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Cavin v. Abbott

Court of Appeals of Texas, Third District, Austin

July 14, 2017

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

          Before Justices Puryear, Pemberton, and Field

          OPINION

          Bob Pemberton, Justice

         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).

         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.

         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 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 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." 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[6] 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 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 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 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 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 [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 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]

         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 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 dispute[25]) 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 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 pain[27]-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.

         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.

         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 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 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 [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 of the right of association" definitions[43]-"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 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 jurisprudence[47] 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 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 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, 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 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 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- 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' "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 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 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[77]). 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 ...


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