware that
18 yo u were not given notice of the Motion to Dismiss and
19 th e Plea to the Jurisdiction. My unde rs tanding is that
20 he c an make a Plea to the Jurisdiction at any time , c an
21 he not?
22 MR. DEADMAN : He can even on appeal.
23 Judge , if it ' s th e r e setting of the contempt t h at h e ' s
24 a:t:er , my client h as no i s sue with res ett i ng t he contempt
25 a . d proceeding with the injunction .
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
19
1 MR. MARTIN: Very well.
2 THE COURT: We will carry your Plea to the
3 Jurisdiction and Motion to Dismiss, is that appropriate?
4 You can raise that at any time.
5 MR. MARTIN: Yes, Your Honor. I would --
6 I would like to make those arguments as part of my show
7 cause showing.
8 MR. DEADMAN: Judge, we just agreed to
9 continue the show cause --
10 MR. MARTIN: Well, there is two show
11 cause --
12 MR. DEADMAN: There lS only one.
13 MR. MARTIN: There are two show cause
14 issues. One was for the original show cause on the
15 Temporary Restraining Order that was subsequently an
16 order to show cause on criminal contempt. I understand
17 that Mr. Deadman has said that his client is 1tvilling to
18 defer the issue of the criminal contempt show cause but
19 that leaves the show cause on the Temporary Restraining
20 Order. And in that case, my Plea to the Jurisdiction and
21 the Motion to Dismiss is directed at the -- the part of
22 the original petition that caused the TRO to be granted.
23 MR. DEADMAN: We have agreed to continue
24 th e show cause which is for violation of the Restraining
25 Ord er and the criminal contempt. One motion, we are
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
20
1 ready on the Temporary Injunction.
2 THE COURT: Well, you have kind of backed
3 me into a corner on this one. If he has a Plea to the
4 Jurisdiction and a Motion to Dismiss and i t ' s valid, and
5 I ' m not saying that it is, seems to me if we go forward
6 and -- let ' s say I gran t a Temporary Injunction and then
7 he comes back here in three days and has the case
8 dismissed , aren't we better off continuing a restraining
9 order and or amending it and having a hearing on all of
10 this together one day next week? Or do you want to read
11 this and waive the three days notice?
12 MR. MARTIN: Your Honor , the other thing
13 is that although -- although the order - - the order that
14 he ' s referring to , the original order was granted on or
15 about May 14th. And it was styled as a Temporary
16 Restraining Order. Subsequently, on May 23 , there was
17 that was the original setting or the resetting for the
18 show cause hearing. At that time, an agreed order was
19 entered continuing the show cause hearing to this date.
20 So , the Temporary Restraining Order, although that i t ' s
21 styled as a Temporary Restraining Order has been in
22 e ffect for almost 45 days. So my position is that i t ' s
23 re ally a Temporary Injunction although i t ' s styled as a
24 T em porary Restraining Order. And my - - it should either
25 be d issolved or allowed t o laps e if we are not going to
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
21
1 deal with it today.
2 MR. DEADMAN: That's the issue, we need to
3 go forward. It can't lapse.
4 THE COURT: Well, we can continue it
5 forward by agreement.
6 MR. DEADMAN: He won't agree.
7 THE COURT: Well, then I can convert it to
8 a Temporary Injunct io n and make it for three days or five
9 days or something like that; but the issue is, I think
10 that in the interest of judicial economy all of this
11 ought to be heard at the same time . The question is do
12 you think that it 's appropriate -- I don't know how long
13 thi s is, for you to review this and have this heard
14 today.
15 MR . DEADMAN: Judge , I don ' t have an lssue
16 starting it today . We are ready.
17 THE COURT : An hour and 45 minutes , can we
18 do it?
19 MR . DEADMAN: Yes , slr.
20 MR. MARTIN: Yes , Your Honor. My
21 und e r s t anding is that we have limited the scope to the
22 show cau se order on the temporary --
23 T HE COURT: Temporary Injunction. Okay.
24 If you c a ll you r first witness , please.
25 MR . DEADMA N : We call Edward Bravenec .
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
22
1 Judge , I have already provided to Mr . Martin a copy of
2 the exhibits and you have them in your binder. May I
3 app r oach the witne ss.
4 EDWARD BRAVENEC ,
5 having been first duly sworn testified as follows:
6 DIRECT EXAMINAT I ON
7 QUESTIONS BY MR . DEADMAN :
8 Q. State your name for the record , please?
9 A. Edward Bravenec.
10 Q. At one time that your had a partnership with
11 Albert McKnight?
12 A. Yes , slr.
13 Q. And by a nd through your relationship in that
14 partnership , you became the owner of 1216 West Avenue?
15 A. Yes , sir.
16 Q. That is a street address here in San Antonio?
17 A. Yes , sir .
18 Q. In 2006 , a foreclosure took place on that
19 property?
20 A. Yes , sir .
21 Q. And that is the way by which you became the
22 own e r of the property?
23 A. Yes , slr.
24 Q. In 200 6 , Mr . Martin , along with several other
25 er.t.it i e s , known as DECO Village Annex and In Re Moroco
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
23
1 Ventures, sued both yourself and Mr. McKnight, cl aim ing
2 that the foreclosure was invalid?
3 A. Yes.
4 Q. I want to refer you t o Plaintiff 's 1?
5 (Indicating.)
6 A. Yes , sir.
7 Q. Is that a true and correct copy of the order in
8 cau s e nu mb er 20 06 -CI- 15329 , fi nding that the foreclosure
9 was valid?
10 A. It lS.
11 Q. Sig ne d by th e Honorable John Gabriel?
12 A. Cor r ect .
13 Q. Fou nd th at there were no irregularities in the
14 for e closure?
15 A. Yes , sir , it does .
16 Q. Aft e r t ha t fi n ding , I underst an d that Mr.
17 Mar t in went to bankruptcy court to attempt to obtain
18 pos s ession of the property?
19 A. I don't remember I know we went to
20 bankrup tcy court . I can ' t say exactly.
21 Q. In any event, he was not give n possession or
/ :-_:_:-_::_e :: o the pro perty?
. o, sir .
~he~ he fi l ed a s u it l n F e d e ral Cour t ?
25 A. Yes , sir , he did . Again , I don ' t know the
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
24
1 date.
2 Q. If I refer you to exhibit 2?
3 A. Yes , I see it in front of me.
4 Q. That is the civil cover sheet and the
5 P. l aintiff's Original Complaint in Federal Court. You see
6 that?
7 A. I do.
8 Q. Originally, it was filed in the Southe rn
9 District , the Texa s Houston Division , do you see that?
10 A. I do . I remember that.
11 Q. But Judge Hudspeth took charge of the case here
12 ln San Antonio?
13 A. Yes , sir.
14 Q. And it was given cause number SA - 11 - CA - 414HLH?
15 A. Yes , slr , that's correct .
16 Q. The HLH stands for Judge Hudspeth?
17 A. Yes .
18 Q. In his original complaint , he sued you for a
19 numbe r of causes of action , being unlawful debts and
20 p r oh ibitive trade practi ces as set forth on page 3?
A. Yes , sir .
Fraudul ent appropriation of Plaintiff ' s
9r o 9e r~ j , s et f o rth on page 5?
Yes , slr .
25 Q. Inju ries t o b u siness equ it y and homestead
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
25
1 interest set forth on page 8?
2 A. Yes , sir .
3 Q. Common law fraud?
4 A. Yes , sir .
5 Q. Set fourth on page 9?
6 A. Yes , sir . I'm sorry .
7 Q. Breach of legal and fiduciary duties set f orth
8 on page 10?
9 A. Yes , sl r.
10 Q. Wrongful appropriation of violation of the Fair
11 Debt Collection Practices Act , page 12?
12 A. I see that, yes , slr .
13 Q. Civil Rights Violations set forth on page 14?
14 A. Yes .
15 Q. Blatant Anti - trust Act violations on page 14?
16 A. Yes , sir .
17 Q. Sherman Antitrust Violations Acts on page 15?
18 A. Yes , sir.
19 Q. Suit on a Trespass to Try Title claimin g both
20 int erests as and owner and as lien holder on page 17?
21 A. Yes , slr .
22 Q. In j u nctive relief to enjoin you in any further
23 acti o.:1 on page 1 9?
24 _;:'!, . Ye s , Slr .
25 Q. And negl ige nt in f l ec t ion of emotional distress
CINDY DEES, COURT REPORTER
28 8TH DISTRICT COURT
26
1 on page 20?
2 A. Yes, sir.
3 MR. DEADMAN: Judge, I move for admission
4 of Plaintiff ' s 1 and 2.
5 THE COURT: Mr. Martin?
6 MR . MARTIN: Mr. Bravenec
7 THE COURT: No, no, no , do you have
8 objections to the admission of these documents? It ' s not
9 your turn to cross examine him yet .
10 MR . MARTIN: No, Your Honor.
11 THE COURT: They will be admitted .
12 Q. (BY MR . DEADMAN) After some time , Motion for
13 Summary Judgment were filed in the Federal case , true?
14 A. True.
15 Q. If I can refer you to exhibit 3? (Indicating . )
16 A. Yes , sir. I am looking at i t .
17 Q. That ' s the judgment entered by Judge Hudspeth
18 on December 21 , 2012 denying all of Mr. Martin ' s claims
19 and awarding judgment in fav or of you?
20 A. Ye s, that ' s correct.
21 Q. At the back of the cover sheet which is the
22 judgment i s the actual order regarding the Motion for
23 Sum _ ary Ju dgment ; is that true?
24 A. And I am sorry, are you talking about exhibit
25 4?
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
27
1 Q. Exhibit 3.
2 A. This is a copy of the order on the Motion for
3 Summary Ju dgm ent . Did I understand your question? I am
4 sorry .
5 Q. Yes. The order on the Motion for Summary
6 Judgment is attached as Plaintiff's 3 .
7 A. Yes, sir , it is.
8 Q. The actu al order regarding the - - make finding
9 of fact and conclusions of law to the same judgment , lS
10 that exhibit 4?
11 A. Yes , sir , it is , I am sorry.
12 Q. In Judge Hudspeth's order regarding the Motion
13 fo r Summary Judgment, he found that the Statute of
14 Limitations on all causes of action had expired?
15 A. Yes, sir .
16 Q. And exhibit 2 shows that Plaintiff ' s complaint
17 was filed in 2010?
18 A. Yes, sir , that 's correct .
19 MR . DEADMAN : Move for the admission of 3
20 an d 4 , You r Honor.
2l THE COURT: Any objections to those being
22 a mitted ? He has se en them , I take it?
23 MR . DEADMAN: Yes, he has copies of them ,
24 Judg e . I ga ve t hem to him.
25 MR . MARTIN: No objection to those , Your
CINDY DEES , COURT REP ORTE R
288TH DISTRICT COURT
28
1 Honor. But on the previous one, Mr. Deadman stated that
2 there was a claim in my capacity as a lien ho l der. If
3 you could refer to me -- I was not able to examine the
4 text.
5 MR. DEADMAN: It's in his complaints,
6 Judge, under the trespass to try title.
7 MR. MARTIN: Could you tell me which claim
8 that i s?
9 MR. DEADMAN: Sir, i t ' s your petit i on - -
10
11 MR. MARTIN: It's - -
12 THE COURT: One at a time .
13 MR. MARTIN: I am simply asking you to
14 t ell me what claim he just referred.
15 MR. DEADMAN: The one headed Trespass to
16 Try Title.
17 THE COURT: All right. Can we get on with
18 t he ques t ioning, p l ease? I am sorry, 3 and 4 are
19 adm i t ted.
20 Q. Exhibi t 5 l S the civil docket sheet for both
21 the un der lying case and the appeal in the Federal suit.
22 A. Ju st t o make sure that I am doing it right, I
2 am looking rea l quick and making sure that I am not
2. saying y es when I mean no . If you give me just a moment.
25 Q. I under s t and, i t ' s about 20 pages.
CINDY DEES, COURT REPORT ER
288TH DISTRICT COURT
29
1 A. Yes, sir, those are true and correct copies of
2 those i terns.
3 MR. DEADMAN: Move for admission of
4 exhibit 5 , Your Honor .
5 THE COURT: He moved to admit exhibit 5.
6 MR . DEADMAN: Yes, sir.
7 THE COURT: Mr. Martin, any objections?
8 MR . MARTIN: Your Honor , I am hard pressed
9 to say where exhibit 5 lS. The document that is
10 presented to me is not labeled.
11 THE COURT: Show it to him .
12 MR. MARTIN: No objection , Your Honor.
13 THE COURT: Five is admitted.
14 MR . DEADMAN: Thank you , Your Honor .
15 THE COURT: Do you have th e other e xhibits
16 down there , 1, 2, 3 and 4.
17 Q. (MR . DEADMAN CONTINUING) Mr . Martin appealed
18 Judge Hedspeth's ruling?
19 A. Yes .
20 Q. He appea l s to the Fifth Circuit Court o f
21 Ap pea l s in New Orleans?
22 A. He did , sir .
2:? Q. I want to refer you to exhibit 6?
24 A. Yes, sir I have it in front of me.
25 Q. Is t hat the order from the United States Court
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
30
1 of Appeals, F ifth Circuit, in cause number 1350070,
2 finding that the Motion for Stay of the Recall and Revise
3 the Mandate is denied?
4 A. Yes, slr, that's true and correct copy of that
5 order.
6 Q. Did the Court also finds that Mr. Martin
7 continues to engage in frivolous and vexatious litigat i on
8 asking for relief that the Court is repeatedly found not
9 warranted?
10 A. He did. I think that he filed six or seven
11 motions essentially asking for reconsideration.
12 MR. DEADMAN: Move the admission of the
13 Courts's Order as Plaintiff's 6.
14 MR. MARTIN: Your Honor, these -- the
15 subject matter of those orders is on appeal right now.
16 The re was a post appeal. It was a post appeal based on
17 those sanctions. And the appellate brief that I
18 submitted was accepted last week. And Mr. Bravenec has
19 re ceived instructions to submit his brief in the next 30
20 day s . So, I think that it's important for the Court to
21 und erstan d that these are matters under -- on golng
22 aooeal .
23 THE COURT: You can go into all that wit h
24 .--..im on cross . Right now the question is do you have
25 obj ections to the document being adm iss ible for me to
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
31
1 look at.
2 MR. MARTIN: No, I don't.
3 THE COURT: Be admitted.
4 Q. (MR. DEADMAN CONTINUING) After the order of the
5 Fifth Circuit, the case was remanded back to Judge
6 Hudspeth?
7 A. It was.
8 Q. I would like to have you look at Plaintiff's 7?
9 A. I have it in front of me.
10 Q. That's the order from Judge Hudspeth dated 30,
11 2013?
12 A. It is.
13 MR. MARTIN: Objection, Your Honor. You
14 said i t strikes all of Martin's pleadings? May I see
15 that?
16 THE COURT: Would you show him that?
17 A. Yes.
18 MR. MARTIN: The order refers to documents
19 150 , 151 and 152.
20 MR. DEADMAN: I will get to it.
MR. MARTIN: Is that what you were
// ~2 = e~r~ng to when it says it strikes all pleadings?
2? MR . DEADMAN : I will get to it.
_=-_;:ci = don ' t - -
25 ``E COURT : Let him ask a question.
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
32
1 Q. (MR. DEADMAN CO NTINUING) Is it true that in
2 this order , Judge Hudspeth f ou nd that Mr. Martin has a
3 history of filing pleadings and motions that are both
4 frivolous and vexat i ou s ?
5 A. Yes.
6 Q. More than ten months prior to this order , the
7 Court found i t necessary to enter an order establ is hing
8 pro p er boundaries for such activities on th e part of Mr .
9 Martin?
10 A. Judge Hudspeth d i d order that ; yes, sir .
11 Q. He further directed in docket number 129 that
12 the Office of the District Clerk not accept filings or
13 any further motions in this case without approval of the
14 Judge?
15 A. Yes, sir , I remember that.
16 MR. MARTIN: Your Honor , at this point ,
17 I ' m going to object to this line of questioning. The
18 s ubject ma tt er concerning the frivolous , a lleged
19 fr i volo us and vexatious conduct is the subject of appeal
20 r i gh t no w. The pr ej udicial effect exceed s the probative
2~ ·;2lce in th is case because the - - under the state law ,
`` - es conc er n ing vexati o us litigation, the events and
`` ``~e~ ``~ ~ gaLion i s n ot probative -- if the claim tha t lS
2~ ce ~ ~g ~ade `` Lhis c ase h a s val idit y .
25 CTIH E COURT : Ok a y . Ove rr u led. I t hin k I
CINDY DEE S , COU RT REPOR TE R
288TH DISTRI CT COURT
33
1 need a short history of this, go ahead.
2 MR. DEADMAN: Move for admission of
3 Plaintiff's 7, Your Honor.
4 THE COURT: Any objections, sir?
5 MR. MARTIN: No, Your Honor.
6 THE COURT: Be admitted.
7 Q. (MR. DEADMAN CONTINUING) Despite Judge
8 Hudspeth's Order of December 30, did Mr. Martin continue
9 to file pleadings?
10 A. I'm sorry, December 13, 2013?
11 Q. Yes, sir.
12 A. I can't remember how many, but yes, he filed
13 some more.
14 Q. I want to refer you to Plaintiff's 8.
15 A. Yes, sir. I have it in front of me.
16 Q. Is that Judge Hudspeth's Order of February 1,
17 2013?
18 A. It is.
19 Q. Did he find ln that order that i t was now
20 nec essary for the Court to take action to curtail Mr.
/- :~: a~Lin 's prope nsity to burden the Court with meritless
~e did .
24 ~e ~ ~en order e d that all the pending motions
25 a~e ~e~eo; de~ ~e d and the case is closed.
CINDY DEES , COURT REPOR TER
288TH DI STRICT COURT
34
1 A. I remember that, yes, sir.
2 Q. And that's what the order says?
3 A. That's what the order says. This lS a true and
4 correct copy of the order .
5 THE COURT: What lS the date of it,
6 please?
7 MR. DEADMAN: February 1, 2013.
8 THE COURT: Thirteen or '14?
9 MR. DEADMAN: Thirteen. Move for the
10 admission of Plaintiff's 8.
11 THE COURT: Objection, sir?
12 MR. MARTIN: No.
13 THE COURT: Be admitted.
14 MR. MARTIN: Well, actually, Your Honor, I
15 would continue my line of objections but I expect you to
16 overrule it.
17 THE COURT: Be admitted.
18 Q. (MR. DEADMAN CONTINUING) All the matters
19 concerning Mr. Martin's interests in 1216 West Avenue
20 Inc., have been litigated ln numerous courts, true?
21 A. That's true.
22 Q. Full well knowing Mr. Martin' propensity for
23 i n cluding the title on this property, you filed this
24 cau se of action and sought a restraining order that he
25 not do it anymore?
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
35
1 A. Yes, I have been trying to s el l this property
2 for at least nine months and he has kept me from doing
3 so .
4 MR. DEADMAN: Pass the witness , Your
5 Honor.
6 MR. MARTIN: Your Honor, I have page 2 of
7 document 162 from the Federal Court case that Mr .
8 Bravenec has just describ ed. It ' s dated February 13 ,
9 2014 . An d this is a page from the fin al motion that Mr.
10 Bravenec filed in Federa l Court in an effort to cancel
11 th e Lis Pendens.
12 THE COURT: Are you going to show it to
13 him as an exhibit? Do you want her to mark it?
14 MR . MARTIN : Yes , please? Do you
15 recognize thi s?
16 THE COURT: How is it identified?
17 Defenda nt ' s 1?
18 THE COURT REPORTER : Ye s.
19 A. Yes , I think so.
20 THE COURT : For the record , could you just
2=- identify what it is , pl ea se , Eddie?
THE WITNESS: And Judge , I think tha t -- I
- < :. :-: .:_ :1 :.-: ·..: ha t t hi s i s t hat h e f i 1 e d t wo L i s Pe n d e n s , we r e
2-; :::::a::ce::..::..ec:i and , th en he filed one in Probate Court ,
25 a .. o :.: . e::::- !_.is Penden s . And I believe that this is our
CINDY DEES , COU RT REPORTER
288TH DISTRICT COU RT
36
1 motion in Federal Court asserting that it had pended
2 jurisdiction over the Probate Lis Pendens.
3 THE COURT: So it ' s a federal court
4 motion .
5 A. I believe so.
6 THE COURT: All right . Go ahead , sir .
7 MR . MARTIN: Yes, it is Federal Court
8 motion.
9 MR . DEADMAN: Judge, may I see the
10 exhibit? Clearly i t ' s meant to be a four page do c ument .
11 This is page 2 and I would object that it ' s a partial
12 document and it ' s incomplete.
13 MR . MARTIN: The relevant part appears in
14 on l y two paragraphs.
15 TH E COURT: Sir , are you going to s eek to
16 introduce it?
17 MR . MARTIN: Yes, Your Honor.
18 THE COURT: You need to give him the whole
19 document if you ' re going to introduce it .
20 MR . MARTIN: Okay. I will question Mr.
21 Bravenec.
22 CROSS EXAMINATION
23 B Y MR . MARTIN :
24 Q. Yo u said that he recalls the document. It
25 Lates h ere t hat you have stated that this was a motion
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
37
1 that you presented to Judge Hudspeth aft2r a proceeding
2 had been initiated in Probate Court and a Lis Pendens
3 filed concerning that proceeding in the Probate Court.
4 It says here in reference to that, and you were the
5 moving party of this motion. It says Movant avails
6 himself of Federal Court and cannot assert matters that
7 he was required to raise in this suit merely by filing
8 the same matters under an unrelated cause in a different
9 court. Do you remember that language, Mr. Bravenec?
10 A. I didn ' t prepare the document but I remember
11 something to that effect, yes, sir.
