                                                                                         ACCEPTED
                                                                                     03-12-00726-CV
                                                                                             5331799
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               5/18/2015 11:35:01 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
        IN THE COURT OF APPEALS
        THIRD DISTRICT OF TEXAS
             AUSTIN, TEXAS                                    FILED IN
                                                       3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                       5/18/2015 11:35:01 PM
                                                           JEFFREY D. KYLE
                ______________________________                  Clerk

            NO. 03-12-00726-CV
                ______________________________




    MARY LOUISE SERAFINE, Appellant

                             v.

ALEXANDER BLUNT & ASHLEY BLUNT, Appellees

                ______________________________

     ON APPEAL FROM THE 200TH JUDICIAL DISTRICT COURT
                 OF TRAVIS COUNTY, TEXAS
              CAUSE NUMBER D-1-GN-12-001270
                ______________________________


  APPELLANT’S MOTION FOR REHEARING
     RE: ATTORNEY FEES ON REMAND
                ______________________________




                                                 RAY BASS, ATTORNEY
                                                 SBN 01884000

                                                 120 West 8th Street
                                                 Georgetown, Texas 78626
                                                 Tel: 512-863-8788
                                                 Fax: 512-869-5090
                                                 Email:ray@raybass.com

                                                 ATTORNEY FOR APPELLANT
                      STATEMENT OF THE CASE

    Appellant sued the Blunts, her next door neighbors,
contending that (1) the Blunts tore down a chain link
fence   that    for   at   least      35    years   had     marked    the
boundary between appellant’s property and the Blunt’s
property,      and    erected     a     new    wooden       fence    that
encroached upon appellant’s land, and (2) the Blunts
damaged   appellant’s      land    by      hiring   Scott    Lockhart’s
company, Austin Drainage and Foundation, LLC., to dig a
trench on or immediately adjacent to Appellant’s land,
and to install a drainage system that will destroy the
lateral support of her land. In connection with her
trespass to try title suit appellant filed a Notice of
Lis Pendens in the Travis County property records.


    The     Blunts     retaliated with          two     counterclaims
against   appellant which read as follows:


         Tortious Interference with Contract: The
    Blunts had a valid contract with Austin
    Drainage    and   Foundation,   LLC.   Serafine
    willfully and intentionally interfered with
    that contract through threats and the filing of
    this     lawsuit.    Serafine’s    interference
    proximately caused injury to the Blunts, who
    incurred actual damage or loss.

        Fraudulent Lien. Serafine has knowledge
    that the Lis Pendens she has filed in relation
    to this case is not supported by any valid
    interest in the Blunts’ property. Serafine
      filed the Lis Pendens with the Travis County
      Real Property Records with the intention to
      cause the Blunts financial injury. Serafine’s
      actions violate Chapter 12 of the TEXAS CIVIL
      PRACTICE AND REMEDIES CODE.


      Pursuant to Section 27.003 of Chapter 27, Civil
Practice         And        Remedies           Code        (Texas          Citizens
Participation Act) appellant filed a motion to dismiss
the      Blunts’       counterclaims.           The   trial        court       held    a
hearing on and subsequently signed an order denying the
motion.       Pursuant          to    Section       27.008       of      the     Civil
Practice       And     Remedies            Code,    appellant           filed     this
interlocutory appeal from the trial court’s ruling.


      On May 1, 2015, this Court issued a written opinion
in    which    the     court         (1)   reversed       in     part    the     trial
court's order denying appellant’s motion to dismiss,
and dismissed the Blunts' counterclaims to the extent
that they assert claims based on Serafine's filing of
the underlying lawsuit and a lis pendens, (2) affirmed
in part the trial court's order                           denying appellant’s
motion      to    dismiss,            concluding          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, and (3) remanded the case to the trial court
for   further     proceedings      consistent            with    the    written
opinion, including consideration by the trial court of
an    award    under     Section   27.009           of    costs       and     fees
relating to the motion to dismiss.


      In the May 1, 2015, written opinion the Court said
the following (See, Opinion, p. 17):

              “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        from
      bringing       similar   actions        described         in     this
      chapter." Tex. Civ. Prac. & Rem. Code § 27.009.
      Accordingly, we remand the case to the trial
      court for the court to consider an award under
      Section 27.009. See Combined Law Enforcement
      Ass'n     of     Tex.,    2014     WL     411672,          at     *11
    (concluding that Act's fees provisions are not
    mandatory)”.


