in the Estate of Johnnie Mae King

Opinion

Case No. 04-15-00271-CV

IN THE MATTER OF THE ) IN THE COURT OF APPEALS _ ESTATE OF JOHHNIE MAE KING ) K

ROWLAND J.MARTIN ) ° Appellant ) FOR THE FOURTH DIS^^ Zl ) t3 _ tn -^^r- i) - C 12 —""'O * > * ) G ro —<7? BEXAR COUNTY, et al. ) n r-1 •j' CD >• Appellees ) BEXAR COUNTY, TEXAS 5

APPELLANT'S UNOPPOSED MOTION TO ABATE AND FOR LEAVE TO FILE SECOND AMENDED BRIEF

TO THE HONORABLE FOURTH DISTRICT COURT OF APPEALS:

NOW COMES Appellant, Rowland J. Martin, Administrator for the Estate of King, and

files this, his "Appellant's Unopposed Motion To Abate And For LeaveTo File Second

Amended Brief," requesting theCourt to abate an issue about Attorney Edward Bravenec and his

firm to allow ancillary proceedings andfor leave to amend cite additional authority on the need

forcontinued administration in relation to claims of liability asserted against him, in support of

which the following is shown:

STATEMENT OF THE CASE

Appellant moves the Court to abate proceedings until ftorther notice and for leave to

amend on an issue relating to whether theTexas Supreme Court'sholding inSanAntonio Area

Foundation v. Lang, 2000 WL 1675984 (Tex. 2000) supports a claim for liability against

Attorney Edward Bravenec. See legal authority and lien declarations in APPENDIX. The

requested abatement aids theCourt'ssupervisory jurisdiction to expedite a resolution of the

controversy with the Bexar County Appraisal Authorities, and is permissible according to the

law of the case doctrine, and promotes judicial economy by minimizing unnecessary expenditures of resources by the Court and the interested parties in Case No. 04-15-00271-CV.

Appellant has diligently conferred with opposing counsel for the Bexar County appraisal

authorities and has been informed that there is no opposition to the motion insofar as it pertains

to a claim for liability for trespass to real chattels by Bravenec and his firm. The primary effect

of the proposed abatement is to afford the parties an opportunity to supplement the record in the

Probate Court and in ancillary proceedings with an eye towards exploring alternatives for a

voluntary settlement of competing claims. Ex parte Shaffer, 649 S.W.2d 300 (Tex. 1983)

(vacating prior restraints abridging pro se administrator's fimdamental rights).

THE LAW OF THE CASE DOCTRINE

The law of the case doctrine has been defined by the Texas Supreme Court as that

principle under which questions of law decided on appeal to a court of last resort will govern the

case throughout its subsequent stages, but does not absolutely bar reconsideration of the same

issue on a subsequent appeal after a party amends his pleadings and adds a new cause of action.

Barranza Family Partnership v. Levitas, Case No. 13-07-00470-CV, 2009 Tex. App. LEXIS

1707 (Tex. App. - Corpus Christi, 2009, pet. den'd) (applying law of the case doctrine to uphold

estate administrator's right of re-entry); cf., Martin v. Bravenec, et al. Case No. 04-14-00483-

CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June 8,2015). On the

evolving facts of this case, it confers upon Appellant an absolute privilege to engage in judicial

communications concerning his direct interest in the subject property. As indicated by the

materials attached, this second appeal involving issues about Edward Bravenec involves an

intervening change in a prior judgment issued by the U.S. Court of Appeals for the Fifth Circuit,

an intervening lien declaration, and a trespass to chattel issue that did not come before the Court

in the first appeal. See e.g., "Third Party Purchase Money Lien Declaration" citing Bexar County Deed Records, Vol. 10406 Page 1607 (describing the subject property as "Lots 1,2, and

3, Block 50, new City Block 8806, LOS ANGELES HEIGHTS").

It is evidently permissible in the current state of the record for the parties to supplement

the record of proceedings in the Probate Court and in the affected ancillary courts to reflect new

developments. Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597,600 (Tex. App.~San

Antonio 1996, writ denied) (absolute privilege for lis pendens filing); McKaskey v. McCall, 236

S.W. 432 (Tex. App. - El Paso 1920) (lis pendens expunction on defective rationale is

fundamental error). Given the current state of the record, Appellant's lien declaration constitutes

an authorized communication relating to his property interests in the subject property of the

dispute with Bravenec.' The declaration operates in furtherance of ongoing proceedings in Case 15-0541 on the Texas Supreme Court, Case No. 04-15-00271-CV in this Court and in Case No.

14-50093 in the Fifth Circuit, as well as other on-going proceedings in Probate Case No. 2001-

PC-1263 in Bexar County Probate Court #1, Case No. 2014-CI-07644 in the 285"' District Court, and Case No. 2015-CI-04779 in the 150th District Court, respectively. As to all the above

referenced proceedings. Appellant asserts that he is the beneficiary of an absolute privilege under

Chale C3arza Investments, Id., that his lien was attached to real property encumbered by a

security interest granted in expectation of legal services for the benefit of the King estate. Archer

V. Griffith, 390 S.W. 735 (Tex. 1965), and that his continuing lien interests in the subject

property is not governed by the collateral interest doctrine followed in Flores v. Haberman, 915

S.W.2d 477,478 (Tex. 1995) (per curiam) (orig. proceeding).