12 Q. And what was significance of that language?
13 A. Well , you had filed two Lis Pendens in Federal
14 Court which had been expunged and then you filed one in
15 Probate Court. I didn ' t understand why but we -- our
16 first move was to try to expunge i t in Federal Court and
17 then the Federal Judge said no. So then we went to
18 Probate Court to have it expunged and then I think that
19 you had added
20 Q. Thank you. That answered my question. So , in
21 o ther words, when you said Movant availed himself of
22 Fe deral Court and cannot assert matters he was required
23 to r aise in this suit merely by filing the same matters
24 _ der an unrelated cause and a different matter , you were
25 re : erring to a lien interest and a Lis Pendens that was
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
38
1 beyond the jurisdict ion of the Federal Court, wer e you
2 not?
3 A. I don't - - the only way that I can answer that
4 question is by saying that I was referring to a Lis
5 Pendens that you filed in Probate Court with the Probate
6 Clerk.
7 Q. Okay. Here is a my second exh ib it.
8 (Indicating . ) Mr. Bravenec, I would like to refer your
9 attention to the two sentences preceding the ordering
10 clause on page 2 .
11 A. Yes , sir.
12 Q. This order is dated March 5th , 2014 , so this
13 was the following mon th after your motion to -- the final
14 motion to Judge Hudspeth in your attempt to cancel one of
15 the Lis Pendens claim . On March 5, Judge Hudspeth wrote
16 in re sp ons e to you r motion requesting him to cancel th e
17 Probate Court Lis Pendens, that the propriety of that
18 action and th e accompanying Li s Pendens is well outside
19 of the scope of this Court ' s jurisdiction. If the
20 De fendant s wi s hes to pursue their motion , they should
fil e it in Be x ar County Probate Court Number 1 .
So you requested that th e Federal Court
~ Ya`` ;ou can celat ion of a Lis Pendens . You argued that
ot be able to file -- you would not be able to
2S asseY~ ~r o se argum e n ts in another court because they had
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
39
1 not been raised ln the Federal Court . We are referring
2 to the Probate Court and probate related Lis Pendens, t he
3 final Lis Pendens notice and arguments that were r aised
4 in the Probate Court.
5 MR. DEADMAN: Judge, I ' l l object. I'm not
6 sure if there is a question in some where in there.
7 THE COURT: What is the question that you
8 have for this gentlemen?
9 Q. (MR. MARTIN CONTINUING) The question is, were
10 you not intending to alert the Court that you would be
11 collaterally estopped from raising this issue if the
12 Court didn ' t grant you the Lis Pendens relief that you
13 requested? Was that not the purpose of your statement,
14 Movant avails himself of Federal Court and cannot assert
15 matters that he's required to raise in this suit merely
16 by filing the same matters under an unrelated cause in a
17 different court. Were you not aware that you would be
18 collaterally estopped from raising these issues in a
19 state cou rt forum?
20 A. I don't think that collateral estoppel would
2 -:_ a~ply to me , so no , I don ' t agree with that.
22 How do you explain your inclusion of this
24 ~ell , collatera l estoppel would be against the
25 los .=_ r:g paccy . And so we are the prevailing party. So ,
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
40
1 in my interpretation of collateral estoppel , so I think
2 our argument that you were collaterally estopped from
3 as s erting what is e ssentially a matter that had al ready
4 been decided in Federal Court in Probate Court. So I
5 think that was our argument.
6 Q. Very well . But this order denied your relief ,
7 the relief that you requested , did it not?
8 A. It did.
9 Q. Okay. So you were the losing party on this
10 motion ; is that correct?
11 A. On that one motion, certainly was .
12 Q. On this motion . And the subject matter of th i s
13 mo t ion was a lien c laim that arose out of an at t o r ney
14 client relationship stemming from the Probate case in
15 Bexar County Probate Court Number 1 ; is that not correct?
16 A. No.
17 Q. What is your version of the --
18 A. That was the Lis Pendens that you had f i led
19 with the Probate Court after you had the two Federal
20 Co urt that were expunged.
21 Q. So --
22 A. It ' s not a lien, it ' s a Lis Pendens. There is
23 a diffe r e nce .
24 Q. Prec isely. But you see no distinction between
25 the original --
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
41
1 THE COURT : Sir , if you don ' t mind , sit
2 when you're asking him -- if you want to approach -- go
3 ahead, sir.
4 Q. So , all together, how many Lis Pendens notices
5 do you refer to in your case?
6 A. Mr. Martin , I think you -- I ' m trying to work
7 through it. I t hink that you filed tw o in the Federa l
8 Court that were expunged. One in Probate Cour t which was
9 denied, expunging it in Federal Court and then - -
10 Q. I'm sorry , what was that?
11 A. I think one you filed , one with the Probate
12 Court. And then you amended it to, a day before the
13 hearing , t o go to the Federal Court thing, and Judge
14 Polly Jackson Spenc er expunged both . I think that you
15 filed something which effectively was a Lis Pende ns after
16 that . It said notice to third -p arty claimant or
17 something or anoth er
18 Q. Very well.
_g A. And so that was the fif th one. And then I
20 bel ieve I believe that you filed effectively a sixth
21 o:1 e in t he District Court. So I think that there is six .
22 Q. O kay . Now, are all of those c l aims arising out
23 o: ~ne same l itigat io n?
24 In my o pinion , yes .
25 So , you just testified that the first two were
CINDY DEES , COURT RE PORTER
288TH DISTRICT COURT
42
1 in Federal Court and arose out of the Fed2ral Court
2 litigation. You then testified that there was two Lis
3 Pendens notices pertaining to the Probate Court
4 litigation. And then you then testified to one that was
5 filed in this case and another that was unrelated to
6 litigation; but you're saying that all of these Lis
7 Pendens referred to the same issues, to the same
8 interest?
9 A. Yes.
10 Q. How would you - - how would you -- what would be
11 the underlying litigation for the Lis Pendens notice if
12 they were in different courts?
13 A. Well, sir, I don't if you're asking me to
14 explain why you filed things
15 Q. No, I am asking you to explain why --
16 THE COURT: Sir, let's not interrupt
17 except to stand and make a legal objection.
18 MR. MARTIN: Yes.
19 A. So if you're asking me to explain why you filed
20 them ln different courts, my simple explanation would be
21 that you were smart and you weren't going to go to the
22 same court where you lost twice, so you filed i t in a
23 d if ferent place. I can't control where you go and file
2~ Lh ing s except by having an injunction entered. And after
25 I gu ess about 7 months of having my title messed up,
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
,
43
1 that ' s what I appeared here to try to g e t you to do which
2 is stop filing things in different courts.
3 Q. Well, you testified earlier that a Lis Pendens
4 notice -- first , I would point out that you contradicted
5 yourself . There is more than one court .
6 MR. DEADMAN: Your Honor , this is
7 argument ati ve .
8 THE COURT: Sustained. Please ask him a
9 question , sir .
10 Q. (MR . MARTIN CONTINU IN G) Can you elaborate on
11 the d is tin ctio n that you draw between a Lis Pendens
12 notice and a lien int erest?
13 A. A Lis Pen d ens is not a legal in terest against a
14 lan d. The effects of a Lis Pendens is that i t ' s messes
15 up your t i t le when you ' re trying to get title insurance
16 which no buyer will buy a piece of property wi tho ut. So,
17 a li en is a legal in terest which was clearly decided on
18 the fore cl osu re t hat you had do ne . But you ca n file Lis
19 Pendens anyw h er e . You may end up being charged
20 cr iminally with the District Attorney , but is n ot a legal
21 int er e st in a land. It just glv e s everyone notice that
22 :_lOU _ igh t have a legal interest. And so it messe s up
23 :.-=._:. ~ es . The re is a legal distinction , but I'm not so
?L s``e Lr-aL it was -- the distinction mak es a dif fe ren ce in
25 Lhis case whether lien are Lis Pendens , it keeps me from
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
44
1 sel lin g t he prop er ty.
2 Q. So , so, so from -- so you ' re the seller and
3 from your perspective the Lis Pendens notice messes up
4 the closing , bu t does it not also furnish information to
5 the clos i ng agent a nd to other parties that have interest
6 in the transaction? Yes or no, Mr. Bravenec? Does it
7 furnish information to other parties in the transaction?
8 MR . DEADMAN : Judge, I am not sure that is
9 a question . We ar e not here for an educational clas s on
10 what Lis Pendens do or don't do.
11 THE COURT: What is the legal object io n,
12 if any?
13 MR. DEADMAN: Irrelevant question.
14 MR . MART IN: Your Honor, I am driving at a
15 core issue in the case, which is that they have inflated
16 t he Lis P e ndens notices with the und er lying l ie ns . They
17 have inf la ted the Li s P en dens notices in one cou rt.
18 THE COURT: You can mak e tha t argument .
19 MR . MARTIN : I would like to g et his state
20 of mind , Your Honor , as to why he -- so I can u ndersta nd
2~ hi s po si t i on as --
22 THE COURT: You want to a sk him his
oo .:_::i on o f th is? You're ask in g h im his opinion of this?
MR . MARTIN: Well, his theory as to why
25 t.h e :::...is Pe nd ens , wh y t he lien --
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
45
1 THE COURT: Tell you what, I'm not sure
2 that i t ' s relevant but I think that i t ' s quicker if he
3 answers it. Do you know the answer?
4 THE COURT REPORTERS: Judge, I need to
5 change a disc.
6 THE COURT: Let's go off the record.
7 (OFF THE RECORD.)
8 THE COURT: Back on the record. Go a
9 head, slr.
10 MR. MARTIN: May I rephrase my question?
11 THE COURT: That's was going to be my
12 suggestion.
13 Q. Are there -- you would agree that there are
14 parties in a closing transaction who have interest
15 different than the seller?
16 A. Of course.
17 Q. So, would you agree that information that might
18 be disadvantageous to the seller might enable other
19 p arti es to the transaction to protect their interest?
20 A. In this case or in abstract?
Q. Bo th . All of the above?
In ab s tr act, yes. In this case, no.
23 _-::.._n why is t ha t not in this case?
3ecc~se you lo st t he l awsuit in 2010 and you
25 _- ega _- ``~e~est in th e prope rty . So all that
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
46
1 you're really doing lS keeping us from selling it by
2 alerting a title company that you might keep suing, which
3 ln fact that's what you keep doing.
4 Q. Mr. Bravenec, you have testified earlier, Mr :
5 Deadman introduced a document earlier which he said
6 prevents -- this was a claim from my original petition.
7 Mr. Deadman characterized it as a claim in my capacity as
8 a lien holder, he identified as the claim for trespass to
9 try title. This is -- this is from Mr. -- this is page
10 17, 18 and 19?
11 A. Actually I remember, sir. What is your
12 question about them?
13 Q. Can you show me -- can you show me where i t
14 refers to a lien interest where I served as capacity as a
15 lien holder?
16 A. In this particular one, I cannot show you,
17 altho ugh if you wish me to read this particular cause of
18 action, I will do so and telling you whether this
19 par ticular cause of action says that.
20 Q. Well, this is the one that Mr. Deadman
2~ ~ de``ifi ed as the claim that I asserted as a l ien holder,
22 a~o ~e asse rted that it was denied. I am asking, can you
23 s~o~ ~e ``ere it say s that I assert a claim as lien
24 ho ~ oe~ `` ``a~ -- in th e tex t of the trespass to try
25 t itle c ~ a.:_:-:-.?
CI NDY DEES , C00K ~ ~E?ORTER
2 8 8 TH DISTRIC ~ CO``T
47
1 A. The trespass to try claim, you have to have
2 interest against the land .
3 Q. So by the very nature of your claim , it's
4 asserted. It would be l i k e - - like you're saying human,
5 you 'r e living and breathing?
6 A. No, my answer is that the very nature of the
7 claim would put any lawyer , any Judge on notice that you
8 were asserting a lien interest against the land.
9 Q. The case was styled as Rowland Martin and
10 successors to interest?
11 A. I r e ally don ' t remember, Moroco Venture s, but I
12 don ' t remember the style of the case.
13 Q. On page 1 of the Plaintiff ' s original complaint
14 in Martin versus --
15 A. Acknowledges Mr. Martin that was the style of
16 the case, I wil l agree wi th you. I just don't know. And
17 if you ' re asking me if I know , I always say yes or no.
18 If you tell me that was the style of the case, I have no
19 qu arrel with that .
20 Q. That was the style of the case. Would that not
L _ ale~t yo u to a specific capacity that was being alleged?
22 -~ · My understanding of the suit, if that is your
.2.3 ~·...:.es-::.::._c_. , lS that you and your entity were suing me.
24 ``c-::.~e~ e~-::.i-::.y and may be successors in interes t to Mr.
25 !~c:<'1ignL. , :!: can ' 1:. remember t hat. That is what it alerted
CINDY DEES , COURT RE PORTE R
2 88TH DISTRICT COURT
48
1 me too.
2 Q. Judge , I'm going to move on , Your Honor . Here
3 is my exhibit 3. Is this an order expung ing Lis Pendens
4 of the Bexar County Probate Court Number 1.
5 A. Yes.
6 THE COURT: Okay, sir.
7 MR. DEADMAN: I have no objection to
8 Defendant's 3 .
9 THE COURT : Are you going t o offer
10 Defendant 's 3?
11 MR . MARTIN : Yes , Your Honor.
12 THE COURT: What is it?
13 MR . MARTIN: Order expunging Lis Pendens
14 issued by Bexar County Probate Court Number 1 on March
15 19 , 2014 .
16 THE COURT: Be admitted .
17 Q. (MR. MAR TI N CONTINUING) Could you identify for
18 the Court the party to who m -- against whom the
19 e xpunction order was issue d ? The party that 's referred
20 to in the te xt of th e ord er?
21 A. I think that it was the Estate of Johnnie Mae
22 King .
23 Q. Ok ay . So could you -- could you read the text
24 of t:he order into the record, please?
25 A. S ure .
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
49
1 Q. Would you do that?
2 A. If you want me to do that. On th is the 19th
3 day of March , 2014 , came to be heard Movant's Motion to
4 Expunge Lis Pendens . After hearing evidence and
5 argument , the Court makes the following findings of fact
6 and orders .
7 Number one, the property with the physical
8 address of 1216 West Avenue, New City Block 8801
9 excuse me , 8806 , Block SO, lot 1 close parentheses is not
10 an asset owned by the Estate of Johnnie Mae King in cause
11 number 2001 - PC - 1263 nor does the Estat e have an i n tere s t
12 in said property .
13 Number two . The -- and this is
14 quotations , Notice of Lis Pendens , end quotations , filed
15 on ab out December 3 , 20 13 with th e County Clerk with
16 regards to the pro p erty at 1216 West Avenue is hereby
17 cancelled and is null and void.
18 Number 3. And this is ln quotations ,
19 Further Notice of Lis Pendens , close quotations , filed on
20 or a bou t the 7th day of March 2014 , with regards to
/- ~ r o pert y at 1216 West Avenue is hereby cancelled and is
:--.·__:.:._ .:._ a :~d voi d . Signed on this the 19th day of March , and
23 -::-: e ::..9-=.:--: lS wri tten in 2014. Honorable Judge Spencer.
24 _-;.,_ :-: ci ·_.: :>:: ::. -=. L. e . . i n t he r e i s P o 11 y J a c k s o n S p e n c e r . Attached
25 on L. he oo L.L. o~ l eft is the identification of Chris
CINDY DEES , COU RT REPORTER
288TH DISTRI CT COU RT
so
1 Pothoven who prepared the order and did the hearing.
2 Q. Okay. Here is a Motion to Expunge the Lis
3 Pendens. This is the motion that was prepared by the
4 Office of McKnight and Bravenec requesting the order that
S was just read. It's dated -- well, I don't -- let's see.
6 Well, it doesn't have a date on it but it said that i t
7 was served on March 11th and this was the subject of the
8 March 19th hearing. I would like to enter that as
9 exhibit four , I guess.
10 MR . DEADMAN: No objection, Judge .
11 THE COURT: I don't even know what it lS
12 or if i t ' s even being offered so I wish you would wait ,
13 Glenn until he offers it and identifies it. What is it,
14 sir?
15 MR. MARTIN: It ' s a Motion to Expunge the
16 Lis Pendens.
17 THE COURT: Are you offering that into
18 evidence .
19 MR. MARTIN: Yes, I am.
20 THE COURT: Defendant ' s 4 is admitted.
Q. ( MR . MARTIN CONTINUING) You recognize that,
= do 't know that I have actually seen this
....... -..--- -.::::::: ......
_... .... - ........ - - - - I
-
~-- = ce~tainly know what it is .
25 Mr . Bravenec?
c - ·:::rr ::: : _: : _: s , CJ" -::12 A. I don ' t know how to answer that. It asks for
13 an expunc tion of Lis Pendens that you filed within one or
14 two days of the hearing, maybe three days of the hearing .
15 Q. So , does i t -- d o es i t ask for a ruling on a
16 third - party purchase money lien interest?
17 A. I don ' t know what that is, sir.
18 Q. You don't know what a third-party purchase
19 party lean interest 1s, sir?
20 A. No , s1r .
21 Q. Well , let the record show that Mr. Bravenec
22 do es not know what a third - party purchase lien interest
23 l s . The motion that was filed on his behalf states
25 MR . DE ADMAN : Judge, if there 1s a
CI NDY DEES, COURT REPORTER
288TH DISTRICT COU RT
52
1 question, I would be interested, but i t ' s not closing
2 argument.
3 THE COURT: Okay. I appreciate if you
4 would ask a question. What's the question, sir?
5 Q. (MR. MARTIN CONTINUING) Well, I have asked if
6 the motion contained any request for a ruling on a
7 third - party purchase money lien interest and Mr. Bravenec
8 has said no. I asked him
9 THE COURT: What is the next question
10 please, sir? This is not argument. I will give you time
11 to argue. What is the next question? Thank you.
12 Q. So, you asked for a lien cancelation, a Lis
13 Pendens cance l lation in February of 2014, is that
14 correct?
15 A. Yes, slr. That sounds right.
16 Q. That was denied, is that correct?
17 A. Are you talking
18 Q. By the Federal Court, was i t denied?
19 A. That particu l ar one, yes.
20 Q. Was that denied? So you asked for a Lis
2 ~ ?endens can cellation in Federal Court in February of
-...,-""=I 2~d that request was denied. You then asked for a
=``=2 -- ``~on ln Bexa r County Probate Court Number 1; lS
24
25 ·-:..·es, s-=- 2::".
CI . DY JESS , COUKT REPORT ER
288TH DISTRICT COURT
53
1 Q. But you don't know what a third - party purchase
2 money lien interest is? Is that correct? Is that what
3 you testified to earlier?
4 A. That ' s what I testified to earlier.
5 Q. Okay. And so, you were not able to secure a
6 rul i ng on that bec a use you don't know what i t was? You
7 were not able to secure a ruling on the issue of a
8 third - party purchase money lien interest from the Bexar
9 County Probate Number 1 because you have testified that
10 you d o n ' t know what that is; is that correct?
11 MR . DEADMAN: I object , Judge , as
12 repetitive and irrelevant to the issues .
13 THE COURT: Sustained . Let ' s go somewhere
14 that you haven ' t been before please, slr . We are going
15 to run out of time.
16 Q. (MR. MARTIN CONTINUING) So , is it your
17 testimony that either of those rulings pertain to a
18 t hird - party purchase money lien interest?
19 A. You know , sir , I don ' t know how to answer that
20 ouestion . I guess my - -
Q. A yes or no?
Either -- which rulings.
-=-r_e ~vJarc h 5t h, 2014 ruling of the Federal Court
~ :--_ :.:: :-: ::: :: c :--_ : ._ 9 -: h :: u 1 i n g o f t he Be x a r Co u n t y P r o b a t e
25 C::;...:::-: ::_:-:-_i:::::::: ::._, ::.::.ci e.:.Lher one o f those rulings pertain
CINDY DE sS , COURT REPORTER
288TH DIST ICT COURT
54
1 to a third - party purchase money lien interest?
2 A. No, I think that they dealt with an estate
3 interest.
4 Q. A non existent estate interest; is that
5 correct?
6 A. That sounds right to me.
7 Q. Okay. I would like to introduce this as my
8 sixth (sic) document --Respondent's Opposing Title
9 Claims Asserted in the Motion to Expunge Lis Pendens
10 Filed by Attorney o f Record, Edward Bravenec.
11 Your Honor, I would like to offer into
12 evidence De f endant's exhibit number 5, Response Opposing
13 Title Claims Asserted in the Motion to Expunge Lis
14 Pendens Filed by Attorney of Record Edward Bravenec.
15 MR. DEADMAN: Judge, I am not sure what
16 the relevance lS. We have already seen the order that
17 they said the estate had no interest.
18 MR. MARTIN: Your Honor, the relevance is
19 th at --
20 THE COURT: Admitted. Sir, you're golng
L _ ~o run out of time. You said you could do i t in two
22 :-:;:;-__;:::-s . Th at g i v es each side an hour. I'm going to limit
23 ·:;:; _ :-. e :::- e ::.. n a few mi nutes . I know that you're not an
~ ·:e ll , you are an attorney but not a licensed
25 at:t:or::.e · . ~oc ~a7 e time l imi ts. Now, you promised me
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
55
1 that you would limit i t to two hours. You have used well
2 over 30 minutes now and you haven ' t put on your case yet .
3 So, keep that in mind.
4 At some point Cindy and I have got t o take
5 a l i t t l e short bathroom break.
6 Q. (MR . MARTIN CONTINUING) Yes , Your Hono r.
7 The re are two more docu ments that I would like to
8 question Mr. Bravenec about and then I will rest. Her e ' s
9 exhibit number 6, I guess. Defendant ' s exhibit number 6.
10 This is an order of the Bexar County Probate Court on a
11 Mot i on for Order to Authorize Terms of Withdrawal for
12 Attorney of Record, Edward Bravene c.
13 Your Hon or , I am offering the orde r of
14 Bex ar County Probate Court Number 1 dated March 19th , on
15 a Motion for Order to Auth o rize Terms of Withdrawa l for
16 Attorney of Record , Edward Bravenec .
17 MR. DEADM AN : No objection.
18 THE COURT: Be admitted.
19 Q. (MR . MARTIN CONTINUING) Mr . Bravenec , did you
2 seek when yo u executed a non judicial withdrawal in
:; · 2 00 5 , did yo u seek an order for yourself to authorize
• - ~ , • -r '1! i t h d r a wa 1 ?
