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 sbascon@att.net

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

Wallace v. McCubbin, 196 Cal. App. 4th 1169, 1184, 128 Cal. Rptr. 3d 205, 216 (Cal. App. 2011 , pet. denied) ............................................... .......................... 6, 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

White v. Lieberman, 103 Cal. App. 4th 210, 221, 126 Cal. Rptr. 2d 608, 615 (Cal. App. 2002) ............... ................... .............. .................... ..................................... 7

ii

Statutes and Rules

TEX. Ctv. PRAC. &REM. CODE §27.005 .............................................................. ...... . 6

TEX. Ctv. PRAC. & REM. CODE §27.005(b) .. .... .......................................................... 6

TEX. Ctv. PRAC. & REM. CODE §27.010(c) ................................................................ 5

TEX. R. APP. P. 9.7 ....................... ........................................ 1, 4, 5, 6, 7, 9, 10, 11, 12

iii

INTRODUCTION

David Lubow adopts and incorporates by reference the Introduction in the

Reply Brief of the Appellant Church of Scientology International (the "Church").

TEX. R. APP. P. 9. 7.

David Lubow ("Lubow") is entitled to protection under the Texas Citizens

Participation Act ("TCPA") both in his individual capacity as a Squirrel Buster in

exercising his right to free speech and right to association and in his capacity as a

private investigator, acting in accordance with his California private investigator's

license, in assisting the Church in exercising its right to petition.

While the TCPA requires clear and specific evidence against a party moving

for dismissal (Lubow), the Appellee fails to distinguish between the actions of the

Squirrel Busters and the actions of the private investigators. The Appellee also

fails to distinguish between the actions of the various private investigators. Each

of the individual defendant's actions is protected under the TCPA and needs to be

evaluated separately. They each took different actions at different times. Mr.

Lubow's actions, as an individual defendant in the litigation, must be evaluated

separately. He is not responsible for the actions of other defendants and Appellee

has failed to establish any vicarious liability amongst the defendants.

Lubow's activity as a Squirrel Buster took place, intermittently over the

course of five months in 2011. The Squirrel Busters completed their work in

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September of 2011. (Appellee concedes that if that was all they had done, there

would be no cause of action). Their work as Squirrel Busters was done on public

propetty, involving public figures, for a finite period of time, which clearly invokes

the right of free speech and right of association.

Lubow's activities as a private investigator are limited to an interview with

one individual, Tanya Torrez, and limited contact with another, Melissa Montana,

both actions which, according to Appellee's evidence, took place in September

2010 (Torrez) and spring of 2011 (Montana). 42CR4883; 28CR3364-66. These

contacts were related to a public figure, Mr. Rathbun.

Lubow's actions were not commercial speech and are not exempted from the

TCPA by the bodily injury exemption. There is no evidence Mr. Lubow was

involved with surveillance across the street from Appellee's office/home; no

evidence that he was involved in surveillance extending over various years; and no

evidence Lubow conducted any work in Comal County.

Lubow is entitled to the protections of the TCP A and, as such, is entitled to

dismissal of Appellee's claims against him.

STATEMENT OF FACTS

Appellee does not dispute the following facts: That Mr. Lubow is a private

investigator licensed in the state of California. 38CR4459 ~3. Lubow was

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

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Church of Scientology International (the "Church"), to perform investigative

actions in support of litigation, prospective litigation and threatened litigation in

which the Church was or could be involved. 38CR4460 ~4. He was also retained

to investigate potential violations of intellectual property rights licensed to the

Church relating to the Scientology religion. /d.

Appellee does not dispute that the only evidence submitted by her to the trial

court of any investigation by Mr. Lubow was his alleged conversations with former

co-workers of Monique Rathbun, Tanya Torrez and Melissa Montana. 28CR3364-

66; 42CR4883.

There is still no evidence presented that Mr. Lubow, or any investigator

working for him or within his knowledge, ever photographed inside the Rathbun's

place of business/residence, used any form of electronic surveillance with respect

to the interior of his business/residence, used any form of microphone to overhear

private conversations inside or on the porch of their place of business/residence,

interfered with or wiretapped the Rathbuns' telephone or internet service,

physically blocked or interfered with their freedom of movement or physically

touched or threatened the Rathbuns, 38CR4461 ~7, or that any surveillance was

conducted by photographing into their windows or doors, or that any electronic

devices were used to track Marty Rathbun or Plaintiff, /d. , or that Mr. Lubow or

anyone working under his direction or in coordination with him, ever undertook

3

any unlawful actions, actions exceeding his California private investigator license,

or any action which otherwise violated the privacy of the Rathbuns. 38CR4461

~6.

