Monique v. Scientology: Monty Drake Appeal

8/12/2019 Monique v. Scientology: Monty Drake Appeal

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Eric M. LiebermanR ABINOWITZ , BOUDIN , STANDARD ,K RINSKY & LIEBERMAN PC

45 Broadway, Suite 1700 New York, New York 10006Telephone: 212.254.1111Facsimile: 212.674.4614

Appellants Steven Gregory Sloat and Ed Bryan

Represented in the trial court and on appeal by:Jonathan H. HullR EAGAN BURRUS 401 Main Plaza, Suite 200

New Braunfels, Texas 78130Telephone: 830.625.8026Facsimile: 830.625.4433

Appellant Dave Lubow

Represented in the trial court and on appeal by:Stephanie S. BasconLAW OFFICE OF STEPHANIE S. BASCON PLLC 297 W. San Antonio Street

New Braunfels, Texas 78130(830) 625-2940 (830) 221-3441 facsimile

Appellee Monique Rathbun

Represented in the trial court and on appeal by:Ray B. JeffreyA. Dannette MitchellJEFFREY & M ITCHELL , P. C.2631 Bulverde Road, Suite 105Bulverde, Texas 78163Telephone: 830.438.8935Facsimile: 830.438.4958

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Marc F. WiegandTHE W IEGAND LAW FIRM P.C.434 N. Loop 1604 West, Suite 2201San Antonio, Texas 78232Telephone: 210.998.3289

Elliott S. CappuccioLeslie Sara HymanPULMAN , CAPPUCCIO , PULLEN , BENSON , & JONES , LLP2161 N.W. Military Hwy., #400San Antonio, Texas 78213Telephone: 210.222.9494Facsimile: 210.892.1610

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................. i

TABLE OF CONTENTS .......................................................................................... iv

INDEX OF AUTHORITIES ..................................................................................... vi STATEMENT REGARDING ORAL ARGUMENT ........................................... viii

STATEMENT OF THE CASE .............................................................................. viii

ISSUES PRESENTED ........................................................................................... viii

STATEMENT OF FACTS ........................................................................................ 1

STANDARD OF REVIEW ....................................................................................... 4

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT ............................................................................................................. 6

I. THE DISTRICT COURTS HOLDINGS THAT PLAINTIFFS CLAIMSWERE EXEMPT FROM THE TCPA WERE ERRONEOUS ANDWOULD RENDER THE TCPA A VIRTUAL NULLITY. ........................... 6

A. The Commercial Speech Exemption Does Not Apply to PlaintiffsClaims. ................................................................................................... 6

B. The Bodily Injury Exemption of Section 27.010(c) Does NotApply to Plaintiffs Claims, Especially those against Drake.. .............. 8

II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFFSCAUSES OF ACTION WERE NOT BASED ON, RELATED TO OR INRESPONSE TO THE EXERCISE OF APPELLANTS' RIGHTS TOFREE SPEECH, ASSOCIATION, OR PETITION. ....................................... 9

III. PLAINTIFFS CLAIMS MUST BE DISMISSED BECAUSE SHE DID NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORTESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOTOVERCOME DRAKE'S AFFIRMATIVE DEFENSES. ............................. 10

A. There Is No Evidence to Support Vicarious Liability against Drakefor the Actions of any other Defendant. .............................................. 10

B. Plaintiffs Invasion of Privacy Claim for Public Disclosure ofPrivate Facts Should Be Dismissed. .................................................... 15

C. Plaintiffs Invasion of Privacy Claim for Intrusion Should BeDismissed. ........................................................................................... 15

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D. Plaintiffs Claim for Tortious Interference with Contract Should BeDismissed. ........................................................................................... 16

E. Plaintiffs Claim for Intentional Infliction of Emotional DistressShould Be Dismissed. ......................................................................... 17

IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYSFEES AND COURT COSTS AGAINST DRAKE AND IN FAILING TOAWARD HIM HIS FEES AND COSTS. ..................................................... 17

CONCLUSION AND PRAYER ............................................................................. 18

CERTIFICATE OF COMPLIANCE ....................................................................... 18

CERTIFICATE OF SERVICE ................................................................................ 19

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INDEX OF AUTHORITIES

Cases

Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001) .......................................................13