Sir , I r ememb er withdrawing in 2005, but I
ca~·~ ~e~- -;ou anyth ing about the terms of i t . I t ' s been
25 r :'__ r_ e -,-e 2 .-c s .
CINDY DEES , COURT RE PORTER
288TH DISTRICT COU RT
56
1 THE COURT: It's a 2005 order?
2 A. No, sir, this is a 2014 order. He's asking me
3 about when we withdrew in 2005.
. 4 Q. (MR. MARTIN CONTINUING) So, to the best of
5 your knowledge, that is the first order of the Bexar
6 County Probate Court addressing your withdrawal, your non
7 judicial withdrawal earlier?
8 A. No, sir, I am not saying that. I remember Mr.
9 McKnight withdrawing from the case in 2005 because we
10 developed a conflict. I was not the lead attorney on the
11 case. In fact, I think that I only signed once for Mr.
12 McKnight. I remember that he filed a Motion to Withdraw.
13 And my memory is, and I can't tell when you it occurred,
14 that around 2005, Judge Jackson Spencer approved our
15 withdrawal. That is my memory.
16 Q. Okay. I will address that in my case ln chief.
17 But this is an order that Judge Spencer issued on March
18 19th addressing the status of your withdrawal; lS that
19 correct?
20 A. Yes, she - - we withdrew ln 2005 and that no
: u rthe r action was therefore necessary.
MR. MARTIN: Okay. Your Honor --
THE COURT: That goes up here if you don't
MR . MARTI N: Oh, I'm sorry.
CINDY DEE S , COURT REPORTER
288TH DIST RICT COURT
57
1 THE COURT: Thank you.
2 MR. MARTIN: Defendant's Exhibit 7 is a
3 Perfected Notice of Lis Pendens concerning purchase money
4 lien claims. This is dated June 2nd, 2014. And i t was
5 filed in cause number 2014-CI-07644. I am offering this
6 into evidence.
7 MR. DEADMAN: It forms part of the file,
8 Judge. I'm not sure that i t ' s evidence. You can take
9 judicial notice.
10 THE COURT: I am taking judicial notice
11 and I will admit it.
12 Q. (MR. MARTIN CONTINUING) Mr. Bravenec, can yo u
13 read the first sentence on page 2 , please? That's page
14 1.
15 A. No, I was just making sure that I knew what I
16 was reading. The lien claim lS based on Martin's
17 capacit y as a purchase money provider for the benefit of
18 Moroco, Marrocco is misspelled -- Ventures LLC in 2003.
19 Q. Okay. Moroco Ventures is not misspelled, it's
20 spell ed with one C. But which the sentence that you just
2~ read in dicates that the claim that was being made ln the
22 o:cobat e co urt was a claim that the administrator, me, had
23 2:-1 ::_ nr_ere st in the property. The claim was not that the
24 est-at-e had an i n terest in the property. The claim being
25 made wa s that the administrator had an interest in the
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
58
1 third-party purchase money lien. Is that comprehendible
2 to you lvJr. Bravenec?
3 A. No.
4 Q. Thank you.
5 A. The only thing that I do not understand what
6 you're saying.
7 Q. Okay. You testified earlier that the order
8 stated that the Bexar County Probate Court Number 1 found
9 that the estate had no interest in -- in the subject
10 matter property; lS that correct?
11 A. Sounds right.
12 Q. The Court found that the Estate of King had no
13 interest in the property. The sentence that you just
14 read though, is it your understanding from what you just
15 read, that the purchase money lien claim was being made
16 by me, as the administrator of the estate, is that
17 comprehendible to you Mr. Bravenec?
18 A. Mr. Martin, I'm not trying to quibble with you.
19 I have never seen that motion. I don't understand what
20 you r a rgu ing nor can I agree to it because we had just
/1 one and I di dn't try to understand it.
22 MR . MARTIN: Okay. Very good . No further
2L cc:';-'E COURT : Re d ir ect, if any?
25 \t ::<. . :::; :::;_", D .AN : Non e, Your Honor.
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
59
1 THE COURT: Thank you . Ycu can s t ep down ,
2 slr.
3 (WITNESS EXCUSED.)
4 MR . DEADMAN: We rest, Your Honor .
5 THE COURT: All right , sir . Let 's take a
6 short break .
7 (RECESS.)
8 THE COURT: All right. Back on the
9 record . Mr . Marti n, now whatever testimony, if any, that
10 you would like to put on or what ever witnesses that you
11 would like to call , if you will please do so .
12 MR. MARTI N : Yes , Your Honor, I would like
13 t o call Mr . Bravenec.
14 TH E COURT: Okay . Eddi e , you ' re under
15 oat h.
16 THE WITNESS : Yes , sir.
17 THE COUR T : Sir , I would like to cau tion
18 you , I told you on and off the record , based on your time
19 a nnouncements , you only but have a few minutes for your
20 ca se , o kay .
21 MR . MARTIN: Could you tell me how long?
22 THE COURT: Well , he used 15 minut es. If
23 'ou ea ch have an hour, you have used your hour by now. I
24 don ' c know if h e 's going to have any rebuttal tes t imony .
25 So , you know , 15 o r 20 minutes would be generous.
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
60
1 MR MARTIN: Okay. I will keep i t short
2 with Mr. Bravenec.
3 RECROSS EXAMINATION
4 BY MR. MARTIN:
5 Q. On page 6 of the transcript on the hearing o f
6 May 23, before Judge Dick Alcala, were you present at
7 that time, Mr. Bravenec?
8 A. I was.
9 THE COURT: That was May 6h
10 Q. May 23rd. And at that time, you described, is
11 i t true, that you described the purpose of your lawsuit?
12 A. Sir, I don't remember that. I'm sure I did.
13 Q. Okay. On page 6 of the transcript, I can -- I
14 should offer this into evidence here. This is - - could
15 you take judicial of this, Your Honor?
16 MR. DEADMAN: Judge, you can. It's under
17 tab C in my binder and transcript is in there.
18 MR. MARTIN: Okay. So you don't object to
19 t ak i n g judicial notice.
20 THE COURT: You might let him look over
2 =- .h. l' s s ho u lder. He doesn't have i t ln front of him. You
22 ca~ stand ne xt to him if you want to.
23 Q. ( MR . MA RTIN CONTINUING) On page 6, the Court
24 ackn o1t-:2.edges wh at you and Mr. Deadman had described as
25 t.he J:)Urpose of you r reque st. Could you read that into
CINDY DEES , COURT RE PORTER
288TH DISTRICT COURT
61
1 the record, please?
2 A. Do you want me to stop at the Court?
3 Q. Just right here.
4 A. So Judge Alcala says, okay. And your request
5 for the injunction in to prevent him from filing the Lis
6 Pendens
7 Q. Thank you. So you referred specifically to the
8 Lis Pendens notice; is that correct?
9 A. Sure. I think that 's what Mr. Deadman said.
10 Q. And there was -- did you distinguish between
11 the Lis Pendens notice and the existence of a third - party
12 purchase money lien at that time?
13 A. I ' m sure we didn't, because as I said, I don't
14 know exactly what yo~'re talking about.
15 Q. Okay . Mr. Bravenec, did your father attend the
16 University of Texas Law School?
17 A. He did. I am wearing his ring, 1960.
18 MR. DEADMAN: Judge, I am going to object
19 to relevance as to what his father did in 1960.
20 A. My father has never done anything --
THE COURT: Where are you going with this?
22 :c.e see . I did n't get a ring.
23 ~ ·) e 11 , my dad ' s never wore i t and my dad is
so Lruthfully --
25 ( `` - ``R~ = N CONTINU ING) Was your dad a
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
62
1 classmate of Judge Harry Lee Hudspeth at the University
2 of Texas Law School at the University of Texas?
3 A. You know , I don ' t know . My gue s s is yes , but I
4 truthfully don ' t know.
5 Q. Okay . S o your guess lS yes. And Judge
6 Hudspeth was the one that rendered the orders in your
7 favor?
8 MR . DEADMAN : Judge, I will object to the
9 line of question in g . It's irrelevant , particularly if
10 it ' s going to impu n e Judge Hudspeth .
11 MR. MARTIN: The relevance , Your Honor , is
12 the relationship between Judge Hudspeth and Professor
13 Bravenec , Eddie ' s f ather , i s part of the s ubject matter
14 of the appeal that is pending before the US Firth Circuit
15 Court of App eals . And if that ap p eal is g ranted , it
16 would alter the posture of their reliance on the sanction
17 orders tha t Judge Hudspeth
18 THE COURT : It has nothing to do wi th what
19 my decision is today. So sustained .
20 MR . MARTIN : No fu rt her qu e stions .
THE COURT: I didn ' t even realize that
22 ;our fath er was a lawyer. He ' s a professor where?
2 -~ - Well , he ' s a former professor a t A & M. My dad
24 o~ac``ced law for about five years and supposedly taught
25 peo _ le .
CINDY DEES , COURT REPORTER
288TH DISTRICT COU RT
63
1 THE COURT: I don ' t want to open any
2 doors. I just didn ' t know that nor do I have a rlng .
3 MR. DEADMAN: No redirect, Judge.
4 MR . MARTIN: One other document. This is
5 an Amended Order reopening bankruptcy case 05 - 80116 by
6 the bankruptcy Judge , US bankruptcy Lief M. Clark . It's
7 dated August 10, 2012. I would like to admit thi s.
8 MR. DEADM AN : I have got no object ion
9 to --
10 MR . MARTIN: This is Defendant ' s exhibit
11 number 8 .
12 THE COURT: Be admitted.
13 MR . DEADM AN: Provided that there is a
14 stipulation , Judge , that that case is now closed , I have
15 no objection. So if the stipulation that the bankruptcy
16 case is closed , I have no objectio n.
17 THE COURT: Okay . With the understanding
18 that that case is clos ed.
19 MR . MARTIN: Yes , Your Honor . I would
20 call the Court ' s attention to language on page number 2
2~ of the order that refers to me as a purchase money
22 c re d it o r , finding of the court that I was a purchase
2 ':.o:Iey cred itor .
24 THE COURT: All right . Go ahead , slr.
25 MR . MARTIN : Your Honor, I am prepared to
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
64
1 make my arguments.
2 THE COURT: Okay. Well, let's finish with
3 the evidence. Do you have any other testimony or
4 evidence that you wish to put on for the Court?
5 MR. MARTIN: Yes, as a matter of fact,
6 Your Honor. This is a copy of a Precept to Serve Olga
7 Vasquez Sanchez.
8 THE COURT: Let's do this, why don't you
9 have her mark everything that you want to admit and then
10 identify them by number after they have been marked. Do
11 you mind? It helps me.
12 All right. Sir, when ever you're ready.
13 MR. MARTIN: Your Honor, I have one, two,
14 t hr ee , f our , f i ve , s i x ,, s even , e i ght -- De f e n d a n t ' s
15 exhibit number 9 is a Precept to Serve Olga Vasquez
16 Sanchez, doing business as One for Autism Incorporated.
17 THE COURT: Are you offering it?
18 Objections?
19 MR. DEADMAN: Judge, I'm not sure of the
20 r elevance to the case. It's a citation that shows that
2 :!_ sh e was served.
THE COURT: Do you have any objections to
. -
-
~
/
MR. DEADMAN: Part of the court's file.
25 _ . . . 's e \- idence . It has nothing to do with the
CINDY DEES , COURT RE PORTER
288TH DISTRICT COURT
65
1 i njunction hearing.
2 MR. MARTIN: Well, I disagree. It goes to
3 proximate causation.
4 THE COURT: Do you have any objections to
5 it?
6 MR. DEADMAN: Relevance, Judge .
7 THE COURT: Go a head, sir.
8 MR. MAR T IN: It's relevant on the second
9 and third element of the tort i ous interference claim.
10 THE COURT: This is jus t as to the
11 i n junction hearing today.
12 MR. MARTIN: Well, in that case --
13 THE COURT: What's the relevance to
14 whether or not I should grant an injunct i on to keep you
15 from filing anything to cloud the title?
16 MR. MARTIN: According to state records,
17 Olga Vasquez Sanchez is the registered agent for One for
18 Autism, the entity, that they identified as the supposed
19 L is Pendens purchaser. This document establishes that
20 she 's being interpleaded as a interested third - party.
2::_ So , she is under the court's jurisdiction now and
22 ~ o ~s~r u ctiv e notice has no bearing on her actual notice
23 o: ``e cl aims now that she i s a party.
So it goes to the -- i t goes to the first
25 ele ment:_ o =: ::_ n e of the t est for the injunction as to
CINDY DEES , COURT REPORTE R
288TH DISTRICT COURT
66
1 whether there is a cause of action. The cause of action
2 is moot because the buyer is already on actual notice ,
3 the alleged buyer is on ac tu al notice. And it goes to
4 pro b abi l i t y because the information that she received
5 fro m me simply ena bl es her to do what she al ready has a
6 rig ht to do is to determine whether she wants to proc ee d
7 with the sale or not based on perc ep tion of the risks.
8 That's the re levan ce of the document.
9 THE COURT: I agree with h i m but I ' m go ing
10 to adm it it an y way.
11 MR . MARTIN : Okay . Thank you , Your Ho n o r .
12 Thi s is a notice --
13 TH E COU RT : What is, this is Defendant ' S
14 10?
15 MR . MART IN: Yes , Your Honor. Th is shows
16 t he s e are postal service records showing when she
17 received th e Prece p t .
18 MR. DEADM AN : No object , Judge.
19 THE COURT: Be admitted .
20 MR . MARTIN: I have a excerpt from an
2 :_ e - mail me ssage
22 T HE COURT: What number lS it?
23 MR . MARTIN : This is Defendant ' s e x hibit
24 numbe:::- ~e:erring to One for Autism showing that
25 entit y
CINDY DEE S , COURT RE PORTER
288TH DIS TRIC COURT
67
1 MR . DEADMAN : No objecti on , Judge.
2 TH E COURT: Admitted.
3 MR . MARTIN: I hav e two orders --
4 THE COURT: Number?
5 MR . MARTIN: 12 and 13 , b y the Honorable
6 John D. Gabriel. One is dated May 13 , 2014 . It ' s an
7 Or de r Granting Ta x Au thorities to Dismiss in cau se number
8 2 0 10 - CI - 19099 . And in that same cause number , a
9 resetting order on a Motion for Rehearing dated July 3 ,
10 2014 0
11 Rel e vance , Your Honor , is that tho s e are
12 su i t ln suits litig a tion that are still pending , t hat
13 we r e i mplicated wi t h the probate case while McKnight and
14 Bravenec were attorneys for me and for the estate .
15 THE COURT : They were attorneys of record
16 for you in 201 4?
17 MR . MARTIN: No , they weren ' t .
18 T HE COURT : L et me s ee them . They a re
19 adm itted. Let me s e e them .
20 MR . MARTIN: The relevanc e to this cas e
``is is l itigat ion that was ancillary t o the probate
=t invo lve d the estate property . And the
th is was --
- - COURT : They are admi tted . Go ahead .
25 Okay . Here is -- Defendan t ' s
CI_ DY D `` S , COu~I RSPO _ TER
2 88TH DI r:='R =C:::' co -- ~ -='
,
68
1 exhib i t 14, lS a Subpoena Deuces Tecum which was quashed
2 in the hearing on July 1st. It was issued to Adam
3 Benavides. It states that he was asked to bring the last
4 filed notice for 1216 West Avenue from the Bexar County
5 deed records.
6 MR. DEADMAN: No objection, Judge, with
7 stipulations that i t was quashed.
8 MR. MARTIN: It was quashed.
9 THE COURT: Admitted.
10 MR. MARTIN: Here is the document that he
11 brought to court and handed to me personally after the
12 subpoena was quashed.
13 THE COURT: And is that Defendant's 15?
14 MR. MARTIN: Yes, Your Honor.
15 THE COURT: What is it? Just identify it,
16 don't tell me what's in it. Just identify i t.
17 MR. MARTIN: Notice of Apparent Liability
18 for Purchase Money Claims, dated March 25th.
19 THE COURT: Of what year?
20 MR. MARTIN: 2014.
2 =_ THE COURT: All right. Fifteen, sir.
22 ~·;a :'_ -c a mi n u t e , he h a s n ' t s e en i t . Let me see if he's
23 goi:~g o obj ect to 15.
24 MR . DEADMAN: No objection.
25 THE COURT : No objection. Admitted.
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
69
1 MR. MARTIN: And Defendant's exhibit 16 is
2 Plaintiff's First Request for Admissions from Eddie
3 Bravenec. And it was transmitted via fax on June 6,
4 2014.
5 THE COURT: What is it identified as?
6 MR. MARTIN: Defendant's First Request for
7 Admissions.
8 THE COURT: Request for Admissions.
9 MR. DEADMAN: No objection, Judge.
10 THE COURT: Be admitted.
11 MR. MARTIN: I would like to refer to this
12 before I -- I turn it over. The first requested
13 admission was Plaintiff and i t ' s referring to
14 third - party -- I'm sorry. The document is actually
15 entitled Plaintiff's First Request for Admissions but
16 i t ' s referring to me as the Third-Par t y Plaint i ff on my
17 counter claims against Mr. Bravenec.
18 So, in the first request for admission,
19 that states, the requested admission is that the
20 Pla int iff, referring to me, Rowland Martin, is the owner
21 of a p u r chase money security interest in the property
22 k~own as 1 216 West Avenue through his personal estate, as
23 ~o re speci fic a lly set forth in the Perfected Notice of
24 Lis Pendens c o nce rning the purchase money lien claims,
25 and defective t i t le issues affecting the property known
CI NDY DE ES, COURT REPO RTE R
28 8T H DIS TRIC T COURT
70
1 as 1216 West Avenue in San Antonio, Texas.
2 Your Honor, that concludes my presentation
3 of evidence. I will give my c l osing argument when you're
4 ready for me.
5 THE COURT: Well, you have to t el l me if
6 you rest or not.
7 MR. MARTIN: I rest.
8 THE COURT: Do yo u have any rebuttal
9 evidence or do you close?
10 MR. DEADMAN: Close .
11 THE COURT: So do you close, sir?
12 MR. MARTIN: No, I would like offer
13 THE COURT: No, subject to argument, do
14 you close the evidence?
15 MR . MARTIN: Yes, Your Honor.
16 THE COURT: All right --
17 MR. MARTIN: Oh, no. I ' m sorry. There lS
18 a -- I would like to ask for a judicial no t ice that there
19 is a consolida t ed Notice of Appeal that was filed
20 y esterd ay in the Court of Appeals in the Fourth District
21 Cou rt o f Appeals.
22 MR. DEADMAN: I don't know i f it was or
23 "tl a s n ' t. .
24 THE COUR T: Well, it appears to be file
25 s tamped . Do you want me t o have Eddie check it?
CI NDY DEES , COURT REPORTER
288TH DISTRICT COURT
71
1 MR. DEADMAN: There 1s something f i led
2 with th is Court . I don ' t know what was filed in the
3 Court of Appeals. This is filed in the District Court.
4 MR. MARTIN: It was filed in both. There
5 is two stamps. One is from the Fourth District and one
6 is fr om 285.
7 THE COURT: I will have my clerk determine
8 that. Anythi ng e lse, sir, before you close?
9 t~R . MARTIN: I was asking for judicial
10 notice of the documents if I could retain that to refer
11 to i n my closing argument.
12 THE COURT: Eddie , come here, please.
13 Let ' s go off the record for a minute .
14 (OFF THE RECORD.)
15 THE COURT : Back on the record. Anything
16 els e yo u wi sh for th e record, sir , subject to Edd i e
17 checking o n that?
18 MR . MARTIN: No, Your Honor .
_g THE COURT: My clerk informs me th at it
=c h as b een filed with the Fourth Court .
MR. DEADMAN: No o bj ection , Judge.
THE COURT: The Court will take judicial
· ~= `` =2 of t he consolidated Notice of Appeal filed Ju ly 8 ,
24 2:`` ~ ~ ~a~ent ly with the District Clerk and the Four t h
25 Co:.: `` .
CIN DY DEES , COURT REPORTER
288TH DISTRICT COURT
72
1 All right, slr, anything, sir, before you
2 close? By close, I mean close the evidence.
3 MR. MARTIN: No, Your Honor.
4 THE COURT: All right.
5 MR. MARTIN: Sorry. I think that we
6 established earlier that t h e Original Petition in Martin
7 versus Green which is the case which Mr. Bravenec was
8 referring to earlier is already in the record and that
9 the 7th claim for relief referring to trespass to try
10 title is already in the record. So I have no further
11 evidence to introduce.
12 THE COURT: So do you close for the
13 record?
14 MR. MARTIN: Yes.
15 THE COURT: All right. Thank you. Cindy,
16 I am going to recess the Court Reporter for purposes of
17 argument. I will call you back out for purposes of the
18 r u ling.
19 (OFF THE RECORD.)
20 (BACK ON THE RECORD.)
21 THE COURT: All right. The Court having
22 heard all of t he evidence and argument, on a t wo hour
23 ann ouncemen t that has gone two hours and 15 minutes, I
24 don ' t want to hea r a n y t h ing more from either side. I
25 b el i e ve the Plaintiff i s entitled to injunctive relief.
ClNDY DEES , COURT REPORTER
288TH DI STR I CT COU RT
7
73
1 I am gran tin g a Temporary Injunction . It is re ndered
2 today, sir.
3 Mr. Martin, you are enjoined, as plead
4 for , that is a broad Temp orary Injunction . Yo u are not
5 on ly not to f ile Lis Pendens anywhere , you are not to put
6 any prospe ctive purchasers on any kind of notice that you
7 have any claim in this property direct ly or indirectly,
8 either through agents, employees, servant s , at torneys,
9 etcetera.
