ACCEPTED
03-12-00726-CV
5331799
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/18/2015 11:35:01 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
5/18/2015 11:35:01 PM
JEFFREY D. KYLE
______________________________ Clerk
NO. 03-12-00726-CV
______________________________
MARY LOUISE SERAFINE, Appellant
v.
ALEXANDER BLUNT & ASHLEY BLUNT, Appellees
______________________________
ON APPEAL FROM THE 200TH JUDICIAL DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
CAUSE NUMBER D-1-GN-12-001270
______________________________
APPELLANT’S MOTION FOR REHEARING
RE: ATTORNEY FEES ON REMAND
______________________________
RAY BASS, ATTORNEY
SBN 01884000
120 West 8th Street
Georgetown, Texas 78626
Tel: 512-863-8788
Fax: 512-869-5090
Email:ray@raybass.com
ATTORNEY FOR APPELLANT
STATEMENT OF THE CASE
Appellant sued the Blunts, her next door neighbors,
contending that (1) the Blunts tore down a chain link
fence that for at least 35 years had marked the
boundary between appellant’s property and the Blunt’s
property, and erected a new wooden fence that
encroached upon appellant’s land, and (2) the Blunts
damaged appellant’s land by hiring Scott Lockhart’s
company, Austin Drainage and Foundation, LLC., to dig a
trench on or immediately adjacent to Appellant’s land,
and to install a drainage system that will destroy the
lateral support of her land. In connection with her
trespass to try title suit appellant filed a Notice of
Lis Pendens in the Travis County property records.
The Blunts retaliated with two counterclaims
against appellant which read as follows:
Tortious Interference with Contract: The
Blunts had a valid contract with Austin
Drainage and Foundation, LLC. Serafine
willfully and intentionally interfered with
that contract through threats and the filing of
this lawsuit. Serafine’s interference
proximately caused injury to the Blunts, who
incurred actual damage or loss.
Fraudulent Lien. Serafine has knowledge
that the Lis Pendens she has filed in relation
to this case is not supported by any valid
interest in the Blunts’ property. Serafine
filed the Lis Pendens with the Travis County
Real Property Records with the intention to
cause the Blunts financial injury. Serafine’s
actions violate Chapter 12 of the TEXAS CIVIL
PRACTICE AND REMEDIES CODE.
Pursuant to Section 27.003 of Chapter 27, Civil
Practice And Remedies Code (Texas Citizens
Participation Act) appellant filed a motion to dismiss
the Blunts’ counterclaims. The trial court held a
hearing on and subsequently signed an order denying the
motion. Pursuant to Section 27.008 of the Civil
Practice And Remedies Code, appellant filed this
interlocutory appeal from the trial court’s ruling.
On May 1, 2015, this Court issued a written opinion
in which the court (1) reversed in part the trial
court's order denying appellant’s motion to dismiss,
and dismissed the Blunts' counterclaims to the extent
that they assert claims based on Serafine's filing of
the underlying lawsuit and a lis pendens, (2) affirmed
in part the trial court's order denying appellant’s
motion to dismiss, concluding 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, and (3) remanded the case to the trial court
for further proceedings consistent with the written
opinion, including consideration by the trial court of
an award under Section 27.009 of costs and fees
relating to the motion to dismiss.
In the May 1, 2015, written opinion the Court said
the following (See, Opinion, p. 17):
“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.
Accordingly, we remand the case to the trial
court for the court to consider an award under
Section 27.009. See Combined Law Enforcement
Ass'n of Tex., 2014 WL 411672, at *11
(concluding that Act's fees provisions are not
mandatory)”.
For the reasons stated below appellant requests
the Court to reconsider the suggestion that the award
of attorney fees under 27.009(a) is not mandatory.
GROUNDS FOR REHEARING
THE COURT HAS ERRONEOUSLY SUGGESTED THAT THE AWARD
OF ATTORNEY FEES UNDER 27.009 IS NOT MANDTORY.
Argument & Authorities
Section 27.009 of the Texas Civil Practice and
Remedies Code provides as follows:
Sec. 27.009. DAMAGES AND COSTS. (a) If the
court orders dismissal of a legal action under
this chapter, the court shall award to the
moving party:
(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.
(b) If the court finds that a motion to
dismiss filed under this chapter is frivolous
or solely intended to delay, the court may
award court costs and reasonable attorney's
fees to the responding party.
The Court cites Combined Law Enforcement
Associations of Texas (CLEAT) v. Sheffield (Tex. App. –
Austin # 03-13-00105-CV, 01-31-2014, pet filed) as a
case “concluding that (Section 27.009) fees provisions
are not mandatory”. In that case Sheffield filed a
defamation action against CLEAT who responded with a
27.003 motion to dismiss. The trial court denied the
motion and CLEAT filed an interlocutory appeal. In the
Court of Appeals Sheffield argued, among other things,
that the TCPA violates the “open courts” provision of
the Texas Constitution because the mandatory fees
provisions of Section 27.009 create a financial barrier
that unreasonably impedes his access to the courts. In
dismissing this argument the Court Of Appeals said the
following (See Opinion, p. 18):
“… Sheffield has not shown that fees
awards are mandatory under the TCPA, much less
that they violate the open-courts provision”.
“While the introductory language of
subsection (a) uses the seemingly mandatory
term "shall award," the subsequent language
tempers the conditions for making an award with
discretionary terms like "justice" and "equity"
and "sufficient to deter." Id. A trial court
may decide that justice and equity do not
require that costs, fees, or expenses be
awarded and may determine that no sanctions are
needed to deter the plaintiff from bringing
similar actions. These provisions do not
mandate an award and do not violate the open-
courts guarantees on their face. As no fees
were awarded, the provisions as applied here
did not violate the open-courts provisions”.
