      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                       NO. 03-12-00726-CV



                                 Mary Louise Serafine, Appellant

                                                  v.

                         Alexander Blunt and Ashley Blunt, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GN-12-001270, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                                           OPINION


               We withdraw the opinion, concurring opinion, and judgment dated May 1, 2015, and

substitute the following opinion, concurring opinion, and judgment in their place. We deny

appellant’s motion for rehearing.

               Mary Louise Serafine appeals from an interlocutory order denying a motion to

dismiss brought under Chapter 27 of the Texas Civil Practice and Remedies Code. See generally

Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Serafine and appellees Alexander and Ashley Blunt

are next-door neighbors. Serafine sued the Blunts for various claims related to a property dispute.

The Blunts filed counterclaims against Serafine, which she sought to dismiss under Chapter 27. We

will reverse in part the trial court’s order denying the motion to dismiss and will dismiss the Blunts’

counterclaims to the extent that they assert claims based on Serafine’s filing of the underlying

lawsuit and a lis pendens. We will affirm in part the trial court’s order, based on our conclusion that
the Blunts’ counterclaim for tortious interference with contract may proceed to the extent that it is

based on allegations of threatening conduct by Serafine outside of the filing of the underlying lawsuit

and lis pendens. We will remand the case for further proceedings consistent with this opinion,

including consideration by the trial court of an award under Section 27.009 of costs and fees

relating to the motion to dismiss. See id. § 27.009.


                                          BACKGROUND

                The underlying lawsuit arose from a property dispute between Serafine and the

Blunts. Serafine’s claims against the Blunts are based on her allegations that (1) the Blunts tore down

a chain-link fence that had marked the boundary between her property and their property for 35 years

and then erected a new wooden fence that encroached upon her property, and (2) the Blunts

trespassed upon and damaged her land by digging a trench on or immediately adjacent to her land

and by installing a drainage system that will destroy the lateral support of her land. Serafine asserted

claims for trespass to try title, trespass, nuisance, negligence, and fraud by nondisclosure, and sought

declaratory and injunctive relief, in addition to damages and attorneys’ fees. The Blunts answered

Serafine’s suit and also filed counterclaims, asserting that Serafine tortiously interfered with their

contract with the drainage and foundation company and that Serafine violated Chapter 12 of the

Texas Civil Practice and Remedies Code by fraudulently filing a lis pendens in the Travis County

Real Property Records.

                Serafine moved to dismiss the Blunts’ counterclaims under Chapter 27. See id.

§ 27.003. The Blunts filed a response and included supporting affidavit evidence. See id. § 27.006(a).

Neither side sought discovery. See id. § 27.006(b). The trial court conducted a hearing, see id.

§ 27.004, at which Alexander Blunt testified. After considering the motion, pleadings, evidence,


                                                   2
and arguments presented by counsel, the trial court denied the motion. See id. § 27.006(a). This

appeal followed.


                                             ANALYSIS

Statutory overview

                Chapter 27, also known as the Texas Citizens Participation Act, is an anti-SLAPP

statute. See In re Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App.—Fort Worth 2013, orig. proceeding)

(“Lipsky I”), mand. denied, ___ S.W.3d ___, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015)

(“Lipsky II”). “SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.” Id.

The purpose of the Act is “to encourage and safeguard the constitutional rights of persons to

petition, speak freely, associate freely, and otherwise participate in government to the maximum

extent permitted by law and, at the same time, protect the rights of a person to file meritorious

lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. The Act is to “be construed

liberally to effectuate its purpose and intent fully,” but it “does not abrogate or lessen any other

defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or

common law or rule provisions.”1 Id. § 27.011.

                The Act provides a mechanism for early dismissal of suits based on a party’s

exercise of the right of free speech, the right to petition, or the right of association. Id. § 27.003.