10 The bond i s $500 . I expect you guys to
11 come up with a trial date before you leave her e today. I
12 expect you to come up with so me sort of language to be in
13 a written Temporary Injunction, but an oral injunction is
14 appropria te , sir , and to hold some body in contempt . I 'm
15 not thre atening yo u, I am just telling you , you are now
16 under direct cou rt order.
17 I would like to have thi s injunction
18 bro ught back to me. I d on ' t know Mr. . Deadman what your
19 schedule is, I would lik e to have i t in the morning. I
20 will b e gone the rest of the afternoon for a doctor ' s
2~ aooointme nt .
22 MR . DEADMAN: I can be her e in the
23 mo :c :ni .g , Judge .
24 TH E COURT: If you can meet me tomorrow
25 mo r ning before cou r t s t a r ts . Si r, you can come if you
CINDY DEES , COU RT REPORTER
288TH DI ST RI CT COU RT
74
1 want or you can tell Mr. Deadman your objections to the
2 form of the order. I know that you don't agree to any of
3 the substance but the form. I would like a court date so
4 y'all can tell me -- i t ' s got to have a court date in it,
5 a trial date for a permanent injunction and trial on the
6 merits of your other issues.
7 I'm going to tender it back to you because
8 I do not have time it now being two minutes to 12.
9 MR. DEADMAN: Thank you, Judge. May be we
10 be excused?
11 MR. MARTIN: One point of clarification.
12 You have authorized a broad injunction, I understand
13 that.
14 THE COURT: Temporary Injunction.
15 MR. MARTIN: A broad Temporary Injunction.
16 THE COURT: Oh, and the Defendant's Plea
17 to the Jurisdiction and the Motion to Dismiss are denied.
18 MR. MARTIN: And Your Honor, what is the
19 Cou rt's view of the joinder of Olga Vasquez Sanchez?
20 Do es -- does the Temporary Restraining -- does the
21 ~ empo rary Injunction yield to her status as a pleaded
22 oa :::: ::v o r does her does contacts with her as a p l eaded
23 par::y co~ e within the scope of the Injunctio n ?
24 T HE COURT: Mr. Deadman, what is your
25 posi t i on a bout him contact ing this person, who is now a
CINDY DEES , COURT REP ORTER
288TH DISTRICT COURT
75
1 party to the la wsuit.
2 MR. DEADMAN: I have no objection , Judg e.
3 She is a party to the lawsuit, provided i t has to do with
4 litigation not anymore of I have this interest and let me
5 tell you about a claim. He can go forward.
6 MR. MA RT IN: Well, the claim is being
7 litigated but she is a party to the litigation now .
8 THE COURT: You can talk to her or any
9 other party to the litigation who -- unless they are
10 represented by an attorney, in which case , you have to
11 ta lk to their attorney.
12 MR. MARTIN : Yes , sir .
13 MR . DEADMAN: And Judge , so we are clear ,
14 I don ' t want him just g e tting a prospective purchaser
15 joining them i n litigation and saying I ' m not in
16 violatio n of the injunction.
17 MR . MARTIN : Well , maybe we should confer
18 and then address this.
19 MR . DEADMAN : No , I need that addressed.
20 Bec a us e that 's exactly what he will leave this courthouse
21 and do .
22 MR . MARTIN : I didn ' t understand what he
23 says .
24 T HE COURT: He doesn ' t want you to go make
25 s om e o e who 1s a prospective purchaser a party to this
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
76
1 lawsuit. So I think that in considering the li t igious
2 nature of this gentlemen, he needs to seek court
3 permission before he makes any one a party to this
4 lawsuit and that needs to be in the Injunctive Order.
5 MR. DEADMAN: Thank you, Your Honor.
6 THE COURT: All right. You're excused.
7 (END OF PROCEEDINGS.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
77
.,
1
2
3 THE STATE OF TEXAS *
4 COUNTY OF BEXAR *
5
6
7
8 I, CINDY DEES, Official Cou r t Reporter in and for
288th District Court , Bexar County, Texas, do hereby
9 certify that the above and foregoing contains a true and
correct transcription of all portions of evidence and
10 oth er proceedings requested in writing by counsel for the
parties to be included in this volume of the Reporter ' s
11 Record , in the above -s tyled and numbered cause , all of
which occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
the pr oceedings truly and correctly reflects the
14 ex h i bit s , i f any , a dm i t t e d by t he r e spec t i v e p a r t i e s .
15 WITNESS MY OFFICIAL HAND this the 21st day of
November , A.D ., 2014 .
16
17
18
19 S/S CINDY DEES
CINDY DEES , Texas CSR No. 1083
20 Expiration Date: 12 - 31 - 2014
Official Court Reporter ,
21 288th District Court
Bexar County , Texas
22 100 Dolorosa
San Antonio, Texas 78205
23 210 - 335 - 2663
24
25
CI NDY DEES, COURT REPORTER
288TH DISTR I CT COURT
1
1 REPORTER 'S REPORTER ' S RECORD
2 VOLUME 3 OF 3 VOLUMES
FILED IN
3 TRIA L CAUSE NO. 2 O l 4 _ C I _ O 7 64thLI.COURT OF APPEALS
'SAN ANTONIO , TEXAS
12/4/2014 8:51:25 AM
4
KEITH E. HOTTLE
Clerk
5
6 EDWARD L. BRAVENEC, * IN THE DISTRICT COURT
AL
7
vs . * 285TH JUDICIAL DISTRICT
8
ROWLAND MARTIN, JR . * BEXAR COUNTY , TEXAS
9
10
11 *******************
12 REPORTER'S RECORD
13 *******************
14
15
16
17
18 On the 17th day of July , 2014 , the
19 followi ng proceedings came on to be heard in the
20 above - enti tled and numbered cause before the Honorable
21 Sol Casseb , III, Judge presiding , held in San Antonio ,
22 3 e:x: c.:::- Coun t y , Tex as:
23 Proce edings reported by computerized
24 ste r~ ~ ``e ~ ~ =~i~e ; Rep o rter ' s Record produced by
25 co mp u ~ e:::- - ~ss ~ s~ed ~ r a n s c ription .
:::=: ::::; ·:- !J:::::: s, COU _ T RE PORTER
``3 ~ ~ J = S ~rt= C~ COURT
2
1
2 A P P E A R A N C E S
3
4
5 GLENN J. DE ADMAN , SB #785559
509 S. Main
6 San Antonio , Texas 78204
210 - 472 - 3900
7 ATTORNEY FOR PLAINTIFF
8
ROWLAND MARTIN , JR .
9
Texas 78207
ATTORNEY FOR DEFENDANT
CINDY DEES , COURT REPORTER
288TH DISTRICT COURT
3
1 THE COURT: The Court will call for
2 hearing cause number 2014 - CI - 07644, styled Edward
3 Bravenec , et al versus Rowland Martin, Jr. I have set
4 before me today a Motion to Enter Order. I am only going
5 to give you each a few minutes because this really ought
6 to be taken a hearing on whose order comports with the
7 Court 1 s ruling. But since there is a record, I will ask
8 you to each introduce yourselves. Let me start with the
9 Movant.
10 MR. DEADMAN : Glenn Deadman for the
11 Plaintiff and Movant.
12 THE COURT: And Glenn, you filed a Motion
13 to Enter an order and you submitted a proposed order, am
14 I correct?
15 MR. DEADMAN: There is a Motion to Enter
16 Order. The Court entered three rulings from the bench at
17 the last hearing. One was on a Temporary Injunction.
18 The other was on a Motion to Dismiss filed by Mr. Martin
19 and on an Order on the Plea of Jurisdiction filed by Mr .
20 Martin.
21 My understanding lS that the Court denied
22 Mr. Martin 1 s Motion to Dismiss, and I prepared an order
23 in that format. Denied the Plea on the Jurisdiction, and
24 I prepared an order in that format. And granted the
25 Temporary Injunction, and I prepared an order in the f o rm
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
4
1 that I believe that the Court entered the Temporary
2 Injunction .
3 THE COURT: You submitted all those to Mr .
4 Martin for his review as to form?
5 MR DEADMAN : I have.
6 THE COURT: Your name , please, for the
7 record?
8 MR. MARTIN: Rowland Martin , doing the
9 special appearance as Defendant. Judge, there was -- if
10 you ' re ready to entertain my presentation.
11 THE COURT : Sure . Go ahead .
12 MR . MARTIN: There was an intervening
13 dev el opment that alter the posture of the case i n
14 relation to the Court of Appeals following the hearing on
15 July 9th . Supplemental Motion of Appeal was filed from
16 the denial of the Motion to Dismiss that was presented
17 under the Texas Ci t izens Participation Act. The act
18 provides for an automatic stay of all trial proce e dings
19 after a Notice of Appeal is taken from the denial of the
20 Motion to Dismiss.
21 Subsequent to that time , I filed an
22 Em e rgency Motion for Stay in Part and Remand in Part with
23 the Court of Appeals to obtain instructions to proceed to
24 enter the orders on the denial of the Motion to Dismiss
25 and the Plea to the Jurisdiction.
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
5
1 I am unce rtain as to the C~urt 's plena ry
2 jurisdiction to proceed with the Temporary Injunction.
3 The order, the Te mporary Injunctio n -- the filing of the
4 supplemental notic e of appeal arguably suspended plenary
5 jurisdiction for proceedings and other parts of the trial
6 proceedings, spec ifica lly the Temporary Injunction
7 proceeding.
8 And so, my position is that the entry of
9 the Temporary I nju ncti on Order shou ld be held in abey ance
10 until further inst ruc tions from the Court of Appea ls. I
11 don ' t think that the Plaintiff's will be prejud iced by
12 that. They have conce rns about jurisdiction or any other
13 matters , they can presen t those matters to t h e Court of
14 Appeals , which from my interpretation , as the Court of
15 competent j urisdiction at this point .
16 I wo ul d also say , Your Honor , with resp ect
17 to the meri ts of the Temporary Injunction , where the
18 emergency motion that I filed contains a presentation of
19 my constituti onal standi ng to assert third party purchase
20 mone y lie n cla ims. There is a det ailed t r eatment of the
21 law of third - party pur chase money liens.
22 In view of that , the scop e of the
23 Temporary Injunction is somew h at probl ematic . It alters
24 the terms of the injun ctive reli ef that was in effect
25 prior to the hear ing on July 9th , considerably because of
CINDY DEES, COURT REPORTER
288TH DISTRICT COU RT
6
1 the clause that refers to the broad scope that the
2 injunction is intended to have .
3 The govern ing law on th at point , where you
4 have a protected interest, such as speech, that any
5 injunctive rel i ef or other judicial provision should be
6 narrowly tai l ored with narrow specificity to f urther
7 the -- what the judicial interest admi nistratio n of
8 jus t ice.
9 So those are my concerns about the merits
10 of the Temporary Inju nction order , but your primary
11 jurisdictional in that until I receive further notice, my
12 understanding is that the Court of Appeals has
13 THE COURT: All right. Before we talk
14 about the merits of the order , can you tell me where
15 filing something ln the Court of Appeals causes an
16 automatic stay of proceedings in the trial court? You
17 cite Texas Civil P r act ice and Remedies Code , Chapter 27 .
18 Where do I look in that ?
19 MR . MARTIN: I woul d say 27.001 , et sec.
20 TH E COURT: Can yo u tell me where the et
21 sec I am supposed to look at , please , sir?
22 MR. MARTIN: Your Honor, I can find it for
23 you .
24 THE COURT: Off the record.
25 (O FF THE RECORD.)
CINDY DEE S , COURT RE PORTER
288TH DISTRICT COU RT
7
1 THE COURT: Let 's go back on the record.
2 MR. MARTIN: Okay , Your Honor. I think
3 that there lS actually two provision that pertain to
4 this. The provision that governs the Texas Citizens
5 Participation Act , in appeals under that act , it ' s 27.008
6 a and b. That provides for an expedited appeal . And
7 there are correlative provisions for the interlocutory
8 appeal under 51. 014b .
9 THE COURT: So we are all sharing the same
10 book, Rowland , why don ' t you let Glenn look at that when
11 you ' re done.
12 MR. MARTIN: Sure. Yes, Your Honor.
13 Okay.
14 MR. DEADMAN: May I respond briefly?
15 THE COURT: Whenever you ' re ready .
16 MR . DEADMAN: Civil Practices and Remedies
17 Code 27.008 is the appeal s section . There is no
18 automatic stay in that section. It does provide for an
19 expedited appeal after the order is entered. The hearing
20 we are here on today is to enter the order . 51.001, and
21 I assume what he really means lS 51.014 is the --
22 THE COUR T : I think that he said 001 but
23 you meant 004?
24 MR. DEADMAN: No , i t ' s 51.014 .
25 THE COURT: Oh , 014.
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
...
8
1 MR. DEADMAN: Yes. Is an appeal from an
2 interlocu t ory order. That section applies to appeals for
3 interlocutory orders that appoints receivers or trustees,
4 a motion to vacate the r eceiver or trus t ee, certification
5 of class actions, t he granting of a Temporary I njunction
6 a f ter t h e order is entered. Denies Motion for Summary
7 Judgment that is based on assertion of immunity or a
8 Motion for Summary Judgment concerning d e fenses for
9 electronic or print media, some other things that don't
10 apply t o t his. There is noth i ng in here that has an
11 automatic stay. And as of about a quarter to 8 t his
12 morning when I checked the Court of Appeals had not
13 issued any orders though I do acknowledge Mr. Martin
14 filed a r e quest for one.
15 THE COURT: Al l right.
16 MR. DEADMAN: May I approach the bench?
17 THE COURT: You guys, mind if I have just
18 a second to catch up with you since we are sharing the
19 book? Where was the point about a stay? Was that
20 27.008, is that the one that where you quoted? I am
21 asking Glenn where was it?
22 MR. DEADMAN: There lS no provision
23 conce r nln g a s t ay .
24 THE COURT: You sa i d a fte r an order was
S e~L.e~ed , the Cour t could issue a stay - -
CIN DY DE ES , COURT REPOR TER
288 TH DI STRICT COUR T
9
1 MR. DEADMAN: Entertain th2 appeal , that's
2 27.008.
3 MR. DEADMAN: And 51.001 would only apply
4 after the orders are entered.
5 THE COURT: 51.001.
6 MR . DEADMAN: Sorry, 51.014 .
7 THE COURT: Okay. Give me just a second.
8 MR. MARTIN: Your Honor, I also said
9 27.001, subsection 7.
10 THE COURT: Can you give me just one
11 second . Let me just read what he cited . What was the
12 one you cited?
13 MR. MARTIN: 27.001 , subsection 7. And
14 a 1 so , Your Honor , the commentaries --
15 THE COURT: You ' ve got to give me a chance
16 to read it. Just a second. You don ' t have to , but I
17 would appreciate if you would. Okay . Rowland , go a
18 head, sir .
19 MR . MARTIN: I was saylng that I also have
20 commentaries , a commentary that addresses that point
21 specifically . It ' s in my flash drive , if I could use the
22 court's computer , I can pull it up and refer to that as
23 well.
24 THE COURT: I don't know that a commentary
25 is going to do me any good. I think Glenn is correct
CINDY DEES, COURT REPORTER
288TH DISTRICT COURT
10
1 unless the Court -- unless the Court of Appeals issues a
2 stay order , you're not entitled to stay relief unless and
3 until an order has b een entered ln the trial, the way
4 that I read this. So I think that we need to move
5 forward in getting the order entered.
6 So the question is the terms of the order
7 tha t Glen has presented , are they appropriate?
8 MR . MARTIN: In regard to that --
9 THE COURT: I think that you have already
10 spoken to the issues , have you not?
11 MR. MARTIN: Yes , I did. Constitutional
12 concerns about the scope of the --
13 TH E COURT: Okay. All right . Th e order
14 on the Motion to Dismiss simply says that i t ' s denied.
15 I ' m going to tender it to Glenn simply for the purpose of
16 him providing the original to the clerk and copies to
17 you. Can I tender that to you, Glenn , as an officer of
18 th e court? (Indica t ing . )
19 MR. DEADMAN: Yes , slr. Thank you.
20 THE COURT : Plea to the Jurisdiction is
21 denied. That ' s what I ruled . Okay. Can I tender you
22 that one? (Indicating.)
23 MR. DEADMAN: Yes, sir.
24 THE COURT: Now, if you gentlemen would
25 give me just a minute to read the Temporary Injunction
CINDY DEES, COURT REPO RTER
288TH DISTRICT COURT
11
1 Order or proposed order. Okay. Rowland , I'm sorry , I ' ve
2 read it now. Go ahead.
3 MR. MARTIN : Your Honor, as I said, the
4 motion to the Co urt of Appeals addresses the issues of
5 speech an d i t als o prevents a showing of Con sti tuti onal
6 standing based on the common law of liens that arise by
7 op er a ti on of law , that ar is e by equity , and aris e by
8 statute. Be cause there is a prim a facia sh owing of
9 protective first amended interests , the orders that
10 fu rth er the intere s t in orderly administration of j us tice
11 still must be nar r owly tailored to accomp li sh that
12 interest .
13 T here is a clause ln the prop ose d text ,
14 apart from the findings , not addressing my co n troversy
15 with the find ings , but in t he th ird para gr aph --
16 THE COURT : Are you on page two?
17 MR . MARTIN: Yes , Your Honor . S lig htly
18 above the midd le of the page. Th er e is -- it ' s st ates ,
19 it is further the order of this Court that Rowland
20 Martin , Jr. , any ent ities at his requ es t or under his
21 control , agents , employees , and all those acting in
22 concert with him are hereby enjoined from contacting any
23 t i t l e co mpany , any potential buyer , bank or oth erw ise --
24 a .. d -chis is t he key phrase - - or otherwise interfering
25 wi-ch the potential sale of t h e property in any mann er
CI NDY DEES, COURT RE PORTER
288TH DISTRICT CO URT
12
1 whatsoever . That phr ase being , glven its broadest terms
2 and mean i ng , so there is concern about that .
3 And there is als o a concern about th e
4 following clause that states , it is further ordered th at
5 Rowland Martin is prohibited fr om joining any third
6 parties or ad di tio nal Defenda n ts in thi s suit without
7 prior approval of this court.
8 Ref er ring to the first clause , the clause
9 that sta te s this phrase may be given it broadest terms,
10 and I do acknowl edge that Mr . Deadman prepared th a t
11 clause wit h t he Co ur t ' s i nstruction from the last
12 hea ri ng . However , it tends to be vague in context of the
13 transactional context that we are dealing with . An d
14 could be interpr et ed , could be -- the Plaintiff ' s could
15 attempt to enforce it in an overly broad manner . Of
16 cou r se, if it was alleged tha t there was a v i olation of
17 the order , that cou l d be grounds for pursuing criminal
18 contempt proceedings and so forth.
19 And I would say , Your Honor , that the
20 Plaintiffs have a lready done that. That was the s ubject
21 matter of the appeal th at was taken prior to the he ari ng
22 on Jul y 9th . The Plaintiff's had a l leged that there was
23 a v i olat ion of the first Temporary Restraining Order .
24 That Order referre d specifically to me being enjoined
25 from filing any Lis Pendens notices in the Bexxar County
CINDY DEES, COURT REPORTER
288TH DISTRICT COU RT
13
1 deed records. The Plaintiff's allege in an Ex - Parte
2 Motion for Show Cause Order that there had been a fil ing
3 ln Bexar County.
4 TH E COURT: I read it all. Go a head.
5 MR. MARTIN: And so because of that
6 history, I think that this phrase , that this clau se which
7 enjoins me from interf ering with the potential sale of
8 the prop erty in any man ner whatsoever, tha t phrase being
9 given in it 's broadest terms and meaning, that could
10 be that could be used unfairly by the Plaintiff's
11 to to interfere wi th the rights that I woul d
12 ordinarily be ent itled to exercise as a matter of free
13 speech, as a matter of petition, address grievances. And
14 that's the part of the order that gives me concern about
15 the constitutionality.
16 THE COURT: Let me ask you this , Glenn,
17 why can ' t I take -- my intent was to draft the order as
18 broadly as possible. I did not intend the language,
19 quote that phrase bei ng given its broadest terms be
20 includ ed in the ord er. Why is it in there?
21 MR . DEADMAN : The only reason that's in
22 there, Judge , as you have seen from the lengthy histor y
23 in thi s case , any form of loop ho le Mr. Martin is goin g
24 to
25 THE COURT: I grant you that . I don't
CINDY DEES, COURT REP ORTER
288TH DISTRICT COU RT
14
1 know that you need that particular language in the order.
2 I don't want to make it so broad t hat it ' s subject to
3 constitutional cha ll enge either or challenged on app eal .
4 MR. DEADMAN: I will be guided by the
5 Court .
6 THE COURT: Eddie . What else do you
7 object to in terms of the language. I ' m noting all your
8 objections for t he re cord ln terms of the form of i t .
9 MR . MARTIN : The second clause that I
10 mentioned appears beneath the broad terms and meanlng
11 clause.
12 TH E COURT: About joining profit s without
13 approval of the Court, that was part of my order s.
14 MR. MARTIN: Yes , Your Honor . I pointed
15 out that the - - that --
16 THE COURT : Go ahead.
17 MR . MARTIN : That Olga Vasquez Silva (sic)
18 who was a register ed agent according to the Secre tary of
19 State records -- Olga Vasquez Silva , the registered agent
20 for One for Autism Inc orporated , who the Plaintiff ' s
21 represented as the -- as prospective purchaser , I don ' t
22 know because we haven't seen any ev idence of - -
23 THE COURT: The point, sir , not all
24 substantive issues , the point .