' See also, Barras v. Barras, 396 S.W.3d 154 (Tex. App. 2013), reh'g overruled (Apr. 11,2013), review denied (Aug. 30,2013) (purchase money claim); Long Beach Mortgage Companyv. Evans, 284 S.W.3d 406 (Tex.App.-Dallas 2009, cert denied) (awarding property to lis pendent claimant with purchase money interest); Cohrs v. Scott, 338 S.W. 2d 127,130 (Tex. 1960) (payment of purchase money for acquisition of land by another supports remedy of resulting trust); and Johnson v. Wood, 157 S.W. 2d 146 (Tex. 1941). ARGUMENT AND AUTHORITIES

A. SAAF Supports The Conclusion That The Chose Of Action Embodied By Probate Case # 2001-PC-1263, And The Purchase Money Lien Interest Expended inadvertently For The Benefit Of The Estate, Are Real Chattel Interests That Were Subjected To Interference By Bravenec's Unilateral Abandonment Of The Probate Case In 2005.

One of several reasons there is a need for proceedings in the probate court results from

interference with estate administration that began during the attorney client relationship with

against Bravenec and his firm, in re Estate of Vaidez, 406 S.W.3d 228,233 (Tex. App.—San

Antonio 2013, pet. denied); Omnibus int'i, inc. v. AT & T, inc.. Ill S.W.3d 818, 826 (Tex.App.-

Dallas 2003, pet. granted, remanded by agreement) (trespass to chattels case). The Court said in

Vaidez that the elements of action for trespass to chattel are "(1) that an interference with one's

property or property rights occurred; (2) such interference was intentional and caused damage;

and (3) the interference was conducted with neither just cause nor legal excuse." id. Appellant

submits that the law applied in SAAF, and by the Fifth Circuit appeal in Martin v. Bravenec, et

ai, Case No. 14-50093,2015 WL 5752439 (5th Cir, October 2,2015), and in DTND Sierra

Investments v. HSBD Bank U.S.A., Case No. 14-51142,2015 WL 5332725 (5th Cir., 2015),

substantiate the legal basis for the proposed abatement and remand.

In SAAF, the Texas Supreme Court notes that "[t]he Probate Code defines personal

property as 'interests in goods, money, choses in action, evidence of debts, and chattels real' ...

Promissory notes, net-profit agreements, and cash are personal property, not real property." id.

(citing Tex. Probate Code § 58(c) (Vemon Supp. 1999)). Appellant asserts that Probate Case No.

2001-PC-1263 is a chose in action of which he is the equitable owner, and that his lien

declaration and perfected notice of lis pendens encumbering the property known as 1216 West

Ave., in San Antonio Texas are evidence of debt in the nature of a promissory note. In this regard, SAAF substantiates a need for administration to prosecute claims for tort liabilityand

turnover relief against Bravenec and his contracting parties.

In SAAF, the Texas Supreme Court construedSection 58(c) for the first time in a case

where a Testatrix devised certain real property to a niece and nephew, and where the the probate

court initially ruled that assets related to that real property, such as promissory notes, collections,

and net profit interests, were not encompassed by the term "real property" and thus they passed

to the residuary beneficiary. The probate court refused to admit extrinsic evidence showing that

Testatrix thought of the land, the notes, and the profits as one "investment package" which she

meant to pass by the devise to Niece and Nephew. Section 58 (c) stated in pertinent part as

follows: "A devise of real property does not include any personal property located on or

associated with the real property or any contents of personal property located on the real property

unless the will directs that the personal property or contents are included in the devise." Tex.

Probate Code § 58(c) (Vemon Supp. 1999).

On appeal, this court reversed the probatecourt in Langv. San Antonio Area Foundation,

5 S.W.3d 738 (Tex. App.—San Antonio 1999), and held instead that the probate court should

have considered the extrinsic evidence because the evidence created a fact issue regarding

Testatrix's intent. However, the Supreme Court of Texas reversed in a unanimous opinion and

reinstated the probate court's judgment in favor of the residuary beneficiary. The Supreme Court

recognized that the term "real property" has a settled legal meaning and that a reviewing court

cannot look beyond the terms of the will to find Testatrix's intent. The SAAFdecision implies

that a duty exists on the part of counsel to oppose a cloud on title to real property of an estate

where the plaintiff tax authorities have designated personal property owners as defendants in a

suit for collection of ad valorem taxes assessed against real property of a pending estate. B. SAAF Supports An Attribution Of Intent To Harm Real Chattel interests Stemming From Bravenec's Retention Of in Kind Compensation in Excess Of The Quantum Merit Value Of His Services And His Subsequent Prosecution Of A Motion To Expunge Lis Pendens That Was Adverse To The Estate He Once Represented.

Regarding the second element. Section 58 resolves the definition of real property in

favor of a conclusion of law that personal property is categorically excluded from the delegation

of authority to impose ad valorem taxes on real property. Bravenec's original undocumented

withdrawal from the Probate Case supports an attribution of intentionality and causation of harm.

At common law, the rule was that "one who intentionally intermeddles with another's chattel is

subject to liability ... if his intermeddling is harmful to the possessor's materially valuable

interest in the value of the chattel, or if the possessor is deprived of the use of the chattel for a

substantial time, or some other legally protected interests of the possessor is affected."

