Wylie Cavin Lillian Cavin And Eagle Radiology, PLLC v. Kristin Abbott and William Abbott , 545 S.W.3d 47 ( 2017 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00395-CV
Wylie Cavin; Lillian Cavin; and Eagle Radiology, PLLC, Appellants
v.
Kristin Abbott and William Abbott, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-16-000201, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
OPINION
This case illustrates that the Texas Citizens Participation Act (TCPA),1 as
written—and, therefore, as the Texas Judiciary must apply it—can be invoked successfully in the
context of litigation arising from family tumult over an adult daughter’s choice of a husband.
Among our holdings, we are compelled to conclude that the TCPA’s protections extend to—and,
ultimately, require dismissal of claims complaining of—statements by the bride’s parents that their
daughter’s suitor won her hand through use of “Marxist” brainwashing, hypnotic implantation of
phobias and false memories, or similar mind-control tactics. (Although the bride’s father
contemporaneously acknowledged that these assertions “sound crazy,” that is no bar to the TCPA’s
application as the statute is written and as the Texas Supreme Court has authoritatively
interpreted it).
1
See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011.
Further, at least in the posture of this appeal, the TCPA also protects, and requires
dismissal of claims concerning, inter alia, stalking by private investigators the parents hired, the
father’s alleged theft of the daughter’s car, and the father’s unfavorable comparison of the husband’s
physical appearance to a “dog’s butt.” But an express exception for bodily-injury claims prevents
this “anti-SLAPP” law from similarly barring an assault claim predicated on an alleged violent attack
by the father upon the daughter.
The district court denied TCPA dismissal under these circumstances and required
the movants to pay attorney’s fees. The net effect of our holdings is that we must affirm the district
court’s order only with respect to the assault claim, dismiss each of the other claims, and remand the
issues of attorney’s fees and sanctions.
BACKGROUND
The TCPA requires us to dismiss most of the couple’s claims despite their
presentation of evidence, attached as exhibits to their pleadings, that potentially would be compelling
before a jury—chiefly, copies of dozens of “smoking gun” texts, emails, letters, and other writings
generated by the parents that reflect an array of often-disturbing acts that form the basis for the
couple’s claims. The parents have not disputed the authenticity of these documents, nor otherwise
opposed their inclusion in the record before the district court. Because these acknowledged words
and deeds provide perhaps the best explanation of the unusual circumstances from which this case
arises, we will draw from them extensively in the following summary.
2
Appellees Kristin and William (Bill) Abbott were married in the fall of 2014. Kristin
is the daughter—and only child—of appellants Wylie and Lillian Cavin.2 As Kristin’s relationship
with Bill progressed toward matrimony, the Cavins voiced strong parental disapproval of their
daughter’s choice of husband and attempted to intervene to prevent the union. At the time the
Cavins asserted this gatekeeper role, Kristin was in her mid-20s, lived in a separate residence, and
had graduated college about four years earlier. In the interim, Kristin had worked at the Public
Utility Commission before leaving in 2013 to pursue a master’s degree in the energy field at the
University of Texas. The Cavins professed to perceive Kristin as uniquely vulnerable due to a
hearing impairment, which requires her to wear hearing aids in both ears. The Cavins had also
retained considerable sway in Kristin’s adult life by continuing to subsidize her education, living
expenses, and a car.
The Cavins’ opposition to the relationship and a corresponding distancing of Kristin
eventually led to a pivotal parent-daughter confrontation in Kristin’s apartment in late February
2014. On that occasion, the parties agree, Kristin pointedly advised her parents that she would
continue pursuing the relationship with Bill despite their wishes. A physical altercation ensued in
which Wylie and Kristin both ended up on the floor, although the parties dispute who roughed up
whom.3 In the incident’s aftermath, the Cavins would send texts accusing Kristin of disloyalty and
2
Given the common surnames, we use first names for ease of reference.
3
According to Kristin’s version, Wylie tackled her to the floor, hurting her tailbone; pinned
her arms above her head, causing further injury; and screamed in her face. The Cavins, in contrast,
claim that Kristin had initiated the violence by grabbing Lillian in an effort to prevent her from
making a phone call, prompting Wylie to restrain Kristin by holding her wrists. The pair ended up
on the floor, Wylie would later aver, because Kristin “lifted her arms into the air as if to slip my grip,
and when that didn’t happen she intentionally fell back to the floor taking me down to the floor with
3
ingratitude toward them, and Lillian by phone accused Bill of “destroying” their family. Wiley also
sent texts to Bill conveying both insults and threats.
With this prologue, Kristin continued to assert her autonomy from her parents during
the weeks and months that followed.4 She went on to marry Bill, as previously indicated, and in the
meantime attempted (with mixed success) to cut off further contact from the Cavins, relocated her
residence from her parent-funded apartment to Bill’s apartment (she professed to fear further
violence from Wylie, who apparently had access), and changed her surname from Cavin to Whitley
(Lillian’s maiden name) even before taking the Abbott surname upon the couple’s marriage a few
weeks later. She also opted to return to work at the PUC after leaving her graduate program, a
departure from prior parentally approved plans to next pursue an MBA at a prestigious university
in another city (the Cavins had placed considerable emphasis on Kristin’s “upward path” toward
becoming an executive in the electric power industry).
Meanwhile, as both a response to and further impetus for Kristin’s assertions of
independence, the Cavins escalated their efforts to disrupt Kristin’s marriage plans and related life
decisions. As reflected in their numerous writings, the Cavins pursued tactics that included hiring
her.” “Feeling it was unsafe to move,” Wylie continued, he remained on the floor while Kristin “was
kicking me in the legs and knees,” until she “calmed down,” whereupon he rose and peacefully left
the apartment. Incidentally, it appears undisputed that Wylie is approximately six inches taller than
Kristin and outweighs her by upwards of sixty pounds.
4
Kristin characterizes the altercation as her break from a longstanding pattern of
intimidation and coercion that the Cavins—chiefly, Wylie—had wielded over her so as to compel
obeisance to their wants and needs at the expense of subverting her own. In that regard, Kristin
alleges that a similar outbreak of violence had occurred during her adolescence. On both occasions,
Kristin claims, Lillian responded by downplaying or denying her trauma and also repeating
insistently, “Does Daddy beat you? Does Daddy beat you?”
4
a private investigator in 2014 to research Bill’s personal history, later using information they
perceived unflattering to disparage Bill to Kristin and others. The Cavins also directed the
investigator to surveil the couple and (as Wylie described it in an email to the investigator) to “rattle”
Bill by making the investigator’s presence known. After an investigator showed up at the PUC in
June 2014, ostensibly to ascertain her welfare on her parents’ behalf, Kristin filed a police report
complaining of the investigator’s “stalking” of her.
The Cavins also continued—contrary to Kristin’s repeated requests and
demands—attempting to contact her via text, email, or in-person confrontations. Among the latter
was an incident on the University of Texas campus in April 2014, when Lillian showed up
unexpectedly following one of Kristin’s graduate-school classes, Kristin attempted to avoid Lillian,
and an ensuing scene resulted in Lillian’s arrest on assault charges.5 Following the arrest, Wylie
confiscated the car that Kristin used for transportation (he claimed to be the rightful owner, although
the Abbotts dispute this), leaving her stranded afoot on the campus. Later that year, the Austin
Police Department would issue a no-contact letter against the Cavins.
The Cavins further attempted to undermine support for the couple’s union through
numerous communications made to members of both their own and Bill’s extended families. They
similarly reached out to numerous friends and acquaintances of both the Cavins and Kristin
individually. Additionally, after learning that Kristin had applied for re-employment at the PUC in
lieu of the MBA program, Wylie wrote a letter to the agency’s human-resources director in March
2014 to advise of the Cavins’ preference that Kristin “continue with her original educational plans.”
5
The charges were later dismissed.
5
Wylie further insinuated that the agency bore some responsibility for the couple’s “unhealthy
relationship” because Bill, who also worked at the agency, had once been placed in a supervisory
position over Kristin there.
Similarly, Lillian, who had persistently demanded that Kristin see a church-based
counselor whom the Cavins had consulted, wrote a counselor whom Kristin had seen, disparaging
Bill and urging the counselor to cooperate in securing a joint session with the Cavins’ preferred
counselor. In this letter, Lillian also emphasized her own qualifications and status as a medical
professional—she is a medical doctor who practices radiology—and utilized the letterhead of the
entity through which she practices, Eagle Radiology, PLLC.
The Cavins’ numerous writings to Kristin, Bill, or third parties conveyed a variety
of concerns and criticisms regarding Bill. Among these, the Cavins insinuated that Bill was seeking
to exploit Kristin for her money6 and otherwise questioned his general worthiness to wed their
beautiful daughter (e.g, Wylie urging Kristin via email that she and Bill “look[] like a beautiful
6
In a similar vein, Wylie, who has a law degree and evidently has prospered in banking and
investments, and Lillian, who as previously indicated is a doctor, looked askance at the professional
accomplishments and status of Bill, a man of comparatively modest means who had spent most of
his early adulthood obtaining three undergraduate degrees (in psychology, chemistry, and economics)
and a masters, purportedly while working part-time, before joining the PUC staff in 2010. As Wylie
expressed this view in one of his texts to Kristin, Bill “has literally done NOTHING,” and the Cavins
further inferred that Bill must also have incurred substantial student debt from his many years of
higher education.
The Cavins were also critical of an age difference (Bill was in his late 30s) and the fact that
(per their investigator) Bill had never previously married. Perceived religious differences were also
mentioned, as was worry that the marriage would impede Kristin’s educational and career prospects
as they saw them (the latter of which came to pass, in the Cavins’ view, with her decision to resume
employment at the PUC).
