*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
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
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.
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
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
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
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
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.
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
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
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
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,
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