### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00395- CV

Wylie Cavin; Lill ian Cavin ; and Eagl e Radiology, P LLC, App ellants

v.
Kr istin Abb ott and Willi am Abbott, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 6-0 0020 1, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

O P I N I O N

This case illust rate s t h at t h e Texas Citi zens Participation Act (TCPA), as 1 written—and, theref

ore, as the Tex as J udiciary must apply it—can be invoked s ucce ss fu l l y i n the

context of litigation arising from family tumult over an adult daug hter’s choice o f a h u sband.
Amo n g o u r h o l d ings, we are compelled to conclude that the TC PA’s protec tions extend to—and, ultimately , require dismiss al of claims complaining of—statements by the bride’s pare nts that their daug hter’s suitor won her hand through u s e o f “Marx ist” brainwa shing, hy pnotic implantation of phobias and false memories, or simil ar mind -c o n t ro l tactics. (Althoug h the bride’s fathe r contempora

neously acknow ledg ed that these asser tions “sound cra zy ,” that is no bar to the TCPA’s application as the s tatute is written and as the Texas Supreme Court has authoritatively interpre ted it).

See Tex. Ci v. Prac. & Rem. Code §§ 27.001–.011. 1Fu rt h er , at least i n the pos ture of this appea l, the TC PA also protec ts, and requires

dismiss al of claims conce rning , inter alia , stalking by private investiga tors the p ar en ts hired, the
fathe r’s alleg ed theft of the daug hter’s car , and the fathe r’s unfavor able compar ison of the husband’s phy sical appe ara

nce to a “dog ’s butt.” B ut an express exception for bodily -injury claims preve nts this “anti-SL APP” law from simil arly barr ing an assault claim pred ic ated on an alleg ed violent attack by the fa ther upon the da

ug hter.
The dist rict court denied TCP A di smissal under these circums t an ce s and required
the movants to pay attorney ’s fee s. The net eff ect of our holdings is that we must aff irm the district
court’s order only with respe ct to the assault claim, dismiss eac h of the other claims, and rema nd the
issues of attorne y ’s fe es and sa nctions.

BACK GR OUND
T h e T C P A require s us to dismiss most of the couple’ s claims despite thei r
prese ntation of evidenc e, attache d as exhibi ts to their pleading s, tha t p o te n ti a ll y would be compelling
befor e a jury

—chief ly , copies of dozens of “smoking g un” text s, emails, letters, and other writing s
g ener ated by the p ar en t s t hat ref lect an arr ay of often-disturbing acts that form the basis for the couple’ s claims. The pare nts have not disputed the authenticity of these documents, nor otherwise opposed their inclusion in the rec ord befor e the district court. Be cause these acknow ledg ed words
and deeds provide perha

ps the best explanation of the unusual circ umstances from which this c ase arises, w e will drawfrom them extensively in the following summary
.

2Appellee s Kristin and Wil liam (B ill) Abbott wer e marrie d in the fall of 2014. Kristin

is the daug hter—a

nd only child—of appellants Wy lie and L illian Cavin. As Kristin’s rela tionship 2
with Bill prog resse d toward matrimony , the Cavins voiced s t rong pare ntal disapproval of their
d au gh t er’ s choice of husband and attempted to intervene to preve nt the union. At the t i m e t h e Cavins a sserted this g ateke eper role, Kristin w as in he r mid-20s, lived in a separ ate residenc e, and
had g ra d uated colleg e about four y ear s ear lier. In the interim, Kristin had worke d at the Public Utility Commi ssion befor e leaving in 2013 to pursue a master’ s deg ree in the en er gy fi eld at the
Un i v er s i t y of Texas. The Cavins profe ssed to perc eive Kristin as uniquely vulnera ble due t o a hear ing impairment, which require s her to we ar hear ing aids in both ear s. The Cavins had also

reta ined considera

ble sway in Kristin’s adult life by continuing to subsidiz e her education, living expenses, and a c ar.

The Cavins’ opposition to the rela tionship and a corr esponding distancing of Kristin

eventua ll y l ed t o a pivotal pare nt-daug hter confr ontation in Kristin’s apar tment in late Fe bruar

y 2 014. On that occa sion, the parties ag ree , Kristin pointedly advised her pare nts that she would continue pursuing the rela tionship with Bill despite their wishes. A phy sical alter cation ensue d in
which W y lie and Kristin bot h ended up on the floor, although the parties disput e who roug hed up
whom. I n the incident’s afte rmath, the Cavins would send text s acc using Kristin of disloy alty and

3

Given the c ommon surnames, we use first name s for e ase of ref ere nce. 2
Acc ording to Kristin’s version, Wy lie tackled her to the floor, hurting her tailbone; pinned 3 her arms above her head, causing further injury ; and scre amed in her fac e. The Cavins, in contra st, claim that Kristin had initiated the violence by g rabbing L illian in an eff ort to preve nt her from making a phone call, prompting Wy lie to restra in Kristin by holding her wrists. The pair ended up on the floor, Wy lie would later aver , beca use Kristin “lifted her arms into the air as if to slip my g rip, and when that didn’t happen she intentionally fell back to the floor taking me down to the floor with 3ingr atitude toward them, and L illian by phone acc used Bill of “destroy ing” their family

. Wil ey also

sent text s to Bill convey

ing both insults and threa ts. Wit h this prolog ue, Kristin continued to asser t her autonomy from her pare nts during
the wee ks and months that followed. She went on to marry Bill, as previously indicated, and in the 4
meantime attempted (with mix ed succe ss) to c ut of f further contac t from the Cavins, r eloca ted her
residenc e from her par ent-funded apar tment to Bill’s apar

tment (she profe ssed to fea r further
violence from Wy lie, who appar ently had acc ess), and chang ed her surname from Cavin to Whit ley (L illian’s maiden name) even before taking the Abbott surname upon the couple’ s marria g e a f ew

wee ks lat er. She also opted to return to work at the PUC afte r leaving her g raduate prog ram, a depar ture from pri o r pare ntally approve d plans to next pursue an MBA at a prestigious uni versity
in another city (the Cavins had place d considera ble emphasis on Kristin’s “upwa rd path” toward becoming an executive in the e lectric power industry).
Meanw hile, as both a response to and fu rt h er i m petus for Kristin’s asser tions of independe nce, the Cavins esca lated their eff orts to disrupt Kristin’s marria g e plans and rela ted life
decisions. As ref

lected in the ir numerous writing s, the Cavins pur sued tactics that included hiring

her.” “F eeling it was unsafe to move,” Wy lie continued, he rema ined on the floor while Kristin “wa s kicking me in the leg s and knees,” until she “ca lmed down,” wher eupon he rose and peac efully left the apar tment. I ncidentally , it appea rs undisputed that Wy lie is approximately six inches taller than Kristin and outweig hs her by upwar ds of six ty

pounds. Kri s t i n ch ara cter izes the alterc ation as her brea k from a longsta

nding pattern of 4 intimi dation and coe rcion that the Cavins—c hiefly , Wy lie—had wielde d over he r so as to compel obeisanc e to their wants and needs at the expense of subverting her own. I n that reg ard, Kristin alleg es that a simil ar outbreak of violence had occur red during her adolesc ence
. On both occa sions, Kristin clai ms, L illian responde d by downplaying or denying her trauma and also repe ating insistently , “Doe s Daddy

beat y ou? Does Da ddy

beat y ou? ” 4a pri v at e i nvestig ator in 2014 to rese arc h Bill’s persona l history , later using information they

perc eive d unflattering to disparag e Bill to Kristin and others. The Cavins also direc ted the investigator to surveil the couple and (as Wy lie descr ibed it in an email to the investigator) to “rattle” Bill by making the investig ator’s pr esenc e known. Af ter an investigator showed up a t the PUC in
J une 2014, ostensibly to asce rtain her welfa re on her pare nts’ behalf

, Kristin filed a po l ice repor t complaining of the investig ator’s “ stalking” of her

.

The Cavins also continued—contr ar y t o Kristin’s repe ated reque sts and
demands—a ttempting to contac t her via text , email, or in-person confr ontations. Among the latter

was an incident on the Univ ersity of Texas campus in April 2014, when L illian showed up unexpectedly following one of Kristin’s g raduate-school classes, Kristin attempted to avoid L illian,
and an ensuing scene resulted in L illian’s arr est on assault char g es. Fo llowing the arr est, Wy lie 5
confiscated the car that Kristin used for transporta tion (he claimed to be the rig htful owner , althoug h
the Abbot t s dispute this), leaving her stranded afoot on the campus. L ater that y ear , the Austin Police Depa

rtment would issue a no-c ontact letter ag ainst the Cavins.
The Cavins further attempted to undermine support for the couple’ s union throug h

numerous communications made to members of both their own and Bill’s extended families. They

s i m ilarly rea ched out to numerous friends and acqua intances of both the Cavins and Kristin individually

. Additionally , afte r lear ning that Kristin had applied for re- employ ment at the PUC in
lieu of the MBA prog ram, Wy lie wrote a letter to the ag ency ’s human-re source s direc tor in Ma rch
2014 to advise of the Cavins’ pref ere nce that Kristin “continue with her orig inal educational plans.”

The c harg es we re la ter dismissed. 5
5Wy lie further insinuated that the ag ency bore some re s ponsibili ty for the couple’ s “unhea lthy

rela tionship” beca

use Bill, who also worke d at t h e age n cy , had once been place d in a supervisory position over Kristin there.

Simi larly , L illian, who had persistently demanded that Kristin see a churc h-base d
counselor whom the Cavins ha d consulted, wrote a counselor w hom K ristin ha d seen, disparag ing
Bill and urg ing the counselor to cooper ate in secur ing a joint session with the Cavins’ pref err ed
counselor. I n this l et t er , L illian also emphasized her own qualifica tions and status as a medical profe ssional—she is a medical doctor who prac tices radiolo gy —and utiliz ed the letterhe ad of the entity throug h which she pr actice s, Eag le Radiolog y , PL L C.
T h e C av i n s’ num erous writings to Kristin, Bill, or t hird parties convey ed a varie ty of conce rns and criticisms reg arding Bill. Among these, the Cavins insinuated that Bill was seeking

to exploi t Kr i s t i n fo r her money and otherwise questioned his g ener al worthiness to wed their 6
beautiful daug hter (e.g , Wy lie urg ing Kristin via email that sh e and Bill “look[] like a beautiful

I n a simil ar vein, Wy lie, who has a law deg ree and evidently has prosper ed in banking and 6 investments, and L illian, who as previously indicated is a doctor, looked askanc e at the profe ssional acc omplishm ents and status of Bill, a man of compar atively modest means who had spent most of his ear ly adulthood obtaining th r e e u n d e r g r a d u a te d e g r e e s ( in p s y

c h o lo g y , chemistry , and economics) and a masters, purportedly while working part-time, befor e joining the PUC staff in 2010. As Wy lie expressed this view in one of his text s to Kristin, Bill “has literally done NOTHI NG,” and the Cavins further inferr ed that Bill must also have incu rr ed s u bstantial student debt from his many y ear s of highe r educ ation.
The Cavins wer e also critica l of an ag e differ ence (B ill was in his late 30s) and the fac t that (per their investigator) Bill had never previously marrie d. Perce ived relig ious differ ence s wer e also mentioned, as was worry that the marria g e would impede Kristin’s educational and car eer prospec ts as they saw them (the latter of which came to pass, in the Cavins’ view, with her decision to resume employ ment at the PUC). 6flower next to a pile of dog shit” and that he “coul d s h ave a dog ’s butt and teac h him to walk

backw ards a

nd he’d look be tter than B ill Abbott”).
But the Cavins also adva

nced a less orthodox pare ntal objection that also serve d as an alternative ex planation for their daug hter’s a lienation from them and dis reg ard of their wishes. They profe ssed an emphatic belief that Bill had a “sociopa thic” or “nar cissistic” psy cholog ical
disorder a nd that he, aide d by

an educational ba ckg round in psy cholog y (one of his underg raduate deg ree s), h ad predatorily used “Mar x ist tactics,” “re -educ ation,” “bra inwashing ,” “implant[i ng ] thoughts, false memories, and phobias,” or other means of psy cholog ical coer cion to wield control

over Kristin’s mind and actions. The Cavins simil arly deduce d, as further explanation for Kristin’s

asser tions of autonomy , that Bill had likely installed softwar e enabling him t o monitor Kristin’s
email and text communications and that Bill must have been the true author of emails or text s sent under Kristin’s name. As Wy lie acknow ledg ed when explaining these theories to a rela tive, “I f this
is starting to sound cra zy , that’s exactly what it is , ” b u t t h e Cavins purported to believe them
nonetheless. 7 By

ear ly Marc h 2014, L illian had shown up at t he P UC demanding to see the c hief
of staff and insisti ng that Bill was h o l d i n g Kr istin ag ainst her will. The Cavins’ primary theme

The Cavins’ writing s sug g est that t h is view of Bill had orig inated in response to Bill’s 7 perc eived reluc tance to spend much time with his prospec tive in-laws, and they also emphasized that Kr i stin had purportedly not been fond of Bill initially , even finding him “cr eepy ,” befor e Bi l l ev en tually won her over. But the Cavins soon beg an insisti ng also that their theory of Bi l l as a ma le v o le n t, mi n d

- controlling sociopath had been validated by their churc h-base d coun s e lo r , a n d th e y would simil arly come to cite various online resour ces reg arding mind control or ab u s e in rela tionships.
7there afte r was to the eff ect that both Bill and Kri s t i n we re mentally ill and had an “abusive
rela tionship” maintained throug h Bill’s mind-control tac tics.

