                IN THE SUPREME COURT OF TEXAS
                                           444444444444
                                             NO . 11-0213
                                           444444444444



    COINMACH CORP. F/K/A SOLON AUTOMATED SERVICES, INC., PETITIONER,
                                                   v.


                      ASPENWOOD APARTMENT CORP., RESPONDENT

            4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444

        JUSTICE GUZMAN , joined by JUSTICE DEVINE and JUSTICE BROWN , concurring.

        In this dispute between an aptly represented commercial tenant and landlord, the Court holds

that a tenant at sufferance is a trespasser, which satisfies the predicate tort requirement of a tortious

interference claim. But because the rule the Court announces today also impacts residential tenants,

many of whom are “ordinary working families, without the resources for legal counsel,” I write

separately to expound in a more nuanced manner the heightened proof required to support a tortious

interference claim.1 Under the Court’s holding, such tenants will now potentially be required to

defend against actions for trespass and tortious interference. Importantly, in facing a tortious

interference claim, tenants are exposed not only to damages traditionally recognized under landlord-




        1
       Brief of Amicus Curiae Texas Housing Justice League, Coinmach Corp. v. Aspenwood
Apartment Corp., No. 11-0213 at 5 (Tex. May 10, 2012).
tenant law—that is, rent or lost profits and property damage—but also to heightened emotional

distress or exemplary damages.

        The Texas Housing Justice League, in its amicus brief, voices particular concern that this

“tortification” of landlord-tenant law could subject residential tenants, such as those left in a property

after foreclosure, to excessive liability.2 In an effort to assuage these concerns, the Court today

clarifies that although it holds a tenant at sufferance is a trespasser, this holding does not expose

innocent tenants to liability for additional tort damages, such as when tenants remain in possession

under a good faith belief that they are entitled to do so. __ S.W.3d __, __. But the Court’s opinion

only implicitly acknowledges similar limitations with respect to liability arising out of a claim for

tortious interference. See id. at __.

        For this reason, I write separately to emphasize that in a claim for tortious interference, which

may seek more than actual damages, the landlord must satisfy a greater burden of proof: it must

prove the tenant at sufferance specifically intended to interfere with the landlord’s relationship or

contract with the prospective lessee. If a valid court order obtained in good faith grants a tenant at

sufferance the right to possess property, the order will generally demonstrate the tenant’s lack of the

heightened intent necessary to support a claim for more than actual damages.

                                            I. Background

        As the Court observes, the parties in this case have been litigating issues surrounding

possession for well over a decade. __ S.W.3d at __. Though the Court ultimately concludes that as



        2
            Id. at 4.

                                                    2
a tenant at sufferance, Coinmach is a trespasser and may be held liable in tort for actual damages,

it is undisputed that over many years Coinmach maintained possession of the premises pursuant to

court orders rendered in its favor by various Harris County courts. Beginning in 1994, after

receiving written notice from Aspenwood to vacate the premises, Coinmach3 filed a writ of reentry

action in the Justice Court of Harris County and was awarded the right to possession. In the

subsequent forcible entry and detainer actions Aspenwood filed in 1994 and 1996, Coinmach

similarly obtained orders granting it the right to immediate possession of the premises. Finally, in

1999 after Aspenwood removed Coinmach’s laundry machines from the premises, Coinmach again

filed for and successfully obtained a writ of reentry granting it immediate possession. Thus, for a

significant portion of this litigation, by asserting its right to possession of the property, Coinmach

was acting under court orders.4

           Aspenwood first raised its tortious interference claims in 1998, filing the instant suit in

district court. 349 S.W.3d 621, 627–28. After nearly a decade of protracted litigation, the trial court

found Coinmach was a “tenant at sufferance as a matter of law.” Id. at 629. Coinmach subsequently

filed a motion for summary judgment on Aspenwood’s tortious interference claims, arguing that



       3
           At the time, Coinmach was doing business under the name of Solon Automated Services,
Inc.
       4
         Aspenwood maintains that Coinmach “made a false representation of a right to property
which it did not have, for the purpose of inducing [the Harris County courts] to allow Coinmach to
remain in possession” of the premises. As explained in Part III, infra, if Aspenwood ultimately
proves this allegation, the prior orders in favor of Coinmach’s immediate possession would not act
to negate the specific intent to interfere. Such protections would necessarily only be available to
tenants who procured such court orders in good faith.

                                                   3
because it was a tenant at sufferance and had a possessory interest in the property, its conduct could

not have been tortious. Id. The trial court agreed, finding that “Coinmach cannot have tortiously

interfered with [Aspenwood’s] prospective contractual relations because it was exercising its own

lawful rights of possession and that there is no independent tort which is a required predicate to such

claim[.]” Id. at 630 (first alteration in original). But the court of appeals reversed, concluding that

as a tenant at sufferance Coinmach had no possessory interest and thus was not entitled to judgment

as a matter of law with respect to Aspenwood’s claims for tortious interference. Id. at 638–39.

Today, we affirm the court of appeals’ judgment reversing and remanding Aspenwood’s tortious

interference claims because trespass is an independently tortious or wrongful act. __ S.W.3d at __.

                                      II. Tortious Interference

         As the Court notes, to establish a cause of action for tortious interference with prospective

business relations the plaintiff must show: (1) there was a reasonable probability that the plaintiff

would have entered into a business relationship with a third party; (2) the defendant either acted with

a conscious desire to prevent the relationship from occurring or knew the interference was certain

or substantially certain to occur as a result of the conduct; (3) the defendant’s conduct was

independently tortious or unlawful; (4) the interference proximately caused the plaintiff injury; and

(5) the plaintiff suffered actual damage or loss as a result. __ S.W.3d at __; see Wal-Mart Stores,

Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001); Bradford v. Vento, 48 S.W.3d 749, 757 (Tex.

