Cause 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.
__________________________________________________________________
BRIEF OF APPELLANT
ED BRYAN
__________________________________________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding

Jonathan H. Hull
State Bar No 10253350
Ashley B. Bowen
State Bar No. 24086926
Reagan Burrus, PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Tel. (830) 625-8026
Fax (830) 625-4433
Attorneys for Appellant Ed Bryan

Oral Argument Requested
June 11, 2014
ACCEPTED
03-14-00199-CV
1531268
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/13/2014 9:35:47 AM
J EFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
6/13/2014 9:35:47 AM
JEFFREY D. KYLE
Clerk

i
IDENTITY OF PARTIES AND COUNSEL

1. Appellant Ed Bryan
Represented in the trial court and on appeal by:
Jonathan H. Hull
Ashley B. Bowen
REAGAN BURRUS PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: 830.625.8026
Facsimile: 830.625.4433


2. Other Appellants
a. Church of Scientology International
Represented in the trial court and on appeal by:
Ricardo G. Cedillo
Isaac J. Huron
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151

George H. Spencer, Jr.
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732

Bert H. Deixler
KENDALL BRILL KLIEGER
10100 Santa Monica Blvd., Suite 1725
Los Angeles, California 90067

ii
Telephone: 310.272.7910
Facsimile: 310.556.2705

Additional Counsel on appeal:

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


b. David Lubow

Represented in the trial court and on appeal by:

Stephanie S. Bascon
State Bar No. 19356850
LAW OFFICE OF STEPHANIE S. BASCON, PLLC
297 W. San Antonio Street
New Braunfels, Texas 78130
Telephone: 830-625-2940
Facsimile: 830-221-3441
sbascon@att.net



iii
c. Monty Drake
Represented in the trial court and on appeal by:
O. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: 214.573.6300
Facsimile: 214.573.6306

d. Steven Gregory Sloat
Represented in the trial court and on appeal by:
Jonathan H. Hull
Ashley B. Bowen
REAGAN BURRUS PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: 830.625.8026
Facsimile: 830.625.4433


3. Appellee Monique Rathbun
Represented in the trial court and on appeal by:
Ray B. Jeffrey
A. Dannette Mitchell
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
Telephone: 830.438.8935
Facsimile: 830.438.4958

Marc F. Wiegand
THE WIEGAND LAW FIRM P.C.
434 N. Loop 1604 West, Suite 2201
San Antonio, Texas 78232
Telephone: 210.998.3289

iv

Elliott S. Cappuccio
Leslie Sara Hyman
PULMAN, CAPPUCCIO, PULLEN, BENSON, & JONES, LLP
2161 N.W. Military Hwy., #400
San Antonio, Texas 78213
Telephone: 210.222.9494
Facsimile: 210.892.1610


v
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………i-iv
TABLE OF CONTENTS…………………………………………………….…v-vi
INDEX OF AUTHORITIES………………………………………………....vii-viii
STATEMENT REGARDING ORAL ARGUMENT…………………………......ix
STATEMENT OF THE CASE…………………………………………………….x
STATEMENT OF JURISDICTION………………………………………………xi
STANDARD OF REVIEW………………………………………………….…….xi
ISSUES PRESENTED……………………………………………………….xii-xiii
STATEMENT OF FACTS…………………………………………………………1
SUMMARY OF THE ARGUMENT………………………………………………2
ARGUMENT…………………………………………………………….…..…5-11
I. THE TRIAL COURT SHOULD HAVE GRANTED BRYAN’S ANTI-
SLAPP MOTION TO DISMISS………………………………………..…..5
A. The “Commercial Speech” Exemption Does Not Apply to Monique
Rathbun’s Claims…….………………………………………...…......5

