No.

03-14-00199-CV
______________________________________
COURT OF APPEALS
THIRD J UDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
MONTY DRAKE,
Appellant,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
BRIEF OF APPELLANT
MONTY DRAKE
______________________________________
On Appeal from the 207th J udicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dibrell W. Waldrip of the 433rd J udicial District Court, Presiding
______________________________________

ORAL ARGUMENT REQUESTED
______________________________________
Gary D. Sarles
State Bar No. 17651100
gsarles@sarleslaw.com
O. Paul Dunagan
State Bar No. 06202700
dunagan@sarleslaw.com
SARLES & OUIMET
900 J ackson Street, Suite 370
Dallas, Texas 75202-4436
Telephone: (214) 573-6300
Telecopier: (214) 573-6306

ATTORNEYS FOR APPELLANT MONTY DRAKE
IDENTITY OF PARTIES AND COUNSEL
Appellant Monty Drake
Represented in the trial court and on appeal by:
Gary D. Sarles
O. Paul Dunagan
SARLES & OUIMET
900 J ackson Street, Suite 370
Dallas, Texas 75202-4436
Telephone: 214-573-6300
Telecopier: 214-573-6306

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

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

Additional counsel on appeal:
Thomas S. Leatherbury
Marc A. Fuller
VINSON & ELKINS LLP
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792

i


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

Appellants Steven Gregory Sloat and Ed Bryan
Represented in the trial court and on appeal by:
J onathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: 830.625.8026
Facsimile: 830.625.4433

Appellant Dave Lubow
Represented in the trial court and on appeal by:
Stephanie S. Bascon
LAW 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. J effrey
A. Dannette Mitchell
J EFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
Telephone: 830.438.8935
Facsimile: 830.438.4958

ii


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

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


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 CLAIMS
WERE EXEMPT FROM THE TCPA WERE ERRONEOUS AND
WOULD RENDER THE TCPA A VIRTUAL NULLITY. ........................... 6
A. The Commercial Speech Exemption Does Not Apply to Plaintiffs
Claims. ................................................................................................... 6
B. The Bodily Injury Exemption of Section 27.010(c) Does Not
Apply to Plaintiffs Claims, Especially those against Drake.. .............. 8
II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFFS
CAUSES OF ACTION WERE NOT BASED ON, RELATED TO OR IN
RESPONSE TO THE EXERCISE OF APPELLANTS' RIGHTS TO
FREE SPEECH, ASSOCIATION, OR PETITION. ....................................... 9
III. PLAINTIFFS CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORT
ESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOT
OVERCOME DRAKE'S AFFIRMATIVE DEFENSES. ............................. 10
A. There Is No Evidence to Support Vicarious Liability against Drake
for the Actions of any other Defendant. .............................................. 10
B. Plaintiffs Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed. .................................................... 15
C. Plaintiffs Invasion of Privacy Claim for Intrusion Should Be
Dismissed. ........................................................................................... 15
iv


D. Plaintiffs Claim for Tortious Interference with Contract Should Be
Dismissed. ........................................................................................... 16
E. Plaintiffs Claim for Intentional Infliction of Emotional Distress
Should Be Dismissed. ......................................................................... 17
IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYS
FEES AND COURT COSTS AGAINST DRAKE AND IN FAILING TO
AWARD HIM HIS FEES AND COSTS. ..................................................... 17
CONCLUSION AND PRAYER ............................................................................. 18
CERTIFICATE OF COMPLIANCE ....................................................................... 18
CERTIFICATE OF SERVICE ................................................................................ 19


v


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


vi


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. & REM. CODE 27.001 ................................................................... ix

TEX. CIV. PRAC. & REM. CODE 27.005(c) ..............................................................10

TEX. CIV. PRAC. & REM. CODE 27.009(1) .............................................................. xi

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

TEX. CIV. PRAC. & REM. CODE 27.010(b) ............................................................ viii

TEX. CIV. PRAC. & REM. 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



vii


STATEMENT REGARDING ORAL ARGUMENT
Appellant Monty Drake (Drake) respectfully requests the opportunity to
present oral argument and adopts the statement regarding oral argument in the
Appellants Brief of Church of Scientology International (the Church).
STATEMENT OF THE CASE
Drake adopts and incorporates by reference the Statement of the Case from
the Churchs Appellants Brief. TEX. R. APP. P. 9.7.
ISSUES PRESENTED
1. Whether the district court erred in denying Drakes motion under the
TCPA to dismiss Plaintiffs claims against him?
2. Whether the district court erred in holding that the TCPAs 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, TEX. CIV.
PRAC. & REM. CODE 27.010(b), required denial of the motion when (a) Plaintiffs
claims are against a church and arise out of a peaceful protest and a documentary
film project, and (b) Drake, a licensed private investigator whose investigative
reports were made only to the Church and its counsel, had no intention to
communicate to and affect an audience of actual or interested (current or former)
customers of the Church? See 31 CR 3768 at 6; TEX. CIV. PRAC. & REM. CODE
27.010(b).
viii


