Kirby, Mathews & Walrath, PLLC and Gerald Walrath v. Kuiper Law Firm, PLLC

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-21-00040-CV

KIRBY, MATHEWS & WALRATH, PLLC AND GERALD WALRATH, Appellants

V.

KUIPER LAW FIRM, PLLC, Appellee

On Appeal from the 133rd District Court
Harris County, Texas
Trial Court No. 2020-76455

Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
 MEMORANDUM OPINION

Kuiper Law Firm, PLLC (Kuiper), sued Kirby, Mathews & Walrath, PLLC (KMW), and

Gerald Walrath (Walrath) (collectively Appellants) and asserted that Appellants had tortiously

interfered with Kuiper’s contract with a third-party client and with its prospective business

relations with that same client when Walrath allegedly transmitted false, misleading, harmful,

and outrageous accusations about Kuiper to its client. Simultaneously with filing their original

answers, Appellants filed a motion to dismiss Kuiper’s claims pursuant to the Texas Citizen’s

Participation Act (TCPA).1 After a hearing, the trial court denied the motion.

On appeal,2 Appellants complain that the trial court erred in denying their motion to

dismiss. Because we find that Appellants did not demonstrate that Kuiper’s claims were based

on or in response to the exercise of their right to free speech,3 we affirm the trial court’s order.

I. Background
In November 2020, Kuiper filed suit against KMW and Walrath, a named partner and co-

founder of KMW. Kuiper averred that it had a contractual business relationship with a third

party (Third Party) that had generated two million dollars per year in profits and that this

relationship was anticipated to last for at least five years. Kuiper alleged that Appellants were

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.
2
Originally appealed to the First Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the First Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
3
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1)(a) (Supp.). The Texas Legislature amended certain
provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–9, § 12, secs. 27.001, 27.003,
27.005–.007, 27.0075, 27.009–.010, 2019 Tex. Sess. Law Serv. 684–87. The amendments became effective
September 1, 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11–12, 2019 Tex. Sess. Law Serv. 687.
Because this suit was filed after the effective date of the amendments, this case is governed by the current statute.
2
direct competitors with it in the oil and gas law industry and that they knew that Kuiper had a

contractual or business relationship with Third Party.

According to Kuiper’s pleadings, in or around August 2019, Walrath, acting for himself

and KMW, transmitted false, misleading, harmful, and outrageous accusations about Kuiper to

Third Party that cast Kuiper in a negative light and which Appellants knew or should have

known would impact Kuiper’s relationship with Third Party. Kuiper alleged that there was no

legitimate purpose for the transmittal of the information and that Appellants transmitted the

information with the deliberate intent to sabotage Kuiper’s relationship with Third Party and to

gain Third Party’s business for themselves or others. Kuiper also alleged that Appellants did

nothing to confirm the veracity of the transmitted information and that, as a result of Appellants’

actions, Kuiper’s relationship with Third Party was disrupted and irreparably ended.

Based on these allegations, Kuiper asserted common-law actions against Appellants for

tortious interference with contract and tortious interference with prospective business

relationships. Kuiper requested both actual and exemplary damages.

Appellants answered and asserted general denials as well as affirmative defenses based

on limitations, truth, judicial estoppel, privilege, and attorney-client privilege. They also filed a

motion to dismiss pursuant to the TCPA and alleged that Kuiper’s claims should be dismissed

because (1) they related to, and were in response to, the exercise of free speech; (2) Kuiper could

not establish a prima facie case of each essential element of its claims; and (3) Appellants could

establish their affirmative defenses based on truth and limitations. After the trial court granted

limited discovery, Kuiper filed its response to the motion to dismiss and attached (1) the

3
Declaration of Alexander A. Kuiper (Alexander Kuiper), (2) a copy of an engagement letter

between Kuiper and Third Party, (3) a confidential release between Alexander Kuiper and

Kuiper, on the one hand, and Third Party and Gregory Cameron Cox, on the other, (4) the

affidavit of Cox, (5) copies of email and text communications between Cox and Walrath, and

(6) excerpts from the deposition of Gregory C. Cox.