Restatement (Second) Torts, p. 218. It is now recognized that trespass to chattels is one of the

"other legal theories might be employed concerning the misappropriation of or interference with

intangibles." Thrifty-Tel, Inc., v. Bezenek, 46 Gal. App. 4th 1559,1567 (Cal.).

Appellant submits that Bravenec caused intentional harmful interference to the King

estate and to the Appellant on two grounds. Bravenec recklessly endangered the estate's chose in

action in Probate Case No. 2001-PC-1263 through the failure of his firm to challenge the tax

authorities' standing to prosecute tax suits against heirs of a pending estate from 2003 to 2005

and his abrupt abandonment of the attorney client relationship in October 2005. He has also

recklessly endangered Appellant's purchase money interests by converting security interests that

were granted in expectation of legal service into unearned compensation in a post-petition

foreclosure transaction in October of 2006, and by subverting Appellant's absolute privilege to

recover the subject property through lis pendens expunction proceedings directed at the estate. For the same reason that extrinsic evidence was disallowed in SAAF as offered to

demonstrate that a gift of real property includes personal property, extrinsic evidence cannot

enable him to avoid culpability for his failure to abate clouds on title to estate property resulting

from unopposed tax suits against the heirs:

Real property is defined as "land, and generally whatever is erected or growing upon or affixed to land." Chastain v. Koonce, 700 S.W.2d 579,584 (Tex.1985) (Gonzalez, J., concurring) (quoting black's Law Dictionary 1096 (5th ed.l979)). The Probate Code defines "real property" as including "estates and interests in land, corporeal or incorporeal, legal or equitable, other than chattels real." Tex.Prob.Code § 3(dd). Personal property is defined broadly to include everything that is subject to ownership not falling under the definition of real estate. Erwin v. Steele, 228 S.W.2d 882, 885 (Tex.Civ.App.-Dallas 1950, writ refd n.r.e.); see also black's Law Dictionary 1233 (7th ed.l999)... Thus, because real property has a settled legal meaning, we need not look beyond the terms of the will to find Ruth's intent.

This conclusion is supported by section 58(c) of the Probate Code, which mandates that "[a] devise of real property does not include any personal property located on or associated with the real property, unless the will directs that the personal property . [is] included in the devise." Tex. Prob.Code § 58(c). Because the real estate lien notes and net-profit agreements ... are personal property, they would not pass with the devise of real property unless [the Testatrix] otherwise specifically directed in her will...

SAAF, Id. (bracketed language added). In short,SAAF implies that the tax litigation was coram

non judice because "the settled meaning of real property" and "the directions of the Probate

Code" remain constant regardless of extrinsic evidence about the circumstances of the estate. Id.

Further, the Supreme Court specifically noted that, prior to San Antonio Area

Foundation, Section 58 of the Probate Court had not been previously construed, and that

"Respected legal commentators ... advise that 'to the extent that either a statute or established

rule of decision attributes a certain meaning to particular words, that meaning must be accepted.'

A. Leopold G. Beyer, 10 Texas Law of Wills Practice, § 47.3, p. 209-10 (Texas Practice Series,

West 1992) (quoting from T. Atkinson, Law of Wills § 146 (2d ed. 1953))." Id. Here as in SAAF, the statutory provision that took effecton January 1, 2014 attributes a meaning to the term

real property which renders Bravenec and his firm putativeiy liable for acts of reckless

endangerment that are "inconsistent with long-standing Texas jurisprudence." SAAF, Id.

C. A Need For Administration Exists So The Probate Court And Affected Ancillary Courts Can Inquire into Whether Liability Should Be imposed For The interferences With Estate Administration That Bravenec And Those in Privity With Him Have Caused.

Regarding the third element, Appellant relies on the attached material to support his

denial that there is any just cause or legal excuse for Bravenec to evade liability much less to

retain ownership of real property which he took subject to a second lien chain of title that is

executory in nature, Johnson, id., and in contemplation of legal services to the client estate and

its administrator that he never performed. Archer, id.

Applying governing law to the factor of just cause, the law of the case doctrine in

Barranza authorizes the Court to disregard its past interlocutory findings about the probate court

proceedings in light of intervening changes in the goveming law reflected by the Fifth Circuit's

findings in Martin v. Braevnec, atai, Case No. 14-50093 and DTND Sierra investments, id.^ On October 2,2015, the Fifth Circuit issued a Memorandum Opinion that finds Bravenec at fault for

prosecuting a federal court motion for contempt that was previously referenced in Case No. 04-

14-00483-CV and concludes as a matter of law that the federal district court abused its discretion

and violated due process requirements. As a general matter, the Fifth Circuit established that the

two federal court lis pendens filings cited in Bravenec's tort liability case operated in furtherance

^ TheCourt has previously stated, for example, that"[w]ith regard to the occurrence of an actof interference, the pleadings alleged Martin had "admitted, in open court, his intention to obstruct [the] sale of the [PJroperty," and evidence was introduced at the hearing of a series of willful, intentional acts taken by Martin to interfere with the appellees' ability to sell the Property, includingthe filing of at least four prior lis pendens that were cancelled and expunged by various courts. The evidence also included the Perfected Notice of Lis Pendens filed by Martin in the underlying cause in response to which Bravenec filed his motion for contempt alleging Martin had violated the trial court's temporary restraining order ..." Memorandum Opinion in Case No, -04-14-00483-CV, Id.