B. The “Bodily Injury” Exemption Does Not Apply to Headaches and
Nausea…………………………………………………………..….…5

II. THE TRIAL COURT ERRED IN HOLDING THAT MONIQUE
RATHBUN’S CLAIMS WERE NOT BASED ON BRYAN’S FIRST
AMENDMENT RIGHTS………………………………………………..…..5
A. Monique Rathbuns’ Claims Are Based on Bryan’s Exercise of his Right
to Free Speech……………………………………………………...…6

vi
B. Monique Rathbun’s Claims Are Based on Bryan’s Exercise of his Right
to Association……………………………………………………..…..6
III. MONIQUE RATHBUN’S CLAIMS MUST BE DISMISSED BECAUSE
SHE DID NOT PRESENT “CLEAR AND SPECIFIC” EVIDENCE TO
SUPPORT ANY CLAIM AGAINST BRYAN ……………………………..6
A. Appellant Never Disclosed any True Facts about Monique Rathbun in
Public, So Her Invasion of Privacy Claim for Public Disclosure of
Private Facts Must Be Dismissed……………………………………..6
B. Monique Rathbun’s Invasion of Privacy Claim for Intrusion Should Be
Dismissed……………………………………………………………..7
C. Monique Rathbun Quit Her Job, so the Trial Court Erred When it Failed
to Dismiss Her Claim for Tortious Interference with
Contract…………………………………………………………….....9
D. Monique Rathbun’s Claim for Intentional Infliction of Emotional
Distress Should Be Dismissed………………………………………...9
E. There is No Authority for Holding Bryan Responsible for
the Acts of Others……………………………………………………10
IV. THE TRIAL COURT ERRED IN AWARDING ATTORNEYS’ FEES AND
COURT COSTS AGAINST THE APPELLANT AND IN FAILING TO
AWARD THE APPELLANT ITS FEES AND COSTS……………………11
CONCLUSION AND PRAYER………………………………………………….12
CERTIFICATE OF COMPLIANCE………………………………………..…….13
CERTIFICATE OF SERVICE…………………………………………..…….14-15
APPENDIX

vii
INDEX OF AUTHORITIES

Texas Appellate Cases

Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012,
*3 (Tex. App.—Austin (April 11, 2014) .................................................................. xi


Texas State Court Cases

Rehak Creative Services, 404 S.W.3d at 726 (emphasis added) ............................... 8


Federal District Court Cases

Gregory v. City of Chicago,
394 U. 111 (1969) .................................................................................................... 10

Hustler Magazine v. Farwell,
485 U.S. 46, 53 (1988) ............................................................................................. 10

Terminiello v. City of Chicago,
337 U.S. 1, 4 (1949) ................................................................................................. 10


Statutes, Acts & Torts

Tex. Civ. Prac. & Rem. Code Chapter 27 ................................................................. ix

Tex. Civ. Prac. & Rem. Code §27.001 et seq. (the “Act”) ........................................ x

Tex. Civ. Prac. & Rem. Code §27.005(c) .................................................................. 8

Tex. Civ. Prac. & Rem. Code §§ 27.003, 27.008 ..................................................... xi

Tex. R. App. P. 9.4(i)(1) .......................................................................................... 13

Tex. R. App. P. 9.4(i)(3) .......................................................................................... 13

viii

Tex. R. App. P. 9.7. ................................................................................1-2, 5-7, 9-11

Texas Citizens’ Participation Act ........................................................................ ix-xi

Texas Anti-SLAPP statute ........................................................................................ ix


ix
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist the Court. The record is voluminous, and oral
argument would give the Court an opportunity to question counsel about the
proceedings in the trial court and the evidence relating to the issues on this appeal.
This case raises important questions about the interpretation of the State’s anti-
SLAPP statute, the Texas Citizens’ Participation Act, Texas Civil Practice &
Remedies Code Chapter 27. Oral argument would give the Court an opportunity to
question counsel regarding the basis for, and the potential implications of, the trial
court’s novel and erroneous interpretation of this statute.