As relevant to this opinion, these documents showed that, in July 2019, Kuiper had

entered into an engagement letter to provide oil and gas legal services to Third Party, an

upstream oil and gas company, and that Kuiper provided legal services to Third Party for

approximately one year pursuant to that agreement. In addition, the documents and Cox’s

deposition showed that, in August 2019, Cox, who was a senior counsel at Third Party, and

Walrath had electronic communications concerning the then-recent break-up of Alexander

Kuiper’s former firm and rumors regarding alleged unethical conduct by Alexander Kuiper when

he represented another oil and gas company. These communications culminated when Walrath

related a story to Cox at a lunch meeting that provided more detail regarding the alleged

unethical conduct by Alexander Kuiper during his representation of another oil and gas

company. Cox’s deposition also showed that Cox’s relationship with Walrath began in 2006,

when Cox was a law clerk at a law firm where Walrath worked as a lawyer. They worked

together again beginning in 2017 when Third Party engaged Walrath’s legal services. Cox

testified that he considered Walrath his friend and mentor.4 The evidence also showed that, in

4
Walrath and KMW filed a reply on the evening before the hearing on its motion to dismiss and attached a copy of
Cox’s entire deposition and affidavits from two witnesses. At and before the hearing, Kuiper objected to this
evidence as untimely. On appeal, Kuiper argues that, in deciding a TCPA motion, the only evidence the court
should consider is “evidence a court could consider under Rule 166a.” TEX. CIV. PRAC. & REM. CODE ANN.
4
May 2020, Cox sent an email to another senior counsel for Third Party in which he relayed the

accusations and other information regarding Alexander Kuiper and stated that he would never

use him to perform work for Third Party.

At the hearing on Appellants’ motion to dismiss, the trial court heard the arguments of

counsel, then denied the motion. Several days later, the trial court signed an order denying the

motion. Neither the trial court’s oral ruling nor its signed order indicated the basis of its denial.

II. The TCPA

“The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence

them on matters of public concern.” Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 469 (Tex.

App.—Houston [1st Dist.] 2020, pet. dism’d) (citing In re Lipsky, 460 S.W.3d 579, 584 (Tex.

2015) (orig. proceeding)). The TCPA is “construed liberally to effectuate its purpose and intent

fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b). The purpose of the TCPA “is to

encourage and safeguard the constitutional rights of persons to petition, speak freely, associate

freely, and otherwise participate in government to the maximum extent permitted by law and, at

the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

Gaskamp, 596 S.W.3d at 469 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.002).

“A motion to dismiss made under the [TCPA] generally entails a three-step analysis.”

Morris v. Daniel, 615 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing

§ 27.006(a). It reasons that, because new evidence submitted with a summary judgment reply should not be
considered, citing Environmental Procedures, Inc. v. Guidry, 282 S.W.3d 602, 619–20 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied), neither should it be considered in an appeal of a ruling on a TCPA motion to dismiss. In
their reply brief on appeal, Appellants argue that, unlike Rule 166a, the TCPA does not address when evidence is
required to be filed. Compare TEX. R. CIV. P. 166a(c), with TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(d)–(e),
27.006(a)–(b). We need not resolve this issue, however, because the evidence proffered by Appellants with their
reply brief does not affect the outcome of this appeal.
5
Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018)). “The movant first must demonstrate

that the nonmovant’s legal action is based on or is in response to the movant’s exercise of the

right of free speech, right to petition, or right of association.” Id. (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(b)(1)). “The nonmovant’s pleading is the best evidence of the nature of his

legal action.” Id. (citing Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). “When it is clear

from the nonmovant’s pleading that his legal action is covered by the [TCPA], the movant need

not show more to demonstrate that the [TCPA] applies.” Id. (citing Adams v. Starside Custom

Builders, 547 S.W.3d 890, 897 (Tex. 2018)).

Appellants contend that Kuiper’s claims are based on or in response to its exercise of free

speech. Under the TCPA, “‘[e]xercise of the right of free speech’ means a communication made

in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.001(3). A “[m]atter of public concern” is defined as

[A] statement or 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 of concern to the public.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7).

“Taken together, these three provisions broadly define what constitutes a matter of public

concern.” Morris, 615 S.W.3d at 576 (citing Lippincott v. Whisenhunt, 462 S.W.3d 507, 509

(Tex. 2015) (per curiam) (“characterizing prior version of Act as broadly defining exercise of

6
right of free speech”)). “But the reach of these broad provisions is not without limit. To be a

matter of public concern, a claim must have public relevance beyond the interests of the parties.”