8 on on-going judicial proceedings at the time of their filing. The Fifth Circuit concluded that the

Rule 11 sanctions imposed by the federal district court constituted an abuse of discretion and

deprived due process as applied to punish the filing of lis pendens notices. Further, the Fifth

Circuit's evidentiary record on the second issue, concludes that "Bravenec did not comply with

[Rule 11 's] safe harbor provision" due to his reliance on a pleading that was itself imsupported,

substantiates the contrary inference that Bravenec's tortious interference case essentially

continues a course of action involving de facto abuses of process imder Rule 11 in the federal

district court. Memorandum Opinion in Case No. 14-50093, at p. 4 - 6.

DTND Sierra Investments, Id. affirms sanctions for meritless litigation in a fact situation

that directly parallels tactics that Bravenec used to the detriment of the Appellant and the estate

in 2006. The Fifth Circuit described the meritless litigation in DTND as follows:

DTND engaged in a scheme to delay foreclosures by petitioning for temporary restraining orders in state court and dismissing those claims upon removal. DTND was also party to four materially identical actions that were dismissed on the merits. This shows that DTND had knowledge its claims were meritless but nevertheless filed to delay foreclosure. The district court's findings that DTND's claims were meritless and intended to harass or delay were reasonable and proper.

Id. atp. 5. Here, it isundisputed that Bravenec petitioned the 51^ District Court for a temporary restraining order against first lien servicer Reliant Financial, Inc. in a state court trespass to try

title case. He foreclosed an inferior second lien on terms that hindered Appellant's interests both

as a purchase money creditor and as a beneficiary of an imdischarged attorney client relationship,

He then promptly dismissed the trespass to title claim upon securing a release of liability from

defendant Reliant Financial, Inc., before Appellant could intervene to prosecute requests for

reconsideration. Bravenec later participated in at least one materially similar pattern of conduct

in which this Court upheld sanctions in 2013. Bravenec v. Flores, Case No. 04-11-00444-CV

2013 WL 1149418 (Tex. App. - San Antonio 2013) (improper purpose). This pattern of events shows that Bravenec knew or should have known before the end of 2013 that his litigation tactics

were improper. Nonetheless, he moved the federal district court to cite Appellant for criminal

contempt and incarceration. Upon failing to accomplish his improper purpose in that forum, he

then moved the Probate Court for expunction relief citing the outcome of a judgment the Fifth

Circuit has now vacated. Unlike the offending attorneys in DTND, Bravenec was Judicially

undischarged as an attorney of record in the probate case at all times until March 19,2014 and

this omission repeatedly disrupted the machinery of various curts by confounding the law of the

case that should have been applied to him. Thus, there is good cause to argue for plain error by

the federal district court under DTND Sierra Investments, Id.

Regarding legal excuse, Bravenec's testimony at the hearing in the 285*'' District Court on July 9,2014 suggests that he does not comprehend that the law permits a third party to assert

a purchase money lien interest against the subject property of a purchase that the third party's

funding enabled. Vol 2 (Case No. 04-14-00483-CV) RR 51 (line 17) ("I don't know what this is,

sir."). This testimony flies in the face of the rule against impairment of contractual obligations:

It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not [ ] know what it contained. If this were permitted, contracts would not be worth the paper on which they are written ... [He] must stand by the words of his contract; and, if he will not [ ] he alone is responsible for his omission.

Upton V. TribilCOCk, 91 U.S. 45,50 (1875) (brackets added). Bravenec knew or should have

known that the controversy here is about competing rights to quiet title relief, and that a suit to

quiet title in intended to "enable the holder of the feeblest equity to remove from his way to legal

title any unlawful hindrance having the appearance of better right." Thomson v. Locke, 1

S.W.112,115 (Tex. 1886)). Appellant requests an abatement to supplement the probate court and

requests leave to amend pleadings to cite SAAF, Id., and other controlling authority on third party

purchase money liens in Flanagan v. Cushman, 48 Tex. 241 , 1877 WL 8677 (1877).

10 WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court grant relief

in all things, for such other relief both in law and in equity as he may be justly entitled.

Dated: October 14,2015 Respectfully Submitted,

Rowland J. Martin 951 Lombrano San Antonio,Tx 78207 (210) 323-3849

CERTIFICATE OF SERVICE

1delivered a copy of this, "Appellant's Unopposed Motion To Sever And To Remand,"

to Attorney Elizabeth Conry Davidson via email do Bexar Appraisal District, 411 S. Frio, San

Antonio, Texas, 78204 on October 14,2015. ^ Dated: October 2015 Rowland J. Martin 951 Lombrano San Antonio, Tx 78207 (210) 323-3849

CERTIFICATE OF CONFERENCE

1certify that 1conferred with Attomey Elizabeth Conry Davidson via email on or about

September 3,2015 about the substance of the abatement proposal in the foregoing motion and

she advised in her response that there is no opposition to the motion, nor is there opposition to

leave to amend.

Rowland J. Martin

11 APPENDIX

A. Martin v. Bravenec, et al. Case No. 14-50093,2015 WL 5752439 (5th Cir, October 2, 2015)

B. THIRD PARTY PURCHASE MONEY VENDOR'S LIEN

C. ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE

12 13 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United Stat^ Court ofAppeals Fifin Ctrcun

FILED October 2, 2015 No. 14-50093 Summary Calendar '•y'® Clerk

ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,

Plaintiff-Appellant

V.

EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND BRAVENEC; 1216 WEST AVENUE, INCORPORATED,

Defendants-Appellees

Appeals from the United States District Court for the Western District of Texas USDCNo. 5:11-CV-414

Before JOLLY, PRADO, and ELROD, Circuit Judges. PER CURIAM:*

Rowland J. Martin, Jr., proceeding pro se, appeals orders of the district court awarding attorney's fees to Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R. Civ. p. 11, and striking his pleadings opposing an award of fees.^

* Pursuant to 5TH CiR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CiR. R. 47.5.4.

' Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West Avenue, Incorporated will be referred to collectively as Bravenec. No. 14-50093

In 2010, Martin filed a pro se complaint against Bravenec and other entities alleging multiple causes of action predicated upon a foreclosure dispute. Bravenec filed a motion for summary judgment that included a request for sanctions. The district court granted summary judgment to Bravenec but declined to impose the sanctions requested because Bravenec failed to comply with the procedural requirements of FED. R. CiV. P. 11(c)(2). However, the district court sua sponte ordered Martin to show cause why financial sanctions should not be imposed. Believing that Martin failed to comply with the show cause order, the district court entered anorder directing the clerk of court not to accept additional motions or complaints from Martin without the court's permission. On appeal, we affirmed the entry ofsummary judgment but did not address the issue of sanctions, as it was not before the court. See Martin v. Grehn, 546 F. App'x 415 (5th Cir. 2013). After this Court's opinion issued, Bravenec moved the district court to expunge a lis pendens lien Martin filed that alleged thatthe disputed property was subject to ongoing litigation in federal court. The district court granted the motion, and the lien was expunged. Because this Court had not issued the mandate in Martin's appeal, he filed a new lis pendens Hen asserting anew that the disputed property was subject to ongoing litigation in federal court, which lead Bravenec to file a motion for sanctions under FED. R. CiV. P. 11 and TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of confinement or, alternatively, award attorney's fees in the amount of $10,000. Without holding a hearing or ordering a response from Martin, the district court entered an order on December 5, 2013, denying the request for confinement and granting the request for attorney's fees. The district court concluded that it was appropriate to award Bravenec attorney's fees because the district court previously found thatMartin violated FED. R. CiV. P. 11(b)(1), No. 14-50093

(2) and Martin failed to respond to the district coxirt's show cause order. However, rather than grant Bravenec $10,000 as requested, the district court ordered Bravenec to file a supplemental motion setting forth the fees actually incurred during the litigation. Upon receipt of Bravenec s supplemental motion, the district court determined that Bravenec incurred $7,710 in fees and entered an order on December 27, 2014, awarding that amount to Bravenec. Martin attempted to object to the original and supplemental motions for attorney's fees on two separate occasions. However, the first set of pleadings was entered on the docket after the district court's December 5, 2013, order issued, and the district court ordered the second set ofpleadings stricken on December 30, 2013, on the grounds that the pleadings violated the no filing sanction previously imposed. On January 27, 2014, Martin noticed his intention to appeal the district court's orders granting attorney's fees, affixing the amount of fees to be awarded, and striking his objections. Martin makes two arguments on appeal. First, the district court plainly erred in not exercising supplemental jurisdiction under Sampliner v. Motion Picture Patents Co., 255 F. 242 (2d Cir. 1918), rev'd on other grounds, 254 U.S. 233 (1920), and applying Texas law to adjudicate his claims against Bravenec. Second, the district court abused its discretion in awarding Bravenec attorney's fees under Rule 11. This Court exercises jurisdiction under 28 U.S.C. §1291, which provides for an appeal from final orders ofthe district court. See Southern Travel Club, Inc. V. Carnival Air Lines, Inc., 986 F.2d 125, 130-32 (5th Cir. 1993). The district court's order awarding attorney's fees under Rule 11 is not final until the amount to be awarded is determined. Id. at 131. In this case, the order affixing attorney's fees entered on December 27, 2013, and Martin timely filed No. 14-50093

his notice of appeal on Monday, January 27, 2014. See FED. R. APP. P. 4(a)(1)(A). With respect to the first issue, Martin appears to challenge the district court's entry of summary judgment against Bravenec on the ground that summary judgment would have been improper if the district court correctly exercised supplemental jurisdiction and applied Texas law to the adjudication ofhis claims. However, this Court previously affirmed the district court's grant of summary judgment, and Martin does not explain why he did not or could not raise the arguments asserted now in his earlier appeal of the judgment. Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 607-08 (5th Cir. 2004) (reiterating that a party cannot raise anissue on appeal that could have been raised in an earlier appeal in the same case). To the extent that this claim was raised below, it was properly denied. Turning to the second issue, the district court may sanction a party, including a pro se litigant, under Rule 11 if it finds that the litigant filed a pleading for an improper purpose or that the pleading was frivolous. See FED. R. Crv. P. 11(b) &(c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir. 1988). Sanctions may be imposed upon aparty's motion ifthe motion is "made separately from any other motion," the motion describes the specific conduct that allegedly violates Rule 11(b), and the motion is served on the party to be sanctioned 21 days before it is filed in district court. See Marlin v. Moody National Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing FED. R. CiV. P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show cause why conduct specifically described in the order has not violated Rule 11(b). See id. (citing FED. R. CiV. P. 11(c)(3)). Although the district court need not hold a hearing, it must provide the litigant notice ofthe proposed sanctions and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause. No. 14-50093