       1
          The concurrence here and a recent concurrence by Justice Field in Neyland v. Thompson,
No. 03-13-00643-CV, 2015 WL 1612155, at *11-12 (Tex. App.—Austin Apr. 7, 2015, no pet. h.)
(mem. op.) (Field, J., concurring), articulate valid concerns over the breadth of the Texas Citizens
Participation Act. We are neither unaware of nor unsympathetic to those concerns, but for reasons
explained here and acknowledged in the concurrence, we must construe this Act according to
the plain meaning of the words chosen by the Legislature. As written, the Act and its expansive
definitions provide little, if any, textual support for limiting its application to more weighty matters
of public concern than those exhibited in the neighborhood tussle between Serafine and the Blunts.

                                                   3
Section 27.003 allows a litigant to seek dismissal of a “legal action” that is “based on, relates to, or

is in response to a party’s exercise of the right of free speech, right to petition, or right of

association.” Id. § 27.003(a). A “‘legal action’ means a lawsuit, cause of action, petition, complaint,

cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable

relief.” Id. § 27.001(6). “Exercise of the right to petition” includes “a communication in or pertaining

to . . . a judicial proceeding.” Id. § 27.001(4)(A)(i). “‘Communication’ includes the making or

submitting of a statement or document in any form or medium, including oral, visual, written,

audiovisual, or electronic.” Id. § 27.001(1).

                The Act imposes the initial burden on the movant to establish by a preponderance

of the evidence “that the legal action is based on, relates to, or is in response to the party’s exercise

of . . . the right to petition.” Id. § 27.005(b). The Act then shifts the burden to the nonmovant,

allowing the nonmovant to avoid dismissal only by “establish[ing] by clear and specific evidence

a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). When

determining whether to dismiss the legal action, the court must consider “the pleadings and

supporting and opposing affidavits stating the facts on which the liability or defense is based.”

Id. § 27.006(a). The court may allow specified and limited discovery relevant to the motion on a

showing of good cause, but otherwise all discovery in the legal action is suspended until the court

has ruled on the motion to dismiss. Id. §§ 27.003, .006(b).


Standard of review

                We review de novo questions of statutory construction. Molinet v. Kimbrell,

356 S.W.3d 407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant

has established by a preponderance of the evidence that the challenged legal action is covered


                                                   4
under the Act. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725 (Tex. App.—Houston

[14th Dist.] 2013, pet. denied), disapproved on other grounds by Lipsky II, 2015 WL 1870073, at *7.

We also review de novo a trial court’s determination of whether a nonmovant has presented clear

and specific evidence establishing a prima facie case for each essential element of the challenged

claims. Id. at 726.

               A prima facie standard generally “requires only the minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.” In re E.I. DuPont

de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks

and citation omitted); see, e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,

416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in

Chapter 27 case and explaining that Legislature’s use of “prima facie case” implies imposition of

minimal factual burden). “Prima facie evidence is evidence that, until its effect is overcome by

other evidence, will suffice as proof of a fact in issue. In other words, 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.”

Rehak, 404 S.W.3d at 726 (citation omitted); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008)

(per curiam) (explaining that summary-judgment movant’s presentation of prima facie evidence of

deed’s validity established his right to summary judgment unless nonmovants presented evidence

raising fact issue related to validity). “Conclusory statements are not probative and accordingly

will not suffice to establish a prima facie case.”2 Better Bus. Bureau of Metro. Houston, Inc.

v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(citing In re E.I. DuPont, 136 S.W.3d at 223-34); see also Lipsky II, 2015 WL 1870073, at *9


       2
        “Conclusory” means “[e]xpressing a factual inference without stating the underlying facts
on which the inference is based.” Black’s Law Dictionary 351 (10th ed. 2014).

                                                  5
(explaining that “bare, baseless opinions” are not “a sufficient substitute for the clear and specific

evidence required to establish a prima facie case” under the Act).