25 t!J R . MART I N : The point lS that Vasquez
CINDY DEES , COURT REPO RTER
288TH DISTRICT COU RT
15
1 Silva has already been joined as a pleaded third - party .
2 I want to be able to exercise the privileges that are
3 available under the Texas Rules of Civil Procedur e with
4 her without interference from the -- from the
5 Plaintiff ' s. Also there is another party, Bailey Street
6 Properties , that was implicated in the --
7 THE COURT: Sir, this talks about from
8 this day forward. If you wish to seek to join a n y
9 additiona l parties , you have to come ask the Cour t for
10 permission.
11 MR . MARTIN: So , it does not apply to the
12 par t ies who have already been enjoined?
13 THE COURT: I didn't say that. I s aid --
14 I am telling what you the language of this order , what my
15 intent was , that you ' re not from this day forward to join
16 any additi onal parties without approval of the court .
17 What you do in terms of existing parties is anoth e r
18 mat t er for another day. I ' m not g i ving you legal advice.
19 I ' m just telling you what my intent and he seems to have
20 incorporated my intent in t he o rder.
21 MR. MARTIN: I have one question , Your
22 Honor . Vasquez Silva was joined as a pleaded third - party
23 without designating her either as a Defendant or as a
24 Involuntary Plaintiff . I did that in anticipation that
25 she would make an appearance and would disclose some
CIN DY DEES, COURT REPORTER
288TH DISTRICT COURT
16
1 information with which to make that decision. But
2 apparently at the hearing before last , the Plaint iff' s
3 appeared and made representations on her behalf, so that
4 would indicate to me that I should designate her as a
5 Defendant. Could we stipulate that I am permitted to do
6 that at this time?
7 THE COURT: Sir , that ' s up to you and
8 Glenn. I don' t make stipu l ations for parties.
9 MR . MARTIN: I would move the Court to
10 allow me to do that since th at ' s what the order provid es .
11 MR. DEADMAN: Judge, the record of the
12 case is what it is today. I believe that I have
13 incorporated the Court's intent. From this day forward
14 he needs the court ' s permission to join any Defendant .
15 THE COURT: That's what my intent was and
16 that's what the order says . I have signed the order.
17 MR . MARTIN : I am requesting to have
18 Vasquez - -
19 MR. DEADMAN: We are not here on that
20 to day.
21 THE COURT: It's not before me today. Let
22 me ask you something, he ' s set a trial date for the 8th
23 of December. I have to have a trial date in this order.
24 You can , of c ours e, seek to change the date , but do you
25 have some overriding reason why th at date is not
CINDY DEES, COURT REPORTER
288TH DISTRICT COU RT
17
1 appropriate for you that you know of today?
2 MR. MARTIN: I think that there lS going
3 to be some lengthy discovery in this, Your Honor, but I
4 would not oppose the date at this time. My position is
5 that it ' s -- I oppose the Temporary Injunction on
6 jurisdictional and constitutional grounds and I will
7 pursue that with the Court of Appeals.
8 THE COURT: I understand that, but I have
9 to put a trial date. I put a trial date of Decem ber 8th.
10 And as you know from the oral pronou nce ment , I ' m going to
11 continue the bond at $500.
12 MR. MARTIN: Your Honor, excuse me . That
13 was the third point that I did have an objections to.
14 The amount of the bond of $500 , the statute, according to
15 my recollection , the statute requires a bond in an amount
16 that reflects the amount in controversy . The value, the
17 stipulated value for the lien that I have asserted is 135
18 thousand dollars excluding interest, so I think --
19 THE COURT: You are going to have to show
20 me where it says the amount in controversy. That is not
21 my understanding of what a bond is suppose to cover. I
22 think it ' s suppose to cover your costs, if you get to
23 where you think you r co s t s are substantially more than
24 S500 , ;ou ca:-1 ask a court to re consider the amount of the
25 OCC'. O .
CI NDY DEES , COURT REPORT ER
28 8TH DIST RICT COU RT
18
1 MR . MARTIN: I will pursue that.
2 THE COURT: Anything else today?
3 MR. DEADMAN: Nothing further, Your Honor.
4 THE COURT: Okay. I'm going the close the
5 record.
6 (END OF PROCEEDINGS.)
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CINDY DEES , COURT REPORTER
288TH DISTRICT COU RT
19
1 THE STATE OF TEXAS *
2 COUNTY OF BEXAR *
3
4
5
6 I , CINDY DEES , Of ficial Court Reporter in and for
288 th District Court, Bexar County , Texas, do hereby
7 certify that the above and foregoing contains a true and
correct tr an script i on of all portions of eviden ce and
8 other proceedings requested in writing by counsel for the
parties to be included in this volume of the Reporter's
9 Record, in the abo v e - styled and numbered c aus e, all of
which occurred in open court or in chambers and were
10 reported by me.
11 I further certify that this Reporter 's Record of
the proceedings tr ul y a nd correctly reflects th e
12 exhibits , if any , admitted by the respective parties.
13 I further certify that the tot a l cost for the
preparation of this Reporter 's Record is $600 . 00 .
14
15 WITNESS MY OFFICIAL HAND this the 21st day of
November , A . D ., 2014 .
16
17
18
19 S/S CINDY DEES
CINDY DEES, Texas CSR No . 1 083
20 Expiration Da t e : 12 - 31 - 20 14
Official Court Re p orter ,
21 288th Distric t Court
Bexar County, Texas
22 100 Dolorosa
San Anton i o, Texas 78205
23 2 10 - 335 - 2663
24
25
CINDY DEES , COURT REPORT ER
288TH DISTRICT COURT
Case 5:11-cv-00414-HLH Document 100-19 Filed 09/06/12 Page 3 of 3
Texas Ethics Commission P 0 Box 12070 Austin Texas 78711-2070 (512}463-5800 1-800-325-8506
POLITICAL CONTRIBUTIONS SCHEDULE A (J)
OTHER THAN PLEDGES OR LOANS (JUDICIAL)
1 Total pages report:
The I NSTRUCTlON GJ1oe explains how to complete this form.
1:, /?,?
2 FILER NAME 3 ACCOUNT # (Ethics Commission filers )
John Gabriel 00020059
4 Date 5 Full name of contributor 0 out-of-state PACIID# ) 7 Amount of
contribution ($)
I8 In-kind contribution
description(if applicable)
Dr. lrin Blumenthal I
. . . ... ..... . . .. . . . .. .. . . . . .. ... I
10/24/2004 6 Contributor address ; City; Sta:e; Zip Code 2500.00
I
I
Atlanta AL 30338 I J
9 Contributor's principal occupation 10 Contributor's job title
Medical Doctor
11 Contributor's employer/law firm 12 Law firm of contributor's spouse (if any)
Unknown
13 If contributor is a child . law firm of pa rent(s) (if any)
0 r
Date Full name of contributor out-of-state PAC(lD# I Amount of
' contribution ($) I In-kind contribution
description(if applicable)
John Bratton I
. . . . . . .. . . . . . ... .. . . . . . . ..... .. . .. .
I
10/24/2004 Contributor address; Ci·:y; State; Zip Code
Ij 250 .00
I
l Plano TX 75093
j
·,I
Contributor's principal occupation Contributor's job title
Wholesale Distribution I Executive
Contributor's employer/law firm Law firm of contributor's spouse (if any)
Maiestic Liquor Stores
j
If contributor is a ch ild, law firm of parant(s) (if any)
Date Full name of contributor 0 out-o.r·1
Appellees ) BEXAR COUNTY, .).~=,~.
r--
(~l (/)
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 Leave To File Second
Amended Brief," requesting the Court to abate an issue about Attorney Edward Bravenec and his
firm to allow ancillary proceedings and for leave to amend cite additional authority on the need
for continued 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 further notice and for leave to
amend on an issue relating to whether the Texas Supreme Court's holding in San Antonio 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 the Court's supervisory 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
1
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 infonned 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 finn. 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 prose administrator's fundamental 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
2
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. 1 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 285th District
Court, and Case No. 2015-CI-04779 in the I 50th District Court, respectively. As to all the above
referenced proceedings, Appellant asserts that he is the beneficiary of an absolute privilege under
Chale Garza 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. II, 2013),
review denied (Aug. 30, 2013) (purchase money claim); Long Beach Mortgage Company v. 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).
3
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 Valdez, 406 S.W.3d 228,233 (Tex. App.-San
Antonio 2013, pet. denied); Omnibus lnt'l, Inc. v. AT & T, Inc., 111 S.W.3d 818, 826 (Tex.App.~
Dallas 2003, pet. granted, remanded by agreement) (trespass to chattels case). The Court said in
Valdez 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." ld. Appellant
submits that the law applied in SAAF, and by the Fifth Circuit appeal in Martin v. Bravenec, et
al, 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, chases 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) (Vernon Supp. 1999)). Appellant asserts that Probate Case No.
200 1-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
4
regard, SMF substantiates a need for administration to prosecute claims for tort liability and
turnover relief against Bravenec and his contracting parties.
In SMF, the Texas Supreme Court construed Section 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) (Vernon Supp. 1999).
On appeal, this court reversed the probate court in Lang v. 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 SMF decision 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.
5
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 defmition 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 Cal. 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 fmn 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 of2006, and by subverting Appellant's absolute privilege to
recover the subject property through lis pendens expunction proceedings directed at the estate.
6
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.l985) (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))." ld. Here as in
7
SAAF, the statutory provision that took effect on January 1, 2014 attributes a meaning to the term
real property which renders Bravenec and his firm putatively liable for acts of reckless
endangerment that are "inconsistent with long-standing Texas jurisprudence." SAAF, ld.
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 governing law reflected by the Fifth Circuit's
fmdings in Martin v. Braevnec, et al, Case No. 14-50093 and DTND Sierra Investments, ld. 2 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
The Court has previously stated, for example, that "[w]ith regard to the occurrence of an act of
interference, the pleadings alleged Martin had •'admitted, in open court, his intention to obstruct [the] sale
of the [P]roperty," and evidence was introduced at the hearing of a series of willful, intentional acts taken
by Martin to interfere with the appellees' ability to sell the Property, including the filing of at least four
prior lis pendens that were cancelled and expunged by various courts. The evidence also included the
Perfected Notice of Lis Pendens filed by Martin in the underlying cause in response to which Bravenec
filed his motion for contempt alleging Martin had violated the trial court's temporary restraining order
... "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 II 's] safe harbor provision" due to his reliance on a pleading that was itself unsupported,
substantiates the contrary inference that Bravenec's tortious interference case essentially
continues a course of action involving de facto abuses of process under Rule 11 in the federal
district court. Memorandum Opinion in Case No. 14-50093, at p. 4- 6.
DTND Sierra Investments, ld. 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. at p. 5. Here, it is undisputed that Bravenec petitioned the 57th 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 undischarged 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 20I3) (improper purpose). This pattern of events
9
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, ld.
Regarding legal excuse, Bravenec's testimony at the hearing in the 285th 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. Vol2 (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 [ 1know 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 [ 1he 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, ld., 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,
!_kwMA:b-
Rowland J. Martin
CERTIFICATE OF SERVICE
I delivered a copy of this, "Appellant's Unopposed Motion To Sever And To Remand,"
to Attorney Elizabeth Conry Davidson via email c/o Bexar Appraisal District, 411 S. Frio, San
Antonio, Texas, 78204 on October 14,2015.
Dated: October ~ 2015 I~ L~t14;
J.
Rowland Martin
CERTIFICATE OF CONFERENCE
I certify that I conferred with Attorney 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.
ikvUr}LLtf:
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
.-
A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIR CUlT United States Court of Appeals
fifth Circuit
FILED
October 2, 2015
No. 14-50093
Summary Calendar Lyle W. Cayce
Clerk
ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,
0
Plaintiff-Appellant
v.
EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND
BRAVEN~C; 1216 WEST AVENUE, INCORPORATED,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 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 offees. 1
·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.
I 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 an order 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 of summary
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 that the 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 lien 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 that Martin violated FED. R. CIV. P. 11(b)(1),
2
No. 14-50093
(2) and Martin failed to respond to the district court'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 a.ttorney'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 of pleadings 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 of the 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 flied
3
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
of his 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 an issue
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 flied a
pleading for an improper purpose or that the pleading was frivolous. See FED.
R. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon a party's motion if the 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
1
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. ll(c)(3)). Although the district court need
not hold a hearing, it must provide the litigant notice of the proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.
4
No. 14-50093
See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 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 if it 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. In fact, 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 consi~ering Martin's
objections and motions for reconsideration. The district court's original 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
a litigant 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 of the 21-day "safe harbor" provision: to provi~e
a litigant the opportunity to withdraw challenged pleadings and thereby avoid
5
No. 14-50093
sanctions. See In re Pratt, 524 F.3d 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. ll(c)(2). See, e.g., Pratt, 524 F.3d at 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. See Marlin, 533 F.3d at 379; Brunig, 560 F.3d at 298. As this Court
explained in Marlin, 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. Martin's other motions are
DENIED AS MOOT.
6
B
14
llllllllllllllllllllllllllllllll\11" 111111
PI2-20150198558-3
THIRD PARTY PURCHASE MONEY VENDOR'S LIEN
LIEN TRANSACTION DATE: October 31, 2003 (Deed Records Volume 10406, Pages 1601 and 1606).
SUBJECT PROPERTY: 1216 West Ave., City San Antonio and County of Bexar, Texas
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.
MAILING ADDRESS:
PURPOSE OF THE RECORDING: This re-recording of the lien interest created on October 31, 2003
memorializes the 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
____ --~yentures_,__``c. and all those claiming under the grants r``ord~d as the (Fir~)_ D``-of Trust to Roy
Ramspeck and Annette G. Hanson, and as the (Second) Deed Of Trust to Albert McKnight and Edward
Bravenec. The lien constitutes consideration for a payment in the amount of $135,000, which was
made by the 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 acquire the subject property for a
purchase price of $284,500. The lien is referenced in the Warranty Deed with Vendor's Lien recorded in
Volume 10406 Page 1601 as "other valuable consideration," and is further referenced in the (First) Deed
Of Trust recorded in Volume 10406 Page 1606, in the section on "Other exceptions to Conveyances and
Warranty," by way of express words of reservation stating that the conveyance is subject to "other than
liens and conveyances," and in paragraph 14 of "General Provisions," where it is expressly stated 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 Case No. 2001-PC-1263, in the Second Deed Of Trust granted
by Moroco Ventures, LLC in Document #20050099395 on May 5, 2005, by way of "Prior Lien"
reservations , and by way of the stipulation in 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 SO, new City Block
8806, LOS ANGELES HEIGHTS," and as further described in the
attachment to this record.
Book 17508 Page 1659 3pgs
1
RETROACTIVE RESERVATIONS AND EXCEPnONS TO CONVEYANCES AND WARRANTIES:
1. Until further notice, the lien interest herein re-recorded is subject to the indemnification
obligations set forth in the Heirship Settlement Agreement in Probate case No. 2001-PC-1263. It is
declared that any and all interests in title claimed under the 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 by virtue of
contractual exceptions to the conveyance in the first deed of trust, to wit: "all rights, obligations, and
other matters emanating from and existing by reason of the ... operation of any governmental district,
agency or authority," Bexar County Deed Records, Vol. 10406 Page 1607. By virtue of express
provisions that subject the second deed of trust to the first deed of trust, Owner claims eq_uitable title
under DTND Sierra Investments v. HSBD Bank U.S.A., Case No. 14-51142 (5th Cir., 2015), a court decision
which by operation of law renders the interests acquired by Albert McKnight and Edward Bravenec by
foreclosure on October 3, 2006 executory ~nd inferior in relation to the lien herein re-recorded.
2. It is declared that deed transfers from Albert McKnight and Edward Bravenec to assignees and
successors in interest, including 1216 West Ave., Inc. , Edward Bravenec, and Torralba Properties, Inc.,
are subject to the notice of lis pendens, and future amendments thereto if any, which was referenced
in the decision of the Texas Fourth District Court Of Appeals in Martin v. Bravenec, eta/, Case No. 04-14-
00483-cv, 2015 WL 2255139 (Tex. App. -San Antonio, rehearing denied June 8, 2015).
------c3,- · ·--The owner disclaims liability for-the recording of notices of lis pendens under .authority oUhe - - - - - -·-·- -
decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Bravenec, et al, Case No. 14-50093
(5th Cir., judgment filed October 2, 2015), wherein the court vacated the order of the U.S. District Court
in case No. SA 11-CV-0414 dated December 27, 2013, on abuse of discretion and due process grounds.
4. The Owner received a leasehold interest in the subject property in lieu of monetary
consideration which was recorded in the records of the Bexar County Appraisal District as a homestead.
Dated: October 14, 2015
!``~
Individually and As Administrator For
The Estate of Johnnie Mae King
STATEOFTEXAS )
COUNTY OF BEXAR )
This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as a third party purchase money lien creditor of the limited liability company
known as Moroco Ventures, LLC, whose charter is presently inactive.
2
EXll'IJl :tT "A II
s. The land referred to In this Polley iS described as follows:
Lots 1, 2 and 3, Block SO, New Oty Block 8806, LOS ANGELES HEIGHTS ADDITION, situated
In the 0ty of San Antonio, Bexar County, Texas, according to plat thereof recorded In
Volume lSO, Pages 284-286, of the Deed and Plat Record of Bexar County, Texas, SAVE
AND EXCEPT there from a tract of land containing 0.00049 of an aae, being 21.51 square
feet,. more or less, same being out of Lot 1, said tJact conveyed to the City of San Antonio
by deed dated October 10, 1991 recorded in Volume S180, Page 1873, Real Pn:lperty
Records of Bexar County, Texas, being 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 desa1bed tract;
THENCE s 890 s1• 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 9QO 03•
30" an arc length of 15.72 feet, and whose radius point bears goo 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 000 as• 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).
- -- ---------~-
OCT 1 4 2015
Doc# 20150198558 Fe~: $34.00
10/14/2015 4:49PM # Pages 3
Filed & Recorded in the Official
·Public Records of BEXAR COUNTY
GERARD C. RICKHOFF COUNTY CLERK
... ;,...
15
Cause No. 2001-PC-1263
IN THE MATTER OF THE ESTATE OF ) IN THE PROBATE C~lmi · ·:--:-~-:-:·-:;.-·-
JOHNNIE MAE KING ) NUMBERONE
) FOR BEXAR COUNTY, TEXAS
ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE
LIEN RECORDING DATE: October 14, 2014
SUBJECT PROPERTY:
GRANTOR: ~state of Johnnie Mae King
GRANTEE: Rowland J. Martin, Jr., Independent Administrator for the Estate of
Johnnie Mae King
MAILING ADDRESS: 951 Lombrano
. San Antonio, Texas 78207
PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial
proceedings to the Class 2 lien that is hereby declared pursuant to
Estates Code Section 355.066(b), in consideration for (1) services
- - - - - - - - - · · - - - - - · · . __ r~n..dered and in satisfaction of related expenses incurred during the
decedent's last illness in the approximate amount of $12;ooo, (2) fof"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
was vacated by the 150th District Court and the 224th District Court in
2013; and (3) for the expenditure of in kind resources from the Grantees
individual estate in the amount 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 150th 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 administrc,tion of the Johnnie Mae King Trust; that he
incurred expenses for the benefit of the decedent during the last illness after the assets of the 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 a benefactor 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 of the latter expenses, Grantee qualifies
as a creditor 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 in San Antonio, Texas,
is legally described as "NCB 2095 BLK 20 LOT 35 E FT OF 14 & SW TRI OF
15".
1
EXCEPTIONS TO CONVEYANCES AND WARRANTIES:
1. The lien is recorded by the power vested in Grantee by the Probate Court as an Independent
Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit in
the amount of $147,000 and judicial review by courts with probate jurisdiction in due course.
2. Out of an abundance of caution to enable·satisfaction of contingent liabilities against the Estate
of King, Grantee has made a concurrent assignment of lien interests to implement the indemnification
obligations set forth in the Heirship Settlement Agreement filed in Probate Case No. 2001-PC-1263. In
order to honor and comply with Heirship Agreement indemnification obligations owed to the successors
in interest of the late Opal Gilliam, beloved daughter of Johnnie Mae King, it is declared that the Estate
of Johnnie Mae King is a beneficiary of the third party purchase money lien claim recorded on October
14, 2015 by Rowland J. Martin in his individual capacity against the property commonly known as 1216
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 of Johnnie Mae King is also made a
beneficiary of the express contractual exceptions to the conveyance in the first deed of trust granted by
Moroco Ventures, LLC on October 31, 2003 which extends to "all rights, obligations, and other matters
emanating from and existing by reason of the ••• operation of any governmental district, agency or
authority," Bexar County Deed Records, Vol.10406 Page 1607.
3. In acco.rdance with contractual exceptions for governmental matters, Grantee expressly
---~-~-·-..disclaims liabilityJor.the recording of liens and notices o.fJis_pendens..agaJnst.t!teproperty kQQ.Wn as
1216 West Ave. in San Antonio, Texas, and asserts that the exceptions recorded herein supersede the lis
pendens expunction order which was entered by the Probate Court on March 19, 2014, and which was
further referenced in the decision of the Texas 4th District Court Of Appeals in Martin v. Bravenec, et al,
Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.- San Antonio, (ehearing denied June 8, 2015).
3. Grantee also disclaims liability for the recording of liens and notices of lis pendens under
authority of the decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Bravenec, eta/,
Case No. 14-50093 (5th Cir., judgment filed October 2, 2015), wherein the court vacated the order of the
U.S. District Court in Case No. SA 11-CV-0414 dated December 27, 2013.
Dated: October 14,2015 ``
Rowland J. Martt
•
As Administrator For
The Estate of Johnnie Mae King
STATE OF TEXAS )
COUNTY OF BEXAR )
This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as Administrator for the Estate of Johnnie Mae King.
~
IJ:~t-\
\ ..~.~).. ~
CHARLCYE LANAI GUNEWINKEL
Notorv Public. Stote of Texos
My CommissiOn Expires
``T~exas '
Vf,:;,;;;.~V June 02. 2019 2
jf ourtb QCourt of ~ppeals
~an ~ntonio, Z!texas
October 22, 2015
No. 04-15-00271 -CV
ESTATE OF JOHNNIE MAE KING .