RECORD REFERENCES
The Reporter’s Record will be cited as [Vol.] RR [page].
The Clerk’s Record will be cited as [Vol.] CR [page].
The Supplemental Clerk’s Record will be cited SCR [page].


x
STATEMENT OF THE CASE
Nature of the case This case arises out of an ongoing public controversy
between Defendant/Appellant Church of Scientology
International (the “Church”) and former Scientologist Marty
Rathbun and his wife, Plaintiff/Appellee Monique Rathbun,
who became outspoken and public critics of the Church and
its leadership. Monique Rathbun sued the Church, as well
as Bryan, and others in connection with this dispute.

Monique Rathbun asserted claims for invasion of privacy by
publication of private facts, intrusion upon seclusion,
tortious interference with contract, and intentional infliction
of emotional distress. 1CR28-40.

Trial court The Honorable Dib Waldrip of the 433rd Judicial District
Court in Comal County presides over the trial court
proceedings.

Course of
proceedings
The trial court denied Appellants’ Motion to Dismiss under
the Texas Citizens’ Participation Act, Tex. Civ. Prac. &
Rem. Code § 27.001 et seq. (the “Act”). 31CR3753. The
trial court awarded attorneys’ fees and costs to Monique
Rathbun. Id.

Trial court
disposition
The trial court denied Appellants’ Motion to Dismiss on
March 14, 2014. Id. Appellants timely filed their Notice of
Appeal on April 2, 2014. 36CR4238-41.




xi
STATEMENT OF JURISDICTION
The Court has jurisdiction in this accelerated interlocutory appeal because
Appellants appeal the trial court’s denial of their motion to dismiss under the Texas
Citizens’ Participation Act (the “Act”). Tex. Civ. Prac. & Rem. Code §§ 27.003,
27.008.

STANDARD OF REVIEW
The Act provides for an automatic right of appeal on an expedited basis, and
for de novo review on all issues. Kinney v. BCG Attorney Search, Inc., No. 03-12-
00579-CV, 2014 WL 1432012, *3 (Tex. App.—Austin (April 11, 2014).











xii
ISSUES PRESENTED
1. Did the trial court err in denying Appellant Bryan’s Motion to Dismiss?

2. Did the trial court err in holding that the Act’s exemption for legal actions
“brought against a person primarily engaged in the business of selling or leasing
goods or services arising out of commercial activity” applied to Appellant?

3. Did the trial court err in holding that the Act’s exemption for legal actions
“seeking recovery for bodily injury” applied to Monique Rathbun’s complaints of
headaches and nausea?

4. Did the trial court err in holding that Monique Rathbun’s claims were not
“based on,” “relate[d] to,” or “in response to” Bryan’s exercise of his “right of free
speech,” “right of association,” or “right of petition?”

5. Did the trial court err in not dismissing Monique Rathbun’s cause of action
for invasion of privacy by public disclosure of private facts because (a) she failed to
provide “clear and specific” evidence that Bryan publicly disclosed any private facts
about her; (b) Monique Rathbun cannot seek relief for the alleged disclosure of
private facts about her husband; (c) she failed to provide “clear and specific”
evidence that Bryan 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
Monique Rathbun’s husband was a matter of legitimate public concern protected by
the First Amendment; and (e) the claim is barred by the statute of limitations?

6. Must the trial court dismiss Monique Rathbun’s cause of action for invasion
of privacy by intrusion into seclusion when (a) she failed to provide “clear and
specific” evidence that Bryan intruded into private areas or matters that are within
the zone of privacy protection under Texas law; and (b) the acts of Bryan are
protected by the First Amendment?