                 The Act does not define “clear and specific” evidence; consequently, we give these

terms their ordinary meaning. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439

(Tex. 2011). “Clear” means “free from doubt,” “sure,” or “ unambiguous.” Black’s Law Dictionary

307 (10th ed. 2014); Lipsky II, 2015 WL 1870073, at *6 (approving this definition of “clear”);

see also Webster’s Third New Int’l Dictionary 419 (2002) (“easily understood,” “without obscurity

or ambiguity,” “easy to perceive or determine with certainty”). “Specific” means “explicit” or “relating

to a particular named thing.” Black’s Law Dictionary, at 1616; Lipsky II, 2015 WL 1870073, at *6

(approving this definition of “specific”); see also Webster’s Third New Int’l Dictionary, at 2187

(“being peculiar to the thing or relation in question,” “characterized by precise formulation or

accurate restriction,” or “free from such ambiguity as results from careless lack of precision or from

omission of pertinent matter”). We conclude that the term “clear and specific evidence” refers to

the quality of evidence required to establish a prima facie case, while the term “prima facie case”

refers to the amount of evidence required to satisfy the nonmovant’s minimal factual burden. See

Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672,

at *10 (Tex. App.—Austin Jan. 31, 2014, pet. denied) (mem. op.). Thus, if we determine that

Serafine carried her initial burden to prove that the Blunts’ counterclaims are covered by the Act,

we must determine whether the Blunts marshaled the minimum quantum of “clear and specific

evidence” necessary to support a rational inference establishing each essential element of their

counterclaims.




                                                   6
Issues on appeal

                Serafine contends that the trial court erred by denying her motion to dismiss because

the Act applies and the Blunts failed to establish a prima facie case for their claims of tortious

interference with contract and filing of a fraudulent lis pendens. She also contends that the trial court

erred by failing to award her attorneys’ fees.


                Jurisdiction over interlocutory appeal

                As a preliminary matter, we must address whether we have jurisdiction over this

interlocutory appeal. The Blunts filed a motion to dismiss for want of jurisdiction and also asserted

as an issue in their brief that this Court lacks jurisdiction. The Blunts contend that the Act does not

expressly authorize an interlocutory appeal when the trial court issues a timely ruling denying the

motion to dismiss; they assert that an interlocutory appeal is authorized only when the trial court

either grants the motion or fails to rule, resulting in the motion’s being overruled by operation

of law under the statute. See Tex. Civ. Prac. & Rem. Code § 27.008. The Blunts relied on a

decision from the Fort Worth Court of Appeals supporting their interpretation of the statute. See

Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 528-29 (Tex. App.—Fort Worth 2012,

pet. denied) (finding no jurisdiction over order denying motion). This Court has determined,

however, that regardless of the meaning of the original statute, the Act as amended in 2013 and a

corollary revision to Chapter 51 of the Civil Practice and Remedies Code together confer jurisdiction

over appeals such as this one in which the trial court expressly denied the motion to dismiss. See

Kinney v. BCG Att’y Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3-4

(Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.); Combined Law Enforcement Ass’n of

Tex., 2014 WL 411672, at *4; see also Tex. Civ. Prac. & Rem. Code § 51.014(a)(12) (expressly


                                                   7
providing for interlocutory appeal of trial court’s denial of motion to dismiss filed under the Act);

Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 4, 2013 Tex. Gen. Laws 2499, 2500 (amending

Section 51.014(a)(12)). We also have determined that the amendment applies retroactively to

interlocutory appeals like this one that were filed before the amendment’s effective date.3 See

Kinney, 2014 WL 1432012, at *3-4. Based on the reasoning in Kinney, we deny the Blunts’ motion

to dismiss for want of jurisdiction and proceed to consider the remaining issues raised on appeal.


               Exercise of the right to petition

               The Act imposes the initial burden on Serafine, as the movant, to establish by a

preponderance of the evidence that the Blunts’ counterclaims against her are based on, relate to, or

are in response to her exercise of the right to petition. See Tex. Civ. Prac. & Rem. Code § 27.005(b).

When the trial court denied Serafine’s motion to dismiss, it did not expressly determine whether

Serafine met this burden. Whether Serafine met her burden is a legal question that we review de novo

on appeal. See Rehak, 404 S.W.3d at 725.

