Michael D. Long and Solar Mod Systems, Inc. v. James D. Vincent, Jr. and Randall T. Wilson D/B/A Specialized Armor Group

ACCEPTED
05-18-00127-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/4/2018 1:56 PM
LISA MATZ
CLERK

NO. 05-18-00127-CV

IN THE COURT OF APPEALS FILED IN
FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS
5th COURT OF APPEALS
DALLAS, TEXAS
6/4/2018 1:56:02 PM
MICHAEL D. LONG AND LISA MATZ
SOLAR MOD SYSTEMS, INC., Clerk

Appellants,

vs.

JAMES D. VINCENT, JR. AND
RANDALL T. WILSON,
Appellees.

On Appeal from the 192nd Judicial District Court,
Dallas County, Trial Court Cause No. DC-17-04262

APPELLANTS’ REPLY BRIEF

P. William Stark Kendyl T. Hanks
State Bar No. 24046902 State Bar No. 24032273
starkb@gtlaw.com hanksk@gtlaw.com
Brennwyn B. Romano GREENBERG TRAURIG, LLP
State Bar No. 24099028 300 West 6th Street, Suite 2050
romanob@gtlaw.com Austin, Texas 78701
GREENBERG TRAURIG, LLP Telephone: (512) 320-7200
2200 Ross Avenue, Suite 5200 Facsimile: (512) 320-7210
Dallas, Texas 75201
Telephone: (214) 665-3600
Facsimile: (214) 665-3601

COUNSEL FOR APPELLANTS MICHAEL D. LONG AND
SOLAR MOD SYSTEMS, INC.
 TABLE OF CONTENTS

INTRODUCTION ............................................................................................ 1

ARGUMENT.................................................................................................. 3

I. Appellants Have Met Their Burden of Establishing the
TCPA Applies to Appellees’ Claims. ....................................... 3

A. The Authority on Which Appellees Rely on
Freedom of Association is Inapplicable. ........................ 3

B. Texas Courts Have Squarely Rejected Appellees’
Argument that the TCPA Applies Only to Speech
by “Politically and Socially Active Individuals.” ........... 6

II. The Texas Supreme Court Recently Rejected Appellees’
Argument on the TCPA’s Exemption. .................................... 9

III. Appellees Failed to Produce Clear and Specific
Evidence Establishing a Prima Facie Case for Each
Essential Element of Their Claims....................................... 15

A. Appellees Do Not Address the Issue of Whether
Their Affidavits are Substantively Defective. ............. 15

B. Appellees Have Otherwise Failed to Meet Their
Prima Facie Burden. .................................................... 16

CONCLUSION AND PRAYER ......................................................................... 18

CERTIFICATE OF COMPLIANCE ................................................................... 20

CERTIFICATE OF SERVICE .......................................................................... 21

ii
 INDEX OF AUTHORITIES

State Cases

Adams v. Starside Custom Builders, LLC,
No. 16-0786, 2018 WL 1883075 (Tex. Apr. 20, 2018)....................... 1, 7
Backes v. Misko,
486 S.W.3d 7 (Tex. App.—Dallas 2015, pet. denied) ......................... 13
Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc.,
402 S.W.3d 299 (Tex. App.—Dallas 2013, pet. denied)................ 13, 14
Better Bus. Bureau of Metro. Hous., Inc. v. John Moore
Servs., Inc.,
441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) ................................................................................................. 13
Bradford v. Vento,
48 S.W.3d 749 (Tex. 2001) .................................................................. 17
Castleman v. Internet Money Ltd.,
No. 07-16-00320-CV, 2017 WL 1449224 (Tex. App.—
Amarillo Apr. 19, 2017) ................................................................ 11, 12
Castleman v. Internet Money Ltd.,
No. 17-0437, 2018 WL 1975039 (Tex. April 27, 2018) ............... passim
Collins v. Collins,
No. 01-17-00817-CV, 2018 WL 1320841 (Tex. App.—
Houston [1st Dist.] Mar. 15, 2018, rule 53.7(f) motion
granted) (mem. op.) ............................................................................... 8
Colorado v. Tyco Valves & Controls, L.P.,
432 S.W.3d 885 (Tex. 2014) .................................................................. 5
Craig v. Tejas Promotions, LLC,
No. 03-16-00611-CV, 2018 WL 2050213 (Tex. App.—
Austin May 3, 2018, no pet. h.) ............................................................ 8
Elliot v. S&S Emergency Training Solutions, Inc.,
No. 05-16-01373-CV; 2017 WL 2118787 (Tex. App.—
Dallas May 16, 2017, pet. filed) (mem. op.) ........................................ 17

iii
Global Tel*link Corp. v. Securus Techs., Inc.,
No. 05-16-01224-CV, 2017 WL 3275921 (Tex. App.—
Dallas July 31, 2017, pet. dism’d) ................................................ 11, 12
Kerlin v. Arias,
274 S.W.3d 666 (Tex. 2008) (per curiam) ........................................... 15
Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.—
Austin Apr. 11, 2014, pet. denied) (mem. op.).............................. 13, 14
LFMC Enterprises, LLC v. Baker,
No. 01-17-00558-CV, 2018 WL 1474203 (Tex. App.—
Houston [1st Dist.] Mar. 27, 2018, rule 53.7(f) motion
granted) ......................................................................................... 3, 4, 5
Lippincott v. Whisenhunt,
462 S.W.3d 507 (Tex. 2015) (per curiam) ............................................. 3
In re Lipsky,
460 S.W.3d 579 (Tex. 2015) ................................................ 2, 16, 17, 18
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,
Ltd.,
416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) ........................................................................................... 13, 14
Paragon Gen. Contractors, Inc. v. Larco Const., Inc.,
227 S.W.3d 876 (Tex. App.—Dallas 2007, no pet.) ............................ 15
Redflex Traffic Sys., Inc. v. Watson,
No. 02-16-00432-CV, 2017 WL 4413156 (Tex. App.—Fort
Worth Oct. 5, 2017, no pet.) (mem. op.) ........................................ 11, 12
Ryland Group, Inc. v. Hood,
924 S.W.2d 120 (Tex. 1996) ................................................................ 15
Youngkin v. Hines,
No. 16-0935, 2018 WL 1973661 (Tex. Apr. 27, 2018)........................... 8