7. Must the trial court dismiss Monique Rathbun’s cause of action for intentional
interference with her employment contract when (a) she failed to provide “clear and
specific” evidence that her employer breached or terminated her contract; (b) she
failed to provide “clear and specific” evidence that any alleged breach by her
employer was proximately caused by Bryan; and (c) the claim is barred by the statute
of limitations?


xiii
8. Must the trial court dismiss Monique Rathbun’s cause of action for intentional
infliction of emotional distress when (a) she alleged it only as a “gap filler” and
asserts claims for the same acts under other torts and intentionally avoided alleging
other torts; (b) Monique Rathbun failed to provide “clear and specific” evidence
Bryan committed acts that meet the standard of “outrageous conduct;” and (c)
Bryan’s actions are protected by the First Amendment?


9. Must the trial court dismiss Monique Rathbun’s claims for vicarious liability
and conspiracy when those claims are derivative of her substantive claims?

10. Did the trial court err in awarding attorneys’ fees and costs to Monique
Rathbun, and in failing to award fees to Appellant, when it found the Motion to
Dismiss was not “frivolous” and made no finding (nor could it have) that the Motion
was “solely intended to delay” under the Act?



1
STATEMENT OF FACTS

Bryan adopts and incorporates by reference the Statement of Facts from the
Church’s Brief. TEX. R. APP. P. 9.7.
Ed Bryan
Appellant Ed Bryan is a private citizen who is a member of the Scientology
religion. He was not involved in any investigative activities. However, Bryan, as a
Scientologist, joined the “Squirrel Busters” in opposition of Mark Rathbun’s attacks
on the Church and its leadership. He peacefully protested the Rathbuns’ religious
heresy activities. 4CR461-62, 26CR3148, 3150, 30CR3629, 12RR221-23.
Bryan allegedly exchanged emails with another Scientologist, complaining of
Mark Rathbun’s activities. 12CR1522-24. Bryan did not send the emails to the
Rathbuns or anyone else. Id.
Bryan protested the Rathbuns’ activities on a public street. He talked with
Mark Rathbun for one minute while he was walking down the street. Id. He never
entered into Monique Rathbun’s property. 30CR3629.
Bryan never:
 entered on to any property owned or leased by Monique Rathbun, or
went to her workplace;

 peered into her home or photographed or filmed into the interior beyond
that which can be seen from a public thoroughfare;


2
 used any form of microphone to overhear private conversations of
Monique Rathbun at her place of business or residence;

 interfered with or wiretapped her telephone or Internet service;

 physically blocked or interfered with her freedom of movement, or
physically touched or threatened her;

 publicized any information about her; or

 photographed or videotaped her. 5CR651, 661.




SUMMARY OF THE ARGUMENT

Preliminarily, Bryan adopts and incorporates by reference the Summary of the
Argument from the Church’s Appellant’s Brief as well as that of Appellant David
Lubow. TEX. R. APP. P. 9.7.
Appellants’ actions were entirely lawful. Bryan sent emails to another
Scientologist which express concerns over Mark Rathbun’s heresies, and protested
those activities from a public street. These limited protest and petition activities
are protected by the First Amendment, and the Act is intended to dismiss suits like
this one at an early stage.
To defeat Appellants’ motion to dismiss under the Act, Monique Rathbun
must show “clear and specific” evidence of a prima facie case in support of each
element of her claims. Only after she met that burden did Bryan need to raise other

3
defenses requiring dismissal, such as the First Amendment. The Act must be
construed liberally to effectuate its purpose of encouraging and protecting First
Amendment rights.
The trial court found the Act did not apply because of two exemptions – (1)
the commercial speech exception and (2) the bodily injury exception. But the
Church is a tax-exempt church recognized as such by the IRS, so the commercial
speech exception does not apply to the Church or its agents. Monique Rathbun
cannot escape the rigors of the Act merely by offering an unverifiable Declaration
that Defendants’ First Amendment speech and petition activities caused Monique
Rathbun to suffer nausea and headaches.
Bryan protested public figure Rathbun’s world-wide media attack against
Bryan’s Church. Bryan’s protest consisted of speech which occurred on a public
street across from the Rathbun’s residence/office at Ingleside On the Bay. Bryan
also participated in the making of a documentary film concerning his protest. The
protest received substantial media attention.
1
The Rathbun Second Amended
Petition alleges four causes of action against Bryan. All of the Rathbun’s claims
relate to and arise out of “matters of public concern” within the meaning of the Act.