               Serafine contends that she established that the Blunts filed their counterclaims in

response to her exercise of her right to petition, i.e., in response to her filing suit against them,

because the two counterclaims on their face complained of her filing of the lawsuit and her filing

of the lis pendens notice based on her claims related to the property boundary. In her motion to

dismiss, Serafine asserted that the Blunts’ counterclaims on their face were based on Serafine’s

exercise of her right to petition because they were “solely about her lawsuit, and not about the



       3
           The Texas Supreme Court recently noted that an interlocutory appeal is “clearly the
appropriate remedy going forward,” but it did not address the issue of whether the amendment
retroactively applies. See In re Lipsky, ___ S.W.3d ___, No. 13-0928, 2015 WL 1870073, at *2 n.2
(Tex. Apr. 24, 2015) (“Lipsky II”).

                                                   8
facts giving rise to the lawsuit.” Serafine provided no other evidence to support this allegation

in her motion, instead relying solely on the pleadings in the suit. See Tex. Civ. Prac. & Rem. Code

§ 27.006(a). In the Blunts’ response to Serafine’s motion to dismiss, they asserted that their

counterclaims were not brought “to impinge her right to petition.” They argued that their tortious-

interference counterclaim was not based solely on Serafine’s filing of the lawsuit, but also on her

harassing and threatening conduct before and after the lawsuit. They further argued that Serafine

incorrectly argued that a lis pendens cannot serve as the basis for a fraudulent-lien claim. On

appeal, the Blunts assert that Serafine did not meet her burden because she failed to provide an

affidavit or live testimony to show that their counterclaims were filed in response to her exercise

of her right to petition.

                Under Section 27.006 of the Act, the trial court may consider pleadings as evidence.

Id. § 27.006(a). The Act does not require Serafine to present testimony or other evidence to satisfy

her evidentiary burden. See Rio Grande H20 Guardian v. Robert Muller Family P’ship Ltd.,

No. 04-13-00441-CV, 2014 WL 309776, at *3 (Tex. App.—San Antonio Jan. 29, 2014, no pet.)

(mem. op.) (deciding challenged legal action related to exercise of right to petition based on

consideration of pleadings as evidence), disapproved on other grounds by Lipsky II, 2015 WL

1870073, at *7. The Blunts asserted in their tortious-interference counterclaim that “Serafine willfully

and intentionally interfered with that contract [with the drainage and foundation company] through

threats and the filing of this lawsuit.” (Emphasis added.) They asserted in their fraudulent-lien

counterclaim that Serafine knew that the lis pendens she had filed “in relation to this case” was

not supported by any valid interest in the Blunts’ property. All that the Act requires is that the

challenged legal action be “based on, relate[] to, or is in response to” the movant’s exercise of the

right to petition. Tex. Civ. Prac. & Rem. Code § 27.003(a). We conclude, based on the facts alleged

                                                   9
in the Blunts’ pleadings and in response to Serafine’s motion, that the Blunts’ tortious-interference

counterclaim is in part based on, related to, or in response to Serafine’s filing of the suit and that

their fraudulent-lien counterclaim is based on, related to, or in response to Serafine’s filing of the

lis pendens, both of which filings are exercises of Serafine’s “right to petition” as the Act defines

that term. See Lipsky I, 411 S.W.3d at 541-42 (determining that nonmovant’s claims were based on

movants’ exercise of their right to petition based on facts alleged in nonmovant’s pleadings); see

also Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i) (“‘Exercise of the right to petition’ means . . . a

communication in or pertaining to: . . . a judicial proceeding.”); James v. Calkins, 446 S.W.3d 135,

147-48 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (concluding that fraudulent-lien claim

based on filing of lis pendens was “communication in or pertaining to a judicial proceeding”).

However, to the extent that the Blunts’ tortious-interference counterclaim is based in part on

Serafine’s alleged threats made outside the context of the lawsuit, Serafine has not satisfied her

initial burden to show that these portions of the Blunts’ counterclaims are subject to the Act.

