*1 Moreover, made clear to the trial court conditionally sub 4 was Question circum- if of relevant jury only its list mitted, parties to be answered 3. intended question answer to was not an affirmative in the instruction gave it stances produc of about the lack Question 3 asked to limit list or intended as an exhaustive well, only #11 capability tive strong BP made parties’ arguments. the shut-in for which on the lease well plans for jury its argument As the court was invoked. royalty clause develop- formation Tonkawa and Cleveland it, royalty “Shut-in Hoggett put v. in Kidd operate intention to its ment demonstrated only if the production excuse payments speculation, rather than profit lease for gas in producing of actually capable well is a reason- intention was that of and that its It at 519. paying quantities.” operator. ably prudent 4 was intended question apparent is two- step of Koontz’s mirror the second Conclusion test. paying quantities step production argu- BP’s rejected have each of We 691; Koontz, Skelly, 356 see Two. its Issues One and supporting ments curiam) reh’g); (op. on (per at 783 issues, and we overrule both Accordingly, (both at 418 describ Pshigoda, 703 S.W.2d judgment. affirm the trial court’s test).16 question two-step Given ing well, argu BP’s to the # was limited trial court convince that the

ment does not by declining BP’s

abused its discretion question concerning inquiry

proposed opera reasonably prudent

the actions of whole, to the lease as respect

tor with for of other respect potential

with reasoning based on mations. BP’s SERAFINE, Mary Appellant Louise is like that potential formation Cleveland Kidd, which said by the court described reasoning “reduce[d] there the defendants’ Ashley Blunt and Alexander ... if to the contention itself BLUNT, Appellees [well], because of the another now drill NO. 03-12-00726-CV reserves, produc it would be gas known continued, But, the court ing “[t]hat well.” Texas, Appeals Court well which producing of a proof is not such Austin. in lieu of actual royalty shut-in permit

will 26, 2015 Filed: June (citations at 519. production.” 331 S.W.2d omitted). the same is true We think beyond question to broaden

BP’s effort

the #11 well. to "overrule or ques- it was not its intention We have overruled BP’s contention prior question. question We have deci- 4 was an immaterial call into [its] tion otherwise otherwise whether interpretation no need to address regarding proper sions ” question required, and, was submission paying quantities,’ in the 'production in It express opinion on that matter. we sentence, require- made reference to the next reading the record that its clear from a paying quan- produce in "for a well to ments necessary considered to com- submission was producing paying capable to be tities or Anadarko, language passage in ply in a ours). (emphasis quantities." There, the court wrote 94 S.W.3d at 559. *4 Peters, Appellees.

Doran D. for Bass, Ray Appellant. for Rose, Before Chief Justice Justices Puryear Pemberton and OPINION Puryear, David Justice concurring withdraw the opinion, We 1, 2015, opinion, judgment May and dated following opinion, con- and substitute curring opinion, judgment and in their place. deny appellant’s motion for We rehearing.

Mary appeals Louise Serafine from an interlocutory denying order a motion to brought Chapter under 27 of the dismiss Remedies Texas Civil Practice and Code. & generally See Tex. Civ. Prac. Rem.Code appellees §§ Serafine and Al- 27.001-.011. Ashley Blunt are next-door exander and drainage company Serafine the Blunts foundation neighbors. sued property to a dis- Chapter various claims related 12 of the that Serafine violated Blunts counterclaims filed pute. Code Texas Practice and Remedies Civil Serafine, sought to dis- which she fraudulently filing pendens a lis will reverse Chapter miss under 27. We Real Records. County Property Travis denying trial court’s order part moved the Blunts’ Serafine to dismiss to dismiss and will dismiss motion 27. See id. Chapter counterclaims under extent Blunts’ counterclaims to the response § 27.003. The Blunts filed fil- claims on Serafine’s they assert based evidence. supporting included' affidavit a lis underlying of the lawsuit and ing 27.006(a). sought § id. Neither side trial See part will affirm in pendens. We 27.006(b). order, discovery. § See id. The trial based on our conclusion court’s tortious inter- 27.004, the Blunts’ counterclaim for id. hearing, court conducted see may proceed with contract ference After at which Alexander Blunt testified. allegations it is extent that based motion, evi- considering pleadings, conduct outside of threatening by Serafine dence, arguments by coun- presented lis filing underlying lawsuit and sel, trial court the motion. denied See will remand the case for pendens. We 27.006(a). followed. appeal id. This *5 with this proceedings further consistent including by the tri- opinion, consideration ANALYSIS an award Section 27.009 al court of under to relating and fees to the motion of costs Statutory overview § dismiss. See id. 27.009. 27, Chapter also known as Tex BACKGROUND Act, Participation an is anti- Citizens underlying arose from a The lawsuit Lipsky, SLAPP statute. See In re and the property dispute between Serafine (Tex.App. 536 n. 1 S.W.3d — Fort Blunts. Serafine’s claims 2013, orig. proceeding) (“Lipsky Worth allegations are based on her Blunts (Tex. denied, I”), mand. (1) tore fence the Blunts down a chain-link 2015) ”). (“Lipsky II is an acro “SLAPP” boundary that had marked the between nym “Strategic Against for Lawsuits Pub and for 35 property property her their The Participation.” purpose lic Id. and then wooden years erected new safeguard Act is “to and encourage upon property, fence that encroached her rights petition, persons constitutional (2) the Blunts and trespassed upon and freely, and other speak freely, associate by her land a trench on damaged digging in government to the max participate wise immediately adjacent by and or to her land and, permitted by imum extent law at the drainage that will de-

installing system time, protect rights person of a same support stroy the lateral of her land. Ser- file meritorious for demonstra lawsuits try trespass afine asserted claims for injury.” Tex. Prac. & ble Civ. Rem.Code title, nuisance, trespass, negligence, and Act lib § 27.002. The is to “be construed nondisclosure, sought declar- fraud erally purpose to effectuate its intent relief, atory injunctive addition fully,” abrogate but it “does not or lessen The Blunts damages attorneys’ fees. defense, immunity, any remedy, other or also filed answered Serafine’s suit and counterclaims, available constitu privilege under other Serafine tor- asserting that tional, case, statutory, law or tiously interfered with their contract or common § provisions.”1 liability Id. 27.011. which the or defense is rule based.” 27.006(a). §Id. may The court allow spec- early provides The Act a mechanism discovery ified and limited relevant to the party’s of suits based on a exer- dismissal cause, motion showing good on a but right speech, right of the of free cise discovery otherwise all legal action right of association. Id. petition, or the suspended until the court has ruled on litigant § 27.003. Section 27.003 allows a 27.003, §§ the motion to dismiss. Id. “legal of a action” that is seek dismissal .006(b). on, response relates or is in to a “based Standard of review speech, exercise of the of free party’s or of association.” petition, We review de novo questions of statuto “ 27.003(a). ‘legal § A action’ means a Id. Kimbrell, ry construction. Molinet v. lawsuit, action, complaint, petition, cause (Tex.2011). S.W.3d We consider cross-claim, any counterclaim other or or legal question de novo the of whether the judicial pleading filing requests or movant has preponder established 27.001(6). § relief.” legal equitable Id. ance of the evidence that the challenged “Exercise to petition” legal includes action is covered under the Act. See Servs., pertaining Witt, “a communication in or to ... a Rehak Inc. v. Creative 27.001(4)(A)(i). judicial proceeding.” Id. 725 (Tex.App. [14th — Houston denied), making pet. includes the disapproved Dist.] “‘Communication’ II, grounds by of a statement document in other submitting Lipsky 460 S.W.3d at medium, oral, visual, 587. We also review de novo a trial including form or audiovisual, court’s determination written, of whether a non- or electronic.” Id. 27.001(1). presented movant has specific clear and establishing prima evidence facie case for the initial burden on imposes Act each essential element challenged *6 to aby preponder- movant establish claims. Id. at 726. legal ance of the evidence “that the action on, in response is based relates or is prima A facie generally standard party’s exercise of ... to “requires only the quantum minimum 27.005(b). petition.” Id. The Act then necessary support evidence a rational nonmovant, shifts the burden to the allow- the allegation inference that of fact ing only the nonmovant to avoid dismissal true.” In re E.I. DuPont Nemours & de by by “establishing] specific Co., (Tex.2004) clear and evi- 218, 136 S.W.3d 223 (internal prima dence a facie case for each essential (orig.proceeding) quotation marks omitted); element of claim in question.” see, Id. e.g., and citation Newspaper 27.005(c). determining When whether v. Holdings, Crazy Inc. Hotel Assisted action, (Tex. legal Ltd., 71, to dismiss the the court Living, must 416 S.W.3d 80 2013, pleadings supporting consider “the App. pet. de [1st Dist.] — Houston nied) opposing stating Chapter affidavits the facts on 27 (applying standard concurrence, acknowledged 1. The concurrence here and a recent concur in the we must by Neyland Thomp according plain rence Justice Field in v. Act construe this mean- son, 03-13-00643-CV, 1612155, ing by Legislature. No. WL 2015 words chosen 7, 2015, written, (Tex.App. Apr. expansive at *11-12 As the Act and its defini- — Austin J., little, h.) (Field, pet. (mem.op.) concurring), provide any, support ar tions if textual limiting application weighty ticulate valid concerns over the breadth of the its to more mat- Participation public Texas Citizens Act. We are nei ters of concern than those exhibited in unsympathetic neighborhood ther unaware of nor to those tussle between Serafine concerns, explained but for reasons here and the Blunts. Law thing.” named Black’s particular use Legislature’s explaining case II, 1616; Lipsky at implies imposition Dictionary, case” “prima facie burden). evi- “Prima facie this definition (approving factual at 590 minimal S.W.3d that, effect is until its Third New is evidence see also Webster’s “specific”); dence evidence, suffice as by will (“being peculiar overcome other at 2187 Dictionary, Int’l words, a in issue. In other of a fact proof question,” or relation thing to the that will entitle facie case is one prima formulation or precise “characterized if no evidence to to recover party restriction,” or “free from such accurate opposite party.” contrary is offered careless lack of as results from ambiguity (citation Rehak, at 726 omit- pertinent from omission of precision or Arias, 666, ted); v. Kerlin matter”). conclude that the term We cf. curiam) (Tex.2008) (explaining (per evidence” refers specific “clear and presen- movant’s summary-judgment required to establish of evidence quality evidence of deed’s prima facie tation case, “prima while the term facie prima summary his validity established to the amount of evi- facie case” refers presented nonmovants unless judgment satisfy the nonmovant’s required to dence to validi- raising fact related evidence issue See minimal factual burden. Combined pro- are not “Conclusory statements ty). Ass’n Tex. v. Law Enforcement Shef accordingly will not suffice bative and 03-13-00105-CV, 2014 WL field, No. facie case.”2 Better prima establish a Jan. (Tex.App. at *10 — Austin Houston, Inc. Bus. Bureau Metro. denied) Thus, if we (mem.op.). pet. Servs., Inc., 441 S.W.3d Moore John her initial that Serafine carried determine (Tex.App. Dist.] [1st — Houston that the Blunts’ counter- prove burden denied) DuPont, E.I. (citing In re pet. Act, by the we must claims are covered II, 223-34); Lipsky see also marshaled whether the Blunts determine “bare, (explaining that base S.W.3d at 592 spe- quantum of “clear and the minimum “a sufficient substi opinions” less are not a ra- necessary support cific evidence” specific evidence tute for the clear and establishing inference each essential tional facie case” prima to establish a required their counterclaims. element of Act). under the appeal Issues on not define “clear and The Act does evidence; give we consequently, specific” *7 the trial court contends that Serafine ordinary meaning. See terms their these by denying her motion to dismiss erred Combs, v. Geophysical Co. TGS-NOPEC applies Act and the Blunts because the (Tex.2011). 432, S.W.3d “Clear” prima facie case for to establish failed “ doubt,” “sure,” or un “free from means with claims of tortious interference their Dictionary Law ambiguous.” Black’s filing pen- of a fraudulent lis contract and (10th II, ed.2014); at Lipsky trial also contends that dens. She “clear”); (approving this definition award her attor- by failing erred to court Dictio Third New Int’l see also Webster’s neys’ fees. (2002) understood,” (“easily nary 419 interlocutory appeal over Jurisdiction “easy to obscurity ambiguity,” “without matter, we must certainty”). preliminary As a perceive or determine over jurisdiction we have address whether “explicit” “relating “Specific” means the inference is based.” Black's "[e]xpressing on which "Conclusory” a factual means ed.2014). (10th Dictionaiy 351 stating underlying Law facts inference without interlocutory filed were appeal. this Blunts filed before the amendment’s effec jurisdiction want a motion to dismiss for 1432012, tive date.3 Kinney, See 2014 WL an issue in their and also asserted as brief at *3-4. Based on the in reasoning Kin jurisdiction. this Court lacks The ney, deny we the Blunts’ motion to dismiss that the Act ex- Blunts contend does not jurisdiction for want of proceed interlocutory authorize an pressly appeal consider the remaining issues raised on a timely ruling when the trial court issues appeal. dismiss;

denying they motion assert petition Exercise of the that an interlocutory appeal is authorized only grants when the trial court either The Act imposes the initial burden rule, motion or fails to in the resulting Serafine, movant, as the to establish being by operation motion’s overruled preponderance of the evidence that the law under the statute. See Tex. Prac. Civ. Blunts’ against counterclaims her are § & Rem.Code 27.008. The Blunts relied on, based relate or are in response to on a decision from the Fort Worth Court her exercise of the right petition. See Appeals supporting interpretation their 27.005(b). Tex. Civ. Prac. & Rem.Code Jennings of the statute. See v. Wall- When the trial court denied Serafine’s mo Inc., Presentations, Builder dismiss, tion to it did not expressly deter 519, 2012, (Tex.App Worth . —Fort mine whether Serafine met this burden. denied) pet. (finding jurisdiction no over Whether Serafine met her burden is motion). denying order This Court has legal question that we review de novo on determined, however, regardless Rehak, appeal. See 404 S.W.3d at 725. statute, meaning original the Act Serafine contends she established corollary as amended in 2013 and a revi- that the Blunts filed their counterclaims Chapter sion to 51 of the Practice Civil response to her exercise of her right to together juris- Remedies Code confer i.e., petition, response to her filing suit diction over such appeals as this one them, because the two counter- expressly which trial court denied the claims on complained their face of her Kinney motion to dismiss. See BCG filing filing lawsuit and her of the lis Search, Inc., 03-12-00579-CV, Att’y No. pendens notice based on her claims related 2014 WL at *3-4 (Tex.App.— property boundary. In her motion denied) (mem. 11, 2014, Apr. Austin pet. dismiss, Serafine asserted that op.); Combined Laxo Ass’n Enforcement Blunts’ counterclaims on their face were Tex., *4; 2014 WL see Tex. also based on Serafine’s exercise of her 51.014(a)(12)(ex Civ. Prac. & Rem.Code petition “solely because were about pressly providing interlocutory appeal lawsuit, her giving and not about the facts of trial court’s denial of motion to dismiss provided rise to the Serafine lawsuit.” Act); May filed under the Act of other R.S., support allegation evidence to 4,§ Leg., 83d ch. 2013 Tex. *8 motion, her instead relying solely Gen. on the (amending Laws Section 51.014(a)(12)). pleadings the suit. See Tex. Prac. We also have determined Civ. 27.006(a). § that the applies retroactively amendment & In Rem.Code the Blunts’ interlocutory appeals dismiss, to like response this one that to Serafine’s motion to Supreme recently retroactively 3. The applies. Lipsky, Texas Court noted ment See In re interlocutory appeal "clearly that an (Tex.2015) is (“Lipsky 460 S.W.3d n. 2 forward,” II"). appropriate remedy going but it did not address issue of whether the amend- alleged pleadings facts in the Blunts’ and that their counterclaims asserted motion, response Serafine’s that the to impinge to brought right were “to her not counterclaim Blunts’ tortious-interference that petition.” They argued their tortious- to, on, or in re- part is in related based was counterclaim not based interference filing of the and sponse to suit Serafine’s lawsuit, solely filing of the on Serafine’s their fraudulent-lien counterclaim harassing threatening but also on her on, to, response or in to based related and after the lawsuit. conduct before of pendens, of the lis both filing Serafine’s They that Serafine incor- argued further exercises of Serafine’s filings which are rectly pendens that a lis cannot argued to the Act defines that “right petition” as for a serve as the basis fraudulent-lien I, term. See 541-42 Lipsky Blunts appeal, claim. assert On were that nonmovant’s claims (determining not meet her burden because Serafine did of their right on exercise based movants’ an affidavit or live provide she failed to alleged in non- petition to on facts based testimony to show that their counterclaims also Tex. pleadings); movant’s see Civ. to her response were filed in exercise 27.001(4)(A)(i)(“ & ‘Ex Prac. Rem.Code petition. her to petition’ means ... a ercise Act, 27.006 Section Under to: ... a pertaining communication in or may pleadings consider the trial court Calkins, judicial proceeding.”); v. James 27.006(a). evidence. Id. The Act does (Tex.App . —Hous present testimony require not Serafine filed) 2014, pet. (concluding ton [1st Dist.] satisfy her evidentiary evidence to other filing claim based on fraudulent-lien H20 burden. See Rio Grande Guardian pendens per- “communication lis was Ltd., P’ship 04- Family Robert Muller No. taining judicial proceeding”). Howev- (Tex. 13-00441-CV, 2014 at *3 WL er, to the that the Blunts’ tortious- extent 29, 2014, App. pet.) Antonio Jan. part is based in interference counterclaim —San challenged (mem.op.) (deciding legal action made alleged on threats outside Serafine’s petition related to exercise lawsuit, Serafine has not context of the based consideration of as evi pleadings to show that satisfied her initial burden dence), disapproved grounds by on other portions these of the Blunts’ counterclaims II, at 587. Lipsky The Blunts subject Accordingly, the Act. we in their tortious-interference asserted part deny- affirm in the trial court’s order willfully counterclaim that “Serafine dismiss ing Serafine’s motion to the tor- intentionally counterclaim, interfered that contract and we tious-interference drainage compa [with the foundation for consideration of will remand the cause ny] through filing threats and counter- Blunts’ tortious-interference added.) (Emphasis They as lawsuit.” claim to it is based on the extent harassing serted in their fraudulent-lien counterclaim alleged Serafine’s threaten- pendens that Serafine knew that lis the context of the law- ing conduct outside “in relation to she had filed this case” was suit. by any