Appellant submits that under established rules of
statutory construction, the sketchy analysis employed
in CLEAT v. Sheffield is faulty and has resulted in an
erroneous interpretation of Section 27.009(a).
A court’s primary obligation in construing a
statute is to ascertain and give effect to the
Legislature’s intent. Tex. Gov’t Code § 312.055; 20801,
Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008); Tex.
Dept. Of Prot. & Reg. Servs. V. Mega Child Care, Inc.,
145 S.W.3d 170, 176 (Tex. 2004); Greater Houston
Partnership v. Abbott, 03-11-00130-CV (Tex. App.-Austin
1-31-2013). In determining legislative intent, the
entire statute, not just isolated portions, must be
analyzed. City of San Antonio v. City of Boerne, 111
S.W.3d 22, 25 (Tex. 2003). The objective sought to be
obtained by the statute is relevant to a determination
of legislative intent. Tex. Gov’t Code §
311.023(1),(5). It must be presumed that every word and
phrase of the statute was used for a purpose and no
construction of the statute should render any word or
phrase superfluous or meaningless. Cities of Austin,
Dallas, Ft. Worth & Hereford v. S.W. Bell Tel. Co., 92
S.W.3d 434, 3442 (Tex. 2002); City of Marshall v. City
of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). Energy
Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442 (Tex.
2009).
The objective of anti-SLAPP statutes like Chapter
27 of the Texas Civil Practice and Remedies Code is
discouragement of unmeritorious and vexatious lawsuits
designed to have a chilling effect on certain
constitutional rights, including the right to petition
See, Exxon Mobile Pipeline Company v. Coleman, 05-14-
00188-CV (Tex.App.-Dallas 5-12-2015); American Heritage
Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.
Dallas 2014, no pet.). That objective is thwarted if
the award of costs and reasonable attorney fees to the
ultimately successful movant under Section 27.003 is
not mandatory. Citizens who have no assurance that they
will collect costs and reasonable attorney fees if
successful in challenging an unmeritorious and
vexatious lawsuit will be discouraged from seeking the
relief provided by Section 27.003.
Section 27.009 is divided into two subsections.
Subsection (a), in mandatory terms, provides that the
court “shall award” court costs and reasonable attorney
fees to a successful 27.003 movant. Subsection (b)
provides in discretionary terms that the court “may
award” costs and reasonable attorney fees to the
responding party if a 27.003 motion to dismiss is found
to be frivolous. The Court’s analysis of 27.009(a) in
CLEAT v. Sheffield ignores the contrasting “may award”
language in 27.009(b). If a mandatory award of attorney
fees to a successful 27.003 movant was not intended,
the legislature would not have used the mandatory term
“shall award” in Section 27.009(a) and would have,
instead, used the discretionary term “may award” as
contained in Section 27.009(b).
Of course, the phrase in Subsection (1) of Section
27.009(a), to wit: “as justice and equity may require”
cannot be ignored. Appellant submits that the most
reasonable and harmonious interpretation of Subsection
(1) is that the phrase “as justice and equity may
require” modifies only “other expenses incurred in
defending against the legal action”. In this regard it
is important to note that there is no comma between the
phrase “other expenses incurred in defending against
the legal action” and the phrase “as justice and equity
may require” as there would be if the legislature
intended the phrase “as justice and equity may require”
to modify all three categories of compensation set
forth in Subsection (1). Moreover, “Court costs” is a
definitive category of compensation and “reasonable
attorney fees” are circumscribed by well established
factors such as experience, hours devoted to specific
tasks, and customary charges in the specific locality.
On the other hand, “other expenses” is a less well-
defined term and the decision that a particular expense
other than court costs and attorney fees is best left
to a court’s determination that justice and equity
require reimbursement for that particular expense.
Finally, appellant would point out that attorney
fees are awarded under Section 27.009(a) only after an
adjudication that the 27.003 movant was required to
defend against an insufficiently founded cause of
action. It makes little sense to re-determine in
satellite litigation whether the award of reasonable
attorney fees is “just” and “equitable.” Such a re-
determination will eventually lead to errors of law and
abuses of discretion that will defeat the objective of
the statute.
WHEREFORE, appellant prays that this motion for
rehearing will be granted and that upon said rehearing
the Court will withdraw the suggestion that the award
of court costs, attorney fees, and the imposition of
sanctions under Section 27.009(a) of the Texas Civil
Practice and Remedies Code are not mandatory, and will
remand the case to the trial court with instructions to
award to Appellant court costs and reasonable attorney
fees associated with her efforts to obtain a dismissal
of Appellees’ unmeritorious counterclaims, and to
impose sanctions that are sufficient to deter
appellees from bringing similar actions.
RESPECTFULLY SUBMITTED BY
/s/ Ray Bass
_________________________
RAY BASS, ATTORNEY
SBN 01884000
120 WEST 8TH STREET
GEORGETOWN, TEXAS 78626
TEL: 512-863-8788
FAX: 512-869-5090
Email: ray@raybass.com
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(2) the below signed counsel
for appellant certifies that the foregoing Appellant’s
Brief, excluding the parts listed in Rule 9.4(i)(1),
contains 1841 words less than 4500 words.
/s/ Ray Bass
_____________________________
Ray Bass
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of
Appellant’s Brief has been served via the method
indicated below, to the person(s) noted below on this,
the 16th day of May, 2015.
Doran D. Peters
HAJJAR, SUTHERLAND, &bPETERS, LLP
3144 Bee Cave Road
Austin, Texas 78746
Attorney For Appellees
Via facsimile (512) 637-4958
Via Email dpeters@legalstrategy.com
/s/ Ray Bass
RAY BASS