And these communications did not cea se even afte r the couple marrie d. Recurr ence s include a leng thy letter from L illian to sever al of Kristin’s fr iends in e arly 2015 and a Marc h 2015
letter from Wy lie to the PUC’s HR direc tor—on the one-y ear anniver s ar y o f his previous letter—purpor

ting to reque st assistance in resc uing Kristin from her “abuse ,” and ag ain insinuating
that the ag ency bore some responsibility for placing Bill in a position to (as the Cavins portrayed the situation) prey

on her.
The Abbotts eventua lly obtained counsel to help resist what they v i ew ed as a malicious and rathe r bizarre campa ign of hara ssment and retribution. I n April 2015, counsel wrote Wy lie demanding that Wy lie retra ct al l eg ed defa matory statements contained in his Marc h 2015
letter to the PUC. The letter also dem an d ed t h at W y l i e return the car that he had confiscated in 8 April 2014, along with personal items belong ing to Kr istin t hat had be en inside the ve hicle.

Counsel’s letter did not resolve matters. On the contra ry , W y l i e wr o te the PUC a third time. And the Cavins took ag g ressive steps ag ainst persons they suspected of expressing views
critica l of their actions, such as by sug g esting that the Cavins themselves could have mental-he alth
issues or had e ng ag ed in abusive, c ontrolling be havior. Complaining of alleg ed stateme nts to this
eff ect, the Cavins sued L illian’s sister, Sandy Whit ley , and Sandy ’s husband, David Hayes, seeking $1 milli on eac h for defa

mation. I n addition, afte r obtaining th ro u gh d i s covery emails betwee n

9

See Tex. Ci v. Prac. & Rem. Code § 73.055. 8
See No. D-1-G

N-15-002890 (53rd J udicial Dist

. , T ravis Cty .); No. D-1-G N-15-005750 9 (53rd J udicial Dist., Travis Cty .). The Cavins would later bring a simil ar suit ag ainst Bill, which was 8Kristin and Sandy ref ere ncing a d

v ic e p u r p ortedly provided to Kristin by a psy cholog ist, L illian wrote that provider a letter simil ar to her ear lier missive to Kristin’s counselor—a g ain on Eag le Radiology
letterhe ad and a g ain touting L illian’s status and qualifica tions as a medica l doctor—disputing a ny notion that L illian herse lf had mental-heal t h issues and threa tening a profe ssional disciplinary complaint to the extent the profe ssional advised Kristin otherwise. And beg inning in late 2015, the
Cavins also beg an disseminating their “abusive rela tionship” narr ative to the social-media audienc e, throug h a ser ies of videos that L illian posted online.

I n J anuar y 2016, the Abbotts filed suit ag ainst the Cavins and, in connec tion with the

two letters written by L illian to h ea l t h -ca re providers, Eag le Radiology (collec tively , appellants), seeking money damag es and injunctive relief

. I n their l ive petit ion, the Abbott s asser t theories of
defa mation (complaining chief ly of appellants’ numerous statem en t s t o third parties acc using the
Abbotts of mental illness or “abuse ”), conver sion (base d on Wy lie’s confiscation of the car and some
persona l items of Kristin’s that wer e inside), tortious interfe renc e with exi sting contra ct (for the alleg ed disruption of Kristin’s rela tionships with her counselor and thera pist), abuse of proce ss (for
all eg edly using discovery subpoenas in the W hitley suit mere ly to obtain fodder for their ongo i n g
campa ign of hara s s m en t and defa mation), assault (base d on the alterc ation in Fe bruar y 2014),
intrusion-on-sec lusion invasion of privac y (chie fly for the conduct of the Cavins’ investigator), and
intentional infliction of emotional distress (for appellants’ other acts and communications that wer e threa tening , hara ssing, or crue l). As support for their fac tual alleg ations, the Abbotts attache d as

consolidated into the underlying cause
. See No. C-1-C V- 1 6 -6 7 4 1 (C ounty Court at L aw No. 1, Travis Cty .). 9exhibi ts to their pleading s documentar y evidenc e that included the numerous text s, emails, letters,
and other written communications that appellants had g ener ated in the course of their complainedof ac tiviti es. Appellants timely filed a motion under the TCPA seeking to dismiss the Abbotts’ suit
in its entiret y
. Ap p ellants premised their dismiss al motion primarily on the contention that their

numerous statements about the Abbotts’ mental health or “abuse ” met the TCPA’s definition of the
“exerc ise of the rig ht of fre e speec h” beca use these wer e “communica tion[ s] made in c onnection 1 0
with a matter of public conce rn,” namely “hea lth or safe ty

. ” Appellants also insisted that the 1 1
Abbotts’ claims implicated appellant s ’ “exerc ise of the rig ht to petition”—their lawsuits ag ainst Sandy Whit ley and David Hay es and use of discovery sub p o enas in those actions. The Abbotts 1 2
filed a response , urg ing, among other arguments, that the TCPA had no application to their suit and
that their assault claim , re gar d l ess, fell within the Act’s express exemption for “leg al action[s] seeking rec overy

for bodily

injury .” 1 3 Following the hear ing, the district court denied appellee s’ motion in full. The order
included express conclusions that the Abbotts ’ “assa ult claim

. . . is expressly exempt from the

See Tex. Civ. Prac. & Rem. Code § 27.003(a) (authorizing motion to dismiss “[i] f a leg al 1 0 action is based on, rela tes to, or is in response to a party ’s exercise of the rig ht or fre e speec h, rig ht to petition, or right of

association”)

. See id

. § 27.001(3) (def

ining “exerc ise of the rig ht of fre e speec h”), (7) (def ining “matter 1 1 of public conce rn”) ; see also id

. § 27.001(1) (d efining “communica tion”), (6) (def ining “leg al action”)

. See id

. § 2 7

. 0 0 1 (4 )(A)(i) (def ining “exerc ise of the rig ht to petition” to include “a 1 2 communication in or per

taining to . . . a

judicial proce eding ”). See id . § 27.010(c)

. 1 3
10[TC PA] , and [ that] the ot her claims are not matters of public conce rn as a matter of l aw and [are]

thus not cover ed

. ” The court in its order also deter mined that appellants’ motion had been “filed
frivolo u s l y , based on the case law and the plain lang uag e of the [TC PA] ,” and exercised its
discretion to awa

rd the Abbotts rea sonable attorney ’s fee s. Ba sed on evidenc e reg arding a flat-f ee 1 4

arr ang emen t b et wee n the Abbotts and their counsel, the court awa rded them $1,000 as a

rea sonable fe e. This appea l followed. 1 5

ANALYSIS

I n three issues, appellants urg e that the distri c t c o u r t e r r e d in , r e s pectively , (1) denying
their motion to dismiss wi t h re s p ec t to their “exerc ise of the rig ht of fre e speec h” predic ate; (2) denying the motion to dismiss with respe ct to their “exerc ise of the rig ht to petition” predic ate; and (3) a war ding the Abbotts attorney ’s fe es.

The TCPA’s basic features are well known by now. T h e A c t p r o f e sses an overa

rching
purpose of “saf

eguard[ing] the co n s t i t utional rig hts of persons to petition, speak fre ely , associate
fre ely , and other

wise par ticipate in gover

nment” aga inst infring ement by meritless lawsuits, and 1 6

See id

. § 27.009(b) (“I f the court finds that a motion to dismiss filed under this chapte r is 1 4 frivolous or solely intended to delay , the court may awa rd court costs and rea sonable attorney ’s fee s to the responding party .”). See id. § 51.014(a) (12). 1 5
See id

. § 27.002 (spec ify ing TCPA’s “purpose

. . . t o encourag e and safe g uard the 1 6 constitutional rig hts of persons to petition, speak fre ely , associate fre ely , and otherwise participa te in g overnme nt to the maxi mum extent permitted by law and, at the same time, protec t the rig hts of a person to f

ile meritorious lawsuits f

or demonstrable injury ”); In re Lipsky , 460 S.W .3d 579, 589 (Tex. 2015) (orig

. proce eding ) (summarizing this purpose as to “identify and summarily dispose of
11is of

ten char acte rized as an “anti-SL APP” la w. The Act further direc ts tha t it is to be “construe d 1 7 liberally to eff

ectuate its purpose and intent f ully .” The TCPA pur sues any such g oals chief ly by 1 8 defining a suspect class of leg al proce eding s that are deeme d to impli cate fre e expression, making
these proce eding s subject to threshold testing of potential merit, and compelling rapid
dismiss al—with mandatory cost-shifting and sanc tions—for any found wa nting. 1 9

lawsuits desig ned only to c hill F irst A mendment rig hts [but ] not

. . . dismiss meritorious lawsuits” (citing Tex. Ci v. Prac. & Rem. Code § 27.002)).

See , e.g. , E l ite Auto Body LLC v. Autocraft Bodywerk s, Inc. , ___ S.W .3d ___, 1 7 No. 3-15-00064- CV, 2017 Tex. App. L EXI S 4108, at *4 n.9 (Tex. App.—Austin May 5, 2017, pet. filed) (“‘ SL APP’ is an acr ony m for a ‘Strateg ic L awsuit Ag ainst Public Participation,’ which ref ers, g ener ally speaking , to a meritless lawsuit that is aimed only at deter ring fre e expression throug h the collater al impacts of the litigation proce ss in itself. The TCPA is said to be an ‘anti-SL APP’ law.”) ; see also Serafine v. Blunt ( Serafine I ), 466 S.W .3d 352, 365–67 (Tex. App.—Austin 2015, no pet.) (Pemberton, J ., concur

ring ) (summarizing TCPA’s leg islative history and proponents’ emphasis on profe ssed “a

nti-SL APP” conce rns). Tex. Ci v. Prac. & Rem. Code § 27.011(b). 1 8
See id

. §§ 27.003(a) , .005(b)–( c), .009(a) ; see also id

. § 27.001(2)–( 4). As we explained 1 9 in Autocraft : Although the TCPA’s stated purpose is to serve “the constitutional rig hts of persons to petition, speak fre ely , associate fre ely , and otherwise participa te in g overnme nt,” the Act does not pursue this ultimate g oal direct l y , aside from [t he finding s authorized by Section 27.007(a) ], which p re s u m ably are to inform a court’s awar d of sanctions under the Act. The primary means by whi ch t he TCPA advanc es its purpose is more ci rc u itous—an expedited dismiss al mecha nism tied to a burdenshifting analy sis “throug h which a litigant may require , by motion, a threshold testing of the merits of leg al [actions] that are deeme d to implicate the expressive interests protec ted by

the statute.”

