## IN THE SUPREME COURT O F TEX AS

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 J U S T I C E G U Z M A N , joined by J U S T I C E D E V I N E and J U S T I C E B R O W N , concur ring

. I n this dispute betwee n an aptly repr esente d commerc ial tenant and landlord, the Court holds that a tenant at suffe ranc e is a trespasse r, which satisfies the predic ate tort require ment of a tortious interfe renc e claim. But beca use the rule the Court announce s today also impacts residential tenants, many of whom are “ordina ry working families , wi t h o u t the resour ces for leg al counsel,” I write separ ately to expound in a more nuance d manner the heig htened proof require d to support a tortious interfe renc e claim. Under the Court’s holding, such tenants will now po t en tially be require d to 1 defe nd ag ainst acti o n s for trespass and tortious interfe renc e. I mportantly , in fac ing a tortious interfe renc e claim, tenants are exposed not only to damag es traditionally rec og nized under landlordBr ief of Amicus Curiae Texas Housing J ustice L eag ue, Coinmach C o r p . v. Aspenwood 1 Apartment Corp ., No. 11-0213 a t 5 (Tex. May 10, 2012).tenant law—that i s , rent or lost profits and proper ty damag e—but also to heig htened emotional distress or exemplary

damag es. The Texas Housing J ustice L eag ue, in its amicus brief, voices particula r conce rn that this “tortifica tion” of landlord-tena nt law could subject residential tenants, suc h a s those left in a proper ty afte r fore closure, to excessive liabili t y . I n an eff ort to assuag e these conce rns, the Court today 2 clar ifies that althoug h it holds a tenant at sufferanc e is a trespasse r, this holding does not expose innocent tenants to liability for additional tort damag es, such as when tenants rema in in possession under a g ood faith belief that they are entitled to do so. __ S.W .3d __, __. But the Court’s opinion only implicitl y acknow ledg es similar limit ations with respec t to liabili ty arising out of a claim for tortious interfer ence . See id. at __. For this rea son, I write separ ately to emphasize that in a claim for tortious interfe renc e, which may seek mo re than actua l damag es, the landlord must satisfy a g rea ter burden of proof: it must prove the tenant at suffe ranc e specifically intended to interfe re with the l andlord’s re l ati onship or contra ct with the prospec tive lessee. I f a valid court order obtained in g ood faith g rants a tenant at suffe ranc e the rig ht to possess proper ty , the order will g ener ally demonstrate the tenant’s lack of the heig htened intent nec essar y to support a claim for

more than a ctual dama g es. I. Background As the Court observe s, the parties in t h i s case have been litigating issues surrounding possession for well over a deca de. __ S.W .3d at __. Thoug h the Court ultimately conclude s that as

Id. at 4. 2 2a tenant at s uffe ranc e, C oinmach is a trespasser and may be held liable in tort for actual damag es,

it is undisputed that over many y ear s Coinmach maintained possession of the premises pursuant to court order s rende red in its favor by various Har ris County courts. Be g inning in 1994, afte r

rec eiving written notice from Aspenwood to vacate the premises, Coinmach filed a writ of ree ntry 3 action in the J ustice Court o f Harris County and was awa rded the rig ht to possession. I n the subsequent forc i b l e en t ry and detainer actions Aspenwood filed in 1994 and 1996, Coinmach simil arly obtained order s g ranting it the rig ht to immediate possession of the premises. Finally , in 1999 afte r Aspenwood remove d Coinmach’s laundry machines from the premises, Coinmach ag ain filed for and successfully obtained a writ of reentry g ranting it immediate pos session. Thus, for a signific ant porti on of t his litigation, by asser ting its rig ht to possession of t he property , Coinmach

was a cting under c ourt order s. 4 Aspenwood first raised its tortious interfe renc e cl ai m s i n 1998, filing the instant suit in district court. 349 S.W .3d 621, 627–28. After near ly a deca de of protrac ted litigation, the trial court found Coinmach was a “tena nt at suffe ranc e as a matter of law.” Id

. at 629. Coinmach subsequently filed a motion for summary judgme nt on Aspenwood’ s tortious int er fe re n ce claims, arg uing that