Briggs v. Eden Council for Hope & Opportunity , 19 Cal. 4th 1106,81 Cal. Rptr. 2d 471, 969 P.2d 564 (Cal. 1999) ................................................... 9

Buchoz v. Klein , 143 Tex. 284, 184 S.W.2d 271 (1944) .........................................14

Crouch v. Trinque, 262 S.W.3d 417 (Tex. App.Eastland 2008, no pet.) ............13

Fojtik v. First National Bank, 752 S.W.2d 669 (Tex. App.Corpus Christi

1988), writ denied , 775 S.W.2d 632 (Tex. 1989) ...............................................13

GTE Southwest, Inc. v. Bruce , 998 S.W.2d 605 (Tex.1999) ...................................14

Holloway v. Skinner, 898 S.W.2d 793 (Tex. 1995) .................................................13

Land Title Company v. F.M. Stigler, Inc. , 609 S.W.2d 754 (Tex.1980) .................14

Ludwig v. Superior Court , 37 Cal. App. 4th 8, 43 Cal. Rptr. 2d 350(Cal. App. 1995, pet. denied) ..............................................................................10

Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716 (Tex. App.Houston [14th Dist.] 2013, pet. denied) ..............................................................11

Schlumberger Well Service Corporation v. Nortex Oil & Gas Corporation ,435 S.W.2d 854 (Tex.1968) ................................................................................12

Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974) .................................14

Tichinin v. City of Morgan Hill , 177 Cal. App. 4th 1049,99 Cal. Rptr. 3d 661 (Cal. App. 2009, pet. denied) .............................................. 7

Triplex Communications v. Riley, 900 S.W.2d 716 (Tex.1995) ..............................12

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Vosko v. Chase Manhattan Bank, N.A. , 909 S.W.2d 95 (Tex. App.Houston[14th Dist.] 1995, writ denied) ............................................................................13

Wallace v. McCubbin , 196 Cal. App. 4th 1169, 128 Cal. Rptr. 3d 205(Cal. App. 2011, pet. denied) ..............................................................................10

White v. Lieberman , 103 Cal. App. 4th 210, 126 Cal. Rptr. 2d 608(Cal. App. 2002)..................................................................................................10

Statutes

BUS . ORG . CODE 152.052 ................................................................................. 13-14

TEX . CIV. PRAC . & R EM . CODE 27.001 ................................................................... ix

TEX . CIV. PRAC . & R EM . CODE 27.005(c) ..............................................................10

TEX . CIV. PRAC . & R EM . CODE 27.009(1) .............................................................. xi

TEX . CIV. PRAC . & R EM . CODE 27.009(2)(b) ......................................................... xi

TEX . CIV. PRAC . & R EM . CODE 27.010(b) ............................................................ viii

TEX . CIV. PRAC . & R EM . CODE 27.010(c) .............................................................. ix

TEX . OCCUPATIONS CODE 1702.104 ...................................................................4, 16

TEX . OCCUPATIONS CODE 1702.132 ......................................................................... 7

TEX . OCCUPATIONS CODE 1702.133 ......................................................................... 7

Rules

TEX . R. APP. P. 9.7 ......................................................................... viii, 1, 4-10, 15-17

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3. Whether the district court erred in holding that the TCPAs exemption

for legal actions seeking recovery for bodily injury, T EX . CIV. PRAC . & R EM . CODE

27.010(c), required denial of Drakes motion because Plaintiffs alleged damages

include, at specific times, headaches and nausea, none of which can be shown to

have been caused by Drake?

4. Whether the district court erred in holding (a) that Plaintiffs claims

were not based on, relate[d] to, or in response to Appellants exercise of the

right of free speech, right of association, or right of petition, T EX . CIV. PRAC .

& R EM . CODE 27.001, and (b) that lawful surveillance conducted by a licensed

private investigator in anticipation of and in response to litigation by or against his

client does not arise out of the right to petition the courts for redress of grievances?

