Serafine v. Blunt

Decision Date26 June 2015
Docket NumberNO. 03–12–00726–CV,03–12–00726–CV
Citation466 S.W.3d 352
PartiesMary Louise Serafine, Appellant v. Alexander Blunt and Ashley Blunt, Appellees
CourtTexas Court of Appeals

Doran D. Peters, for Appellees.

Ray Bass, for Appellant.

Before Chief Justice Rose, Justices Puryear and Pemberton


David Puryear, Justice

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.


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


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, 460 S.W.3d 579 (Tex.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. 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 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, 460 S.W.3d at 586, 587. 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, 460 S.W.3d at 592 (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, 460 S.W.3d at 590 (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, 460 S.W.3d at 590 (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...

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