Interlocutory appeals of TCPA motions show no sign of slowing down in Texas intermediate appellate courts across the state, though the 2019 amendments seem to be having some impact on how broadly judges are reading the statute. In an opinion out of the Texarkana Court of Appeals late last month, the court held that a tortious interference with existing contract claim asserted by one law firm against another was purely a private business matter and not subject to the TCPA.
In Kirby, Mathews & Walrath, PLLC and Gerald Walrath v. Kuiper Law Firm (No. 06-21-00040-CV), Kuiper had a contract for legal services with an oil and gas company that generated considerable revenue for his firm. Walrath allegedly transmitted false and misleading information regarding rumors of Kuiper’s ethical practices to a representative of the company, causing the company to terminate its relationship with Kuiper and retain Walrath instead. Kuiper sued Walrath for tortious interference with existing contract and tortious interference with prospective business relations. Walrath sought to dismiss the claim under the TCPA, claiming that Kuiper’s legal action was based on or in response to Walrath’s exercise of the right to free speech on a matter of public concern. The trial court denied the motion. Walrath filed an interlocutory appeal.
The court of appeals’ analysis focused on whether Walrath’s speech—the communication of allegedly false information to Kuiper’s client—involved a “matter of public concern.” Relying on SCOTX’s decision in Creative Oil & Gas v. Lona Hills Ranch, 591 S.W.3d 127 (Tex. 2019), which held that a contract dispute about a purely private matter impacting the pecuniary interests of the parties were not matters of public concern under the TCPA even though they related to a good, product, or service, the court of appeals held that Walrath’s communications with Kuiper’s client with respect to Kuiper’s conduct had no “public relevance beyond the pecuniary interests of the private parties involved.” Walrath communicated privately and solely to his friend at the client oil and gas company. There was no allegation that Walrath made communications with any of Kuiper’s other clients and no evidence that Kuiper’s alleged unethical conduct was the subject of an ethics complaint or lawsuit. “To the contrary,” the court of appeals concluded, “the communications were made by one service provider to a client regarding a competitor for the client’s business, allegedly resulting in the competitor’s loss of the client’s business.”
Walrath attempted to argue that the practice of law and alleged misconduct in the practice law constituted a matter of public concern. He cited a 2017 Corpus Christi court of appeals opinion, Trevino v. Cantu, 2017 WL 1056404, which held that the TACP applied where a McAllen attorney sued the McAllen Monitor over two articles recounting Cantu’s representation of a family in a case against Ford Motor Company, Cantu’s disciplinary history with the State Bar, and a bankruptcy judge’s request that the State Bar investigate Cantu. The Texarkana court easily distinguished this case on the basis that Cantu’s alleged misconduct were “matters of public concern to the citizens of McAllen and the surrounding communities (to whom the communications were made) since they concerned the integrity of their courts and the established unethical conduct of one of the attorneys practicing before those courts and in their community.” No similar facts existed here. The court of appeals affirmed the trial court’s denial of Walrath’s TCPA motion to dismiss.
Since this case was filed after the 2019 amendments went into effect, the court of appeals applied the revised definition in §27.001(7) of “matter of public concern.” The prior definition defined the term as an “issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.” The sheer breadth of this definition made it the focus of intensive discussion during the 2019 session. The Legislature redefined the term as “a statement of activity regarding: (A) a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject to concern to the public. Although the revised definition did not affect the decision here (Creative Oil & Gas was decided under the old law), the court of appeals recognized that the 2019 amendments narrowed the definition. We should expect to see more appellate opinions discussing the limits of the new definition.