Reversed and Render in Part, and Remand in Part and Memorandum Opinion
filed May 14, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-19-00104-CV

                   JETALL COMPANIES, INC., Appellant

                                        V.

          GENE VAN DYKE AND ASTRID VAN DYKE, Appellees

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2018-77552

                         MEMORANDUM OPINION

      This interlocutory appeal arises from the trial court’s order denying appellant
Jetall Companies, Inc.’s (“Jetall”) motion to dismiss filed pursuant to the Texas
Citizens Participation Act (“TCPA”)1 and order overruling objections to TCPA
evidence.2 We reverse and render in part, and remand in part.

                                    I.     Background

        Appellees Gene Van Dyke and Astrid Van Dyke (Van Dykes) live in a home
in Houston, Harris County, Texas (the “Property”). The Van Dykes placed their
home on the market for sale. On February 4, 2018, the Van Dykes executed a
contract (the “Contract”) for the sale of the Property. The Contract was an option
contract between the Van Dykes, as sellers, and Jetall, as buyer. The terms of the
Contract did not give Jetall an exclusive option to purchase. The Contract identified
May 5, 2018, as the termination option deadline and June 4, 2018, as the closing
date.

        Thereafter, the parties executed a series of amendments over the next few
months, which served to extend either the termination option period or closing date
or both.    On August 6, 2018, the Van Dykes and Jetall executed the fourth
amendment to the Contract, which extended the closing date from August 6, 2018,
to August 13, 2018. On August 13, 2018, the Van Dykes traveled to the title
company and closed the transaction by signing all necessary documents. Jetall,
however, did not close the transaction. Instead, Jetall asked the Van Dykes to extend
Jetall’s closing date until August 17, 2018. The Van Dykes agreed and the parties
executed the fifth and final amendment to the Contract, which extended Jetall’s
closing date.




        1
          The TCPA is commonly referred to as an “anti–SLAPP” law—“SLAPP” is an acronym
for “Strategic Lawsuits Against Public Participation.”
        2
        See Tex. Civ. Prac. & Rem. Code § 27.003 (right to an interlocutory appeal from rulings
on such motions).

                                              2
       On August 17, 2018, Jetall did not appear for the closing, did not tender the
purchase price to the Van Dykes or the escrow agent, and did not execute any closing
documents. According to the Van Dykes, Jetall never performed its obligations
under the Contract, and no conveyance of the Property ever occurred.

       Unbeknownst to the Van Dykes, on August 17, 2018, instead of closing on
the Property, Ali Choudhri, President of Jetall, filed with the Harris County Clerk
Real Property Records the following:

       Affidavit and Memorandum of Contract to Purchase Real Estate
       Grantor:       GENE VAN DYKE, ASTRID VAN DYKE
       Grantee:       JETALL COMPANIES INC. AND/OR ASSIGNS
       Property       Address: 2940 Inverness Drive, Houston, Harris County,
                      Texas 77019
                      Legal: Lot 2, Block 92, TRS 2B-2 & 2C of Tall Timbers
                      Section of River Oaks
             Be the world hereby appraised that I/we (Grantee) have an
       exclusive option to purchase the real property legally described above
       as Property, through a contract entered into by and between Grantor,
       and Grantee. Anyone dealing in and with the subject property shall
       contact Grantee at 1001 West Loop South, Suite 700, Houston, Texas
       77027 or 713-789-7654 regarding the terms of the option to purchase
       and the parties’ respective rights thereunder.3
       On October 24, 2018, Walter Bering (licensed real estate broker for the Van
Dykes) sent by email a Notice of Seller Termination of Contract and Request for the
Release of Earnest Money to Jetall and the escrow agent at Transact Title.

       On October 25, 2018, Jetall filed a lawsuit against the Van Dykes, alleging
claims for breach of contract, fraud and fraudulent inducement, and fraud in a real


       3
           Jetall did not afford notice of its filing of the Memorandum to the Van Dykes or their
real estate broker—Bering. The Van Dykes learned of its filing, after the fact, through the escrow
agent and title company, who notified Bering, who then, in turn, notified the Van Dykes.

                                                3
estate transaction. Jetall requested its attorney’s fees. Jetall alleged in its petition
that the Van Dykes “refused to cooperate with Plaintiff to finalize the sale.”