See Merriman v. Sec. Ins. Co. of Hartford, 100 F.Sd 1187, 1191-92 (5th Cir. 1996). The court reviews an award of sanctions under Rule 11 for abuse of discretion. See Marlin, 533 F.3d at 377. A district court "necessarily abuses its discretion in imposing sanctions ifit bases its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence." Elliott v. Tilton, 64 F.3d 213, 215 (5th Cir. 1995). In this case, the district court award of attorney's fees fails to comport with the requirements of Rule 11 and denied Martin due process. First, the district court erroneously found that Martin did not respond to its show cause order from 2012. Infact, Martin did respond, albeit inarticulately, on January 11, 2013, and January 14, 2013. Next, the district court appears to have granted Bravenec's motion for attorney's fees without considering Martin's objections and motions for reconsideration. The district court soriginal order granting the motion entered on the docket prior to Martin's objections and fails to acknowledge the objections. Likewise, the final order assessing the amount to be paid also fails to reference Martin's December 5, 2013, pleadings and was entered before Martin's December 27, 2013, objections and motion for reconsideration, which the district court ordered stricken. Although the district court may properly enjoin vexatious litigation and sanction the same, it may not exercise its authority in a manner that deprives alitigant of his constitutional rights. See Qureshi v. United States, 600 F.3d 523, 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when it struck Martin's objections. Notably. Martin withdrew the lis pendens lien of which Bravenec complained upon receiving Bravenec's motion for sanctions and filed a subsequent lis pendens lien that referenced only state court litigation. That is the purpose ofthe 21-day "safe harbor" provision: to provide alitigant the opportunity to withdraw challenged pleadings and thereby avoid No. 14-50093

sanctions. See In re Pratt, 524 F.Sd 580, 586-87 (5th Cir. 2008). Finally, Bravenec suggested below that the district court's December 2012 show cause order satisfied the "safe harbor" provision but cited no authority to support that assertion, and this court has strictly construed the requirements of FED. R. CIV. P. 11(c)(2). See, e.g., Pratt, 524 F.Sdat 586-87; Marlin, 533 F.3d at 378- 79; Brunig v. Clark, 560 F.3d 292, 298 n.20 (5th Cir. 2009). Because Bravenec did not comply with the safe harbor provision, the district court is deemed to have awarded the attorney's fees on its own motion, which is improper under Rule 11. SeeMarlin, 533 F.3d at 379; Brunig, 560 F.3d at 298. As this Court explained inMarlin, sanctions awarded on the court's initiative under Rule 11 "are limited to nonmonetary sanctions or a monetary penalty paid to the court. See 533 F.3d at 379.

AFFIRMED in part, VACATED in. part, and REMANDED. Martin's motion to strike Bravenec's brief is DENIED. Martins other motions are DENIED AS MOOT. B

14 P12-20150198558-3 o lU THIRD PARTY PURCHASE MONEY VENDOR'S UEN

LIEN TRANSACTION DATE: October 31,2003 (Deed Records Volume10406, Pages 1601 and 1606). < c SUBJECT PROPERTY: 1216 West Ave., City San Antonio and County of Bexar, Texas CO GRANTOR: Moroco Ventures, LLC.

GRANTEE AND OWNER: Rowland J. Martin, Jr.

THIRD PARTY BENEFICIARIES AND INDEMNITEES: Estate of Johnnie Mae King, Probate Case No. 2001-PC-1263 and Nicolas Williams.

MAIUNG ADDRESS: 951 Lombrano San Antonio, Texas 78207

PURPOSE OFTHE RECORDING: This re-recording of the lien interest created on October 31,2003 memorializesthe property interests that vested in the Owner on that date for ease of reference in on-going judicial proceedings. It is expressly disclaimed that the lien was first created on October 14,2015.

CONSIDERATION: The lien re-recorded herein is claimed against the grantor, Moroco Ventures, LLC, and all those claiming underthe grants recorded a^ the (First) Deed of Trust to Roy Ramspeck and Annette G. Hanson, and asthe (Second) Deed OfTrust toAlbert Mcknight and Edward Bravenec. The lien constitutes consideration for a payment in the amount of $135,000, which was made bythe Owner,in his individual capacity, to Roy Ramspeck and Annette G. Hanson as a credit to enable the grantor and debtor entity, Moroco Ventures, LLC, to acquirethe subject property for a purchase priceof $284,500. The lien is referenced in the WarrantyDeedwith Vendor'sLien recorded in Volume 10406 Page1601 as "other valuableconsideration," and isfurther referenced in the (First) Deed OfTrust recorded in Volume 10406 Page 1606, in the section on "Other exceptions to Conveyancesand Warranty," bywayof expresswords of reservation statingthat the conveyance issubjectto "other than liens and conveyances,"and in paragraph 14 of "General Provisions," where it is expresslystated that "The creation of a subordinate lien... will not entitle Beneficiary to exercise the remedies provided" for the acceleration of the note. Consideration was given by Albert McKnight and Edward Bravenec, during an attorney client relationship in Probate CaseNo. 2001-PC-1263, inthe SecondDeedOfTrustgranted by Moroco Ventures, LLC in Document #20050099395 on May5,2005, by wayof "PriorLien" reservations, and by wayof the stipulationin paragraph 4 of the "General Provisions," with limitations on the second lien stating that "This lien shall remain superior to liens created later[]."