Id. (citing Creative Oil & Gas v. Lona Hills Ranch, 591 S.W.3d 127, 136 (Tex. 2019)). “Private

disputes, whether sounding in contract or in tort, that merely affect the fortunes of the litigants

are not matters of public concern.” Id. (citing Creative Oil & Gas, 591 S.W.3d at 134–37). For

instance, under the broader definition of “matter of public concern” contained in the prior

version of the TCPA,5 the Texas Supreme Court held that communications that involved 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. Creative Oil & Gas v. Lona Hills Ranch, 591 S.W.3d 127, 134–37 (Tex. 2019).

Also, in Gaskamp, the First Court of Appeals held that, under the prior version of the TCPA,

communications between the defendants through which they allegedly misappropriated, shared,

and used the plaintiff’s trade secrets, breached their fiduciary duties, and conspired to further

their business venture were not matters of public concern since “the communications had no

5
Under the prior version of the TCPA, a “[m]atter of public concern” was defined 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.

See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, sec. 27.001, 2019 Tex. Sess. Law Serv. 684–85.
7
public relevance beyond the pecuniary interests of the private parties.” Gaskamp, 596 S.W.3d at

477 (citing Creative Oil & Gas, 591 S.W.3d at 136). Moreover, the First Court of Appeals has

also noted that “the current definition of a ‘matter of public concern’ more strongly emphasizes

the term’s public component and thereby furthers the TCPA’s stated and unchanged purpose: ‘to

encourage and safeguard the constitutional rights of persons to . . . speak freely.” Chesser v.

Aucoin, No. 01-20-00425-CV, 2020 WL 7391711, at *4 (Tex. App.—Houston [1st Dist.]

Dec. 17, 2020, no pet.) (mem. op.) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.002))

(emphasis added).

“If the movant carries [its] initial burden, the trial court must dismiss the nonmovant’s

legal action unless the nonmovant either establishes that [its] action is exempt from the [TCPA]

or establishes by clear and specific evidence a prima facie case for each essential element of the

challenged claims.” Morris, 615 S.W.3d at 577 (citing TEX. CIV. PRAC. & REM. CODE ANN.

§§ 27.005(c), 27.010). “Finally, if the nonmovant makes a prima facie case in support of the

challenged claims, the burden shifts back to the movant to establish an affirmative defense or

other grounds entitling [it] to judgment as a matter of law. Id. (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(d); Youngkin, 546 S.W.3d at 679–80). “If the movant does so, the trial

court must dismiss the action.” Id. (citing Youngkin, 546 S.W.3d at 681).

III. Standard of Review

A trial court’s denial of a motion to dismiss under the TCPA is reviewed de novo. Id. at

575. “We likewise interpret the [TCPA] and decide whether it applies to a legal action de novo.”

Id. (citing Youngkin, 546 S.W.3d at 680). In addition, whether communications are matters of

8
public concern is determined under a de novo standard of review. Creative Oil & Gas, 591

S.W.3d at 132 (citing Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex.

2018)).

IV. Analysis

In its petition, Kuiper alleged that it had an ongoing relationship with Third Party in

which it provided oil and gas legal services to Third Party. The petition also alleged that

Appellants were its direct competitors in the oil and gas law industry and that Walrath made

false, misleading, harmful, and outrageous accusations about Kuiper to Third Party in an attempt

to gain Third Party’s business for themselves. The petition went on to assert common-law

actions against Appellants for tortious interference with contract and tortious interference with

prospective business relationships. The evidence before the trial court was that Appellants also

provided legal services to Third Party, that Walrath and Cox had a long-established friendship,

and that the accusations communicated by Walrath to his friend concerned alleged unethical

conduct by Alexander Kuiper during his prior representation of another oil and gas company.

In Creative Oil & Gas, Lona Hills Ranch, LLC (Lona Hills), had entered an oil and gas

lease with Creative Oil & Gas, LLC (Creative). Lona Hills sued Creative and sought a ruling

that the lease was terminated due to a cessation of production. Creative filed a counterclaim and

contended that Lona Hills falsely communicated to third-party purchasers of production from the

lease that the lease had expired and that payments should stop. Id. at 130. Lona Hills filed a

motion to dismiss the counterclaim and argued that its statements to third parties were an

exercise of the right of free speech, because they were communications made in connection with

9
a matter of public concern. Id. The trial court denied the motion, but the court of appeals

reversed without addressing the “matter of public concern” issue. Id. at 130–31.