___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *13–14 (quoting Tex. Civ. Prac. & Rem. Code § 27.002; Serafine I

, 4 6 6 S.W .3d at 369 (Pemberton, J ., concur ring )); see also id

. at *14 n.41 (obser ving that the TCPA in this respe ct has some simil arities to the Medica l L iability Act’s expertrepor t require ment (quoting Serafine I , 466 S.W .3d at 375 (Pember ton, J ., concur

ring )))

. 12When construing and apply ing the TCPA, as with other statutes, the Texas Supreme

Court has emphasized that we are to look first to the Act’s “‘pla in lang uag e,’” and if unambig uous, “‘inter pret the s t at u t e acc ording to its plain meaning .’” “Additionally , ‘[w] e presume the 2 0
L eg islature included eac h word in the s t at u t e fo r a purpose and that words not included wer e purposef ully omitted.’” 2 1

“Legal action” sub jec t to TCP A

The TCPA fra

mes its suspect class of l eg al proc eeding s in terms of “leg al ac tions” having cer

tain char acte ristics. The Act define s “leg al action” as “a lawsuit, cause of action, petition, complaint, cross-c laim, or counterclaim or any other j u d i cial pleading or filing that reque sts leg al

or equitable relief

.” Having sued appellants seeking monetary and injunctive relief under multipl e 2 2 liability theories, the A

bbotts have unquestionably asser ted one or more “leg al actions” within the
TCPA definition. Howeve r, in Section 27.010 of the TCPA, the L eg islature has exempted cer tain 2 3 ty pes of “leg al actions” from the Act (and, there fore , from the suspect class potentially subje ct to

Exx onMobil Pipeline Co. v. Coleman , 512 S

. W

. 3 d 895, 899 (Tex. 2017) (per curiam) 2 0 (quoting Lippincott v. W

hisenhunt , 462 S.W .3d 507, 509 (Tex. 2015) (per curiam)). Id . (quoting Lippincott , 462 S.W .3d at 509). 2 1 Tex. Ci v. Prac. & Rem. Code § 27.001(6). 2 2
See A u t o cr aft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *6 (“The re is no 2 3 question that Autocra ft’s lawsuit seeking injunctive and monetary relief , or alternatively eac h of its component claims for such relief , is a ‘leg al action’” (q u o t i n g 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. L EXI S 296 , at *28–29 (Tex. Mar. 17, 2017) (confirming that differ ent “c laims” or ca uses of action ca n be conside red se parate “leg al ac tions” for purpose s of TCPA). 13dismiss al), and these include “a leg al action seeking rec ov er y fo r b o d ily injury .” The Abbotts 2 4
persua ded the district court that their assault claim fe ll within t his ex emption, and appe llants urg e this was err or. Appellants emphasize that the Abbotts ha d the burden to establish the exemption’s applicability

(a pr oposition t hat the Abbotts do not appea r t o dispute ) and insist that the Abbott s

2 5 failed to do so. We disag ree
.

The Abbotts’ assault claim is founded on their fac tual alleg ation s reg arding the
alterc ation betwee n Kristin and the Cavins that took place in late Fe bruar y 2 0 1 4

. I n their live petition, the Abbotts pleaded, in mater ial part, that:

Wy lie Cavin, who is over s i x fe et tall, phy sically assaulted Kristin by coming up behind her, g rabbing her wrists, and forc ing her arms behind her. Wy lie Cavin then forc ed Kristin down to the g round on her back, pulled her arms above her head and held her writs toge ther with his hands and locked Kristin’s body betwee n his knees, pinning her to the g round with the weig ht of his body on top of her. Wy lie Cavin’s g rip on Kristin’s wrists cause d pain, and her hands turned blue and beca me numb. As Wy lie phy sically assaulted Kristin, he also scre amed in her fa ce
. Wy lie Cavin’s phy sical assa u l t o f Krist in cause d painful injury to her tailbone and cause d her to experience ong oing pain requiring phy sical thera py
. The psy cholog ical traum a as s ociated with being phy sically assaulted by her fathe r has continued to ca u s e Kristin severe emotional distress to this day

.

The Abbotts further pleade d that th es e al l eged acts by Wy lie wer e committed intentionally , knowing ly , or reckle s s l y , and were actionable as the t ort of assault of Kristi n, “entitl[i ng ] [her] to

Tex. Ci v. Prac. & Rem. Code § 27.010(c)

. 2 4
See , e.g., Kinney v. BCG Atty. Search, Inc. , No. 03-12-00579- CV, 2014 Tex. App. L EXI S 2 5 3998, at *18 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op. on reh’ g ) (re cog nizi ng that nonmovant claimant had burden to establish applicability of exemp t i o n u n d er TCPA Section 27.010(b) (c i t i n g, inter alia , Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W .3d 71, 88–89 (Tex. App.—Houston [1s t Dist.] 2013, pet. denied) )).

14damag es based on mental ang uish, and medical expenses for the injury to Kristin’s tailbone and need

for continued phy sical thera py .” The Abbotts als o s p ec i fica lly pray ed for “any medical expenses incurre d based on Wy lie Cavin’s assault.”

“B odily injury ” commonly denotes “[p] hy sical damag e to a person’ s body .” The 2 6
Abbotts’ assault claim seeks rec overy for alleg ed injuries that are plainly of this char acte r—medica l
expenses for phy sical damag e and compensa tion for phy sical pain —and appellants do not sug g est 2 7
that this “leg al action” could somehow be subdivided to exclude any additional components of the
soug ht-afte r damag es t hat would arguably fall out side “bodily injury .” Acc ording ly , the Abbotts’ assault claim is exempt from the TCPA as a matter of law.

Black’ s Law Dictionary 906 (10th ed. 2014); see also Trini ty Universal Ins. Co. v. Cowan , 2 6 945 S.W .2d 819, 820–24 (Tex. 1997) (construing standard homeowner s’ insurance policy —which define d “‘bodily injury ’ as ‘bodily harm, sickness or d is e a s e ’ ” —as “not includ[i ng ] purely emotional injuries” and as “unambig uously requir[ing ] an injury to the phy sical structure of the human body ”); id. at 823–24 (“O ur decision comports with the commonly understood meaning of ‘bodily ,’ which implies a phy sical, and not purely mental, emotional, or spiritual harm.” (citations omitted)); Forbes v. L a nzl , 9 S.W .3d 895, 900 (Tex. App.— Austin 2000, pet. denied) (““ Bodily injury ’ m ea n s ‘phy sical pain, illness, or any impairment of phy sical condition.’” (quoting Tex. Pen. Code § 1.07(a) (8)) ); id. (“B odily injury is a broad term and e ncompasses e ven re latively minor phy sical contac ts so long as they constitute more than mere offe nsive 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) (def ining “bodily ,” when used as an adjec tive, as “[o] f, rela ting to, or belong ing to the body ,” and a s “[p] hy sical as oppose d to mental or spiritual”).

See Cowan , 945 S.W .2d at 820–24; Forbes , 9 S.W .3d at 900; Black’ s Law Dictionary at 2 7 906; American Heritage at 204; see also Kirkstall Rd. Enters. v. Jones , ___ S.W .3d ___, No. 05-16-00859- CV, 2017 Tex. App. L EXI S 3883, at *5–6 (Tex. App.—Dallas Apr. 27, 2017, no pet. h.) (neg lige nce claims ag ainst media defe ndant for alleg edly inducing third parties to shoot him came within “bodily injury ” exemption, as it “see ks to rec over for the bodily injuries—four g unshot wounds—that he claims he sustained as a result of Kirkstall’s neg lige nce in editing and producing the prog ram” ). 15I n contending otherwise, appellants attempt to char acte rize the Abbot ts ’ a s s a u lt c la im

as seeking rec o v er y only for “non-phy sical injuries,” further sug g esting that the Abbotts’ counsel
indicated as much during his arg ument at the hear ing. But the Abbotts’ live petition—the instrument
that sets forth the theories on which they “see k[] rec overy”—belies any such char acteri zation. Appellants also maintain that the Abbott s wer e required, and failed, to prese nt “cle ar and specific
evidenc e” to substantiate their assault claim. Appellants err oneously confla te the require ments that apply once a “leg al action” is shown to be withi n t h e s u s pect class with the issue of whether the
Abbotts’ “leg al action” for assault is subject t o these requireme nts in the first place

. The TCP A 2 8
does not make the “bodily injury ” exemption conting ent on a threshold showing of merit or “cle ar and specific evidenc e.” Appellants seek to “re ad[] lang uag e into the statute that is not there ,” and 2 9 3 0 we must instead g ive ef

fec t to the words the L eg islature has a ctually included.
Acc ording ly , the district c ourt did not err in holding that the Abbotts’ assault claim
is exempt from the TCPA and corr esponding ly d en y i ng appellants’ motion as to that claim. We
proce ed to addr ess appe llants’ rema ining a rg uments as they

implicate the Abbotts’ other claims.

Compare Tex. Civ. Prac. & Rem. Code § 27.005(c) (“The court may not dismiss a leg al 2 8 acti o n under this section if the party bring ing the leg al action establishes by clea r and specific evidenc e a prima fac ie case for eac h essential element of the claim in q u es t i o n
. ”), with id

. § 27.010(c) (“This chapte r does not apply to a leg al action seeking rec overy for bodily injury

. . . .”). See id . § 27.010(c)

. 2 9 Coleman , 512 S.W .3d at 901. 3 0
16Initial b urden/ap plicabi lity
The TCPA’s suspect class encompa sses any “leg al action” not shown to be exempted
from the statute that “is based on, r elate[d] to, or is i n response to a par ty ’s exercise of the rig ht of
fre e speec h, rig ht to petition, or rig ht of association.” Although the terms “exerc ise of the right of 3 1 free speec h ,” “exerc ise of the right to petition ,” and “exerc ise of the right of association ” corr espond

to the familiar constitutional conce pts that are the TCPA’s ultimate stated conce rn, the Act supplies

a specific definition of eac h term that does not, save one component of the “exerc ise of the rig ht to petition” definition, expli citly ref ere nce or incorporate the rig hts of speec h, petition, or association

as re cog nized under the F irst A mendment or its Te x as counter part. I n turn, “ is base d on, relates 3 2
to, or is in response to ” serve s to captur e, at a minimum , a “leg al action” that is fac tually predic ated
upon alleg ed conduct that would fall within the TCPA’s definitions of “exerc ise of the rig ht of fre e

Tex. Ci v. Prac. & Rem. Code § 27.003(a)

. 3 1
See Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *14–15 & n. 4 3 3 2 (obser ving that “[w]i thin eac h definition, none ex plicitly ref ere nces or purports t o incorporate t he co n s t i t utional rig hts of association, speec h, or petition, aside from a single component of t h e ‘exercise of the rig ht to petition’ definition” that ref ers to “‘a ny other communication that falls within the protec tion of the rig ht to petition g overnme nt under the Constit ution 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)))

. 17speec h,” petition, or association. Whether this phrase might extend f arthe r has rema ined unclea r 3 3
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 dismiss al mecha nisms must do so by
motion soon afte r t he “leg al act i on” to be challeng ed is filed. The movant must meet an “initial 3 4
burden” (also frequently descr ibed in terms of demonstrating the TCPA’s “applica bility ” ) of

3 5 “show[ing] by a prepondera nce of the evidence” that the “lega l action” sought to be c halleng ed is
within the suspect class, i.e., that it “is based on, rela tes to, or is in response to” the nonmovant’s
“exerc ise of: (1) the rig ht of fre e speec h; (2) the rig ht to petition; or (3) the rig ht of association,” as the TCPA define s those terms. I f the movant succe eds, the “leg al action” must be dismiss ed except 3 6

to the extent “the party bring ing the leg al action establishes by clea r and specific evidenc e a prima