PROPERTY DESCRIPTION: The property commonly known as 1216 West Ave, in San Antonio, Texas, is legally described as "Lots 1,2, and 3, Block 50, new City Block 8806, LOS ANGELES HEIGHTS," and as further described in the attachment to this record.

Book 17508 Page 1659 3pgs RETROACTIVE RESERVATIONS AND EXCEPTIONS TO CONVEYANCES AND WARRANTIES:

1. Until further notice, the lien Interest herein re-recorded Issubject to the Indemnification obligations set forth In the Helrship Settlement Agreement In Probate Case No. 2001-PC-1263. ItIs declared that anyand all Interests In title claimed underthe second deed of trust granted to Albert McKnight and Edward Bravenec are subject to the priority assigned by law to the vendors' lien herein recorded. The latter Is made executory and Inferior In relation to the purchase money lien byvirtue of contractual exceptions to the conveyance In the first deed oftrust, to wit: "all rights, obligations, and other mattersemanating from and existing by reason of the... operation of anygovernmental district, agency or authority," Bexar County Deed Records, Vol. 10406 Page 1607. By virtue of express provisions that subject the second deedoftrustto the first deedoftrust,Owner claims equitable title under DTNDSierra Investments v. HSBD Bank U.SA., Case No. 14-51142 (S"* CIr., 2015), a courtdecision which by operation oflaw renders the interests acquired by Albert McKnight and Edward Bravenec by foreclosure on October 3,2006 executoryand Inferior Inrelationto the Hen herein re-recorded.

2. It is declared that deed transfers from Albert McKnight and Edward Bravenecto assignees and successorsIn interest, including 1216 West Ave., Inc., Edward Bravenec, and Torralba Properties, Inc., aresubject to the notice oflls pendens, and future amendments thereto ifany, which was referenced In the decision of the Texas Fourth DistrictCourt OfAppealsIn Martin v.Bravenec, et al. Case No.04-14- 00483-CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June8,2015). -3 - -The owner disclaims liability for-the recording of notices of lls pendens underauthority of the— decision ofthe U.S. Courtof Appeals for the Fifth Circuit In Martin v. Bravenec, et ai, Case No. 14-50093 (5*" CIr., judgment filed October 2,2015), wherein the court vacated the orderofthe U.S. District Court InCase No. SA ll-CV-0414 dated December 27,2013, on abuse of discretion and due process grounds.

4. The Owner received a leasehold Interest Inthe subject property in lieu of monetary considerationwhichwas recorded in the recordsof the Bexar County Appraisal District as a homestead.

Dated: October 14,2015 Rowland J. Mar Individually and As Administrator For The Estate of Johnnie Mae King

STATEOFTEXAS ) COUNTYOF BEXAR )

This Instrument was acknowledged before meon the 14"* day of October 2015, by Rowland J. Martin In his capacity as a third party purchase money Hen creditorof the limited liability company known as Moroco Ventures, LLC, whose charter Is presently inactive.

-it CHARIC*E lANAE GltNEWt^lAtl. Nototy Public. Stote oi j Notary PublK, St of Texas s.- .^5 My Commission E«p'ie- i June 02. 20W EXMiniT "A"

The land referred to In this policy is described as follows:

Lots 1, 2 and 3, Block SO, New Qty Block 8806, LOS ANGELES HEIGHTS ADomON, situated In the Qty of San Antonio, Bexar County, Texas, according to plat ttiereof recorded in Volume ISO, Pages 284-286, of the Oe^ and Plat Record of BexarCounty, Texas, SAVE AND EXCEPT there from a tract of land containing 0.00049 of an acre, being 21S1 square feet, nnore or less, same being out of Lot 1, said tract conveyed to the Oty of San Antonio by deed dated October 10, 1991 recorded in Volume 5180, Page 1873, Real Property Records of Bexar County, Texas, tieing more particularly described by metes and bounds as follows:

BEGINNING at an Iron rod found at the northwest comer of the said Lot 1, said point being the POINT OF BEGINNING of the herein described tract; THENCE S 89° 51* 30" E along the south line of West Olmos 10.01 feet to an iron rod set at the Point of Curvature of a curve having a radius of 10.00 feet, a central angle of 90® 03' 30" an arc length of 15.72 feet, and whose radius point tiears 90° southerly from said line of West Olmos;

THENCE along the arc of said curve 15.72 feet to an Iron rod set on the east line of West Avenue at the Point of Tangency of said curve; THENCE N 00° OS' 00" E along the east line of West Avenue 10.01 feet to the POINTOF BEGINNING, containing 0.00049 acres (21.51 square feet).

A-''j pfcv.'sljriiijrsjn,!,,;/. Jfupfrh tecjiiss since is iriyiVj."^',. " "j/"" ihnriMnsi S.ATE 05 rcxiS, CeONIY Of KXAS •' ""iliffstesi fav vais a, [fig sfsmnr4 h/'-ft k - J

OCT 11 2015

cown-c. frk bexar county^exas

925?-?Si?2^9®558 Fees: $34.00 14/2015 4:4SPn ti Pages 3 ft,iff P"Pl*c&Records Recordedof in BEXRR the Official COUNTY GERPRO C. RICKHOFF COUNTY CLERK 15 2015 OCT lU P r""- ij'" • pfiuRTS Cause No. 2001-PC-1263 ccA.'"^- • ^•••*• 'vry i^AS IN THE MATTER OF THE ESTATE OF ) IN THE PROBATE CStmT "" " "" JOHNNIE MAE KING ) NUMBER ONE ) FOR BEXAR COUNTY, TEXAS

