ACCEPTED 03-14-00199-CV 2514311 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/16/2014 4:32:17 PM JEFFREY D. KYLE CLERK No. 03-14-00199-CV COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS STEVEN GREGORY SLOAT, ED BRYAN, CHURCH OF SCIENTOLOGY INTERNATIONAL, DAVID J. LUBOW AND MONTY DRAKE Appellants, v. MONIQUE RATHBUN, Appellee. REPLY BRIEF OF APPELLANT DAVID J. LUBOW On Appeal from the 207th Judicial District Court ofComal County, Texas Trial Court No. C-20 13 -1 082B Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding Stephanie S. Bascon State Bar No. 19356850 LAW OFFI CE OF STE PHAN IE S . BASCON , PLLC 297 W. San Antonio Street New Braunfels, Texas 78130 Telephone: 830-625-2940 Facsimile: 830-221 -3441 [email protected]Oral Argument Scheduled for September 24, 2014 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/16/2014 4:32:17 PM JEFFREY D. KYLE Clerk
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Monique Rathbun v. Scientology: Reply Brief for Appellant Lubow
David Lubow's reply to Monique Rathbun's response to Scientology's appeal of its denied anti-SLAPP motion
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ACCEPTED03-14-00199-CV
2514311THIRD COURT OF APPEALS
AUSTIN, TEXAS9/16/2014 4:32:17 PM
JEFFREY D. KYLECLERK
No. 03-14-00199-CV
COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
STEVEN GREGORY SLOAT, ED BRYAN, CHURCH OF SCIENTOLOGY INTERNATIONAL, DAVID J. LUBOW AND MONTY DRAKE
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
REPLY BRIEF OF APPELLANT DAVID J. LUBOW
On Appeal from the 207th Judicial District Court ofComal County, Texas
Trial Court No. C-20 13-1 082B Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
Stephanie S. Bascon State Bar No. 19356850
LAW O FFICE OF STEPHANIE S . BASCON,
PLLC 297 W. San Antonio Street New Braunfels, Texas 78130 Telephone: 830-625-2940 Facsimile: 830-221 -3441 [email protected]
Oral Argument Scheduled for September 24, 2014
FILED IN3rd COURT OF APPEALS AUSTIN, TEXAS9/16/2014 4:32:17 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i INDEX OF AUTHORITIES ..... ..... .... ..... .. .... .......... ....... ................ ....... .............. ...... ii INTRODUCTION ............. ..................................... ................... ....... ............. ........... .. 1 STATEMENT OF FACTS .......................... ..... ....................... ............ .... ..... .. ........... 2 ARGUMENT ......................... ..... .............. .............. .................. ................................. 4 I. THE "COMMERCIAL SPEECH" AND THE "BODILY INJURY"
EXEMPTIONS TO THE TCPA DO NOT APPLY ....... .......................... ...... .4
A. The "Commercial Speech" Exemption Does Not Apply to Plaintiffs Claims against Lubow .. ............ ........................................... .4
B. The "Bodily Injury" Exemption of Section 27.010(c) Does Not Apply to Plaintiffs Claims against Lubow ...................... .. ................ ... 5
II. THE TCPA APPLIES TO APPELLEE'S CLAIMS ASSERTED AGAINST LUBOW ........ ....... ..... ... .. ..... ...... ............... ..... ................ ....... ..... .... 5
III. APPELLEE CANNOT SATISFY HER PRIMA FACIE BURDEN FOR ANY OF HER CLAIMS AGAINST LUBOW ......... .. .................................... ?
A. Plaintiffs Tortious interference Claim is Legally Deficient and Untimely .... .............. .... .. ... .. ... ..... .... ........ ......... .................... .. .................... . ?
B. Appellee has Presented No "Clear and Specific" Evidence of any Claim for Tortious Interference with Contract Against Lubow ................. 8
C. Appellee Fails to Identify Any Statements by Lubow that Would Support a Claim for Public Disclosure of Private Facts ............................. 9
D. Appellee has Presented No "Clear and Specific" Evidence of an Actionable Invasion of Privacy Claim for Intrusion Upon Seclusion ..... 10
E. Appellee's Reliance on the "Gap-Filler" Claim of Intentional Infliction of Emotional Distress is Not Supported by Texas Law and Violates the First Amendment ................ .................................... ............. 1 1
F. Appellee Presented No Evidence to Support Vicarious Liability against Lubow for the Actions of any other Appellant .......................... 12
IV. APPELLEE CANNOT SAVE THE DISTRICT COURT'S ERRONEOUS AWARD OF FEES ..................... .......... ............................... 12
CONCLUSION AND PRAYER ........ ........ .... ......... ...... ......... ................................ 12 CERTIFICATE OF COMPLIANCE ................................................... ................... 13 CERTIFICATE OF SERVICE ..... ..... .... .. .... ........ ... ..... ............ ...................... ..... .... 13
INDEX OF AUTHORITIES Cases Pages
Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1116, 81 Cal. Rptr. 2d 471,477, 969 P.2d 564,570 (Cal. 1999) ............................ ................. 6
First Nat '! Bank of Eagle Pass v. Levine, 721 S.W.2d 287,289 (Tex. 1986) ........... 7
Ludwig v. Superior Court, 37 Cal. App. 4th 8, 16-18,43 Cal. Rptr. 2d 350, 356-357 (Cal. App. 1995, pet. denied) .................. ...................................... ........ ...... ........ ?
Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.-Houston [l41
h Dist.] 2013) ... ............................. 9
Sierra Club v. Andrews County, 418 S. W.3d 711, 715 (Tex. App.-El Paso, pet. filed) ..... ................................................. ... ................. ...... ...... .......... ..... ...................... 9
Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.- Tyler 2006, no pet.) ............................ ......... 10
Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991) ..... ............. 7
Webb v. CBS Broadcasting, Inc. , No. 08 C 6241 , 2011 WL 4062488 (N.D. Ill. Sept. 13, 2011) ........................ .......................................................................... 10, 11
Webb v. Glenbrook Owners Ass 'n, Inc., 298 S. W.3d 374, 387 (Tex. App.-Dallas 2009, no pet.) ........ ................................................................... .................... 11
Wehling v. Columbia Broad. Sys., 721 F.2d 506, 509 (5th Cir. 1983) ................... 10
Wells Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830, 842 (Tex. App.- Houston [14th Dist.] 2013, pet. denied) ................................................................................ 11
pet. denied), and White v. Lieberman, 103 Cal. App. 4th 210, 221, 126 Cal. Rptr.
2d 608, 615 (Cal. App. 2002).
III. Appellee Cannot Satisfy Her Prima Facie Burden for Any of Her Claims Against Lubow.
Lubow adopts and incorporates by reference the arguments in Section III of
the Church's Reply Brief. TEX. R. APP. P. 9.7.
In her brief, Appellee claims that she can show this court clear and specific
evidence in support of her causes of action (p. 50) and then she utterly fails to do
so. She fails to mention Mr. Lubow in her analysis of 3 of the 4 causes of action.
In that single specific reference, her evidence is not clear and specific and also
does not support the particular cause of action.
A. Appellee's Tortious Interference Claim is Legally Deficient and Untimely.
Lubow adopts and incorporates by reference the arguments in Section III.C.
of the Church's Reply Brief. Tex. R. App. P. 9.7.
Plaintiffs claim for tortious interference is barred by the two-year statute of
limitations for that cause of action. Victoria Bank & Trust Co. v. Brady, 81 1
S.W.2d 931 , 939 (Tex. 1991) (requiring intentional act that was proximate cause of
breach of contract); First Nat'! Bank of Eagle Pass v. Levine, 721 S.W.2d 287,289
7
(Tex. 1986) (two-year Hmitations period). Plaintiff's present case was filed in
August of 2013. ICR28. Her own evidence shows she voluntarily resigned her
position on April 1, 2011, leaving her employment on April 30, 2011. 23CR2776;
11 CR1382; 27CR3229. In order to fall within the statute of limitations, she had to
have filed suit by April of 2013, which she failed to do. Instead, she filed her suit
four months after the statute of limitations for tortious interference with contract.
As such, Plaintiff's tortious interference with contract claim should be dismissed.
B. Appellee has Presented No Clear and Specific Evidence of a Claim for Tortious Interference with Contract against Lubow.
Plaintiff's claim against Mr. Lubow further fails because she presented no
evidence that he spoke with anyone at her place of business or prior to her
resigning (on April 1, 2011) and leaving her j ob (on April 30, 2011). Instead, she
alleges Mr. Lubow spoke with Tanya Torrez, however, Ms. Torrez was a co-
worker of Plaintiff in 2006-7 at a different job than the one Ms. Rathbun resigned
from in April of 2011. 42CR 4883. (Ms. Torrez worked with Ms. Rathbun at the
Coastal Bend Center for Independent Living; while Ms. Rathbun resigned from
Superior Health Plan. See 28CR3364). Ms. Montana, a human resources employee
at Superior, admits that Mr. Lubow came into their offices, several weeks after Ms.