At the time, Coinmac h was doing business under the name of Solon Automated Service s, 3 I nc. Aspenwood maintains that Coinm ac h “m ade a false repr esenta tion of a rig ht to proper ty 4 which it did not have, for the purpose of inducing [t he Har ris County courts] to allow Coinmach to rema in in possession” of the premises. As explained in Pa rt I I I , infra , if Aspenwood ultimately proves this alleg ation, the prior order s in favor of Coinmach’s immediate possession would not act to neg ate the specific intent to interfe re. S u ch protec tions would nece ssarily only be available to tenants who proc ured suc h court orde rs in g ood faith. 3beca

use it was a tenant at suffe ranc e and had a possessory interest in the proper ty , its conduct could
not have been tortious. Id

. The trial court ag re ed, finding that “Coinmach cannot have tortiously interfe red with [Aspenwood’ s] prospec tive contra ctual rela tions because it was exercising its own lawful rig hts of possession and that there is no independe nt tort which is a require d predic ate to such claim[.] ” Id

. at 630 (first altera tion in orig inal). But the court of appea ls reve rsed, concluding that

as a tenant at suffe ranc e Coinmach had no possessory interest and thus was not entitled to judgme nt

as a m at t er of law with respe ct to Aspenwood’ s claims for tortious interfe renc e. Id

. at 638–39. Today , we aff

irm the court o f ap p eals’ judgme nt reve rsing and rema nding Aspenwood’ s tortious interfe renc e claims beca

use trespass is an independe ntly tortious or wrong ful act. __ S.W .3d at __.

II. Tortious In ter ference As the Court notes, to establish a cause of ac tion for tortious interfer ence with prospective business rela tions the pl aintiff mus t show: (1) th er e was a rea sonable probability that the pl aintiff would have enter ed into a business rela tionship with a third party ; (2) the defe ndant either acte d with a conscious desire to preve nt the relationship from occur ring or knewthe interfe renc e wa s cer tain

or substantially cer

tain to occur as a result of the conduct; (3 ) t h e d ef endant’s conduct was independe ntly tortious or unlawful; (4) the interfe renc e proxi mately cause d the plaintiff injury ; and (5) the pla intiff suffe red a ctual dama g e or loss as a result. __ S.W .3d at __; see W al-Mart Stores, In c. v. Sturges , 52 S.W .3d 711, 713 (Tex. 2001); Bradford v. Vento , 48 S.W .3d 749, 757 (T ex . 2001). The Court corr ectly conclude s that “Coinmach was and rema ined a trespasse r from the time Aspenwood fi rst sent a notice to vaca te until Coinmach vacated the premises six y ear s later.”

__

4S.W .3d at __. And, beca use trespass is an independe ntly tortious or wrong ful act that may potentially support a claim f o r to r ti o u s in te r f ere nce with prospec tive business rela tions, the trial court

nece ssarily err ed in g ranting Coinmach’s motion for summary judgme nt on the basis that there was

no independe nt tort—a nece ssary predic ate to a to rt ious interfe renc e claim. Id. I mportantly , the Court’s holding nece ssarily means that a plaintiff who raises a claim for tortious interfe renc e ag ainst
a tena nt at suffe ranc e will near ly alway s satisfy

the pre dicate tor

t require ment. But the rela tive ease with which a landlord may prove the predic ate tort re q u irement in a tortious interfe renc e claim ag ainst a tenant at suffe ranc e does not diminis h its high hurdle of proving specific , heig htened intent. As explained below, a tenant who maintains possession in go o d faith pursuant to a va lid court order will ty pically lack this heig htened intent. III. Intent to Interfere To sustain a claim for tortious interfe renc e with prospec tive business rela tions, the plaintiff must de monstrate that the tenant at suffe ranc e, by maintaining possession of the premises at issue,
acte d with an intent to interfe re with the prospec tive contra ct b et we en t he landlord and the prospec tive l es s ee .