6
flower next to a pile of dogshit” and that he “could shave a dog’s butt and teach him to walk
backwards and he’d look better than Bill Abbott”).
But the Cavins also advanced a less orthodox parental objection that also served as
an alternative explanation for their daughter’s alienation from them and disregard of their wishes.
They professed an emphatic belief that Bill had a “sociopathic” or “narcissistic” psychological
disorder and that he, aided by an educational background in psychology (one of his undergraduate
degrees), had predatorily used “Marxist tactics,” “re-education,” “brainwashing,” “implant[ing]
thoughts, false memories, and phobias,” or other means of psychological coercion to wield control
over Kristin’s mind and actions. The Cavins similarly deduced, as further explanation for Kristin’s
assertions of autonomy, that Bill had likely installed software enabling him to monitor Kristin’s
email and text communications and that Bill must have been the true author of emails or texts sent
under Kristin’s name. As Wylie acknowledged when explaining these theories to a relative, “If this
is starting to sound crazy, that’s exactly what it is,” but the Cavins purported to believe them
nonetheless.7
By early March 2014, Lillian had shown up at the PUC demanding to see the chief
of staff and insisting that Bill was holding Kristin against her will. The Cavins’ primary theme
7
The Cavins’ writings suggest that this view of Bill had originated in response to Bill’s
perceived reluctance to spend much time with his prospective in-laws, and they also emphasized that
Kristin had purportedly not been fond of Bill initially, even finding him “creepy,” before Bill
eventually won her over. But the Cavins soon began insisting also that their theory of Bill as a
malevolent, mind-controlling sociopath had been validated by their church-based counselor, and they
would similarly come to cite various online resources regarding mind control or abuse in
relationships.
7
thereafter was to the effect that both Bill and Kristin were mentally ill and had an “abusive
relationship” maintained through Bill’s mind-control tactics.
And these communications did not cease even after the couple married. Recurrences
include a lengthy letter from Lillian to several of Kristin’s friends in early 2015 and a March 2015
letter from Wylie to the PUC’s HR director—on the one-year anniversary of his previous
letter—purporting to request assistance in rescuing Kristin from her “abuse,” and again insinuating
that the agency bore some responsibility for placing Bill in a position to (as the Cavins portrayed the
situation) prey on her.
The Abbotts eventually obtained counsel to help resist what they viewed as a
malicious and rather bizarre campaign of harassment and retribution. In April 2015, counsel wrote
Wylie demanding that Wylie retract alleged defamatory statements contained in his March 2015
letter to the PUC.8 The letter also demanded that Wylie return the car that he had confiscated in
April 2014, along with personal items belonging to Kristin that had been inside the vehicle.
Counsel’s letter did not resolve matters. On the contrary, Wylie wrote the PUC a
third time. And the Cavins took aggressive steps against persons they suspected of expressing views
critical of their actions, such as by suggesting that the Cavins themselves could have mental-health
issues or had engaged in abusive, controlling behavior. Complaining of alleged statements to this
effect, the Cavins sued Lillian’s sister, Sandy Whitley, and Sandy’s husband, David Hayes, seeking
$1 million each for defamation.9 In addition, after obtaining through discovery emails between
8
See Tex. Civ. Prac. & Rem. Code § 73.055.
9
See No. D-1-GN-15-002890 (53rd Judicial Dist., Travis Cty.); No. D-1-GN-15-005750
(53rd Judicial Dist., Travis Cty.). The Cavins would later bring a similar suit against Bill, which was
8
Kristin and Sandy referencing advice purportedly provided to Kristin by a psychologist, Lillian wrote
that provider a letter similar to her earlier missive to Kristin’s counselor—again on Eagle Radiology
letterhead and again touting Lillian’s status and qualifications as a medical doctor—disputing any
notion that Lillian herself had mental-health issues and threatening a professional disciplinary
complaint to the extent the professional advised Kristin otherwise. And beginning in late 2015, the
Cavins also began disseminating their “abusive relationship” narrative to the social-media audience,
through a series of videos that Lillian posted online.
In January 2016, the Abbotts filed suit against the Cavins and, in connection with the
two letters written by Lillian to health-care providers, Eagle Radiology (collectively, appellants),
seeking money damages and injunctive relief. In their live petition, the Abbotts assert theories of
defamation (complaining chiefly of appellants’ numerous statements to third parties accusing the
Abbotts of mental illness or “abuse”), conversion (based on Wylie’s confiscation of the car and some
personal items of Kristin’s that were inside), tortious interference with existing contract (for the
alleged disruption of Kristin’s relationships with her counselor and therapist), abuse of process (for
allegedly using discovery subpoenas in the Whitley suit merely to obtain fodder for their ongoing
campaign of harassment and defamation), assault (based on the altercation in February 2014),
intrusion-on-seclusion invasion of privacy (chiefly for the conduct of the Cavins’ investigator), and
intentional infliction of emotional distress (for appellants’ other acts and communications that were
threatening, harassing, or cruel). As support for their factual allegations, the Abbotts attached as
consolidated into the underlying cause. See No. C-1-CV-16-6741 (County Court at Law No. 1,
Travis Cty.).
9
exhibits to their pleadings documentary evidence that included the numerous texts, emails, letters,
and other written communications that appellants had generated in the course of their complained-
of activities.
Appellants timely filed a motion under the TCPA seeking to dismiss the Abbotts’ suit
in its entirety. Appellants premised their dismissal motion primarily on the contention that their
numerous statements about the Abbotts’ mental health or “abuse” met the TCPA’s definition of the
“exercise of the right of free speech”10 because these were “communication[s] made in connection
with a matter of public concern,” namely “health or safety.”11 Appellants also insisted that the
Abbotts’ claims implicated appellants’ “exercise of the right to petition”—their lawsuits against
Sandy Whitley and David Hayes and use of discovery subpoenas in those actions.12 The Abbotts
filed a response, urging, among other arguments, that the TCPA had no application to their suit and
that their assault claim, regardless, fell within the Act’s express exemption for “legal action[s]
seeking recovery for bodily injury.”13
Following the hearing, the district court denied appellees’ motion in full. The order
included express conclusions that the Abbotts’ “assault claim . . . is expressly exempt from the
10
See Tex. Civ. Prac. & Rem. Code § 27.003(a) (authorizing motion to dismiss “[i]f a legal
action is based on, relates to, or is in response to a party’s exercise of the right or free speech, right
to petition, or right of association”).
11
See id. § 27.001(3) (defining “exercise of the right of free speech”), (7) (defining “matter
of public concern”); see also id. § 27.001(1) (defining “communication”), (6) (defining “legal
action”).
12
See id. § 27.001(4)(A)(i) (defining “exercise of the right to petition” to include “a
communication in or pertaining to . . . a judicial proceeding”).
13
See id. § 27.010(c).
10
[TCPA], and [that] the other claims are not matters of public concern as a matter of law and [are]
thus not covered.” The court in its order also determined that appellants’ motion had been “filed
frivolously, based on the case law and the plain language of the [TCPA],” and exercised its
discretion to award the Abbotts reasonable attorney’s fees.14 Based on evidence regarding a flat-fee
arrangement between the Abbotts and their counsel, the court awarded them $1,000 as a
reasonable fee.
This appeal followed.15
ANALYSIS
In three issues, appellants urge that the district court erred in, respectively, (1) denying
their motion to dismiss with respect to their “exercise of the right of free speech” predicate; (2)
denying the motion to dismiss with respect to their “exercise of the right to petition” predicate; and
(3) awarding the Abbotts attorney’s fees.
The TCPA’s basic features are well known by now. The Act professes an overarching
purpose of “safeguard[ing] the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government” against infringement by meritless lawsuits,16 and
14
See id. § 27.009(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.”).
15
See id. § 51.014(a)(12).
16
See id. § 27.002 (specifying TCPA’s “purpose . . . 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”); In re Lipsky, 460 S.W.3d 579, 589
(Tex. 2015) (orig. proceeding) (summarizing this purpose as to “identify and summarily dispose of
11
is often characterized as an “anti-SLAPP” law.17 The Act further directs that it is to be “construed
liberally to effectuate its purpose and intent fully.”18 The TCPA pursues any such goals chiefly by
defining a suspect class of legal proceedings that are deemed to implicate free expression, making
these proceedings subject to threshold testing of potential merit, and compelling rapid
dismissal—with mandatory cost-shifting and sanctions—for any found wanting.19
lawsuits designed only to chill First Amendment rights [but] not . . . dismiss meritorious lawsuits”
(citing Tex. Civ. Prac. & Rem. Code § 27.002)).
17
See, e.g., Elite Auto Body LLC v. Autocraft Bodywerks, Inc., ___ S.W.3d ___,
No. 3-15-00064-CV, 2017 Tex. App. LEXIS 4108, at *4 n.9 (Tex. App.—Austin May 5, 2017, pet.
filed) (“‘SLAPP’ is an acronym for a ‘Strategic Lawsuit Against Public Participation,’ which refers,
generally speaking, to a meritless lawsuit that is aimed only at deterring free expression through the
collateral impacts of the litigation process in itself. The TCPA is said to be an ‘anti-SLAPP’ law.”);
see also Serafine v. Blunt (Serafine I), 466 S.W.3d 352, 365–67 (Tex. App.—Austin 2015, no pet.)
(Pemberton, J., concurring) (summarizing TCPA’s legislative history and proponents’ emphasis on
professed “anti-SLAPP” concerns).
18
Tex. Civ. Prac. & Rem. Code § 27.011(b).