From the Probate Court No 1, Bexar County , Texas
Trial Court No. 2001-PC-1263
Kelly Cross, I udge Presiding
ORDER
Appell ees filed the ir brief on October 21, 2015. Simultaneousl y, ap pellees filed : (1) a
motion to di smiss; (2) a mo tion for damages for frivolous appeal; and (3) a request that this court
take ju dicial notice ol' ce rtain public records. After reviewing the motions and the request, we
ORDE R all th ree carried with tbe appeal. Both the motions and the request will be ruled upon
w hen the ap peal is Sdbmi ttcd and decided.
IN WITNESS WHEREOF. T have hereunto set my hand and affixed the seal of the said
. ._.Jrt o n ·J:i::. 2:2 nd `` y of Ocrober, 20 15.
Clerk of Court
ACCEPTED
04-15-00271-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/21/2015 4:24:26 PM
KEITH HOTTLE
CLERK
No. 04-15-00271-CV
______________________________________________
IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
______________________________________________
ROWLAND J. MARTIN,
Appellant
v.
BEXAR APPRAISAL REVIEW BOARD AND BEXAR APPRAISAL
DISTRICT
Appellees.
MOTION FOR DAMAGES FOR FRIVOLOUS APPEAL
ELIZABETH CONRY DAVIDSON
Attorney at Law
State Bar No. 00793586
926 Chulie Drive
San Antonio, TX 78216
Telephone No.: (210) 380-4899
Facsimile No.: (210) 568-4036
EVERTSON & SANCHEZ, P.C.
Karen Evertson
State Bar No. 00797745
8213-A Shoal Creek Boulevard, Suite 109
Austin, Texas 78757
Telephone No.: (512) 323-0797
Facsimile No.: (512) 532-6598
Attorneys for Appellees
TO THE HONORABLE JUDGES OF THIS COURT:
Appellees, Bexar Appraisal District and Bexar Appraisal
Review Board respectfully present this their Motion for Damages for
Frivolous Appeal, and in support thereof would show the Court as
follows:
BACKGROUND
Mr. Martin is basically a career litigant. A search on the federal
court database (www.pacer.gov) reveals four bankruptcy
proceedings, an adversary proceeding, eight civil suits, and three
appeals to the Fifth Circuit in which Martin was a litigant. See search
results from Pacer Case Locator attached as Exhibit “K.” The Bexar
County Clerk records reveal eighteen cases in which Martin was a
party; ten of them were delinquent tax suits. See search results from
Bexar County District Clerk attached as Exhibit “L.” Finally, a search
on TAMES reveals only two cases, but Martin has attempted to file
many appeals with this Court. See search result from TAMES Bexar
County District Clerk and TAMES attached as Exhibit “M.”
Although he attended law school and was once admitted to
practice in New York and Pennsylvania, he is no longer. See search
results from the Texas Bar, New York Bar and Pennsylvania Bar
attached as Exhibit “A.” He is not and has never been licensed to
practice law in the State of Texas.1 Despite that, he has continued to
prosecute this appeal, on behalf of the Estate of Johnnie Mae King,
even though he was relieved of his duties and removed as
administrator last July.
Martin has been branded a vexatious ligitant by the Western
District of Texas and the Fifth Circuit, and this Court has recognized
as much. In a recent opinion, this Court in Martin v. Bravenec, No. 04-
14-00483-CV, 2015 WL 2255139 (Tex. App. – San Antonio May 13,
2015, pet. denied) recognized that inn a 2010 lawsuit against Edward
Bravenec (Martin’s former attorney in this probate proceeding, whom
he now accuses of malpractice) the federal district court granted
summary judgment in Bravenec’s favor, ordering him to show cause
why monetary sanctions should not be imposed against him for: “(1)
repeatedly filing lawsuits for the purposes of harassment and the
needless increase of litigation costs; and (2) continuing to assert
1
Martin admitted this in the hearing from which this appeal arose. Additionally,
a search on the Texas Bar site for his name yields no results. See
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&Tem
plate=/CustomSource/MemberDirectory/Search_Form_Client_Main.cfm&Find
=1.
-3 -
claims that he knows are non-meritorious.” Id. at * 1. He was in fact
sanctioned by the federal district court on February 1, 2013 when the
clerk’s office was ordered not to accept for filing any further motions
filed by Martin in that case or any new pro se complaints without
prior written approval of a district judge. Id. The federal district
court’s order stated:
The Court observes that for years Plaintiff has engaged in
a campaign of harassing, frivolous, and duplicative
litigation. His lawsuits have served no purpose other than
to increase the litigation costs of the Defendants and
waste judicial resources. The Court finds that it is
necessary to take some action to curtail the Plaintiff’s
propensity to burden the Court with meritless litigation.
Id. The Fifth Circuit Court of Appeals affirmed that judgment and
also entered an order cautioning Martin that if “he continues to
engage in frivolous and vexatious litigation—for example, asking for
relief the court has repeatedly found is not warranted—sanctions
may be imposed.” Id.
This Court went on to quote from the Fifth Circuit’s order4
commenting on Martin’s history of filing notices of lis pendens
regarding the property at issue there (1216 West Avenue). After the
Fifth Circuit had entered two separate orders canceling the notice of
-4 -
lis pendens, Martin filed a third notice in probate court. Id. “This time
indicating that title to the Property was affected by a Bexar County
Probate Court matter styled In re Estate of Johnnie Mae King, Cause
No. 2001-PC-1263. The notice of Lis Pendens assert[ed] that Martin
was the administrator of the Estate and that Defendant Edward
Bravenec was “attorney of record.” Id. It did not, however, clarify
what bearing that probate matter ha[d] on the property at issue in the
[Bravenec federal] suit.” Id. The third lis pendens was canceled by the
probate court after it found on March 19, 2014 that the estate had no
interest in the West Avenue property. Id.
While Martin’s actions in past cases are not proof that his
appeal here is frivolous, they certainly demonstrate a pattern of
callous and intentional disregard for the rules and a propensity to file
frivolous and baseless pleadings and lawsuits with impunity. This
case is no exception. As set out in the Appellees’ Brief, Martin has
tried to harness the power of the probate court to forestall or prevent
the collection of delinquent ad valorem taxes that he rightly owes.
His sole purpose in keeping the estate of his grandmother open is to
avoid paying taxes on property that he now resides in and has a
-5 -
homestead exemption on. Finally the probate court recognized this
and removed him as administrator. Despite that, he continued with
this appeal although he no longer has standing to represent the estate
in any way.
The Appellees were dragged into probate court by Martin in
2009 to stall the pending delinquent tax lawsuits, and he has no
interest in completing his case against the Appellees. As long as it is
pending, the Taxing Authorities must wait to collect taxes he owes.
Consequently, this case has simply sat for six years while Martin
fights his numerous legal battles simultaneously.
As set out in great detail in the Appellees’ Brief, Martin never
had a chance with his claims in probate court. He had even less of a
chance in this Court. Specifically, he failed to meet the jurisdictional
prerequisites to judicial review of the District’s alleged error by not
paying the taxes on the properties. Payment of taxes is a requirement
to being entitled to judicial review and he forfeited this right many
years ago. He also failed to file suit timely, which is a jurisdictional
bar as well. Finally, he failed to file his suit in the right court: probate
court has no jurisdiction over ad valorem tax appeals. Thus, it was
-6 -
correct for the probate court to dismiss his case. His appeal,
particularly as his brief is drafted, could not possibly result in a
reversal of the probate court’s ruling, and Martin should have
realized that. As a result, this Court should find the appeal is
frivolous and award the Appellees’ damages.
ARGUMENT AND AUTHORITIES
A. Rule 45 authorizes damages for frivolous appeals.
Texas Rule of Appellate Procedure 45 authorizes courts of
appeals to award sanctions in appeals. The Rule reads:
Damages for Frivolous Appeals in Civil Cases
If the court of appeals determines that an appeal is
frivolous, it may — on motion of any party or on its own
initiative, after notice and a reasonable opportunity for
response — award each prevailing party just damages. In
determining whether to award damages, the court must
not consider any matter that does not appear in the
record, briefs, or other papers filed in the court of
appeals.
Tex. R. App. P. 45.
Although Rule 45 does not prescribe a method for determining
the amount of the “just damages,” courts have awarded just damages
based on proof of expenditures incurred by the appellee as a result of
the frivolous appeal. See Chapman v. Hootman, 999 S.W.2d 118, 123–25
-7 -
(Tex.App.—Houston [14th Dist.] 1999, no pet.) Hatton v. Grigar, No.
14–09–00630–CV, 2011 WL 175501, at *3 (Tex.App.—Houston [14th
Dist.] Jan. 20, 2011, no pet.) (ordering appellant and appellant's
attorney to pay Rule 45 damages to appellee) (mem.op.); Lookshin v.
Feldman, 127 S.W.3d 100, 105-107 (Tex.App.—Houston [1st Dist.]
2003, pet. denied) (ordering only appellant's attorney to pay Rule 45
damages to appellee).
In London v. London, 349 S.W.3d 672, 675-76 (Tex. App.--
Houston [14 Dist.] 2011, no pet.), the court said:
If an appeal is frivolous, the appellate court may award
the prevailing party just damages. Tex. R. App. P. 45. To
determine if an appeal is frivolous, we review the record
from the viewpoint of the advocate and decide whether
there were reasonable grounds to believe the case could
be reversed. Glassman v. Goodfriend, 347 S.W.3d 772, 782
(Tex. App.-- Houston [14th Dist.] 2011, pet. filed) (en
banc). Because the question of whether there were
reasonable grounds for such a belief is an objective one,
an appeal can be frivolous even absent bad faith. Id. at
781. After reviewing the record from the viewpoint of
Jeffrey's counsel, we conclude that there were reasonable
grounds to believe that this court could reverse the trial
court's order.
In Pantlitz v. Sikkenga, 2011 WL 5116464, *5 (Tex. App.--Houston
[1st Dist.] 2011, no pet.), the First Court of Appeals said:
We apply an objective test to determine whether an
-8 -
appeal is frivolous and conduct a full examination of the
record and all the proceedings from the viewpoint of the
advocate. Smith, 51 S.W.3d at 381. The goal of this inquiry
is to determine whether the advocate had reasonable
grounds to believe that the trial court's judgment should
be reversed. Id. We exercise prudence and caution and
deliberate most carefully before awarding damages under
rule 45. Id. We award sanctions in truly egregious
circumstances. Goss v. Houston Cmty. Newspapers, 252
S.W.3d 652, 657 (Tex. App.--Houston [14th Dist.] 2008, no
pet.).
In D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205 (Tex.
App.--Dallas 2011, no pet.), the Dallas Court of Appeals cited four
factors indicating that an appeal is frivolous:
Four factors that tend to indicate an appeal is frivolous
are (1) the unexplained absence of a statement of facts, (2)
the unexplained failure to file a motion for new trial when
it is required to successfully assert factual sufficiency on
appeal, (3) a poorly written brief raising no arguable
points of error, and (4) the appellant's unexplained
failure to appear at oral argument.
In keeping with these criteria, the Fourteenth Court of Appeals
awarded damages for a frivolous appeal in Riggins v. Hill, 461 S.W.3d
577 (Tex. App. – Houston [14th Dist.] 2015, pet. denied). That case
involved an appeal from an order enforcing an earlier judgment
enforcing a settlement, in which trial court found it lacked
jurisdiction over the motions filed after issuance of an appellate
-9 -
mandate affirming the judgment. Id. at 584. The appellant attempted
to re-litigate the issues already resolved by the judgment, which was
final by appeal. Id.
The court pointed out that she had not shown, and the record
did not reflect “any reasonable ground for concluding that the
Judgment is void.” Id. She also did not make “any other argument
that, if successful, would allow her to obtain relief inconsistent with
the Judgment.” Id. After reviewing the appellate file, and considering
it from the viewpoint of her attorney, the court concluded that he had
“no reasonable grounds to believe that the case could be reversed.”
Id. Consequently, the court made “an objective determination that
this appeal is frivolous.” Id. The court found this warranted an award
to the landlord and associated parties of frivolous appeal damages
against tenant's attorney. Id.
The Riggins court In this case, concluded that just damages
should be calculated based upon the attorney's fees and expenses
incurred by the opposing party as a result of the appeal. Id. at 584.
Therefore, it calculated just damages based on the attorney's fees and
expenses in the case from the point the appeal was perfected. The
-10-
uncontroverted proof of reasonable attorney's fees during this period
was in the amount of $12,175.50 with $161.28 in expenses, for a total
of $12,336.78. Id.
B. There were no reasonable grounds for Martin to believe that
the probate court’s ruling could be reversed.
Martin made no viable arguments in the probate court to
prevent dismissal of his claims against the District and Board. The
bottom line is that Martin did not even take the actions required to be
afforded a protest hearing: paying the taxes due on the properties.
This was also a prerequisite to judicial review, which Martin ignored.
Clearly, his entire lawsuit was frivolous from the onset. However, he
filed it anyway and fought dismissal tooth and nail. His appellate
strategy is really no better, and just highlights the frivolity of his
whole case.
Now on appeal he is making completely new arguments that
were never made in probate court. His arguments on appeal also are
completely irrelevant to either 1) his claims in the underlying lawsuit
or 2) the dismissal of those claims. They present absolutely no reason
that his appeal should be successful. As a result, this appeal was
-11-
frivolous, the Appellees have been damaged, and Martin should be
ordered to pay those damages.
Specifically, the issues that Martin presents in this appeal are as
follows:
1. Whether the probate court’s treatment of Estates Code section
1002.027 constitutes fundamental error?
2. Whether the probate court’s treatment of 42 U.S.C. § 1983
constitutes fundamental error?
3. The probate court’s findings of fact constitute fundamental
error?
4. Whether the probate court’s treatment of the “open courts”
doctrine constitutes fundamental error?
See Brief at ix. Needless to say, not one of these issues was raised in
the probate court. Even the substance of his arguments in his brief
reveals nothing that was presented below to the probate court in
favor of retaining the case.
Inexplicably, Martin builds his entire argument around a new
provision of the Estates Code: section 1002.027, which took effect on
January 1, 1014, so it is inapplicable in this case anyway. Regardless,
its potential relevance in Martin’s mind is inexplicable. The section
merely defines “real property” to include “estates and interests in
land, whether corporeal or incorporeal or legal or equitable. The term
-12-
does not include a real chattel.” Texas Estates Code § 1002.027.
Martin, suggests that he has identified a conflict between the Estates
Code and the Tax Code that inures to his benefit somehow and that
the probate court’s interpretation of that section (which wasn’t even
raised) is fundamental error. See Brief at 14-17.
Martin throws in an argument that the probate court treated his
claim under 42 U.S.C. § 1983 poorly, resulting in fundamental error,
though one was never pleaded in probate court. See Brief at 17-20.
Martin contends next that the probate court’s findings of fact
constitute fundamental error. See Brief at 20-24. Yet the probate court
did not make any findings of fact and was not required to. Not only
was there no evidence presented at the hearing on the motion to
dismiss, but Martin failed to timely request that the court prepare
findings of fact and conclusions of law. (Supp. CR 153-165)
Finally, Martin argues that the probate court’s treatment of the
open courts doctrine was fundamental error. See Brief at 24-29. As
with the other arguments, this one was never made in the probate
court and is being made for the first time in Martin’s brief.
-13-
Martin cannot raise these issues here because he did not raise
them in the probate court. Powell v. Powell, 604 S.W.2d 491, 493 (Tex.
Civ. App. – Dallas 1980, no writ). The orderly administration of
justice requires that issues and objections be raised in the trial court
so that justice may be done there rather than to permit a litigant to
wait until after the trial court has acted adversely and then complain
for the first time on appeal. National Lloyds Ins. Co. v. McCasland, 566
S.W.2d 565, 568-69 (Tex.1978); State of California Dept. of Mental
Hygiene v. Bank of the Southwest Nat’l Ass’n, 163 Tex. 314, 354 S.W.2d
576, 581 (1962); Slaughter Inv. Co. v. Cooper, 597 S.W.2d 455, 457
(Tex.Civ.App.-Dallas 1980, no writ).
Moreover, Martin’s arguments are not clear and do not present
any legal principles supporting his contentions, or supporting the
positions he took in the probate court. See Ratsavong v. Menevilay, 176
S.W.3d 661, 666 (Tex. App. –El Paso 2005, pet. denied). Martin also
fails to cite to any legal authority to support the issues he raises or to
connect them to the probate court’s ruling dismissing his case. Id. The
brief “must contain a succinct, clear, and accurate statement of the
arguments made in the body of the brief.” Tex.R.App. P. 38.1(g).
-14-
Rule 38 requires Martin to provide the Court with such
discussion of the facts and the authorities relied upon as may be
requisite to maintain the point at issue. See Tesoro Petroleum Corp. v.
Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st
Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711
(Tex.App.-Amarillo 1998, no pet.). This is not done by merely
uttering brief conclusory statements, unsupported by legal citations.
Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such
attenuated, unsupported arguments, this Court should conclude that
Martin’s appeal is frivolous.
As demonstrated in the Appellees’ brief, Martin did not even
manage to meet the jurisdictional requirements for a protest
hearing—payment of taxes. There is no way that he could achieve
reversal of the probate court’s decision by appealing to this Court,
particularly with the arguments he has made here. His appeal is
clearly frivolous.
C. The Appellees have been damaged by this frivolous appeal.
Obviously Martin’s filing of this appeal required the Appellees
to respond, and this has required them to retain appellate counsel to
-15-
do so. Since this appeal was initiated on April 16, 2015, the
undersigned has spent in excess of seventy-five hours working on it.
This work has included reviewing the complex history of this case,
the properties involved, Martin’s other lawsuits, his history of being
a vexatious litigant, his lack of standing to continue to pursue this
case, reviewing and supplementing the record on appeal, legal
research and drafting of this brief and several motions. As set out in
the attached declaration by the undersigned, at her hourly rate of
$250.00 this totals $18,750.00 in legal fees incurred by the Appellees.
See Declaration of Conry Davidson attached as Exhibit 1.
Additionally, the Appellees have been required to expend costs on
this appeal, which now total roughly $350.00. These amounts are the
damages incurred by the Appellees because of this frivolous appeal,
and Appellees respectfully request this Court to award them these
damages.
CONCLUSION AND PRAYER
Based upon the foregoing, Appellees respectfully request that
this Court determine that this is a frivolous appeal and that
-16-
Appellees are entitled to damages for defending same in the amount
of $15,300.00.
WHEREFORE, PREMISES CONSIDERED, Appellees pray that
this Court will grant their motion .
Respectfully submitted,
Elizabeth Conry Davidson
926 Chulie Drive
San Antonio, Texas 78216
Telephone No. (210) 380-4899
Facsimile No. (210) 225-2300
conrydavidson@gmail.com
/s/ Elizabeth Conry Davidson
Elizabeth Conry Davidson
State Bar No. 00793586
ATTORNEY FOR APPELLEES
CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with the opposing party,
Rowland Martin, regarding the subject matter and substance of the
foregoing Motion and he has indicated that he does oppose this
Motion.
/s/Elizabeth Conry Davidson
ELIZABETH CONRY DAVIDSON
CERTIFICATE OF SERVICE
-17-
I hereby certify that a true and correct copy of the foregoing
instrument was delivered to the following in accordance with the
Texas Rules of Civil and Appellate Procedure on this the 21st day of
October, 2015:
Rowland J. Martin
/s/ Elizabeth Conry Davidson
ELIZABETH CONRY DAVIDSON
-18-
AFFIDAVIT OF CONRY DAVIDSON
“My name is Conry Davidson I am over eighteen (18) years of age, reside in Bexar
County, Texas, and I am fully competent to make this Affidavit. I have personal knowledge
of the facts stated herein and they are all true and correct. I have never been convicted of a
crime of moral turpitude.
“I am a duly licensed attorney , having been licensed in Texas since November, 1995.
My license to practice law in Texas is in good standing with the State Bar of Texas. I am
licensed to practice law in the Western and Northern Districts of Texas, and before the U.S.
Fifth Circuit and U.S. Supreme Court. I am also Board Certified by the Texas Board of Legal
Specialization in Civil Appellate Law.
“I am familiar with the ordinary, customary and reasonable fees charged in Bexar
County for appellate representation. When I handle legal matters on an hourly fee basis, I
generally charge at least $250.00 per hour for my services. In my opinion, the rate of $275.00
per hour for my legal services is reasonable in this area for the services I perform.
“I am the lead counsel on appeal for the Appellees in the lawsuit styled Rowland
Martin v. Bexar Appraisal District and Bexar Appraisal Review Board; Case No. 04-15-
00271-CV pending in the Fourth District Court of Appeals at San Antonio, Texas. I was
retained to handle the dismissal hearing in March, 2015 and then to handle this appeal on
behalf of the Appellees.
“In the context of handling this appeal, I have been required to supplement the
clerk’s record more than once, review the pleadings and history in this case that has been
pending for fifteen years, learn and comprehend the history of the tax delinquency issues
that have been pending for years, including the procedural history of numerous lawsuits and
appeals involving Mr. Rowland Martin, conduct extensive legal research regarding the brief
and the motions that have been required in this appeal, extensive conferring with co-counsel
and the lawyers for the Taxing Authorities to understand the case and to present the brief in
as cogent a fashion as possible, and I have worked extensively on the brief and the attendant
motions in an effort to present this case as concisely and clearly as possible, despite its
tortured history and the events underlying the case. Consequently, it has taken me over
seventy-five hours of time to handle the appeal, up to the date of preparing this affidavit.
Under the circumstances, spending seventy-five hours on this appeal was reasonable and
necessary. Consequently a reasonable fee for the time spent on this matter is at least
$18,750.00.
