BOB PEMBERTON, Justice.
This case illustrates that the Texas Citizens Participation Act (TCPA),
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.
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.
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.
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.
With this prologue, Kristin continued to assert her autonomy from her parents during the weeks and months that followed.
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 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.
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." 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 money
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.
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 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.
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.
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 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"
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 [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.
This appeal followed.
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,
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.'"
"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."
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:
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 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."
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.
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.
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."
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.
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.
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,"
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 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
Although the Abbotts' arguments might have greater viability under the more conventional understandings of "matters of public concern" in either constitutional jurisprudence
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."
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."
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.
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,"
"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."
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.
Urging otherwise, the Abbotts insist that this case is a reprise of Sloat v. Rathbun.
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 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 cases
"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,
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.
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 and Hayes, served the subpoenas, and continued to persist in posting videos and making other communications about the Abbotts' mental health and supposed "abuse."
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.
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 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."
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.
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."
* * *
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.
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."
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."
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,
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."
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,
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).
___ 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))).
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.
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 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:
Id. at 391-92.