not valid in the supported interest supporting the Blunts’ Evidence coun- All that property. Blunts’ the Act re terclaims quires challenged action legal is that on, response or is in that Serafine Having relate[ ] “based determined to” the movant’s exercise burden to show that satisfied her initial petition. part subject Prac. & legal Tex. Civ. Rem.Code the Blunts’ action is *9 27.003(a). conclude, Act, step on the the turn now to the second We based we whether analysis determining litigation against and threatened the com- — specific clear evi presented pany’s Blunts and owner. The Blunts contend that a facie case prima dence that established Serafine’s conduct resulted in the drainage chal each essential element of the and foundation company deciding not to & Rem. lenged claims. See Tex. Civ. Prac. continue the contracted-for work and in- 27.005(c); see also Better Bus. Bu Code alternative, providing stead an less desir- Dallas, DFW, BH Metro. Inc. v. reau able solution drainage to their issues. Inc., (Tex.App S.W.3d They . —Dal also assert that Serafine’s conduct denied). 2013, pet. las pay caused them to more for the work. argues Serafine that the Blunts’ evidence Serafine contends that the Blunts vague-and is too conclusory to support respond failed to to her motion with clear prima facie case for each element of this specific establishing prima evidence claim. agree We with Serafine to the ex- facie case for each essential element of tent that the Blunts’ counterclaim is based required their counterclaims avoid n dismissal under the Act. The Blunts filing on her of the lawsuit. re they prima established a facie spond affidavit, Alexander Blunt’s which the for each of their counterclaims with case presented response Blunts to Serafine’s specific clear and evidence. We will first motion, states that he “hired Austin Drain- they presented consider the evidence that age Landscape Development & profes- support of their counterclaim for tor- sionally pump system.” install a and drain tious interference with contract. The ele He also testified at hearing that he had “(1) existing ments of that claim are an hired Austin Drainage to resolve a drain- (2) interference, will subject contract age problem that causing was water to ful and intentional act of interference with gather under explained his house. He (3) contract, proximately caused Drainage that Austin was going install (4) the plaintiffs injury, and caused actual French property drains around the damages or loss.” Prudential Ins. Co. of against the border of his house that would Servs., Inc., Am. v. Financial Review tie into sump pump pump that would (Tex.2000). 74, 77 water out to a pop-out valve so it would asserted that they Blunts had a flow down into the street. valid contract with a drainage and founda- possible These statements indicate a company tion a pump-and-drain install contract, but Mr. provide Blunt did not system on the Blunts’ property and that specific detail about the terms of the con Serafine with interfered that contract any tract or attach to his affidavit harassing threatening company’s contract or other employees memorializing any while document worked on the property agreement Blunts’ both between the Blunts before and after she addition, filed the In they alleged drainage company lawsuit. scope about the of work Servs., that Serafine attempted project stall the to be done. See Moore John correspondence original Blunt e-mail steps project attached differ from the de- drainage company’s sign, except disputed owner to the affidavit to indicate that the side drainage company’s property to show attor- can be retrofitted There later. neys stop explanation had advised the owner to work on is no how about the recom- project changes previously agreed- after Serafine filed her suit. The mended affect correspondence upon project any previously includes a reference to a cost of the "Suggested Scope agreed-upon completion Revised of Work” that lists date and no testimo- steps, explain ny drainage company ultimately a number of but it does not how that the com- *10 362 breached); Investors, (concluding that also ACS Inc. v. at 361 nonmovant see

S.W.3d (Tex. present specific clear and evidence did not McLaughlin, S.W.2d or their terms to establish 1997) of contracts (explaining “inducing that a contract facie for contract element of prima case obligor what it to do is to do has a claim). Mr. Blunt’s tortious-interference interference”). not actionable The Blunts testimony specific was not clear Mr. Although have not done so here. support enough to a rational inference that compa- Blunt that the drainage testified par valid contract existed between the not ny’s lawyers company would allow the id.; DFW, BH ties. See see also while to finish the work the lawsuit was (concluding at 310-11 that S.W.3d nonmov- active, evidence the contract’s without did not establish contract element of ant terms, by not this does establish a breach claim it did tortious-interference because Mr. company. the Blunt further testified it meeting not establish of minds between performed by that the “work-around” terms); contract All and movant about company percent meant that 30 of his Tel., Commc’ns, Inc., Inc. v. Am. USLD property line has French drain or (Tex.App. — Fort drainage protection and that “it’s about denied) 2009, pet. (determining that Worth anywhere to 70 percent optimiza- froin 60 general statement that contracts with cus any tion.” Without evidence of contract tomers existed was insufficient maintain terms, testimony Mr. Blunt’s not es- does tortious-interference-with-contract claim tablish that “work-around” constituted provided when affidavit neither detail an obligatory provi- breach of contract specific about terms of contracts nor at company retained sion that the had not as exemplar). tached contract to serve perform if “work-around” Thus, the prima Blunts failed to establish a problems unforeseen arose in the course of for facie case this essential element of Similarly, the work. Mr. Blunt testified their claim. months, that was project delayed testimony This was also insuffi clear and specific but offered no evidence Serafine, by filing cient establish that project about when the or of a started suit, knowingly the drainage induced com a failure provision specifying contract to breach pany obligations its under agreed-upon date completion meet some contract. See John Paul Sys. Mitchell a breach the contract. constitute Mkts., Inc., Randalls Food 17 Mr. Blunt also testified that the work “still denied) (Tex.App. pet. — Austin $12,000,” cost that this was me about satisfy (explaining element of will originally more than he contracted for be- interference, ful and intentional act of par drainage cause to do company “had ty willing must be more than participant; additional work for work-around.” knowingly it must induce breach con statement, the conclusory Other than this claim, tracting party). To maintain their origi- Blunts offered no evidence about the provide Blunts required were clear price upon nal agreed terms had specific obligatory evidence that some drainage evi- company. with the Without provision the contract was breached. drainage company dence that the breached (hold Tel., Am. See All for addi- charging contract more conclusory ing testimony about existence work, tional insuffi- testimony too is of contracts insufficient to establish provision “clear obligatory specific” of contract was cient under the eviden- pleted according "Suggested Scope work Revised of Work." *11 prima to establish a facie June tiary approximately years standard four be- suit, fore case of a breach. Serafine filed her she wrote a letter to the Blunts property related to the about specificity Without more boundary. This letter is not in the record. agreement of the Blunts’ with the terms In a they letter described a response as drainage company, the Blunts cannot es- letter, Serafine’s the Blunts characterized any, if Serafine’s provisions, tablish what her letter as “claiming outright ownership filing of the lawsuit interfered with. fence, of part yard of our back later Moreover, without more information estab- explained in conversation under the clause contract, lishing the existence of valid ” possession.’ of ‘adverse The Blunts’ let- the Blunts cannot establish actual dam- continues, ter explaining posi- the Blunts’ ages. We conclude that the Blunts have tion that the fence at entirely issue is produced quantum not the minimum within property their boundary, based on a specific necessary clear and evidence 1994 survey. Serafine’s response letter establish a facie case of prima tortious entirety: states its “Dear Neighbors, I interference with contract to the extent have your received letter of June which that their counterclaim is based on Seraf- response my was a letter of June 5. filing of ine’s the lawsuit. admitting Without your correctness of consider whether We next assertions, specific I retract the claims and prima Blunts established a facie case for my demands in June 5 (Emphasis letter.” each element of their fraudulent-lien coun added.) claim, terclaim. To establish letter, Without original Serafine’s it is specific Blunts must show clear and exactly not clear part property what of the (1) made, evidence that presented Serafine boundary she was disputing In pendens knowledge or used the lis with brief, her Serafine asserts that her claims lien; (2) that it was a fraudulent intended in the current suit include a claim related given legal the document to be the same strip along to a of land parties’ front effect evidencing as a court document yards, which would not have been covered lien, claim, valid or interest in the Blunts’ by the correspondence 2008. More im- (3) property; and intended to cause finan portantly, regardless parameters injury cial to the Blunts. See Tex. Civ. dispute, specifically the 2008 Serafine stat- 12.002(a); Prac. & Rem.Code Brewer v. agreeing ed that she was not with the SR, Holdings, Lizard Green L.L.C. Series position regarding property Blunts’ (Tex.App. — Fort boundary. Her press decision not to her pet.). Worth Serafine asserts claim at that time does not mean that she pendens that her lis notice was filed in filed the pendens lis notice of this suit with accordance with Section 12.007 of the Tex knowledge that her claims are not valid. Code, Property party which allows a correspondence The 2008 does not consti- involving a lawsuit title to real property to specific tute clear and evidence of knowl- file notice that pending the lawsuit is edge of a fraudulent claim. county county clerk in the where the property Prop. is located. See Tex. Code supporting Blunts asserted without § 12.007. allegedly evidence that Serafine filed the

The Blunts an rely incomplete pendens chain fraudulent lis with intent that it correspondence they given legal assert estab- the same effect as a valid knowledge lishes that her claims claim. The in their acknowledged Serafine’s Blunts property response their are not In valid. to motion to dismiss consider an award under Section 27.009. of Serafíne’s intent did have evidence not injury, Bocquet Herring, Blunts financial but to cause the See (Tex.1998) her intention was clear. they argued that (explaining that reasonableness these two essential no evidence of With necessity attorneys’ gener- fees claim, we their fraudulent-lien *12 elements of and ally issues the factfinder matters failed that the Blunts to establish conclude to trial equity justice are left court’s and a lien. prima case of fraudulent facie law). matters of discretion and are the Blunts’ Having determined part to the subject are counterclaims CONCLUSION (1) Act failed to establish and that that the trial court We have determined prima facie case of tortious interference by failing did not err to dismiss the to the extent this claim was with contract for tortious interfer- Blunts’ counterclaim (2) filing suit and based on Serafíne’s ence with to the extent that the contract lien, we prima facie case of fraudulent is allegedly claim based on Serafine’s by that the trial court erred' de- conclude the threatening conduct outside context nying motion to We Serafine’s dismiss. lawsuit, this we affirm the judgment and part point sustain in Serafine’s sole in this have also determined respect. We in part error reverse the trial appeal, on by denying that the trial court erred Ser- the denying motion to dis- court’s order (1) the afine’s motion to dismiss Blunts’ miss, both the Blunts’ counter- and dismiss counterclaim to the tortious-interference claim con- for tortious interference with filing extent on her of this that it is based tract claim to the extent this is based (2) lawsuit their counterclaim for and of the lawsuit and their filing Serafine’s we Accordingly, fraudulent lien. reverse counterclaim for fraudulent lien. in these respects. the trial court’s order Attorneys’ fees the trial We remand the cause to court for requests that if we re Serafine proceedings further consistent with our order,

verse trial court’s we remand the interlocutory resolution these issues on to the trial court for case consideration appeal. anof award of relief under Section 27.009. Section that if the court provides 27.009 Opinion by Justice Concurring legal orders dismissal of a action under the Pemberton “(1) Act, shall award the movant the court costs, fees, attorney’s court and reasonable Pemberton, Justice, concurring. Bob expenses defending other incurred concurring opinion May dated against justice equi action-as legal 2015, withdrawn, opinion this is is (2) ty may require; sanctions place. substituted in its legal party brought who action as Although join judgment, I in the Court’s the court determines sufficient to deter the I am a few compelled to add additional party brought legal who action from the ramifications of regarding observations bringing similar actions described in this Participation Act chapter.” & Texas Citizens Tex. Civ. Prac. Rem.Code (TCPA)1 27.009(a). Accordingly, we state’s so-called “anti- remand —our case trial court for SLAPP” the court to law2—as demonstrated Act, (codified Participation Leg., 1. Civ. Prac. See Citizens 82d at Tex. & Rem. 1). R.S., §§ Code 27.001-.01 ch. 2011 Tex. Gen. Laws See, Search, e.g., Attorney Kinney v. BCG Perhaps take-away the most obvious case. I. is less an “anti-