On appeal, the Texas Supreme Court opined that “[t]he phrase ‘matter of public concern’

commonly refers to matters ‘of political, social, or other concern to the community,’ as opposed

to purely private matters.” Id. at 135 (quoting Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex.

2017)6 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick v. Myers, 461 U.S.

138, 146 (1983))). In examining the context in which the communications were made, the court

noted that they were “private business communications to third-party purchasers of a single

well’s production” and that there was no evidence “that the dispute had any relevance to the

broader marketplace or otherwise could reasonably be characterized as involving public

concerns” but, rather, that “the alleged communications were made to two private parties

concerning modest production at a single well.” Id. at 136. For that reason, the court held that

the “communications, with a limited business audience concerning a private contract dispute,

[did] not relate to a matter of public concern under the TCPA.” Id. It further explained,

[N]ot every communication related somehow to one of the broad categories set
out in section 27.001(7) always regards a matter of public concern. A private
contract dispute affecting only the fortunes of the private parties involved is
simply not a “matter of public concern” under any tenable understanding of those
words.

6
In Brady, the court went on to explain that “[p]ublic matters include ‘a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public.’” Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex.
2017) (quoting Snyder, 562 U.S. at 453 (quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam))).
“Whether ‘speech addresses a matter of public concern must be determined by [the expression’s] content, form, and
context . . . as revealed by the whole record.’” Id. (alteration in original) (quoting Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (plurality op.) (quoting Connick, 461 U.S. at 147–48)).
10
Id. at 137;7 see also Gaskamp, 596 S.W.3d at 476–77 (applying the reasoning in Creative Oil &

Gas to hold that communications between the defendants through which they allegedly

misappropriated, shared, and used the plaintiff’s trade secrets, breached their fiduciary duties,

and conspired to further their business venture were not matters of public concern).

Similarly, in this case, the communications by Walrath were made privately to his friend

Cox, who also was a senior counsel for Third Party and with whom both Kuiper and Appellants

had business relationships. According to Kuiper’s allegations, those communications were made

with the intent to, and did, damage its business relationship with Third Party. There is no

allegation, and no evidence in the record, that the communications were made to any of Kuiper’s

other clients or that the alleged unethical conduct of Kuiper was the subject of an ethics

complaint or investigation or of a lawsuit against Kuiper by the allegedly aggrieved client. To

the contrary, 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. Unlike those cases in which the Texas Supreme Court has held that a private

communication was covered by the TCPA, there was no evidence that Alexander Kuiper’s

alleged conduct had any “public relevance beyond the pecuniary interests of the private parties

involved.” Creative Oil & Gas, 591 S.W.3d at 136. For these reasons, we find that the

communications do not relate to a matter of public concern under the TCPA. See id. at 136–37;

Gaskamp, 596 S.W.3d at 476–77.

7
The court noted that it had “previously held that private communications are sometimes covered by the TCPA.”
Creative Oil & Gas, 591 S.W.3d at 136 (citing ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017)
(per curiam); Lippincott, 462 S.W.3d 507). The court distinguished those cases because they “involved
environmental, health, or safety concerns that had public relevance beyond the pecuniary interests of the private
parties involved.” Id.
11
 Nevertheless, relying principally on a Corpus Christi Court of Appeals opinion,

Appellants argue that “the practice of law . . . and disciplinary proceedings brought in Texas

against a lawyer by the Supreme Court of Texas” are “undoubtedly matters of public concern.”

Trevino v. Cantu, Nos. 13-16-00109-CV & 13-16-00111-CV, 2017 WL 1056404, at *3 (Tex.

App.—Corpus Christi Feb. 2, 2017, no pet.) (mem. op.). We do not read Trevino as standing for

the proposition that an attorney’s practice of law and all rumors regarding an attorney’s possible

violation of disciplinary rules are in all instances “matters of public concern.” Rather, the

Corpus Christi court’s statement must be read in the context of that case.