       On November 26, 2018, the Van Dykes filed their Original Answer, including
a general denial as well as “Verified Denial, Affirmative Defenses, and other Pleas
and Claims.” In Paragraph 16 of their Answer, the Van Dykes assert the following:

       The Van Dykes also seek recovery of all their costs, damages and
       attorneys’ fees. Plaintiff fraudulently filed a cloud on the Van Dykes’
       property, located at 3940 Inverness Drive, Houston, Harris County,
       Texas 77019 (the “Inverness Property”). The Van Dykes own the
       Inverness Property in fee simple title. Plaintiff fraudulently filed a lis
       pendens in the Harris County Real Property Records under Harris
       County Clerk’s file no. RP-2018-377709 (the “Memorandum”), for the
       sole purpose of creating a cloud on title to the Inverness Property. The
       filing of the Memorandum constitutes a violation of TEX. CIV. PRAC.
       & REM. CODE § 12.001, et seq. Plaintiff had no legal right to file the
       Memorandum in the Harris County Real Property Records. At the time
       the Memorandum was filed in the Harris County Real Property
       Records, Plaintiff knew or should have known that the recorded
       document was fraudulent, as described by § 51.901 (c) of the Texas
       Government Code. Plaintiff knew or should have known that it had no
       probable right of recovery against the Van Dykes at the time it filed the
       Memorandum. Accordingly, the Van Dykes request that the Court
       expunge the Memorandum, order it cancelled and removed as a cloud
       on the Van Dykes’ Inverness Property, as well as award them all their
       attorney’s fees, costs, damages and any other remedies permitted under
       TEX. Civ. PRAC. & REM. CODE § 12.006, and as per the terms of the
       subject Contract.
       Additionally, in their conclusion of the Answer, the Van Dykes request the
trial court:

       . . .cancel and expunge plaintiffs (sic) Memorandum from the Real
       Property Records of Harris County, Texas, as a fraudulent or wrongful
       lis pendens or cloud on the Van Dykes’ Inverness Property, and award
       the Van Dykes judgment against Plaintiff for their attorneys’ fees
       through trial and any appeals. . . .


                                           4
       In a Supplement to their Answer, the Van Dykes again requested the trial court
to “expunge the Memorandum, order it cancelled and removed as a cloud on the Van
Dykes’ Inverness Property, as well as award them attorney’s fees, costs, damages
and any other remedies permitted under TEX. CIV. PRAC. & REM. CODE §
12.006.”

       On December 14, 2018, the Van Dykes filed a Motion to Expunge Lis
Pendens, seeking the following:

       Because Jetall filed the Frivolous Lis Pendens in the official records of
       Harris County, Texas, Jetall is liable for the Van Dykes’ attorneys’ fees
       and court, cost, among other damages. Texas Civil Practice and
       Remedies Code section 12.002 forbids a person from filing or
       presenting a fraudulent document against real property. For the reasons
       noted hereinbefore, Jetall’s filing of the Lis Pendens on the Property
       violates this statute. The statute delineates that an aggrieved party under
       this statute is entitled to, among other damages, its actual damages,
       court costs, attorneys’ fees and exemplary damages. Accordingly,
       while the Van Dykes reserve their right to seek other damages at a later
       date, they hereby request an award of their attorneys’ fees and court
       costs for having to prosecute this motion.
(footnotes omitted).4

       In response to the Van Dyke’s pleadings (i.e., answer and motion to expunge),
Jetall filed a motion to dismiss under the TCPA, contending:

        . . .the TCPA permits a party to seek early dismissal of a legal action
       that is “based on, relates to, or is in response to” the non-movant’s
       exercise of the right to petition or the right of free speech. See TEX.
       CIV. PRAC. & REM. CODE § 27.005(b). “Exercise of the right of
       petition” means a “communication made in or pertaining to” . . . “a
       judicial proceeding.” See id. at 27.001(4)(A)(i).



       4
         On December 17, 2018, the Van Dykes filed a motion for summary judgment. The record
does not reflect any ruling on the summary judgment by the trial court.

                                             5
Jetall maintains that the TCPA applies to the Van Dyke’s fraudulent lien claim
because both the Van Dyke’s answer and motion to expunge constitute judicial
pleadings or filings that request legal or equitable relief. Jetall further argues that
they are based on, relate to, or are in response to Jetall’s right to petition because a
lis pendens is a publicly filed document that is made pendent to a legal proceeding
to secure interest in real property. Jetall contends that the Van Dykes cannot
establish a prima facie case of fraud under 12.02 of the Texas Civil Practice and
Remedy Code.