ADMINISTRATOR'S CLASS 2 LIEN PURSUANT TO THE TEXAS ESTATES CODE

LIEN RECORDING DATE: October 14,2014

SUBJECT PROPERTY: 951 Lombrano, City San Antonio and County ofBexar, Texas GRANTOR: Estateof Johnnie Mae King

GRANTEE: Rowiand J. Martin, Jr., Independent Administrator for the Estate of Johnnie Mae King

MAIUNG ADDRESS: 951 Lombrano . San Antonio, Texas 78207

PURPOSE OF THE RECORDING: This recording is made for ease of reference in on-going judicial proceedings tothe Class 2lien that is hereby declared pursuant to Estates Code Section 355.066(b), in consideration for(1) services rendered and in satisfaction ofrelated expenses incurred during the _ decedent's last illness in the approximate amount of$12,000, (2) for the unspecified value of services rendered to correct clouds on title to real property of the estate due to coram non Judice tax suit litigation that w/as vacated by the ISO*** District Court and the224 District Court in 2013; and (3) for theexpenditure ofin kind resources from theGrantees individual estatein theamount of$135,000 during the attorney client relationship with the Law Office of McKnight and Bravenec.

CONSIDERATION: The Administrator warrants, particularly in relation to the Bexar County Tax Authorities' tax suit litigation in the 150'" District Court in Case No. 2014-TA1-00224, that he is a bona fide creditor of the decedent; that he faithfully rendered services for the benefit of the decedent during her last illness through the formation and administration ofthe Johnnie Mae KingTrust; that he incurred expenses for the benefit of the decedent during the last illness after the assets ofthe trust were assigned by mutual agreement to Opal Gilliam, through her husband Calvin Gilliam, as part of an heirship settlement; that he sustained losses to his personal estate as abenefactor of unperformed legal services promised by former attorneys of record, Albert McKnight and Edward Bravenec. who appeared through Law Office of McKnight and Bravenec in 2005. By virtue ofthe latter expenses. Grantee qualifies as acreditor and lien holder of the highest priority under Estates Code Section 355.066(b), separate and apart from future interests arising under the Heirship Settlement Agreement executed in 2008. PROPERTY DESCRIPTION: The property commonly known as 951 Lombrano, in San Antonio, Texas, is legally described as "NCB 2095 BLK 20 LOT 35 EFT OF 14 &SW TRI OF 15". EXCEPTIONS TO CONVEYANCES AND WARRANTIES:

1. The lien is recorded by the power vested In Grantee by the Probate Court asan Independent Administrator, and is subject to non-judicial foreclosure by Grantee with a privileged bidding credit In the amountof $147,000 and judicial review by courts with probatejurisdiction indue course.

2. Out of an abundance of caution to enable satisfaction of contingent liabilities againstthe Estate ofKing, Grantee has made a concurrent assignment oflien interests toimplement the indemnification obligations setforth in the Heirship Settlement /^reement filed in Probate Case No. 2001-PC-1263. In orderto honor and comply with Heirship Agreement indemnification obligations owed to the successors in interest ofthe late Opal Gilliam, beloved daughter ofJohnnie Mae King, itis declared thatthe Estate ofJohnnie Mae King is a beneficiary ofthethird party purchase money lien claim recorded on October 14,2015 by Rowland J. Martin in his individual capacity against the property commonly known as1216 West, in San Antonio, Texas, and which was originally recorded in Bexar County Deed Records Volume 10406, Pages 1601 and 1606. By the latter declaration, the Estate ofJohnnie Mae King Is also made a beneficiary ofthe express contractual exceptions tothe conveyance in the first deed oftrust granted by Moroco Ventures, LLC onOctober 31,2003 which extends to "all rights, obligations, and othermatters emanating from and existing by reason ofthe... operation ofany governmental district, agency or authority," Bexar County Deed Records, Vol. 10406 Page1607.

3. In accordance with contractual exceptions forgovernmental matters. Grantee expressly -disclaims liability for the recording ofliens and notices ofjis.pendens against theproperty known as 1216 West Ave. inSan Antonio, Texas, and asserts that the exceptions recorded herein supersede the Us pendens expunction order which was entered by the Probate Court on March 19,2014, and which was further referenced inthe decision of the Texas 4*^ District Court OfAppeais inMartin v. Brovenec, et al. Case No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App. - San Antonio, rehearing denied June 8,2015). 3. Grantee also disclaims iiabiiity forthe recording of liens and notices of lis pendens under authority ofthedecision ofthe U.S. Court ofAppeais for theFifth Circuit in Martin v. Bravenec, et al. Case No. 14-50093 (5*^ Cir., judgment filed October 2,2015), wherein thecourt vacated theorder ofthe U.S. District Court in Case No. SA ll-CV-0414 dated December 27,2013.

Dated: October 14,2015 Rowland J. MartiT As Administrator For The Estate of Johnnie Mae King STATE OFTEXAS ) COUNTY OF BEXAR )

This instrument was acknowledged before me onthe 14"* day ofOctober 2015, by Rowland J. Martinin hiscapacity as Administrator for the Estateof Johnnie Mae King.

CHARLCYE lANAE GlENEWlNKEl Notary Public. Si Notoiv Public, stole of Texas Mv CommissionExpiies J""®