19
See id. §§ 27.003(a), .005(b)–(c), .009(a); see also id. § 27.001(2)–(4). As we explained
in Autocraft:
Although the TCPA’s stated purpose is to serve “the constitutional rights of persons
to petition, speak freely, associate freely, and otherwise participate in government,”
the Act does not pursue this ultimate goal directly, aside from [the findings
authorized by Section 27.007(a)], which presumably are to inform a court’s award
of sanctions under the Act. The primary means by which the TCPA advances its
purpose is more circuitous—an expedited dismissal mechanism tied to a burden-
shifting analysis “through which a litigant may require, by motion, a threshold testing
of the merits of legal [actions] that are deemed to implicate the expressive interests
protected by the statute.”
___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *13–14 (quoting Tex. Civ. Prac. & Rem. Code
§ 27.002; Serafine I, 466 S.W.3d at 369 (Pemberton, J., concurring)); see also id. at *14 n.41
(observing that the TCPA in this respect has some similarities to the Medical Liability Act’s expert-
report requirement (quoting Serafine I, 466 S.W.3d at 375 (Pemberton, J., concurring))).
12
When construing and applying the TCPA, as with other statutes, the Texas Supreme
Court has emphasized that we are to look first to the Act’s “‘plain language,’” and if unambiguous,
“‘interpret the statute according to its plain meaning.’”20 “Additionally, ‘[w]e presume the
Legislature included each word in the statute for a purpose and that words not included were
purposefully omitted.’”21
“Legal action” subject to TCPA
The TCPA frames its suspect class of legal proceedings in terms of “legal actions”
having certain characteristics. The Act defines “legal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal
or equitable relief.”22 Having sued appellants seeking monetary and injunctive relief under multiple
liability theories, the Abbotts have unquestionably asserted one or more “legal actions” within the
TCPA definition.23 However, in Section 27.010 of the TCPA, the Legislature has exempted certain
types of “legal actions” from the Act (and, therefore, from the suspect class potentially subject to
20
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per curiam)
(quoting Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).
21
Id. (quoting Lippincott, 462 S.W.3d at 509).
22
Tex. Civ. Prac. & Rem. Code § 27.001(6).
23
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *6 (“There is no
question that Autocraft’s lawsuit seeking injunctive and monetary relief, or alternatively each of its
component claims for such relief, is a ‘legal action’” (quoting Tex. Civ. Prac. & Rem. Code
§ 27.001(6))); see also D Magazine Partners, L.P. v. Rosenthal, ___ S.W.3d ___, No. 15-0790, 2017
Tex. LEXIS 296, at *28–29 (Tex. Mar. 17, 2017) (confirming that different “claims” or causes of
action can be considered separate “legal actions” for purposes of TCPA).
13
dismissal), and these include “a legal action seeking recovery for bodily injury.”24 The Abbotts
persuaded the district court that their assault claim fell within this exemption, and appellants urge
this was error. Appellants emphasize that the Abbotts had the burden to establish the exemption’s
applicability (a proposition that the Abbotts do not appear to dispute25) and insist that the Abbotts
failed to do so. We disagree.
The Abbotts’ assault claim is founded on their factual allegations regarding the
altercation between Kristin and the Cavins that took place in late February 2014. In their live
petition, the Abbotts pleaded, in material part, that:
Wylie Cavin, who is over six feet tall, physically assaulted Kristin by coming up
behind her, grabbing her wrists, and forcing her arms behind her. Wylie Cavin then
forced Kristin down to the ground on her back, pulled her arms above her head and
held her writs together with his hands and locked Kristin’s body between his knees,
pinning her to the ground with the weight of his body on top of her. Wylie Cavin’s
grip on Kristin’s wrists caused pain, and her hands turned blue and became numb. As
Wylie physically assaulted Kristin, he also screamed in her face. Wylie Cavin’s
physical assault of Kristin caused painful injury to her tailbone and caused her to
experience ongoing pain requiring physical therapy. The psychological trauma
associated with being physically assaulted by her father has continued to cause
Kristin severe emotional distress to this day.
The Abbotts further pleaded that these alleged acts by Wylie were committed intentionally,
knowingly, or recklessly, and were actionable as the tort of assault of Kristin, “entitl[ing] [her] to
24
Tex. Civ. Prac. & Rem. Code § 27.010(c).
25
See, e.g., Kinney v. BCG Atty. Search, Inc., No. 03-12-00579-CV, 2014 Tex. App. LEXIS
3998, at *18 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op. on reh’g) (recognizing that
nonmovant claimant had burden to establish applicability of exemption under TCPA Section
27.010(b) (citing, inter alia, Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71, 88–89 (Tex. App.—Houston [1st Dist.] 2013, pet. denied))).
14
damages based on mental anguish, and medical expenses for the injury to Kristin’s tailbone and need
for continued physical therapy.” The Abbotts also specifically prayed for “any medical expenses
incurred based on Wylie Cavin’s assault.”
“Bodily injury” commonly denotes “[p]hysical damage to a person’s body.”26 The
Abbotts’ assault claim seeks recovery for alleged injuries that are plainly of this character—medical
expenses for physical damage and compensation for physical pain27—and appellants do not suggest
that this “legal action” could somehow be subdivided to exclude any additional components of the
sought-after damages that would arguably fall outside “bodily injury.” Accordingly, the Abbotts’
assault claim is exempt from the TCPA as a matter of law.
26
Black’s Law Dictionary 906 (10th ed. 2014); see also Trinity Universal Ins. Co. v. Cowan,
945 S.W.2d 819, 820–24 (Tex. 1997) (construing standard homeowners’ insurance policy—which
defined “‘bodily injury’ as ‘bodily harm, sickness or disease’”—as “not includ[ing] purely emotional
injuries” and as “unambiguously requir[ing] an injury to the physical structure of the human body”);
id. at 823–24 (“Our decision comports with the commonly understood meaning of ‘bodily,’ which
implies a physical, and not purely mental, emotional, or spiritual harm.” (citations omitted)); Forbes
v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.— Austin 2000, pet. denied) (““Bodily injury’ means
‘physical pain, illness, or any impairment of physical condition.’” (quoting Tex. Pen. Code
§ 1.07(a)(8))); id. (“Bodily injury is a broad term and encompasses even relatively minor physical
contacts so long as they constitute more than mere offensive touching.” (citing Lane v. State,
763 S.W.2d 785, 786 (Tex. Crim. App. 1989))); The American Heritage Dictionary of the English
Language 204 (5th ed. 2011) (defining “bodily,” when used as an adjective, as “[o]f, relating to, or
belonging to the body,” and as “[p]hysical as opposed to mental or spiritual”).
27
See Cowan, 945 S.W.2d at 820–24; Forbes, 9 S.W.3d at 900; Black’s Law Dictionary at
906; American Heritage at 204; see also Kirkstall Rd. Enters. v. Jones, ___ S.W.3d ___,
No. 05-16-00859-CV, 2017 Tex. App. LEXIS 3883, at *5–6 (Tex. App.—Dallas Apr. 27, 2017, no
pet. h.) (negligence claims against media defendant for allegedly inducing third parties to shoot him
came within “bodily injury” exemption, as it “seeks to recover for the bodily injuries—four gunshot
wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing
the program”).
15
In contending otherwise, appellants attempt to characterize the Abbotts’ assault claim
as seeking recovery only for “non-physical injuries,” further suggesting that the Abbotts’ counsel
indicated as much during his argument at the hearing. But the Abbotts’ live petition—the instrument
that sets forth the theories on which they “seek[] recovery”—belies any such characterization.
Appellants also maintain that the Abbotts were required, and failed, to present “clear and specific
evidence” to substantiate their assault claim. Appellants erroneously conflate the requirements that
apply once a “legal action” is shown to be within the suspect class with the issue of whether the
Abbotts’ “legal action” for assault is subject to these requirements in the first place.28 The TCPA
does not make the “bodily injury” exemption contingent on a threshold showing of merit or “clear
and specific evidence.”29 Appellants seek to “read[] language into the statute that is not there,”30 and
we must instead give effect to the words the Legislature has actually included.
Accordingly, the district court did not err in holding that the Abbotts’ assault claim
is exempt from the TCPA and correspondingly denying appellants’ motion as to that claim. We
proceed to address appellants’ remaining arguments as they implicate the Abbotts’ other claims.
28
Compare Tex. Civ. Prac. & Rem. Code § 27.005(c) (“The court may not dismiss a legal
action under this section if the party bringing the legal action establishes by clear and specific
evidence a prima facie case for each essential element of the claim in question.”), with id.
§ 27.010(c) (“This chapter does not apply to a legal action seeking recovery for bodily injury . . . .”).
29
See id. § 27.010(c).
30
Coleman, 512 S.W.3d at 901.
16
Initial burden/applicability
The TCPA’s suspect class encompasses any “legal action” not shown to be exempted
from the statute that “is based on, relate[d] to, or is in response to a party’s exercise of the right of
free speech, right to petition, or right of association.”31 Although the terms “exercise of the right of
free speech,” “exercise of the right to petition,” and “exercise of the right of association” correspond
to the familiar constitutional concepts that are the TCPA’s ultimate stated concern, the Act supplies
a specific definition of each term that does not, save one component of the “exercise of the right to
petition” definition, explicitly reference or incorporate the rights of speech, petition, or association
as recognized under the First Amendment or its Texas counterpart.32 In turn, “is based on, relates
to, or is in response to” serves to capture, at a minimum, a “legal action” that is factually predicated
upon alleged conduct that would fall within the TCPA’s definitions of “exercise of the right of free
31
Tex. Civ. Prac. & Rem. Code § 27.003(a).
32
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *14–15 & n.43
(observing that “[w]ithin each definition, none explicitly references or purports to incorporate the
constitutional rights of association, speech, or petition, aside from a single component of the
‘exercise of the right to petition’ definition” that refers to “‘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.’” (citing Tex. Civ. Prac. & Rem. Code § 27.001(2)–(5), (7)–(9) and
quoting id. at § 27.001(4)(E))).