point TCPA THE law than an across-the-board “ELEPHANT IN THE SLAPP” ROOM”: WRITTEN, IS, THE litigation in Texas civil if a AS game-changer AT BEST, A VASTLY from OVERBROAD lawsuit like Serafine’s —which arises “ANTI-SLAPP” LAW boundary dispute personality con- neighboring flicts between homeowners— If one examines Legislature’s the Texas is elevated to the status of “exercise of recorded preceding deliberations its 2011 petition” protected the Act TCPA, facts about two enactment and unremarkable defensive measures like origins the statute’s readily apparent— subject the Blunts assert are made to dis- (1) pushed by measure was in- media *13 on, “legal missal as actions” “based re- (2) terests,3 but the paramount professed ... in response to” that late[d] policy goal by proponents cited was to separately “exercise.” I also write to em- protect ordinary Texans from abusive difficulty the of phasize navigating the (“Stra- litigation.4 “SLAPP” A “SLAPP” current text the far-reaching TCPA’s and tegic Against Lawsuit Public Partic- straightforward that this otherwise issues refers, ipation”) generally speaking, to a Although case raises under the statute. meritless lawsuit that is aimed at deterring correctly ques- the resolves these Court members of the public through intimi- — tions, implicitly, at least anal- required dation, distraction, expense, -or other col- far ysis statutory of the text is more com- impacts lateral litigation process plex acknowledges, than it and I differ itself —from advocating governmental ac- aspects reasoning. with some of its on public tion some issue of concern.5 The Inc., 03-12-00579-CV, Act, No. 2014 WL 4. Participation See Citizen 2011 Tex. Comm, 961; 1432012, 11, (Tex.App. Gen. Laws at Apr. at *1 Senate on State — Austin Affairs, 2014, 2973, denied) Analysis, Bill pet. (mem.op.) (observing Tex. H.B. that 82d (2011). Leg., statute”); R.S. TCPA "is an ‘anti-SLAPP’ In re 530, Lipsky, (Tex.App n.l . — See, e.g., George Pring Penelope W. & Can- 2013, orig. proceeding) (referring Fort Worth an, "Strategic Against Lawsuits Public Partic legislation”), to TCPA as "anti-SLAPP mand. ("SLAPPs”): ipation" An Introduction to the denied, (Tex. 2015); 460 S.W.3d 579 Rehak Bench, Bystanders, Bridgeport Bar and Servs., Witt, 716, Creative Inc. v. (1992) (describing L.Rev. (Tex.App [14th Dist.] . —Houston SLAPPs as lawsuits that "without substan denied) pet. (terming TCPA "an anti-SLAPP brought by private tial merit that are interests law”). ‘stop exercising political citizens from their " rights punish having or to them for done so’ Comm, 3.See, e.g., Judiciary House on Marrone, 44/90, (quoting Gordon v. No. 185 Jurisprudence, Analysis, Civil Bill Tex. H.B. Sup.Ct., Cnty., (Apr. Westchester N.Y. (2011) Leg., (reflecting 82d R.S. 1992))); Energy, Lotft, see also Cheniere Inc. supportive representa- witnesses included a (Tex.App. [1st — Houston tive of the Freedom of Information Founda- Dist.], pet.) (describing SLAPP as lawsuit (FOIF)); tion of Texas see also Mark C. Walk- against politically socially "filed active er, The Texas Anti-SLAPP Statute: Issues goal prevailing individuals—not with the Reputation Litigation, Business and but, instead, Tort Pre- chilling on the merits those Texas, sented at the State activities”). Bar of Texas Bar individuals’ First Amendment Course, (2013) Disputes CLE Business at 5 Pring, Professor with who Professor Canan is (observing representative that the same FOIF scholarship regarding credited with the first who practice, following testified has elsewhere been credited the that, set out the four criteria view, having proposed, distinguish "drafted the TCPA and in his a SLAPP suit: (1) organized, supported passage”). complaint its a civil or counterclaim for mon (1) par- petitioning: amounts sham somewhat lawsuit

concept is thus similar and baseless,” doctrine litigation” “objectively the “sham must be allel to the lawsuit jurispru- Amendment i.e., evolved First realis- litigant has “no reasonable could Supreme States Court merits”; United dence. success tically expect First Amendment long held that has (2) challenged litiga- in the event only “the government for redress petition meritless,” the court de- objectively tion is of access encompasses grievances6 con- whether baseless lawsuit termines courts,7 cautioned but it has also directly attempt an to harm a rival ceals petition protect not does through process opposed itself as petitioning, that which mere “sham” In the outcome.9 the case of SLAPP “ favor- genuinely procuring ‘not aimed suit, harm intended the baseless in- all” but governmental action’ at able suppression litigation is sorts 'pro- governmental to use “the stead seeks expressive activities that are the essence [,] opposed to the outcome of cess self-government.10 for, harass, increase costs process,” espe- suit thus an represents A SLAPP harm a an end in itself.8 otherwise rival as cially pernicious species of lawsuit abuse— Supreme litigation, In the context abiding recent Texas already an concern of a two- concept refined into has Court *14 only burdens analysis determining Legislatures11 for whether not part —that Inc., relief; Head, (2) Corp. injunctive 486 U.S. etary filed Conduit Indian (3) 500, 4, 1931, 492, groups; non-governmental individuals n. 108 S.Ct. 100 L.Ed.2d Motor, govern (1988)); of their communications to because see 404 U.S. at 497 California electorate; (4) official, 609; body, 510-17, and ment Phillip E. Aree 92 S.Ct. see also public con an of some interest or on issue An Hovenkamp, da & Hebert 1 Antitrust Law: George Pring, Strate cern. See W. SLAPPs: Ap Principles Analysis Antitrust and Their Against Participation, 7 gic Lawsuits Public ¶¶ (4th ed.2013) (explaining plication 204-05 3, (1989). Pring also Pace Envtl. L.Rev. concept). following examples of the sorts of cited the targeted SLAPP that are communications Investors, Real Inc. v. 9. Estate Professional law, writing "reporting to suits: violations of 49, Indus., Inc., U.S. Columbia Pictures 508 officials, attending public hear government 60-61, 1920, L.Ed.2d 611 113 S.Ct. 123 bodies, testifying governmental ings, before Columbia, (1993) City (quoting 499 U.S. circulating petition's signature, lobbying for 380, 1344). 111 S.Ct. legislation, campaigning in initiative or for elections, filing agency protests, referendum Bradstreet, See, e.g., Dun & Inc. v. Green 10. lawsuits, being parties in and en law-reform Builders, Inc., 749, 759, 105 moss 472 U.S. gaging peaceful boycotts and demonstra 2939, (1985) 86 L.Ed.2d 593 S.Ct. added). (emphasis Id. at 5 tions." (" ‘[Sjpeech concerning public affairs is more ("Congress self-expression; shall 6. See U.S. Const. amend. I than it is the essence of self- ” right abridging ... ... make no law government.’ (quoting v. Louisi Garrison 64, 209, petition ana, 74-75, for a people ... to the Government 13 379 U.S. 85 S.Ct. grievances.”). redress (1964))). L.Ed.2d 125 Rests., v. National 7. Bill Johnson’s Inc. See See, 25, 2011, Leg., e.g., May Act of 82d 11. Bd., 741, 731, 461 103 S.Ct. Lab. Rel. U.S. 203, 1.01-.02, R.S., § Gen. ch. 2011 Tex. 2161, (1983); Mo 76 L.Ed.2d 277 California (codified Gov’t Code Laws 757 at Tex. Unltd., Transp. Trucking Co. v. 404 U.S. tor 508, 510-11, 22.004(g)) (requiring Supreme Texas Court 642 92 30 L.Ed.2d S.Ct. provide adopt "to the dismissal of rules (1972). in law or causes of action have no basis Adver., fact”) Tex. & Rem.Code and at Civ. Prac. City Outdoor Columbia v. Omni Inc., 365, 380, attorney’s (providing fees 30.021 award of 499 U.S. 111 S.Ct. (1991) with under Govern- (quoting Allied Tube & in connection motions L.Ed.2d but justice system private rights, concept civil related like litigation.14 sham And, expression political threatens free as the Supreme also Texas Court has participation. perhaps repeatedly courts, It is thus unsur- instructed lower we are Legislature passed rely prising upon statutory Legisla- text the used, nary opposing an vote in either ture actually not legislative extrinsic despite history chamber.12 But all the hue and possible or other indicia of what about SLAPP suits and their evils cry legislators might have meant subjectively, legislative paramount reflected in the TCPA’s histo- as our guide to the “legislative ry,13 the text of the Act makes no intent” itself we are to ascertain and follow SLAPPs, explicit faithfully.15 mention of nor of 2, 2003, 22.004(g)); limiting ment Code Act of June thus the costs and fees. The Texas R.S., Leg., 78th ch. Participation 2003 Tex. Gen. Laws Citizen Act would allow de- (the 4). omnibus H.B. fendants —who are sued as a result exer- cising speech their to free or their Tex., (2011) Leg., 12. See H.J. of 82d R.S. 4623 petition government file a —to (141 Yeas, Present, Nays, voting); not S.J. motion to dismiss the suit.... Tex., (2011) (Yeas Leg., 82d R.S. 2532 C.S.H.B. 2973 relating amends current law 0). Nays encouraging public participation by citi- by protecting person’s right zens peti- Act, Participation 13. See Citizen 2011 Tex. tion, right speech, of free of asso- (caption Gen. Laws at 961 Act "[a]n describes ciation arising from meritless lawsuits from relating encouraging public participation rights. actions taken in furtherance of those by protecting person’s right citizens Comm, Affairs, Analysis, Senate on State Bill petition, right speech, of free (2011). Leg., Tex. H.B. 82d R.S. arising association from meritless lawsuits from actions taken furtherance of those generally Tex. Civ. Prac. & Rem.Code rights"). Report The Senate Committee §§ 27.001-.011. policy the TCPA further illustrates the TCPA’s *15 backdrop justifications: and asserted See, e.g., Geophysical 15. TGS-NOPEC Co. v. participation Citizen is the heart of our Combs, 432, (Tex.2011) 340 S.W.3d 439 democracy. petitioning gov- Whether ("When statute, construing primary our ob ernment, article, writing a traditional news jective give is to ascertain and effect to the business, commenting quality or on the of a Legislature's intent.... To discern that in exchange involvement of in citizens of tent, (cit begin we with the statute’s words.” society. idea our benefits .005; 312.003, ing §§ Tex. Gov’t Code Texas silencing Yet frivolous lawsuits aimed at Dept. Transp. City Valley, v. Sunset 146 those involved in these are becom- of of activities 637, (Tex.2004); Dept. S.W.3d 642 Texas common, ing more and are a threat to the of Regulatory Mega & Protective Services v. Child growth democracy. of our The Internet Care, 170, (Tex.2004))); 145 S.W.3d 176 First age permanent has created a more and Combs, 627, Am. Title Ins. Co. v. 258 S.W.3d public participation searchable record of (Tex.2008) ("When interpreting 631-32 a stat participation democracy grows citizen in ute, plain we look first and foremost to the through self-publishing, journalism, citizen meaning of the words used.... And ordi- speech. Unfortunately, and other forms of intent, narily, legislative divining when 'the legal system, abuses of the aimed at silenc- citizens, truest manifestation’ of what lawmakers in- ing grown. these have also These enacted, they tended what is 'the literal text Strategic lawsuits are called Lawsuits (citing voted on.’" Against Participation Alex Public or "SLA[P]P” Sheshunoff Servs., Johnson, Mgmt. L.P. v. S.W.3d 209 suits. 644, Shumake, (Tex.2006); 651 State v. 199 Twenty-seven states and the District of Co- 279, (Tex.2006))); acts, passed Zachry S.W.3d 284 lumbia have similar see also most com- Auth., Corp. monly Constr. 449 known as either "Anti-SLAPP” laws Port Houston of 98, (Tex.2014) (”[W]e Participation or “Citizen S.W.3d 113 have re- Acts” that allow "[sjtatements peatedly during defendants in such cases to dismiss cases held that made legislative possible, process legislators earlier than would otherwise be individual 368 chapter pose fully.”19 conjunc- 27 intent Read in

The codified of TCPA is 27.002, mandate tion with section this the Civil Practice and Remedies Code16 duty of part would refer to a dual on the and, 27.002, Legislature pro- in section “liberally courts construe” the statute following general vided the statement both to the con- “encourage safeguard in enacting chapter: its intent rights” protected by stitutional the statute purpose chapter The to encour- “protect rights of a to file person age safeguard the constitutional inju- meritorious lawsuits for demonstrable persons speak free- rights petition, 20 (a) also ry.” of section 27.011 Subsection ly, freely, partic- associate and otherwise abrogate states that the TCPA “does not government to the maximum ipate defense, im- remedy, or lessen other and, permitted by law extent munity, available under other privilege time, rights person of a protect same constitutional, statutory, case or common file lawsuits for demon- meritorious context, law or provisions.”21 rule Read injury.17 strable provision presum- the intent of this guidance Legislature gave further defense, ably “any be preserve other TCPA, 27.011 of the titled courts section remedy, immunity, privilege” that ex- (b) Subsection of sec- “Construction.” attacking “legal ternal provides law 27.011 the Act against provides tion states “shall actions” which liberally pur- remedy.22 construed to effectuate its legislative even a chamber are 17. Id. 27.002. unanimous not evidence the collective intent of the majorities legislative both chambers §27.011. 18'. Id. ” (quoting enacted a v. Kim statute.’ Molinet brell, 407, (Tex.2011) (citing 356 S.W.3d 27.011(b). 19. Id. Serv., L.P., In re Allcat Claims 356 S.W.3d (Tex.2011)); 466-467 Robinson v. Crown 27.002, .011(b); §§ Id. see Cheniere Ener- Co., & Seal Cork 191-92 gy, (emphasizing at 216 "the ex- S.W.3d J., (Tex.2010) (Wainwright, dissenting); AT & statute, plicitly purpose namely, stated Tex., Co., T Commc’ns L.P. v. Sw. Bell Tel. protection to balance the of First Amendment (Tex.2006); General rights have to individual all Lastra, Corp. Chem. v. De La S.W.2d injuries”). file redress their lawsuits to (Tex. 1993))); City Round Rock v. Rodri (Tex.2013) (“When guez, 399 *16 27.011(a). § 21. Tex. Civ. Prac. & Rem.Code unambiguous, a statute is clear and we do not legislative resort to extrinsic aides such as Crazy Newspaper Holdings, 22. Accord Inc. v. history interpret (citing the statute.” Enter Ltd., 71, Living, Hotel Assisted 416 S.W.3d 82 Summers, States, gy Inc. v. 282 S.W.3d Gulf 2013, (Tex.App. pet. de [1st Dist.] —Houston 433, Molinet, (Tex.2009); 442. 356 S.W.3d at (in nied) (a), holding reliance on subsection 414)); Tex., lander, Fleming Ry Inc. Foods v. of seeking that defa TCPA-movant dismissal of 278, (Tex. 1999) (emphasizing S.W.3d 6 284 mation claim could raise de substantial-truth "legislative history that cannot be used to opposition plaintiff’s prima-facie fense disregard express alter or terms a code of despite explicit case absence of authorization provision meaning is clear when its from TCPA). Although pre-2013 under version of entirety, code when in its considered unless (a) conceivably could be read to subsection typographical there is an as a error such mean the TCPA must that be construed one,” holding unambiguous statutory and defense, any legal have on or no effect claim Legislature's express text controlled over render much of the would statute —which merely statement of intent that statute re- its specifically requires dismissal certain "le of codify prior change). law without substantive gal nullity, gener and actions” —a courts ally to 16. See Tex. Civ. Prac. & Rem.Code avoid such constructions if reasonable possible. Episco- §§ and Marks v. 27.001-011. See St. Luke's

