Texas Appeals Court–TCPA Defendants Win Again

On July 14, 2017, the Third Court of Appeals in Austin, Texas, issued its opinion in Cavin v Abbott, a case involving the Texas Citizens Participation Act (“TCPA”).  As some of you already know, the TCPA is Texas’s version of an anti-SLAPP statute, protecting various communications by providing a procedure for quick dismissal of legal actions that are “based on, relate[d] to, or in response to” a person’s exercise of the right to free speech, petition, or association (as those terms are defined in the statute).

Background Of The Dispute

In the Cavin case, a family tussle set the backdrop for the court’s TCPA decision.  From the facts as set forth in the opinion, Wylie and Lillian Cavin were upset that their daughter, Kristin, was dating Bill Abbott.  As their relationship continued and they appeared destined to marry (they eventually did get married) the Cavins “voiced strong parental disapproval” of her choice of Bill as her husband and “attempted to intervene to prevent the union.”  At the time, Kristin was in her mid-20s, lived in a separate residence, and had graduated from college about four years earlier.  According to the Cavins, though, Kristin was still “uniquely vulnerable” because she had a hearing impairment that necessitated her wearing hearing aids in both ears.

According to the facts set out in the opinion, Kristin had a confrontation with her parents at her apartment in February, 2014.  She told them that she was going to continue seeing Bill Abbott despite their wishes.  A physical altercation ensued, with both Kristin and Wylie winding up on the floor.  After that, the Cavins sent texts accusing Kristin of disloyalty and ingratitude, Lillian accused Bill by phone of “destroying” their family, and Wylie sent Bill texts containing threats and insults.  Kristin continued to assert her independence, moving out of the apartment paid for by her parents and moving in with Bill, and continued her efforts to sever ties with her parents (she characterized the altercation in February, 2014, as a break from her characteristically submissive role, recounting a similar violent episode during her adolescence, which wound up with her mother repeating insistently, “Does Daddy beat you? Does Daddy beat you?”).  The Cavins continued their efforts to “disrupt Kristin’s marriage plans and related life decisions.”  They hired a private investigator to investigate Bill and used information they perceived as unflattering to disparage Bill to Kristin and others.  They directed the investigator to surveil the couple and (as set forth in Wylie’s email to the investigator) to “rattle” Bill by making his presence known.   When the investigator showed up at Kristin’s work purportedly to check on her welfare, Kristin filed a police report complaining of the investigator’s “stalking” of her.

The Cavins continued, despite Kristin’s protests, to attempt to contact her via text, email, or in person.  Her mom was arrested for assault as a result of one of these contact attempts (the charges were later dropped).  The Cavins attempted to undermine support for Kristin’s relationship with Bill via numerous writings to members of their family and Bill’s family.  These communications conveyed criticisms and alleged concerns about Bill, including the concern that he was seeking to exploit Kristin for her money, and the criticism that Bill was generally not worthy to wed their “beautiful” daughter.  The Cavins also advanced their theory that Bill had a “sociopathic” or “narcissistic” personality disorder and had used “Marxist tactics,” “re-education,” “brainwashing,” and other means of psychological coercion to wield control over Kristin’s mind and actions.  Lillian showed up at Kristin’s work in March, 2014, insisting that Bill was holding Kristin against her will.  The Cavins would eventually claim that Kristin and Bill had an “abusive relationship.”

Finally, Kristin and Bill retained counsel to address what they perceived as a “malicious and rather bizarre campaign of harassment and retribution.”  In April, 2015, counsel wrote to Wylie demanding that he retract alleged defamatory statements made to Kristin’s employer.

The letter did not resolve matters.  Instead, the Cavins “took aggressive steps against persons they suspected of expressing views critical of their actions” such as by suggesting the Cavins themselves had mental-health issues or had engaged in abusive, controlling behavior.  The Cavins sued Lillian’s sister, Sandy Whitley, and her husband, David Hayes, for $1,000,000.00 each for defamation for making statements to this effect.  When the Cavins received in discovery emails between Kristin and Sandy referencing advice Kristin had purportedly received from a psychologist, Lillian wrote that provider a letter denying that Lillian had any mental-health issues and threatening a professional disciplinary complaint to the extent the psychologist advised Kristin otherwise.   The Cavins also “began disseminating their ‘abusive relationship’ narrative to the social-media audience, through a series of videos that Lillian posted online.”

The Suit And The Court’s Analysis

Kristin and Bill eventually sued the Cavins, asserting multiple causes of action.  The causes of action included defamation, conversion, tortious interference with contract, abuse of process, assault (based on the February, 2014, altercation), intrusion on seclusion invasion of privacy, and intentional infliction of emotional distress.

The Cavins responded with a motion to dismiss the claims under the TCPA’s “exercise of the right of free speech” and “exercise of the right to petition” prongs.  Their contention was that their communications about Kristin and Bill’s “mental health” or “abuse” met the TCPA’s definition of “exercise of the right of free speech” because such communications were “made in connection with a matter of public concern” namely “health or safety.”  The Cavins also asserted that the claims implicated the “exercise of the right to petition”–their suit against Sandy Whitley and David Hayes and the use of discovery subpoenas in those proceedings.

The trial court held that the assault claim was specifically excepted from the operation of the TCPA.  The trial court additionally held that the Cavins had not shown that the TCPA applied to the other causes of action.

The Third Court of Appeals affirmed the denial of the motion to dismiss the assault claim, agreeing with the trial court that the assault claim was specifically exempted from the operation of the TCPA.  As to the other claims, however, the court reversed the trial court and ordered the balance of the claims dismissed.  In getting to that decision, the court applied the statute as written and without regard to any type of background constitutional concepts.

