Full opinion text
OPINION David Puryear, Justice We withdraw the opinion, concurring opinion, and judgment dated May 1, 2015, and substitute the following opinion, concurring opinion, and judgment in their place. We deny appellant’s motion for rehearing. Mary Louise Serafine appeals from an interlocutory order denying a motion to dismiss brought under Chapter 27 of the Texas Civil Practice and Remedies Code. See generally Tex. Civ. Prac. & Rem.Code §§ 27.001-.011. Serafine and appellees Alexander and Ashley Blunt are next-door neighbors. Serafine sued the Blunts for various claims related to a property dispute. The Blunts filed counterclaims against Serafine, which she sought to dismiss under Chapter 27. We will reverse in part the trial court’s order denying the motion to dismiss and will dismiss the Blunts’ counterclaims to the extent that they assert claims based on Serafine’s filing of the underlying lawsuit and a lis pendens. We will affirm in part the trial court’s order, based on our conclusion that the Blunts’ counterclaim for tortious interference with contract may proceed to the extent that it is based on allegations of threatening conduct by Serafine outside of the filing of the underlying lawsuit and lis pendens. We will remand the case for further proceedings consistent with this opinion, including consideration by the trial court of an award under Section 27.009 of costs and fees relating to the motion to dismiss. See id. § 27.009. BACKGROUND The underlying lawsuit arose from a property dispute between Serafine and the Blunts. Serafine’s claims against the Blunts are based on her allegations that (1) the Blunts tore down a chain-link fence that had marked the boundary between her property and their property for 35 years and then erected a new wooden fence that encroached upon her property, and (2) the Blunts trespassed upon and damaged her land by digging a trench on or immediately adjacent to her land and by installing a drainage system that will destroy the lateral support of her land. Ser-afine asserted claims for trespass to try title, trespass, nuisance, negligence, and fraud by nondisclosure, and sought declaratory and injunctive relief, in addition to damages and attorneys’ fees. The Blunts answered Serafine’s suit and also filed counterclaims, asserting that Serafine tor-tiously interfered with their contract with the drainage and foundation company and that Serafine violated Chapter 12 of the Texas Civil Practice and Remedies Code by fraudulently filing a lis pendens in the Travis County Real Property Records. Serafine moved to dismiss the Blunts’ counterclaims under Chapter 27. See id. § 27.003. The Blunts filed a response and included' supporting affidavit evidence. See id. § 27.006(a). Neither side sought discovery. See id. § 27.006(b). The trial court conducted a hearing, see id. § 27.004, at which Alexander Blunt testified. After considering the motion, pleadings, evidence, and arguments presented by counsel, the trial court denied the motion. See id. § 27.006(a). This appeal followed. ANALYSIS Statutory overview Chapter 27, also known as the Texas Citizens Participation Act, is an anti-SLAPP statute. See In re Lipsky, 411 S.W.3d 530, 536 n. 1 (Tex.App. —Fort Worth 2013, orig. proceeding) (“Lipsky I”), mand. denied, 460 S.W.3d 579 (Tex.2015) (“Lipsky II ”). “SLAPP” is an acronym for “Strategic Lawsuits Against Pub lic Participation.” Id. The purpose of the Act is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem.Code § 27.002. The Act is to “be construed liberally to effectuate its purpose and intent fully,” but it “does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.” Id. § 27.011. The Act provides a mechanism for early dismissal of suits based on a party’s exercise of the right of free speech, the right to petition, or the right of association. Id. § 27.003. Section 27.003 allows a litigant to seek dismissal of a “legal action” that is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Id. § 27.003(a). A “ ‘legal action’ means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” Id. § 27.001(6). “Exercise of the right to petition” includes “a communication in or pertaining to ... a judicial proceeding.” Id. § 27.001(4)(A)(i). “‘Communication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). The Act imposes the initial burden on the movant to establish by a preponderance of the evidence “that the legal action is based on, relates to, or is in response to the party’s exercise of ... the right to petition.” Id. § 27.005(b). The Act then shifts the burden to the nonmovant, allowing the nonmovant to avoid dismissal only by “establishing] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). When determining whether to dismiss the legal action, the court must consider “the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). The court may allow specified and limited discovery relevant to the motion on a showing of good cause, but otherwise all discovery in the legal action is suspended until the court has ruled on the motion to dismiss. Id. §§ 27.003, .006(b). Standard of review We review de novo questions of statutory construction. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). We consider de novo the legal question of whether the movant has established by a preponderance of the evidence that the challenged legal action is covered under the Act. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725 (Tex.App.—Houston [14th Dist.] 2013, pet. denied), disapproved on other grounds by Lipsky II, 460 S.W.3d at 586, 587. We also review de novo a trial court’s determination of whether a non-movant has presented clear and specific evidence establishing a prima facie case for each essential element of the challenged claims. Id. at 726. A prima facie standard generally “requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (orig.proceeding) (internal quotation marks and citation omitted); see, e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in Chapter 27 case and explaining that Legislature’s use of “prima facie case” implies imposition of minimal factual burden). “Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue. In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party.” Rehak, 404 S.W.3d at 726 (citation omitted); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex.2008) (per curiam) (explaining that summary-judgment movant’s presentation of prima facie evidence of deed’s validity established his right to summary judgment unless nonmovants presented evidence raising fact issue related to validity). “Conclusory statements are not probative and accordingly will not suffice to establish a prima facie case.” Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (citing In re E.I. DuPont, 136 S.W.3d at 223-34); see also Lipsky II, 460 S.W.3d at 592 (explaining that “bare, baseless opinions” are not “a sufficient substitute for the clear and specific evidence required to establish a prima facie case” under the Act). The Act does not define “clear and specific” evidence; consequently, we give these terms their ordinary meaning. