Rowland Martin, Jr. v. Edward L. Bravenec and 1216 West Ave., Inc.

Court of Appeals of Texas·Decided February 12, 2015·No. 04-14-00483-CV·Published

Opinion

Case No. 04-14-00483-CV

ROWLAND J. MARTIN ) TEXAS COURT OF APPEALS Appellant ) ^ :."-' ) --, — ''■'- v. ) FOR THE FOURTH DISTRICT ^ ) 1% 1 EDWARD BRAVENEC AND 1216 ) rvj -r WEST AVE. INC. ) _, .- I;! Appellees ) BEXAR COUNTY, TEXAS/

APPELLANT'S MOTION FOR REHEARING ^

Appellant Rowland J. Martin files this "Motion For Rehearing," to move the Court to

rehear the Appellees' motion for extension of lime to file a responding brief in accordance with

the Court's order of February 2. 2015 stating thai "in disposing of this appeal, this court will

consider only those issues raised in appellant's brief that relate to the orders this court has

expressly identified as the subject of this appeal."

Appellant reads the order as a conclusion of law about the interlocutory jurisdiction that

the Court possesses to entertain live issues that arc or may be presented in the parties' briefs.

Based on the latter reading of the Court's jurisdiction, a genuine need exists al this time for

information about ownership of the subject property at 1216 West Ave., San Antonio, Texas, in

order to ascertain whether the disclosure by Appellees counsel identifying One For Autism, Inc.

as the pendent lite purchaser was false at the time trial court relied upon it to issue the gag order

on July 9, 2014. and whether Appellee possibly committed jurisdictional fraud on the trial court

an d on this Court by failing to disclose that the subject property had already been transferred

pre-hearing on July 8. 2014. See deed record attachment and Court Reporter's Hearing

Transcript for July 9. 2014, at p. 11 lines 6-12. The facts about Torralba's ownership that

Appellant seeks to elicit are also essential to his defense in that they tend to indicate that the lis

pendens filing in question did not impair the ability of the contracting parties to exercise whatever rights they claim they already had, and that trial court's post-stay gag order was entered

on July 17,2014 in error or by mistake. James, et al, v. Calkins, Case No. 01-13-0018-CV (Tex.

App. - Houston [1st Dist.] August 21,2014) (applying mootness to resolve Anti-SLAPP lis

pendens dispute). See, case exhibits in Appellant's Supplemental Appendix. See also, Varian

Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180,192 (2005) appealed in Super. Ct. No.

CV780187 (Cal. 2005) (trial court order invalidated based on Anti-SLAPP automatic stay).

Appellant has previously stated that Attorney Glenn Deadman disclosed in conference

with the undersigned Appellant on or about December 1, 2014 that the West Ave. property had

been sold, and deed records corroborate the veracity of the disclosure. Since the original

admission against interest, however, Attorney Deadman has made representations to the Court

that are inconsistent with, and which tend to conceal, his original disclosure, by stating on

January 30, 2015 that "Appellant continually files lis pendens to cloud the title of the Property

prohibiting Bravenec from utilizing or selling the same." Appellee's motion dated January 30,

2015, at para. 2. Accordingly, the Court is requested upon rehearing to vacate all or part of its

order of February 2,2015, and to authorize the joinder of Torralba Properties and limited

discovery by way of a request for admissions to ascertain the present ownership of the property.

Legal support for the requested relief is found in the rule that "Jurisdiction over an

interlocutory order when not expressly authorized ... by statute is jurisdictional fundamental

error." N. Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). Appellant

respectfully submits that an expedited dismissal for mootness is probably warranted by the above

referenced jurisdictional fraud and as well as by other changed circumstances that render moot

the post-stay gag order entered on July 17,2014 as a live subject for interlocutory review. Appellant will be unduly prejudiced in preparing an effective reply to Appellees

jurisdictional arguments, and in prosecuting his substantive immunities from suit, if he is unable

to conduct limited discovery to ascertain the true state of facts from Attorney Glenn Deadman

and from Torralba Properties, a real party in interest according to deed records. Careful

examination will reveal that the representations that Attorney Deadman made to the Court on

January 30,2015 on behalf of the Appellees are suspect in their own right for evidentiary and

jurisdictional reasons. Even taking as true the representation that Appellees made to secure an

extension of time, their version of the truth would still be insufficient to overcome the absurdity

of their reliance on a non-existent cause of action to enjoin future lis pendens speech. Cf., James,

In conclusion, Appellant will use the requested discovery to show that Appellees case for

tortious interference relief amounts to nothing more than an unsupported contention that they

have a right to suppress lis pendens speech because they dispute the applicability of the separate

transaction rule of res judicata doctrine to the controversy at bar. Contentions such as these have

been rejected in analogous cases on point. Rose v. Rothrock, Case No. 08-3884 (E.D. Penn,

2009) See case exhibits in Appellant's Supplemental Appendix. Not surprisingly, they offer no

case law precedent to substantiate their novel position other than an inapposite federal court

judgment in Case No. 13-50070 and an inapposite probate court order in Case No. 2001-PC-

1263. Both of the latter actions involve matters facially unrelated to the purchase money subject

matter of the particular lis pendens speech suppressed by the gag order on July 17,2014.

In the current state of the record, the lis pendens challenge Appellees press before this

Court is readily distinguishable from cases where parties opposing a lis pendens filing have

prevailed. Wallace v. Kelley, 2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. 1, 2007). See case exhibits in Appellant's Supplemental Appendix. Appellees assert a lis pendens fact theory for

extension of time to file an appellate brief that addressed a foreclosure transaction in 2003, and

which facially departed as such from their trial court representations addressing a foreclosure

transaction in 2006. Their implied request for affirmative relief is fatally flawed by the fact that it

was made without the benefit of a notice of cross appeal or petition for extraordinary relief.

Jones v. Beckman, 2007 Cal. App. LEXIS 8326 (Cal. App., 2007). See case exhibits in

Appellant's Supplemental Appendix. Appellees reliance on ancillary federal and probate court

cases is also misplaced because neither of those cases adjudicated the subject matter of the

dispute presented here.

Under the circumstances, Appellant acknowledges that his Appellate Brief takes issue

with Appellees' lack of constitutional and prudential standing to seek affirmative relief, and that

their implied request for affirmative relief substantiates his contention that the interests in other

litigation they seek to vindicate fall beyond the court's interlocutory jurisdiction. See, James, Id.;

Jones, Id., and Varian, Id. Further, much of the prevailing law of lis pendens would be entirely

meaningless if the Court accepts Appellees's unsupported legal position that a lis pendens

Free access — add to your briefcase to read the full text and ask questions with AI