5. Whether the district court erred in not dismissing Plaintiffs claim

against Drake for invasion of privacy by public disclosure of private facts because

(a) Plaintiff failed to provide clear and specific evidence that Drake publicly

disclosed any facts, private or otherwise, about her; (b) Plaintiff cannot seek relief

for the alleged disclosure of private facts about her husband; (c) Plaintiff failed to

provide clear and specific evidence that anyone disclosed private facts about her

husband to more than a few individuals, and not the public at large; (d) the alleged

disclosure of facts about Plaintiffs husband was a matter of legitimate public

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concern protected by the First Amendment; and (e) the claim is barred by the statute

of limitations?


against Drake for invasion of privacy by intrusion into seclusion because (a) Plaintiff

failed to provide clear and specific evidence that Drake intruded into private areas

or matters that are within the zone of privacy protection under Texas law; and (b)

the acts were protected by the First Amendment?


against Drake for tortious interference with her employment contract because (a)

Plaintiff failed to provide clear and specific evidence that her employer breached

or terminated her contract; (b) Plaintiff failed to provide clear and specific

evidence that any alleged breach by her employer was proximately caused by actions

of Drake; and (c) the claim is barred by the statute of limitations?


against Drake for intentional infliction of emotional distress because (a) the tort is

applicable only as a gap filler and Plaintiff alleges claims for the same acts under

other torts and intentionally avoided alleging others; (b) Plaintiff failed to provide

clear and specific evidence that Drake committed acts that meet the standard of

outrageous conduct; (c) the acts were protected by the First Amendment.

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9. Whether the district court erred in awarding attorneys fees and costs to

Plaintiff in violation of the TCPA, where the court expressly held that Drakes

Motion to Dismiss was not frivolous and made no finding (nor could it have) that

his Motion was solely intended to delay, T EX . CIV. PRAC . & R EM . CODE

27.009(2)(b), and further erred in failing to hold that Drake was entitled to his

attorneys fees and costs under Section 27.009(1)?

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STATEMENT OF FACTS

Drake adopts and incorporates by reference the Statement of Facts in the

Churchs Appellants Brief. T EX . R. APP. P. 9.7.

Drake is a private investigator licensed in the states of Texas and Oklahoma

who has been in the private investigation industry since 1986 and never sanctioned

or disciplined by either the Texas State Board of Private Investigators or the

Oklahoma Counsel for Law Enforcement Education and Training. 38 CR 4477,

4478 at 3 & 6. Drake has extensive expertise in the investigation of trademark

and other intellectual property rights violations. 38 CR 4478 at 4. In 2009, Drake

was retained by a Los Angeles attorney, Elliot Abelson, on behalf of his client, the

Church, to undertake an investigation in support of litigation, prospective litigation

and threatened litigation related to the Church and to investigate potential theft of

Church materials and violations of intellectual property rights licensed to the Church

relating to the Scientology religion. 38 CR 4478-4479 at 7. Mr. Abelson hired

Drake on behalf of the Church to gather facts for potential civil and criminal actions

against Mr. Rathbun. Id.

At no time did Drake or anyone working under his direction or in coordination

with him undertake any unlawful actions, actions exceeding his private investigator

license, or any action which otherwise violated the Rathbuns privacy. 38 CR 4479

at 8 . The focus of his investigation was Mr. Rathbun, not Plaintiff. Id.

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As admitted in Paragraph 39 of Plaintiffs Second Amended Petition, Drakes

investigation consisted of surveillance, including surveillance, photographing,

videotaping and still cameras. 10 CR 1273. These cameras were focused on the area

outside the Rathbuns office/home, in Ingleside On The Bay, Texas, that was

publicly visible from the street or other public areas. 38 CR 4479 at 9. The video

and photographing were performed from a nearby house in Ingleside On The Bay

which Drake rented for that purpose. Id. The cameras allowed Drake to observe

persons coming and going from the Rathbuns office/home premises. Id. Anything

Drakes camera could see, a person could also see from the public street. Id.