369 (cid:127) A ...”24 by Legis- “legal means which the action specific The sought accomplish lature TCPA’s on, «... that “is based relates or is provide was to a new set purposes stated ...”25 response which a procedural through mechanisms «... the movant’s “exercise motion, by a thresh- litigant may require, speech, right petition, of free testing legal proceed- old of the merits of association.”26 implicate that are deemed to ings filings The seeking movant dismissal under the expressive protected by interests the TCPA has the initial burden to establish statute, expedited with the remedies of each of “by preponder- these elements dismissal, cost-shifting, and sanctions for ance of the evidence.”27 The Act is rather any wanting.23 found The identifies murky regarding aspects the factual of this proceedings filings subject the class of and “preponderance inquiry of the evidence” having following to such motions as and how appellate courts are to review characteristics or elements: such three determinations trial courts.28 State, 658, (Tex.2010); 759, pal Hosp., (Tex.Crim.App. 319 663 202 S.W.3d 311.021(2) 2006))); (pre § see also Tex. Gov’t Code see also Tex. Gov’t Code. (“Words 311.011(b) sumption § phrases that entire statute is intended to be and that have effective); Lottery acquired particular Texas Comm’n v. First State meaning, a technical or DeQueen, (Tex. otherwise, by legislative Bank 325 S.W.3d whether definition or 2010) ("Courts lightly presume 'do not accordingly.”); shall be construed Traxter v. Legislature may States, Inc., have done a useless Entergy 376 S.W.3d Gulf ” (quoting Liberty (Tex.2012) act.' Mut. Ins. Co. v. Garr (noting preference & n. 25 Contractors, Inc., meaning ison meaning common unless technical (Tex. 1998)). (a), can recon Subsection acquired by "legislative has been definition or otherwise”). ciled with the remainder the Act con corresponding standards of struing it in the manner indicated above. appellate give review deference to those de- (especially regard terminations 23. See Tex. Civ. Prac. & Rem.Code witnesses) credibility presume of live 27.003-.005, §§ .009. any' evidentiary the fact-finder resolved con- findings flicts favor of the that it either 27.003(a) added). (emphasis § 24. Id. expressly implicit made or that are in its See, ruling. e.g., City ultimate Keller v. added). (emphasis 25. Id. Wilson, (Tex.2005). However, while the TCPAseems to allow oth- 27.005(b)(l)-(3) added). § (emphasis 26. Id. “evidence,” er forms of see Tex. Civ. Prac. & 27.006(b) § (contemplating Rem.Code consid- 27.005(b). Id. that, discovery products), specifies eration of it "preponderance pleadings 28. The term of the evidence” a court "shall consider the ordinarily judge jury supporting opposing stating denote a ascer affidavits taining underlying liability the true facts based on facts which its or defense is based,” 27.006(a), weight credibility exception assessment of see id. an Pass, competing general pleadings evidence. See rule that are not evi Murff (Tex.2008) curiam) (per *17 S.W.3d 409 n. dence. See Rio Grande H20 Guardian v. Rob Ltd., (defining greater weight Family P'ship, term as "the ert Muller No. 04-13- Stahl, 00441-CV, evidence"); 309776, (Tex. credible Herrera v. 441 2014 WL at *3 739, 29, 2014, (Tex.App. App. pet.) S.W.3d 741 Antonio Antonio Jan. no — San — San 2014, "[ujnlike pet.) (observing, (observing (mem.op.) no with reference to that other "preponderance types pleadings the TCPA’s of the evidence” of cases where are not consid standard, evidence, phrase's "particular expressly that the mean ered section 27.006 ... ing provides” may ... plead in both civil and criminal cases means that "we consider the case”). greater weight degree ings empha and of credible as evidence in this This pleadings evidence that would create a reasonable belief sis on and affidavits as “evidence” (citing contemplate analysis in the of the claim” truth Rickels v. seems to an more close- 370 or requests legal that filing or certainty, pleading greater can be with said

What relief’); of ac- and also “cause however, equitable of the statu- that construction tion,” particular denotes generally of law that which tory language question —a person be inte- to seek review de novo29—would that would entitle courts facts of, frequently equitable if not determinative relief.32 gral legal form of or some analysis.30 Further, have the overall our sister courts as some of observed, facially en- “legal action” would action,” that a the first element “legal A motions, such as those seek- compass even is defined elsewhere prove, movant must sanctions, at summary judgment or ing lawsuit, cause of mean “a the TCPA to relief would least to the extent cross-claim, action, or complaint, petition, equitable or relief.”33 “legal considered any judicial pleading other counterclaim or dismissal motions By logic, the same even legal equitable or filing requests or would under the TCPA itself asserted expansive is both This definition relief.”31 actions,” if dismissal “legal varied, qualify to an entire action or referring can be consid- cost-shifting and sanctions (“láwsuit”); particular pleading proceeding Accord- “legal equitable or relief.” (“petition, relief ered and claims for instruments counterclaim,” no sur- cross-claim, perhaps it come as ingly, should complaint, litigant one clever has prise that at least “any judicial other plus the catch-all 345, (Tex.App. [1st Dist.] governing pleas 352-53 ly evidence-based akin to — Houston 2013, denied) (describing review of trial Department pet. jurisdiction under Texas to the Miranda, 217, regarding TCPA mov- determination v. 133 S.W.3d court Parks & Wildlife Miranda, (Tex.2004). applica "de novo as an the factual ant’s initial burden as 227 Under Hotel, citing Crazy allegations pleadings are law to facts” in the claimant’s tion of 80, support). jurisdiction, at liberally in favor of 416 S.W.3d construed evidence, negated presumed true unless 27.001(6). light in the most any evidence is viewed Civ. Prac. & Rem.Code 31. Tex. claimant, in a manner similar to the favorable 27.001(6); practice. id. at summary-judgment See also Jaster v. Comet to 226-27; 32. See id. see 556, Constr., Inc., (Tex. Supply Corp. Water 563-71 Creedmoor-Maha II 438 S.W.3d 2014) Quality, (discussing length (plurality op.) on Envtl. 307 at v. Texas Comm'n 2010, 505, "action,” "lawsuit,” (Tex.App. S.W.3d between an distinctions — Austin fact, (cit Appeals, pet.). action” "proceeding” no The First Court and a “cause of 248, Cerda, apply Mi appeared a version of the S.W.3d 255 ing Loaisiga has v. 379 Blanton, reviewing rulings (Tex.2012); analysis Corp. when 133 randa A.H. Belo v. motions, 619, (Tex.1939); 391, viewing plead TCPA dismissal 129 S.W.2d 621 Tex. 673, (Tex. Watson, light in the ings Magill other "evidence” 679 v. 409 S.W.3d 2013, Crazy pet.); City to the non-movant. See no App. Dist.] most favorable [1st — Houston Miranda, Boston, Hotel, (citing 416 S.W.3d at 80-81 v. New Texarkana Cities of 2004, 227); 778, Energy, (Tex.App. accord Cheniere 133 S.W.3d — Texarkana Moores, ("we plead view the pet.); 449 S.W.3d at 214 are to no Bell light ings in the most favorable writ (Tex.App. Dist.] and evidence [14th — Houston non-movant”). James, denied); S.W. to the Elmo v. 1926, writ dism'd (Tex.Civ.App. Worth — Fort review, the Court either standard of Under w.o.j.))). in the pleadings view the and evidence would Blunts, light who are most favorable Check, 438 S.W.3d 33. See In re Estate prevailing par- non-movants and the both the pet.) (Tex.App Antonio . —San ties below. legal (observing "pleadings” that "seek See, qualify as equitable relief” and therefore e.g.,Entergy, at 437. facially "legal under the TCPA actions” *18 include, Houston, "e.g., [and] motions for sanctions Bureau Metro. 30. See Better Bus. of Servs., Inc., summary judgment”). for motions v. John Moore Inc. collectively express, promote, to use a TCPA dismissal already pursue, tried or opponent’s of an motion to obtain dismissal defend common interests.”38 “Exercise of dismissal motion.34 previously turn, filed TCPA right speech,” of free “means a communication made in connection with a “legal this action” defini- The breadth of concern,”39 public matter of and “matter 27.010 tion is checked somewhat section public concern” is itself defined to “in- TCPA, excepts catego- which a few (A) an clude[ ] issue related to: health or from the Act based “legal ries of actions” (B) economic, safety; environmental, or subject example, their matter.35 For (C) community well-being; govern- actions” exempts “legal section 27.010 (D) ment; public public figure; a official or “bodily from seeking recovery injury” (E) Act, good, product, or a or service along with “statements made re- marketplace.”40 Of more action.”36 None of sec- immediate rele- garding legal exceptions directly impli- tion 27.010’s vance to this case is the TCPA’s definition case, speaks cated but it volumes right of the “exercise of the to petition”: range “legal subject about the actions” right petition” “Exercise means to dismissal under this “anti-SLAPP” law any of the following: perceived that the TCPA’s drafters a need (A) a communication in pertaining to: explicitly money-damages carve out (i) wrecks, slip-and- car arising judicial suits from proceeding; falls, and the like. (ii) an proceeding, official other than a

As for the “exercise of the of free judicial proceeding, to administer speech, right petition, of associ- law; ation,” these correspond terms “con- (iii) an proceeding executive or other stitutional rights persons petition, department before a state speak freely, freely, associate and other- government federal or a subdi- government” wise participate sec- vision of the state gov- or federal tion 27.002 indicates the as a whole ernment; “encourage safeguard.” is intended to (iv) legislative proceeding, including rights But while these each have content proceeding legislative of a com- meaning derived from constitutional mittee; longstanding interpretive juris- text and (v) proceeding entity before an prudence, Legislature has nonetheless requires by public rule that notice provide seen fit explicit “definitions” of be given proceedings conduct that before qualifies as the “exercise of’ entity; purposes.37 each for TCPA (vi) a in or before a man- proceeding “Exercise of the of association” as of an aging defined the TCPA “means a communica- board educational or tion join together eleemosynary sup- between individuals who institution 27.001(2)-(4). Buey, § Hotchkin No. 02-13-00173- 37. See id. CV, (Tex.App. 2014 WL at *1 — Fort 18, 2014, (il pet.) (mem.op.) Worth Dec. 27.001(2). § 38. Id. lustrating predi use of same construction as cate for TCPA dismissal motion aimed at an 27.001(3). § 39. Id. motion). other TCPAdismissal 27.001(7). § 40. Id. 35. See Tex. Civ. Prac. & Rem.Code 27.010. 27.010(c). Id. *19 defini- respective of their within each indirectly from directly or

ported “includ[ej in the revenue; tions—is defined public a or submitting of statement making or (vii) governing of the proceeding a medium, includ- document, any form or subdivision body any political audiovisual, visual, written, or oral, ing state; of this electronic.”42 (viii) or and state- report a debate de- proceeding made in a ments relationship between required As for the (iii), by Subparagraph scribed Act in the action” as defined “legal (vii); (v), (vi), (iv), or petition,” “exercise of (ix) with a meeting dealing public defined in the “assembly” as “speech,” or including state- public purpose, on, in re- Act, relates or is “is based and discussions ments defined, similarly nor to” is not sponse pub- matters of meeting or other However, terms. component of the at the meet- occurring lic concern the intended hints as to possible some ing; can be provision this undefined meaning of (B) connection a communication of the TCPA. Sec- portions in other found or re- consideration

an issue under “Evidence,” TCPA, of the titled tion 27.006 executive, judi- legislative, aby view whether a determining “[i]n instructs that body or cial, governmental or other be dismissed under action should legal or official governmental in another plead- consider the the court shall chapter, proceeding; affida- opposing supporting ings (C) reasonably a communication is liability facts on which the stating vits

likely encourage consideration provi- based.”43 same or defense is legislative, review of an issue discretion to trial courts sion also affords executive, govern- judicial, or other (which discovery generally the Act permit govern- body or in another mental pend- motion is while a dismissal prohibits proceeding; mental or official “specific [and] and limited ing44) that (D) likely reasonably a communication motion,”45 implying that relevant participation an public

to enlist additional evi- may consider trial courts of an effort to effect consideration beyond pleadings “the and issues dence executive, ju- legislative, issue facts on stating and ... affidavits dicial, body governmental or other is based.” liability or defense which the or offi- governmental or in another 27.007, Then, “Additional titled section proceeding; cial the mov- provides Act Findings,” the (E) that falls any other communication motion, court require a may, upon ant of the protection

within the find- motion to “issue deciding a dismissal under the petition government Con- legal action whether the ings regarding of the States or stitution United mov- prevent brought to deter was of this state.41 constitution exercising constitutional from ing party improper pur- for an brought and is rights act that distin- A “communication”—the un- harass or to cause including to rights pose, “the exercise of’ each guishes 27.003(c). 27.001(4). § 44. Id. § 41.Id. 27.001(1). §

42. Id. 27.006(b). 45. Id Id. 27.006.

373 necessary delay gal or to increase the cost of predicated action” seeks relief on al- litigation.”46 leged injury from some communication that can be said to fall within the TCPA’s is the closest the

Section 27.007 definitions of the right “exercise of the mentioning explicitly, comes to SLAPPs petition,” is, speech, or association.49 That trial courts will hear contemplating the focus has solely been on the findings evidence and make as to whether factual action” has been the “legal allegations asserted with underlying challenged the “le- subjective sorts of aims characteristic gal action” and whether correspond type litigation abuse.47 But by to one of the Act’s protected definitions of referring to these issues terms of “addi- conduct, with no party’s consideration of a findings tional” upon courts consider subjective in asserting aims the “legal ac- motion, imply section 27.007would seem to tion.” A common application analy- of this that these issues are not a normal or re- perhaps the most common—has been sis— quired part inquiry of the court’s when (often to hold almost automatically) that a deciding generally. dismissal motions (which defamation claim by definition com- general focus of that inquiry default plains of some oral or written statement contemplat- would instead seem to be that frequently will fall within the Act’s ed section 27.006—“the on which facts speech” “exercise of free defi- liability is based.”48 defense nition) is, alone, for that reason a “legal- on, to, This view of “is based relates on, to, action” that “is based relates or is in response generally or is to” element is in response to” that protected conduct.50- consistent with the manner in which Texas motion, In her dismissal Serafine assert- courts, Court, appellate including this have ed that the Blunts’ counterclaims seeking applied construed and it (although, as (1) damages under a tortious-interference Act, many presented by other issues (2) theory damages attorney’s fees Supreme yet Texas Court has speak). uniformly Chapter These courts have under 12 of the Civil Practice and it challenged on,” deemed sufficient that a “le- Remedies Code51 are each “based 335, 2014, 46. Id. 27.007. (Tex.App. S.W.3d 342 — Dallas Co., Toledo, pet.); Operating KBMT LLC v. 5, supra accompanying *21 peti- on, right “exercise of the* “based Chapter form of the under 12 are terclaims motion, any to, nor a basis for her to” Seraf- response tion” as in relate[d] [are] “right “exercise of of associ- purported the pendens filing because seek ine’s lis free “exercise of of ation” or the factually predicated filing.54 on that relief speech.” appellate Serafine’s claims for similarly the Blunts’ tor- It reasons that the solely or fall relief must stand partly claim is “based tious-interference assert, the she as limited theories did to, on, to” response relates in Seraf- is recognizes.52 Court Blunts’ pleadings ine’s lawsuit because the " explicitly the lawsuit as a com complain correctly the chal holds that The Court interference, alleged the but that ponent of “legal ac counterclaims are each a lenged by allegations other of interference threats of that tion”—the Act’s broad definition not, posture at least in the did counterclaims, af explicitly term includes activity protected appeal, implicate any by agree ter all.53 I also with the Court’s Act.55In between these distinguishing the and re that Serafine’s lawsuit conclusion protected unprotected alternative and fac the “ex pendens qualify lis notice as lated underlying tual bases the Blunts’ tortious- the the under petition” ercise of claim, implicitly interference the re However, Court as I as a matter law. solves, so, the below, correctly and so-called II in Part this definition explain TCPA, “mixed-claim” issue under the as I analysis might the not so broad as Court’s explain in Part And because none of IV. application nor is construction and imply, suggested have or even parties argued for whether straightforward. it so As on, on, to, relates based or is re “legal action” based that “is relates either “is statute, "legal "broad to-try requires which an award of definition of action” is title (here, attorney’s legislative any for a fees record title owner evidences a intent to treat Blunts) posses- prevails who by any party sepa in suit claim on an individual by basis”). property against claiming of real one sion rate (as does), Tex. possession Serafine see adverse 16.034(a); (2) Prop.Code the Uniform Tex. & Civ. Prac. Rem.Code Act, Judgments Declaratory Prac. see Tex. Civ. 27.001(6). ("In any proceeding § 37.009 & Rem.Code chapter, may award costs under this court Ante, at 54. 360-61. attorney’s necessary fees and reasonable and equitable just.”). are These additional Id.; Club, at Sierra 716- cf. pending remain court claims in the district (holding that movant association met its implicated ap- by order on and are not by showing initial burden under the TCPA analysis correctly reflects peal. The Court's declaratory-judgment suit com- nonmovant's scope limited of Serafine’s motion. part litiga- plained in of movant’s threats tion). *4; presented The Blunts evidence that Sheffield, 52.See 2014 WL at see (error made them that in- Serafine threats Tex.R.App. preservation). P. also 33.1 to, cluded, And, were limited the threat of but not recognize, as the Court likewise seems to event, litigation. In either the Court has no preserved grounds for Serafine dismissal any analyzed respect whether such threats separately with occasion address must be Serafine, private challenged they were to See directed as each of the counterclaims. Dallas, government, parties Inc. v. rather than the Bus. Bureau Metro. Better Ward, peti- (Tex.App. suffice as the "exercise of — Dallas denied) argument preserved. pet. (observing that the TCPA’s tion” had that been anything mean other than In sponse gation. to” could terms of “anti- achieving followed, effect, view the Court has prevailing SLAPP” goal or frame- TCPA’s to do the same here. How I am content to, most, might work be said ferret out a III, ever, explain precise as I Part range “legal actions” that presumed on, to, meaning of “is based relates or is to be subject SLAPPs virtue of their response yet to” is best considered another i.e., on, those “based relating] matter — ' open question under the TCPA—and a (in ... response to” the sense of vexing one at that. having factual predicate) as its some sort conclusions, of “communication” that appears