17
speech,” petition, or association.33 Whether this phrase might extend farther has remained unclear
until now—but this is among the issues that appellants’ arguments raise, as we will explain below.
A party seeking to invoke the Act’s testing and dismissal mechanisms must do so by
motion soon after the “legal action” to be challenged is filed.34 The movant must meet an “initial
burden” (also frequently described in terms of demonstrating the TCPA’s “applicability”35) of
“show[ing] by a preponderance of the evidence” that the “legal action” sought to be challenged is
within the suspect class, i.e., that it “is based on, relates to, or is in response to” the nonmovant’s
“exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association,” as
the TCPA defines those terms.36 If the movant succeeds, the “legal action” must be dismissed except
to the extent “the party bringing the legal action establishes by clear and specific evidence a prima
33
See id. at *6–7 (observing that initial burden “can be met if . . . Autocraft’s claims are
predicated factually on conduct that falls within” one of the TCPA-defined categories of protected
expression); Sloat v. Rathbun, 513 S.W.3d 500, 503 (Tex. App.—Austin 2015, pet. dism’d) (“In
applying [the TCPA], Texas courts—including this one—have generally focused solely on the extent
to which the factual bases of a challenged ‘legal action’ constitute expression within the TCPA’s
definitions of [protected expression].” (citations omitted)). Although the Texas Supreme Court’s
TCPA precedents have not explicitly adopted this construction of “is based on, relates to, or is in
response to,” their analyses are consistent with it. See Hersh v. Tatum, ___ S.W.3d ___, No.
16-0096, 2017 Tex. LEXIS 649, at *10–11 (Tex. June 30, 2017) (discussing role of claimant’s
petition in determining “the basis of a legal action” and holding Act applicable in light of pleading
allegations meeting “exercise of the right of free speech” definition); Coleman, 512 S.W.3d at 897,
899–902 (analyzing whether statements complained of in defamation suit were TCPA-protected
“exercise of the right of free speech”); Lippincott, 462 S.W.3d at 508–10 (analyzing whether
statements made the basis of defamation, tortious interference, and conspiracy claims were TCPA-
defined “exercise of the right of free speech”).
34
See Tex. Civ. Prac. & Rem. Code § 27.003(b).
35
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *5 (citing Coleman,
512 S.W.3d at 897, 899–901).
36
See Tex. Civ. Prac. & Rem. Code § 27.005(b).
18
facie case for each essential element of the claim in question.”37 But even if the nonmovant meets
this burden and the “legal action” would otherwise survive, the Act still allows the movant to obtain
dismissal by “establish[ing] by a preponderance of the evidence each essential element of a valid
defense to the nonmovant’s claim.”38
The “evidence” the trial court “shall consider” in these inquiries expressly includes
“the pleadings and supporting and opposing affidavits stating the facts on which the liability . . . is
based,” and the Act contemplates primary reliance on such proof.39 Consequently, the Abbotts’ live
petition—including their voluminous attachments reflecting and memorializing appellants’
activities—are of central importance to the analysis. “The precise meaning of the phrase
‘preponderance of the evidence’ within [this] procedural framework remains unclear, as do the
standards by which appellate courts are to review these ‘preponderance-of-the-evidence’
determinations by trial courts.”40 “We can conclude with certainty, however, that to the extent the
37
Id. § 27.005(c).
38
Id. § 27.005(d).
39
Id. § 27.006(a) (“In 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”); see Hersh, ___ S.W.3d at ___, 2017 Tex. LEXIS
649, at *10 ([I]t would be impossible to determine the basis of a legal action, and thus the
applicability of the [TCPA], without considering the plaintiff’s petition. . . . When it is clear from
the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.”);
Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *6 n.15 (observing, in light of Section
27.006(a), Section 27.006(b)’s proviso allowing for “specified and limited discovery relevant to the
motion,” and Section 27.007(a)’s requirement for additional “findings” on movant’s request
regarding underlying intent or motive of “legal action,” that “[t]he TCPA contemplates primary
reliance, but perhaps not always exclusive reliance, on ‘evidence’ consisting only of pleadings and
affidavits”).
40
Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at * 6 & nn. 15–16.
19
[TCPA “evidence”] establishes material facts conclusively, our review would be limited to the de
novo construction and application of the TCPA’s terms.”41
Appellants urge that they met their initial burden as a matter of law because the
pleadings, affidavits, and attachments demonstrate conclusively that each of the Abbotts’ claims “is
based on, relates to, or is in response to” appellants’ “exercise of the right of free speech,” in the
form of their numerous statements containing the subject matter of the Abbotts’ mental health or
“abuse.” Alternatively, appellants argue that at least some of the Abbotts’ claims are “based on,
relate[] to, or [are] in response to” appellants’ “exercise of the right to petition” through their
lawsuits and discovery subpoenas.
“Exercise of the right of free speech”
We will begin by analyzing the validity of appellants’ core premise that their
numerous statements on the subjects of the Abbotts’ purported mental illness or “abuse” qualify as
the “exercise of the right of free speech” under the TCPA definition of that term. The TCPA defines
“exercise of the right of free speech” as “a communication made in connection with a matter of
public concern,”42 and then defines both “communication” and “matter of public concern.” A
“communication”—also a component of the Act’s “exercise of the right to petition” and “exercise
41
Id. at *6 (citing Sloat, 513 S.W.3d at 503); see also Hersh, ___ S.W.3d at ___, 2017 Tex.
LEXIS 649, at *10 (observing that pleadings alone will often be determinative of legal action’s
basis); Sloat, 513 S.W.3d at 503 (“The ultimate question of whether a particular factual basis for a
‘legal action’ qualifies as expression within the TCPA’s definitions is a question of law that we
review de novo.” (citations omitted)).
42
Tex. Civ. Prac. & Rem. Code § 27.001(3).
20
of the right of association” definitions43—“includes the making or submitting of a statement or
document in any form or medium, including oral, visual, written, audiovisual, or electronic.”44 A
“matter of public concern,” in turn, “includes 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.”45 Thus, reading these
definitions together, the “exercise of the right of free speech” for TCPA purposes is a “statement or
document in any form or medium, including oral, visual, written, audiovisual, or electronic,” “made
in connection with” subjects that “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.”46
In denying appellants’ motion, the district court concluded that all of the Abbotts’
claims other than for assault (which, again, it correctly held to be exempted from the Act) did not
implicate “matters of public concern as a matter of law and [are] thus not covered [by the TCPA].”
Appellants insist this was error because the subjects of mental illness or domestic abuse are “issue[s]
relating to . . . health or safety.” And because their numerous texts, emails, letters, phone calls, oral
statements, or other issuances on those subjects were plainly “communications” within the TCPA’s
broad definition of that term, appellants continue, these “communications” were “made in
43
See id. § 27.001(2), (4).
44
Id. § 27.001(1).
45
Id. § 27.001(7).
46
Id. § 27.001(1), (3), (7).
21
connection with a matter of public concern,” satisfying the Act’s definition of the “exercise of the
right of free speech” as a matter of law.
While not appearing to dispute that appellants’ statements would qualify as
“communications” under the TCPA—and they plainly do—the Abbotts urge that these
“communications” should not be considered “matters of public concern.” The Abbotts reason that
the communications concerned a “private” family dispute and conduct that was actionable as “private
torts,” characteristics they view as distinguishing the communications from “matters of public
concern.” In the same vein, the Abbotts point out that in several of the Cavins’ writings, the Cavins
had attempted to keep their activities under wraps by marking writings “private” or “confidential”
and also berating or threatening recipients who dared divulge the content to others. The Abbotts also
urge that if the TCPA’s “exercise of the right of free speech” definition is construed to cover these
particular “private communications,” “then private, per se defamation regarding loathsome diseases
and any private, per quod defamation about a person’s mental health would always be subject, de
facto, to the TCPA.” The TCPA could not have such “expansive, overreaching scope,” the Abbotts
insist.
Although the Abbotts’ arguments might have greater viability under the more
conventional understandings of “matters of public concern” in either constitutional jurisprudence47
47
See, e.g., Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (“According to the [U.S.]
Supreme Court, speech ‘deals with matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community.’” (quoting Snyder v.
Phelps, 562 U.S. 443, 453 (2011))); see also Snyder, 562 U.S. at 451–52 (emphasizing connection
to self-government).
22
or ordinary usage,48 it remains that the TCPA has prescribed a specific definition of “matter of public
concern” requiring, as applicable to this case, only that “an issue relat[e] to . . . health or safety,”
without further elaboration or qualification.49 And any notion that courts should read implicit
limitations into the TCPA definitions derived from broader statutory or jurisprudential context has
been put to rest by the Texas Supreme Court’s precedents. In Lippincott v. Whisenhunt, the supreme
court squarely rejected a court of appeals’s view that the TCPA’s definitions of the “exercise of the
right of free speech” and component terms were impliedly limited, in light of background First
Amendment jurisprudence and the TCPA’s purposes relating to “public participation in
government,” solely to speech exercised in a public form of communication.50 The supreme court
reasoned that “[t]he plain language of the [TCPA] imposes no requirement that the form of the
communication be public,” and that “[i]n the absence of such limiting language, we must presume
that the Legislature broadly included both public and private communication.”51 The court went on
to hold that private emails alleging that a nurse anesthetist “‘failed to provide adequate coverage for
pediatric cases,’ administered a ‘different narcotic than was ordered prior to pre-op or patient consent
being completed,’ falsified a scrub tech record on multiple occasions, and violated [the] company’s
48
See American Heritage at 1424 (defining “public,” when used as an adjective, as “[o]f,
concerning, or affecting the community or the people” and as “[m]aintained for or used by the people
or community”); id. at 381 (defining “concern,” when used as a noun, as “[a] matter that relates to
or affects one” and as “[r]egard for or interest in someone or something”).
