Mary Louise Serafine v. Alexander Blunt and Ashley Blunt
466 S.W.3d 352
| Tex. App. | 2015Background
- Neighbors Mary Louise Serafine (plaintiff/appellant) and Alexander & Ashley Blunt (defendants/appellees) dispute property boundaries; Serafine sued for trespass to try title, trespass, nuisance, negligence, fraud by nondisclosure, and sought injunctive/declaratory relief.
- The Blunts counterclaimed for tortious interference with a contract (with a drainage/foundation company) and for filing a fraudulent lis pendens under Chapter 12 of the Texas Civil Practice & Remedies Code.
- Serafine filed a motion to dismiss the Blunts’ counterclaims under the Texas Citizens Participation Act (TCPA/Chapter 27); the trial court denied the motion after a hearing and affidavit testimony from Alexander Blunt.
- Serafine appealed the interlocutory denial under the TCPA appellate scheme; this court accepted jurisdiction and reviewed de novo whether the TCPA applied and whether the Blunts met the TCPA’s "clear and specific evidence" prima facie standard.
- The appellate court concluded the Blunts’ claims were partly "based on, relate to, or in response to" Serafine’s exercise of the right to petition (the suit and lis pendens), but the tortious-interference claim also alleged non‑petition-related threatening conduct.
- Holding: the court reversed in part — dismissing (1) the tortious-interference claim insofar as it is based on the filing of the lawsuit, and (2) the fraudulent-lien (lis pendens) claim — but affirmed that the tortious-interference claim could proceed insofar as it rests on alleged harassment/threats outside the lawsuit; remanded for further proceedings including possible TCPA fee award.
Issues
| Issue | Plaintiff's Argument (Serafine) | Defendant's Argument (Blunts) | Held |
|---|---|---|---|
| Whether the TCPA applies to the Blunts’ counterclaims | TCPA applies because the counterclaims are based on Serafine’s filing of the lawsuit and lis pendens (exercise of right to petition) | Counterclaims also rest on pre- and post-suit threatening/harassing conduct not protected by TCPA | TCPA applies to the portions of claims based on the suit and lis pendens; does not apply to portions alleging threats outside the suit |
| Whether Blunts met burden to present clear and specific evidence of tortious interference (prima facie each element) | Serafine argued Blunts failed to present clear and specific evidence (no contract terms, no proof of breach or damages) | Blunts pointed to affidavit testimony and correspondence showing interference, delay, added cost, and counsel advice to stop work | Blunts failed to present clear and specific evidence to establish a prima facie tortious-interference claim to the extent it is based on Serafine’s filing; claim may proceed to extent premised on non‑petition threats |
| Whether Blunts presented clear and specific evidence of fraudulent-lien claim (lis pendens filed knowingly fraudulent, intent to cause injury) | Serafine argued lis pendens filed under Prop. Code §12.007 and thus protected; Blunts lacked proof of knowledge and intent | Blunts relied on prior correspondence and asserted lis pendens was unsupported, but admitted lack of direct evidence of intent to cause financial injury | Blunts failed to establish prima facie fraudulent-lien claim; dismissed |
| Whether fees/expenses under TCPA §27.009 should be awarded if dismissal granted | Serafine sought remand for consideration of fees and sanctions under §27.009 after partial dismissal | Blunts opposed fee award | Court remanded for trial court to consider awarding costs, attorney’s fees, and sanctions under §27.009 as appropriate |
Key Cases Cited
- In re Lipsky, 411 S.W.3d 530 (Tex. App. — Fort Worth 2013) (TCPA framework and evidentiary approach)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (Texas Supreme Court treatment of TCPA issues)
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (statutory construction reviewed de novo)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App. — Houston [14th Dist.] 2013) (burden-shifting and prima facie standard under TCPA)
- Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000) (elements of tortious interference with contract)
- John Moore Servs., Inc. v. Better Bus. Bureau of Metro. Houston, 441 S.W.3d 345 (Tex. App. — Houston [1st Dist.] 2013) (conclusory assertions insufficient; contract-element proof)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (U.S. 1993) (sham litigation concept in petitioning context)
- James v. Calkins, 446 S.W.3d 135 (Tex. App. — Houston [1st Dist.] 2014) (fraudulent-lien claim based on filing of lis pendens qualifies as communication pertaining to judicial proceeding)