In within light of these the district required was to dismiss the Blunts’ definition of the “exercise of the right court and, Chapter speech,” counterclaims under of free “exercise of the *22 complains the extent it of Serafine’s law petition,” or “exercise of the right of asso- suit, their tortious-interference claim un ciation”—combined with inability of less the Blunts could clear ] proponent required to make the “establish! show- specific prima and evidence a facie case for ing “by clear and specific prima evidence a element of in each essential the claim facie case for each essential element of the question.”56 specific This “clear and evi claim in question.” In this respect, prima dence of a facie case” standard has proce- TCPA has some similarities to the interpretive created its own set of difficult requirements dural under the Medical Lia- ies,57 has, Supreme but the Texas Court Act,60 bility identify, which seek to quickly fortunately, opportunity give had the eliminate, and' deter frivolous lawsuits guidance Lipsky,58 majority’s in In re The against providers health care by requiring analysis Lipsky here is consistent with plaintiff asserting liability a “health care and, standard, under that I agree that claim” to serve an “expert report” early in district court in failing erred to dismiss the the case sufficient to demonstrate the Chapter Blunts’ 12 claims the relevant potential claim’s merit and presumes that “ portion of their tortious interference failure ‘means that the claim is either Thus, join judg claim.59 I in the Court’s frivolous, brought pre- or at best has been ”61 ment. maturely.’ might But while the TCPA significant capture “legal

But more than indeed some actions” that judgment truly conventionally what SLAPPs as says itself is this outcome about the under- stood, range “legal the vastness of the breadth the TCPA as written and the any statute’s actions” that are relationship perceived suspect deemed objective combating statutory ultimately desired SLAPP liti- framework and ex- 27.005(b)- generally 56. Tex. Civ. Prac. & Rem.Code Tex. Civ. Prac. & Rem.Code (c). (provisions §§ 74.001-.507 of Medical Liabili- Act). ty Lipsky, 57. See In re 460 S.W.3d 587- 88(Tex. orig.proceeding) (noting con- Santillan, Scoresby v. among appeals regarding flict courts of (Tex.2011) (describing purpose and effect specific require- TCPA’s“clear and evidence” expert-report requirement quoting ment). Tex., American Transitional Care Ctrs. Inc. Palacios, (Tex.2001)); (holding 58. See id. at 591 that "clear and specific impose evidence” “does not an ele- see Tex. Civ. Prac. & Rem.Code 74.351 evidentiary categorically vated (Medical standard re- Liability provision requiring Act ex- evidence”). ject circumstantial claims). pert report liability in health care 59.Ante, at 585-86. having justice drainage system despite ensures their system from the civil

.cised — operate arbitrarily that the Act will that the was made Serafine aware work any goal “anti-SLAPP” relation to necessary persistent flood- eliminate most, it many, if of the cases to which not problem damaging pier- that was ing good is a illustration. applies. This case foundation their house. and-beam installation,” testified,” conten- preserved Serafíne has not he “During the counter- tion that the Blunts asserted their “continually employ- harassed the Serafíne objective punishing claims with the Drainage of Austin and interfered with ees chilling free- expressive her exercise Drain- point their work Austin doms, as of a might characteristic longer would no continue work on the age rather, merely argument, Her SLAPP.. ... project,” daily basis stalked “[o]n written, TCPA, that the effect employees property ... and walked the (however fortuitously) provides her known,” presence make line to her advantage tactical is entitled to she power everything “did in her to stall wield her lawsuit the Blunts. emphasized work.” Mr. Blunt further sin, words, in other is not Blunts’ Serafine’s “threats” related conduct anyone “legal asserted a action” that beguh “well before” she filed suit. had truly a SLAPP the conven- contends is *23 further illumination the regarding Some sense, merely they pleaded tional but that may nature of lawsuit also be Serafine’s compulsory happened counterclaims that pleadings alongside found her live her (at implicate part) the least — alleged based of infringements claims on “pri- not the could overcome litany Serafine a property rights, her airs ma facie requirement. case” the in- grievances against Blunts that Conversely, arguably it is the claims as- perceived “surreptitious tap- video clude by closely re- serted Serafíne more insult, ing” of her and “several instances if semble the at least paradigm, SLAPP and, ridicule, believes, marshal- [Serafine] one credits the Blunts’ account neighborhood ing gossip. against preceding During events her lawsuit. motion, hearing [her].”62 Blunts on Serafine’s presented evidence that had Serafíne implicate Serafine’s conduct would' While years-long history exhibiting ex- prior liberty property interests of Blunts their, animosity family, treme toward expression rather than the free that is the frequent episodes spiteful of vexatious and evidence, focus, in the viewed TCPA’s Among behavior. other con- nettlesome Blunts,63 most could light favorable duct, Blunt, according to Alexander Seraf- inference support reasonable that Seraf- ine has watch “basically ke[pt] 24-hour pattern ine’s of conduct toward the Blunts our property on border” has “harassed motivated, in part, at least the sort of years” trifling

me for for matters as his animus that is char- harm-for-harm’s sake “using leaf blowers.” of be- pattern This litigation. of SLAPP Yet it is acteristic havior, Blunt, according to Mr. continued pro- Serafine’s claims that exalted and began and intensified once Blunts planning their new trying right construct tected as “exercise Serafine, "non-practicing represented different a self-described She is counsel se, attorney," appeal. pleadings pro but filed these represented later obtained counsel who her in supra connection with her TCPA motion. 63. See note 28. dismissal TCPA, derogation qualify as the petition” under “exercise of the rights. the Blunts’ petition” begins immediately ends (A)(i) with subparagraph of the TCPA’s general regarding As a final observation definition of that term: “a communication statute, whatever impact, the TCPA’s in or ... pertaining judicial proceedin mechanism, its merits as an “anti-SLAPP” g.”^'65 This view is not unprecedented certainly proven has itself to be an ex- among appeals. Texas courts of At traordinarily tool for de- least powerful media two of combating fendants to use defamation our sister courts have reasoned claims.64 similarly filing of a lawsuit or lis pendens qualifies notice as the “exercise of

II. petition” under a straightfor ward, “plain-meaning” of “a reading com THE TCPA’S “EXERCISE OF THE munication in pertaining judi to ... a RIGHT TO PETITION” DEFINI- proceeding,” cial deeper with no digging BROADLY TION PROTECTS warranted.66 And additional ap court of LAWSUITS —POSSIBLY EVEN. decisions, peals IT including FRIVOLOUS LAWSUITS —BUT some from this Court, NOT AS BROAD THE IS STILL AS analytical have followed a similar SUGGESTS COURT approach construing when the TCPA’s def initions of the “exercise of the of free ma Echoing arguments, Serafine’s judicial speech” or the “exercise of the jority perceives inquiry as to as pendens whether Serafine’s lawsuit and lis sociation.” ordinances, Shipp, (reversing challenge zoning 439 S.W.3d at 442 and tortious- judgment dismissing court to render trial conspiracy complain- interference and claims *24 defendant); plaintiffs case media Cra- on, to, ing of the suit were "based or relate[d] 90; Hotel, Avila, zy 416 S.W.3d at "exercise”). response in to” that [were] (reversing denying at trial 662 court order decisions, Eighth In addition to those media defendant's motion to dismiss under Appeals similarly Court of has reasoned that a KBMT, TCPA); but see 434 S.W.3d at 290 litigation movant's threats of suffice as the (affirming denying trial court order media right petition” "exercise of the to under the TCPA); defendant’s motion to under dismiss Club, DFW, TCPA.See Sierra (dismiss- S.W.3d at 716-17. see also BH 402 S.W.3d at 299 Serafine, again, preserved any But has not ing brought against under TCPA claims BBB Ward, accreditation); such contention here. regarding its Moore, (same); at John 67.See, (same). e.g., Neyland Thompson, No. 03-13- S.W.3d at 362 00643-CV, (Tex. WL *4 ante, (quoting 65. See at 359-61 Tex. Civ. Prac. 7, 2015, h.) (mem. App. Apr. pet. — Austin 27.001(4)(A)(i)(emphasis & Rem.Code ed)). add- op.) (reasoning that communications between members of an HOA were “between individu join together collectively express, als who to James, (holding 446 S.W.3d at 147-48 promote, pursue or defend common inter barratry predicated that fraud and claims on qualify ests” so as to as the "exercise of the attorney’s representations plead- in lawsuit association,” right public statements ings, along pendens filing, with related lis regarding members made HOA internal dis on, were "based or in relatefd] [were] pute community related to "economic response right to” movants' "exercise of the well-being” so as to be the "exercise of the petition,” namely, to in or ”communication[s] right speech”); Kinney, free 2014 WL pertaining judicial proceeding”); to a Rio ("Under H20, at *5 TCPA's [the definition (petition, Grande 2014 WL at *3 file, speech'], of the 'exercise of the freedom of pleadings singularly included in the plaintiffs] only need ‘in "established that were communication connection [the exercis- concern,’ ing right petition filing public their the lawsuit” with a matter of which in- petition” have “exercised may [his] at first approach such an While “communica- by uttering lan- an oral unambiguous this sense justified by blush seem definitions, remark- “judicial proceed- some to” a “pertaining within the tion” guage analysis matter, should of that the author seem- implications For that ing.” able literal- pause. If read greater courts give likewise “exercised ingly [his] would have initially to be the would seem ly, what through the same speech” of free in or a “communication meaning of plain utterance, in connection as it was “made proceeding” judicial ... pertaining to concern,” a TCPA public a matter of (and, turn, the “exercise in. to be or that could be said appeal court alone, would, standing encom- petition”) alia, to,” related inter involve an “issue writings range limitless virtually pass pub- or public “a official government,” “the a court case. related to and statements well-being.”70 “community figure,” lic “judicial “in” a “communications” Written by re- responded author’s wife And if the include, to name but a would proceeding” that, fascinating him however minding letters, fax transmit- examples, cover few be, may cases he has significant TCPA Written vacation letters.68 pages, tal salary for earning only judicial been judicial to a “pertaining” communications now, it would seem years twelve almost broadly sweep more would proceeding have, similarly, exercised that she would still, communications encompassing even speech” by of free “communicat- “right her private parties solely between directed ... related to regarding an “issue ing” judi- refer to some sort of happen And to the well-being.”71 ... economic in which the even one proceeding, cial could be con- relationship a marital extent no involve- communicating parties have join together who sidered “individuals cap- likewise The definition would ment.69 pursue, or collectively express, promote, communica- or other electronic ture emails (and one would common interests” defend description. And one tions that met this marriage would work hope that a fathom the outer limits begin cannot these same “communications” way), un- qualify that would oral communications “exercise of the qualify as the also seem reading of the definition. der a literal association,” too.72 that if he awoke It to the author occurs reading literal implications of a These weekday morning, rolled over early one *25 be dis- cannot the TCPA’s definitions bed, lovely and ever- and mentioned to his far- merely speculative or missed as hearing oral wife that he would be tolerant opinions recent from this fetched—-real-life yet appeal another under argument memorandums) (albeit logical- day, he could be said to Court later that TCPA 1612155, *11 Neyland, WL at good, product, 68. See 2015 or eludes issues 'related to J., (Field, concurring) (making ob- the same marketplace.’ The record service in servations). Kinney’s related online statements shows provides public BCG to services id. 69. See on those state that BCG's claims are based language Considering plain ments. 27.001(3), § Prac. & Rem.Code 70. Tex. Civ. Kinney met ... conclude that has we (7). showing by preponder initial burden of his were that his statements ance of the evidence 27.001(7). §Id. public with a matter of made in connection 71. to those and that this action relates concern 27.001(2). §id. applies.”). 72. See so that the TCPA statements

379 meaning of these conclusions.73 of ly support several words read contextually TCPA, it never would have Prior to the light of what surrounds them. Given author that dawned on the Texans could power the enormous of context to trans- many so of their cherished free- exercise form the meaning of language, courts expression even before their feet doms should rulings resist anchored in hyper- morning. hit the floor each technical readings of isolated or words But the notion that the TCPA has such phrases. import of language, plain signal they an effect not, should courts or must be drawn from the sur- may “blindly have faltered into a narrow context, rounding particularly when con- statutory reading[] and out-of-eontext struing everyday phrases words and true, course, It is that this that are inordinately content-sensitive.77 language.”74 regard unambiguous statutory is to Court Thus, we do not examine individual statu- guide Legisla- text as the surest to the tory provisions isolation, but construe ture’s that we are to utilize intent,75 whole, statutes as a giving every effect to Legislature provid- definitions the has We likewise consider whether the determining meaning ed us when of a part.78 meaning statutory language is informed statutory Yet as the word phrase.76 “laws the same or subjects” similar Supreme Texas has also reminded Court law, or other background of which recently: we are us presume the Legislature had full knowl- statutes, construing anything When .edge.79 And while we are else, apply legisla- one cannot divorce text from con- statutory tive definitions of terms in meaning text. The read in lieu of words frequently contrary isolation is the their “ordinary meaning,”80 the su- 1612155, (rea Neyland, WL *4 73. See 2015 isolation but must be drawn from the context soning membership qualified used.”). that HOA in which purposes “common interests” for of "exercise of association” definition and that See, e.g., City Holdings, 78. Lorena v. BMTP dispute relating internal HOA sufficed as L.P., 634, (Tex.2013) (“We 409 S.W.3d community well-being” “economic and contextually examine statutes as whole to purposes of the “exercise of the of free give meaning every provision.”); Bridge J., (Field, speech”); id. at *11 & n.l con cf. stone/Firestone, Glyn-Jones, v. Inc. curring) (disputing some of conclu these (Tex. 1994) ("Words in a sions). nothing. Only vacuum mean in the context of the remainder of the can the statute true Texas, (Tex. Alejos 74. 433 S.W.3d meaning single” provision aof be made App. pet.). — Austin clear.”). supra accompanying note 15 and text. Allen, (Tex. 79. See In re See, 311.011(b); e.g., Tex. Gov’t Code Comm’n, 2012) (quoting Acker v. Texas Water TGS-NOPEC, (“If 340 S.W.3d at 439 a statute (Tex. 1990)); see also particular meaning a term with a uses 311.023(4) (in construing Tex. Gov’t Code *26 term, assigns particular meaning a to a we statute, may court consider “common law or statutory usage.” (citing are bound the statutory provisions, including former laws on Needham, Dep't Transp. Texas v. 82 S.W.3d of subjects”). the same or similar 314, (Tex.2002))). 318 311.011(b) (“Words Gen., 80. See Tex. Gov’t Code Attorney 77. In re the 456 Office of 153, (Tex.2015) curiam); phrases acquired that have a technical or (per S.W.3d 155-56 see, TGS-NOPEC, (“It meaning, e.g., particular by legislative whether 340 S.W.3d at 441 otherwise, principle statutory a definition or shall be is fundamental con- construed TGS-NOPEC, language accordingly.”); struction and indeed of itself that 340 S.W.3d at (“If meanings particu- words' cannot be determined in 439 a a term with a statute uses 380 Constitutions,” with and United States court has also instructed

preme meanings given those terms “[cjourts “particular meaning the should not consider jurisprudence.”82 over centuries to in total isolation of the term be defined usage” “pre- and should from its common The to under the federal “right petition” of a common word sume that definition Constitution, in found the First Amend- conflict the with and does not with accords ment,83 from the same cloth as the “is cut the ordinary meaning language unless Amendment, guarantees of that other clearly indicates otherwise.”81 particular freedom of is an assurance of People specific the in a expression” of must, short, beyond look what