49
Tex. Civ. Prac. & Rem. Code § 27.001(7).
50
See Lippincott, 462 S.W.3d at 509–10; cf. Whisenhunt v. Lippincott, 416 S.W.3d 689,
697–700 (Tex. App.—Texarkana 2013), rev’d, 462 S.W.3d 507 (Tex. 2015) (per curiam).
51
Lippincott, 462 S.W.3d at 509 (citing Tex. Civ. Prac. & Rem. Code § 27.011).
23
sterile protocol policy” sufficed as “communication[s] . . . in connection with a matter of public
concern” and, therefore, the “exercise of the right of free speech,” based on the emails’ subject
matter alone.52
More recently, in ExxonMobil Pipeline Company v. Coleman, the Texas Supreme
Court confirmed that we must apply a plain-meaning construction of the TCPA definitions’ literal
language, without regard to the TCPA’s broader purposes or background jurisprudence, even when
this results in a vastly expansive application of the “exercise of the right of free speech” to reach a
business’s internal personnel matters having only an indirect relationship to the “matter[s] of public
concern” made the basis for the motion. The issue in Coleman concerned whether internal
communications within a pipeline company regarding an employee’s alleged failure to follow a
required fuel-tank “gauging” procedure sufficed as the “exercise of the right of free speech,”
specifically “communication[s] made in connection with” “an issue related to” “health or safety” or
“environmental [or] economic . . . well-being.”53 The communications themselves contained no
explicit language connecting the “gauging” procedure to one of these “matters of public concern,”
although the company and employee defendants had presented affidavits (apparently uncontroverted)
explaining that the procedure’s underlying purposes included preventing fuel spills and attendant
52
See id. at 509–10. More specifically, the supreme court relied on a prior holding that “the
provision of medical services by a health care professional” was a “matter of public concern” as that
concept was being applied in the First Amendment context. See id. at 510 (citing Neely v. Wilson,
418 S.W.3d 52, 70 nn.12 & 26 (Tex. 2013)). However, the court intimated that the communications
would also satisfy the TCPA’s “matter of public concern” definition, observing that it “include[s]
issues related to health or safety, community well-being, and the provision of services in the
marketplace, among other things.” Id. (citing Tex. Civ. Prac. & Rem. Code § 27.001(7)).
53
See Coleman, 512 S.W.3d at 898–901 (citing Tex. Civ. Prac. & Rem. Code § 27.001(7)).
24
safety risks, environmental harm, and economic loss.54 The court of appeals had held the TCPA
inapplicable, reasoning that the communications related to a “‘private employment matter’”; made
“‘no mention of health, safety, the environment, or Exxon’s economic interests’”; and that the matter
was not transformed into a “‘public concern’” through its merely “‘tangential relationship to health,
safety, environmental, and economic concerns.’”55 The Texas Supreme Court reversed.
Emphasizing its plain-meaning approach in Lippincott, the supreme court held that
the court of appeals had “improperly narrowed the scope of the TCPA by ignoring the Act’s plain
language and inserting the requirement that communications involve more than a ‘tangential
relationship’ to matters of public concern.”56 Likewise, the court continued, “[t]he TCPA does not
require that the statements specifically ‘mention’ health, safety, environmental, or economic
concerns, nor does it require more than a ‘tangential relationship’ to the same; rather, TCPA
applicability requires only that the defendant’s statements are ‘in connection with’ ‘issue[s] related
to’ health, safety, environmental, economic, and other identified matters of public concern chosen
by the Legislature.”57 The supreme court similarly rejected an argument of the claimant that the
definition’s phrase “communication made in connection with a matter of public concern”
“‘suggest[s] something more than a tenuous or remote relationship’”; in the supreme court’s view,
54
See id. at 897–98, 900–01.
55
See id. at 900 (quoting ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 846 (Tex.
App.—Dallas 2015), rev’d, 512 S.W.3d 895 (Tex. 2017)).
56
Id. at 900.
57
Id. (citing Tex. Civ. Prac. & Rem. Code § 27.001(3), (7)).
25
this argument amounted to “reading language into the statute that is not there.”58 Applying the
definitions as worded, the supreme court held that “[t]he statements, although private and among [the
company’s] employees, related to a ‘matter of public concern’ because they concerned Coleman’s
alleged failure to gauge tank 7840, a process completed, at least in part, to reduce the potential
environmental, health, safety, and economic risks associated with noxious and flammable chemicals
overfilling and spilling onto the ground.”59
Among the implications of these Texas Supreme Court precedents, as this Court
concluded in Autocraft, is that the TCPA’s definitions of “exercise of the right of free speech,”
petition, and association extend considerably beyond—and largely without regard to—the parameters
of expression that would actually be protected by the First Amendment or the Texas Constitution.60
Consequently, we held that an auto-repair business’s internal communications incident to alleged
misappropriation of trade secrets from a rival sufficed as the “exercise of the right of association”
as the TCPA defines that term, regardless of whether those communications were constitutionally
protected expression.61 Whether the expression is constitutionally protected, as we explained, could
come into play only in the second phase of the analysis, as a component of a claimant’s clear and
specific evidence of each essential element of each claim against the defendant.62 And the same
58
Id. at 901.
59
Id. (citing Tex. Civ. Prac. & Rem. Code § 27.001(7)(A), (B); Lippincott, 462 S.W.3d
at 509).
60
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *11–22.
61
See id. at *22–23.
62
See id. at *21–22.
26
would be true of any other issue going to whether a particular communication is actionable,
sanctionable, or (as Wylie put it) “sound[s] crazy,” as none of these considerations are incorporated
into the TCPA’s broad definitions of protected expression,63 and we are not to “read[] language into
the statute that is not there.”64
Under these precedents, we must reject the Abbotts’ invitation to read the TCPA’s
definitions of “exercise of the right of free speech” and “matter of public concern” more narrowly
than the ordinary meaning of their words as written. All the Legislature has required is that
appellants’ communications be “made in connection with a matter of public concern,” and a “matter
of public concern” includes “an issue related to . . . health or safety.” As appellants urge, the
subjects of mental illness or domestic abuse plainly fall within the ordinary meaning of “health” or
“safety,”65 and it is now clear that such “health” and “safety” under the TCPA includes that of private
parties embroiled in an otherwise-private dispute far removed from any public participation in
63
See id.; cf infra at 28–29 (discussing how even frivolous or SLAPP-like lawsuits can
satisfy TCPA’s “exercise of the right to petition” definition).
64
See Coleman, 512 S.W.3d at 901.
65
See Hersh, ___ S.W.3d at ___, 2017 Tex. LEXIS 649, at *11 (“Clearly, suicide prevention
and awareness relate to health, safety, and community well-being, all included in the statutory
definition of ‘matters of public concern.’” (quoting Tex. Civ. Prac. & Rem. Code § 27.001(7)));
Backes v. Misko, 486 S.W.3d 7, 17–20 (Tex. App.—Dallas 2015, pet. denied) (holding that subject
of whether mother was afflicted with psychological disorder of Munchausen Syndrome by Proxy and
was mistreating child as a result “related to health and safety [and] fell within the [TCPA] definition
of ‘matter of public concern’” (quoting Tex. Civ. Prac. & Rem. Code § 27.001(7))); see also id. at
18 (citing dictionary definitions of “‘health’” (“‘the state of being sound in body or mind’”) and
“‘safety’” (“‘the condition of being safe; . . . exemption from hurt, injury, or loss’”) (quoting
Webster’s Third New International Dictionary 1043, 1998 (1981))).
27
government.66 Consequently, appellants’ “communication[s] made in connection with” those
subjects qualify, as a matter of law, as the “exercise of the right of free speech” under the
TCPA definition.
“Exercise of the right to petition”
As for appellants’ alternative ground, we similarly conclude that the activities in
question—the Cavins’ lawsuits against Sandy Whitley and David Hayes and use of discovery
subpoenas in those actions—satisfy the TCPA definition of the “exercise of the right to petition.”
The TCPA defines the “exercise of the right to petition” to include, inter alia, “a communication in
or pertaining to . . . a judicial proceeding.”67 As we recognized in the Serafine cases, filing a lawsuit
and transmitting documents relating to that proceeding—even a lawsuit that itself had characteristics
of a true SLAPP, included some bizarre factual allegations, and even gave rise ultimately to
sanctions against the claimant—suffices as the “exercise of the right to petition” under the plain-
66
Pickens v. Cordia, on which the Abbotts rely for a contrary view, predates the Texas
Supreme Court’s decisions in Lippincott, Coleman, and Hersh. 433 S.W.3d 179, 184 (Tex.
App.—Dallas 2014, no pet) (reasoning that “[w]hile . . . issues of ‘addiction, [and] parental
abuse’ . . . may be matters of public concern” in abstract or general sense, holding that family
member’s blog purporting to recount such problems within his family did not “implicate the broader
health and safety concerns or community well-being concerns contemplated by [the TCPA]”).
67
See Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i) (defining “exercise of the right to
petition” to include “a communication in or pertaining to . . . a judicial proceeding”).
28
meaning construction we are to give the definition’s broad language.68 Indeed, the Abbotts do not
appear to contest that appellants’ lawsuits and subpoenas meet this definition.