“As stated, I have been retained to represent the Appellees in this appeal. The
damages that they have incurred due to Mr. Martin’s filing of this frivolous appeal are the
attorneys fees that they must pay me, as well as the costs incurred in the defense of the
appeal. The costs incurred by the Appellees are approximately $350.00 at this time in
defending this appeal. The total damages caused by Mr. Martin’s frivolous appeal total
$19,100.00
1
EXHIBIT 1
“My name is Conry Davidson. My date of birth is July 4, 1968 and my address is 926
Chulie Drive, San Antonio, Texas 78216 and I declare under penalty of perjury that the
foregoing is true and correct.
“FURTHER AFFIANT SAYETH NOT.”
Executed in Bexar County, State of Texas, on the 21st day of October, 2015.
/s/Conry Davidson
Conry Davidson, Declarant
2
EXHIBIT 1
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19 records found
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Client: Bexar Appraisal District
Search: All Court Types Party Search Name Martin, Rowland All Courts Page: 1
Bankruptcy Results
Court Case Ch Date Filed Date Disposition
Party Name Closed
1 Martin, Rowland (intp) txwbke 5:06-bk-50829 11 05/02/2006 03/22/2007 Dismissed for Other Reason 01/08/2007
Moroco Ventures LLC
2 Martin, Rowland, Jr. (aty) txwbke 5:06-bk-50203 11 02/06/2006 04/05/2006 Dismissed for Other Reason 03/02/2006
Moroco Ventures, LLC
3 Martin, Rowland J, Jr (db) txwbke 5:05-bk-80116 13 12/05/2005 08/27/2012 Dismissed for Other Reason 06/20/2006
Rowland J Martin
4 Martin, Rowland J, Jr (pla) txwbke 5:11-ap-05141 09/06/2011 09/13/2011 Dismissed or Settled Without Entry of Judgment
09/13/2011
Martin and Bexar County
5 Martin, Rowland T (db) mssbke 3:06-bk-00462 7 03/31/2006 01/29/2010 Standard Discharge 01/29/2010
Rowland T Martin
Civil Results
Party Name Court Case NOS Date Filed Date Closed
6 Martin, Rowland J., Jr. (inre) txwdce 5:2012-cv-00998 423 10/17/2012 12/20/2012
Martin v. Bexar County et al
7 Martin, Rowland J., Jr. (pla) txwdce 5:2012-cv-00998 423 10/17/2012 12/20/2012
Martin v. Bexar County et al
8 Martin, Rowland J., Jr. (dft) txwdce 5:2009-cv-00949 890 11/30/2009 04/14/2010
County of Bexar et al v. Gilliam et al
9 Martin, Rowland J. (pla) txwdce 5:2014-cv-00524 442 06/10/2014 04/27/2015
Martin v. Claudette Yarbrough, et al
10 Martin, Rowland J. (cd) txwdce 5:2014-cv-00524 442 06/10/2014 04/27/2015
Martin v. Claudette Yarbrough, et al
11 Martin, Rowland (dft) flsdce 1:1993-cv-01785 470 09/16/1993 02/28/1994
Fior Industries v. Leach & Garner, et al
12 Martin, Rowland J., Jr. (pla) txsdce 4:2010-cv-03644 290 10/04/2010 05/18/2011
Mart. v. Grehn et al. Case electronically transferred to the Western District of Texas (San Antonio Division).
13 Martin, Rowland (pla) txwdce 5:2008-cv-00484 440 06/18/2008 12/08/2009
King et al v. City of San Antonio
14 MARTIN, ROWLAND J. (pla) dcdce 1:2012-cv-01281 442 07/30/2012 02/25/2014
MARTIN v. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al
15 MARTIN, ROWLAND J. (cd) dcdce 1:2012-cv-01281 442 07/30/2012 02/25/2014
MARTIN v. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al
16 Martin, Rowland J., Jr. (pla) txwdce 5:2011-cv-00414 290 05/25/2011 12/21/2012
Martin v. Grehn et al.
Appellate Results
Party Name Court Case NOS Date Filed Date Closed
17 Martin, Rowland J., jr (pty) 05cae 13-51023 3290 11/01/2013 11/27/2013
Rowland Martin, Jr. v. Charles Grehn, et al
18 Martin, Rowland J., jr (pty) 05cae 13-50070 3290 01/29/2013 09/25/2013
Rowland Martin, Jr. v. Charles Grehn, et al
19 Martin, Rowland J., jr (pty) 05cae 14-50093 3290 02/03/2014
Rowland Martin, Jr. v. Charles Grehn, et al
Receipt 08/12/2015 15:45:29 20473806
User ec0709
Client Bexar Appraisal District
Description All Court Types Party Search
Name Martin, Rowland All Courts Page: 1
Pages 1 ($0.10)
1 of 1 8/12/15, 3:48 PM
TAB K
19 records match search criteria.
Cause No. Last / Business Name Suf First Name MI Date Filed Litigant Type SID Court Case Description Case Status View Case
1986TA200081 MARTIN ROWLAND 02/28/86 DEFENDANT N/A 073 DELINQUENT TAXES DISPOSED
2006CI15329 MARTIN ROWLAND 10/13/06 OTHER N/A 057 INJUNCTION DISPOSED
2014CI07644 MARTIN JR ROWLAND 05/13/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
2014CI07644 MARTIN JR ROWLAND 07/14/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
2014CI07644 MARTIN ROWLAND 08/05/14 DEFENDANT N/A 285 OTHER CIVIL CASES DISPOSED
280403 MARTIN ROWLAND 01/27/03 PLAINTIFF N/A 005 APPEAL FROM J.P. COURTS PENDING
1995TA104007 MARTIN JR ROWLAND J. 12/13/95 DEFENDANT N/A 166 DELINQUENT TAXES DISPOSED
1999TA100884 MARTIN JR ROWLAND J. 04/01/99 DEFENDANT N/A 150 DELINQUENT TAXES DISPOSED
2001TA100481 MARTIN JR ROWLAND J. 02/20/01 DEFENDANT N/A 408 DELINQUENT TAXES DISPOSED
2001TA104071 MARTIN JR ROWLAND J. 11/06/01 DEFENDANT N/A 045 DELINQUENT TAXES DISPOSED
2003TA102385 MARTIN JR ROWLAND J. 06/18/03 DEFENDANT N/A 150 DELINQUENT TAXES DISPOSED
2004TA102802 MARTIN JR ROWLAND J. 06/22/04 DEFENDANT N/A 224 DELINQUENT TAXES DISPOSED
2005CI18113 MARTIN JR ROWLAND J. 11/14/05 PLAINTIFF N/A 073 DECLARATORY JUDGMENT DISPOSED
2005CI18113 MARTIN ROWLAND J. 12/12/05 PLAINTIFF N/A 073 DECLARATORY JUDGMENT DISPOSED
2009TA101454 MARTIN JR ROWLAND J. 04/16/09 DEFENDANT N/A 288 DELINQUENT TAXES DISPOSED
2010CI19099 MARTIN ROWLAND J. 11/15/10 PROPIA PERSONA N/A 150 OTHER TAX DISPOSED
2014TA100159 MARTIN JR ROWLAND J. 02/28/14 DEFENDANT N/A 166 DELINQUENT TAXES DISPOSED
2014TA100224 MARTIN JR ROWLAND J. 03/06/14 DEFENDANT N/A 045 DELINQUENT TAXES PENDING
11-E-0201038-01 MARTIN ROWLAND J. 01/21/03 PLAINTIFF N/A JP1 APPEAL FROM J.P. COURTS CLOSED
TAB L
TAMES
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COA Trial Court
Case Case Trial Court Appellate
Date Filed Style v. Case Case Trial Court
Number Type County Court
Number Number
285th
In re
Judicial
12/3/2014
04-14-00841-CV Rowland Mandamus 2014CI07644Bexar COA04
District
Martin
Court
Edward L.
285th
Bravenec
Rowland Judicial
7/8/2014
04-14-00483-CV and 1216 Interlocutory 2014-CI-07644
Bexar COA04
Martin, Jr. District
West
Court
Ave....
1 2 items in 1 pages
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The Online Membership Directory provides basic information about Attorneys licensed to practice in Texas. Attorney profile
information is provided as a public service by the State Bar of Texas as outlined in Section 81.115 of the Texas Government
Code. The information contained herein is provided "as is" with no warranty of any kind, express or implied. Neither the State
Bar of Texas, nor its Board of Directors, nor any employee thereof may be held responsible for the accuracy of the data. Much of
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1 of 1 10/21/15, 1:42 PM
PA Attorney Information | Pennsylvania Disciplinary Board http://www.padisciplinaryboard.org/look-up/pa-attorney-info.ph...
PA Attorney Information
Rowland J. Martin Jr.
PA Attorney ID: 52047
Current Status: Administrative Suspension
Date of Admission: 05/18/1988
Lawfirm:
Other Organization: Co-Counsel, Inc.
District: O
County: Out of State
APARTMENT 8-S
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PATERSON, NJ 07514
Tel: 973 523-4615
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1 ROWLAND J. MARTIN 2815116 1997 Suspended
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Registered Registration Number: 2815116
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ROWLAND J. MARTIN JR
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1 of 1 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm
Matter of Attorneys Who Are in Violation of Judiciary Law Section 468-a
2010 NY Slip Op 07468 [79 AD3d 81]
October 21, 2010
Per Curiam
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431.
As corrected through Wednesday, January 26, 2011
[*1]
In the Matter of Attorneys in Violation of Judiciary Law § 468-a,
Respondents. Departmental Disciplinary Committee for the First Judicial
Department, Petitioner.
First Department, October 21, 2010
APPEARANCES OF COUNSEL
Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York
City (Mady J. Edelstein of counsel), for petitioner.
No appearances for respondents.
{**79 AD3d at 81} OPINION OF THE COURT
Per Curiam.
Section 468-a of the Judiciary Law requires every resident and nonresident attorney
admitted to practice in the State of{**79 AD3d at 82} New York to file a biennial
registration statement with the administrative office of the courts. A biennial registration
fee must be paid at the time the statement is filed. This registration statement, which is
mailed every two years by the Office of Court Administration to every attorney so
1 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm
admitted, must be timely filed and the fee paid regardless of whether the attorney is
actually engaged in the practice of law in New York or elsewhere. Attorneys who certify to
the Chief Administrator of the Courts that they have retired from the practice of law are
exempt from paying the registration fee at the time the statement is filed. Subdivision (5)
of the statute provides further that "[n]oncompliance by an attorney with the provisions of
this section and the rules promulgated hereunder shall constitute conduct prejudicial to the
administration of justice and shall be referred to the appropriate appellate division of the
supreme court for disciplinary action."
Pursuant to this provision, petitioner Departmental Disciplinary Committee seeks an
order suspending from the practice of law certain attorneys (whose last name begins with
the letters L through Z) who are in violation of the statute, in that they have failed to file
the registration statement and pay the registration fee for one or more registration periods
after due purported notification. This is another in a series of motions to suspend attorneys
who have failed to file biennial registration statements with the Office of Court
Administration. This Court has previously held that failure to register or reregister, and
pay the biennial registration fee constitutes professional misconduct warranting discipline
(see Matter of Pierini, 21 AD3d 42 [2005]). Since 1997 this Court has granted similar
motions and suspended attorneys en masse for such failure to register or reregister, and
pay the registration fee pursuant to Judiciary Law § 468-a (see Matter of Attorneys in
Violation of Judiciary Law § 468-a, 257 AD2d 127 [1999]).
The attorneys in question have been duly notified of their noncompliance and given
an opportunity to cure their default. The Office of Court Administration mailed each of the
defaulting attorneys a biennial registration form to their last known home address, a
second notice to their last known business address, and a final notice to their home
address. Attorneys who remained in default following these three notices were referred to
the Disciplinary Committee. On October 31, 2008, this Court published notice in the New
York Law Journal that the Disciplinary Committee would institute an omnibus disciplinary
proceeding seeking immediate suspension from the practice of{**79 AD3d at 83} law
against those attorneys who did not cure their default by November 24, 2008. Thereafter, a
list of approximately 1700 attorneys who failed to submit satisfactory proof of registration
and payment of fees was forwarded to the Committee. The Committee then filed its
2 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm
motion for service by publication of the notice of petition to suspend.
Pursuant to the order of this Court entered May 27, 2010, which provided for service
of the petition to suspend by publication in the New York Law Journal for five consecutive
days, a list of the defaulting attorneys along with their last known business addresses or in
the absence of a business address, the home address of the defaulting attorney, was so
published commencing June 8, 2010. A notice was also posted on the Court's Web site.
The order further provided that attorneys on the default list may submit proof from the
Office of Court Administration that they are in compliance with all the registration
requirements (including payment of registration fees), [*2]and an explanation of their
failure to respond to previous notifications of default, within 30 days of the return date of
the notice of petition, or they would be subject to a further order of the Court immediately
suspending them from the practice of law in the State of New York.
The attorneys who remain in noncompliance with Judiciary Law § 468-a despite the
notification process described above are the subject of the Committee's instant motion to
suspend. No opposition has been filed.
Accordingly, due to the continued failure to comply with the statute, petitioner's
motion to suspend such attorneys shall be granted to the extent of suspending those
attorneys whose names are enumerated in the attached schedule from the practice of law in
the State of New York, effective immediately.
Tom, J.P., Andrias, Saxe, Friedman and Nardelli, JJ., concur.
Attorneys whose names are enumerated in the schedule attached to the opinion per
curiam suspended from the practice of law in the State of New York, effective
immediately, and until the further order of this Court, as indicated.
Oath
Name Address Dept.
Date
Karlin & Pimsler Inc.
Ladden, 205 Lexington Ave.
2/2/98 1
Andrew 6th Floor
New York, NY 10016
3 of 135 10/20/15, 12:46 PM
Matter of Attorneys Who Are in Violation of Judiciary Law Sec... http://www.nycourts.gov/reporter/3dseries/2010/2010_07468.htm
Michael David Mann Esq
Mann, 44 Broad St.
2/5/90 1
Michael David St 600 the Grant Building
Atlanta, GA 30303
Mao, 4F, No.3, Alle57, Lane 16, Shien-Yen Road
7/30/01 1
Lihuei Taipei, 117Taiwan
Department of Attorney General
Maranjian,
150 South Main St. 8/10/92 1
Emily
Providence, RI 2903
The Bronx Defenders
Marchesi,
890 Grant Ave. 1/22/01 1
Sarah Lockwood
Bronx, NY 10451
Datz & Goldberg
Markowitz,
1311 Spruce St. 8/23/79 1
Sayde Joy
Philadelphia, PA 19107
Marlow, 109 Atlantic St.
8/26/85 1
Tracy A. Stamford, CT 6901
Best Cellars Inc.
Marmet, 1120 Avenue of the Americas
2/3/86 1
Richard Arthur Suite 4106
New York, NY 10036
NYU Law School
Marotta,
40 Washington Sq. S 6/20/03 1
Florencia
New York, NY 10012
Diamond, Ruthman, Costello & Silberglitt
Marshall, 291 Broadway
2/4/87 2
Mariann Suite 1100
New York, NY 10007
Larry Scott Marso, Esq.
Marso, 41 West 74th St.
1/11/93 1
Larry Scott #5B
New York, NY 10023
39 E. 39th St.
Martin, Jr.,
#8-S 3/24/97 1
Rowland J.
Paterson, NJ 7514
City College of New York
Marx,
138th St. & Convent Ave. 8/4/97 1
Andrew Lawrence
New York, NY 10031
Stadard & Poors
Mason,
55 Water St. 4/26/95 2
M Scott
12 of 135 10/20/15, 12:46 PM
...,
Cause No. 2001-PC-1263 -
- . -........
I
I
I
I
IN THE MATTER OF ESTATE OF ) IN THE PROBATE fll``l 2 ? p,'f . ? I
42
______________________________ )
KING )
I
ADMINISTRATOR FOR ESTATE OF KING) NUMBER ONE .: I .
I
Petitioner ) I
v. )
RL_ I
I
) I
BEXAR COUNTY, ET AL ) I
Respondents, ) FOR BEXAR COUNTY, TEXAS I
FINAL SUPPLEMENTAL NOTICE OF APPEA.I..x . ~ ~:·
Notice is hereby given, pursuant to Tex. R. App. Pro 27.1 and subjJ ~
. t~ere ,.... liJ; ``
l 0
X N ;.?f,~
requested in Appellant's pending motion for abatement relief, that an appe~fr~robate'C``
the``· ~xru;``
0
No. 2001-PC-1263 is taken in the Texas Fourth Court of Appeals from
County Probate Court #1, dated June 29, 2015, and from administrative findings of factCIP!te~ ..
by the Probate Court on July 21, 2015. Appellant construes the events of June 29, 2015 and on
July 21,2015 as a manifestation of the Probate Court's intention to accord finality the dismissal
of Appellant's claims for relief, in that the fmal order grants the respondents' motion for a nunc
pro tunc dismissal order in lieu of the erroneously dated order on March 31. 2015, and in that
the administrative findings operate as a fmal response to Appellant's notice of late filing of
findings of fact and conclusions of law filed on July 10,2015. Appellant reserves special
exceptions to the actions taken on July 21, 2015 on jurisdictional and evidentiary grounds, and
reserves challenges to their legal insufficiency for presentation as part of his regular appeal.
Dated: July 27,2015 Respectfully Submitted,
f)tt~..
RowlandJ . M
1
' -
A CERTIFICATE OF SERVICE
I delivered a copy of this, "Final Supplemental Notice of Appeal," to Attorney Karen ~
2
•
CASE NUMBER 2015-CI-04779
ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 1501h JUDICIAL DISTRICT
BEXAR COUNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS
ORDER DENYING RESPONDENTS' MOTION TO DISQUALIFYING ROWLAND J.
MARTIN, JR., TO APPEAR PROSE FOR THE ESTATE OF JOHNNIE MAE KING
Be it remembered that on the $.o day of April, 20 15 came on to be heard
Respondent's Motion to Disqualify Rowland J. Martin, Jr., To Appear Pro Se for the Estate of
Johnnie Mae King. After considering the Motion and pleadings on file, as well as all of the
evidence and arguments of counsel for Respondents and Petitioner, the Court finds that said
Motion should be denied.
IT IS THEREFORE ORDERED that Respondents' Motion to Disqualify Rowland J.
Martin, Jr., To Appear Pro Se for the Estate of Johnnie Mae King. Is hereby, in all things,
denied.
SIGNED AND ENTERED this ~ day of April, 2015.
JUDGE PRESIDING
CASE NUMBER 2015-CI-04779
ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 150th JUDICIAL DISTRICT
BEXAR COUNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
:c-
INDEPENDENT SCHOOL DISTRICT § -o
Respondents § BEXAR COUNT ,TEgS ~
~ U1
-1
-< lJ
MOTION TO DISQUALIFY ROWLAND J. MARTIN, JR., TO PPEAR
PROSE FOR THE ESTATE OF JOHNNIE MAE KIN
w
.c
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Bexar County and file this Motion to Disqualify Rowland J. Martin, Jr. to
Appear Pro Se for the Estate of Johnnie Mae King and would respectfully show the Court the
following:
l.
Rowland I. Martin, Jr., previously qualified to serve as the Administrator of the Estate of
Johnnie Mae King and Bexar County believes Rowland J. Martin, Jr., continues to serve in that
capacity.
II.
The real property which is the basis of this case is alleged by the Petitioner to be the
property of the Estate of King, to which Rowland J. Martin alleges to be the Estate
Administrator. (Verified Consolidated Application for Statutory Bill of Review, para. 2).
III.
Bexar County believes and therefore assert that Rowland J. Martin, Jr., is not licensed to
practice law in the State ofTexas.
IV.
Rowland J. Martin, Jr. is not qualified by law to appear pro se for the Estate of Johnnie
Mae King in his representative capacity. Bexar County would show the Court that an Estate
Representative may not appear for the Estate pro se and therefore, Rowland J. Martin, Jr. , is
I
I
disqualified from appearing and representing the Estate of Johnnie Mae King in his pro se
capacity.
V.
Bexar County requests that this case be abated for thirty (30) days to afford Petitioner the
opportunity to retain qualified legal counsel to represent Petitioner.
WHEREFORE, PREMISES CONSIDERED, Bexar County prays that upon hearing of
this Motion, that Rowland J. Martin, Jr., be disqualified from representing the Estate of Johnnie
Mae King in his pro se capacity, and for such other and further relief, at law or in equity, to
which Taxing Authorities may show themselves justly entitled to receive.
Respectfully submitted,
LINEBARGER, GOGGAN, BLAIR & SAMPSON, L.P.
00
/
ATTORNEYS FOR RESPONDENT,
BEXAR COUNTY
CERTIFICATE OF CONFERENCE
The undersigned attorney of record for Bexar County certifies that he has attempted to
confer with Rowland J. Martin, Jr. prior to setting this Motion for hearing but has been unable to
successfully contact him. Therefore, this Motion is submitted to the Court for resolution.
Don Stecker
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Respondent's Motion to
Disqualify Rowland J. Martin, Jr., to Appear ProSe for the Estate of Johnnie Mae King has been
delivered pursuant to Texas Rule of Civil Procedure 21 a to the following:
Rowland J. Martin
PETITIONER
Savita Rai
Samuel Adams
Office of the City Attorney
City of San Antonio
401 S. Frio
San Antonio, Texas 78207
RESPONDENT, CITY OF SAN ANTONIO
I
I
on this the _ _ day of April, 20 15.
[
Don Stecker
CASE NUMBER 2015-CI-04779
ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING , §
Petitioner §
VS. §
§ 150th mDICIAL DISTRICT
BEXAR COlJNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS
ORDER SETTING MOTION TO DISQUALIFY ROWLAND J. MARTIN, JR., TO
APPEAR PRO SE FOR THE ESTATE OF JOHNNIE MAE KING
The Motion to Disqualify Rowland J. Martin, Jr. , to Appear Pro Se for the Estate of
Johnnie Mae King in the above styled and numbered cause is hereby set for hearing for the 30th
day of April, 2015, at 8:30 o'clock A.M. , in the Courtroom of the Presiding Judge of Bexar
County, Texas, Room 109, Bexar County Courthouse, San Antonio , Texas.