We remedy seeking grievances initially plain to be the or obvi- may seem context — their will to communicating and otherwise import phrase of the “communication ous right is also government officials.84 The judicial proceed- ... a pertaining in or to “implicit very to idea of ‘[t]he said appears as it when read isolation. ing” ”85 government, republican form.’ meaning its We must instead determine backdrop of against a broader contextual con- text of the TCPA as a whole light a whole and in refutes, the TCPA read as firms, Legis- rather than so, doing it be- background law. When incorporate lature intended to this estab- apparent the TCPA’s use of the comes understanding lished of this constitutional petition,’’ to right term “exercise of the “exer- “right petition” defining when speech” petition,” opposed like “exercise of the cise of of free association,” of sui innova- creating generis and “exercise of the some sort (D) (B), (C), tion.86 “particular Subparagraphs evokes terms from the Texas meaning assigns particular meaning lar material substantive difference between term, two, statutory any, am I aware of and it seems we are bound nor Jardin, usage.”). 431 safe to assume there is none. See (stating that constitu S.W.3d at 773 "Texas Co., 265, Ford 442 271 In re Motor provisions guaranteeing of ex tional freedom (Tex.2014) (citing & n. 20 Antonin Scalia & assembly pression are coextensive Garner, (2012)). Bryan Reading A. Law 232 guarantees” (citing corresponding federal State, 188, (Tex. 801 S.W.2d 192 Puckett Marklund, 82. Jardin v. 772 denied, 1990), App. Dist.] cert. [14th — Houston (Tex.App. Dist.] [14th — Houston 990, 112 S.Ct. L.Ed.2d 629 502 U.S. pet.). Bunion, (1991))); Bentley v. cf. (Tex.2002) (noting where ("Congress U.S. I Const. amend. shall parties argue that in state do not differences abridging make no law ... ... the guarantees ma and federal constitutional people petition ... the Government for a case, apparent, terial and none is "we limit grievances.”). redress of analysis our to the First Amendment and sim ply congruent that its concerns are assume Smith, 479, 482, 84. McDonald v. 472 U.S. I, 8”). with those of article section Accord (1985). S.Ct. L.Ed.2d implica ingly, separately I do not address provision. tions of Texas Cruikshank, (quoting 85. Id. States v. United 542, 552, (1875)). The U.S. 23 L.Ed. 588 Ford, ("Courts protection counterpart 86.See 442 S.W.3d at 271 under Texas Con I, meaning the term stitution is found in Article Section 27. See should not consider I, (“The Tex. Const. to be in total isolation from its com- art. citizens shall defined manner, right, "presume peaceable usage” mon and should that a defi- have in a to ... apply powers with the nition word accords with and those invested of a common ordinary meaning government grievances does with the for redress of or other not conflict *27 clearly language purposes, petition, address or remon unless the indicates other- strance.”). wise.”). suggested has there Neither side defi- that are right petition” already of the to munications within the the “exercise contemplate protection. either the di- constitutional explicitly nition action government petitioning rect This conclusion is also consistent with “issues”87 or the particular or redress on overarching purpose the TCPA’s as stat- collateral actions aimed at influ- sorts of ed in section encourage 27.002—“to encing public opinion support peti- in safeguard rights the constitutional tioning Supreme that which the U.S. Court persons petition, speak freely, to associate within the First long has been held to be freely, participate gov- and otherwise Further right petition.88 Amendment to Indeed, ernment....”90 the Legislature Legislature’s of the intent is confirmation even gave the TCPA the title “Actions (E) subparagraph of the defini- found Involving Exercise of Certain Consti- tion, one, that “exer- the final which states tutional Rights”91. Construing the “ex- right petition” cise of the to includes: ercise of petition” to so toas any other communication that falls with- beyond extend those constitutional param- protection petition in the of the correspondingly eters would also disrupt government under the Constitution of Legislature balance the intended be- the United States or constitution tween protecting rights constitutional this state.89 “protecting] rights also a person “any other communication to file phrasing meritorious lawsuits for demonstra- protection injury.”92 that falls within the ble disruption And this government under the if petition Constitu- considerable a “communication in or or the ... pertaining judicial tion of United States constitu- proceeding” is overlap literally tion of this state” denotes an or read and in isolation previ- preceding ously nexus between the components suggested, encompass array a wide written, oral, petition” of the “exercise of the and electronic communi- (A)’s including subparagraph bearing cations little resemblance to definition— ”— ... pertaining “communication conventional notion of the constitutional concept, legis- “right petition.” and the constitutional if not That itself is a lative intent that the definition do no more reason to conclude that the Legislature identify emphasize types than of com- intended no thing.93 such Inc., 127, 137-38, Freight, 87. See Tex. Civ. Prac. & Rem.Code 365 U.S. 81 S.Ct. 27.001(4)(B) (“a 464(1961). § communication in con- 5 L.Ed.2d by leg- nection with an review issue under islative, executive, judicial, govern- or other 89. Tex. Civ. & Rem.Code Prac. body governmental mental or in another 27.001(4)(E). § ("a (C) proceeding”), official communication reasonably likely encourage that is consid- added). (emphasis § 90. Id. 27.002 by legislative, eration or review anof issue executive, judicial, governmental or other Act, Participation 91. See Citizens 2011 Tex. body governmental inor another or official Gen. Laws at 961. proceeding"). 92. Tex. Civ. Prac. & Rem.Code ("a 27.002. 27.001(4)(D) 88. See id. communication reasonably likely public participation to enlist See, e.g., City Hughes, Rockwall v. in an effort to effect of an consideration issue (Tex.2008) (”[W]e executive, legislative, con- judicial, or other according governmental body governmen- strue the statute’s words to their or in another plain meaning proceeding”); tal or official and common ... unless such a see also Eastern results.”). R.R. Presidents v. Noerr Motor construction leads to absurd Conference *28 lawsuit, her a adjunct to component of or sum, understanding of the established In protect to public notice intended ju- form of in constitutional petition” to right “the disputed property in the alleged rights nature of a her inform the must risprudence of her on notice by putting parties ... a third pertaining in or to “communication explained, the previously As title claims.95 qualify that would proceeding” judicial petition to has right Amendment as First right petition” the to the “exercise of a filing the encompass held to long been was not phrase in the TCPA. defined is, the suit unless lawsuit96—that read in the abstract intended to be (1) “sham,” “objectively base- that is one to cause the TCPA’s defini- so as isolation (i.e., litigant could reasonable “no peti- to less” right “exercise of the tion of the ” merits”) realistically expect success on the com- depart materially from tion to (2) to harm a rival attempt conceals an understanding of long-familiar mon and it- through litigation process directly petition” to means. “right what to the outcome.97 opposed self as backdrop and Against its constitutional whole, in “communication read as TCPA explicitly not exclude The TCPA does proceeding” ... judicial to pertaining petitioning sham that constitute lawsuits of “commu- necessarily refers to the sorts right petition” of the to from the “exercise “judi- “pertaining “in” or to” a nications” However, the limitation would definition. protected proceeding” that would cial by virtue of the First implicit to be seem right peti- First Amendment under the the definition concepts Amendment tion.94 admittedly But there is incorporates. debate, when one case, especially inquiry dis- some room to this applied

As to similar laws compares whether Serafine’s further tills down more clear and states that have been Amendment other falls within the First lawsuit from excluding petitioning sham direct government, as Serafine’s petition their merely protections.98 pendens filing is considered lis Jardin, underlying departs constitutional (relying from 431 S.W.3d at 772 94.Accord respects). understanding concept Amendment con of First some on its "right petition” guide cept construc peti "exercise of the tion of TCPA's tion”); Miller, (Tex. 95. See In re Energy, 449 S.W.3d at see Cheniere ("A pet.) App. Dist.] [1st — Houston respect (concluding, with to TCPA’s"ex claim; independent it pendens is not an lis association,” that "the ercise of separate from lawsuit has no existence purpose indicates a re stated statute notifies.”). which it the com quirement of some nexus between to invoke the TCPAand the munications used Rests., 461 U.S. at Bill Johnson's generally recognized parameters of First 2161; Motor, 404 U.S. at 103 S.Ct. California (Jen protections”); id. at 217 Amendment 510-11, 92 S.Ct. 609. J., J.) concurring, joined by Sharp, nings, (further emphasizing view that TCPA their Investors, Estate 508 U.S. 97. Real Professional express pur light must be construed of its 60-61, 1920. at 113 S.Ct. only that are poses protect communications understandings of protected under established 110/15, Cf., Comp. Ann. e.g., 735 Ill. Stat. speech, assem freedoms of constitutional 20(c) (authorizing "a claim motion to dismiss Neyland, 2015 WL bly, petition). But cf. grounds that judicial proceeding on the in a J., (Field, concurring) *12 at & n. on, relates or is in is based the claim (and, (while logically, agreeing with Cheniere moving response to act or acts of me) construed with that TCPA's text must be moving party’s party in of the furtherance concluding, purposes, in the context of its association, speech, or to rights petition, regard to the "exercise least association,” government ... ex- participate in explicit otherwise that the Act's text *29 possession theory the does not need to resolve core objective- But Court —her —is ly the dis- meritless and that her question filings this case because were made held, only not have at least on to harass and harm family. trict court could their record, that Serafine’s lawsuit was a this In addition proof to the of Serafine’s that the “exer- Assuming sham. TCPA’s described, previously motives as the petition” does cise definition Blunts’ evidence included correspondence incorporate litigation the sham limitation reflecting that Serafine had raised a ver- jurisprudence, from First Amendment sion of her current adverse-possession denying district court’s order Serafine’s 2008, claim early as June when she had motion could be based on an im- affirmed objected to the plans replace Blunts’ plied finding or conclusion that Serafine’s preexisting chain-link fence that was locat- protected lawsuit is not as the “exercise of ed few feet inside their boundary of petition” because it is a record with Serafine’s lot. A letter from i.e., objective it both lacks merit Serafine, sham — the Blunts to dated June purpose only harming and has the 2008, references and responds to an earlier through the collateral Blunts effects Serafine, 5, 2008, letter from dated June litigation process99 findings those or which evidently she had insisted she —if supported by conclusions are evi- sufficient acquired had title to the land between the dence.100 The Blunts would have the bur- boundary fence, record as well as issues,101 proof although den of on these itself, by the fence possession.103 adverse this would view the evidence in the letter, Court In their disputed the Blunts Seraf- light Although claim, most favorable to them.102 referencing ine’s title ele- legal phrasing explicitly not their contentions possession ments of adverse and contend- litigation terms of “sham” petitioning, ing satisfy or she could not family them. The complained the Blunts have substance particularly emphasized “[pjossession that Serafine’s claim to title adverse of the ... land must be continuous and cept genuinely procuring findings when not aimed at absence of of fact and conclusions of action, result, law, government or out- appellate implies any findings court fact favorable placing come” burden on nonmovant to necessary support judgment); Props. FM prove moving party that "the acts of the Austin, Operating City Co. v. from, not immunized or not in furtherance of ("When (Tex.2000) a trial court’s or- from, Act”) liability by acts immunized granting summary judgment der does not added); (emphasis see also Mass. Ann. Laws specify grounds upon, reviewing relied (authorizing "special ch. 59H motion summary judgment any court must affirm if claims, counterclaims, to dismiss” "civil summary judgment grounds of the are merito- against cross claims are based [movant that] rious.”). appeared Serafine has not to dis- party's petition on said exercise of the pute general principles appellate that these under the constitution of the United States or apply equal review force to trial court commonwealth,” grant- which shall be granting denying orders TCPA dismissal party spe- ed "the unless whom such motions. (1) cial motion is made that: that the shows moving party's petition exercise of its Investors, 101. See Real Estate support was Professional devoid reasonable factual U.S. at S.Ct. (2) any arguable in law and the mov- basis ing party’s injury acts caused actual added). responding party”) (emphasis supra 102. See note 28. Investors, Real Estate Professional 103. This letter from Serafine is not in the 60-61, U.S. at 113 S.Ct. 1920. record, although its contents were referenced correspondence in the that followed. Belg., 100. See BMC N.V. v. Mar Software chand, (Tex.2002) (in al- title had her limitations pled, ine also remains a condition uninterrupted, Seraf- to that time.105 ready prior from the vested 20-year absence by your unmet just claim on adverse-possession 1980’s until early bases her since ine property in a letter dat- replied disputed recently.” Serafine alleged expropriation her *30 record, 27, 1970s, acknowl- in the roughly June also ed in the beginning property June 23 letter receipt of the Blunts’ edging her letter. the date of forty years before “[wjithout the correctness and, admitting not forward Blunts did The .come assertions,” stated, specific Blunts’] of [the ab- could demonstrate evidence that my demands the claims and “I retract meritorious ad- objectively an sence of 5 letter.” June pri- on those claim based verse-possession Similarly, the fact that Serafine June or events. Serafine’s characterize Blunts on her lot dur- acknowl- resided personally a “waiver” or had not 2008 letter as the Blunt intervening years, that is fatal as superior ing their title edgment of letter, also demon- not lawsuit and in their family to her current asserted claim, that her one her conscious awareness her as necessarily strates be fatal to confirms Seraf- merit. It also suit lacks without neces- property may appropriate suit, they her prosecuting there, through ine’s ill intent such as sarily residing especially when consid- suggest, further more, court the district Without tenant.106 they portray with what conjunction ered in found or conclud- impliedly not have could animosity spite- long history of as her any ob- lawsuit lacked ed that Serafine’s ful, toward them. nettlesome behavior basis, so as to reasonable jectively certainly Blunts’ evidence is But while the the “exer- thereby fall outside sham107 well litigation, may of sham probative under the right petition” cise of the implied an support have been sufficient TCPA. court that Serafine’s finding the district order could not the district court’s While objective solely by motivated was suit theory— litigation on a sham be affirmed the collat- harming through the Blunts state of the record because of the whether it litigation process, eral effects of incorporate does not or because the TCPA enabling fall short of nonetheless would at all—the litigation limitation the sham conclude that court to find or the district rationales for urge two additional Blunts realistically litigant could “no reasonable .construing the “exercise of of her title on the merits” expect success exclude in a manner that would petition” claim, sham-litiga- element of the the other arguments high- lawsuit. Both Serafine’s accepting Even exception.104 tion of the TCPA’s important features light letter of Serafine’s Blunts characterization petition” definition “exercise of the superior acknowledgment of their as an its implications for significant that have title, acknowledgment occurring such an if, to lawsuits. application Seraf- future legal effect 2008would have Investors, & Rem.Code Tex. Civ. Prac. TCPA. See Real Estate 104. See Professional 27.006(a). 1920. U.S. at 113 S.Ct. See, Pro e.g., v. Coastal States Gas 106. Reiter See, e.g., Republic Nat’l Bank Dallas v. 105. 1964) Co., (Tex. ducing Stetson, (Tex.1965) through possession ten (recognizing adverse (once perfected, it cannot limitations title is possession). ant acknowledgments be lost after-the-fact Investors, title). Again, original Serafine’s Real Estate owner's 107. See Professional 113 S.Ct. "evidence” under U.S. pleadings count as First, tailor emphasizing Legislature’s textually operate so as to the.TCPA “participation] gov- public only concern with conventional notion of in section 27.002 of expressed SLAPPs, ernment” as but drafted it more expansively. legislative and the anecdotal the TCPA108 However, the Blunts’ view finds additional concerns about SLAPP history reflecting support opinion in an from the Fourteenth to “silence” citizens who being suits used Marklund, In Appeals. Court Jardín v. participating exchange in the “free the court length attacked at the notion ideas,” the Blunts insist that Serafine’s protections that the TCPA’s for the “exer an lawsuit should not be considered “exer- petition” cise of the can be invoked petition” because it cise of “simply by filing petition in a lawsuit merely commonplace dispute concerns private parties.”111 between It observed *31 (and, ownership to some property about view) (correctly, my in the that TCPA degree, personalities) private par- between incorporates, and must be construed in reason, words, in other ties. The Blunts of, light the familiar understanding of the qualify that a lawsuit does not as the “ex- “right First Amendment to petition.”112 right petition” ercise of the to under the premise, From that majority the Jardín by the bare fact that it is filed with that the rights petition reasoned there, a court or seeks some form of relief speech free under the First Amendment subject but must instead have a matter conceptual share common and doctrinal independently governmental concerns “public roots and that speech” has tradi im- public action or some similar issue of tionally greater protection been afforded port. or weight “private speech.”113 than From argument The Blunts’ is consistent with observation, this majority extrapolated the litiga the conventional notion of SLAPP that a similar distinction exists between tion, at least as described in some of the petitioning “public” “private” about versus pioneering scholarly the sub articles on issues,' merely such that filing lawsuit authorities, ject. According to these right would not invoke the constitutional to characteristically target, among SLAPPs TCPA) (and, turn, in petition the unless expression other forms of free to related subject independently the suit’s matter government, “being parties in law-reform government public concerned or “the interest.” i.e., seeking lawsuits to advance lawsuits” — 4 11 public-policy or achieve some sort of observation, itself, suggest, subject As the Blunts the mat- goal.110 But that is lawsuit, ter of Serafine’s while help important of little to the Blunts because the indicated, Legislature, already as the parties justice did not and to a Texas civil analysis holdings. 108. See Tex. Civ. Prac. & Rem.Code 27.002 this as the basis for its See ("The purpose chapter encourage is to judges joined opinion, id. at 773. Two in the safeguard rights per- the constitutional dissenting addressing with the third without petition, speak freely, freely, sons to associate (Frost, J., id. at this issue. See dis participate government and otherwise senting). ...") (em- permitted by maximum extent law ' added). phasis 112. See id. at 770-73. supra 109. See note 13. (citing 113. See id. at 770-71 Dun & Brad- Pring, 7 Pace Envtl. L.Rev. at 5. street, 2939). 472 U.S. at 105 S.Ct. Jardin, However, 431 S.W.3d at 769-73. 772-73, 114. See id. at 105 S.Ct. 2939. panel ultimately rely directly upon did not concern,” the “exercise while public for our citi- provides a forum system that definition contains every petition” controversies of the justiciable zens’ size,115 impli- seem to requirement.118 not otherwise Col- would no such element government or larger TCPA, issues about cate features of lectively, these “public inter- or the broader public policy Amendment con- by the First informed However, con- compelled am I est.” consistent with incorporates, are cepts it clude, text and its on the TCPA’s based recognition intent or legislative concepts, Amendment First underlying petitioning under that constitutes speech protect intended Legislature Amendment, speech gen- unlike First concerning an otherwise- lawsuit even this inherently “public con- erally, as a form of quarrel personal private without re- protection and warrant cern” petition.” of the the “exercise being matter subject gard particular held has never Supreme Court The U.S. Likewise, in terms of the over- expressed. to courts within the of access statutory goals empha- the Blunts arching is con- petition Amendment First activity size, petitioning First Amendment subject matter on whether ditioned government” public “participation] concerns independently claim a lawsuit or and, Framers as far as eyes “public” matters. or other government text, courts can tell from TCPA’s *32 Rather, recognized have key precedents its Legislature as well. Texas “business private to advance that lawsuits that the may also be instructive Cali- It implicate can economic interests” or Supreme reached same fornia Court other- suggesting In petition.116 of un- concerning parallel a issue wise, body juris- conclusion Jardín overlooks analog activi- to the TCPA.119 petitioning and also that der that state’s prudence, have a would of the ty, speech generally, unlike 425.16 California statute —section objective inherent in the “public” character Procedure120—was Code Civil California definition, by context of the act “anti-SLAJPP”laws and of the earliest one itself— activity bring seeks to about petitioning model or influence on primary has been a action. governmental sort of some in other subsequently enacted similar laws states, directly indirectly, including, between the This same basic distinction extent, Legislature’s To this TCPA.121 activity petitioning' constitutional status TCPA, any with little if enactment in the generally is reflected speech versus ex- represents notable public opposition, emphasized, has text. As Serafine TCPA’s today’s Texas antipathy to the ception “exercise of definition of the the TCPA’s known to ex- are sometimes policymakers limit- explicitly speech” of free regulatory State’s toward the Golden regarding press “a matter ed to communications Const, 27.001(4). I, ("All § 118. See id. art. courts 115. See Tex. injury open, every person for an shall lands, him, repu goods, person or in his Hope done Briggs v. Eden Council See tation, remedy by due course of shall have Cal.Rptr.2d Opportunity, 19 Cal.4th law.”); Air Bus. v. Texas Con Texas Ass’n (1999). 471, 969 P.2d 568-75 (Tex. 1993). Bd., trol (“Anti- § 425.16 Cal.Civ.Proc.Code 120. See Motor, 404 U.S. at 116. See California motion”). SLAPP S.Ct. 609. (S.B. Legis. Cal. Serv. ch. 121. See 1992 Tex. Civ. Prac. & Rem.Code 1264) (West). 27.001(2). ment) features of the policies. and social Various nonetheless had to show their peti- litigated been statute have also “in tioning California wás connection with a public decisions, like years, over the and these issue” in order to obtain dismissal. The construing from other states sim- decisions Supreme California Court concluded laws, provide guidance can sometimes ilar did not.125 Emphasizing the omission of a regarding comparable provisions.122 “public interest” or “concern” element from the statute’s definition of petitioning statute, TCPA, like the