     For the reasons stated below appellant requests
the Court to reconsider the suggestion that the award
of attorney fees under 27.009(a) is not mandatory.


                    GROUNDS FOR REHEARING

     THE COURT HAS ERRONEOUSLY SUGGESTED THAT THE AWARD
OF ATTORNEY FEES UNDER 27.009 IS NOT MANDTORY.


                    Argument & Authorities


    Section 27.009 of the Texas Civil Practice and
Remedies Code provides as follows:

    Sec. 27.009.      DAMAGES AND COSTS.        (a)      If the
    court orders dismissal of a legal action under
    this   chapter,   the     court   shall   award   to    the
    moving party:


           (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 from bringing
       similar actions described in this chapter.


      (b)     If     the    court    finds     that      a    motion    to
      dismiss filed under this chapter is frivolous
      or    solely    intended       to   delay,    the       court    may
      award    court       costs    and   reasonable          attorney's
      fees to the responding party.


      The     Court         cites     Combined          Law        Enforcement
Associations of Texas (CLEAT) v. Sheffield (Tex. App. –
Austin # 03-13-00105-CV, 01-31-2014, pet filed) as a
case “concluding that (Section 27.009) fees provisions
are not mandatory”.                In that case Sheffield filed a
defamation action against CLEAT who responded with a
27.003 motion to dismiss. The trial court denied the
motion and CLEAT filed an interlocutory appeal. In the
Court of Appeals Sheffield argued, among other things,
that the TCPA violates the “open courts” provision of
the   Texas     Constitution         because       the       mandatory       fees
provisions of Section 27.009 create a financial barrier
that unreasonably impedes his access to the courts. In
dismissing this argument the Court Of Appeals said the
following (See Opinion, p. 18):
           “…   Sheffield        has    not    shown       that     fees
    awards are mandatory under the TCPA, much less
    that they violate the open-courts provision”.


           “While       the      introductory         language       of
    subsection        (a)     uses   the   seemingly         mandatory
    term    "shall      award,"      the   subsequent         language
    tempers the conditions for making an award with
    discretionary terms like "justice" and "equity"
    and "sufficient to deter." Id. A trial court
    may    decide      that    justice     and     equity      do   not
    require      that       costs,     fees,     or    expenses      be
    awarded and may determine that no sanctions are
    needed      to    deter    the     plaintiff      from    bringing
    similar      actions.        These     provisions         do    not
    mandate an award and do not violate the open-
    courts guarantees on their face. As no fees
    were awarded, the provisions as applied here
    did not violate the open-courts provisions”.


    Appellant submits that under established rules of
statutory construction, the sketchy analysis employed
in CLEAT v. Sheffield is faulty and has resulted in an
erroneous interpretation of Section 27.009(a).


    A     court’s      primary       obligation       in     construing     a
statute    is    to     ascertain       and    give        effect    to    the
Legislature’s intent. Tex. Gov’t Code § 312.055; 20801,
Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008); Tex.
Dept. Of Prot. & Reg. Servs. V. Mega Child Care, Inc.,
145   S.W.3d    170,     176   (Tex.    2004);    Greater      Houston
Partnership v. Abbott, 03-11-00130-CV (Tex. App.-Austin
1-31-2013).     In     determining     legislative       intent,     the
entire statute, not just isolated portions, must be
analyzed. City of San Antonio v. City of Boerne, 111
S.W.3d 22, 25 (Tex. 2003). The objective sought to be
obtained by the statute is relevant to a determination
of     legislative       intent.       Tex.      Gov’t        Code    §
311.023(1),(5). It must be presumed that every word and
phrase of the statute was used for a purpose and no
construction of the statute should render any word or
phrase superfluous or meaningless. Cities of Austin,
Dallas, Ft. Worth & Hereford v. S.W. Bell Tel. Co., 92
S.W.3d 434, 3442 (Tex. 2002); City of Marshall v. City
of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). Energy
Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442 (Tex.
2009).


      The objective of anti-SLAPP statutes like Chapter
27 of the Texas Civil Practice and Remedies Code is
discouragement of unmeritorious and vexatious lawsuits
designed   to    have      a   chilling       effect     on    certain
constitutional rights, including the right to petition
See, Exxon Mobile Pipeline Company v. Coleman, 05-14-
00188-CV (Tex.App.-Dallas 5-12-2015); American Heritage
Capital,      LP     v.    Gonzalez,       436    S.W.3d    865    (Tex.      App.
Dallas 2014, no pet.). That objective is thwarted if
the award of costs and reasonable attorney fees to the
ultimately successful movant under Section 27.003 is
not mandatory. Citizens who have no assurance that they
will    collect       costs       and    reasonable       attorney      fees   if
successful         in          challenging        an    unmeritorious          and
vexatious lawsuit will be discouraged from seeking the
relief provided by Section 27.003.