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). “Clear” means “free from doubt,” “sure,” or “ unambiguous.” Black’s Law Dictionary 307 (10th ed.2014); Lipsky II, 460 S.W.3d at 590 (approving this definition of “clear”); see also Webster’s Third New Int’l Dictionary 419 (2002) (“easily understood,” “without obscurity or ambiguity,” “easy to perceive or determine with certainty”). “Specific” means “explicit” or “relating to a particular named thing.” Black’s Law Dictionary, at 1616; Lipsky II, 460 S.W.3d at 590 (approving this definition of “specific”); see also Webster’s Third New Int’l Dictionary, at 2187 (“being peculiar to the thing or relation in question,” “characterized by precise formulation or accurate restriction,” or “free from such ambiguity as results from careless lack of precision or from omission of pertinent matter”). We conclude that the term “clear and specific evidence” refers to the quality of evidence required to establish a prima facie case, while the term “prima facie case” refers to the amount of evidence required to satisfy the nonmovant’s minimal factual burden. See Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *10 (Tex.App.—Austin Jan. 31, 2014, pet. denied) (mem.op.). Thus, if we determine that Serafine carried her initial burden to prove that the Blunts’ counterclaims are covered by the Act, we must determine whether the Blunts marshaled the minimum quantum of “clear and specific evidence” necessary to support a rational inference establishing each essential element of their counterclaims. Issues on appeal Serafine contends that the trial court erred by denying her motion to dismiss because the Act applies and the Blunts failed to establish a prima facie case for their claims of tortious interference with contract and filing of a fraudulent lis pen-dens. She also contends that the trial court erred by failing to award her attorneys’ fees. Jurisdiction over interlocutory appeal As a preliminary matter, we must address whether we have jurisdiction over this interlocutory appeal. The Blunts filed a motion to dismiss for want of jurisdiction and also asserted as an issue in their brief that this Court lacks jurisdiction. The Blunts contend that the Act does not expressly authorize an interlocutory appeal when the trial court issues a timely ruling denying the motion to dismiss; they assert that an interlocutory appeal is authorized only when the trial court either grants the motion or fails to rule, resulting in the motion’s being overruled by operation of law under the statute. See Tex. Civ. Prac. & Rem.Code § 27.008. The Blunts relied on a decision from the Fort Worth Court of Appeals supporting their interpretation of the statute. See Jennings v. Wall-Builder Presentations, Inc., 378 S.W.3d 519, 528-29 (Tex.App.—Fort Worth 2012, pet. denied) (finding no jurisdiction over order denying motion). This Court has determined, however, that regardless of the meaning of the original statute, the Act as amended in 2013 and a corollary revision to Chapter 51 of the Civil Practice and Remedies Code together confer jurisdiction over appeals such as this one in which the trial court expressly denied the motion to dismiss. See Kinney v. BCG Att’y Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3-4 (Tex.App.—Austin Apr. 11, 2014, pet. denied) (mem. op.); Combined Laxo Enforcement Ass’n of Tex., 2014 WL 411672, at *4; see also Tex. Civ. Prac. & Rem.Code § 51.014(a)(12) (expressly providing for interlocutory appeal of trial court’s denial of motion to dismiss filed under the Act); Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 4, 2013 Tex. Gen. Laws 2499, 2500 (amending Section 51.014(a)(12)). We also have determined that the amendment applies retroactively to interlocutory appeals like this one that were filed before the amendment’s effective date. See Kinney, 2014 WL 1432012, at *3-4. Based on the reasoning in Kinney, we deny the Blunts’ motion to dismiss for want of jurisdiction and proceed to consider the remaining issues raised on appeal. Exercise of the right to petition The Act imposes the initial burden on Serafine, as the movant, to establish by a preponderance of the evidence that the Blunts’ counterclaims against her are based on, relate to, or are in response to her exercise of the right to petition. See Tex. Civ. Prac. & Rem.Code § 27.005(b). When the trial court denied Serafine’s motion to dismiss, it did not expressly determine whether Serafine met this burden. Whether Serafine met her burden is a legal question that we review de novo on appeal. See Rehak, 404 S.W.3d at 725. Serafine contends that she established that the Blunts filed their counterclaims in response to her exercise of her right to petition, i.e., in response to her filing suit against them, because the two counterclaims on their face complained of her filing of the lawsuit and her filing of the lis pendens notice based on her claims related to the property boundary. In her motion to dismiss, Serafine asserted that the Blunts’ counterclaims on their face were based on Serafine’s exercise of her right to petition because they were “solely about her lawsuit, and not about the facts giving rise to the lawsuit.” Serafine provided no other evidence to support this allegation in her motion, instead relying solely on the pleadings in the suit. See Tex. Civ. Prac. & Rem.Code § 27.006(a). In the Blunts’ response to Serafine’s motion to dismiss, they asserted that their counterclaims were not brought “to impinge her right to petition.” They argued that their tortious-interference counterclaim was not based solely on Serafine’s filing of the lawsuit, but also on her harassing and threatening conduct before and after the lawsuit. They further argued that Serafine incorrectly argued that a lis pendens cannot serve as the basis for a fraudulent-lien claim. On appeal, the Blunts assert that Serafine did not meet her burden because she failed to provide an affidavit or live testimony to show that their counterclaims were filed in response to her exercise of her right to petition. Under Section 27.006 of the Act, the trial court may consider pleadings as evidence. Id. § 27.006(a). The Act does not require Serafine to present testimony or other evidence to satisfy her evidentiary burden. See Rio Grande H20 Guardian v. Robert Muller Family P’ship Ltd., No. 04-13-00441-CV, 2014 WL 309776, at *3 (Tex.App.