Accordingly, we affirm in part the trial court’s order denying Serafine’s motion to dismiss the

tortious-interference counterclaim, and we will remand the cause for consideration of the Blunts’

tortious-interference counterclaim to the extent that it is based on Serafine’s alleged harassing and

threatening conduct outside the context of the lawsuit.


               Evidence supporting the Blunts’ counterclaims

               Having determined that Serafine satisfied her initial burden to show that the Blunts’

legal action is in part subject to the Act, we turn now to the second step in the analysis—determining

whether the Blunts presented clear and specific evidence that established a prima facie case for each

essential element of the challenged claims. See Tex. Civ. Prac. & Rem. Code § 27.005(c); see also


                                                 10
Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex. App.—Dallas

2013, pet. denied).

               Serafine contends that the Blunts failed to respond to her motion with clear and

specific evidence establishing a prima facie case for each essential element of their counterclaims

as required to avoid dismissal under the Act. The Blunts respond that they established a prima facie

case for each of their counterclaims with clear and specific evidence. We will first consider the

evidence that they presented in support of their counterclaim for tortious interference with contract.

The elements of that claim are “(1) an existing contract subject to interference, (2) a willful and

intentional act of interference with the contract, (3) that proximately caused the plaintiff’s injury,

and (4) caused actual damages or loss.” Prudential Ins. Co. of Am. v. Financial Review Servs., Inc.,

29 S.W.3d 74, 77 (Tex. 2000).

               The Blunts asserted that they had a valid contract with a drainage and foundation

company to install a pump-and-drain system on the Blunts’ property and that Serafine interfered with

that contract by harassing and threatening the company’s employees while they worked on the

Blunts’ property both before and after she filed the lawsuit. In addition, they alleged that Serafine

attempted to stall the project and threatened litigation against the company’s owner. The Blunts

contend that Serafine’s conduct resulted in the drainage and foundation company deciding not to

continue the contracted-for work and instead providing an alternative, less desirable solution to their

drainage issues. They also assert that Serafine’s conduct caused them to pay more for the work.

Serafine argues that the Blunts’ evidence is too vague and conclusory to support a prima facie case

for each element of this claim. We agree with Serafine to the extent that the Blunts’ counterclaim

is based on her filing of the lawsuit.



                                                  11
                Alexander Blunt’s affidavit, which the Blunts presented in response to Serafine’s

motion, states that he “hired Austin Drainage & Landscape Development to professionally install

a pump and drain system.” He also testified at the hearing that he had hired Austin Drainage to

resolve a drainage problem that was causing water to gather under his house. He explained that

Austin Drainage was going to install French drains around the property and against the border of

his house that would tie into a sump pump that would pump the water out to a pop-out valve so it

would flow down into the street.

                These statements indicate a possible contract, but Mr. Blunt did not provide detail

about the specific terms of the contract or attach to his affidavit any contract or other document

memorializing any agreement between the Blunts and the drainage company about the scope of

work to be done.4 See John Moore Servs., 441 S.W.3d at 361 (concluding that nonmovant did not

present clear and specific evidence of contracts or their terms to establish prima facie case for

contract element of tortious-interference claim). Mr. Blunt’s testimony was not clear and specific

enough to support a rational inference that a valid contract existed between the parties. See id.;

see also BH DFW, 402 S.W.3d at 310-11 (concluding that nonmovant did not establish contract

element of tortious-interference claim because it did not establish meeting of minds between it

and movant about contract terms); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 532

(Tex. App.—Fort Worth 2009, pet. denied) (determining that general statement that contracts


        4
          Blunt attached e-mail correspondence with the drainage company’s owner to the affidavit
to show that the drainage company’s attorneys had advised the owner to stop work on the project
after Serafine filed her suit. The correspondence includes a reference to a “Suggested Revised Scope
of Work” that lists a number of steps, but it does not explain how the steps differ from the original
project design, except to indicate that the disputed side of the property can be retrofitted later. There
is no explanation about how the recommended changes affect any previously agreed-upon cost of
the project or any previously agreed-upon completion date and no testimony that the drainage
company ultimately completed the work according to the “Suggested Revised Scope of Work.”