1
See Church brief.

4
General allegations against “Defendants” or “Scientology Agents” does not satisfy
Monique Rathbun’s burden to establish each element of her claims against Bryan by
“clear and specific” evidence. She attempts to hold Bryan responsible for the alleged
acts of all other Defendants, and for acts committed by unknown people. She cannot
do so without evidence supporting her vicarious liability theories. Because she has
none, Bryan can only be liable for his own acts – acts that are fully protected under
the Act.
Monique Rathbun produced no evidence, let alone clear and specific
evidence, that Bryan either disseminated facts about her to the public; physically
invaded Monique Rathbun’s property or eavesdropped on her conversations by any
electronic means; in any manner interfered with her employment; or undertook any
acts with respect to Monique Rathbun that are outrageous in a civilized society.



5
ARGUMENT

I. THE TRIAL COURT SHOULD HAVE GRANTED BRYAN’S ANTI-
SLAPP MOTION TO DISMISS.
A. The “Commercial Speech” Exemption Does Not Apply to Monique
Rathbun’s Claims.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
Monique Rathbun does not allege, and does not provide any evidence, that
Bryan was offering any goods or services, much less that he was “primarily engaged
in the business of selling or leasing goods or services.” Section 27.010(b). Because
it was her burden to prove that the exemption applied to the conduct of Bryan, and
she failed to do so, the trial court erred in finding this exception applied.
B. The “Bodily Injury” Exemption Does Not Apply to Headaches and
Nausea.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
II. THE TRIAL COURT ERRED IN HOLDING THAT MONIQUE
RATHBUN’S CLAIMS WERE NOT BASED ON BRYAN’S FIRST
AMENDMENT RIGHTS.

Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.

6
A. Monique Rathbuns’ Claims Are Based on Bryan’s Exercise of His
Right to Free Speech.
Bryan’s alleged email to another Scientologist and his discussion with the
Rathbuns on a public street are the only evidence offered by Monique Rathbun
against Bryan. These activities are clearly protected under Bryan’s right to free
speech under the First Amendment.
2

B. Monique Rathbun’s Claims Are Based on Bryan’s Exercise of His
Right to Association.
Monique Rathbun’s claims against Bryan are based on his expression, pursuit,
and defense of his common interests—specifically, to support the Church and its
leadership. 10CR1270-71.
III. MONIQUE RATHBUN’S CLAIMS MUST BE DISMISSED BECAUSE
SHE DID NOT PRESENT “CLEAR AND SPECIFIC” EVIDENCE TO
SUPPORT ANY CLAIM AGAINST BRYAN.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
A. Bryan Never Disclosed any True Facts about Rathbun in Public, So
Her Invasion of Privacy Claim for Public Disclosure of Private
Facts Must Be Dismissed.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.

2
Mark Rathbun is a public figure. The Church’s brief addresses this issue, and Appellant Bryan
adopts and incorporates the Church’s arguments on this issue. See Church brief at 28-31.

7
Additionally, as to all the reasons why Monique Rathbun’s claim must be
dismissed as set forth in the Church’s Brief, there is no evidence, much less “clear
and specific” evidence, that Bryan made any of the statements about her husband to
her parents, her ex-husband, and several co-workers upon which she rests her claim.
B. Monique Rathbun’s Invasion of Privacy Claim for Intrusion on
Seclusion Should Be Dismissed.
Bryan adopts and incorporates by reference the Arguments from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
It is undisputed that Bryan did not do any of the following:
 Invade or enter Monique Rathbun’s place of business or their residence.
4 CR462-63, 503; 2CR279, 290, 295, 299-300, 304; 3RR178-84.
 Peer into her home, photograph or film into the interior beyond what can be
seen from a public thoroughfare. Id.
 Use any form of microphone to overhear private conversations at her
business or home. Id.
 Engage, interfere with or wiretap Rathbun’s telephone or Internet service.
Id.
 Physically block, or interfere with her freedom of movement; Id. or
 Touch or threaten her. Id.