— San Antonio Jan. 29, 2014, no pet.) (mem.op.) (deciding challenged legal action related to exercise of right to petition based on consideration of pleadings as evidence), disapproved on other grounds by Lipsky II, 460 S.W.3d at 587. The Blunts asserted in their tortious-interference counterclaim that “Serafine willfully and intentionally interfered with that contract [with the drainage and foundation company] through threats and the filing of this lawsuit.” (Emphasis added.) They asserted in their fraudulent-lien counterclaim that Serafine knew that the lis pendens she had filed “in relation to this case” was not supported by any valid interest in the Blunts’ property. All that the Act requires is that the challenged legal action be “based on, relate[ ] to, or is in response to” the movant’s exercise of the right to petition. Tex. Civ. Prac. & Rem.Code § 27.003(a). We conclude, based on the facts alleged in the Blunts’ pleadings and in response to Serafine’s motion, that the Blunts’ tortious-interference counterclaim is in part based on, related to, or in response to Serafine’s filing of the suit and that their fraudulent-lien counterclaim is based on, related to, or in response to Serafine’s filing of the lis pendens, both of which filings are exercises of Serafine’s “right to petition” as the Act defines that term. See Lipsky I, 411 S.W.3d at 541-42 (determining that nonmovant’s claims were based on movants’ exercise of their right to petition based on facts alleged in non-movant’s pleadings); see also Tex. Civ. Prac. & Rem.Code § 27.001(4)(A)(i) (“ ‘Exercise of the right to petition’ means ... a communication in or pertaining to: ... a judicial proceeding.”); James v. Calkins, 446 S.W.3d 135, 147-48 (Tex.App.—Houston [1st Dist.] 2014, pet. filed) (concluding that fraudulent-lien claim based on filing of lis pendens was “communication in of pertaining to a judicial proceeding”). However, to the extent that the Blunts’ tortious-interference counterclaim is based in part on Serafine’s alleged threats made outside the context of the lawsuit, Serafine has not satisfied her initial burden to show that these portions of the Blunts’ counterclaims are subject to the Act. Accordingly, we affirm in part the trial court’s order denying Serafine’s motion to dismiss the tor-tious-interference counterclaim, and we will remand the cause for consideration of the Blunts’ tortious-interference counterclaim to the extent that it is based on Serafine’s alleged harassing and threatening conduct outside the context of the lawsuit. Evidence supporting the Blunts’ counterclaims Having determined that Serafine satisfied her initial burden to show that the Blunts’ legal action is in part subject to the Act, we turn now to the second step in the analysis — determining whether the Blunts presented clear and specific evidence that established a prima facie case for each essential element of the challenged claims. See Tex. Civ. Prac. & Rem. Code § 27.005(c); see also Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex.App.—Dallas 2013, pet. denied). Serafine contends that the Blunts failed to respond to her motion with clear and specific evidence establishing a prima facie case for each essential element of their counterclaims as required to avoid ■dismissal under the Act. The Blunts respond that they established a prima facie case for each of their counterclaims with clear and specific evidence. We will first consider the evidence that they presented in support of their counterclaim for tor-tious interference with contract. The elements of that claim are “(1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiffs injury, and (4) caused actual damages or loss.” Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). The Blunts asserted that they had a valid contract with a drainage and foundation company to install a pump-and-drain system on the Blunts’ property and that Serafine interfered with that contract by harassing and threatening the company’s employees while they worked on the Blunts’ property both before and after she filed the lawsuit. In addition, they alleged that Serafine attempted to stall the project and threatened litigation against the company’s owner. The Blunts contend that Serafine’s conduct resulted in the drainage and foundation company deciding not to continue the contracted-for work and instead providing an alternative, less desirable solution to their drainage issues. They also assert that Serafine’s conduct caused them to pay more for the work. Serafine argues that the Blunts’ evidence is too vague-and conclusory to support a prima facie case for each element of this claim. We agree with Serafine to the extent that the Blunts’ counterclaim is based on her filing of the lawsuit. Alexander Blunt’s affidavit, which the Blunts presented in response to Serafine’s motion, states that he “hired Austin Drainage & Landscape Development to professionally install a pump and drain system.” He also testified at the hearing that he had hired Austin Drainage to resolve a drainage problem that was causing water to gather under his house. He explained that Austin Drainage was going to install French drains around the property and against the border of his house that would tie into a sump pump that would pump the water out to a pop-out valve so it would flow down into the street. These statements indicate a possible contract, but Mr. Blunt did not provide detail about the specific terms of the contract or attach to his affidavit any contract or other document memorializing any agreement between the Blunts and the drainage company about the scope of work to be done. See John Moore Servs., 441 S.W.3d at 361 (concluding that nonmovant did not present clear and specific evidence of contracts or their terms to establish prima facie case for contract element of tortious-interference claim). Mr. Blunt’s testimony was not clear and specific enough to support a rational inference that a valid contract existed between the parties. See id.; see also BH DFW, 402 S.W.3d at 310-11 (concluding that nonmov-ant did not establish contract element of tortious-interference claim because it did not establish meeting of minds between it and movant about contract terms); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 532 (Tex.App.—Fort Worth 2009, pet. denied) (determining that general statement that contracts with customers existed was insufficient to maintain tortious-interference-with-contract claim when affidavit neither provided detail about specific terms of contracts nor attached any contract to serve as exemplar). Thus, the Blunts failed to establish a prima facie case for this essential element of their claim. This testimony was also insufficient to establish that Serafine, by filing suit, knowingly induced the drainage company to breach its obligations under the contract. See John Paul Mitchell Sys. v. Randalls Food Mkts., Inc., 17 S.W.3d 721, 730 (Tex.App.