3. Whether the district court erred in holding that the TCPAs exemption
for legal actions seeking recovery for bodily injury, TEX. CIV. PRAC. & REM. 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, TEX. CIV. PRAC.
& REM. 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
ix


concern protected by the First Amendment; and (e) the claim is barred by the statute
of limitations?
6. Whether the district court erred in not dismissing Plaintiffs claim
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?
7. Whether the district court erred in not dismissing Plaintiffs claim
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?
8. Whether the district court erred in not dismissing Plaintiffs claim
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.
x


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, TEX. CIV. PRAC. & REM. 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)?
xi


STATEMENT OF FACTS
Drake adopts and incorporates by reference the Statement of Facts in the
Churchs Appellants Brief. TEX. 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.
1

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
2

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
3

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.
4

SUMMARY OF THE ARGUMENT
Drake adopts and incorporates by reference the Summary of the Argument in
the Churchs Appellants Brief. TEX. R. APP. P. 9.7.
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.
5

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 PLAINTIFFS
CLAIMS WERE EXEMPT FROM THE TCPA WERE ERRONEOUS
AND 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 to
Plaintiffs Claims against Drake.
Drake adopts and incorporates by reference the arguments in Section I.A of
the Churchs Appellants Brief. TEX. R. APP. P. 9.7.
The district court denied Drakes Motion to Dismiss under the TCPA under
the commercial speech exemption because a preponderance of the evidence
6

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 no
less incidental or related to possible litigation than prelitigation demand letters
and threats to sue, which are entitled to protection. In fact, such letters and
threats are themselves likely to be the result of a prelitigation investigation.
Given the close functional relationship between the preliminary
investigation of a potential claim and the subsequent assertion of that claim, we
consider it obvious that restricting, enjoining, or penalizing prelitigation
investigation could substantially interfere with and thus burden the effective
exercise 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 people
to investigate and find evidence to support potential claims. For this reason, we
consider it as proper and appropriate to protect prelitigation investigation as it
is to protect prelitigation letters that demand settlement or threaten legal action
discovery, and postlitigation settlement talks.
7


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
the Churchs Appellants Brief. TEX. R. APP. P. 9.7.
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
8

discovery of cameras near their house in Comal County in early J uly of 2013, 35 CR
4205 at 33, a period of over 26 months or, as Plaintiff describes it, a brief respite.
35 CR 4183 at16b.
Plaintiff further admits that she did not discover Drakes surveillance cameras
across from the Rathbuns rented property in Ingleside On The Bay until [n]ear the
end of 2012, 35 CR 4180 at 13 (emphasis added), making it impossible for
Drakes unknown, surreptitious surveillance to have caused the headaches or nausea
that she reportedly suffered before quitting her Corpus Christi job on April 29, 2011.
Moreover, there is no evidence that Drake had anything whatsoever to do with the
surveillance and cameras in Comal County that reportedly caused her headaches to
recur in early J uly of 2013. Even under the district courts erroneous assumption
that headaches and nausea constitute bodily injury under the TCPA, there is
simply no evidence that Plaintiff suffered any such bodily injury due to the
surveillance by Drake, which was unknown to the Rathbuns until the end of 2012.
II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFFS
CLAIMS WERE NOT BASED ON, RELATED TO OR IN RESPONSE
TO THE EXERCISE OF APPELLANTS RIGHTS TO FREE SPEECH,
ASSOCIATION, OR PETITION.
Drake adopts and incorporates by reference the arguments in Section II of the
Churchs Appellants Brief. TEX. R. APP. P. 9.7. Drake is protected by the TCPA
and was entitled to move under it to dismiss Plaintiffs claims against him. See
Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1116, 81 Cal.
9

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 DID
NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORT
ESSENTIAL ELEMENTS OF HER CLAIMS AGAINST DRAKE AND
CANNOT OVERCOME DRAKES AFFIRMATIVE DEFENSES.
Drake adopts and incorporates by reference the arguments in Section III of the
Churchs Appellants Brief. TEX. R. APP. P. 9.7.
A. There Is No Evidence to Support Vicarious Liability against Drake
for 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. & REM. 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.
10

Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.Houston
[14th Dist.] 2013, pet. denied). General evidence against Defendants or
Scientology Agents does not satisfy Plaintiffs burden to establish by clear and
specific evidence each element of her claims against Drake. Drake cannot be liable
for asserted damages allegedly caused to Plaintiff by the actions of other Defendants,
unless Plaintiff proved, by clear and specific evidence, each essential element of a
theory under Texas law by which Drake can be held vicariously liable for the actions
of other Defendants.
Plaintiffs Second Amended Petition pleads that each Defendant is liable for
the actions of the other Defendants under a boilerplate laundry list of legal theories,
including conspiracy, agency, partnership, joint enterprise, disregarding the
corporate structure, respondeat superior, concert of action, ratification, assisting or
encouraging, and assisting and participating. 10 CR 1276 at 50. Although Plaintiff
has alleged these theories of vicarious liability, she produced no evidence, much less
clear and specific evidence, to establish a prima facie case for any of these theories
against Drake. See generally 23 CR 2748-2769 (Plaintiffs evidence appendix,
failing to set forth evidence in support of any of these theories of vicarious liability
against Drake). The district court, however, denied all of the Defendants Motions
to Dismiss for identical reasons, without any attempt to differentiate their conduct
or involvement in the specific causes of action alleged by Plaintiff. The district court
11

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).
12

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.
13

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.
14

B. Plaintiffs Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed.
Drake adopts and incorporates by reference the arguments in Section III.A of
the Churchs Appellants Brief. TEX. R. APP. P. 9.7. Moreover, Plaintiff presented
no evidence whatsoevermuch less clear and specific evidencethat Drake
publicly disclosed anything about Plaintiff. See 23 CR 2764-2769 (Plaintiffs
evidence appendix, which fails to cite to any evidence of Drake having published
any facts about her).
C. Plaintiffs Invasion of Privacy Claim for Intrusion Should Be
Dismissed.
Drake adopts and incorporates by reference the arguments in Section III.B of
the Churchs Appellants Brief. TEX. R. APP. P. 9.7.
Plaintiff has failed to support her claim with clear and specific evidence that
Drake intruded into her seclusion. Drakes cameras were focused on the area outside
the Rathbuns office/home in Ingleside On The Bay, an area publicly visible from
the street or other public areas. 38 CR 4479 at 9. Anything Drakes cameras 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
15

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 Should
Be 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
16

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 Distress
Should 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 ATTORNEYS
FEES 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
Churchs Appellants Brief. TEX. R. APP. P. 9.7.

17

CONCLUSION AND PRAYER
Appellant Monty Drake prays that this Court reverse the district courts 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 Plaintiffs claims
with prejudice and remanding only for further proceedings concerning Appellants
claims for attorneys fees and costs under the TCPA, together with such other and
further relief to which he may be entitled.
J une 11, 2014 Respectfully submitted,
/s/ Gary D. Sarles .
Gary D. Sarles
State Bar No. 17651100
gsarles@sarleslaw.com
O. Paul Dunagan
State Bar No. 06202700
dunagan@sarleslaw.com
SARLES & OUIMET
900 J ackson Street, Suite 370
Dallas, Texas 75202-4436
Telephone: (214) 573-6300
Telecopier: (214) 573-6306
ATTORNEYS FOR APPELLANT MONTY DRAKE


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 4,207 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 Appellants.
/s/ Gary D. Sarles .
Gary D. Sarles
18

CERTIFICATE OF SERVICE
The undersigned certifies that on the 11th day of J une, 2014, the foregoing
Brief of Appellant Monty Drake was served on the following attorneys in accordance
with the Texas Rules of Appellate Procedure via electronic filing or email.
Thomas S. Leatherbury
Marc A. Fuller
VINSON & ELKINS LLP
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975

Ricardo G. Cedillo
Isaac J . Huron
Davis, Cedillo & Mendoza, Inc.
755 E. Mulberry Avenue, Suite 500
San Antonio, Texas 78212

George H. Spencer, J r.
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

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

Stephanie S. Bascon
LAW OFFICE OF STEPHANIE BASCON
297 W. San Antonio Street
New Braunfels, TX 78130
Marc F. Wiegand
THE WIEGAND LAW FIRM, P.C.
434 N. Loop 1604 West, Suite 2201
San Antonio, TX 78232

Ray B. J effrey
J EFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163

Elliott S. Cappuccio
PULMAN, CAPPUCCIO PULLEN
& BENSON, LLP
2161 N.W. Military Hwy., #400
San Antonio, TX 78213

Lamont A. J efferson
HAYNES & BOONE LLP
112 E. Pecan Street, Suite 1200
San Antonio, TX 78205-1540

J onathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, TX 78130

Wallace B. J efferson
ALEXANDER DUBOSE J EFFERSON
& TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, TX 78701


/s/ Gary D. Sarles .
Gary D. Sarles
19