Factual predicate
The remaining component of appellants’ initial burden is to show that each “legal
action” in question “is based on, relates to, or is in response to” either appellants’ “exercise of the
right of free speech” (i.e., their communications on the subjects of mental illness or “abuse”) or their
“exercise of the right to petition” (their lawsuits and subpoenas). As indicated, “is based on, relates
to, or is in response to” serves to capture, at a minimum, a “legal action” that is factually predicated
upon alleged conduct that would fall within the TCPA’s definition of “exercise of the right of free
speech,” petition, or association.69 From the face of the Abbotts’ live petition and attachments, their
claims for defamation and tortious interference are “based on, relate[] to, or [are] in response to,”
in the sense of being factually predicated on, appellants’ statements on the subjects of mental illness
or “abuse.” Similarly, the Abbotts’ abuse-of-process claim is predicated entirely upon the Cavins’
68
See Serafine I, 466 S.W.3d at 376–77 (Pemberton, J., concurring) (noting that “it is
arguably the claims asserted by Serafine that more closely resemble the SLAPP paradigm” and that
her allegations had included “perceived ‘surreptitious video taping’ of her and ‘several instances of
insult, ridicule, and, [Serafine] believes, marshaling of neighborhood gossip against [her],’” “[y]et
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” (footnote omitted)); Serafine v. Blunt (Serafine II),
No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, at *17–19 (Tex. App.—Austin May 19, 2017,
no pet. h.) (mem. op.) (affirming sanctions award against Serafine as to her claims against other
defendants, as “[t]he record contains ample evidence to support the trial court’s findings and
conclusions about the groundless claims”).
In that regard, the record does not reflect whether Whitley or Hayes filed their own TCPA
dismissal motions to contest the Cavins’ speech-based “legal actions” against them.
69
See supra note 33.
29
“exercise of the right to petition,” their use of discovery subpoenas. Further, the Abbotts’
intentional-infliction-of-emotional-distress (IIED) claim complains in part of the Cavins’ lawsuits
against Whitley and Hayes, which they view as part of appellants’ larger campaign to harass and
isolate them from the support of family and friends. To these extents, appellants have met their
initial burden as a matter of law.
Urging otherwise, the Abbotts insist that this case is a reprise of Sloat v. Rathbun.70
In that case, Monique Rathbun, whose husband Marty was a former high-ranking member of the
Church of Scientology, sued that organization and allied individuals asserting causes of action for
intentional infliction of emotional distress, invasion of privacy, intrusion upon seclusion, and tortious
interference founded on alleged “constant harassment” having some parallels to the Abbotts’
complaints.71 The defendants filed TCPA dismissal motions, insisting that Rathbun’s claims were
“‘based on, related to, or were in response to’ conduct constituting the exercise of their ‘right of free
speech,’ ‘right of association,’ and ‘right to petition.’”72 However, as we would later explain in our
opinion, the defendants did not “address the specific allegations contained in Rathbun’s petition and
on which she claims to base her causes of action,” but “endeavor[ed] to recast her petition” as
complaining of more innocuous and peripheral expressive activities, such as holding protest signs
70
See 513 S.W.3d 500.
71
E.g., allegations that the defendants had repeatedly accosted Ms. Rathbun, conducted
intrusive surveillance activities against her, published allegations that she was a “sexual pervert” and
actually a “man who has had a secret sex-change operation,” and had informed “Rathbun’s mother,
father, former husband, friend, and co-workers . . . that Rathbun’s life was at risk as long as she
remained married to Marty Rathbun.” Id. at 505–06.
72
Id. at 502–03 (citing Tex. Civ. Prac. & Rem. Code § 27.001).
30
in the street, “attempting to speak to passers-by or those entering or leaving the property about the
impropriety of Marty Rathbun’s activities,” or filming footage in “public places . . . about issues of
potential or public importance, including importance to Scientologists.”73 The district court denied
the motion, and the issue on appeal was whether the defendants had met their initial burden,
assuming the propositions, not disputed there, that “is based on, relates to, or is in response to”
referred to the factual predicates for Rathbun’s “legal actions”74 and that we were to view the
pleadings and evidence in the light most favorable to Rathbun when determining what those factual
predicates were.75 In the posture of that appeal, we affirmed the district court’ order, concluding that
Rathbun’s legal actions “are garden-variety tort claims based on specific conduct that the
Scientology Defendants have failed to demonstrate, by a preponderance of the evidence, implicates
the exercise of their rights of ‘free speech,’ ‘association,’ or ‘to petition.’”76
In addition to emphasizing the factual similarities between appellants’ conduct and
that alleged of the “Scientology Defendants,” the Abbotts read Sloat to establish a dichotomy
between “garden-variety tort claims” and TCPA-protected conduct, and they insist that their
pleadings and evidence demonstrate only the former when viewed in the light “most favorable” to
them. The Abbotts misunderstand both Sloat and the TCPA. Contrary to their assumption, the
TCPA, as previously suggested, is written so as to be implicated by a vast array of “garden-variety
73
See id. at 506–07.
74
See id. at 503.
75
See id. at 503–04.
76
Id. at 509.
31
tort claims” that can be said to involve some element of “communication” (as demonstrated in
Coleman, Lippincott, Autocraft, and Serafine, to name but a few illustrative cases77). Sloat did not
hold otherwise—its point was instead that the defendants had attempted to demonstrate the TCPA-
protected status of activity other than that which was actually the factual basis for Rathbun’s causes
of action. In the present case, by contrast, appellants have demonstrated conclusively, in reliance
on the Abbotts’ pleadings and attachments, that the Abbotts’ defamation, tortious-interference,
abuse-of-process, and (in part) IIED claims are predicated on appellants’ “exercise of the right of free
speech” or “exercise of the right to petition” as the TCPA defines those terms. Nor is the record
susceptible to any “favorable” reading that would alter that conclusion.
77
Coleman, 512 S.W.3d at 897 (plaintiff employee alleged defamation based on purported
misstatements by his supervisors regarding circumstances that led to plaintiff’s termination);
Lippincott, 462 S.W.3d at 508–09 (plaintiff nurse anesthetist brought claims for defamation, tortious
interference with existing and prospective business relations, and conspiracy to interfere in business
relations, based on “disparaging comments” by surgical facility administrators that plaintiff
“represented himself to be a doctor, endangered patients for his own financial gain, and sexually
harassed employees”); Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *1–3, *8–10
(plaintiff auto-repair shop alleged theft and misuse of its trade secrets and confidential information,
among other claims, based in part on (i) “communications” among defendants and others within
competing auto-repair business through which they “shared or utilized” misappropriated information,
and on (ii) “communications” by defendants to plaintiff’s current employees “to induce them to leave
[plaintiff] and come to work for” the competing business); Serafine I, 466 S.W.3d at 356–557 & n.1,
359–60 (in suit arising from “neighborhood tussle,” counter-claimant’s tortious-interference and
fraudulent lien counterclaims were, at least in part, “based on, related to, or in response to” plaintiff’s
filing of suit and filing of lis pendens, both of which were “exercises of [plaintiff’s] ‘right to petition’
as the [TCPA] defines that term” (citing, inter alia, 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.”)).
32
“Related to” or “in response to”
But however expansive the foregoing applications of the TCPA may seem, these
holdings do not reach several of the Abbotts’ claims that appellants sought to dismiss and that were
not exempted as a bodily injury claim. Among these, the Abbotts’ IIED claim, although predicated
partly on appellants’ “exercise of the right to petition” through their lawsuits, also complains of
additional “communications” by the Cavins “made in connection with” subjects that could not
reasonably be considered “issue[s] related to . . . health or safety,” such as Wylie’s “dog’s butt” slur
and the insinuations that Bill married Kristin for her money. While it is conceivable that some of
these additional “communications” might independently qualify as the “exercise of the right of free
speech” through a different prong of the Act’s generous “matter of public concern” definition,78 or
as the “exercise of” one of the other two categories of TCPA-protected activity,79 appellants did not
preserve any such alternative ground for dismissing this portion of the IIED claim.80 Similarly, the
Abbotts’ claims for invasion of privacy, conversion, and (in additional part) IIED are founded
factually on alleged physical intrusions upon personal or property interests that could not be
considered “communications,” a prerequisite to all three of the TCPA-defined categories of protected
78
Cf. Serafine I, 466 S.W.3d at 378 (Pemberton, J., concurring) (suggesting that wife’s
expressed concern about husband’s judicial salary would seem to fall within ordinary meaning of
an “issue related to . . . economic . . . well-being”).
79
See id. (similarly suggesting that TCPA “exercise of the right of association” arguably
would also reach that same husband-wife conversation, as it occurred within the context of a family
relationship).
80
See, e.g., Long Canyon Phase II & III Homeowners Ass’n v. Cashion, 517 S.W.3d 212,
219 & n. 23 (Tex. App.—Austin 2017, no pet.) (recognizing that TCPA movant is confined on
appeal to grounds and theories raised in its motion); Serafine I, 466 S.W.3d at 359–60 (same).
33
activity, as previously explained.81 (For ease of reference, we will term these claims not predicated
factually upon appellants’ TCPA-protected activity as their “additional claims”).
Had appellants argued only that the Abbotts’ “legal action[s]” were “based on,
relate[d] to, or [were] in response to”—in the sense of being predicated upon factually—the
“exercise of the right of free speech” or the “exercise of the right to petition” appellants had claimed
in their motion, we would proceed to affirm the district court’s denial of appellants’ motion as to the
Abbotts’ additional claims, as we have done in prior cases having analogous postures.82 But in each
of those cases, the movant has either presumed that “is based on, relates to, or is in response to”
refers solely to the factual predicate for a “legal action” or it has otherwise been unnecessary for us
to consider whether the term extends any farther.83 This case differs in both respects.
81
The same could be said of the Abbotts’ assault claim, if not already exempted from
the Act.