—Austin 2000, pet. denied) (explaining that to satisfy element of willful and intentional act of interference, party must be more than willing participant; it must knowingly induce breach by contracting party). To maintain their claim, the Blunts were required to provide clear and specific evidence that some obligatory provision of the contract was breached. See All Am. Tel., 291 S.W.3d at 532 (holding conclusory testimony about existence of contracts insufficient to establish that obligatory provision of contract was breached); see also ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997) (explaining that “inducing a contract obligor to do what it has a right to do is not actionable interference”). The Blunts have not done so here. Although Mr. Blunt testified that the drainage company’s lawyers would not allow the company to finish the work while the lawsuit was active, without evidence of the contract’s terms, this does not establish a breach by the company. Mr. Blunt further testified that the “work-around” performed by the company meant that 30 percent of his property line has no French drain or drainage protection and that “it’s about anywhere froin 60 to 70 percent optimization.” Without evidence of any contract terms, Mr. Blunt’s testimony does not establish that the “work-around” constituted a breach of an obligatory contract provision or that the company had not retained the right to perform a “work-around” if unforeseen problems arose in the course of the work. Similarly, Mr. Blunt testified that the project was delayed for months, but offered no clear and specific evidence about when the project started or of a contract provision specifying that a failure to meet some agreed-upon completion date would constitute a breach of the contract. Mr. Blunt also testified that the work “still cost me about $12,000,” and that this was more than he originally contracted for because the drainage company “had to do additional work for the work-around.” Other than this conclusory statement, the Blunts offered no evidence about the original price terms that they had agreed upon with the drainage company. Without evidence that the drainage company breached the contract by charging more for additional work, this testimony too is insufficient under the “clear and specific” eviden-tiary standard to establish a prima facie case of a breach. Without more specificity about the terms of the Blunts’ agreement with the drainage company, the Blunts cannot establish what provisions, if any, Serafine’s filing of the lawsuit interfered with. Moreover, without more information establishing the existence of a valid contract, the Blunts cannot establish actual damages. We conclude that the Blunts have not produced the minimum quantum of clear and specific evidence necessary to establish a prima facie case of tortious interference with contract to the extent that their counterclaim is based on Seraf-ine’s filing of the lawsuit. We next consider whether the Blunts established a prima facie case for each element of their fraudulent-lien counterclaim. To establish this claim, the Blunts must show by clear and specific evidence that Serafine (1) made, presented or used the lis pendens with knowledge that it was a fraudulent lien; (2) intended the document to be given the same legal effect as a court document evidencing a valid lien, claim, or interest in the Blunts’ property; and (3) intended to cause financial injury to the Blunts. See Tex. Civ. Prac. & Rem.Code § 12.002(a); Brewer v. Green Lizard Holdings, L.L.C. Series SR, 406 S.W.3d 399, 403-04 (Tex.App.—Fort Worth 2013, no pet.). Serafine asserts that her lis pendens notice was filed in accordance with Section 12.007 of the Texas Property Code, which allows a party to a lawsuit involving title to real property to file notice that the lawsuit is pending with the county clerk in the county where the property is located. See Tex. Prop. Code § 12.007. The Blunts rely on an incomplete chain of correspondence that they assert establishes Serafine’s knowledge that her claims against their property are not valid. In June 2008, approximately four years before Serafine filed her suit, she wrote a letter to the Blunts related to the property boundary. This letter is not in the record. In a letter they described as a response to Serafine’s letter, the Blunts characterized her letter as “claiming outright ownership of part of our back yard and fence, later explained in conversation under the clause of ‘adverse possession.’ ” The Blunts’ letter continues, explaining the Blunts’ position that the fence at issue is entirely within their property boundary, based on a 1994 survey. Serafine’s response letter states in its entirety: “Dear Neighbors, I have received your letter of June 23, which was a response to my letter of June 5. Without admitting the correctness of your specific assertions, I retract the claims and demands in my June 5 letter.” (Emphasis added.) Without Serafine’s original letter, it is not clear exactly what part of the property boundary she was disputing in 2008. In her brief, Serafine asserts that her claims in the current suit include a claim related to a strip of land along the parties’ front yards, which would not have been covered by the correspondence in 2008. More importantly, regardless of the parameters of the 2008 dispute, Serafine specifically stated that she was not agreeing with the Blunts’ position regarding the property boundary. Her decision not to press her claim at that time does not mean that she filed the lis pendens notice of this suit with knowledge that her claims are not valid. The 2008 correspondence does not constitute clear and specific evidence of knowledge of a fraudulent claim. The Blunts asserted without supporting evidence that Serafine filed the allegedly fraudulent lis pendens with intent that it be given the same legal effect as a valid claim. The Blunts acknowledged in their response to the motion to dismiss that they did not have evidence of Serafíne’s intent to cause the Blunts financial injury, but they argued that her intention was clear. With no evidence of these two essential elements of their fraudulent-lien claim, we conclude that the Blunts failed to establish a prima facie case of a fraudulent lien. Having determined that the Blunts’ counterclaims are in part subject to the Act and that they failed to establish (1) a prima facie case of tortious interference with contract to the extent this claim was based on Serafíne’s filing suit and (2) a prima facie case of fraudulent lien, we conclude that the trial court erred' by denying Serafine’s motion to dismiss. We sustain in part Serafine’s sole point of error on appeal, reverse in part the trial court’s order denying the motion to dismiss, and dismiss both the Blunts’ counterclaim for tortious interference with contract to the extent this claim is based on Serafine’s filing of the lawsuit and their counterclaim for fraudulent lien. Attorneys’ fees Serafine requests that if we reverse the trial court’s order, we remand the case to the trial court for consideration of an award of relief under Section 27.009. Section 27.009 provides that if the court orders dismissal of a legal action under the Act, the court shall award the movant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action-as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.” Tex. Civ. Prac. & Rem.Code § 27.009(a). Accordingly, we remand the case to the trial court for the court to consider an award under Section 27.009. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998) (explaining that reasonableness and necessity of attorneys’ fees are generally issues for the factfinder and matters of equity and justice are left to trial court’s discretion and are matters of law). CONCLUSION We have determined that the trial court did not err by failing to dismiss the Blunts’ counterclaim for tortious interference with contract to the extent that the claim is based on Serafine’s allegedly threatening conduct outside the context of this lawsuit, and we affirm the judgment in this respect. We have also determined that the trial court erred by denying Ser-afine’s motion to dismiss (1) the Blunts’ tortious-interference counterclaim to the extent that it is based on her filing of this lawsuit and (2) their counterclaim for fraudulent lien. Accordingly, we reverse the trial court’s order in these respects. We remand the cause to the trial court for further proceedings consistent with our resolution of these issues on interlocutory appeal. Concurring Opinion by Justice Pemberton . The concurrence here and a recent concurrence by Justice Field in Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155, at *11-12 (Tex.App.—Austin Apr. 7, 2015, no pet. h.) (mem.op.) (Field, J., concurring), articulate valid concerns over the breadth of the Texas Citizens Participation Act. We are neither unaware of nor unsympathetic to those concerns, but for reasons explained here and acknowledged in the concurrence, we must construe this Act according to the plain meaning of the words chosen by the Legislature. As written, the Act and its expansive definitions provide little, if any, textual support for limiting its application to more weighty matters of public concern than those exhibited in the neighborhood tussle between Serafine and the Blunts. . "Conclusory” means "[e]xpressing a factual inference without stating the underlying facts on which the inference is based.” Black's Law Dictionaiy 351 (10th ed.2014). . The Texas Supreme Court recently noted that an interlocutory appeal is "clearly the appropriate remedy going forward,” but it did not address the issue of whether the amendment retroactively applies. See In re Lipsky, 460 S.W.3d 579, 585 n. 2 (Tex.2015) (“Lipsky II"). . Blunt attached e-mail correspondence with the drainage company’s owner to the affidavit to show that the drainage company’s attorneys had advised the owner to stop work on the project after Serafine filed her suit. The correspondence includes a reference to a "Suggested Revised Scope of Work” that lists a number of steps, but it does not explain how the steps differ from the original project design, except to indicate that the disputed side of the property can be retrofitted later. There is no explanation about how the recommended changes affect any previously agreed-upon cost of the project or any previously agreed-upon completion date and no testimony that the drainage company ultimately completed the work according to the "Suggested Revised Scope of Work."
Bob Pemberton, Justice, concurring. The concurring opinion dated May 1, 2015, is withdrawn, and this opinion is substituted in its place. Although I join in the Court’s judgment, I am compelled to add a few additional observations regarding the ramifications of the Texas Citizens Participation Act (TCPA) — our state’s so-called “anti-SLAPP” law — as demonstrated by this case. Perhaps the most obvious take-away point is that the TCPA is less an “anti-SLAPP” law than an across-the-board game-changer in Texas civil litigation if a lawsuit like Serafine’s — which arises from a boundary dispute and personality conflicts between neighboring homeowners— is elevated to the status of the “exercise of the right to petition” protected by the Act and unremarkable defensive measures like the Blunts assert are made subject to dismissal as “legal actions” “based on, relate[d] to, or ... in response to” that “exercise.” I also write separately to emphasize the difficulty of navigating the TCPA’s current text and the far-reaching issues that this otherwise straightforward case raises under the statute. Although the Court correctly resolves these questions, at least implicitly, the required analysis of the statutory text is far more complex than it acknowledges, and I differ with some aspects of its reasoning. I. THE “ELEPHANT IN THE ROOM”: AS WRITTEN, THE TCPA IS, AT BEST, A VASTLY OVERBROAD “ANTI-SLAPP” LAW If one examines the Texas Legislature’s recorded deliberations preceding its 2011 enactment of the TCPA, two facts about the statute’s origins are readily apparent— (1) the measure was pushed by media interests, but (2) the paramount professed policy goal cited by proponents was to protect ordinary Texans from abusive “SLAPP” litigation. A “SLAPP” (“Strategic Lawsuit Against Public Participation”) refers, generally speaking, to a meritless lawsuit that is aimed at deterring members of the public — through intimidation, expense, distraction, -or other collateral impacts of the litigation process in itself — from advocating governmental action on some issue of public concern. The concept is thus similar and somewhat parallel to the “sham litigation” doctrine that has evolved in First Amendment jurisprudence. The United States Supreme Court has long held that the First Amendment right to petition government for redress of grievances encompasses a right of access to the courts, but it has also cautioned that the right to petition does not protect mere “sham” petitioning, that which is “ ‘not genuinely aimed at procuring favorable governmental action’ at all” but instead seeks to use “the governmental 'process [,] as opposed to the outcome of that process,” to harass, increase costs for, or otherwise harm a rival as an end in itself. In the context of litigation, the Supreme Court has refined the concept into a two-part analysis for determining whether a lawsuit amounts to sham petitioning: (1) the lawsuit must be “objectively baseless,” i.e., “no reasonable litigant could realistically expect success on the merits”; and (2) only in the event “the challenged litigation is objectively meritless,” the court determines whether the baseless lawsuit conceals an attempt to harm a rival directly through the process itself as opposed to the outcome. In the case of a SLAPP suit, the harm intended by the baseless litigation is the suppression of the sorts of expressive activities that are the essence of self-government. A SLAPP suit thus represents an especially pernicious species of lawsuit abuse— already an abiding concern of recent Texas Legislatures — that not only burdens the civil justice system and private rights, but also threatens free expression and political participation. It is thus perhaps unsurprising that the Legislature passed the TCPA with nary an opposing vote in either chamber. But despite all the hue and cry about SLAPP suits and their evils reflected in the TCPA’s legislative