      The Van Dykes filed their response to the motion to dismiss, arguing that
Jetall did not meet its initial burden under the TCPA of showing that the
Memorandum is a “lis pendens” and is related to or in response to Jetall’s right to
petition.   The Van Dykes contend that Jetall “cannot simply state that the
Memorandum is a lis pendens and is based on the right to petition as a matter of
law.” According to the Van Dykes, the Memorandum filed by Jetall is not an actual
lis pendens because it does not comply with the relevant statutory provisions
governing a lis pendens. The Van Dykes also argue that the pleadings on file and
affidavit of Gene Van Dyke attached to their response establish a prima facie case
of the recording of a fraudulent lien by Jetall.

      Jetall filed its reply in support of its motion to dismiss under the TCPA and
objections to the Van Dyke’s TCPA evidence. Jetall argues “[w]hether the lis
pendens is a meritorious lis pendens does not affect whether it is, in fact, a lis
pendens and whether the TCPA applies is a question that may be resolved from
reviewing the pleadings alone.” (emphasis in pleading). Additionally, Jetall asserts
that there is an absolute privilege against a suit seeking damages for filing a lis
pendens even when, as here, a party alleges the lis pendens was wrongful; thus, a lis
pendens is exempt from giving rise to liability under Chapter 12 of the Texas Civil

                                           6
Practice and Remedy Code. Moreover, Jetall objects to the TCPA evidence relied
upon by the Van Dykes. Jetall contends that the Van Dykes exclusively rely on the
affidavit of Gene Van Dyke and attached exhibits. Jetall contends that paragraphs
11 and 12 of Gene Van Dyke’s affidavit are inadmissible under Texas Rule of
Evidence 602 because it seeks to prove what Jetall’s state of mind is/was, what
Jetall’s intentions in filing the lis pendens is/was, and what Jetall believed/believes.
Jetall argues that Gene Van Dyke lacks personal knowledge of Jetall’s intentions;
hence, any testimony in this regard is speculative and lacks foundation. Jetall objects
to exhibit 9 to the affidavit5 as inadmissible hearsay under Texas Rule of Evidence
802, as the entire exhibit is a statement from a third party, other than affiant, offered
for the truth of the matters asserted.

       Thereafter, Jetall filed a response to the Van Dykes motion to expunge,
providing a file-stamped copy of the withdrawal of the August 17, 2018, lis pendens.
Jetall maintained the motion should be denied because “the issue is moot and there
is no lis pendens for the Court to expunge.” The record does not reflect a ruling by
the trial court on the motion to expunge.

       The trial court denied Jetall’s motion to dismiss and overruled its objections
to TCPA evidence by separate orders dated January 30, 2019. These orders are the
subject of this appeal.

                                        II.     Analysis

       In its brief, Jetall asserts two issues: (1) whether the trial court erred in
denying the TCPA motion based on the evidence the trial court considered; and


       5
         Exhibit 9 to Gene Van Dyke’s affidavit is an email from Bering to the Van Dykes dated
August 1, 2018. The subject matter of the email is “3940 Inverness - conversation with Ali.” Ali
Choudhri is the President of Jetall. Bering relates in the email an alleged conversation he had with
Ali in which Ali was asking to renegotiate the deal, including reducing the offer substantially.

                                                 7
(2) alternatively, whether the trial court erred in overruling the evidence objections
to the extent that evidence can serve to satisfy the Van Dykes’ prima facie burden.

A.     Is the TCPA applicable?

       To dismiss a claim under the TCPA, the movant must first show by a
preponderance of the evidence that the claim is based on, relates to, or is in response
to the movant’s bbbexercise of the right of free speech, the right to petition, or the
right of association. Tex. Civ. Prac. & Rem. Code § 27.005(b). We review this
determination de novo. See Better Bus. Bureau of Metro. Hous., Inc. v. John Moore
Servs., Inc., 441 S.W.3d 345, 351–53 (Tex. App.—Houston [1st Dist.], pet. denied);
see also Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Here, Jetall sought a TCPA remedy by
filing a motion invoking the statute’s protection of the rights litigants have to petition
courts for relief.