8
Bryan allegedly sent one email to another Scientologist criticizing Mark
Rathbun and told the Rathbuns he disagreed with their activities. 12CR1522-24.
He did not send the email to the Rathbuns, and his conversations with them took
place on a public street. Id. Because these do not give rise to any claims against
him, much less “clear and specific” evidence to satisfy the elevated evidentiary
standard under § 27.005 (c), her claim must be dismissed. Rehak Creative Servs.,
Inc., v. Witt, 404 S.W.3d 716, 724,726 (Tex. App.—Houston [14th Dist.] 2013, pet.
Denied).
Bryan’s public conversations with Monique Rathbun and her husband on a
public street are also no evidence of intrusion on privacy. Monique Rathbun cannot
reasonably expect seclusion while walking on a public street. Bryan’s actions and
communication with her were voluntary and took place on public streets. None of
these are intrusions on privacy.
Also, Monique Rathbun’s general comment that Bryan “confronted me on a
number of occasions” does not meet the requirement of an intrusion on seclusion.
Monique Rathbun’s claim that she was “confronted” is general and lacks the clarity
and specificity required by the Act. The court would again have to infer whether
Bryan simply said hello or walked past her on the street. Rehak, 404 S.W.3d at
726) (a plaintiff cannot rely on “‘presumptions, inferences or intendment.”).

9
Monique Rathbun has not shown by “clear and specific” evidence that the
limited actions of Bryan satisfy the elements of her claims, and because his actions
are protected by the rights of free speech and of association, these claims must be
dismissed.
C. Monique Rathbun Quit Her Job, so the Trial Court Erred When it
Failed to Dismiss Her Claim for Tortious Interference with
Contract.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
Monique Rathbun asserts that she lost her job because of this controversy.
There is no evidence that Bryan did anything related to her employment contract,
and she makes no allegations against him related to her job.
D. Monique Rathbun’s Claim for Intentional Infliction of Emotional
Distress Should Be Dismissed.
Bryan adopts and incorporates by reference the Argument from the Church’s
Appellant’s Brief. TEX. R. APP. P. 9.7.
Here, Monique Rathbun pleads the same facts and evidence to support her
other three causes of action against Bryan. The only other evidence she says supports
this claim fails to identify who did what, such as complaints about “anonymous
callers” and “Scientology websites.” None of this is any clear and specific evidence
against Bryan.

10
Bryan’s acts do not rise to the level of outrageous conduct. They do not
border on serious criminal acts. He never entered into her house, looked into the
windows, photographed or filmed the interior of it. 4CR462-63, 503; 2CR279,
290, 295, 299-300, 304; 3RR178-84.
Further, all of Bryan’s activities are protected under the First Amendment.
Private citizens have a right to protest, picket and speak out. Even if that speech is
“provocative or even stirs people to anger.” Terminiello v. City of Chicago, 337
U.S. 1, 4 (1949); see Gregory v. City of Chicago, 394 U.S. 111 (1969) (civil rights
march through residential neighborhoods of Chicago protected despite strong and
potentially violent reaction by residents).
Motives and intent of Bryan’s speech are irrelevant because, “in the world of
debate about public affairs, many things done with motives that are less than
admirable are protected by the First Amendment . . . even when a speaker or writer
is motivated by hatred or ill will his expression [is] protected by the First
Amendment.” Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988).
Bryan’s activities are all protected under the First Amendment.
E. There is No Authority for Holding Bryan Responsible for the Acts
of Others.
Bryan adopts and incorporates by reference the Argument from the briefs of
the Church and Monty Drake. TEX. R. APP. P. 9.7.