No surveillance was ever done by Drake, or by anyone working with him or

within his knowledge, that was directed inside the Rathbuns office/home, id. , and

the district court struck Plaintiffs unsubstantiated accusations to the contrary. 35

CR 4166-4167. The only evidence is that Drake did no surveillance whatsoever by

photographing or videotaping into the Rathbuns windows or doors. 38 CR 4479-

4480 at 9.

Although Paragraph 13.c. of Plaintiffs amended declaration alleged that all

of the Defendants including Drake directed the Squirrel Busters in Ingleside On The

Bay, Texas, 35 CR 4181 , the uncontradicted evidence showed that Drake never

directed the Squirrel Busters in any way for any reason or activity. 26 CR 3143 at

4 . The district court struck from Plaintiffs declaration her unsupported statement

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to the contrary, 35 CR 4168 , as well as all other similar allegations by Plaintiff. 35

CR 4164, 4167-4168. Drake used no electronic eavesdropping or listening devices

in his investigation. 38 CR 4480 at 9. No electronic tracking devices were used to

track the Rathbuns, id. , and the district court struck from Mr. Rathbuns declaration

the unsupported allegation that they were. 35 CR 4170. Neither Drake nor anyone

working with or for him ever entered on the Rathbuns property. 38 CR 4480 at 9.

Neither Drake nor anyone working with or for him ever spoke with or sent

anything to Mrs. Rathbun or to her place of employment, id. , and, again, the Court

properly struck from Plaintiffs declaration that unsupported allegation. 35 CR

4165-4166. Neither Drake nor anyone working for or with him ever spoke with or

contacted Plaintiffs father, mother, coworkers or anyone identified as her friend, 26

CR 3144 at 6 , and the district court properly struck the unsupported allegation in

Mr. Rathbuns declaration to the contrary. 35 CR 4169.

Drakes surveillance cameras across the street from the Rathbuns

office/home in Ingleside By The Bay were not discovered by the Rathbuns until

October of 2012. 31 CR 3759 at 12. After the Rathbuns moved in late 2012 to a

secluded homesite in Bulverde, Texas, id. at 13, 35 CR at 4203-4204 at 29-32 ,

there is no evidence that Drake was involved in any of the actions about which

Plaintiff complains. See 31 CR 3759-3760 at 15-16 . Although Plaintiffs

declaration baldly asserted that unidentified Scientology agents followed her at

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multiple locations, 35 CR 4182 at 15a , Plaintiff never asserted or offered any

admissible evidence showing that Drake had committed these acts, see id. , and

Drake expressly denied that either he or anyone working for or with him or known

to him ever entered Ms. Rathbuns workplace, stood in the hall, or followed her to

Sams store on I-10. 26 CR 3143-3144 at 5.

Drakes investigative actions, undertaken at the request of counsel, respecting

Mr. Rathbun were surveillance and interviews conducted, as expressly found by the

district court, 31 CR 3759 at 12 , for the purpose of obtaining information

concerning (a) completed and/or threatened crimes and other wrongs against the

Church, (b) the identity, habits, conduct, business, occupation, honesty, integrity,

credibility, knowledge, activity, movement, whereabouts, affiliations, associations,

transactions, acts, reputation, or character of Mr. Rathbun and those associated with

him, (c) the location, disposition and recovery of misappropriated or stolen Church

property, and (d) securing evidence to be used before a court or for complaints to

appropriate law enforcement. 38 CR 4480 at 10. All of these activities are

expressly within the scope of Drakes Texas private investigator license. See TEX .

OCCUPATIONS CODE 1702.104.

STANDARD OF REVIEW

Drake adopts and incorporates by reference the Standard of Review section of

the Churchs Appellants Brief. TEX. R. APP. P. 9.7.

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SUMMARY OF THE ARGUMENT

Drake adopts and incorporates by reference the Summary of the Argument in


The TCPA exemptions applied by the district court are inapplicable to Drake.

A licensed private investigator whose investigative reports were made only to his

client, Drake had no intention to communicate to and affect an audience of actual

or interested (current or former) customers of the Church. Because of the 26-month

respite in her alleged headaches and nausea, Plaintiff cannot establish a bodily

injury claim against Drake. Drake is protected by the TCPA and was entitled to

move under it to dismiss Plaintiffs claims against him.