S ee id

. at *6–7 (obser

ving that initial burden “ca n be met if

. . . Autocra ft’s claims are 3 3 predic ated fac tually on conduct that falls within” one of the TCPA-defined cate g ories of protec ted expression); Sloat v. Rathbun , 513 S.W .3d 500, 503 (Tex. App.—Austin 2015, pet. dism’d) (“In apply ing [t he TCPA] , Texas courts—including this one—have g ener al ly f o c u s e d s o le ly on the extent to which the fac tual bases of a challeng ed ‘l ega l action’ constitute expression within the TCPA’s definitions of [ protec ted ex pression].” (citations om itted)). Al t h oug h the Tex as S upreme Court’s TCPA prec edents have not expli citly adopted this construction of “is based on, rela tes to , or is in response to , ” t h ei r analy ses are consistent with it. See Hersh v. Tatum , ___ S.W .3d ___, No. 16-0096 , 2017 Tex. L EXI S 649, at *10–11 (Tex. J une 30, 2017) (discussing role of claimant’s petition in deter

mining “the basis of a leg al action” and holding Act applicable in light of pleading alleg ations meeting “exerc ise of the rig ht of fre e speec h” definition); Coleman , 512 S.W .3d at 897, 899–902 (ana ly

zing whether statements complained of in defa mation suit wer e TCP A- p rot ecte d “exerc ise of the rig ht of fre e speec h”); Lippincott , 462 S.W .3d at 50 8

– 1 0 (ana ly zing whether statements made the basis of defa mation, tortious interfe renc e, and conspirac y claims wer e TCPAdefine d “exerc ise of the r ight of fre e spee ch”)

. See Tex. Ci v. Prac. & Rem. Code § 27.003(b). 3 4
See A utocraft , ___ S.W .3d at ___, 2017 Tex . App. L EXI S 4108, at *5 (citing Coleman , 3 5 512 S.W .3d at 897, 899–901). See Tex. Ci v. Prac. & Rem. Code § 27.005(b). 3 6
18fac ie case for eac h essential element of the claim in que stion.” But even if the nonmovant meets 3 7
this burden and the “leg al action” would otherwise survive, the Act still allows the movant to obtain
dismiss al by “esta

blish[ ing] by a preponde ranc e of the evidenc e eac h essent i al el ement of a valid
defe nse to the nonmovant’s c laim.” 3 8

The “evide nce” the trial court “shall consider” in the se inquiries expressly includes
“the pleading s and supporting and opposing aff idavits stating the fac ts on which the liability

. . . is based,” and the Act contemplates primary relianc e on such proof. Consequently , the Abbotts’ live 3 9 petition—includin g t heir voluminous attachme nts ref lecting and memorializing appellants’
activities—are of centr al importance to the analy sis. “The prec ise meaning of t h e p h ra se ‘pre pondera

nce of the evidenc e’ wit h i n [ t h i s ] proce dural fra mework rema ins unclea

r, as do the
standards by which appellate courts are to revie w these ‘pre pond er an ce -of-the-evide nce’
deter minations by trial courts.” “We can conclude with c erta inty , howeve r, that to the extent the 4 0

Id . § 27.005(c)

. 3 7 Id . § 27.005(d). 3 8 Id

. § 27.006(a) (“In deter mining whether a leg al actio n s h o uld be dismiss ed under this 3 9 chapte r, the court shall consider the pleading s and supportin g and opposing aff idavits stating the fac ts on which the liability or defe nse is ba sed”) ; see Hersh , ___ S.W .3d at ___, 2017 Tex. L EXI S 649, at *10 ([I ]t would b e i m p o s s i b l e to deter mine the basis of a leg al action, and thus the applicability of the [TC PA] , without considering the plaintiff’s pe tition. . . . When it is c lear from the plaintiff’s pleading s that the action is cover ed by the Act, the defe ndant need show no more.” ); Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *6 n.15 (obser ving, in light of Section 27.006(a) , Section 27.006(b)’ s proviso allowing for “spec ified and limit ed discovery rele vant to the motion,” and Section 27.007 (a )’s require ment for additional “finding s” on movant’s reque st reg arding underlying intent or motive of “leg al action,” that “[t] he TCPA cont em p lates primary relianc e, but perha

ps not alway s exclusive relianc e, on ‘evide nce’ consisting only of pleading s and aff idavits”). Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108 , at * 6 & nn. 15–16. 4 0
19[TC PA “evidenc e”] establishes m ater ial fac ts conclusively , our review would be limited to the de

novo construction and a

pplication of the TCPA’s terms.” 4 1 Appellants urg e that they met their initial burden as a m at ter of law beca use the pleading s, aff

idavits, and attachme nts demonstrate conclusively that eac h of the Abbotts’ claims “is
based on, rela tes to, or is in response to” appellants’ “exerc ise of the rig ht of fre e speec h,” in the
form of their numerous statements co n t ai n i n g the subject matter of the Abbotts’ mental health or “abuse .” Alterna ti v ely , appellants argue that at least some of the Abbotts’ claims are “base d on, rela te[] to, or [are] in resp o n s e t o ” appellants’ “exerc ise of the rig ht to petition” throug h their
lawsuits and discover

y subpoenas.

“Exercise of the right of free speec h”
We will beg in by ana l y z i n g the validity of appellants’ core premise that their

numerous statements on the subjects of the Abbotts’ purported mental illness or “abuse ” qualify as the “exerc ise of the rig ht of fre e speec h” under the TCPA definition of that term. The TCPA define s “exerc ise of the rig h t of fre e speec h” as “a communication made in connec tion with a matter of public conce rn,” and th en define s both “communica tion” and “matter of public conce rn.” A 4 2
“communication”—also a compone nt of the Act’s “exerc ise of the rig ht to petition” and “exerc ise

Id. at *6 (citing Sloat , 513 S.W .3d at 503); see also Hersh , ___ S.W .3d at ___, 2017 Tex. 4 1 L EXI S 649, at *10 (obser ving that pleading s alone will often b e d et erminative of leg al action’s basis); Sloat , 513 S.W .3d at 503 (“The ultimate question of whether a particula r fac tual basis for a ‘leg al action’ qualifies as expression within the TCPA’s definitions is a question of law that we revie w de novo.” (citations omitted)). Tex. Ci v. Prac. & Rem. Code § 27.001(3). 4 2
20of the rig ht of association” definitions —“includes the making or submitt ing of a st at ement or 4 3
document in any form or medium, including oral, vi sual, written, audiovisual, or elec tronic.” A 4 4
“matter of public conce rn,” in turn, “includes an issue re l at ed to: (A) health or safe ty ; (B )
environmenta l, economic, or community well-be ing; (C) the g overnme nt; (D) a public off i ci al o r public fig ure; o r (E ) a g ood, product, or service in the marke tplace.” Thus, rea ding these 4 5
definitions toge ther, the “exerc ise of the rig ht of fre e speec h” for TCPA purposes is a “stateme nt or document in any form or medium, including oral, visual, written, audiovisual, or elec tronic,” “made
in co n n ec t i o n with” subjects that “include[] an issue rela ted to: (A) health or safe ty ; (B )
environmenta l, economic, or community well-b ei n g; (C ) the g overnme nt; (D) a public officia l or public fig ure; or ( E) a g ood, product, or se rvice in the marke tplace.” 4 6

I n denying appellants’ mo t i o n , t h e district court conclude d that all of the Abbotts’
claims other than for assault (which, ag ain, i t corr ectly held t o be ex empted fro m the Act) did not implicate “matter s of public conce rn as a matter of law and [are] thus not cover ed [by the TCPA] .” Appellants insist this was err or beca use the subjects of mental illness or domestic abuse are “issue[s]
rela ting to

. . . health or safe ty .” And beca use their numerous text s, emails, letters, phone calls, oral statements, or other issuances on those subjects wer e plainly “communica tions” within the TCPA’s
broad definition of that term, appellants continue, these “communica tions” wer e “made in

See id . § 27.001(2), ( 4). 4 3 Id . § 27.001(1). 4 4 Id . § 27.001(7). 4 5 Id . § 27.001(1), ( 3), (7)

. 4 6
21connec tion with a matter of public c oncer n,” satisfy

ing the Act’s de finition of the “exerc ise of the rig ht of fre e spee ch” a s a matter of law.
Whil e not appea

ring to dispute that appella n t s ’ statements would qualify as “communications” und er t h e TCPA—and they plainly do—the Abbotts urg e that these
“communications” should not be considere d “matter s of public conce rn.” The Abbotts rea son that
the communications conce rned a “priva te” family disp ute a n d c o n d u c t th a t w a s actionable as “priva te torts,” char acte ristics they view as dist i n gu ishing the communications from “matter s of public

conce rn.” I n the same vein, the Abbotts point out that in sever al of the Cavins’ writing s, the Cavins had attempted to ke ep their activities under wra ps by marking writing s “priva te” or “conf idential”
and also berating or threa tening rec ipients who dare d divulge the content to others. The Abbotts also
urg e that if the TCPA’s “exerc ise of the rig ht of fre e speec h” definition is construed to cover these particula r “priva te communications,” “then private, per se defa mation reg arding loathsome diseases
and any private, per quod defa mation about a person’ s mental health would alway s be subj ect, de facto , to the TCPA.” The TCPA could not have such “expansive, overr eac hing scope,” the Abbotts
insist. Although the Abbotts’ arguments migh t h ave g reater viability under the more conventional understanding s of “matter s of public conce rn” in either constitutional jurisprudenc e 4 7

See , e.g. , Brady v. Klentzman , 515 S.W .3d 878, 884 (Tex. 2017) (“A ccor ding to the [U.S .] 4 7 Supreme Court, speech ‘d ea l s wi th matters of public conce rn when it can be fairly considere d as rela ting to any matter of political, social, or other concer n to the communi ty .’” (quoting Snyder v

. Phelps , 562 U.S. 443, 453 (2011)) ); see also Snyder , 562 U.S. at 451–52 (empha siz ing connec tion to self-g overnme nt).
22or ordinary usag e, it rema ins that the TCPA has presc ribed a specific definition of “matter of public 4 8

conce rn” requiring, as ap p l i ca b l e to this case , only that “an issue rela t[ e] to

. . . health or safe ty ,”
without further elabor ation or qualifica tion. And an y n o tion that courts should rea d implicit 4 9
limit ations into the TCPA definitions derive d from broade r statutory or jurisprudential context has
been put to rest by the Texas Supreme Court’s prec edents. In Lippincott v. W hisenhunt , the supreme
court square ly reje cted a court of appea ls’s view that the TCPA’s definitions of the “exerc ise of the rig ht of fre e speec h” and component terms we re i mpliedly limit ed, in light of backg round First
Amendment jurisprudenc e and the TCPA’s purposes rela ting to “public partic i p ati on in
g overnme nt,” solely to spe ech exercised in a public form of communication. The supre me cour t 5 0

rea soned that “[t] he plain lang uag e o f t h e [ T C P A] imposes no require ment that the form of the
communication be public,” and that “[i] n the absenc e of such limit ing lang uag e, we must presume that the L eg islature broadly included both public and private communication.” The court went on 5 1

to hold that private emails alleg ing that a nurse anesthe tist “‘f ailed to provide adequate cover ag e for pediatric case s,’ administered a ‘diffe re n t n a r c otic than was order ed prior to pre- op or patient consent being completed,’ falsified a scrub tech rec ord on multipl e occa sions, and violated [t he] company ’s

See American Heritage at 1424 (def ining “public,” when used as an adjective, as “[o] f, 4 8 conce rning , or aff

ecting the community or the people” and as “[m] aintained for or used by the people or community ”); id. at 381 (def ining “conc ern,” when used as a noun, as “[a] matter that rela tes to or af fec ts one” a

nd as “[r]eg ard f

or or inter est in someone or something ”). Tex. Ci v. Prac. & Rem. Code § 27.001(7). 4 9
See Lippincott , 462 S.W .3d at 5 0 9

