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Cavin v. Abbott

Court of Appeals of Texas, Third District, Austin

April 30, 2018

Wylie Cavin; Lillian Cavin; and Eagle Radiology, PLLC, Appellants
Kristin Abbott and William Abbott, Appellees


          Before Justices Puryear, Pemberton, and Bourland



         This cause-an interlocutory appeal brought under color of Civil Practice and Remedies Code Section 51.014(a)(12)-arises from trial-level proceedings on remand following our opinion and judgment in Cavin v. Abbott [1] (which we will start terming "Cavin I" because it is now merely the first of an ongoing series). The appellees have filed a motion to dismiss the appeal for want of jurisdiction. We agree that we lack jurisdiction over the appeal and will accordingly grant the motion and dismiss.[2]


         As was true in Cavin I, the issues now before this Court require a bit of explanation. As we recounted in our Cavin I opinion, the underlying controversy and ensuing litigation has centered on "family tumult over an adult daughter's choice of a husband, " specifically the marriage of Kristin and Bill Abbott despite the vociferous opposition of Kristin's parents, Wylie and Lillian Cavin, and what the Abbotts have decried as scorched-earth tactics by the Cavins to harass and isolate them.[3] To be fair, the Cavins insist that the Abbotts or their allies have also stooped to similar lows in attempting to ostracize them amongst their common extended family and friends. The current filings reflect that collateral effects of the internecine strife have grown beyond those described in Cavin I to include, e.g., heated discovery disputes-including accusations of intentional spoliation-regarding emails allegedly sent to Kristin's elderly grandmother.

         The controversy (thus far) has spawned what originated as four separately filed lawsuits: (1) a $1 million defamation suit filed in mid-2015 by the Cavins against Sandy Whitley, Lillian's sister and a supporter of the Abbotts in the family schism; (2) a second $1 million defamation suit filed by the Cavins later in 2015 against Sandy's husband and fellow Abbott ally, David Hayes; (3) the lawsuit filed by the Abbotts in early 2016 against the Cavins and Lillian's business (Eagle Radiology, PLLC) that became the immediate focus of the Cavin I appeal; and (4) yet another defamation suit filed by the Cavins, in mid-2016, this time targeting Bill Abbott, which was consolidated shortly thereafter into the Abbotts' Cavin I lawsuit.[4] The first lawsuit (Cavins v. Sandy Whitley) and the consolidated third and fourth lawsuits (the Cavin I lawsuit plus the Cavins' defamation claim against Bill Abbott) form the backdrop of the post-remand proceedings now at issue. The second lawsuit (Cavins v. David Hayes) is not implicated directly, but it has given rise to a separate appeal that is also pending before this Court.[5]

         As our Cavin I opinion explained, that appeal was brought by the Cavins and Eagle to challenge an interlocutory order denying their motion under the Texas Citizens Participation Act (TCPA) to dismiss the claims asserted by the Abbotts against them. The TCPA's broad language as written, the state of the controlling jurisprudence, and the posture of the Abbotts' trial-level filings compelled us to hold that the Act required dismissal of most of the claims that the Abbotts had asserted as of that juncture; the Abbotts' sole pending claim to survive the motion was the one seeking damages based on the Cavins' alleged assault of Kristin in February 2014.[6] This partial grant of the TCPA dismissal motion necessitated further proceedings on remand to determine, per the Act's requirements, the amount of attorney's fees and sanctions to be awarded to the Cavins and Eagle.[7] Following issuance of mandate, the district court awarded the Cavins and Eagle $21, 500 in attorney's fees and $1, 000 in sanctions.

         Meanwhile, upon mandate in Cavin I, Bill Abbott had filed his own TCPA motion to dismiss the Cavins' defamation claims against him (which, again, had remained pending in the same consolidated trial-level cause). The Cavins filed objections to evidence Bill had submitted in support of his motion and alternatively sought the discretionary limited discovery authorized by the TCPA.[8] Contemporaneously with its order awarding the Cavins and Eagle attorney's fees and sanctions on their TCPA motion, the district court signed an order granting Bill's TCPA motion and dismissing the Cavins' claims against him, reserving the amount of mandatory attorney's fees and sanctions for further hearing.[9] And by separate order on the same date, the district court sua sponte also consolidated into this same underlying cause (now consisting of the Abbotts' assault claim against the Cavins and Bill's still-pending request for TCPA fees and sanctions incident to the dismissal of the Cavins' defamation claims against him) the Cavins' pending defamation suit against Sandy Whitley.[10]


         With that prologue, the Cavins filed their present appeal in an attempt to challenge the district court's post-remand order granting Bill's TCPA motion.[11] In the same appeal, joined by Eagle, the three have also attempted to complain of the amount of attorney's fees awarded by the district court in connection with their own TCPA motion against the Abbotts. There is no dispute that both challenged orders are interlocutory-still pending below, in the same trial-level cause, are Bill's request for TCPA attorney's fees and sanctions against the Cavins, the Abbotts' assault claim against the Cavins, and now also the Cavins' defamation claims against Sandy Whitley. We lack jurisdiction to review interlocutory orders unless authorized explicitly by statute, and any purported statutory grants of this sort are construed strictly as narrow exceptions to the general rule.[12]

         To invoke our appellate jurisdiction, the Cavins and Eagle point to a statutory authorization-Section 51.014(a)(12) of the Civil Practice and Remedies Code, which confers jurisdiction on us to review "an interlocutory order of a district court . . . that . . . denies a motion to dismiss filed under Section 27.003, "[13] the latter being a reference to the motion to dismiss authorized by the TCPA.[14] Section 51.014(a)(12) was the basis for our appellate jurisdiction in Cavin I, which as noted was an appeal from the denial of a TCPA motion.[15] But the problem here, as the Abbotts emphasize in their motion to dismiss the appeal, is that neither interlocutory order being challenged "denies a motion to dismiss filed under Section 27.003, " as Section 51.014(a)(12) requires.

         One of the two orders instead granted a TCPA motion to dismiss, that of Bill. In Pulliam v. City of Austin, this Court recently dismissed, for want of jurisdiction, a similar attempt to appeal an order granting a TCPA motion to dismiss.[16] We reasoned that that "[n]o statute . . . expressly provides for an interlocutory appeal of an order granting a motion to dismiss under the TCPA, " and cited several decisions of sister courts that had reached the same conclusion.[17] The second order, likewise, partially denied a request for attorney's fees, "a distinct interlocutory ruling that did not deny [a] 'motion to dismiss filed under Section 27.003, ' but instead . . . denied a request for fees as authorized by a separate provision, Section 27.009."[18]

         In insisting that we possess jurisdiction nonetheless, the Cavins seek in effect to litigate the merits of their attempted appeal of the order granting Bill's TCPA motion. They argue that Bill's underlying motion was untimely, such that the motion should have been deemed denied by operation of law at a much earlier juncture, rendering null the order on appeal.[19] Even if the Cavins' premise regarding the motion's timeliness were correct, we would still lack jurisdiction under Section 51.014(a)(12) to review or disturb the order they complain of-which, it remains, is an order granting Bill's TCPA motion.[20] The Cavins do not complain of any explicit or deemed order that "denies a motion to dismiss filed under Section 27.003, " and to the extent their appeal could be construed as doing ...

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