       When the trial court ruled on the motion to dismiss, the pleadings and
evidence before it showed that the Van Dykes sought relief from the trial court in
both their answer and motion to expunge lis pendens. For example, in their answer,
the Van Dyke’s pled “Plaintiff fraudulently filed a lis pendens in the Harris County
Real Property Records . . . for the sole purpose of creating a cloud on title to the
Inverness Property”; thus, it sought removal, attorneys’ fees and court cost.
Similarly, in the Van Dyke’s motion to expunge lis pendens, they argue that because
Jetall filed the “Frivolous Lis Pendens in the official records of Harris County,
Texas, Jetall is liable for the Van Dykes’ attorneys’ fees and court cost, among other
damages.” See Tex. Civ. Prac. & Rem. Code § 27.006(a) (directing courts to
consider pleadings in deciding motions to dismiss that are based on the movant’s
rights under TCPA); see Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)
(construing Tex. Civ. Prac. & Rem. Code § 27.006(a)). Thus, the allegations in the

                                            8
Van Dyke’s live pleadings show that the Van Dyke’s filed their fraudulent lien claim
based on Jetall’s filing of its lis pendens. See id. § 27.001(4) (broadly defining the
“[e]xercise of the right to petition” to include “a communication in or pertaining to:
. . . a judicial proceeding”).

       Accordingly, we conclude Jetall made the initial showing required under the
TCPA. See Tex. Civ. Prac. & Rem. Code § 27.005(b). Therefore, the burden shifted
to the Van Dykes. See id. at § 27.005(c).

B.     Was a prima facie case established?

       Because Jetall met its initial burden under the TCPA, the burden shifted to the
Van Dykes to establish “by clear and specific evidence a prima facie case for each
essential element” of their claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c).
Accordingly, we examine the pleadings and the evidence in a light favorable to the
Van Dykes to determine whether they marshaled “clear and specific” evidence to
support each element of their cause of action. See Better Bus. Bureau of Metro.
Hous., 441 S.W.3d at 354–55. The Van Dykes allege a cause of action for fraudulent
lien under Chapter 12 of the Property Code. Jetall contends the trial court erred in
denying its motion to dismiss because the Van Dykes failed to present clear and
specific evidence of the essential elements of their fraudulent lien claim.

       1.     A prima facie case for fraudulent lien

       Section 12.002 of the Property Code forbids the filing of a fraudulent lien and
allows a party injured by a fraudulent lien to recover damages. It provides:

       (a) A person may not make, present, or use a document or other
       record with:
              (1) knowledge that the document or other record is a
              fraudulent court record or a fraudulent lien or claim against real
              or personal property or an interest in real or personal property;

                                            9
               (2) intent that the document or other record be given the same
               legal effect as a court record or document of a court created by
               or established under the constitution or laws of this state or the
               United States or another entity listed in Section 37.01, Penal
               Code, evidencing a valid lien or claim against real or personal
               property or an interest in real or personal property; and
               (3)     intent to cause another person to suffer:
                       (A)     physical injury;
                       (B)     financial injury; or
                       (C)     mental anguish or emotional distress.
See Tex. Civ. Prac. & Rem. Code § 12.002(a). The party asserting that a claimed
lien is a fraudulent lien has the burden to prove the requisite elements in the statute.
Aland v. Martin, 271 S.W.3d 424, 430 (Tex. App.—Dallas 2008, no pet.).

       2.      The law on lis pendens and the absolute privilege defense6

       “Lis pendens provides a mechanism for putting the public on notice of certain
categories of litigation involving real property.” Prappas v. Meyerland Cmty.
Improvement Ass’n, 795 S.W.2d 794, 795 (Tex. App.—Houston [14th Dist.] 1990,
writ denied). “A lis pendens is a notice of litigation, placed in the real property
records, asserting an interest in the property, and notifying third parties that
ownership of the property is disputed.” In re Miller, 433 S.W.3d 82, 84 (Tex.
App.—Houston [1st Dist.] 2014, orig. proceeding). Texas Property Code section
12.007, governing the filing of a lis pendens, provides, in pertinent part:

       (a) After the plaintiff's statement in an eminent domain proceeding
       is filed or during the pendency of an action involving title to real
       property, the establishment of an interest in real property, or the

       6
          As set forth, infra, in Prappas, we held that there is an absolute privilege defense against
a suit seeking damages for placing a lis pendens, even when the plaintiff alleges the lis pendens
was wrongful as falling outside the circumstances for which a lis pendens may be filed under
section 12.007(a). See 795 S.W.2d at 795–800. As such, we need not decide if the Van Dykes met
the prima facie elements of a fraudulent lien claim.