In Trevino, the McAllen Monitor and a related newspaper published two articles

concerning Mark A. Cantu, a McAllen attorney. In the first article, the Monitor reported on a

case in which Cantu represented a family against Ford Motor Company following a rollover

accident and its appeal to the Texas Supreme Court. Id. at *1. The article stated that “the court

found evidence that McAllen lawyer Mark A. Cantu had been in collusion with a juror to

maneuver the $3 million settlement from Ford, during a 2004 jury trial in the 404th state District

Court presided over by former Judge Abel C. Limas.” Id. The article also stated that an

administrator from the State Bar of Texas’s Office of Chief Disciplinary Counsel had no

comment regarding whether the office was investigating Cantu related to the Ford case. A

second article concerned Cantu’s history of disciplinary concerns, quoted from a bankruptcy

judge’s opinion in which the judge requested that the State Bar of Texas investigate Cantu, and

outlined Cantu’s disciplinary history with the state bar. Id.

12
 Thereafter, Cantu sued the Monitor, its associated newspaper, and its reporter seeking

damages for defamation, business disparagement, and intentional infliction of emotional distress.

Id. The defendants filed a motion to dismiss pursuant to the TCPA and asserted that Cantu’s

claims related to their reporting on an issue of public concern, i.e., Cantu’s conduct as an officer

of Texas courts. The motion was denied by operation of law. Id. at *2.

On appeal, the court of appeals concluded, without analysis, “that both articles at issue in

[the] case [were] matters of public concern because they concern[ed] the practice of law, public

corruption, cases filed in our judicial system, and disciplinary proceedings brought in Texas

against a lawyer licensed by the Supreme Court of Texas.” Id. at *3. The facts of the case,

however, supported the appellate court’s conclusion: the local McAllen newspaper reported on

unethical conduct by a McAllen attorney in a local district court as reported by the Texas

Supreme Court, on the reported concerns of a bankruptcy judge regarding the conduct of the

same attorney, and on the published disciplinary history of that attorney with the State Bar.

Those would be matters of 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.

By contrast, here, there is no evidence that a disciplinary complaint was filed regarding

the alleged conduct of Alexander Kuiper, much less a final determination by the state bar’s

grievance committee. There is no evidence that Alexander Kuiper has any adverse disciplinary

history with the State Bar. There is also no evidence that Alexander Kuiper’s former client filed

13
suit against him alleging any wrongdoing on his part. Additionally, as we have previously noted,

the communications in this case 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. But there was no evidence of any public relevance beyond the pecuniary interests of

the parties.8

Since the communications were not a matter of public concern, Appellants failed to

demonstrate that Kuiper’s claims were based on or were in response to their exercise of the right

of free speech. As a result, we find that the trial court did not err in denying Appellants’ motion

to dismiss because the TCPA does not apply to Kuiper’s claims.9 See Morris, 615 S.W.3d at

579.

8
In their brief on appeal, Appellants also point to certain paragraphs of the preamble to the Texas Disciplinary Rules
of Professional Conduct and a portion of the Texas Lawyer’s Creed in support of their argument that the
communication was a matter of public concern. However, Appellants do not explain how those portions of the
preamble and creed elevate this private dispute affecting only the parties involved to a matter of public concern.
Under our rules, an appellant’s brief is required to “contain an argument that provides ‘a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.’” Tate v. Meisterwood Cmty.
Improvement Ass’n, No. 01-19-00054-CV, 2020 WL 4689207, at *1 (Tex. App.—Houston [1st Dist.] Aug. 13,
2020, no pet.) (mem. op.) (quoting TEX. R. APP. P. 38.1(i)). “This court is not obliged to independently review the
record, research the law, and make arguments on an appellant’s behalf when [it] fails to do so.” Id. (quoting Eagle
Oil & Gas Co. v. Shale Expl. LLC, 549 S.W.3d 256, 286 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d)).
9
Because Appellants failed to demonstrate that Kuiper’s claims were based on or were in response to their exercise
of free speech, we need not address whether Kuiper established by clear and specific evidence a prima facie case for
each essential element of its claims or whether Appellants established an affirmative defense as a matter of law. See
Morris, 615 S.W.3d at 579.
14
V. Conclusion

For the reasons stated, we affirm the trial court’s order denying Appellants’ motion to

dismiss.

Scott E. Stevens
Justice

Date Submitted: July 20, 2021
Date Decided: September 21, 2021

15