Rowland Martin, Jr. v. Edward L. Bravenec and 1216 West Ave., Inc.
04-14-00483-CV
| Tex. App. | Feb 19, 2015Background
- This interlocutory appeal arises from a TCPA (anti‑SLAPP) proceeding in which appellees (Bravenec and 1216 West Ave., Inc.) obtained temporary injunctive/gag relief in July 2014 to restrain appellant Martin's lis pendens filings and related communications concerning 1216 West Ave., San Antonio.
- On July 8, 2014 Bravenec recorded a deed conveying the property to Torralba Properties, LLC; appellees amended their petition the same day but did not disclose the transfer at the July 9 and July 17 hearings.
- Martin contends appellees and their counsel (Deadman and Bravenec) committed fraud on the court by concealing the July 8 conveyance and by giving false testimony about a prospective purchaser ("One For Autism") and ongoing injury from lis pendens speech.
- Martin argues the transfer rendered the injunctive/gag relief moot, deprives the trial court of jurisdiction (and the appellate court of interlocutory jurisdiction), and shows the suit was brought to suppress protected petitioning/speech under the TCPA.
- Martin seeks (among other relief) dismissal of the underlying action as moot, sanctions, and an expedited resolution based on fraud on the court and TCPA immunity.
Issues
| Issue | Plaintiff's Argument (Bravenec) | Defendant's Argument (Martin) | Held |
|---|---|---|---|
| Whether appellees met TCPA burden to overcome immunity for lis pendens speech | Appellees argued Martin's lis pendens and related filings interfere with sales and are precluded by prior federal rulings (res judicata effect) | Martin argues appellees failed to produce clear and specific evidence tying his notices to the federal foreclosure matter and concealed a July 8 conveyance that mooted their claims | The briefing asserts the appeal should consider fraud and mootness; the record shows factual dispute over evidence and concealment — courts review such jurisdiction/fraud questions de novo (issue contested on appeal) |
| Whether trial court's July 17 gag injunction was a prior restraint and least‑restrictive means | Appellees justified injunction to protect sale and prevent interference with prospective purchaser and lender | Martin contends injunction is a presumptively unconstitutional prior restraint, overbroad, not least restrictive, and was issued on misleading testimony and after the property transfer | Martin preserved interlocutory constitutional and TCPA objections; the opinion frames the gag order as presumptively unconstitutional and subject to challenge |
| Whether concealment of the July 8 deed and allegedly perjured testimony constitute fraud on the court sufficient to vitiate orders under review | Appellees treat their filings and testimony as accurate and rely on prior litigation to show Martin has no valid interest | Martin contends the deed and testimony show extrinsic/intrinsic fraud that deprived the court of jurisdiction and fairness, justifying dismissal and sanctions | Fraud‑on‑the‑court and jurisdictional questions are reviewable; Martin presented evidence raising probable cause of fraud — court must address these jurisdictional/fraud issues on interlocutory review |
| Whether transfer to Torralba and appellees’ amended pleading moot or limit appellate jurisdiction over interlocutory orders | Appellees persisted with claims and sought emergency relief without conceding lack of jurisdiction | Martin argues the transfer terminated appellees’ live interest in injunctive relief and thus stripped courts of jurisdiction or rendered relief moot | Court must strictly construe interlocutory jurisdiction statutes; changed circumstances and mootness may defeat appellate jurisdiction — Martin urged dismissal of appeal as moot and urged expedited relief |
Key Cases Cited
- Zuniga v. Grose, Locke & Hebdon, 878 S.W.2d 313 (Tex. App.—San Antonio 1994, writ ref'd) (sanctions and public‑policy concerns where parties/attorneys shift positions to evade accountability).
- N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677 (Tex. 1990) (changes in jurisdictional circumstances can implicate fundamental error and mootness).
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (scope of anti‑SLAPP protections and immunity principles).
- Markel v. World Flight, Inc., 938 S.W.2d 74 (Tex. App.—San Antonio 1996, no writ) (prior restraints on future speech are presumptively unconstitutional; strict standards for injunctive gag orders).
- Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180 (Cal. 2005) (automatic stay and related jurisdictional limits affect trial court authority and interlocutory review).
- Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio 2014) (TCPA may be used to address retaliatory litigation tactics and protect petitioning rights).