Each of Plaintiffs substantive causes of action is subject to dismissal under

the TCPAs criteria, and there is no evidence against Drake regarding any of the

laundry list of vicarious liability theories that Plaintiff baldly, globally asserted in

her Second Amended Petition.

Plaintiff has no claim against Drake for invasion of privacy by publication of

private facts, because Drake did not make any public statements concerning

Plaintiff. The claim is precluded in any event because the tort is restricted to

invasion of ones own privacy; any publication by any other Defendant was not to

the public but only to a few persons; the facts already had been made public by

Rathbun himself; the matter was of public interest; the claim is barred by limitations.

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Plaintiffs privacy claim against Drake for intrusion on seclusion fails to meet

the requirements that there be either a physical invasion of a persons property or

eavesdropping on anothers conversation. No such improper intrusion occurred.

Plaintiff has no claim against Drake for tortious interference with contract.

Plaintiff resigned from her job in Corpus Christi on April 1, 2011. She presented no

evidence whatsoever that Drake communicated with her employer or interfered with

her employment contract in any way. The claim is also barred by limitations.

The IIED claim must be dismissed under the gap-filler doctrine, and no act

by Drake meets the outrageousness element of the tort.

The trial court erred by awarding costs and fees to Plaintiff instead of Drake.

ARGUMENT

I. THE DISTRICT COURTS HOLDINGS THAT PLAINTIFFSCLAIMS WERE EXEMPT FROM THE TCPA WERE ERRONEOUSAND WOULD RENDER THE TCPA A VIRTUAL NULLITY.

Drake adopts and incorporates by reference the arguments in Section I of the

Churchs Appellants Brief. TEX. R. APP. P. 9.7.

A. The Commercial Speech Exemption Does Not Apply toPlaintiffs Claims against Drake.

Drake adopts and incorporates by reference the arguments in Section I.A of


The district court denied Drakes Motion to Dismiss under the TCPA under

the commercial speech exemption because a preponderance of the evidence

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demonstrates that the majority of the conduct and statements about which Plaintiff

complains was . . .intended to communicate to and to affect an audience of actual

or interested potential (current or former) customers . . . . 31 CR 3768. In so ruling

the district court lumped the conduct of all Defendants together and failed to

separately consider that Drake had no public audience. His confidential

communications were, as contemplated by Sections 1702.132 and 1702.133 of the

Texas Occupations Code, limited to the Church and its counsel. Plaintiff never

alleged or offered any admissible evidence to prove that Drake communicated with

anyone other than Church counsel and his client.

In Tichinin v. City of Morgan Hill , 177 Cal. App. 4th 1049, 1069, 99 Cal. Rptr.

3d 661, 677 (Cal. App. 2009, pet. denied), the court held that Californias similarly

worded anti-SLAPP statute necessarily applies to pre-litigation investigation by a

private investigator:

In our view, moreover, the prelitigation investigation of a potential claim is noless incidental or related to possible litigation than prelitigation demand lettersand threats to sue, which are entitled to protection. In fact, such letters andthreats are themselves likely to be the result of a prelitigation investigation.

Given the close functional relationship between the preliminaryinvestigation of a potential claim and the subsequent assertion of that claim, weconsider it obvious that restricting, enjoining, or penalizing prelitigation

investigation could substantially interfere with and thus burden the effectiveexercise of one's right to petition. Indeed, we can think of few better ways to

burden that right than to make it difficult and perhaps legally risky for peopleto investigate and find evidence to support potential claims. For this reason, weconsider it as proper and appropriate to protect prelitigation investigation as itis to protect prelitigation letters that demand settlement or threaten legal actiondiscovery, and postlitigation settlement talks.

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B. The Bodily Injury Exemption of Section 27.010(c) Does Not

Apply to Plaintiffs Claims, Especially those against Drake.