82
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *8–9 (affirming order
denying TCPA dismissal motion as to complained-of conduct “that in itself would not necessarily
entail ‘the making or submitting of a statement or document in any form or medium’” and thus
would not be a “‘communication’”); Long Canyon, 517 S.W.3d at 219 & n. 23 (affirming denial of
TCPA dismissal motion as to factual bases for claims that were not challenged in the motion);
Serafine I, 466 S.W.3d at 359–60 (same); Combined Law Enforcement Ass’ns of Texas v. Sheffield,
No. 03-13-00105-CV, 2014 Tex. App. LEXIS 1098, at *2, *13–16, *35 (Tex. App.—Austin Jan.
31, 2014, pet. denied) (mem. op.) (looking to whether “communications . . . that Sheffield [the
plaintiff and nonmovant] alleges to be defamatory fall within the TCPA’s definition of the exercise
of the right of association” and affirming denial of motion to dismiss with respect to communications
that movants failed to show were within such definition).
83
See Autocraft, ___ S.W.3d at ___, 2017 Tex. App. LEXIS 4108, at *6–7 (noting that this
was the sense in which “is based on, relates to, or is in response to” was argued on appeal); Sloat,
513 S.W.3d at 503 (observing that (i) “Texas courts . . . have generally focused solely on the extent
to which the factual bases of a challenged ‘legal action’ constitute expression within the TCPA’s
definitions” and (ii) “[n]either party has presented any reason to depart from this prevailing view,
so we will continue to apply it here” (citing Sheffield, 2014 Tex. App. LEXIS 1098, at *13–16;
Serafine I, 466 S.W.3d at 373 (Pemberton, J., concurring))); Serafine I, 466 S.W.3d at 374–75
34
Appellants can meet their initial burden as to the Abbotts’ additional claims only to
the extent any of these claims “is based on, relates to, or is in response to” appellants’ “exercise of
the right of free speech” or “exercise of the right to petition” in some sense other than factual
predicate. And appellants have preserved arguments that the phrase does incorporate meanings that
extend beyond factual predicate. Among these, appellants suggest that the additional claims (and,
indeed, the Abbotts’ entire lawsuit) are “related to” appellants’ “exercise of the right of free speech”
or “exercise of the right to petition” in the sense of being rooted in a common controversy, or as
having overlapping facts and evidence, regarding the Cavins’ opposition to Kristin and Bill’s
relationship. As illustration, they emphasize portions of the Abbotts’ response in which the Abbotts
cite as evidence for their additional claims various of the writings that we have held to be either the
“exercise of the right of free speech” or “exercise of the right to petition.” Appellants similarly urge
that the Abbotts’ entire lawsuit “is in response to” appellants’ “exercise of the right of free speech”
or “exercise of the right to petition” in the sense of reacting to or temporally following. In this
regard, appellants observe that while the additional claims would have accrued in early to mid-2014,
the Abbotts did not send their demand letter until April 2015, in reaction to Wylie’s March 2015
letter to the PUC, and did not file their suit until after the Cavins had filed their suits against Whitley
(observing that parties had assumed this meaning of “is based on, relates to, or is in response to”);
see also Hersh, ___ S.W.3d at ___, 2017 Tex. LEXIS 649, at *10–11 (“based on” component was
decisive); Coleman, 512 S.W.3d at 897, 899–902 (holding that statements complained of in
defamation suit were TCPA-protected “exercise of the right of free speech”); Lippincott, 462 S.W.3d
at 508–10 (holding that statements made the basis of defamation, tortious interference, and
conspiracy claims were TCPA-defined “exercise of the right of free speech”).
35
and Hayes, served the subpoenas, and continued to persist in posting videos and making other
communications about the Abbotts’ mental health and supposed “abuse.”84
The questions appellants now raise regarding the scope of “is based on, relates to, or
is in response to” were foretold by the Serafine concurrence.85 Applying a plain-meaning
84
In their dismissal motion, appellants also went farther to assert that these circumstances
demonstrate the Abbotts’ suit was subjectively motivated to punish or retaliate against them for their
“exercise of the right of free speech” or “exercise of the right to petition,” further suggesting that the
additional claims were a “ginned up” pretext. However, we do not understand appellants to be
urging this view of “is based on, relates to, or is in response to” on appeal, and we thus express no
opinion as to whether the standard incorporates that meaning or how courts are to determine or
review such determinations of motive and intent made within the TCPA’s procedural framework.
But cf. Serafine I, 466 S.W.3d at 392 (Pemberton, J., concurring) (suggesting that “relates to” or “is
in response to” language might “capture any ‘legal actions’ that have the subjective goal of chilling
speech”).
85
As was observed there, the phrase “is based on, relates to, or is in response to” is a
composite of three components that are presented as disjunctive alternatives—(1) “is based on”;
(2) “relates to”; “or” (3) “in response to”—and “we would normally presume that these alternatives
were not intended to be redundancies of one another, but that each would have some distinct
meaning and effect.” Id. at 390–91 (Pemberton, J., concurring) (citing TGS-NOPEC Geophysical
Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). The ordinary meaning of the “is based on”
component, as the concurrence recognized, denotes a legal action that has the relevant TCPA-
protected activity “as a ‘main ingredient’ or ‘fundamental part,’” which “corresponds to the
prevailing construction that Texas courts have been giving to the phrase ‘is based on, relates to, or
is in response to’ as a whole, focusing on the factual bases underlying a ‘legal action.’” Id. at 391
(citing Webster’s Third New Int’l Dictionary 180 (2002) (defining “base” (n.) as “main ingredient”
and “fundamental part of something”); American Heritage at 148 (defining “base” (n.) as
“fundamental principle,” “underlying concept,” “fundamental ingredient,” and “chief constituent”);
see also Black’s Law Dictionary at 180 (defining “base” (v.) as “to use (something) as the thing from
which something else is developed”)). Then the concurrence posited the same question that
appellants’ arguments raise here: “What, then, is the role of the two remaining components of the
standard, ‘relates to’ and ‘in response to’?” Id.
At least if courts applied the ordinary meaning of “relates to” and “in response to,” the
concurrence concluded, those terms would extend the TCPA “considerably farther beyond even the
prevailing Texas construction.” Id. at 391–92. “The ordinary meaning of ‘relates to,’” it noted,
would merely “denote some sort of connection, reference, or relationship.” Id. at 391 (citing
Webster’s at 1916 (defining “relate” as “to be in relationship: to have reference”); American
36
construction of “relates to” and “in response to,” and without needing to comprehensively determine
the terms’ outer boundaries, the Abbotts’ additional claims would “relate to” appellants’ “exercise
of the right of free speech” or “exercise of the right to petition,” as there is some sort of connection,
reference, or relationship between them. Under the Abbotts’ theory of the case, for example, all of
appellants’ complained-of acts are portrayed as components of an overarching campaign of
harassment and attempted isolation aimed first at disrupting their marital plans, then at retribution
after those efforts failed. The additional claims would also be “in response to” appellants’ “exercise
of the right of free speech” or “exercise of the right to petition” in the sense that they reacted to or
were asserted subsequently to appellants’ ongoing communications regarding mental health or
“abuse” and their lawsuits and subpoenas.
The Texas Supreme Court’s analysis in Coleman forecloses any possibility that we
should view “relates to” or “in response to” as limited according to, e.g., the nature, directness, or
strength of such connections. Addressing the analogous relational term “in connection with” under
Heritage at 1482 (defining “relate” as “to have connection, relation, or reference”)). On the other
hand, “‘in response to,’ would denote some sort of answer or other act in return.” Id. (citing
Webster’s at 1935 (defining “response” as “act or action of saying something in return, making an
answer”); American Heritage at 1496 (defining “response” as “an answer”)). And as applied to the
circumstances of that case, which involved an “‘exercise of the right to petition’ in the form of a
lawsuit” and a “legal action” in the form of a counterclaim to it, the concurrence observed:
The ordinary meaning of a “legal action” that “relates to” the “exercise of the right
to petition” in the form of a lawsuit would encompass, among other claims, those
arising from the same “transaction or occurrence” as the lawsuit, like compulsory
counterclaims. The ordinary meaning of “[i]n response to” would sweep more
broadly still, seemingly including any counterclaim or other competing or defensive
claim that another party subsequently asserts.
Id. at 391–92.
37
the “exercise of the right of free speech definition,” the supreme court reasoned that construing the
phrase to exclude indirect, “tenuous,” or “remote” relationships in the absence of explicit statutory
language to that effect amounted to “reading language into the statute that is not there.”86 The
Legislature has required only that a “legal action” “relates to” TCPA-protected activity or “is in
response to” such activity, with no qualification as to either, and Coleman has further instructed us
to give effect to the ordinary meaning of those unqualified terms. On this record, the Abbotts’
additional claims fall well within these parameters.
Before reaching a final conclusion on this issue, however, we should acknowledge
that there continues to exist, at least in theory, a limiting principle holding that plain-meaning
statutory construction does not control where it would yield an “absurd result” that the Legislature
could not possibly have intended.87 There is an understandable inclination to deem this principle
implicated where, as here, the plain-meaning construction of a statute that ostensibly seeks to
vindicate cherished constitutional rights of free expression (and, some say, combat “SLAPP”
litigation) has the effect of protecting such divergent alleged misconduct as auto theft and stalking,
and in the context of a family fracas having little to do with public participation in government. One
might similarly observe that under the foregoing plain-meaning construction of the TCPA, it is hard
to conceive of a “legal action” that is not “based on, relate[d] to, or . . . in response to” at least one
of the TCPA’s three defined categories of protected activity, so long as the complained-of conduct
86
Coleman, 512 S.W.3d at 901.
87
See, e.g., Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015) (“[W]e initially
limit our statutory review to the plain meaning of the text as the sole expression of legislative intent,
unless the Legislature has supplied a different meaning by definition, a different meaning is apparent
from the context, or applying the plain meaning would lead to absurd results.” (citations omitted)).