– 1 0 ; cf

. W hisenhunt v. Lippincott , 416 S.W .3d 689, 5 0 697–700 (Tex. App.—Texarkana 2013), rev’ d , 462 S.W .3d 507 (Tex. 2015) (per curiam). Lippincott , 462 S.W .3d at 509 (c iting Te x . Civ. P rac . & Re m. Code § 27.011). 5 1
23sterile protocol policy ” suffice d as “communica tion[ s]

. . . in connec tio n wi th a matter of public

conce rn” and, there fore , the “ex er cis e of the rig ht of fre e speec h,” based on the emails’ subject

matter a lone. 5 2
More rec ently , in Exx onMobil Pipeline Company v. Cole ma n , t h e Texas Supreme
Court c onfirmed that we must a pply a plain-mea

ning construction of the TCPA de finitions’ litera l lang uag e, without reg ard to the TCPA’s broade r purposes or backg round jurisprudenc e, even when
this re sults in a vastly expansive application of the “exerc ise of the rig ht of fre e spee ch” to rea ch a business’s internal personne l matters having only an indirect rela tionship to the “matter [s] of public

conce rn” made the basis for the motion. The issue in Coleman conce rned whethe r i n t er n al
communications within a pipeline company reg arding an employ ee’ s alleg ed fa i l u re to follow a require d fuel-ta

nk “g aug ing” proce dure suffice d as the “exerc ise of the rig ht of fre e speec h,” specific ally “communication[ s] made in connec tion with” “an issue rela ted to” “hea lth or safe ty ” or “en vironmental [or] economic

. . . well-be ing.” The communications themselves contained no 5 3 expli cit lang uag e connec ting the “g aug ing” proce dure to one of these “matter s of public conce rn,”

a lt h o u g h th e c o mp a

n y a n d e mp lo y e e d e f

endants had prese nted aff

idavits (appa

rently uncontrove r

te d ) explaining that the proce dure’ s underly i n g p u rposes included preve nting fuel spills and attendant

See id

. at 509–10. More specific ally , the supreme court relied on a prior holding that “the 5 2 provision of medical service s by a health car e profe ssional” was a “matter of public conce rn” as that conce pt w as being applied in the First Amendment context. See id

. at 510 (citing Neely v. W ilson , 418 S.W .3d 52, 70 nn.12 & 26 (Tex. 2013)). Howeve r, the court intimated that the communications would also satisfy the TC PA’s “matter of publ ic concern” definition, observing that it “include[s] issues re l at ed t o h ealth or safe ty , community well-be ing, and the provision of service s in the marke tplace, a

mong othe r thing s.” Id . (citing Tex. Ci v. Prac. & Rem. Code § 27.001(7))

. See Coleman , 512 S.W .3d at 898–901 (citing Tex. Civ. Prac. & Rem. Code § 27.001(7))

. 5 3
24safe ty risks, environmenta l harm, and economic loss. The court of appea ls had held the TCPA 5 4 inapplicable, rea soning that the communications rela ted to a “‘pr ivate employ ment matter’” ; made
“‘no mention of health, safe ty , the environment, or Ex x on’s economic interests’” ; and that the matter

was not transfor

med into a “‘public conce rn’” throug h its mere ly “‘ta ng ential rela

tionship to health,
safe ty , environmenta l, and ec onomic conce rns.’” The Te x as Supreme Court r ever sed. 5 5 Emphasizing its plain-me aning approa ch in Lippincott , the supreme court held that
the cour t of appe als had “ improperly narr owed the sc ope of the TCPA by ignor ing the Act’s plain lang uag e and inserting the require ment that communications involve more than a ‘tang ential
rela tionship’ to matters of public conce rn.” L ikewise, the court continued, “[t] he TCPA does not 5 6 require that the statements specifically ‘mention’ health, safe ty , environmenta l, or economic

concerns, nor does it require more than a ‘tang ential rela tionship’ to the same; rathe r, T C P A applicability require s only that the defe ndant’s statements are ‘in connec tion with’ ‘issue[s] rela ted
to’ hea lth, safety , environmenta l, economic, and other identified matters of public conce rn chose n by the L eg islature.” The supreme court simil arly reject ed an ar gu m ent of the claimant that the 5 7
definition’s phrase “communication made in connec tion with a matter of public conce rn” “‘sug g est[s] something more than a tenuous or remote rela tionship’”; in the supreme court’s view,

See id . at 897–98, 900–01. 5 4
See id

. at 900 (quoting Exx onMobil Pipeline Co. v. Coleman , 464 S.W .3d 841, 846 (Tex. 5 5 App.—Dallas 2015) , rev’ d , 512 S.W .3d 895 (Tex. 2017)). Id . at 900. 5 6 Id . (citing Tex. Ci v. Prac. & Rem. Code § 27.001(3), ( 7)). 5 7
25this arg ument amounted to “re ading lang uag e into the statute that is not t h ere.” Apply ing the 5 8
definitions as worde d, the supreme court held that “[t] he stateme n ts , a lt h o ug h private and among [t he
company ’s] e mploy ees, rela ted to a ‘ma tter of public c oncer n’ beca use they conce rned Coleman’s alleg ed failure to g aug e tank 7840, a proce ss completed, at least in part, to reduc e the potent i al
environmenta l, health, safe ty , and economic risks associate d with nox ious and flammable chemica ls
overf illing and spilling onto the g round.” 5 9 Among the im p l i cations of these Texas Supreme Court prec edents, as this Court

co n cluded in Autocraft , is that the TCPA’s definitions of “exerc ise of the rig ht of fre e s p ee ch , ” petition, and association extend co n s id e r a b ly b e y o n d

— a n d la r g e ly w it h o ut r e g a r d to

— th e para meters of expression that would actua lly be protec ted by the First Amendment or the Texas Constit ution. 6 0 Consequently , we held that an auto-repa ir business’s internal co m m u n i cations i ncident to alleg ed misappropriation of tra de sec rets fr om a rival suffice d as t he “exercise of the rig ht of associa tion”
as the TCPA define s that term, re g ardle ss of whethe r those communications were c onstitut ionally protec ted expression. Whether the expression is constitutionally protec ted, as we explained, could 6 1

co m e i n t o play only in the s econd phase of the analy sis, as a component of a claimant’s clea r an d specific evidenc e of eac h essential element of eac h claim ag ainst the defe ndant. An d t h e same 6 2

Id . at 901. 5 8 Id

. (citing Tex. Civ. Prac. & Rem. Code § 27.001(7)( A), (B ); Lippincott , 462 S.W .3d 5 9 at 509). See A utocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *11–22.

6 0 See id . at *22–23. 6 1 See id . at *21–22. 6 2
26would be true of any other issue g oing to whether a particula r communication is ac t i o n ab le,
sanctionable , or (as Wy lie put it) “sound[s] cra zy ,” as none of these considerations are incorporated
into the TCPA’s broad definitions of protec ted expression, and we are not to “re ad[] languag e into 6 3
the statute that is not there.” 6 4

Under these prece dents, we must reje ct t he Abbotts ’ i nvitation to read the TCPA’s
definitions of “e x erc ise of the r ight of fre e spee ch” a

nd “matter

of public conc ern” more narrowly
than the ordinary meaning of their words as wr i t t en. All the L eg islature has require d is that appellants’ communications be “made in connec tion with a matter of public conce rn,” and a “matter

o f p u b l i c co n cer

n” includes “an issue rela ted to

. . . health or safe ty .” As appellants urg e, the subjects of mental illness or domestic abuse plainly fall within the ordinary meaning of “hea lth” or “saf ety ,” and it is now clea

r that such “hea lth” and “saf ety ” under the TCPA includes that of private 6 5
p ar t i es em broiled in an otherwise- private dispute far remove d from any public participa tion i n

See id .; cf infra at 28–29 (discussi ng how even frivolous or SL APP-like lawsuits can 6 3 satisfy TCPA’s “exercise of

the rig ht to petition” definition). See Colem an , 512 S.W .3d at 901. 6 4
See Hersh , ___ S.W .3d at ___, 2017 Tex. L EXI S 649, at *11 (“Clea rly , suicide preve ntion 6 5 an d aw ar en ess rela te to health, safe ty , and community well-be ing, all included in the statutory definition of ‘matters of public conce rn.’” (quoting Tex. Civ. Prac. & Rem. Code § 27. 0 0 1(7)) ); Back es v. Misko , 486 S.W .3d 7, 17–20 (Tex. App.—Dallas 2015, pet. denied) (holding that subject of whether mother was aff licted with psy cholog ical disorder of Muncha u s e n Sy ndrome by Prox y and was mistreating child as a result “re lated to health and safe ty [and] fell within the [TC PA] definition of ‘matter of public conce rn’” (quoting Tex. Civ. Prac. & Rem. Code § 27.001(7)) ); see also id

. at 18 (citing dictionary d efinitions of “‘he alth’” (“‘ the state of being sound in body or mind’”) and “‘sa fety ’” (“‘ the condition of bei n g s af e;
. . . exemption from hurt, injury , or loss’”) (quoting Webster’s Third Ne w I nterna tional Dictionary 1043, 1998 (1981)) ). 27g overnme nt. Consequently , appellants’ “communica tion[ s] made in connec tion wi t h” those 6 6 subjects q ualify , as a matter of law, as the “exerc ise of the rig ht of fre e speec h” under the
TCPA definition.

“Exercise of the right to petiti on”
As for appella n t s’ alternative g round, we simil arly conclude that the activities in question—th e C avins’ lawsuits ag ainst Sandy Whit ley and David Hayes and use of discovery subpoenas in those actions—satisfy the TC PA definition of t he “exercise of the right to petition.”
The TCPA define s the “exerc ise of the rig ht to petition” to include, inter alia , “a communication in

or perta ining to

. . . a judicial proce eding .” As we rec og nized in the Serafine case s, filing a lawsuit 6 7
and transmitting documents rela ting to that proce eding —even a lawsuit that itself had char acte ristics
of a true SL APP, included some bizarre fac tual alleg ati o ns, and even g ave rise ultimately to

s an ct i o n s ag ainst the claimant—suff ices as the “exerc ise of the rig ht to petition” under the plai n Picke ns v. Cordia , on which the Abbotts rely for a contra ry view, p redates the Texas 6 6 Supreme Court’s decisions in Lipp i n co t t , C oleman , and Hersh

. 433 S.W .3d 179, 184 (Tex. App.—Dallas 2014, no pet) (re asoning that “[w]hi le

. . . issue s of ‘addic tion, [and] pare ntal abuse’

. . . may be matters of public conce rn” in abstrac t or gen er al sense, holding that family member’ s blog purporting to rec ount such problems within his family did not “implicate the broade r health and sa fety

conce rns or c ommunity

well-be ing c oncer

ns contemplated by

[t he TCPA]”). See Tex. Civ. Prac. & Rem. Code § 27.001(4)( A)(i) (def in i n g “exerc ise of the rig ht to 6 7 petition” to include “a

communication in or per taining to . . . a

judicial proce eding ”). 28meaning construction we are to g ive the definition’s broad lang uag e. I ndeed, the Abbotts do not 6 8
appea r to contest that appe llants’ lawsuits and subpoena s meet this definition.