Rathbun had resigned from her job. 28CR3364. 1
1 Ms. Montana only identifies Mr. Lubow in paragraph 5 as the person who came into the office a week after receiving phone calls from a man she could not identify; a phone call that occurred after Ms. Rathbun had resigned from her job. The court can only conclude that Mr.
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Her other complaints about harassment at work are not clear or specific but
rather general complaints that "they" sent things or "Appellants" harassed her at
work. See Appellee 's Brief p . 51-56. None of this is clear and specific evidence
that Mr. Lubow committed tortious interference with contract and such claims
should be dismissed.
C. Appellee Fails to Identify Any Statements by Lubow that Would Support a Claim for Public Disclosure of Private Facts.
Lubow adopts and incorporates by reference the arguments in Section liLA.
of the Church' s Reply Brief. T EX. R. APP. P. 9.7. Plaintiffs general assertions that
"Lubow and other agents of [the Church]" allegedly told her friends and family
"false information about her husband" and "private information about her
husband ' s family" is not clear and specific evidence against Mr. Lubow.
Appellee ' s Br. p. 55. Ms. Rathbun generally alleges that Mr. Lubow, along with
others, communicated with friends and family (whom Appellee does not identify)
spreading false information about her husband. ld. This is not clear and specific
evidence of public disclosure of private facts by Mr. Lubow. In addition, Appellee
concedes that the discussion with family, friends and co-workers were not intended
Lubow's contact with Ms. Montana occurred after Ms. Rathbun had resigned from Superi or. Any conclusion to the contrary or any conclusion that Mr. Lubow did anything other than what is referenced in paragraph 5 of Ms. Montana's declaration would require inferences that are not permissible under the statute, which Appellee concedes is improper. Appellee brief p. 50, citing Sierra Club v. Andrews County, 418 S.W.3d 711 , 715 (Tex. App.- EI Paso, pet. filed); see also Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 71 6, 726 (Tex.App.Houston (14th Dist.) 2013)
9
for anyone other than the person contacted and was not placed in the public
environment. 2 Appellee Brief, p. 41. Appellee's claim for invasion of privacy for
public disclosure of private facts fails and should be dismissed.
D. Appellee Has Presented No "Clear and Specific" Evidence of an Actionable Invasion of Privacy Claim for Intrusion Upon Seclusion.
Lubow adopts and incorporates by reference the arguments in Section III.B.
of the Church's Reply Brief. Tex. R. App. P. 9.7.
There is no "clear and specific" evidence that Mr. Lubow intruded into
Appellee's seclusion. It is undisputed that Mr. Lubow's activities took place
outside and even away from Appellee's office/home. 38CR4461. There is no
evidence let alone clear or specific evidence, that Mr. Lubow 1) eavesdropped on
Plaintiff's conversation with the aid of wiretaps, microphones, or spying, 2) used
any electronic surveillance or any form of a microphone to overhear private
conversations, or 3) obtained any view of the Plaintiffs homes that could not be
seen from the public street. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex.
App.-Tyler 2006, no pet.); see also Wehling v. Columbia Broad. Sys., 721 F.2d
506, 509 (5th Cir. 1983) ("broadcast provided the public with nothing more than
could have been seen from a public street"); Webb v. CBS Broadcasting, Inc., No.
2 This Court has discretion to accept the statements in Appellee's Brief as judicial admissions.
fig_, Wells Fargo Bank, N.A. v. Smuck, 407 S.W.Jd 830, 842 (Tex. App.-Houston [14th Dist.] 2013, pet. denied).
10
08 C 6241, 2011 WL 4062488 (N.D. Ill. Sept. 13, 2011) (dismissing claim for
intrusion where defendants used zoom lens to film plaintiff from across the street,
on grounds that plaintiffs activities were in plain view and she made no attempt to
keep them private); Webb v. Glenbrook Owners Ass 'n, Inc. , 298 S.W.3d 374, 387
(Tex. App.- Dallas 2009, no pet.) (holding that property owner had "lawful right"
to install surveillance cameras looking out from his property to adjoining property,
and that such surveillance did not constitute intrusion on privacy of adjoining
owner).
Appellee cannot support her claim for intrusion upon seclusion against Mr.
Lubow.
E. Appellee's Reliance on the "Gap Filler" Claim for Intentional Infliction of Emotional Distress Finds No Support in Texas Law and Violates the First Amendment.
Lubow adopts and incorporates the argument in Section III.D of the
Church's Reply Brief. TEX. R. APP. P. 9.7.