APR 1 5 2015
SIGNED on -----------------------------------
Cathleen M. Stryker
Presiding Judge
224th District Court
JUDGE PRESIDING
Bexar Appraisal Review Board 411 N Frio l San Antonio l Texas 78207 Telephone (210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009
The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board . 244 HENRY ST ,
#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR
7009 1410 0002 4744 6296
The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:
ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)
The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.
PROTESTED YEAR : 2006
VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $9,200
LAND AG!TIM VALUE: $0 TOTAL MARKET VALUE : $15,720
LAND HOMESTEAD VALUE: $6,520 TOTAL NEW ASSESSED VALUE: $15 ,720
LAND NON HOMESITE: $0
THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.
YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.
Signed 10/23/09.
/0 ~
``::tf~
George Ybarra, Chair
Appraisal Review Board
PACS:BO CHG
Bexar Appraisal Review Board 411 N Frio I San Antonio I Texas 78207 Telephone {210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009
The notice of KING JOHNNIE MAE EST OF OWNER :
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,
#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR
7009 1410 0002 4744 6296
The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented , the Board has made a
determination with a quorum present as to the following issues:
ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)
The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.
PROTESTED YEAR: 2007
VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $11 ,780
LAND AG/TIM VALUE: $0 TOTAL MARKET VALUE: $19,280
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $19,280
LAND NON HOMESITE: $0
THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.
YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.
Signed 10/23/09.
/0
AS/~[1~
w
George Ybarra, Chair
Appraisal Review Board
PACS :BO CHG
Bexar Appraisal Review Board 411 N Frio l San Antonio l Texas 78207 Telephone (21 0) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009
The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,
#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOTS
MARTIN ROWLAND J JR
7009 1410 0002 4744 6296
The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:
ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)
The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.
PROTESTED YEAR : 2008
VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $10,980
LAND AG!TIM VALUE: $0 TOTAL MARKET VALUE: $18,480
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $18,480
LAND NON HOMESITE: $0
THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.
YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.
Signed 10/23/09.
~11``
v ~·
George Ybarra, Chair
Appraisal Review Board
PACS:BO CHG
Bexar Appraisal Review Board 411 N Frio I San Antonio I Texas 78207 Telephone (210) 224-2432
ACCOUNT: 06686-000-0050
NOTICE OF ISSUANCE AND ORDER PROP ID: 381482
DETERMINING PROTESTING AND/OR
CORRECTING APPRAISAL RECORDS HEARING: 10/06/2009
The notice of KING JOHNNIE MAE EST OF OWNER:
Protesting the actions of the Bexar Appraisal KING JOHNNIE MAE EST OF
District was presented for hearing by the PARCEL ADDRESS:
Appraisal Review Board. 244 HENRY ST ,
#BWNCTVY PROPERTY DESCRIPTION:
2665567 NCB 6686 BLK LOT5
MARTIN ROWLAND J JR
7009 1410 0002 4744 6296
The Board delivered written notice of the hearing date, time and place to the protesting property owner. The
property owner and chief appraiser were given the opportunity to testify, present evidence and testimony. After
reviewing the Notice of Protest and after hearing the testimony and evidence presented, the Board has made a
determination with a quorum present as to the following issues:
ERROR AFFECTING LIABILITY (Sec 25.25C, Tax Code)
Value Over Market
The Board determined that the appraisal records are correct as to the errors alleged in the protest and therefore
ordered that the protest be denied and the applicable records not be changed as requested in the protest.
PROTESTED YEAR: 2009
VALUE REMAINS:
EXEMPTIONS: $ IMPROVEMENT VALUE: $10,620
LAND AG/TIM VALUE: $0 TOTAL MARKET VALUE: $18,120
LAND HOMESTEAD VALUE: $7,500 TOTAL NEW ASSESSED VALUE: $18,120
LAND NON HOMESITE: $0
THE APPRAISAL REVIEW BOARD HAS MADE A FINAL DECISION ON YOUR PROTEST. NO FURTHER
APPEAL TO THE APPRAISAL REVIEW BOARD IS PERMITTED.
YOU HAVE A RIGHT TO APPEAL THIS ORDER TO THE DISTRICT COURT WITHIN 60 DAYS OF THE DATE
YOU RECEIVED THIS NOTICE. IN CERTAIN CASES YOU MAY REQUEST BINDING ARBITRATION.
BINDING ARBITRATION MUST BE REQUESTED WITHIN 45 DAYS OF THE DATE YOU RECEIVED THIS
NOTICE. IF YOU DO APPEAL AND YOUR CASE IS PENDING, YOU MUST PAY THE AMOUNT OF TAXES
NOT IN DISPUTE OR THE AMOUNT OF TAXES DUE ON THE PROPERTY UNDER THE ARB ORDER,
WHICHEVER IS LOWER, TO EACH TAXING UNIT BEFORE TAXES FOR THE YEAR BECOME
DELINQUENT.
Signed 10/23/09.
4``
George Ybarra, Chair
Appraisal Review Board
PACS:BO CHG
Bexar CAD - Property Details Page 1 of2
Bexar CAD
Property Search Results> 381482 KING JOHNNIE MAE EST OF for Year 2010
Property
Account
Property ID: 381482 Legal Description: NCB 6686 BLK LOT 5
Geographic ID: 06686-000-0050 Agent Code:
Type: Real
Location
Address: 244 HENRY ST Mapsco : 615F2
Neighborhood: 26TH/ZARZAMORA Map ID:
Neighborhood CD: 57018
Owner
Name: KING JOHNNIE MAE EST OF Owner ID: 288459
Mailing Address: % ROWLAND J MARTIN JR %Ownership: 100.0000000000%
Exemptions:
Values
(+)Improvement Homesite Value: + $0
(+)Improvement Non-Homesite Value: + $0
(+)Land Homesite Value: + $0
(+)Land Non-Homesite Value: + $3,000 Ag I Timber Use Value
(+)Agricultural Market Valuation: + $0 $0
(+)Timber Market Valuation: + $0 $0
(=)Market Value: $3 ,000
(-) Ag or Timber Use Value Reduction: - $0
(=)Appraised Value: $3,000
(-) HS Cap: $0
(=)Assessed Value: $3 ,000
Taxing Jurisdiction
Owner: KING JOHNNIE MAE EST OF
% Ownership: 100.0000000000%
Total Value: $3 ,000
Entity Description Tax Rate Appraised Value Taxable Value Estimated Tax
06 BEXAR CO RD & FLOOD 0.030679 $3 ,000 $3,000 $0.92
08 SA RIVER AUTH 0.015951 $3,000 $3,000 $0.48
09 ALAMO COM COLLEGE 0.135855 $3,000 $3,000 $4.08
10 UN IV HEALTH SYSTEM 0.266235 $3,000 $3,000 $7 .99
11 BEXAR COUNTY 0.296187 $3 ,000 $3,000 $8 .89
21 CITY OF SAN ANTONIO 0.565690 $3 ,000 $3,000 $16.97
57 SAN ANTONIO lSD 1.249700 $3,000 $3 ,000 $37.49
CAD BEXAR APPRAISAL 0.000000 $3,000 $3,000 $0.00
DISTRICT
Total Tax Rate: 2.560297
Taxes w/Current Exemptions: $76 .81
http://www.bcad.org/ClientDB/Property.aspx?prop_id=381482 8/9/20 10
Bexar CAD- Property Details Page 2 of2
Taxes w/o Exemptions: $76 .81
Improvement I Building
No improvements exist for this property.
Land
# Type Description Acres Sqft Eft Front Eft Depth Market Value Prod. Value
1 VLR Vacant Regu lar Lot 0.0459 2000.00 25.00 80.00 $3,000 $0
Roll Value History
Year Improvements Land Market Ag Valuation Appraised HS Cap Assessed
2011 N/A N/A N/A N/A N/A N/A
2010 $0 $3,000 0 3,000 $0 $3,000
2009 $10,620 $7,500 0 18,120 $0 $18,120
2008 $10,980 $7,500 0 18,480 $0 $18,480
2007 $11,780 $7,500 0 19 ,280 $0 $19 ,280
2006 $9,200 $6,520 0 15,720 $0 $15 ,720
Deed History- (Last 3 Deed Transactions)
# Deed Date Type Description Grantor Grantee Volume Page
2011 data current as of Aug 9 2010 1:42AM.
2010 and prior year data current as of Jul 18 2010 2:39PM
For property information, contact (210) 242-2432 or (210) 224-8511 or email.
For website information, contact (210) 242-2500.
Database last updated on: 8/9/2010 1:42 © 2010 True Automation, Inc. All Rights
Website version : 1.2.2.2
AM Reserved. Privacy Notice
This site only supports Internet Explorer 6+, Netscape 7+ and Firefox 1.5+.
http://www.bcad.org/ClientDB/Property.aspx?prop_id=381482 8/9/2010
LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
ATIORNEYS AT LAW
711 NAVARRO, SUITE 300
SAN ANTONIO, TX 78205
(210) 225-6763
(21 0) 225-6410 - Fax
NOTICE OF INTENT TO ENFORCE JUDGMENT
August 6, 20 10
Rowland J. Martin, Jr.
RE: Suit No. 2004-TAl-02802; Account No. 066860000050
Dear Mr./Ms. Martin, Jr.:
This law firm represents Bexar County in the collection of delinquent property taxes. A
judgment was entered previously in favor of Bexar County against OPAL GILLIAM, ET AL in the
above referenced lawsuit. Before enforcing the judgment, Bexar County has directed that the property
owners be afforded the opportunity to pay the amounts owed.
This is your final notice that all amounts secured by the judgment, including court costs, must
be paid in order to prevent further action against this property. Please contact Donna B. Stein at (21 0)
225 -4422 within ten days from the date of this letter to confirm the amounts due and to make
arrangements to pay. If not contacted in ten days, we will proceed toward the immediate
execution of the judgment. At that time, all non-exempt property will be seized and sold at
public auction to the highest bidder.
We strongly urge that you give this matter your immediate attention.
Sincerely,
LINEBARGER GOGGAN
BLAIR & SAMPSON, LLP
c``r~
Cristina Gonzalez
Attorney at Law
CG/dbs
Esta correspondencia se trata de sus impuestos y Ia posibilidad de perder su propiedad. Si usted no
puede leer esta carta, por favor llame a (21 0) 225-4422 y alguen le podra ayudar.
LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
ATTORNEYS AT LAW
711 NAVARRO, SUITE 300
SAN ANTONIO, TX 78205
PHONE: (210) 362-9000
FAX: (210) 225-6410
August 6, 2010
T4 -PO-S899
11111111111111111111111111111111 11111 11111111111111111111111
BASE AMOUNT: $1,312 .57
INTEREST $546.90
#BWNGWXX TOTAL DUE $1,859.47
#10290981259#
KING JOHNNIE MAE EST OF LEGAL DESCRIPTION: NCB
%ROWLAND J MARTIN JR 6686 BLK LOT 5
11 ••• 11 •• 1••• 1.111 ••• 1••• 1••• 11 ••• 11 ••• 11.1 •• 1.1.1 •••• 11 •• 11.1
IUE: 0668600000500
Code Compliance Charges
Dear City Resident:
Our law firm has been retained to institute forced collection proceedings to collect the above-referenced amounts owed to the City of
San Antonio.
The City of San Antonio records indicate that you remain in default and currently owe the City $1,859 A 7 for the charges and interest
on the above referenced property_
These amounts may already be included in a delinquent tax suit wherein we will seek a court judgment aganist you which may
adversely affect your credit rating and/or create a cloud upon the title of any real property you own. Additional costs will be incurred
as the suit progresses.
If you believe that you do not owe this charge, want to dispute the validity of the charge, or if you do not own the property, please
WRITE a detailed letter and supply the ACCOUNT NUMBER to the following address:
CITY OF SAN ANTONIO
FINANCE DEPARTMENT
ATTN : CODE COMPLIANCE
P.O. BOX 839975
SAN ANTONIO, TX 78283-3975
If you prefer, please call (210) 207-8690 or (210) 207-8746.
Please note that there is no grace period; you may already have been sued. If you choose to avoid further costs by paying the total
amount due immediately, please return the enclosed statement along with your check. Thank you for your cooperation.
Sincerely,
LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
c``r~
Cristina Gonzalez
Attorney at Law
ESTA CORRESPONDENCIA SE TRATA DE LA CONFORMIDAD DE CODIGOS Y LA POSIBILIDAD DE UNA DE MAN DA ACE RCA DE
SU PROPIEDAD. SI USTED DESEA AS ISTENCIA POR UNA PERSONA QUE HABLA ESPANOL, LLAME USTED A (21 0) 207-8677 Y
UNA PERSONA LE A YUDARA.
·KETlJKN THIS STATI<;MI<;NT WITH YUlJK YAYMI<;NT
MAKE YOUR CHECK, MONEY ORDER
OR CASHIER'S CHECK PAY ABLE TO:
CITY OF SAN ANTONIO
MAKE SURE THE ADDRESS APPEARS IN THE WINDOW ENVELOPE WHEN MAILING PAYMENT TO:
CITY OF SAN ANTONIO
FINANCE DEPARTMENT
ATTN: CODE COMPLIANCE
P.O. BOX 839975
SAN ANTONIO, TEXAS 78283-3975
KING JOHNNIE MAE EST OF ACCOUNT NUMBER:
%ROWLAND J MARTIN JR 0668600000500
LEGAL DESCRIPTION:
NCB 6686 BLK LOT 5
Code Compliance Charges
INTEREST AS OF AUGUST 2010
SERVICE DATE ' . ' TYPE OF SERVICE AMOUNT DUE
July 20, 2006 Demolition 1,859.47
PAY THIS AMOUNT
This amount is valid through August 31, 2010 only.
If you pay after that date, please contact the Finance Department at (21 0) 207-8690 for the correct amount due.
.. ,
Seli'qwick CMS
·~
P0Box 14499
Lexington, KY 40512-4499 · . Sedgwick CMS
Sed9'Yi<::k Claims Maoagern<;nl Services, Inc.
Phone: (210)332-1500 Fax: (210)332-1590 -· ·· ·
December 17, 2009
Rowland Martin, Jr.
.;
Re: Our Client:
Claimant:
Date of Loss:
,.. ·--.,..::
Dear Mr. Martin:
.' ~·
Sedgwick CMS is a third-party clai!JlS ad~strator retained by the .City of San Antonio
to handk its · claims. ·.As such, 'Ye haye .investigated the facts surrounding your claim
referenced above. · ·~ "' ·
Municipalities in Texas are . immune from liability ex~pt when that immunity is
expressly waived by statute. -· ~ this particular. claim, our _investigation revealed that no
such waiver of immumty applies. The inveS'tigation. re:Veals the City of San · Antonio
mailed proper notices to the 'oWn.ers.prior to ihe dimo~ti``ofthe property at 244 Henry
Street. _; · i: \. , ,., · · '/ ~;~ .~ ~ : ·
Accordingly, we cannot r~commend payment ofy~ur ~laim..... ..;;,_·
~
-~ ·.'
Sincerely,
Mario Martinez
Claims Examiner Ill
210-332-1633
·..· .
' '·
12/17/2009 300903166740001
. . 562009121701906
,...~ '• ~
•
• ...J:• ~
2015 OCT Ilt P l*: 4b
Cause No. 2001-PC-1263
IN THE MATTER OF THE ESTATE OF IN THE PROBATE COUR-=F · ~;;-;-;·
, ._ < '
-::;.-- --
1
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:
GRANTOR: Estate of Johnnie Mae King
GRANTEE: Rowland J_ Martin, Jr., Independent Administrator for the Estate of
Johnnie Mae King
MAILING ADDRESS:
PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial
proceedings to the Class 2 lien that is hereby declared pursuant to
Estates Code Section 355.066(b), in consideration for (1) services
rendered and in satisfaction of related 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
1
was vacated by the 150 h District Court and the 2241h District Court in
2013; and (3) for the expenditure of in kind resources from the Grantees
individual estate in the amount 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 1501h 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 of the Johnnie Mae King Trust; that he
incurred expenses for the benefit of the decedent during the last illness after the assets of the 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 a benefactor 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 of the latter expenses, Grantee qualifies
as a creditor 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 , in San Antonio, Texas,
is legally described as "NCB 2095 BLK 20 LOT 35 E FT OF 14 & SW TRI OF
15".
1
EXCEPTIONS TO CONVEYANCES AND WARRANTIES:
1. The lien is recorded by the power vested in Grantee by the Probate Court as an Independent
Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit in
the amount of $147,000 and judicial review by courts with probate jurisdiction in due course.
2. Out of an abundance of caution to enable satisfaction of contingent liabilities against the Estate
of King, Grantee has made a concurrent assignment of lien interests to implement the indemnification
obligations set forth in the Heirship Settlement Agreement filed in Probate Case No. 2001-PC-1263. In
order to honor and comply with Heirship Agreement indemnification obligations owed to the successors
in interest ofthe late Opal Gilliam, beloved daughter of Johnnie Mae King, it is declared that the Estate
of Johnnie Mae King is a beneficiary of the third party purchase money lien claim recorded on October
14, 2015 by Rowland J. Martin in his individual capacity against the property commonly known as 1216
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 of Johnnie Mae King is also made a
beneficiary of the express contractual exceptions to the conveyance in the first deed of trust granted by
Moroco Ventures, LLC on October 31, 2003 which extends to /fall rights, obligations, and other matters
emanating from and existing by reason of the ... operation of any governmental district, agency or
authority," Bexar County Deed Records, Vol. 10406 Page 1607.
3. In accordance with contractual exceptions for governmental matters, Grantee expressly
disclaims liability for the recording of liens and notices of lis pendens against the property known as
1216 West Ave. in San Antonio, Texas, and asserts that the exceptions recorded herein supersede the lis
pendens expunction order which was entered by the Probate Court on March 19, 2014, and which was
further referenced in the decision of the Texas 4th District Court Of Appeals in Martin v. Bravenec, et of,
Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.- San Antonio, rehearing denied June 8, 2015).
3. Grantee also disclaims liability for the recording of liens and not ices of lis pendens under
authority of the decision of the U.S. Court of Appeals for the Fifth Circuit in Martin v. Brave nee, et of,
Case No. 14-50093 {5 1h Cir., judgment filed October 2, 2015), wherein the court vacated the order of the
U.S. District Court in Case No. SA 11-CV-0414 dated December 27, 2013.
Dated: October 14, 2015
R``~ ·
As Administrator For
The Estate of Johnnie Mae King
STATE OF TEXAS )
COUNTY OF BEXAR )
This instrument was acknowledged before me on the 14th day of October 2015, by Rowland J.
Martin in his capacity as Administrator for the Estate of Johnnie Mae King.
``
2
CASE NUMBER 2015-CI-04779
ADMINISTRATOR FOR THE ESTATE § IN THE DISTRICT COURT
OF KING, §
Petitioner §
VS. §
§ 150th JUDICIAL DISTRICT
BEXAR COUNTY, CITY OF SAN §
ANTONIO AND SAN ANTONIO §
INDEPENDENT SCHOOL DISTRICT §
Respondents § BEXAR COUNTY, TEXAS
. !ffiSPO~DEN_'['_§_Q;RIGIN'_~L ANSWER,
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Bexar County, one of the Respondents in the above styled and numbered
cause, and reservii1g the right to file other and further pleadings, exceptions, challenges to
jurisdiction and denials, files this its Original Answer to Petitioner's Verified Consolidated
Application for Statutory Bill of Review. In support thereof, said Respondent would respectfully
show unto the Court as follows:
I.
GENERAL DENIAL
Subject to, and without waiver of any Plea to the Jurisdiction which may be set forth in
this case, Bexar County denies each and every, all and singular, the allegations contained in
Petitioner's Petition. Such allegations are not true, either in whole or in part, and said
Respondent demands strict proof thereof, along with all statutory prerequisites to any such cause
of action.
II.
AFFIRMATIVE DEFENSES
Pleading further by way of affirmative defense, Bexar County would specifically raise
the defense of res judicata.
1
r
Pleading further by way of affirmative defense, Bexar County would specifically state
that it is a political subdivision and governmental entity of the State of Texas, and, without
waiving any of the privileges, defenses and/or immunities pled herein, Bexar County asserts all
of the rights and privileges associated with its status as a governmental entity, including
sovereign immunity and governmental immunity from all claims alleged by Petitioner.
Pleading further by way of affirmative defense, if such is necessary, and without waiving
any of the privileges, defenses and/or immunities pled herein, Bexar County asserts sovereign
immunity and governmental immunity from all damages, actual or exemplary, and further asserts
sovereign immunity and governmental immunity from costs and attorneys' fees.
Pleading further by way of affirmative defense, if such is necessary, and without waiving
any of the privileges, defenses and/or immunities pled herein, Bexar County specifically asserts
it has not waived or excused any defenses to Petitioner's allegations and/or causes of action and
demand strict proof of all condition precedents to Petitioner maintaining this cause of action.
WHEREFORE, PREMISES CONSIDERED, Respondent, Bexar County prays that the
Court deny the relief sought by Petitioner, enter Judgment in favor of Respondent, and grant
their costs of court, and for all such further relief to which they prove to be entitled.
Respectfully submitted,
LINEBARGER, GOGGAN, BLAIR & SAMPSON, L.P.
Lilia Gibs 006 0)
L1 . 1 son@LGBS.com
Brad Balderrama (SBN: 24040464)
Brad.Balerrama@LGBS.com
Don Stecker (SBN: 19095300)
Don.Stecker@LGBS .com
ATTORNEYS FOR RESPONDENT,
BEXAR COUNTY
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Respondent's Original
Answer has been delivered pursuant to Texas Rule of Civil Procedure 21a to the following:
Rowland J. Martin
PETITIONER
Savita Rai
Samuel Adams
Office of the City Attorney
City of San Antonio
401 S. Frio
San Antonio, Texas 78207
RESPONDENT, CITY OF SAN ANTONIO
on this the ~day of April, 2015.
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