Drake adopts and incorporates by reference the arguments in Section I.B of


Moreover, the district courts conclusion that Plaintiff suffered severe

headaches due to the surveillance of investigators and Squirrel Busters, 31 CR

3770 at 10 , cannot support a TCPA-exempt claim for bodily injury against

Drake. The only support cited by the district court for the proposition that Plaintiff

suffered these headaches and nausea is her own declaration. 31 CR 3770-3771 at

10. Paragraphs 11c &16a-b are the only assertions by Plaintiff that she suffered

these physical manifestations of her anxietyher only asserted bodily injury. See

35 CR 4179-4180, 4183. Plaintiff makes clear in Paragraphs 11c and 16a-b that she

suffered these headaches and nausea (1) while living in Ingleside On The Bay only

during the time period when she was employed in Corpus Christi , with the headaches

only recurring (2) after the Rathbuns moved to Comal County and discovered the

reconnaissance cameras near their house there. Id.

It is undisputed that Plaintiff resigned her employment in Corpus Christi on

April 1, 2011, 35 CR 4201 at 23 , and that her last day in that employment was April

29, 2011. 33 CR 4022-4023 . Plaintiff has thus admitted that she did not suffer any

headaches or nausea during the period from May of 2011 until Mr. Rathbuns

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Rptr. 2d 471, 477, 969 P.2d 564, 570 (Cal. 1999)(a defendant moving under the

California anti-SLAPP statute need not demonstrate that its protected statements or

writings were made on its own behalf as opposed to its clients behalf); Wallace v.

McCubbin , 196 Cal. App. 4th 1169, 1184, 128 Cal. Rptr. 3d 205, 216 (Cal. App.

2011, pet. denied)(a defendant may move to dismiss under the anti-SLAPP statute

even though he only supported another person who actually performed the protected

activity); Ludwig v. Superior Court , 37 Cal. App. 4th 8, 16-18, 43 Cal. Rptr. 2d 350,

356-357 (Cal. App. 1995, pet. denied)(same); White v. Lieberman , 103 Cal. App.

4th 210, 221, 126 Cal. Rptr. 2d 608, 615 (Cal. App. 2002)(an attorney acting on

behalf of his client may invoke the clients petition rights in an anti-SLAPP motion).

III. PLAINTIFFS CLAIMS MUST BE DISMISSED BECAUSE SHE DIDNOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORTESSENTIAL ELEMENTS OF HER CLAIMS AGAINST DRAKE ANDCANNOT OVERCOME DRAKES AFFIRMATIVE DEFENSES.

Drake adopts and incorporates by reference the arguments in Section III of the


A. There Is No Evidence to Support Vicarious Liability against Drakefor the Actions of any other Defendant.

The TCPA requires that plaintiff establish by clear and specific evidence a

prima facie case for each element of the Plaintiffs claims against each Defendant.

TEX . CIV. PRAC . & R EM . CODE 27.005(c). A prima facie case is one that will entitle

a party to recover if no evidence to the contrary is offered by the opposite party.

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order denying the Motion to Dismiss erroneously assumed that the conduct of any

Defendant could be attributed to every other Defendant.

Here, Drake submitted uncontradicted evidence showing that he was hired by

attorney Abelson on behalf of the Church to undertake an investigation in support of

prospective litigation. 38 CR 4478-4479 at 7. Attorney Abelson hired Drake to

gather facts which might be relevant to potential civil and criminal actions involving

Mr. Rathbun. Id. There is no evidence that when Drake was hired he spoke with,

met or had knowledge of any of the other Defendants or their activities. See

generally 23 CR 2748-2769 (Plaintiffs evidence appendix). Moreover, there is no

evidence that Drake had any knowledge of the harm or wrongful conduct or intended

damage alleged by Plaintiff, either at the inception of Drakes work on behalf of the

Church or at any time thereafter. See id. There could, therefore, be no meeting of

the minds, an essential element of any conspiracy claim whereby Drake could be

held liable as co-conspirator for the allegedly wrongful acts of other Defendants. See

Schlumberger Well Service Corporation v. Nortex Oil & Gas Corporation , 435

S.W.2d 854, 857 (Tex.1968)(defendant without knowledge of the object of purpose

of the conspiracy cannot be a conspirator, because it cannot agree, either expressly

or tacitly, to the commission of a wrong of which it is not aware); Triplex

Communications v. Riley, 900 S.W.2d 716, 719-20 (Tex.1995)(conspirators must

be aware of the harm or wrongful conduct at the inception of the agreement).