38
had some kernel of TCPA-defined “communication” within it.88 Perhaps it is these implications that
truly “sound crazy,” to borrow Wylie’s phrase.
But, as the Texas Supreme Court has instructed us, “[t]he absurdity safety valve is
reserved for truly exceptional cases, and mere oddity does not equal absurdity.”89 We ultimately
cannot say that the foregoing plain-meaning construction of the TCPA rises to the “truly
exceptional” “absurdity” level. The Act, as previously explained, seeks to “safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate
in government” against infringement by meritless lawsuits by defining a suspect class of “legal
actions” that are deemed to implicate free expression and making these subject to the remedies the
Act provides. The issues we have been exploring regarding the Act’s definitions of protected
expression and the “is based on, relates to, or is in response to” connector go to the breadth of that
suspect class. It is conceivable that the Legislature would see fit to cast this net exceptionally
widely—opting for a hand grenade rather than a rifle shot—perhaps in recognition of a high value
being ascribed to constitutionally-protected expression that may be subsumed somewhere within the
Act’s definitions of protected expression, or in an effort to capture expression-targeting “legal
88
For years, some of us have cautioned about such implications of the TCPA’s plain
meaning as written. See, e.g., Serafine I, 466 S.W.3d at 377–95 (Pemberton, J., concurring) (urging
that these implications point toward narrower reading informed by constitutional context); Neyland
v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337, at *42 (Tex. App.—Austin
Apr. 7, 2015, no pet.) (mem. op.) (Field, J., concurring) (“It seems that any skilled litigator could
figure out a way to file a motion to dismiss under the TCPA in nearly every case, in the hope that
the case will not only be dismissed, but that the movant will also be awarded attorneys’ fees.”); see
also Serafine I, 466 S.W.3d at 357 n.1 (acknowledging these “valid concerns over the breadth of the
Texas Citizens Participation Act”).
89
Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013); see id. (explaining
that “the bar for reworking the words our Legislature passed into law is high, and should be”).
39
actions” that might otherwise be creatively pleaded so as to avoid the statute’s requirements. That
such crafting of a statute might have practical consequences far afield from its subjectively intended
purposes, or from what has been said to be a statute’s intended purposes, is nothing new. We are
bound to give effect to the statute the Legislature has written.
* * *
The district court correctly concluded that the Abbotts’ assault claim is exempted
from the Act. However, contrary to the district court’s conclusions, appellants met their initial
burden as to each of the Abbotts’ other claims.
Merits-testing issues
The claims still at issue can survive dismissal, and the district court’s order can be
affirmed, only to the extent the Abbotts established, “by clear and specific evidence[,] a prima facie
case for each essential element of [each] claim in question.”90 Further, regardless of whether the
Abbotts met this burden, a claim must be dismissed to the extent appellants have “establishe[d] by
a preponderance of the evidence each essential element of a valid defense to [that] claim.”91
Although the district court did not reach these additional inquiries, they were before the court when
it ruled on appellants’ motion,92 and no additional trial-level proceedings are necessary for the issues
90
Tex. Civ. Prac. &. Rem. Code § 27.005(c).
91
Id. § 27.005(d).
92
See id. § 27.005(b)–(d).
40
to be judicially determined.93 Accordingly, we proceed to “render the [order] that the trial court
should have rendered.”94
We need only address the Abbotts’ burden. The Abbotts’ burden can be restated in
terms of three components: (1) with respect to “each essential element of [each] claim in question,”
they must have presented (2) a “prima facie case” (3) “by clear and specific evidence.”95 “Essential
element” is used in the conventional sense to denote the facts that a party must plead and prove in
order to obtain relief on a claim.96 Similarly, “prima facie case” has been held to incorporate that
phrase’s “traditional legal meaning”—“evidence sufficient as a matter of law to establish a given fact
if not rebutted or contradicted,”97 also described as “the ‘minimum quantum of evidence necessary
to support a rational inference that the allegation of fact is true.’”98 The requirement of “clear and
specific evidence,” in turn, serves to limit the range of evidence that counts toward a prima-facie
case solely to that which is “unambiguous,” “sure,” or “free from doubt’” (the ordinary meaning of
“clear”) and “explicit” or “relating . . . to a particular named thing” (the ordinary meaning of
93
See id; Serafine I, 466 S.W.3d at 357 (“We . . . review de novo a trial court’s
determination of whether a [TCPA] nonmovant has presented clear and specific evidence
establishing a prima facie case for each essential element of the challenged claims.”).
94
See Tex. R. App. P. 43.3; see also id. R. 44.1(a) (harmless-error rule).
95
See Tex. Civ. Prac. &. Rem. Code § 27.005(c).
96
See Lipsky, 460 S.W.3d at 592–96 (discussing, with respect to TCPA non-movant’s
burden, essential elements of business-disparagement and defamation claims).
97
Id. at 590 (citing Simonds v. Stanolind Oil & Gas Co., 136 S.W.2d 207, 209 (Tex. 1940)).
98
Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)
(per curiam)).
41
“specific”).99 Collectively, these elements require that a party “provide enough detail to show the
factual basis for its claim,”100 and thus effectively abrogate the utility of mere notice pleading as
“evidence” to that end.101
In this case, the TCPA “evidence” presented by the Abbotts includes, as previously
noted, the numerous documents that they attached and incorporated into their petition,102 effectively
comprising a petition of over 200 pages in length. These documents are potentially a fertile source
of “clear and specific” evidence to meet the Abbotts’ burden—indeed, one cannot fathom evidence
of an allegedly actionable written communication that could be more “clear and specific” than a copy
of the communication itself. However, in neither the district court nor on appeal have the Abbotts
undertaken to link particular facts reflected in the documents to each of the essential elements for
which they must present a prima-facie case with respect to each claim. Instead, the Abbotts have
merely recited what they view as the essential elements of each claim; cited en masse to pages of the
record they deem relevant to some unspecified element or elements of that claim; but provided no
argument, analysis, or explanation as to which record reference supports which elements or (perhaps
99
Black’s Law Dictionary at 307, 1616; Lipsky, 460 S.W.3d at 590 (approving these
definitions of “clear” and “specific”); accord Serafine, 466 S.W.3d at 358.
100
Lipsky, 460 S.W.3d at 591.
101
See id. at 590–91.
102
See Tex. Civ. Prac. & Rem. Code § 27.006(a); Fawcett v. Grosu, 498 S.W.3d 650, 660
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Based on section 27.006(a)’s directive (‘the
court shall consider the pleading[s] and supporting and opposing affidavits . . . .’) and the Texas
Supreme Court’s interpretation that ‘pleadings and evidence’ setting forth the factual basis for a
claim are sufficient to resist a TCPA motion to dismiss, Grosu [the non-movant] was permitted to
rely on his pleadings (including exhibits) in response to appellants’ motion to dismiss.” (citing
Lipsky, 460 S.W.3d at 591)).
42
more critically) why that evidence would satisfy the specific element under the governing law. This
is akin to the summary-judgment non-movant who, while having the burden, merely points to a
voluminous record, assures the court that a fact issue is in there somewhere, and leaves it to the court
to figure out why or how—a practice long deemed insufficient to defeat summary judgment.103 And
although the documentary evidence we have previously summarized would likely satisfy some
elements of some claims (e.g., the defamatory nature of appellants’ statements accusing Bill of
predatorily exercising mind control over Kristin104), we cannot similarly conclude that each element
of that or any other claim would necessarily be satisfied.
Without more, we cannot conclude that the Abbotts have met their burden to
“establish[] by clear and specific evidence a prima facie case for each essential element of [each]
claim in question.”105 Consequently, the TCPA requires that these claims be dismissed.106
103
See, e.g., Pressley v. Casar, No. 03-15-00368-CV, No. 03-15-00505-CV, 2016 Tex. App.
LEXIS 13651, at *17–18 (Tex. App.—Austin Dec. 23, 2016, pet. filed) (mem. op.) (“In the
absence of any guidance from the non-movant where the evidence can be found, the trial [and
appellate courts are] not required to sift through voluminous [evidence] in search of evidence to
support the non-movant’s argument that a fact issue exists.” (quoting Nguyen v. Allstate Ins. Co.,
404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (quoting Aguilar v. Morales,
162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied)))).
104
See Backes, 486 S.W.3d at 26–27 (accusation that mother was afflicted with
psychological disorder of Munchausen Syndrome by Proxy and resultantly abusing child was held
to be defamatory); see also Lipsky, 460 S.W.3d at 596 (“Accusing someone of a crime, of having
a foul or loathsome disease, or of engaging in serious sexual misconduct are examples of defamation
per se.”).
105
Tex. Civ. Prac. & Rem. Code § 27.005(c); see also Tex. R. App. P. 33.1(a), 38.1(i).
106
Tex. Civ. Prac. & Rem. Code § 27.005(b), (c).
43
CONCLUSION
The foregoing holdings require that we affirm the district court’s order denying
appellants’ TCPA dismissal motion only with respect to the Abbotts’ assault claim. As to each of
the Abbotts’ other claims, we must reverse the district court’s order and render judgment dismissing
the claims. We remand the case to the district court to determine the attorney’s fees and sanctions
that must be awarded incident to such dismissal under the TCPA,107 as well as for reconsideration,
in light of our opinion, of the discretionary attorney’s fees previously imposed by that court against
appellants.108 We emphasize that our holdings address only the specific claims now before us.
_________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed in part; Reversed and Rendered in part; Reversed and Remanded in part
Filed: July 14, 2017
107
See id. § 27.009(a); Serafine II, 2017 Tex. App. LEXIS 4606, at *19–24 (explaining the
TCPA’s attorney’s-fee and sanction provisions).
108
See Tex. Civ. Prac. & Rem. Code § 27.009(b).
44