11
Monique Rathbun asserts a boiler-plate list against each Defendant for
various theories of vicarious liability, such as conspiracy, partnership, agency, joint
enterprise, respondeat superior, concert of action, ratification, assisting or
encouraging, and assisting and participating. 10 CR1276 at ¶50. But she produced
no evidence, much less clear and specific evidence, to establish a prima facie case
for any of these theories against Bryan. Because of this these claims should be
dismissed.
IV. THE TRIAL COURT ERRED IN AWARDING ATTORNEYS’ FEES
AND COURT COSTS AGAINST THE APPELLANT AND IN FAILING
TO AWARD THE APPELLANT HIS FEES AND COSTS.
Bryan adopts and incorporates by reference the Argument from the opening
briefs of the Church and Drake. TEX. R. APP. P. 9.7. The court declined to rule
that the motions to dismiss were frivolous or filed solely for delay but nevertheless
awarded Plaintiff her costs and attorneys’ fees. Bryan had separate and independent
counsel who filed simple joinders in the Church’s Motion to Dismiss. The court’s
predicate finding of fact does not apply to Bryan. Nor justify any award of costs
against him.





12
CONCLUSION AND PRAYER
Appellant Bryan prays that this Court reverse the trial court’s order denying
his Motion to Dismiss and awarding fees and costs against him, grant his Motion to
Dismiss, and render judgment for him, dismissing all of Monique Rathbun’s claims
with prejudice and remanding only for further proceedings concerning his claim for
attorneys’ fees and costs under the Act, together with such other and further relief to
which they may be entitled.
June 11, 2014
Respectfully submitted,

/s/ Jonathan H. Hull
Jonathan H. Hull
State Bar No 10253350
Ashley B. Bowen
State Bar No. 24086926
Reagan Burrus, PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Tel. (830) 625-8026
Fax (830) 625-4433
Attorneys for Appellant Ed Bryan
jhull@reaganburrus.com
abowen@reaganburrus.com

Attorneys for Appellant Ed Bryan

13
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), the undersigned hereby certifies that
this Brief of Appellant complies with the applicable word count limitation because
it contains 2169 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 2010, which was used to prepare the Brief of Appellant.
/s/ Jonathan H. Hull
Jonathan H. Hull


14
CERTIFICATE OF SERVICE
The undersigned certifies that on June 11, 2014, the foregoing Brief of
Appellant was served on the following attorneys in accordance with the
requirements of the Texas Rules of Appellate Procedure via electronic filing or
email.
Marc F. Wiegand
THE WIEGAND LAW FIRM, P.C.
434 N. Loop 1604 West, Suite 2201
San Antonio, TX 78232

Thomas S. Leatherbury
Marc A. Fuller
Daniel L. Tobey
VINSON & ELKINS L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975

Ricardo G. Cedillo
Isaac J. Huron
Les J. Strieber III
DAVIS, CEDILLO &
MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212

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

Eric M. Lieberman
RABINOWITZ,BOUDIN, STANDARD,
KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700
New York, NY 10006
elieberman@rbskl.com


15
Ray B. Jeffrey
A. Dannette Mitchell
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163

J. Iris Gibson
HAYNES & BOONE LLP
600 Congress Ave., Suite 1300
Austin, TX 78701

O. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, TX 75202

Bert H. Deixler
KENDALL BRILL KLIEGER
10100 Santa Monica Blvd., Suite 1725
Los Angeles, CA 90067

Stephanie S. Bascon
LAW OFFICE OF STEPHANIE S. BASCON, PLLC
297 W. San Antonio Street
New Braunfels, TX 78130

Wallace B. Jefferson
Rachel Ekery
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, TX 78701

/s/ Jonathan H. Hull
Jonathan H. Hull

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