Factual predicate
T h e rema ining component of appellants’ initial burden is to show that eac h “leg al
action” in que stion “ is based on, relates to, or is in response to ” either appellants’ “exerc ise of the rig ht of fre e speec h” (i.e., their communications on the subjects of mental illness or “abuse ”) or their
“exerc ise of the rig ht to petition” (their lawsuits and subpoenas)

. As indicated, “ is based on, relates
to, or is in response to ” serve s to captur e, at a minimum , a “leg al action” that is fac tually predic ated
upon alleg ed conduct that would fall within the TCPA’s de finition of “exerc ise of the rig ht of fre e
speec h,” petition, or association. Fr om the fac e of the Abbotts’ live petition and attachme nts, their 6 9
claims for defama tion and torti ous interfe renc e are “based on, rela te[] to, or [ ar e] in response to,”
in the sense of being fac tually predic ated on, appellants’ statements on the subjects of mental illness

or “abuse .” Simi larly , the Abbotts’ abuse- of-pr ocess claim is predic ated entirely upon the Cavins’

See Serafine I

, 4 6 6 S

. W

. 3 d at 376–77 (Pemberton, J ., concur ring ) (noting that “it is 6 8 arg uably the claims asser

ted by Seraf

ine that more closely rese mble the SL APP para digm” and that her alleg ations had included “per ceive d ‘surre ptitious video taping ’ of her and ‘seve ral instances of insult, ridicule, and, [S era fine] believes, marshaling of neig hborhood g ossip ag ainst [her],’” “[y ]et it is Seraf ine’s claims that are exalted and protec ted as the ‘ exercise of the right to petition’ under the TCPA, in derog ation of the B lunts’ rig hts” (footnote omitted)); Serafine v. Blunt ( Serafine II ), No. 03-16-00131- CV, 2017 Tex. App. L EXI S 4606, at *17–19 (Tex. App.—Austin May 19, 2017, no pet. h

. ) (mem. op.) (af firming sanctions awa

rd ag ainst Seraf

ine as to her claims ag ainst other defe ndants, as “[t] he rec ord co n t ai n s am ple evidenc e to support the trial court’s finding s and conclusions about the g roundless cla ims”).
I n that reg ard, the rec ord does not re flec t whether Whit ley or Hay es filed their own TCPA dismiss al motions to contest the Cavins’ speec h-base d “leg al ac tions” ag ainst them.

See supra note 33. 6 9
29“exerc ise of the rig ht to petition,” their use of d i s co v er y subpoenas. Fur ther, the Abbotts’
intentional-infliction-of-e motional-distress (I I ED) claim complains in part of the Cavins’ lawsuits
ag ainst Whit ley an d Ha y es, which they view as part of appellants’ larg er campa ign to hara ss and
isolate them from t h e s upport of family and friends. To these extents, appellants have met their
initial burden as a matter of law

.

Urg ing otherwise, the Abbotts insist that this case is a repr ise of Sloat v. Rathbun

. 7 0
I n that case , Monique Rathbun, whose husband Marty was a former high- ran k i n g m em b er of the
Church of Scie ntology , sued that org anization and allied individuals asserting cause s of ac tion for
in te n tional infliction of emotional distress, invasion of privac y , intrusion u p o n s e c lu s io n , a

n d to r ti o u s interfe renc e founded o n al l eged “consta nt hara ssment” having some para llels to the Abbotts’ complaints. The defe ndants filed TCPA dismiss al motions, insisti ng that Rathbun’s claims wer e

7 1
“‘ba sed on, rela ted to, or wer e in response to’ conduct constituting the exercise of their ‘rig ht of fre e
speec h,’ ‘rig ht of association,’ and ‘rig ht to petition.’” Howeve r, as we would later explain in our 7 2 opinion, the defe ndants did not “addr ess the specific alleg ations contained in Rathbun’s petition and

o n wh i ch s he claims to base her cause s of action,” but “ende avor[ed] to rec ast her petition” as complaining of more innoc uous and periphe ral expressive ac tiviti es, such a s holding prote st signs

See 513 S.W .3d 500. 7 0
E

. g ., alleg ations that the defe ndants had repe atedly acc osted Ms. Rathbun, conducted 7 1 intrusive surveillance activities ag ainst her, published alleg ations that she was a “sexual perve rt” and actua lly a “man who has had a secr et sex-chang e operation,” and had informed “Rathbun’s mother, fathe r, former husband, friend, and co-w orker s
. . . that Rathbun’s life was at ris k as l o n g as s he rema ined marr ied to Marty Rathbun.” Id . at 505–06. Id. at 502–03 (c iting Te x . Civ. P rac . & Re m. Code § 27.001). 7 2
30in the street, “ attempting to speak to pa ssers-by or those enter ing or leaving the proper ty about the impropriety of Marty Rathbun’s activities,” or filming footag e in “public place s
. . . about issues of potential or public importance , including importance to Scientologists.” The district court denied 7 3
the motion, and the issue on appea l was whether the defe ndants had met their initial burden, assuming the p roposi tions, not disputed there , that “is based on, rela tes to, or is in response to”
ref erred t o t he fac tual predic ates for Rathbun’s “leg al actions” and that we wer e to view the 7 4 pleading s and evidenc e in the light most favor able to Rathbun when deter mining what those fac tual predic ates wer e. I n the posture of that appea l, we aff irmed the district court’ order , concluding that 7 5
Rat h b u n ’s l egal actions “ar e g arde n-var iety tort claims based on specific conduct that the Scientology Def

endants have failed to demonstrate, by a preponde ranc e of the evidenc e, implicates
the exercise of

their rig hts of ‘fr ee spe ech,’ ‘assoc iation,’ or ‘to pe tition.’” 7 6
I n addition to emphasizing the fac tual simil arities betwee n appellants’ conduct and

t h at al l eged of the “Scientolog y Def endants,” the Abbotts rea d Sloat to establish a dichotom y betwee n “g arde n-var iety tort claims” and TCPA-protected co nduct, and they insist that their pleading s and evide nce demonstrate only the former when viewed in the light “most favor able” to them. The Abbott s m i s u n derstand both Sloat and the TCPA. Contrary to their assumption, the TCPA, a s previously sug g ested, is written so as to be implicated by a vast arr ay of “g arde n-var iety

See id . at 506–07. 7 3 See id . at 503. 7 4 See id . at 503–04. 7 5 Id . at 509. 7 6
31tort claims” that can be said to involve some element of “communic at i o n ” (as demonstrated in

Coleman , Lippincott , Autocraft , and Serafine , to name but a few illust rative case s ). Sloat did not 7 7
hold otherwise—its point was instead that the defe ndants had attempted to demonstrate the TCPAprotec ted status of activity other than that which was actua lly the fac tual basis for Rathbun’s cause s of action. I n the present case , by contra st, appellants have demonstrated conclusively , i n re l i ance

on the Abbotts’ pleading s and attachme nts, that the Abbotts’ d ef amation, tortious-interfe renc e, abuse- of-pr ocess, and (in part) I I ED claims are predic ated on appellants’ “exerc ise of the rig ht of fre e
speec h” or “exerc ise of the rig ht to petition” as the TCPA define s those terms. Nor is the rec ord susceptible to any

“fa vorable ” re ading that would alter tha t conclusion.

Coleman , 512 S.W .3d at 897 (plaintiff employ ee alleg ed defa mation based on purported 7 7 misstatements by his supervisors reg arding circ umstan ce s that led to plaintiff’s termination); Lippincott , 462 S.W .3d at 508–09 (plaintiff nurse anesthe tist broug ht claims for defa mation, tortious interfe renc e with exis ting and prospec tive business rela tions, and conspirac y to interfe re in business rela tions, based on “dispara g ing comments” by surg ical fac ility administrators that p l aintiff “re prese nted himself to be a doctor, endang ere d patients for his own financ ial g ain, and sexu ally hara ssed employ ees” ); Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *1–3, *8–10 (plaintiff auto-re pair shop alleg ed theft and misuse of its trade secr ets and confide ntial information, among other claims, based in part on (i) “communica ti o n s ” am o n g defe ndants and others within c o mp e ti n g a

uto

- r e p a ir business throug h which they “shar ed or utiliz ed ” mi s a p p r o p r ia te d in f o r ma ti o n , and on (ii) “communications” by d e f e n d a n ts to plaintiff’s curr ent employ ees “to induce them to leave [pl aintiff] 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 “neig hborhood tussle,” counter -cla imant’s tortious-int er fe re n ce and fra udulent lien counter claims wer e, at least in part, “base d on, rela ted to, or in response to” plaintiff’s filing of suit and filing of lis pendens, both of which wer e “exerc ises of [pl aintiff’s] ‘rig ht to petition’ as the [TC PA] define s that term” (citing , inter alia , Tex. Civ. Prac. & Rem. Code § 27.001(4)( A)(i) (“‘ Ex erc ise of the rig ht to petition’ means
. . . a communicat i o n i n o r perta ining to:

. . . a judicial proce eding .”))

. 32“Related to” or “in r esponse to”
But h o we v er expansive the fore g oing applications of the TCPA may seem, these holdings do not rea ch sever al of the Abbotts’ claims that appellants soug ht to dismiss and that wer e
not exempted as a bodily injury claim. Among these, the Abbotts’ I I ED claim, althoug h predic ated partly on ap p ellants’ “exerc ise of the rig ht to petition” throug h their lawsuits, also complains of
additional “communica tions” by the Cavins “made in connec tion with” subje cts that could not

rea sonably be considere d “issue[s] rela ted to

. . . health or safe ty ,” such as Wy lie’s “dog ’s butt” slur
and the insinuations that Bill marrie d Kristin for her m oney
. Whil e it is conce ivable that som e of
these additional “communications” might independe ntly qualify as the “exerc ise of the rig ht of fre e
speec h” throug h a differ ent prong of the Act’s g ener ous “matter of public conce rn” definition, or 7 8

as the “exerc ise of” one of the other two cate g ories of TCPA-protecte d activity , appellants did not 7 9
prese rve any such alternative g round for dismiss ing this portion of the I I ED claim. Simi larly , the 8 0
Abbotts’ claims for invasion of privac y , conver sion, and (in additional part) I I ED are founded
fac tually on alleg ed phy sical intrusions upon persona l or proper ty interests that could not be
considere d “communications,” a prer equisite to a ll th r e e o f th e T CP A

- d e f

in e d c ateg ories of protec ted

Cf. Serafine I

, 466 S.W .3d at 378 (Pemberton, J ., concur ring ) (sug g esting t h at wi fe’ s 7 8 expressed con ce rn ab out husband’s judi cial salary would seem to fall wit hin ordinary meaning of an “issue r elated to . . . e conomic . . . we ll-being ”).

See id

. (similarly sug g esting that T C P A “e x erc ise of the rig ht of association” arg uably 7 9 would also rea ch that same husband-wif e conver sation, as it occur red within the context of a family rela tionship). See , e.g ., Long Canyon Phase II & III Homeowne rs Ass’n v. Cashion , 517 S.W .3d 212, 8 0 219 & n. 23 (Tex. App.—Austin 2017, no pet.) (re cogni z i n g t h at TCPA movant is confine d on appea l to gr ounds and theorie s raised in its motion); Serafine I , 466 S.W .3d at 359–60 (same ). 33activity , as previously explained. (F or ease of ref ere nce, we will term these claims not predic ated 8 1
fac tually upon appellants’ T CPA-protecte d activity as their “ additional claims”).
Had appellants argued only that the Abbotts’ “leg al action[s] ” wer e “base d on, rela te[d] to, or [were] in response to”—in the sense of being predic ated upon fac tually —the
“exerc ise of the rig ht of fre e speec h” or the “exerc ise of the rig ht to petition” appellants had claimed
in their motion, we would proce ed to aff irm the district court’s denial of appellants’ motion as to the
Abbotts’ additional claims, as we have done in prior case s having analog ous postures. But in eac h 8 2
of those case s, the movant h as either presumed that “is based on, rela tes to, or is in response to”
ref ers solely to the fac tual predic ate for a “leg al action” or it has otherwise been unnece ssary for us to consider whe ther the te rm extends any far ther. This case differ s in both respec ts. 8 3

The same could be said of the Abbotts’ as s au l t claim, if not alre ady exempted from 8 1 the Act. See Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *8–9 (af firming order 8 2 denying T CPA dism issal motion as to c omplained-of conduct “ that in itself would not necessa rily entail ‘the making or submitt ing of a statement or document in any form o r medium’” and thus would not be a “‘c ommunication’”); Long Canyon , 517 S.W .3d at 219 & n. 23 (af firming denial of TCPA dismiss al motion as to fac tual bases for claims that wer e not challenged i n the motion); Serafine I , 466 S.W .3d at 359–60 (same) ; Combined Law Enforceme nt Ass’ns of Texas v. Sheffield , No. 03-13-00105-CV, 2014 Tex. App. L E XIS 1 0 98, at *2, *13–16, *35 (Tex. App.—Austin J an. 31, 2014, pet. denied) (mem. op.) (looking to whether “communica tions

. . . th at Sheffield [t he plaintiff and nonmovant] alleg es to be defa matory fall within the TCPA’s definition of the exercise of the rig ht of association” and aff irming denial of motion to dismiss with respe ct to communications that movants failed to show we re w ithin such definition).