2001).

         The Court correctly concludes that “Coinmach was and remained a trespasser from the time

Aspenwood first sent a notice to vacate until Coinmach vacated the premises six years later.” __

                                                   4
S.W.3d at __. And, because trespass is an independently tortious or wrongful act that may

potentially support a claim for tortious interference with prospective business relations, the trial court

necessarily erred in granting Coinmach’s motion for summary judgment on the basis that there was

no independent tort—a necessary predicate to a tortious interference claim. Id. Importantly, the

Court’s holding necessarily means that a plaintiff who raises a claim for tortious interference against

a tenant at sufferance will nearly always satisfy the predicate tort requirement.

        But the relative ease with which a landlord may prove the predicate tort requirement in a

tortious interference claim against a tenant at sufferance does not diminish its high hurdle of proving

specific, heightened intent. As explained below, a tenant who maintains possession in good faith

pursuant to a valid court order will typically lack this heightened intent.

                                        III. Intent to Interfere

        To sustain a claim for tortious interference with prospective business relations, the plaintiff

must demonstrate that the tenant at sufferance, by maintaining possession of the premises at issue,

acted with an intent to interfere with the prospective contract between the landlord and the

prospective lessee. __ S.W.3d at __; see also Bradford, 48 S.W.3d at 757 (finding no tortious

interference in the absence of intent to harm the plaintiff’s business relations). This Court has

explained that interference is intentional “‘if the actor desires to bring it about or if he knows that

the interference is certain or substantially certain to occur as a result.’” Bradford, 48 S.W.3d at 757

(quoting RESTATEMENT (SECOND ) OF TORTS § 766B cmt. d (1979)). We further reasoned that “‘[i]f

[the actor] had no desire to effectuate the interference by his action but knew that it would be a mere

incidental result of conduct he was engaging in for another purpose, the interference may be found

                                                    5
to be not improper.’” Id. (quoting RESTATEMENT (SECOND )            OF   TORTS § 766B cmt. d (1979))

(alterations in original); see also Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 861 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied) (“Mere participation in the transaction is not

sufficient to establish an intentional action to harm [the plaintiff].”).

        Accordingly, in Bradford we declined to find that the defendant’s statements to police during

a criminal trespass investigation constituted legally sufficient evidence of intent to harm the

plaintiff’s prospective business relations with customers. 48 S.W.3d at 758. Instead, the plaintiff’s

inability to do business with customers was merely an incidental result of the defendant’s efforts to

end the present disturbance and protect property. Id. Similarly, when a tenant at sufferance

exercises a right of possession pursuant to a court order, the landlord’s inability to lease the premises

to others is necessarily “a mere incidental result of conduct [the tenant] was engaging in for another

purpose”—that is, for the purpose of exercising its court-sanctioned right to possession. Id. at 757.

Under such circumstances, a defendant’s good faith belief in its right to possess the property

premised on court orders will likely preclude a plaintiff from establishing the heightened intent

necessary to support a claim for tortious interference.5

        In the present case, Coinmach remained in possession of the premises pursuant to favorable

court orders obtained in the course of litigation. Under most circumstances, this would almost



        5
          Of course, a tenant at sufferance may have a good faith belief in its right to possession even
in the absence of court orders. Under these circumstances, the landlord still carries the heavy burden
of proving the tenant specifically intended to interfere with the landlord’s potential business
relations. Bradford, 48 S.W.3d at 757–58. The tenant’s mere intent to maintain possession will not
sustain a claim for tortious interference.

                                                   6
certainly demonstrate a tenant lacked the specific intent to interfere. But here it is unclear whether

Coinmach’s possession under these court orders was in good faith. Indeed, Aspenwood has put forth

some evidence that Coinmach may have procured these court orders through fraud. For one, to

obtain a writ of reentry Coinmach presented a sworn affidavit to the justice court that relied on the

lease agreement but omitted any mention of the lease’s express provision that it was “subordinate

to any mortgage or deed of trust on the premises.” Aspenwood has also presented some evidence

regarding the dangerously poor condition of Coinmach’s equipment and argues that the same

affidavit falsely claimed the equipment was functional. Thus, summary judgment in favor of

Coinmach on Aspenwood’s tortious interference claim is not possible because there is a remaining

fact issue as to whether Coinmach procured the court orders through fraud.6

                                          IV. Conclusion

       Although I join the Court’s opinion, I am mindful of the implications of the holding to

residential tenants, particularly those with limited resources. Despite the Court’s assurances that

“innocent” trespassers—a term that includes those who remain on premises pursuant to valid court

orders—will only be held liable for actual damages sustained, in a claim for tortious interference it

is possible that a tenant at sufferance may be held liable for far more than actual damages. A

successful plaintiff may potentially recover emotional distress and exemplary damages.

       For this reason, the Court’s remand on Aspenwood’s tortious interference claim should not

be read so broadly as to extend liability for these additional damages to tenants at sufferance who


       6
       The existence of fraud is a question typically left to the trier of fact. Quinn v. Dupree, 303
S.W.2d 769, 774 (Tex. 1957).

                                                  7
remain on premises in good faith reliance on previously obtained court orders. Because the Court

does not reach discussion of this issue with respect to Aspenwood’s tortious interference claim, I

respectfully concur.



                                                    ____________________________________
                                                    Eva M. Guzman
                                                    Justice


OPINION DELIVERED: November 22, 2013




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