history, the text of the Act itself makes no explicit mention of SLAPPs, nor of any related concept like sham litigation. And, as the Texas Supreme Court has repeatedly instructed lower courts, we are to rely upon the statutory text the Legislature actually used, not extrinsic legislative history or other possible indicia of what legislators might have meant subjectively, as our paramount guide to the “legislative intent” we are to ascertain and follow faithfully. The TCPA is codified in chapter 27 of the Civil Practice and Remedies Code and, in section 27.002, the Legislature provided the following general statement of its intent in enacting the chapter: The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The Legislature gave further guidance to courts in section 27.011 of the TCPA, titled “Construction.” Subsection (b) of section 27.011 states that the Act “shall be construed liberally to effectuate its purpose and intent fully.” Read in conjunction with section 27.002, this mandate would refer to a dual duty on the part of courts to “liberally construe” the statute both to “encourage and safeguard the constitutional rights” protected by the statute and “protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Subsection (a) of section 27.011 also states that the TCPA “does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case or common law or rule provisions.” Read in context, the intent of this provision would presumably be to preserve “any other defense, remedy, immunity, or privilege” that external law provides for attacking “legal actions” against which the TCPA provides a remedy. The specific means by which the Legislature sought to accomplish the TCPA’s stated purposes was to provide a new set of procedural mechanisms through which a litigant may require, by motion, a threshold testing of the merits of legal proceedings or filings that are deemed to implicate the expressive interests protected by the statute, with the remedies of expedited dismissal, cost-shifting, and sanctions for any found wanting. The TCPA identifies the class of proceedings and filings subject to such motions as having the following three characteristics or elements: • A “legal action ...” «... that “is based on, relates to, or is in response to ...” «... the movant’s “exercise of the right of free speech, right to petition, or right of association.” The movant seeking dismissal under the TCPA has the initial burden to establish each of these elements “by a preponderance of the evidence.” The Act is rather murky regarding the factual aspects of this “preponderance of the evidence” inquiry and how appellate courts are to review any such determinations by trial courts. What can be said with greater certainty, however, is that construction of the statutory language — a question of law that courts review de novo — would be integral to, if not frequently determinative of, the overall analysis. A “legal action,” the first element that a movant must prove, is defined elsewhere in the TCPA to mean “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” This definition is both expansive and varied, referring to an entire action or proceeding (“láwsuit”); particular pleading instruments and claims for relief (“petition, complaint, cross-claim, or counterclaim,” plus the catch-all of “any other judicial pleading or filing that requests legal or equitable relief’); and also “cause of action,” which generally denotes particular facts that would entitle a person to seek some form of legal or equitable relief. Further, as some of our sister courts have observed, “legal action” would facially encompass even motions, such as those seeking summary judgment or sanctions, at least to the extent that relief would be considered “legal or equitable relief.” By the same logic, even dismissal motions asserted under the TCPA itself would qualify as “legal actions,” if dismissal with cost-shifting and sanctions can be considered “legal or equitable relief.” Accordingly, it should perhaps come as no surprise that at least one clever litigant has already tried to use a TCPA dismissal motion to obtain dismissal of an opponent’s previously filed TCPA dismissal motion. The breadth of this “legal action” definition is checked somewhat by section 27.010 of the TCPA, which excepts a few categories of “legal actions” from the Act based on their subject matter. For example, section 27.010 exempts “legal actions” seeking recovery for “bodily injury” from the Act, along with “statements made regarding that legal action.” None of section 27.010’s exceptions are directly implicated by this case, but it speaks volumes about the range of “legal actions” subject to dismissal under this “anti-SLAPP” law that the TCPA’s drafters perceived a need to explicitly carve out money-damages suits arising from car wrecks, slip-and-falls, and the like. As for the “exercise of the right of free speech, right to petition, or right of association,” these terms correspond to the “constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government” that section 27.002 indicates the TCPA as a whole is intended to “encourage and safeguard.” But while these rights each have content and meaning derived from constitutional text and longstanding interpretive jurisprudence, the Legislature has nonetheless seen fit to provide explicit “definitions” of conduct that qualifies as the “exercise of’ each right for TCPA purposes. “Exercise of the right of association” as defined in the TCPA “means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” “Exercise of the right of free speech,” in turn, “means a communication made in connection with a matter of public concern,” and “matter of public concern” is itself defined to “include[ ] an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.” Of more immediate relevance to this case is the TCPA’s definition of the “exercise of the right to petition”: “Exercise of the right to petition” means any of the following: (A) a communication in or pertaining to: (i) a judicial proceeding; (ii) an official proceeding, other than a judicial proceeding, to administer the law; (iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government; (iv) a legislative proceeding, including a proceeding of a legislative committee; (v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity; (vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue; (vii) a proceeding of the governing body of any political subdivision of this state; (viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or (ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting; (B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; (D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and (E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state. A “communication” — the act that distinguishes “the exercise of’ each of the rights within each of their respective definitions — is defined in the TCPA to “includ[ej the making or submitting of a statement or document, in