See Autocraft , ___ S.W .3d at ___, 2017 Tex. App. L EXI S 4108, at *6–7 (noting that this 8 3 was the se nse in which “ is based on, re lates to, or is in response to” was argued on appea l); Sloat , 513 S.W .3d at 503 (obser ving that (i) “Te x as courts

. . . have g ener ally focuse d solely on the extent to which the fac tual bases of a challeng ed ‘leg al action’ constitute expression within t h e T C P A’s definitions” and (ii) “ [ n]either party has presented any rea son to depar t from thi s preva iling view, so we will continue to apply it here ” (citing Sheffield , 2014 Tex

. Ap p
. L E XIS 1098, at *13–16; S erafine I , 466 S.W .3d at 373 (Pemberton, J ., concur ring ))) ; Serafine I

, 466 S.W .3d at 374– 7 5 34Appellants can meet their initial burden as to the Abbotts’ additional claims only to

the extent any of these claims “is based on, rela tes to, or is in response to” appellants’ “exerc ise of
the rig ht of fre e speec h” or “exerc ise of the rig ht to petition” in some s en s e o t h er t h an fac tual predic ate. And appellants have prese rved arguments that the phrase does incorporate meaning s that
extend be y ond fac tual predic ate. Among these, appellants sug g est that the additional claims (and, indeed, the Abbotts’ entire lawsuit) are “re lated to” appellants’ “exerc ise of the rig ht of fre e speec h”

or “exerc ise of the ri gh t t o p et i tion” in the sense of being rooted in a common controve rsy , or as having overla

pping fac ts and ev idence , reg arding the Cavins’ opposition to Kristin and Bill’s
rela tionship. As illust ration, they emphasize portions of the Abbotts’ response in which the Abbotts
cite as evidenc e for their additional claims various of the writing s that we have held to be either the
“exerc ise of the rig ht of fre e speec h” or “exerc ise of the rig ht to petition.” Appellants simil arly urg e that the Abbotts’ entire lawsuit “is in response to” appellants’ “exerc ise of the rig ht of fre e speec h”

or “exerc ise of the rig ht to petition” in the sense of rea cting to or temporally following

. I n this
reg ard, appellants observe that while the additional claims would have acc rued in ear ly to mid-2014,
the Abbotts did not send their demand letter u n t i l Ap ri l 2 0 15, in rea ction to Wy lie’s Marc h 2015
letter to the PUC, and did not file their suit until afte r the Cavins had filed their suits ag ainst Whit ley

(obser ving that parties ha d assumed this meaning of “is based on, rela tes to, or is in response to”); see also Hersh , ___ S.W .3d at ___, 2017 Tex. L EXI S 649, at *10–11 (“ba sed on” component was decisive) ; Coleman , 512 S.W .3d at 897, 899–902 (holding that statements complained of i n defa mation suit wer e TCPA-protecte d “exerc ise o f th e r ig ht of fre e speec h”); Lippincott , 462 S.W .3d at 508–10 (holding that statements made the basis of defa mation, tortious in t er fe re n ce, and conspirac y

claims wer e TCPA-def

ined “e x erc ise of the r ight of fre e spee ch”)

.

35and Hay es, serve d the subpoenas, and continued to persist in posting videos and making other

communications about the Abbotts’ menta l health and supposed “ abuse.” 8 4

The questions appellants now raise reg arding the scope of “is based on, rela tes to, or is in response to” wer e fore told by the Serafine concur renc e. Apply ing a plain-mea ning 8 5

I n their dismissal motion, appellants also went far ther to assert that these circ umstances 8 4 demonstrate the Abbotts’ suit was subjectively motivated to punish or reta liate ag ainst them for their “exerc ise of the rig ht of fre e speec h” or “exerc ise of the rig ht to petition,” further sug g esting that the additional claims wer e a “g inned up” prete x t. Ho we v er , we do not understand appellants to be urg ing this view of “is based on, rela tes to, or is in response to” on appea l, a nd we thus e x press no opinion as to whether the standard incorpora tes that meaning or h o w co urts are to deter mine or revie w s uch determinations of m otive and int ent m ade w ithin the TCP A’s procedura l fra mework. But cf. Serafine I

, 466 S.W .3d at 392 (Pemberton, J ., concur ring ) (sug g esting that “re lates to” or “is in response to” lang uag e might “ca pture any ‘leg al actions’ that have the subjective g oal of chilling speec h”). As was observe d there , the p h ra s e “is based on, rela tes to, or is in response to” is a 8 5 composite of three components that are prese nted as disjunctive alternatives—(1) “i s based on”; (2) “re lates to”; “or” (3) “in response to”—and “we would normally presume that these alternatives wer e not intended to b e re d u n d an cies of one another , but that eac h would have some distinct meaning and eff

ect.” Id . at 390–91 (Pember ton, J ., concur

ring ) (c iting TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 4 3 9 (Tex

. 2011)). The ordinary meaning of the “is based on” component, as the concur renc e rec og nized, denotes a legal ac t i o n that has the rele vant TCPAprotec ted activity “as a ‘main ingr edient’ or ‘fundamental part,’” which “cor respo n d s t o the preva iling construction that Texas courts have been g iving to the phrase ‘is based on, rela tes to, or is in re sponse to’ as a

whole, foc using on the fac tual bases unde rly ing a ‘leg al ac tion.’” Id

. at 391 (citing W ebster’s Third New Int’l Dictionary 180 (2002) (def ining “base ” (n.) as “main ingr edient” and “funda

mental p ar t o f something” ); American Heritage at 148 (def ining “base ” (n.) as “funda mental principle,” “under ly ing conce pt,” “funda mental ingr edient,” and “chie f constituent”); see also Black’

s Law Dictionary at 180 (def ining “base ” (v.) as “to use (something ) as the thing from which something el s e i s develope d”))

. Then the concur renc e posited the same question that appellants’ arg uments raise here : “What, then, i s the role of the two re maining components of t he standard, ‘ rela tes to’ and ‘ in response to’?” Id

. At least if courts applied the ordinary meaning of “re lates to” and “in response to,” the concur renc e conclude d, those terms would extend the TCPA “conside rably far ther bey ond even the prev ail ing Texas construction.” Id

. at 391–92. “The ordinary meaning of ‘re lates to,’” it noted, would mere ly “denote some sort of connec tion, ref ere nce, or rela tio n s h i p.” Id

. at 391 (citing W ebster’s at 1916 (def

ining “re late” as “to be in rela tionship: to have ref ere nce” ); American 36construction of “re lates to” and “in response to,” and without needing to compre hensively deter mine
the terms’ outer boundarie s, the Abbotts’ additional claims would “re late to” appellants’ “exerc ise
of the rig ht of fre e speec h” or “exerc ise of the rig ht to petition,” as there is some sort of connec tion,
ref ere nce, or rela tionship betwee n them. Under the Abbotts’ theory of the case , for example, all of appellants’ co m p l ai n ed-of acts are portray ed as components of an overa rching campa ign of
hara ssment a

nd attempted isolation a imed first at disrupting their marital plans, the n at retribution
afte r those eff

orts failed. The additional claims would also be “in response to” appellants’ “exerc ise of the rig ht of fre e spee ch” or “exerc ise of the r ight to petition” in the sense that they rea cted to or

wer e asser

ted subsequently to appellants’ ong oing communi ca t i ons reg arding mental health or “abuse ” and the ir lawsuits and subpoena s.

The Texas Supre me Court’s analy sis in Coleman fore closes any possibili ty that we should view “re lates to” or “ in response to” as l imited acc ording to, e.g ., the nature , direc tness, or streng th of such connec tions. Addre ssing the analog ous rela tional term “in connec tion with” under

Heritage at 1482 (de fining “re late” a s “to have connec tion, relation, or re fer ence ”))

. On the other hand, “‘in response to,’ would denote some sort of answe r or other act in re t u rn
. ” Id

. (citing W ebster’s at 1935 (de fining “re sponse” a s “ac t or action of saying something in r eturn, making an answe r”) ; American Heritage at 1496 (def ining “re sponse” as “an answe r”) ). And as applied to the circ umstances of that case , whi ch i n v olved an “‘e x erc ise of the rig ht to petition’ in the form of a lawsuit” and a

“leg al ac tion” in the form of a counter claim to it, the concur renc e obser

ved:
The ordina

ry meaning of a “ leg al ac tion” that “re lates t o” the “exerc ise of the r ight to petition” in the form of a l aw s u i t wo u l d encompa ss, among other claims, those arising from the same “tra nsaction or occur

renc e” as the lawsuit, like compu l s o ry counter claims. The ordinary meaning o f “[ i] n response to” would swee p more broadly still , seeming ly including any counter claim or other competing or defe nsive claim that another

party subsequently

asser ts. Id . at 391–92. 37the “exerc ise of the rig ht of fre e speec h definition,” the supreme court rea soned that construing the

phrase to exclude indirect, “tenuous,” or “re mote” rela tionships in the absenc e of expli cit statutory lang uag e to that eff

ect amounted to “re ading lang uag e i n t o t h e statute that is not there .” The 8 6
L egis lature has require d only that a “leg al action” “re lates to” TCPA-protecte d activity or “is i n
response to” such activity , with no qualifica tion as to either, and Coleman has further instructed us
to g ive eff

ect to the ordinary mea n i n g of those unqualified terms. On this rec ord, the Abbotts’
additional claims fall we ll within t hese pa rame ters.
Be fore rea ching a fina l conclusion on this issue, howeve r, we should acknow ledg e that there continues to exis t, at least in theory , a limit ing principle holding that plain-mea ning statutory construction does not c ontrol wher e it would y ield an “absur d result” that the L eg islature
could n o t possibly have intended. There is an understanda ble inclination to deem this principle 8 7 implicated wher e, as here , the plain-mea ning constru ct i o n o f a statute that ostensibly seeks to

v i n dicate cher ished constitutional rig hts of fre e expression (and, some say , combat “SL APP” litigation) has the eff

ect of protec ting such diverg ent alleg ed misconduct as auto theft and stalking,
and in the context of a family fra cas having littl e to do with public participa tion in g overnme nt. One might simil arly observe that under the fore g oing plain-mea ning construction of the TCPA, it is hard

to c onceive of a “leg al action” that is not “base d on, rela te[d] to, or

. . . in r esponse to” at least one of the TCPA’s three define d cate g ories of protec ted activity , so long as the complained- of conduct

Coleman , 512 S.W .3d at 901. 8 6
See , e.g. , Abutahoun v. Dow Chem. Co. , 463 S.W .3d 42, 46 (Tex. 2015) (“[W] e initially 8 7 limit our statutory revie w to the plain meaning of the text as the sole expression of leg islative intent, unless the L eg islature has supplied a differ ent meaning by definition, a differ ent meaning is appar ent from the context, or apply ing the plain meaning would lead to absurd results.” (citations omitted)).