The California activity, the court in part: reasoned by expression protected defines distinguishes peti- statute in a manner that plain “Under the terms of the statute it in- tioning activity speech generally, from is the context setting itself that explicit “public “pub- cludes an interest” or public makes the issue a issue: all that in the lic concern” element definition matters is that the First Amendment speech, includes no such lim- protected but activity take place proceed- an official in regard petitioning.123 itation Howev- ing or be made connection with an statute, er, unlike the California being issue an pro- reviewed official TCPA, “public also includes a interest” ceeding. ... The Legislature when statutory provision element in the autho- crafting the clause two clearly definition legal rizing dispositive against motion unambiguously to an easily resorted infringe type some actions deemed concept understandable of what consti- protected expression, providing “special public Specifically, equ- tutes a issue. it against cause of motion strike” “[a] ated a public issue with the authorized arising from person action official proceeding, to which it con- person act in furtherance of the nects.” person’s right petition speech or free reasoning apply The same *33 under the United States or California Con- right TCPA’s definition of “exercise of the public stitution in connection with a is- petition” to “participation govern- 124 —the That its qualifier arguable sue.” “public ment” or interest” feature of the inconsistency with the statute’s definition expression would be inherent in the fact confusion protected petitioning bred that it in govern- is communicated to or parties moving to whether to strike based mental forum. (defined, petitioning activity again, in a short, provide any manner that did not include an In the TCPA does not explicit “public concern” “public construing interest” or ele- textual basis for the “exercise 27.010, (Code § Tex. Gov’t 122.See Code 311.023 this context demonstrates that the provision allowing Construction Act consider drawing any compari Court was not broader statutory ation of "common law or former between the two See id. sons statutes. provisions, including laws on the same or subjects”). say similar But that is not to that 123. See Cal.Civ.Proc.Code 425.16. comparable TCPA the is to the California (or state) any "anti-SLAPP” law that of other 425.16(b)(1) added). (emphasis 124. Id. respects, textually in all material that nor provisions necessarily similar must con Briggs, Cal.Rptr.2d 81 969 P.2d way. the strued same This Court did not hold at 568-75. Kinney, despite otherwise in use of the its descriptor "essentially identical California Id., Cal.Rptr.2d 969 P.2d parenthetical anti-SLAPP statute” in a follow Co., (quoting Publ'g Braun v. The Chronicle ing Kinney, a citation to a California case.” Cal.Rptr.2d Cal.App.4th ap 2014 WL at *6. This reference (1997)). pears analysis within an of TCPA Section that for petition” require specific prima the evidence a facie case sort of additional inde- lawsuits have some essential element” of the claims each governmental or connection pendent to continue them.127 prosecuting order beyond being peti- issues a form of public ef perhaps practical burdensome in While tioning protected by the Amendment. First fect, deprive the does not requirement not, as Consequently, Serafine’s lawsuit is 12 of all effect. Chapter urge, Blunts from the excluded Second, Leg significantly, and more petition” “exercise of TCPA’s ac “legal islature’s broad definition of a merely private it or because concerns subject tion” that is to dismissal under things. and not personal dispute loftier lawsuit, action, peti cause of TCPA—“a argument The Blunts’ second relates cross-claim, tion, complaint, counter or interplay between the and other TCPA judicial pleading claim other statutory that Legislature remedies legal re filing requests equitable provided litigants. They urge has civil distinguish lief’ 128—doesnot between stat petition” that the “exercise of the claims as those Blunts as utory such under the cannot be construed to TCPA Chapter sert under 12 from those rooted encompass filing pen- Serafine’s of her lis let equity, in common law or alone exclude (and, extension, dens notice the lawsuit statutory from the claims definition. notice) gives Legis- of which it because action,” rather, “legal definition lature, view, made con- their the same categories all apply to of these of claims. Chapter duct under 12 of the actionable Further confirmation intent Code, Remedies at least Civil Practice and 27.010, provi found section TCPA’s “fraudulently.” when done The Blunts exempts “legal sion that certain actions” construing pro- reason that coverage.129 Among from the these Act’s filings tect Serafine’s as an “exercise exemptions “legal founded on actions” petition” would create an irrecon- theories, statutory various different includ Chapter cilable conflict with 12 and de- ing wrongful-death and survival actions130 effect, prive belying other statute of those under legislative protec- “brought intent that the the Insurance TCPA’s broadly. tions extend so 27.010 Code.”131Section thus reflects Legislature’s awareness its definition argument This fails for at rea least two *34 “legal statutory extended action” First, rely sons. the Blunts on a flawed claims to the same extent other kinds. as premise that effect giving to the TCPA as likewise the Legislature’s It demonstrates Chapter their cre claims would specific exempt types decision to certain ate an irreconcilable conflict between statutory (along with com claims certain two statutes. The TCPA would not bar claims) mon-law or the Act equitable from the Blunts’ Chapter claims or alter not The Blunts’ under elements, se, others. claims their substantive per but (and Chapter among are those that were not require ultimately would instead did 27.010, require) “by Legis Blunts to clear establish excluded section and the 27.010(c); § 127. See Tex. Civ. Prac. Rem.Code See id. id. & 130. see also 27.005(c). § (wrongful-death §§ 71.001-.021 and survival statutes). 27.001(6). §Id. 128. 27.010(d). § 131. Id. 129. See id. 27.010. TCPA, written, given petition” be effect.132 to under the

lature’s decision must as (and unless can be shown to be shams be fair- But while this conclusion should then). possibly not even Assuming light ly uncontroversial TCPA’s incorporates litigation TCPA the sham lim- text, for its might the same not be said itation, the require proof limitation would conclusion to a implications. points This of both the absence of any objective merit tension between the TCPA and broader which, subjective and the intent to through harm statutory Chap- remedies like other the collateral combating litigation pro- ter are aimed frivolous or effects of the filings. court These enactments exacting bad-faith cess137—a narrower and more include, examples, to name but a few many statutory standard than of the other Practice and Reme- Chapter 10 of the Civil require.138 remedies And if the did TCPA Code, which authorizes sanctions dies incorporate not litigation the sham limita- filings on court that are frivolous or based tion, it protect would all lawsuits as the for an brought improper purpose;133 petition,” regard- “exercise of the code, 11 of that which restricts Chapter less including shams and' merit — to be brought persons suits declared SLAPPs. litigants;134 Chapter vexatious 14 of the case, In either the net effect would be code, targets which frivolous or malicious that the protects, as the “exercise of recently en- litigation;135 inmate petition,” frivolous or abusive 22.004(c) acted section of the Government lawsuits that actionable or sanc- Code, whereby Legislature mandated tionable under these other statutes and (later adoption promulgated of court rules would correspondingly party’s condition a 91a) facilitating quick Tex.R. P. Civ. pursuit of these remedies on satisfaction of having dismissal of lawsuits “no basis in specific the Act’s “clear and seen, lawsuits, evidence a law or fact.”136 As we have matter, subject prima facie case for each essential ele- regardless of are deemed protected requirement.139 to be the “exercise of the ment” it While seems TGS-NOPEC, (not- legal 340 S.W.3d at 439 other defenses unwarranted or frivo- are lous; ing statutory presumption "Legislature allegations or factual contentions lack care, language support; factual a statute’s in- denials factual conten- chooses unreasonable); cluding purpose, id. each word chosen for a tions unwarranted omitting (authorizing purposefully while not 14.003 dismissal of inmate words cho- M.N., (citing claims if court finds that claim is frivolous or sen” In re malicious, false, (Tex.2008))). allegation poverty false); affidavit or unsworn declaration is 133. See Tex. Civ. Prac. & Rem.Code (authorizing Tex.R. 91a to dis- Civ. P. court §§ 10.001-.006. allegations miss of action if made cause sought). would not entitle claimant to relief 11.001-, §§ 134. See id. noted, previously 139.As the TCPA’s broad *35 §§ 135. See id. 14.001-.014. "legal seemingly definition of action” would encompass seeking actions or motions these 22.004(g); § 136. See Tex. Gov’t Code Tex.R. remedies, the extent can to be considered P. 91a. Civ. “legal equitable supra to seek or relief.” See pp. Similarly, 10-11. as confirmed the Investors, Real Estate Professional section, analysis "legal in the next the action” 60-61, U.S. at 113 S.Ct. 1920. on, would deemed to be "based relatefd] be See, to, (i.e., e.g., response Tex. Civ. Prac. & Rem.Code or in to” Serafine’s lawsuit 10.001(1) (authorizing right petition”) sanctions if evidence the "exercise of the to be- cause, minimum, pleading brought "legal action” establishes that or motion at a the claims, defenses, "improper purpose"; predicated relief on that lawsuit. seek Would en- any petition” recent Texas to that surprising right rather the definition (if all) a law that in actually would enact most claims filed Legislature compasses not deeming it lawsuit abuse—even protects “legal and a action” definition court all) (if to of our most tantamount the exercise encompasses not similarly most constitutional liberties —courts cherished court, pre- in the filed the effect of claims give language required effect follows vailing construction that the Court Legislature used. has only “legal action” requiring here — injury predicated alleged relief seek (a) 27.011 Perhaps subsection of section claim, opposing “exercise from a/k/a intended to this sort of result. is head off petition” to make right again, provision, That instructs courts —is in a weapon available as tactical TCPA “abrogate the Act so as not to construe litigants vast number instances when defense, immuni- any remedy, lessen other competing against one anoth- provides law assert claims ty, privilege” that external against er, “legal the class of actions” least for the who files its party provides remedy.140 Act But while In just as Serafine did here. claims first — (a) others, ensure that context, subsection would seem to the recent observa- this displace does other reme- the TCPA not “It quite apt: of Justice Field is tion may possess against that the movant dies fig- could litigator seems that skilled that the mo- “legal a non-movant’s action” way ure out a to file a motion to dismiss it targets, it is whether or how tion unclear case, every in in nearly under limit the the “exercise of breadth of hope only that the will not [claim] petition” on which the motion dismissed, but that the movant will also be predicated. could be attorney’s he awarded fees.”141 And as

added, consequences such facto los- de—a III. regime summary disposi- tied er-pays tions, discovery— presumptively with no ON, TO, IS “IS BASED RELATES OR litigation practice general civil “turn[s] IN RESPONSE TO” PRESENTS on its head.”142 ADDITIONAL VEXING ISSUES I to add to obser- regret Justice Field’s FOR AND LITIGANTS COURTS may wording vations that the TCPA’s ac- judicial At risk of “exer- overdoing based tually support construction of “is (which speech” cise of of free (to on, to, or is in response relates to” probably also “exercise of the metaphor his would cause again) borrow and the petition” “exercise of the litigation’s head The reasons spin. civil if association” those definitions are read begin Legis- with the that the for this fact isolation), I will conclude with two sets of on, lature did not define “is based relates meaning observations regarding to, response In or is to” the TCPA. on, implications of “is based the TCPA’s statutory the absence definitions of require- relates or is in to” response phrases, generally terms and courts are ment and the it here. application Court’s First, “ordinary” mean- apply when combined with an “exercise of their “common” or 142. Id. 140. See Tex. & Rem. Code Civ. Prac. 27.011(a). *36 Neyland, *12