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There is no evidence that Drake had knowledge of the activities of the

Squirrel Busters, that he made any agreement with them, or that he acted in concert

with them, assisted or encouraged them or that his investigative activities were a

substantial factor in causing the Squirrel Busters public protests or confrontations

with Plaintiff. 26 CR 3143 at 4; 35 CR 4164, 4167-4168 (district court order

striking Plaintiffs accusations that Drake coordinated with the Squirrel Busters).

Regardless, Plaintiff has judicially admitted that the investigators, including

Drake, and the Squirrel Busters are agents of the Church. 10 CR 1276-1278 at 50-

56. However, under Texas law, an agent cannot conspire with its principal, Bradford

v. Vento, 48 S.W.3d 749, 761 (Tex. 2001), or with the principals other agents. Fojtik

v. First National Bank, 752 S.W.2d 669, 673 (Tex. App.Corpus Christi 1988),

writ denied , 775 S.W.2d 632 (Tex. 1989); Crouch v. Trinque, 262 S.W.3d 417, 427

(Tex. App.Eastland 2008, no pet.). The acts of an agent and its principal are the

acts of a single entity under Texas law. Holloway v. Skinner, 898 S.W.2d 793, 795

(Tex. 1995); Vosko v. Chase Manhattan Bank, N.A. , 909 S.W.2d 95, 100 n.7 (Tex.

App.Houston [14th Dist.] 1995, writ denied). As a matter of law, Drake could

not, for purposes of vicarious liability under Texas law, have conspired with, acted

in concert with, assisted or encouraged the Church or any of the other Defendants.

There is no clear and specific evidence of each of the essential elements of

a partnership or joint enterprise between Drake and any other Defendant. See TEX.

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BUS . ORG . CODE 152.052(elements of partnership); Shoemaker v. Estate of

Whistler, 513 S.W.2d 10, 16 (Tex.1974)(elements of joint enterprise). There is also

no such evidence that Drake by act or statement gave authority, actual or apparent,

to any other Defendant, established a respondeat superior relationship with any

other Defendant, or ratified any act of any other Defendant. See Buchoz v. Klein ,

143 Tex. 284, 286, 184 S.W.2d 271 (1944)(agency is not presumed and plaintiff

bears the burden of proof); GTE Southwest, Inc. v. Bruce , 998 S.W.2d 605, 617-18

(Tex.1999)( respondeat superior liability prerequisites); Land Title Company v. F.M.

Stigler, Inc. , 609 S.W.2d 754, 756-57 (Tex.1980)(full knowledge required for

ratification).

In sum, there is no clear and specific evidence to establish a prima facie

case that Drake is liable for the alleged acts of any other Defendant. See generally

23 CR 2748-2769 (Plaintiffs evidence appendix, failing to set forth any evidence in

support of any of these theories for vicarious liability). To avoid dismissal under

the TCPA, Plaintiff had the burden to prove each essential element of each cause of

action against Drake by evidence that is both clear and specific as to Drake . Plaintiff

did not and cannot prove her prima facie case against Drake by evidence of acts by

the other Defendants, because Plaintiff produced no admissible evidence to impose

vicarious or joint liability against Drake under Texas law for any alleged act of his

Co-Defendants.

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is that Drake did no surveillance whatsoever by photographing or videotaping into

the Rathbuns windows or doors. 38 CR 4479-4480 at 9.

Drake used no electronic eavesdropping or listening devices in his

investigation. 38 CR 4480 at 9. No electronic tracking devices were used to track

the Rathbuns, id. , and the district court struck from Mr. Rathbuns declaration the

unsupported allegation that they were. 35 CR 4170. Neither Drake nor anyone

working with or for him ever entered upon the Rathbuns property. 38 CR 4480 at

9.

Because the purposes and acts of Drakes surveillance, as expressly found by

the district court, 31 CR 3759 at 12 , were within the scope of those permitted by

his license as a Texas private investigator, see TEX . OCCUPATIONS CODE 1702.104,

and because his surveillance did not invade the boundaries of privacy established by

Texas law, Plaintiffs claim of intrusion on privacy against Drake should be

dismissed for her failure to presentand her inability to ever presentclear and

specific evidence to support this claim against Drake. This Court should dismiss

this claim against Drake.