_

_ S.W .3d at __; see also Bradford , 48 S.W .3d at 757 (finding no tortious interfe renc e in the absenc e of intent t o h ar m t h e plaintiff’s business rela tions). This Court has explained that interfe renc e is intentional “‘if the actor desires to bring it about or if he knows that the interfe renc e is cer

tain or substantially cer

tain to occur as a result.’” Bradford , 48 S.W .3d at 757 (quoting R E S T A T E M E N T (S E C O N D ) O F T O R T S § 766B cmt. d (1979))

. We further rea soned that “‘[i] f [t he actor ] had no desire to eff ectua te the interfe renc e by his action but knew that it would be a mere incidental result of conduct he was eng ag ing in for another purpose, the interfe renc e may be found

5to be not improper.’ ” Id. (quoting R E S T A T E M E N T (S E C O N D ) O F T O R T S § 766B cmt. d (1979))

(alter ations in orig inal); see also Baty v. ProTech In s . Agenc y , 63 S.W .3d 841, 861 (Tex. App.—Houston [14t h Dist.] 2001, pet. denied) (“Me re participa tion in the transac tion is not sufficie nt to establish an intentional action to harm [the plaintiff].”). Acc ording ly , in Bradford we declined to find that the defe ndant’s statements to police during

a criminal trespass i n v es t i gation constituted leg ally sufficie nt evidenc e of intent to harm the plaintiff’s prospec tive business rela tions with customers. 48 S.W .3d at 758. I nstead, the plaintiff’s inability to do business with customers was mere ly an incidental result of the defe ndant’s eff orts to end t h e p re s en t disturbance and protec t proper ty

. Id. Simi larly , when a tenant at suffe ranc e exercises a rig ht of possession pursuant to a court order , the landlord’s inability to lease the premises
to others is nece ssarily “a mere incidental result of conduct [t he tenant] was eng ag ing in for another purpose” —that is, for the purpose of exercising its court-sa nctioned rig ht to possession. Id

. at 757. Under such circumstances, a defe ndant’s g ood faith belief in its rig ht to possess the proper ty premised on court order s will likely prec lude a plaintiff from establishing the heig htened intent

nece ssary to support a claim for

tortious interfer ence . 5 I n the prese nt case , Coinmach rema ined in possession of the premises pursuant to favor able
court order s obtained in the course of litigation. Under most circ umstances, this would almost

Of course , a tenant at suffe ranc e may have a g ood faith belief in its rig ht to possession even 5 in the absenc e of court order s. Under these circ umstances, the landlord still car ries the heavy burden of proving the tenant specific ally intended to i n t erf ere with the landlord’s potential business rela tions. Bradford , 48 S.W .3d at 757–58. The tenant’s mere intent to maintain possession will not sustain a claim for

tortious interfer ence . 6cer

tainly demonstrate a tenant lacke d the specific intent to interfe re. But here it is unclea r whether Coinmach’s possession under these court order s was in g ood faith. I ndeed, Aspenwood has put forth

some evidenc e that Coinmach may have procured t h es e court order s throug h fra ud. For one, to obtain a writ of ree ntry Coinmach prese nted a sworn aff idavit to the justice court that relied on the lease ag ree ment but omitt ed any mention of t he lease’s ex press provision that it was “ subordinate to any mortg ag e or de ed of trust on the premises.” Aspenwood has also prese nted s ome evidence reg arding the dang erously poor condition of Coinmach’s equipment and arg ues t h at the same aff idavi t fa l s ely claimed the equipment was functional. Thus, summary judgme nt in favor of Coinmach on Aspenwood’ s tortious interfe renc e claim is not possible beca use there is a rema ining fac t issue as to whether

Coinmach procur ed the c ourt order s throug h fra ud. 6 IV. Conclusion Although I join the Court’s opinion, I am mindful of the implications of the holding to residential tenants, particu l ar l y those with limit ed resour ces. Despite the Court’s assura nces that “innoce nt” trespasse rs—a term that includes those who rema in on premises pursuant to valid court order s—will only be held liable for actua l damag es sustained, in a claim for tortious interfe renc e it is po s s i b l e that a tenant at suffe ranc e may be held liable for far more than actua l damag es. A

succe ssful plaintiff may

potentially

rec over e motional dist ress a nd exemplary

damag es. For this rea son, the Court’s rema nd on Aspenwood’ s tortious interfe renc e claim should not be read so broadly as t o extend liability for these additional damag es t o tenants at suffe ranc e who

The exis tence of fra

ud is a question ty

pically left to the trier of fac t. Quinn v. Dupree , 303 6 S.W .2d 769, 774 (Tex. 1957). 7rema in on premises in g ood faith relianc e on previously obtained cour t orders. B eca

use the Court does not rea ch discussion of this issue with respe ct to Aspenwood’ s t o rt ious interfe renc e claim, I respe ctfully

concur .

____________________________________ Eva M. Guzman J ustice

OP INION DELIVERED: November 22, 2013

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