                                                   12
with customers existed was insufficient to maintain tortious-interference-with-contract claim when

affidavit neither provided detail about specific terms of contracts nor attached any contract to

serve as exemplar). Thus, the Blunts failed to establish a prima facie case for this essential element

of their claim.

                  This testimony was also insufficient to establish that Serafine, by filing suit, knowingly

induced the drainage company to breach its obligations under the contract. See John Paul Mitchell

Sys. v. Randalls Food Mkts., Inc., 17 S.W.3d 721, 730 (Tex. App.—Austin 2000, pet. denied)

(explaining that to satisfy element of willful and intentional act of interference, party must be

more than willing participant; it must knowingly induce breach by contracting party). To maintain

their claim, the Blunts were required to provide clear and specific evidence that some obligatory

provision of the contract was breached. See All Am. Tel., 291 S.W.3d at 532 (holding conclusory

testimony about existence of contracts insufficient to establish that obligatory provision of contract

was breached); see also ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)

(explaining that “inducing a contract obligor to do what it has a right to do is not actionable

interference”). The Blunts have not done so here. Although Mr. Blunt testified that the drainage

company’s lawyers would not allow the company to finish the work while the lawsuit was active,

without evidence of the contract’s terms, this does not establish a breach by the company. Mr. Blunt

further testified that the “work-around” performed by the company meant that 30 percent of

his property line has no French drain or drainage protection and that “it’s about anywhere from 60 to

70 percent optimization.” Without evidence of any contract terms, Mr. Blunt’s testimony does not

establish that the “work-around” constituted a breach of an obligatory contract provision or that the

company had not retained the right to perform a “work-around” if unforeseen problems arose in

the course of the work. Similarly, Mr. Blunt testified that the project was delayed for months, but

                                                     13
offered no clear and specific evidence about when the project started or of a contract provision

specifying that a failure to meet some agreed-upon completion date would constitute a breach of

the contract. Mr. Blunt also testified that the work “still cost me about $12,000,” and that this was

more than he originally contracted for because the drainage company “had to do additional work for

the work-around.” Other than this conclusory statement, the Blunts offered no evidence about the

original price terms that they had agreed upon with the drainage company. Without evidence that

the drainage company breached the contract by charging more for additional work, this testimony

too is insufficient under the “clear and specific” evidentiary standard to establish a prima facie case

of a breach.

                  Without more specificity about the terms of the Blunts’ agreement with the drainage

company, the Blunts cannot establish what provisions, if any, Serafine’s filing of the lawsuit

interfered with. Moreover, without more information establishing the existence of a valid contract,

the Blunts cannot establish actual damages. We conclude that the Blunts have not produced the

minimum quantum of clear and specific evidence necessary to establish a prima facie case of

tortious interference with contract to the extent that their counterclaim is based on Serafine’s filing

of the lawsuit.

                  We next consider whether the Blunts established a prima facie case for each element

of their fraudulent-lien counterclaim. To establish this claim, the Blunts must show by clear and

specific evidence that Serafine (1) made, presented or used the lis pendens with knowledge that

it was a fraudulent lien; (2) intended the document to be given the same legal effect as a court

document evidencing a valid lien, claim, or interest in the Blunts’ property; and (3) intended to cause

financial injury to the Blunts. See Tex. Civ. Prac. & Rem. Code § 12.002(a); Brewer v. Green Lizard

Holdings, L.L.C. Series SR, 406 S.W.3d 399, 403-04 (Tex. App.—Fort Worth 2013, no pet.).

                                                  14
Serafine asserts that her lis pendens notice was filed in accordance with Section 12.007 of the

Texas Property Code, which allows a party to a lawsuit involving title to real property to file notice

that the lawsuit is pending with the county clerk in the county where the property is located. See

Tex. Prop. Code § 12.007.