       Section     27.009        is     divided    into    two    subsections.
Subsection (a), in mandatory terms, provides that the
court “shall award” court costs and reasonable attorney
fees    to    a    successful         27.003      movant.    Subsection        (b)
provides in discretionary terms                        that the court         “may
award”       costs      and      reasonable       attorney       fees   to     the
responding party if a 27.003 motion to dismiss is found
to be frivolous. The Court’s analysis of 27.009(a) in
CLEAT v. Sheffield ignores the contrasting “may award”
language in 27.009(b). If a mandatory award of attorney
fees to a successful 27.003 movant was not intended,
the legislature would not have used the mandatory term
“shall    award”          in    Section    27.009(a)       and    would      have,
instead, used the                discretionary term “may            award” as
contained in Section 27.009(b).
      Of course, the phrase in Subsection (1) of Section
27.009(a), to wit: “as justice and equity may require”
cannot      be    ignored.     Appellant       submits     that    the    most
reasonable and harmonious interpretation of Subsection
(1)   is     that    the     phrase    “as    justice     and    equity    may
require”         modifies     only    “other    expenses        incurred    in
defending against the legal action”. In this regard it
is important to note that there is no comma between the
phrase “other expenses incurred in defending against
the legal action” and the phrase “as justice and equity
may       require”      as   there    would    be   if    the   legislature
intended the phrase “as justice and equity may require”
to    modify      all    three    categories        of   compensation      set
forth in Subsection (1). Moreover, “Court costs” is a
definitive        category       of   compensation       and    “reasonable
attorney fees” are circumscribed by well established
factors such as experience, hours devoted to specific
tasks, and customary charges in the specific locality.
On the other hand, “other expenses” is a less well-
defined term and the decision that a particular expense
other than court costs and attorney fees is best left
to    a    court’s      determination        that    justice     and   equity
require reimbursement for that particular expense.




      Finally, appellant would point out that attorney
fees are awarded under Section 27.009(a) only after an
adjudication that         the 27.003 movant was required to
defend    against    an    insufficiently       founded     cause      of
action.     It    makes    little    sense    to   re-determine         in
satellite litigation whether the award of reasonable
attorney fees is “just” and “equitable.”                  Such a re-
determination will eventually lead to errors of law and
abuses of discretion that will defeat the objective of
the statute.


     WHEREFORE,     appellant      prays    that   this   motion       for
rehearing will be granted and that upon said rehearing
the Court will withdraw the suggestion that the award
of court costs, attorney fees, and the imposition of
sanctions under Section 27.009(a) of the Texas Civil
Practice and Remedies Code are not mandatory, and will
remand the case to the trial court with instructions to
award to Appellant court costs and reasonable attorney
fees associated with her efforts to obtain a dismissal
of   Appellees’     unmeritorious          counterclaims,        and    to
impose    sanctions         that    are     sufficient      to     deter
appellees from bringing similar actions.



                                     RESPECTFULLY SUBMITTED BY


                                     /s/ Ray Bass
                                     _________________________
                                     RAY BASS, ATTORNEY
                                     SBN 01884000
                             120 WEST 8TH STREET
                             GEORGETOWN, TEXAS 78626
                             TEL: 512-863-8788
                             FAX: 512-869-5090

                             Email: ray@raybass.com




               CERTIFICATE OF COMPLIANCE


    Pursuant to Rule 9.4(i)(2) the below signed counsel
for appellant certifies that the foregoing Appellant’s
Brief, excluding the parts listed in Rule 9.4(i)(1),
contains 1841 words less than 4500 words.


                              /s/ Ray Bass
                              _____________________________
                              Ray Bass
                CERTIFICATE OF SERVICE



    I hereby certify that a true and correct copy of
Appellant’s Brief has been served via the method
indicated below, to the person(s) noted below on this,
the 16th day of May, 2015.


Doran D. Peters
HAJJAR, SUTHERLAND, &bPETERS, LLP
3144 Bee Cave Road
Austin, Texas 78746

Attorney For Appellees
Via facsimile (512) 637-4958
Via Email dpeters@legalstrategy.com




                         /s/ Ray Bass

                         RAY BASS