D. Plaintiffs Claim for Tortious Interference with Contract ShouldBe Dismissed.

Drake adopts and incorporates by reference the arguments in Section III.C of

the Churchs Appellants Brief. TEX. R. APP. P. 9.7. Moreover, Plaintiff presented

no evidence whatsoevermuch less clear and specific evidencethat Drake

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communicated with Plaintiffs employer or interfered with her employment contract

in any way, shape or form. See 23 CR 2755-2756 (Plaintiffs evidence appendix,

citing no evidence against Drake regarding her tortious interference with contract

claim); 35 CR 4165-4166, 4169 (district courts order sustaining Drakes objections

and striking Plaintiffs unsupported allegations that he contacted her co-workers or

sent anything to her office).

E. Plaintiffs Claim for Intentional Infliction of Emotional DistressShould Be Dismissed.

Drake adopts and incorporates by reference the arguments in Section III.D of

the Churchs Appellants Brief. TEX. R. APP. P. 9.7. Moreover, Plaintiff

introduced no evidence whatsoevermuch less clear and specific evidencethat

Drake did anything that would constitute the intentional infliction of emotional

distress under Texas law. See 23 CR 2749-2755 (Plaintiffs evidence appendix,

citing no evidence specific as to Drake regarding her IIED claim); 35 CR 4164-4172

(district courts order sustaining Drakes objections and striking Plaintiffs

unsupported contentions regarding his alleged involvement).

IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYSFEES AND COURT COSTS AGAINST DRAKE AND IN FAILING TO

AWARD HIM HIS FEES AND COSTS.Drake adopts and incorporates by reference arguments in Section IV of the


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CERTIFICATE OF SERVICEThe undersigned certifies that on the 11th day of June, 2014, the foregoing

Brief of Appellant Monty Drake was served on the following attorneys in accordancewith the Texas Rules of Appellate Procedure via electronic filing or email.

Thomas S. LeatherburyMarc A. FullerVINSON & ELKINS LLP2001 Ross Avenue, Suite 3700Dallas, Texas 75201-2975

Ricardo G. CedilloIsaac J. HuronDavis, Cedillo & Mendoza, Inc.

755 E. Mulberry Avenue, Suite 500San Antonio, Texas 78212

George H. Spencer, Jr.CLEMENS & SPENCER 112 E. Pecan Street, Suite 1300San Antonio, Texas 78205-1531

Eric M. LiebermanR ABINOWITZ , BOUDIN , STANDARD ,

K RINSKY & LIEBERMAN PC45 Broadway, Suite 1700

New York, NY 10006

J. Iris GibsonHAYNES & BOONE LLP600 Congress Ave., Suite 1300Austin, TX 78701

Stephanie S. BasconLAW OFFICE OF STEPHANIE BASCON 297 W. San Antonio Street

New Braunfels, TX 78130

Marc F. WiegandTHE WIEGAND LAW FIRM , P.C.434 N. Loop 1604 West, Suite 2201San Antonio, TX 78232

Ray B. JeffreyJEFFREY & M ITCHELL , P. C.2631 Bulverde Road, Suite 105Bulverde, TX 78163

Elliott S. CappuccioPULMAN , CAPPUCCIO PULLEN& BENSON , LLP2161 N.W. Military Hwy., #400San Antonio, TX 78213

Lamont A. JeffersonHAYNES & BOONE LLP112 E. Pecan Street, Suite 1200San Antonio, TX 78205-1540

Jonathan H. HullR EAGAN BURRUS 401 Main Plaza, Suite 200

New Braunfels, TX 78130

Wallace B. JeffersonALEXANDER DUBOSE JEFFERSON

& TOWNSEND , LLP515 Congress Avenue, Suite 2350Austin, TX 78701

/s/ Gary D. Sarles .Gary D. Sarles

Documents

Monique v. Scientology: Monty Drake Appeal