                The Blunts rely on an incomplete chain of correspondence that they assert establishes

Serafine’s knowledge that her claims against their property are not valid. In June 2008, approximately

four years before Serafine filed her suit, she wrote a letter to the Blunts related to the property

boundary. This letter is not in the record. In a letter they described as a response to Serafine’s letter,

the Blunts characterized her letter as “claiming outright ownership of part of our back yard and

fence, later explained in conversation under the clause of ‘adverse possession.’” The Blunts’ letter

continues, explaining the Blunts’ position that the fence at issue is entirely within their property

boundary, based on a 1994 survey. Serafine’s response letter states in its entirety: “Dear Neighbors,

I have received your letter of June 23, which was a response to my letter of June 5. Without admitting

the correctness of your specific assertions, I retract the claims and demands in my June 5 letter.”

(Emphasis added.)

                Without Serafine’s original letter, it is not clear exactly what part of the property

boundary she was disputing in 2008. In her brief, Serafine asserts that her claims in the current suit

include a claim related to a strip of land along the parties’ front yards, which would not have

been covered by the correspondence in 2008. More importantly, regardless of the parameters of

the 2008 dispute, Serafine specifically stated that she was not agreeing with the Blunts’ position

regarding the property boundary. Her decision not to press her claim at that time does not mean

that she filed the lis pendens notice of this suit with knowledge that her claims are not valid. The



                                                   15
2008 correspondence does not constitute clear and specific evidence of knowledge of a fraudulent

claim.

                The Blunts asserted without supporting evidence that Serafine filed the allegedly

fraudulent lis pendens with intent that it be given the same legal effect as a valid claim. The Blunts

acknowledged in their response to the motion to dismiss that they did not have evidence of Serafine’s

intent to cause the Blunts financial injury, but they argued that her intention was clear. With no

evidence of these two essential elements of their fraudulent-lien claim, we conclude that the Blunts

failed to establish a prima facie case of a fraudulent lien.

                Having determined that the Blunts’ counterclaims are in part subject to the Act and

that they failed to establish (1) a prima facie case of tortious interference with contract to the extent

this claim was based on Serafine’s filing suit and (2) a prima facie case of fraudulent lien, we conclude

that the trial court erred by denying Serafine’s motion to dismiss. We sustain in part Serafine’s sole

point of error on appeal, reverse in part the trial court’s order denying the motion to dismiss, and

dismiss both the Blunts’ counterclaim for tortious interference with contract to the extent this claim

is based on Serafine’s filing of the lawsuit and their counterclaim for fraudulent lien.


                Attorneys’ fees

                Serafine requests that if we reverse the trial court’s order, we remand the case to

the trial court for consideration of an award of relief under Section 27.009. Section 27.009 provides

that if the court orders dismissal of a legal action under the Act, the court shall award the movant

“(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against

the legal action as justice and equity may require; and (2) sanctions against the party who brought

the legal action as the court determines sufficient to deter the party who brought the legal action


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from bringing similar actions described in this chapter.” Tex. Civ. Prac. & Rem. Code § 27.009(a).

Accordingly, we remand the case to the trial court for the court to consider an award

under Section 27.009. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (explaining that

reasonableness and necessity of attorneys’ fees are generally issues for the factfinder and matters of

equity and justice are left to trial court’s discretion and are matters of law).


                                           CONCLUSION

                We have determined that the trial court did not err by failing to dismiss the Blunts’

counterclaim for tortious interference with contract to the extent that the claim is based on Serafine’s

allegedly threatening conduct outside the context of this lawsuit, and we affirm the judgment in

this respect. We have also determined that the trial court erred by denying Serafine’s motion to

dismiss (1) the Blunts’ tortious-interference counterclaim to the extent that it is based on her filing of

this lawsuit and (2) their counterclaim for fraudulent lien. Accordingly, we reverse the trial court’s

order in these respects. We remand the cause to the trial court for further proceedings consistent

with our resolution of these issues on interlocutory appeal.



                                                _________________________________________

                                                David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Pemberton;
  Concurring Opinion by Justice Pemberton

Affirmed in part; Reversed and Dismissed in part; Remanded in part on Motion for Rehearing

Filed: June 26, 2015




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