AlJ of Plaintiffs claims rely on the same set of facts which means she
cannot rely on the gap-filler cause of action of Intentional Infliction of Emotional
Distress ("liED"). Even if she could, she fails to establish by clear and specific
evidence of conduct by Mr. Lubow that rises to the level of "extreme and
outrageous" conduct. Instead, she makes broad sweeping statements of alleged
misbehavior that she attributes to no one specifically. Appellee's Br. p. 52. She
11
complains about "years-long" efforts to harass, but the only evidence she has
provided regarding Lubow is conduct as a Squirrel Buster from April to September
of 2011, 35CR4176-78, and an interview with a former co-worker in late 2010,
42CR4883, and a brief discussion with a co-worker in spring of 2011. 28CR3364.
Again, this lacks clarity and specificity as it relates to claims against Mr. Lubow,
and is not extreme and outrageous so as to rise to the level of liED and, as such,
Appellee' s liED claims against Mr. Lubow fail.
F. Appellee Presented No Evidence to Support Vicarious Liability against Lubow for the Actions of any other Defendant.
Lubow adopts and incorporates by reference the arguments in Section III.A
of the Reply Brief of Appellant Monty Drake. T EX. R. APP. P. 9.7.
IV. Appellee Cannot Save the Trial Court's Erroneous Fees Award.
Lubow adopts and incorporates the argument in Section IV. of the Church's
Reply Brief. TEX. R. APP. P. 9.7.
CONCLUSION AND PRAYER
Appellant David J. Lubow prays that this Court reverse the trial court's order
which denies his Motion to Dismiss and awards fees and costs against him, grant
his Motion to Dismiss and render judgment for him, dismissing all of Plaintiffs
claims with prejudice and remanding for further proceedings concerning his claim
for attorneys' fees and costs under the TCPA. Mr. Lubow prays for such other and
further relief to which he may be entitled.
12
Respectfully submitted:
By: /s/ Stephanie S. Bascon Stephanie S. Bascon SBN 19356850
Law Office of Stephanie S. Bascon PLLC 297 W. San Antonio St. New Braunfels, Texas 78130 (830) 625-2940 (830) 221-3441 facsimile [email protected]
A ITORNEY FOR APPELLANT DAVIDJ.LUBOW
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), the undersigned hereby certifies that this Brief of Appellants complies with the applicable word count limitation because it contains 2897 words, excluding the parts exempted by TEX. R. APP. P. 9 .4(i)( 1 ). In making this certification, the undersigned has relied on the word-count function in Microsoft Word 2007, which was used to prepare the Brief of Appellants.
/s/ Stephanie S. Bascon Stephanie S. Bascon
CERTIFICATE OF SERVICE
The undersigned certifies that on the 16th day of September, 2014, the foregoing Brief for Appellant David J. Lubow was served on the following attorneys in accordance with the requirements of the Texas Rules of Appellate Procedure via electronic filing or emaiL
Ray B. Jeffrey A. Dannette Mitchell JEFFREY & MITCHELL, P. C. 2631 Bulverde Road, Suite 105 Bulverde, TX 78163
Marc F. Wiegand THE WIEGAND LAW FIRM, P.C. 434 N. Loop 1604 West, Suite 2201 San Antonio, TX 78232
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Elliott S. Cappuccio PULMAN, CAPPUCCIO PULLEN & BENSON, LLP 2161 N.W. Military Hwy., #400 San Antonio, TX 78213
J. Iris Gibson HAYNES & BOONE LLP 600 Congress Ave., Suite 1300 Austin, TX 78701
0. Paul Dunagan SARLES & OUIMET 370 Founders Square 900 Jackson Street Dallas, TX 75202
Ricardo Cedillo/ Isaac Huron Davis Cedillo & Mendoza McCombs Plaza, Ste. 500 755 E. Mulberry Ave. San Antonio, TX 78212
George H. Spencer Clemens & Spencer 112 E. Pecan St., Ste. 1300 San Antonio, TX 78205
Lamont A. Jefferson HAYNES & BOONE LLP 112 E. Pecan Street, Suite 1200 San Antonio, TX 78205-1540
Jonathan H. Hull REAGAN BURRUS 401 Main Plaza, Suite 200 New Braunfels, TX 78130
Bert H. Deixler KENDALL BRILL KLIEGER 10100 Santa Monica Blvd., Suite 1725 Los Angeles, CA 90067
Wallace B. Jefferson Rachel Ekery ALEXANDER DUBOSE JEFFERSON
& TOWNSEND, LLP 515 Congress Avenue, Suite 2350 Austin, TX 78701
Thomas S. Leatherbury Marc A. Fuller VINSON & ELKINS LLP Trammell Crow Center 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Telephone: 214.220.7792 Facsimile: 214.999.7792
Eric M. Lieberman RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700 New York, New York 10006 Telephone: 212.254.1111 Facsimile: 212.674.4614