any form or medium, including oral, visual, written, audiovisual, or electronic.” As for the required relationship between a “legal action” as defined in the Act and the “exercise of the right to petition,” “speech,” or “assembly” as defined in the Act, “is based on, relates to, or is in response to” is not similarly defined, nor are any of the component terms. However, some possible hints as to the intended meaning of this undefined provision can be found in other portions of the TCPA. Section 27.006 of the TCPA, titled “Evidence,” instructs that “[i]n determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” The same provision also affords trial courts discretion to permit discovery (which the Act generally prohibits while a dismissal motion is pending) that is “specific and limited [and] relevant to the motion,” implying that trial courts may consider additional evidence and issues beyond “the pleadings and ... affidavits stating the facts on which the liability or defense is based.” Then, in section 27.007, titled “Additional Findings,” the Act provides that the mov-ant may, upon motion, require a court deciding a dismissal motion to “issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.” Section 27.007 is the closest the TCPA comes to mentioning SLAPPs explicitly, contemplating that trial courts will hear evidence and make findings as to whether a “legal action” has been asserted with the sorts of subjective aims characteristic of that type of litigation abuse. But by referring to these issues in terms of “additional” findings that courts consider upon motion, section 27.007 would seem to imply that these issues are not a normal or required part of the court’s inquiry when deciding dismissal motions generally. The focus of that general or default inquiry would instead seem to be that contemplated by section 27.006 — “the facts on which the liability or defense is based.” This view of the “is based on, relates to, or is in response to” element is generally consistent with the manner in which Texas appellate courts, including this Court, have construed and applied it (although, as with many other issues presented by the Act, the Texas Supreme Court has yet to speak). These courts have uniformly deemed it sufficient that a challenged “legal action” seeks relief predicated on alleged injury from some communication that can be said to fall within the TCPA’s definitions of the “exercise of the right to petition,” speech, or association. That is, the focus has been solely on the factual allegations underlying the challenged “legal action” and whether they correspond to one of the Act’s definitions of protected conduct, with no consideration of a party’s subjective aims in asserting the “legal action.” A common application of this analysis — perhaps the most common — has been to hold (often almost automatically) that a defamation claim (which by definition complains of some oral or written statement that will frequently fall within the Act’s “exercise of the right of free speech” definition) is, for that reason alone, a “legal-action” that “is based on, relates to, or is in response to” that protected conduct.- In her dismissal motion, Serafine asserted that the Blunts’ counterclaims seeking (1) damages under a tortious-interference theory and (2) damages and attorney’s fees under Chapter 12 of the Civil Practice and Remedies Code are each “based on,” “relate to,” or are “in response to” her “exercise of the right of petition” by filing her lawsuit and related lis pendens notice. She did not, significantly, assert any other form of the “exercise of the* right to petition” as a basis for her motion, nor any purported “exercise of the “right of association” or “exercise of the right of free speech.” Serafine’s claims for appellate relief must stand or fall solely on the limited theories she did assert, as the Court recognizes. " The Court correctly holds that the challenged counterclaims are each a “legal action” — the Act’s broad definition of that term explicitly includes counterclaims, after all. I also agree with the Court’s conclusion that Serafine’s lawsuit and related lis pendens notice qualify as the “exercise of the right to petition” under the TCPA as a matter of law. However, as I explain in Part II below, this definition is not so broad as the Court’s analysis might imply, nor is construction and application of it so straightforward. As for whether either “legal action” “is based on, relates to, or is in response to” Serafine’s “exercise of the right to petition,” the Court appears to apply the so-far prevailing construction to conclude that the Blunts’ counterclaims under Chapter 12 are “based on, relate[d] to, or [are] in response to” Seraf-ine’s lis pendens filing because they seek relief factually predicated on that filing. It similarly reasons that the Blunts’ tor-tious-interference claim is partly “based on, relates to, or is in response to” Seraf-ine’s lawsuit because the Blunts’ pleadings complain explicitly of the lawsuit as a component of the alleged interference, but that other allegations of interference by threats did not, at least in the posture of this appeal, implicate any activity protected by the Act. In distinguishing between these alternative protected and unprotected factual bases underlying the Blunts’ tortious-interference claim, the Court implicitly resolves, and correctly so, the so-called “mixed-claim” issue under the TCPA, as I explain in Part IV. And because none of the parties have argued or even suggested that “is based on, relates to, or is in response to” could mean anything other than the prevailing view the Court has followed, I am content to do the same here. However, as I explain in Part III, the precise meaning of “is based on, relates to, or is in response to” is best considered yet another open question under the ' TCPA — and a vexing one at that. In light of these conclusions, the district court was required to dismiss the Blunts’ counterclaims under Chapter 12 and, to the extent it complains of Serafine’s lawsuit, their tortious-interference claim unless the Blunts could “establish! ] by clear and specific evidence a prima facie case for each essential element of the claim in question.” This “clear and specific evidence of a prima facie case” standard has created its own set of interpretive difficulties, but the Texas Supreme Court has, fortunately, had the opportunity to give guidance in In re Lipsky, The majority’s analysis here is consistent with Lipsky and, under that standard, I agree that the district court erred in failing to dismiss the Blunts’ Chapter 12 claims and the relevant portion of their tortious interference claim. Thus, I join in the Court’s judgment. But more significant than the judgment itself is what this outcome says about the breadth of the TCPA as written and the statute’s relationship to any perceived or desired objective of combating SLAPP litigation. In terms of achieving any “anti-SLAPP” goal or