141. See WL 2015 J., (Field, concurring).

391 What, then, dictionary reflected in ing, may such as is the role of the two re- standard, definitions,143 maining components of the remaining mindful that “re- while to” “in response lates and to”? The Legis- may context further inform that mean- phrased lature the three components of ing.144 disjunctive the standard based —“is Applying analysis, ordinary this on, to, relates or is in response to”—and on” would denote a meaning of “is based normally presume we would these counterclaim the Blunts that has Seraf- alternatives were not intended to be re- a “main pendens ine’s lawsuit or lis as another, dundancies of one but that each part.”145' ingredient” “fundamental have meaning some distinct and ef- with the use of This is also consistent Act’s fect.147 ordinary meaning of “relates 27.006, requir- the word “based” section connection, to” would denote some sort of ing that trial courts “shall consider the reference, or relationship,148while “in re- pleadings supporting opposing and af- sponse to” would denote some sort of an- stating fidavits on which the lia- term, swer or other act in facts return.149 Each bility or is based.”146 But it can defined, so sweeping would have impact defense meaning also be observed that of when applied competing claims in litiga- obviously “based” or “is based on” corre- tion. The ordinary meaning “legal of a sponds prevailing to the construction that action” that “relates to” the “exercise of giving Texas courts have been petition” in the form of a on, phrase “is based relates or is lawsuit would encompass, among other whole, response focusing claims, to” on the as arising those from the same “trans- underlying “legal lawsuit, factual bases action.” action or occurrence” as the like Traxler, (n.) principle,” 143. See 376 S.W.3d at 747 & n. 25 "base” as "fundamental "un- (describing supreme derlying ingredient” as "cardinal law” court's concept” "fundamental constituent”); preference relying meaning on "common and "chief see also Black’s Dic- (10th ed.2014) Legislature" tionary (defining of words chose unless "base” (v.) meaning acquired by “leg- (something) technical thing has been as "to use as from (citing, something developed”). islative definition or otherwise” which else is others, 311.011(a); among Tex. Gov’t Code Boerne, City City 27.006(a) San Antonio 146. Tex. Civ. Prac. & Rem.Code (Tex.2003))); (con- added). see id. also (emphasis sulting dictionary” "a well-known to discern meanings common TGS-NOPEC, "transmission” and (not- 340 S.W.3d at 439 "distribution”). ing statutory presumption "Legislature care, language chooses statute’s in- TGS-NOPEC, cluding purpose, See 340 S.W.3d at 441 each word chosen for ("Language interpreted apart purposefully omitting cannot be from while words not cho- Jaster, context.”); M.N., 802). (citing see also 438 S.W.3d at 566 sen” In re 262 S.W.3d at (concluding that context confirmed common "action”); meanings "plaintiff” City (defining 148. See Webster's at 1916 "relate” Bates, (Tex. reference”); Houston v. relationship: as "to be in to have 2013) (considering meaning common Heritage (defining American at 1482 "relate” together Legislature's connection, relation, context to determine have as "to or refer- statute). regarding scope ence”). intent Dictionary (defining 145. See Webster’s Third New "re- Int’l 149. See Webster’s at 1935 (2002) (n.) (defining something sponse” saying "base” “main "act as or action of return, answer”); ingredient,” part making "fundamental of some an American thing”); Heritage Dictionaiy Heritage (defining "response” The American at 1496 as "an (2011) answer"). English Language (defining *37 392 may of That much be chilling speech. counterclaims.150 The ordi-

compulsory of to” meaning response suggested by proviso would section 27.007’s for nary “[i]n still, seemingly broadly findings” more includ- sweep “regarding “additional whether ing any counterclaim competing or other was deter legal brought action or party or claim that another sub- moving defensive prevent party exercising from case, asserts.151 In either “is sequently for rights brought and is an constitutional on, to, response related or is in to” based harass improper purpose, including to or would, considerably collectively, extend unnecessary delay or to increase cause 152 beyond prevailing farther even the Texas litigation.” perhaps Or cost of construction. Legislature intended no substantive dis- terms component tinction between hand, provisions

On the other other generally all. courts are to avoid While may suggest within the TCPA somewhat redundancies, statutes to construing create construction of the “relates to” narrower Supreme recog- the Texas Court has also response components. and “is in to” Per- nized that “there times when redun- intent “relates to” in haps the of or “is Legislature precisely dancies are what the response merely capture any to” is “le- gal subjective goal actions” that have the intended.”153 court, underlying "the 150. See Tex.R. Civ. P. 97. is that defendant's act plaintiff's of cause action must have itself Supreme 151. Also instructive is the California been an act in furtherance of the of analysis counterpart Court’s that state’s petition speech.” Cal.Rptr.2d or free 124 Id. on, provision to the TCPA’s "is based relates 519, original). (emphasis at 701 52 P.3d to,” response solely is in which refers or Thus, court, view of in the the California person arising cause action "[a] .plaintiff's cause of action does not "arise ” expressive activity protected by from expression protected merely from” because it Cashman, City See that statute. Cotati v. 29 upon underlying the same is based controver 69, 519, 695, Cal.Rptr.2d Cal.4th 124 52 P.3d sy subsequent or another lawsuit was filed (2002) (construing Cal.Civ.Proc.Code Cal.Rptr.2d Id. to such a lawsuit. 124 added). 425.16(b)(1)) (emphasis Summar- otherwise, 52 P.3d at 700-03. Were it from,” izing "arising the construction of observed, effectively any court counterclaim explained: court has subject responsive pleading other would point plaintiff’s the critical is whether the statute, potential dismissal under the which cause of itself was based on act in action an it deemed an "absurd that the result” state’s peti- furtherance of the defendant’s legislature presumably did not intend. Id. speech. tion or free A defendant meets this Cal.Rptr.2d 124 52 P.3d at 700. by demonstrating burden that the act un- analysis imply This that a statute derlying plaintiff’s cause fits one having components beyond additional "aris- 425.16, categories spelled out in section on,” ing under” or "based which it viewed as (e) statutory subdivision definitions of [the might equivalent, competing well extend to rights]. "acts furtherance of” those arising merely claims from the same contro- (internal omitted) quotations citations Id. versy merely prior responding to a or those original). (emphasis Consequently, the claim. subjective e.g., plaintiff's to chill or intent — punish expression in a manner characteristic 152. Civ. Prac. & 27.007. Tex. Rem.Code simply paradigm of the SLAPP irrelevant —is analysis, solely which focuses on the Nash, Estate S.W.3d In re underlying factual bases the claim than rather (Tex.2007) id.; (citing City Georgetown, In re asserting the claimant’s motives in it. See ("The (Tex.2001) only (”[T]he Cal.Rptr.2d rea- P.3d at 699 statute, explanations for redundancies ... sonable anti-]SLAPP construed accordance Legislature plain incorporates repeated is that the itself out of an language, with its in caution, emphasis, pleading proof requirement.”). abundance of tent-to-chill both.”)). corollary, according Another to the California *38 (and may suggest- opinions alternative be in memorandum another this Court Still or head- foregoing head-turning cases156) ed has in issued some other TCPA is implications applying a “is spinning where, here, that as a “legal action” “is on, to, or in to” response based relates is on, to, based response relates is in to” require that is construed to standard (whatever mean) phrase may that both factual, merely procedural, temporal re- expression protected by the Act and other lationships competing between claims. unprotected activity, “legal action” is Perhaps implications all of these should subject only to dismissal to the extent it that ultimately be deemed “absurd results” on, to, “is based relates or is in response Legislature possibly could not have conduct, protected to” the opposed as to intended, have such that courts must es- being subject to dismissal in entirety. its appear chew what would otherwise to be is a significant holding This that should be on, construction of the textual “is based emphasized, as should the fact that it finds to, response conjunc- to” in relates or is support in at least three features of the expansive tion with the TCPA’s definitions TCPA’s text. and thé “legal action” “exercise petition.”154 As for what first is the TCPA defines “legal meaning operative of these terms would subject action”—that which is to dismiss- event, I point out that some expansively al—both and variously, pre- as courts in other states have construed simi- noted, viously referring to everything from apply only lar laws for similar reasons to an entire action or proceeding particular the conventional against understanding facts that underlie a claim or cause of litigation.155 SLAPP action.157 This nomenclature contemplates drawing only of distinctions not be-

IV. claims, tween but also between factual the- THIS COURT HAS CORRECTLY ories, as here. THE “MIXED DECIDED CLAIM” ISSUE Adding support further to this construc overarching purposes tion are the dual Implicit holdings regard- in the Court’s ing Legislature the Blunts’ tortious-interference claim that has declared the See, (not e.g., Entergy, tioning plaintiff 282 S.W.3d at 437 activities” and not "where a ing general statutory genuinely seeking construction rules damages files suit relief for enforcing language apply plain “unless alleged intentionally, for the defamation or produce the statute as written would absurd defendants”); acts of tortious see also Dura Foods, (citing Fleming results 6 S.W.3d at Corp. Corp., v. Holmes Prods. 427 Mass. craft 284)); Rockwall, City 246 S.W.3d at 626 156, 935, (1998) (constru 691 N.E.2d 941-44 (same); Cnty. also see T.C.R. v. Bell Dist. ing "based on” standard in Massachusetts Attorney’s Office, 305 S.W.3d 671-72 require "anti-SLAPP” law to that movant (Tex.App. Austin.2009, (declining pet.) — show "that the claims it are on' ‘based "second-guess” Legislature’s policy judgment petitioning activities alone and have no principle); under "absurd-results” J. Woodfin substantial basis other than or in addition to Jones, Principle The Absurd-Results Statu activities”). petitioning Texas, tory Litig. Construction in 15 Rev. (1996) (discussing history principle). of *10; Neyland, WL Sheffield, 2014 WL at *4. Kuecker, 155. See Sandholm v. 356 Ill.Dec. (2012) (holding 962 N.E.2d on, 157. See Tex. Civ. & Rem.Code response relates Prac. "based or is Jaster, 27.001(6); applies "only see also 438 S.W.3d at to” standard identical to TCPA’s solely peti- to actions based on the 563-71. [movant’s] record, all Blunts could have avoided “encourage and safe serve: entanglement TCPA had rights persons the constitutional guard (or claim simply repleaded) their freely, freely, pleaded speak associate petition, complain exclusively so participate government Serafine’s and otherwise *39 Although law, alleged the does threats. TCPA permitted by at the maximum extent se, remedy, per repleading not mention a time, rights of a protect the same ju longstanding principles these of Texas to file lawsuits for demonstrable person meritorious injury risprudence, of which courts must assume purpose Neither is .”158 aware,160 was nonetheless Legislature by holding wholly that a claim advanced is counsel a construction of merely it subject to dismissal because presumptive mandate TCPA that would on, to, “is relates or is partly based be merely dismissal of an entire claim protected expression response to” under in underpinnings might cause its factual purposes Act. Nor these be allegation implicates clude' one that even holding that the served converse Construing the Act protections. Act’s Act it wholly beyond merely claim is subject Blunts’ claim to dis make the on, is in response based relates “is only missal to the extent on Seraf- based activity. The unprotected to” some lawsuit, subject to ine’s and otherwise not gives effect to both Court’s construction dismissal, consistent effectu is with and statutory purposes proper within the ates principles. these established applications. of their sphere respective supporting The third this con reason CONCLUSION long is that it is consistent with struction standing principles Texas cases presents The difficult issues of not be based merely should dismissed broadly impact statutory construction that readily that are curable. pleading defects operation not sound of our civil only the Where, for it is that a example, asserted justice sometimes-compet- but the system, plead claimant has facts failed sufficient ing rights Texans was that the statute jurisdiction invoke a trial court’s or to expressly intended to balance and recon- to constitute plead cogni facts sufficient my expressed cile. have As concerns action, long far, zable cause of Texas law has sway failed I can Court thus generous in permitting been claimant only justice that some of the Texas hope replead, granting only dismissal if the Supreme might listening be and find Court opportunity claimant unable after to do this of some in this or writing assistance or the is incurable.159 begin- so defect another the TCPA cases that are better, I ning Blunts’ tortious-interference counterclaim to crowd its docket. Even Legislature an presents analogous hope situation —on this would Texas jurisdic- affirmatively Tex. Civ. not lack of Prac. & Rem.Code 27.002. demonstrate tion). Barefield, 159. See Parker v. 206 S.W.3d (Tex.2006) curiam) (if Caverns, (per Belvieu LLC v. Texas trial court 160.See Mont grants special Quality, exception for failure to state a Comm'n on Envtl. 382 S.W.3d curable, (noting (Tex.App. pet.) cause of action and defect is trial — Austin statutory pleader opportunity presumption in court must allow amend); Miranda, construction (not- "Legislature background at aware was ing plaintiff (citing opportu- be law acted with reference to it” should afforded Acker, 301)). nity pleadings pleadings amend where do pro- it could tive intent that listening, eluding because has been might Judi- cial Branch. vide, TCPA, the clearest by amending expression any legisla- most direct notes 8-9 and 276, 281, (Tex.App.— 283-84 text. 2014, pet. granted); Beaumont Rio Grande H20, 309776, *3; WL 2014 at Sierra Club v. 27.006(a) 48. Tex. Civ. Prac. & Rem.Code 711, (Tex. Cnty., Andrews 716-17 added). (emphasis 2013, filed); App. pet. Lipsky, Paso In re — El 542; Larrea, 411 at S.W.3d Avila v. 49. See Combined Law Ass'ns Enforcement 646, 650, 2012, (Tex.App. S.W.3d 03-13-00105-CV, — Dallas Sheffield, Tex. v. No. denied). pet. 411672, 31, (Tex.App. WL at *5 Jan. — Austin filed) pet. (looking to whether See, *5; e.g., Kinney, 2014 WL “communications ... that Sheffield [the Avila, 394 S.W.3d at 655. plaintiff alleges nonmovant] be defam atory fall within the TCPA's definition of the 12.002, association”); Kinney, §§ exercise of the 51. See Tex.- Civ. Prac. Rem.Code .003(a)(8), (similarly focusing 2014 WL at *5 .006. The Blunts asserted addi- alleged on the communications that were tional counterclaims that Serafine did not defamatory challenge Specifically, tortious and whether those in her motion. qualified sought attorney's as the “exercise of the freedom of Blunts fees made available accord, Calkins, speech"); e.g., James v. pleaded under two statutes that Serafine had (1) (Tex.App. her [1st as bases for own claims for relief: — Houston filed); Krantz, Code, pet. Young chapter Property trespass- Dist.] 16 of the response “exer to,” to” her or is to” Serafine’s response or are “in “relate by filing petition,” cise of Court petition” “exercise of prevailing notice. pendens appears apply and related lis the so-far con her lawsuit not, any other significantly, assert that the Blunts’ coun She did struction conclude