38had some kerne l of TCPA-defined “communica tion” within it. Perhaps it is these implications that 8 8 truly “sound cr azy ,” to borrow Wy lie’s phra se. But, as t h e Texas Supreme Court has i nstructed us, “[t] he absurdity safe ty valve is

rese rved for truly exceptional case s, and mere oddity does not equal absurd i t y
. ” We ultimately 8 9

cannot say that the fore g oing plain-mea ning construction of the TCPA rises to the “truly exceptional” “ab s u rd i t y ” level. The Act, as previously explained, seeks to “saf eguard the constitutional rig hts of persons to petition, speak fre ely , associate fre ely , and otherwise participa te
in g overnme nt” ag ainst infring ement by meritless lawsuits b y d ef i ning a suspect class of “leg al
actions” that are deeme d to implicate fre e expression and making these subject to the reme dies the
Act provides. The issues we have been exploring reg arding the Act’s definitions of protec ted expression a

nd the “is based on, rela tes to, or is in response to” connec tor g o to the brea dth of that suspect class. I t is conce ivable that the L eg islature would see fit to cast this n et exceptionally widely —opting f

or a hand g rena de rathe r than a rifle shot—perhaps in r ecog nition of a hig h value being ascr ibed to constitutionally -protec ted expression that may be subsumed somewher e within the
Ac t ’s definitions of protec ted expression, or in an eff ort to captur e expression-targ eting “le gal

Fo r y ears, some of us have cautioned about such implications of the TCPA’s plain 8 8 meaning as written. See , e.g. , Serafine I , 466 S.W .3d at 377–95 (Pemberton, J ., concur ring ) (urg ing that these implications point toward narr ower rea ding informed by constitutional context); Neyland v. Thompson , No. 03-13-00643- CV, 2015 Tex. App. L EXI S 333 7 , at *42 (Tex. App.—Austin Ap r. 7, 2015, no pet.) (mem. op.) (Field, J ., concur ring ) (“I t seems that any skilled liti gat o r co u l d fig ure out a way to file a motion to dismiss under the TCPA in near ly ever y case , i n the hope that the case will not only be dismiss ed, but that the movant will also be awa rded attorney s’ fee s.”); see also Serafine I

, 466 S.W .3d at 357 n.1 (ac knowledg ing these “valid conce rns over the brea dth of the Texas Cit izens P articipa tion Act”). Combs v. Health Care Servs. Corp. , 401 S.W .3d 623, 630 (Tex. 2013); see id

. (explaining 8 9 that “the ba

r for rew orking the words our L eg islature passe d into law is high, a nd should be”). 39actions” that might otherwise be cre atively pleade d so as to avoid the statute’s require ments. That

such cra fting of a statute might have prac tical conseque nces far afie ld from its subjectively intended
purposes, or from what has been said to be a statute’s i ntended purposes, i s nothing new. We are bound to give eff

ect to the statute the L eg islature has w ritten.

* * *
The district court corr ectly concluded t h at t h e Abbotts’ assault claim is exempted
from the Act. Howeve r, contra ry to the d i s t ri ct court’s conclusions, appellants met their initial
burden a s to eac h of the Abbotts’ other claims.

Mer its-te sting issu es

The claims still at i s s u e can s urvive dism issal, and the district court’s order can be
aff irmed, only to the extent the Abbotts established, “by clea r and specific evidenc e[,] a prima fac ie

case for eac h essential element of [ each] claim in question.” Fur ther, reg ardle ss of whether the 9 0
Abbotts met this burden, a claim must be dismiss ed to the extent appellants have “esta blishe[d] by

a preponde ranc e of the evidenc e eac h essential element of a valid defe nse to [t hat] claim.” 9 1 Although the district court did not rea ch these additional inquiries, they wer e befor e the court when
it ruled on appellants’ motion, and no additional trial-leve l proce eding s are nece ssary for the issues 9 2

Tex. Ci v. Prac. & . Rem. Code § 27.005(c)

. 9 0 Id . § 27.005(d). 9 1 See id . § 27.005(b)–( d). 9 2
40to be judicially deter mined. Acc ording ly , we proce ed to “re nder the [order] that the trial court

9 3
should have re ndere d.” 9 4

We need only addre ss the Abbotts’ burden. The Abbotts’ burden can be restate d in

terms of three components: (1) with respe ct to “ea ch essential element of [each] claim in question,” they must have prese nted (2) a “prima fac ie case ” (3) “by clea r and specific evidenc e.” “Essential 9 5
element” is used in the conventional se nse to denote the fac ts that a party must plea d and prove in
order to obtain relief on a claim. Simi larly , “prima facie case ” has been h el d to incorporate t hat 9 6 phrase ’s “tra ditional leg al meaning ”— “ e vidence sufficie nt as a matter of law to establish a g iven fac t
if not rebutted or contra dicted,” also descr ibed as “the ‘minimum quantum of evidenc e nece ssary 9 7 to suppor t a rational infe renc e that the a lleg ation of fa ct is true.’” The re quirement of “cle ar and 9 8 specific evidenc e,” in turn, serve s to limi t t h e ra n ge of evidenc e that counts toward a prima-f acie

case solely to that which is “unambig uous,” “sure ,” or “fr ee from doubt’” (the ordinary meaning of
“cle ar” ) and “explicit” or “re lating

. . . to a partic u l ar named thing” (the ordinary meaning of

See id ; Serafine I

, 466 S.W .3d at 357 (“W e
. . . revie w de novo a trial court’s 9 3 deter mination of whether a [TC PA] nonmovant has prese nted clea r and sp ecific evidenc e establishing a

prima fa cie c ase f

or ea ch esse ntial element of the challeng ed cla ims.”). See Tex. R. App. P . 43.3; see also id . R. 44.1(a) ( harmless-e rror rule). 9 4
See Tex. Ci v. Prac. & . Rem. Code § 27.005(c)

. 9 5
See Lipsky , 460 S.W .3d at 592–96 (discussing , with respe ct to TCPA non -m ovant’s 9 6 burden, e ssential elements of busine ss-dispara g ement and de fama tion claims). Id

. at 590 (citing Simonds v. Stanolind Oil & Gas Co. , 136 S.W .2d 207, 209 (Tex. 1940)). 9 7 Id

. (quoting In re E.I. Du P o n t de Nemours & Co ., 136 S.W .3d 218, 223 (Tex. 2004) 9 8 (per curiam)).
41“spec ific”)

. Collectively , these elements require that a party “provide enoug h detail t o show the 9 9
fac tual basis for its claim,” and thus eff ectively abrog ate the utilit y of mere notice pleading as 1 0 0
“evide nce” to that end. 1 0 1

I n this c ase, the TCPA “evide nce” prese nted by the Abbotts includes, as previously noted, the numerous documents that they attache d and incorporated into their petition, eff ectively 1 0 2 comprising a petition of over 200 pag es in leng th. These documents are potentially a fer tile source of “cle ar and specific ” evidenc e to meet the Abbotts’ burden—inde ed, one cannot fathom evidenc e of an alleg edly actionable written communication that could be more “cle ar and specific ” than a copy of the communication itself. Howeve r, in neither the district court nor on appea l ha ve the Abbotts
undertaken to link particula r facts ref lected in the documents to each of t he essential elements for which they must prese n t a p ri m a-f acie case with respe ct t o eac h claim. I nstead, the Abbotts have

mere ly rec ited what they view as the essential elements of eac h claim; cited en masse to pag es of the

rec ord they deem releva

nt to some unspecifie d element or elements of that claim; but provided no
arg ument, analy sis, or explanation as to which rec ord ref ere nce supports which elements or (per haps

Black’ s Law Dictionary at 307, 1616; Lipsky , 460 S.W .3d at 590 (a p p ro v i n g t hese 9 9 definitions of “c lear ” and “ specific ”); accord Se rafine , 466 S.W .3d at 358.

Lipsky , 460 S.W .3d at 591. 1 0 0 See id . at 590–91. 1 0 1
See Tex. Ci v. Prac. & Rem. Code § 27.006(a) ; Fawcett v. Grosu , 498 S.W .3d 650, 660 1 0 2 (Tex. App.—Houston [14t h Dist.] 2016, pet. denied) (“B ased on section 27.006(a) ’s direc tive (‘the court shall consider the pleading [s] and suppo rt ing and opposing aff idavits

. . . .’) and the Texas Supreme Court’s interpre tat i o n t h at ‘plea dings and evidenc e’ setting forth the fac tual basis for a claim ar e suff

icient to r esist a TCPA motion to dismi ss, Grosu [the non-movant] was permitted to rely on his pleading s (including ex h i b i t s ) in response to appellants’ motion to dismiss .” (citing Lipsky , 460 S.W .3d at 591)).
42more critica lly ) why that evidenc e would satisfy the specific element under the g overning law. This

is akin to the summary -judg ment non-movant wh o , wh i l e having the burden, mere ly points to a voluminous rec ord, assure s the court that a fac t issue is in there somewher e, and leave s it to the court
to fig ure out why or how—a prac tice long deeme d insufficient to defe at summary judgme nt. And 1 0 3 althoug h the documentar y evidenc e we have previously summarized would likely satisfy some elements of some claims (e.g ., the defa matory nature of appel l an t s ’ statements acc using Bill of predatorily exercising mind control over Kristin ), we cannot simil arly conclude that each element 1 0 4
of that or a

ny other c laim would nece ssarily be satisfied.
Wit h o u t more, we cannot conclude that the Abbotts have met their burden to “estab l ish[ ] by clea

r and specific evidenc e a prima fac ie case for eac h essential element of [each] claim in question.” Consequently , the TCPA require s that these cla ims be dismis sed. 1 0 5 1 0 6

See , e.g. , Pressley v. Casar , No. 03-15-00368- CV, No. 03-15-00505- CV, 2016 Tex. App. 1 0 3 L EXI S 13651, at *17–18 (Tex. App.—Austin Dec

. 23, 2016, pet. filed) (mem. op.) (“In the absenc e of any g uidance from t h e n o n -movant wher e the evidenc e can be found, the trial [and appellate courts are ] not requ i red to sift throug h voluminous [evidence] in sear ch of evidenc e to support the non-movant’s argument that a fac t issue exis ts.” ( q u o ti n g Ng u y e n v
. A ll s ta te I n s
. Co. , 4 0 4 S. W. 3 d 7 7 0 , 776 (Tex. App.—Dallas 2013 , p et. denied) (quoting Aguilar v. Morales , 162 S.W .3d 825, 838 (Tex. App.—El Paso 2005, pet. denied) )))

.

See B a ck

es , 4 86 S.W .3d at 26–27 (ac cusation that mother was aff licted with 1 0 4 psy cholog ical disorder of Munchause n Sy ndrome by Prox y and resultantly abusing child was held to b e d efamatory

); see also Lipsky , 460 S.W .3d at 596 (“A ccusing someone of a crime, of having a foul or loathsome disease, or of eng ag ing in serious sexual misconduct are examples of defa mation per se .”). Tex. Ci v. Prac. & Rem. Code § 27.005(c) ; see also Tex. R. App. P . 33.1(a) , 38.1(i).

1 0 5 Tex. Ci v. Prac. & Rem. Code § 27.005(b), ( c). 1 0 6
43CONCLUSION
T h e fo reg oing holdings require that we aff irm the district court’s order denying appellants’ TCPA dismissal motion only with respec t to the Abbotts’ assault claim. As to e ach of
the Abbotts’ other claims, we must reve rse the district court’s order and rende r judgme nt dismiss ing
the claims. We r emand the case to the district c ourt to de termine the attorney ’s fee s and sanctions
that must be awa

rded incident to suc h dismiss al under the TCPA, as well as for rec onsideration, 1 0 7
in light of our opinion, of the discretionar y attorney ’s fee s previously imposed by that court ag ainst appellants. We emphasize that our holdings a ddress only the spec ific cla ims now before us. 1 0 8

_________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Affir med in part; Rever sed and Rende red in pa rt; Reverse d and Remande d in part
Filed: Jul y

14, 2017

See id

. § 27.009(a) ; Serafine II , 2017 Tex. App. L EXI S 4606, at *19–24 (explaining the 1 0 7 TCPA’s attorney ’s-fe e and sa nction provisions). See Tex. Ci v. Prac. & Rem. Code § 27.009(b). 1 0 8
44