The court addressed the “exercise of the right of free speech,” which is defined in the TCPA as a communication “made in connection with a matter of public concern.”  A “matter of public concern” is defined as including “an issue related to” health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace.  The court rejected reliance on the conventional understanding of what constitutes a “matter of public concern” in constitutional jurisprudence or in ordinary usage.  The court instead pointed out that the TCPA has its own, very broad, definition of what constitutes a “matter of public concern,” and that the court was required to utilize that definition.  The court determined that the statute only requires that the communication be made “in connection with” an issue “related to health or safety” without further elaboration or qualification.  The Court recognized that any argument that courts are to read implicit limitations into the TCPA’s definitions derived from statutory or jurisprudential context “was put to rest by the Texas Supreme Court’s precedents.”  Because the communications were undoubtedly about health or safety issues, they fell within the broad definition of “exercise of the right of free speech.”

The court rejected the argument that these were merely “garden variety” torts that had nothing to do with communications or public participation.  The court, citing Texas Supreme Court precedent, held that the TCPA applied even to these communications, so long as they fell within the broad definitions set out in the statute.

The court agreed with the Cavins that the claim for abuse of process was undisputedly in response to the Cavins’s exercise of the right to petition related to the suit against Whitley and Hayes.

No Factual Predication Necessary

Probably the most important part of the court’s opinion was its discussion of what factual connection needs to be shown by the movant in order to prove that the claims fall within the statute.  The court recognized that there were additional claims that were not factually predicated on the right to petition or the right to free speech.  Previous court precedent had recognized that the statutory language requiring that a claim be “based on, relate[d] to, or in response to” the exercise of the right to free speech, petition, or association, covered, at a minimum, claims that were “factually predicated” upon such exercise.  Here, the Cavins argued, and the court eventually agreed, that they met their burden to show the additional claims were “based on, relate[d] to, or. . . in response to” their “exercise of the right of free speech” or “exercise of the right to petition” in some sense other than factual predicate because the phrase incorporates meanings that extend beyond factual predicate.

The court held that the additional claims, although not factually predicated on the Cavins’ protected communications, were “related to” the Cavins’s “exercise of the right of free speech” or “exercise of the right to petition” as there is “some sort of connection, reference, or relationship between them.”  No further factual connection is necessary.

The court also held that the additional claims would be “in response to” the Cavins’s “exercise of the right of free speech” or “exercise of the right to petition” in the sense that “they reacted to or were asserted subsequently to [the Cavins’s] ongoing communications regarding mental health or ‘abuse’ and their lawsuits and subpoenas.”

The court determined that the Texas Supreme Court’s analysis in ExxonMobil Pipeline Company v. Coleman, 512 S.W.3d 895 (Tex. 2017) “forecloses any possibility that we should view ‘relates to’ or ‘in response to’ as limited according to, e.g., the nature, directness, or strength of such connections.”  Given that the Colemancourt rejected a similar limiting construction of the phrase “in connection with,” the court rejected any limiting construction of the phrases “relates to” or “in response to.”  The court explained that “[t]he Legislature has required only that a ‘legal action’ ‘relates to’ TCPA-protected activity or ‘is in response to’ such activity, with no qualification as to either, and Coleman has further instructed us to give effect to the ordinary meaning of those unqualified terms. On this record, the Abbotts’ additional claims fall well within these parameters.”

Plain-Meaning Construction Does Not Lead To Absurd Results

The court addressed whether to apply the legal principle holding that plain-meaning statutory construction should yield where it would lead to an “absurd result” that the Legislature could not possibly have intended.  The court held that the “absurdity safety valve” is reserved for truly exceptional cases, and “mere oddity does not equal absurdity.”  The court determined that the definitions of protected expressions in the TCPA and the “is based on, relates to, or is in response to” connector simply go to the breadth of the class of suspect claims.  The court held that it is “conceivable that the Legislature would see fit to cast this net exceptionally widely—opting for a hand grenade rather than a rifle shot—perhaps in recognition of a high value being ascribed to constitutionally-protected expression that may be subsumed somewhere within the Act’s definitions of protected expression, or in an effort to capture expression-targeting ‘legal actions’ that might otherwise be creatively pleaded so as to avoid the statute’s requirements.”  The fact that such a broad statute “might have practical consequences far afield from its subjectively intended purposes” or from what has been said to be its purposes, “is nothing new.”

No Clear And Specific Evidence Of A Prima Facie Case For Each Essential Element Of The Claims

Finally, the Court took up the issue of whether Kristin and Bill had established by clear and specific evidence a prima facie case for each essential element of each claim.  While Kristin and Bill had presented “numerous documents that they attached and incorporated into their petition” they never undertook to “link particular facts reflected in the documents to each of the essential elements for which they must present a prima-facie case with respect to each claim.”  Instead, they merely “recited what they view as the essential elements of each claim” they “cited en masse to pages of the record they deem relevant to some unspecified element or elements of that claim” but “provided no argument, analysis, or explanation as to which record reference supports which elements” nor did they provide any argument, analysis or explanation “why that evidence would satisfy the specific element under the governing law.”  The court analogized this to a summary judgment non-movant who merely points to a voluminous record and asserts that “a fact issue is in there somewhere.”  The court held that the Abbotts had not met their burden.


The court’s opinion continues the trend of Texas courts broadly construing the TCPA and applying a “plain-meaning” construction to the words the Legislature chose.  The discussion of the “related to” and “in response to” connectors, and the rejection of any factual predicate requirement, was probably foretold by Justice Boyd’s concurring opinion in Hersh v. Tatum, which I discuss here.

Given the extraordinarily broad language used in the TCPA, and given Texas courts’ willingness to apply a plain-meaning construction to that broad languge, the TCPA will continue to be a significant weapon in a litigator’s arsenal.