In addition, there is no evidence presented to the trial court or this court that

Mr. Lubow or anyone working with or for him ever sent anything to Mrs. Rathbun

or to her place of employment, 28CR3388 ~3 .

Plaintiff does not dispute that Mr. Lubow was a Scientologist and that

Rathbun engaged in delivering Scientology services in his office/home in a manner

inconsistent with the Church's teachings and in attempts to attack and impugn the

Church, 38CR4462-63 ~~9,10, or that Mr. Lubow was a filmmaker who had

written and produced a feature-length documentary titled Prescription Suicide?

38CR4459 ,-r3.

ARGUMENT

I. The "Commercial Speech" and the "Bodily Injury" Exemptions to the TCPA Do Not Apply.

A. The "Commercial Speech" Exemption Does Not Apply to Plaintiff's Claims against Lubow.

Lubow adopts and incorporates the arguments of Section LA of the

Church' s Reply Brief . TEX. R. APP. P. 9.7.

Lubow is entitled to protection under the TCPA in his individual capacity

and as a Squirrel Buster in exercising his right to free speech and right of

4

association and in his capacity as a private investigator, acting in accordance with

his California private investigator's license, in assisting the Church in exercising

its right to petition. Even as a Squirrel Buster, Mr. Lubow exercised his individual

right to freedom of speech and his right of association in gathering with other

Church members to expose the heretical nature of Mr. Rathbun' s supposedly

religious activities. Neither Mr. Lubow, nor the Squirrel Busters were in the

business of the sale of goods or services but rather in the exposure of someone they

bel ieved was challenging and undermining the integrity of their religion and they

were compelled to speak out against it. 38CR4463-64.

As a private investigator, Mr. Lubow' s speech of asking questions of former

co-workers was in support of the Church's right to petition. This speech was not

for the sale of goods or services but in fmding out information regarding a public

figure, Mr. Rathbun. 38CR4462.

The commercial exemption does not apply to Mr. Lubow.

B. The "Bodily Injury" Exemption of Section 27.010(c) Does Not Apply to Plaintifrs Claims against Lubow.

Lubow adopts and incorporates the argument of Section LB. of the

Church' s Reply Brief, TEX. R. APP. P. 9.7.

II. The TCPA Applies to Appellee's Claims Asserted against Lubow.

Lubow adopts and incorporates by reference the arguments in Section II A,

B, C and D of the Church's Reply Brief. TEX. R. APP. P. 9. 7. In his capacity as a

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private investigator, Lubow adopts and incorporates by reference the arguments in

Section II of Monty Drake' s Reply Brief. TEX. R. APP. P. 9.7.

Lubow is entitled to the protections of the TCPA when plaintiffs claims are

"based on, related to, or in response to" the exercise of his rights of free speech,

association, or petition. TEX. CIV. PRAC. & REM. CODE §27.005

Lubow, individually and as a Squirrel Buster, is entitled to the protections of

the TCPA in his exercise of his own right, as a member of the Church of

Scientology, exercising his right of free speech and right of association. Jd. at

§27.005(b) (requiring dismissal of a legal action against the moving party, if the

moving party, shows the action is based on the party's exercise of the rights of free

speech, petition or of association, unless plaintiff can show by clear and specific

evidence of each element of the cause of action).

Lubow, as a private investigator who interviewed a former co-worker of Ms.

Rathbun, is entitled to the protections of his principal, the Church of Scientology,

in its exercise of its right to petition. There is no dispute that Mr. Lubow acted in

the scope of his California license. 37CR4413. As an agent of the Church, he is

protected under the statute and entitled to dismissal as an agent acting in a manner

that protects his principal's First Amendment rights. See 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), Wallace v. McCubbin, 196 Cal. App. 4th 1169, 1184,

6

128 Cal. Rptr. 3d 205, 216 (Cal. App. 2011, pet. denied), Ludwig v. Superior

Court, 37 Cal. App. 4th 8, 16-18, 43 Cal. Rptr. 2d 350, 356-357 (Cal. App. 1995,

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.

8

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 sbascon@att.net

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

13

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

/s/ Stephanie S. Bascon Stephanie S. Bascon

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