effect, the TCPA’s framework might be said to, at most, ferret out a range of “legal actions” that are presumed to be SLAPPs by virtue of their subject matter — i.e., those “based on, relating] to, or ... in response to” (in the sense of having as its factual predicate) some sort of “communication” that appears within the definition of the “exercise of the right of free speech,” “exercise of the right to petition,” or “exercise of the right of association” — combined with the inability of the proponent to make the required showing “by clear and specific evidence a prima facie case for each essential element of the claim in question.” In this respect, the TCPA has some similarities to the procedural requirements under the Medical Liability Act, which seek to identify, quickly eliminate, and' deter frivolous lawsuits against health care providers by requiring a plaintiff asserting a “health care liability claim” to serve an “expert report” early in the case sufficient to demonstrate the claim’s potential merit and presumes that failure “ ‘means that the claim is either frivolous, or at best has been brought prematurely.’ ” But while the TCPA might indeed capture some “legal actions” that are truly SLAPPs as conventionally understood, the vastness of the range of “legal actions” that are deemed suspect by this statutory framework and ultimately ex.cised from the civil justice system ensures that the Act will operate arbitrarily in relation to any “anti-SLAPP” goal in many, if not most, of the cases to which it applies. This case is a good illustration. Serafíne has not preserved any contention that the Blunts asserted their counterclaims with the objective of punishing or chilling her exercise of expressive freedoms, as might be characteristic of a SLAPP.. Her argument, rather, is merely to the effect that the TCPA, as written, provides her (however fortuitously) with a tactical advantage that she is entitled to wield in her lawsuit against the Blunts. The Blunts’ sin, in other words, is not that they asserted a “legal action” that anyone contends is truly a SLAPP in the conventional sense, but merely that they pleaded compulsory counterclaims that happened to implicate the TCPA (at least in part) and that they could not overcome the “pri-ma facie case” requirement. Conversely, it is arguably the claims asserted by Serafíne that more closely resemble the SLAPP paradigm, at least if one credits the Blunts’ account of the events preceding her lawsuit. During the hearing on Serafine’s motion, the Blunts presented evidence that Serafíne had a years-long prior history of exhibiting extreme animosity toward their, family, with frequent episodes of vexatious and spiteful behavior. Among other nettlesome conduct, according to Alexander Blunt, Seraf-ine has “basically ke[pt] a 24-hour watch on our property border” and has “harassed me for years” for matters as trifling as his “using leaf blowers.” This pattern of behavior, according to Mr. Blunt, continued and intensified once the Blunts began planning and trying to construct their new drainage system — despite their having made Serafine aware that the work was necessary to eliminate a persistent flooding problem that was damaging the pier- and-beam foundation of their house. “During the installation,” he testified,” Serafíne “continually harassed the employees of Austin Drainage and interfered with their work to the point that Austin Drainage would no longer continue work on the project,” “[o]n a daily basis ... stalked the employees ... and walked the property line to make her presence known,” and “did everything in her power to stall the work.” Mr. Blunt further emphasized that Serafine’s “threats” and related conduct had beguh “well before” she filed suit. Some further illumination regarding the nature of Serafine’s lawsuit may also be found in her live pleadings — alongside her claims based on alleged infringements of her property rights, Serafine airs a litany of grievances against the Blunts that include perceived “surreptitious video taping” of her and “several instances of insult, ridicule, and, [Serafine] believes, marshaling of neighborhood gossip. against [her].” While Serafine’s conduct would' implicate liberty or property interests of the Blunts rather than the free expression that is the TCPA’s focus, this evidence, viewed in the light most favorable to the Blunts, could support a reasonable inference that Seraf-ine’s pattern of conduct toward the Blunts is motivated, at least in part, by the sort of harm-for-harm’s sake animus that is characteristic of SLAPP litigation. Yet it is Serafine’s claims that are exalted and protected as the “exercise of the right to petition” under the TCPA, in derogation of the Blunts’ rights. As a final general observation regarding the TCPA’s impact, the statute, whatever its merits as an “anti-SLAPP” mechanism, has certainly proven itself to be an extraordinarily powerful tool for media defendants to use in combating defamation claims. II. THE TCPA’S “EXERCISE OF THE RIGHT TO PETITION” DEFINITION BROADLY PROTECTS LAWSUITS — POSSIBLY EVEN. FRIVOLOUS LAWSUITS — BUT IT IS STILL NOT AS BROAD AS THE COURT SUGGESTS Echoing Serafine’s arguments, the majority perceives that judicial inquiry as to whether Serafine’s lawsuit and lis pendens qualify as the “exercise of the right to petition” begins and immediately ends with subparagraph (A)(i) of the TCPA’s definition of that term: “a communication in or pertaining to ... a judicial proceeding.”^' This view is not unprecedented among Texas courts of appeals. At least two of our sister courts have reasoned similarly that the filing of a lawsuit or lis pendens notice qualifies as the “exercise of the right to petition” under a straightforward, “plain-meaning” reading of “a communication in or pertaining to ... a judicial proceeding,” with no deeper digging warranted. And additional court of appeals decisions, including some from this Court, have followed a similar analytical approach when construing the TCPA’s definitions of the “exercise of the right of free speech” or the “exercise of the right of association.” While such an approach may at first blush seem justified by unambiguous language within the definitions, some remarkable implications of that analysis should give courts greater pause. If read literally, what would initially seem to be the plain meaning of a “communication in or pertaining to ... a judicial proceeding” (and, in. turn, the “exercise of the right to petition”) would, standing alone, encompass a virtually limitless range of writings and statements related to a court case. Written “communications” “in” a “judicial proceeding” would include, to name but a few examples, cover letters, fax transmittal pages, or vacation letters. Written communications “pertaining” to a judicial proceeding would sweep more broadly still, encompassing even communications directed solely between private parties that happen to refer to some sort of judicial pro