                                                 10
      enforcement of an encumbrance against real property, a party to the
      action who is seeking affirmative relief may file for record with the
      county clerk of each county where a part of the property is located a
      notice that the action is pending.
Tex. Prop. Code Ann. § 12.007(a). Section 12.007 also prescribes requirements for
the contents of the notice, recording of the notice by the clerk, and service on others.
See id. § 12.007(b)–(d).

      The Van Dykes seek damages on the basis that Jetall was not authorized to
place a lis pendens on the Property. Jetall relies on Prappas, in which our court set
forth the defense of absolute privilege to an action seeking damages for the alleged
wrongful filing of a lis pendens. See 795 S.W.2d at 795–800. We acknowledge that
in Prappas the court did not address a fraudulent lien claim. See 795 S.W.2d at 795–
800. However, this court reasoned in Cty. Inv., LP v. Royal W. Inv., LLC,

      [r]egardless, we conclude Prappas is also applicable to . . . fraudulent-
      lien claim. The Prappas court’s reasoning for recognizing the privilege
      was not limited to the claims asserted in the suit or contingent on the
      motives of the party placing the lis pendens. See generally id.
      Significantly, we stated that availability of the privilege does not turn
      on whether the party placing the lis pendens acted in good faith and
      even malice would not dissolve the privilege.
513 S.W.3d 575, 581 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing
Prappas, 795 S.W.2d at 799). In Prappas, we held there is an absolute privilege
defense against a suit seeking damages for placing a lis pendens even when the
plaintiff alleges the lis pendens was wrongful as falling outside the circumstances
for which a lis pendens may be filed under section 12.007(a). See 795 S.W.2d at
795–800.

      We further stated that there are remedies for nullifying an unauthorized lis
pendens, including a statutory method for cancellation, or other request for an
appropriate order from the trial court, with mandamus relief available if the trial

                                          11
court refuses to order cancellation. See Prappas, 795 S.W.2d at 795–96, 798 (citing
Tex. Prop. Code § 12.008; Olbrich v. Touchy, 780 S.W.2d 6 (Tex. App.—Houston
[14th Dist.] 1989, orig. proceeding); Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.
App.—Houston [14th Dist.] 1986, orig. proceeding); Helmsley–Spear of Tex., Inc.
v. Blanton, 699 S.W.2d 643, 645 (Tex. App.—Houston [14th Dist.] 1985, orig.
proceeding)). In fact, we noted that “impossibility” of recovering damages is why
courts have given a broad reading to the statute governing cancellation.         See
Prappas, 795 S.W.2d at 798; see also Manders v. Manders, 897 F. Supp. 972, 976–
78 (S.D. Tex. 1995) (citing Prappas when holding that plaintiffs’ claims for
damages for tortious interference and slander of title based on filing a lis pendens
were barred by absolute privilege defense under Texas law); Bayou Terrace Inv.
Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex. App.—Houston [1st Dist.] 1994, no writ)
(citing Prappas when stating that absolute privilege defense bars suit for damages
arising from filing a lis pendens).

       In summary, because we are bound by the precedent of this court, dictating
that the Van Dyke’s claims for damages are barred by the defense of absolute
privilege, we conclude the trial court erred by denying Jetall’s motion to dismiss on
the Van Dyke’s fraudulent lien claim. See Cty. Inv., LP, 513 S.W.3d at 582. We
sustain Jetall’s first issue.

       In light of our determination that the Van Dyke’s fraudulent lien claim is
barred by the defense of absolute privilege, we need not reach Jetall’s second issue
regarding the trial court’s order overruling its objections to the Van Dyke’s TCPA
evidence.




                                         12
                                  III.   Conclusion

      We therefore reverse the trial court’s denial of Jetall’s motion to dismiss and
remand the case to the trial court for further proceedings relating to appellant’s court
costs, fees, attorney’s fees, expenses, and sanctions as required by the TCPA, and to
order dismissal of the Van Dyke’s claim for fraudulent lien with prejudice.




                                         /s/    Margaret “Meg” Poissant
                                                Justice



Panel consists of Justices Christopher, Hassan, and Poissant.




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