State Statutes

TEX. CIV. PRAC. & REM. CODE § 27.001(2) ................................................. 5

iv
TEX. CIV. PRAC. & REM. CODE § 27.001(3).............................................. 7, 8
TEX. CIV. PRAC. & REM. CODE § 27.001(7) ................................................. 7
TEX. CIV. PRAC. & REM. CODE § 27.001(7)(A) ............................................. 9
TEX. CIV. PRAC. & REM. CODE § 27.001(7)(B) ............................................. 9
TEX. CIV. PRAC. & REM. CODE § 27.001(7)(C) ......................................... 8, 9
TEX. CIV. PRAC. & REM. CODE § 27.005(b) ............................................. 1, 5
TEX. CIV. PRAC. & REM. CODE § 27.005(c) ...................................... 2, 15, 16
TEX. CIV. PRAC. & REM. CODE § 27.009 .................................................... 18
TEX. CIV. PRAC. & REM. CODE § 27.010(b) ..................................... 1, 10, 14

v
 INTRODUCTION

Resorting to arguments that the Texas Supreme Court and

numerous courts of appeals have rejected, Appellees urge that the

Texas Citizens Participation Act (“TCPA”) does not apply because this

is a commercial dispute and Appellants are not political activists. As

recently as the last few months, the Texas Supreme Court has squarely

rejected that notion. See, e.g., Adams v. Starside Custom Builders, LLC,

No. 16-0786, 2018 WL 1883075, at *1, *3 (Tex. Apr. 20, 2018). The

alleged communications in this case involve a matter of public

concern—the government and, specifically, Military procurement.

Appellees raise complaints about communications and associations that

“relate” to the Military procurement business. See TEX. CIV. PRAC. &

REM. CODE § 27.005(b). Under the TCPA’s plain language Appellees

assert claims that fall within the TCPA’s protections for free association

and speech.

Appellees’ claim that the TCPA’s commercial speech exemption

applies also fails because Appellees do not allege that any

communication was made to an existing or prospective customer of

Appellants. See id. § 27.010(b). On this issue, on April 27, the Texas
Supreme Court resolved a split in the courts of appeals, reversed one of

the primary cases on which Appellees rely, and expressly disapproved of

other court of appeals decisions discussed at length in Appellees’

Response. See Castleman v. Internet Money Ltd., No. 17-0437, 2018 WL

1975039, at *2–3 (Tex. April 27, 2018) (per curiam). Because the Texas

Supreme Court’s Castleman holding rejects the same interpretation of

the TCPA’s exemption provision that Appellees advance in their

Response, their argument fails.

Finally, Appellees have not met their prima facie burden under

the TCPA of providing clear and specific evidence for each element of

their claims. TEX. CIV. PRAC. & REM. CODE § 27.005(c); see also In re

Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). Appellees continue to offer

summary allegations supported by no details or evidence other than

their own conclusory allegations. This is insufficient under the TCPA.

The Court should reverse the trial court’s order denying

Appellants’ motion to dismiss under the TCPA, and remand for

appropriate proceedings.

2
 ARGUMENT

I. APPELLANTS HAVE MET THEIR BURDEN OF ESTABLISHING THE
TCPA APPLIES TO APPELLEES’ CLAIMS.

A. The Authority on Which Appellees Rely on Freedom of
Association is Inapplicable.

Rather than responding to the authorities cited by Appellants

regarding the right of association (see Appellants’ Brief at 19–21),

Appellees argue the TCPA does not apply because their “claims relate to

statements made prior to Appellants’ right to associate with others

about potential business dealings.” Response at 4; see also id. at 7–10.

Citing LFMC Enterprises, Appellees argue in particular their “claims

did not occur at the time Appellants associated with another to go into

business.” Response at 9; see LFMC Enterprises, LLC v. Baker, No. 01-

17-00558-CV, 2018 WL 1474203, *2–3 (Tex. App.—Houston [1st Dist.]

Mar. 27, 2018, rule 53.7(f) motion granted).

The TCPA has no such requirement, nor does LFMC Enterprises

hold that there is. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509

(Tex. 2015) (per curiam) (in deciding whether the TCPA applies, courts

look to its plain statutory text). The LFMC Enterprises case (a “lawsuit

over a bar fight”) does not stand for the proposition that statements and

3
associations must be contemporaneous with the events giving rise to the

claims. See 2018 WL 1474203, at *1. The Court of Appeals made no

temporal distinction about the association or communications.

Instead, the TCPA did not apply because the defendants were not

asserting their own right of association—but that of their patrons—

which “was fatal to their motion.” LFMC Enterprises, LLC, 2018 WL

1474203, at *1. “The appellants suggest that the nightclub operating on

their premises facilitates the exercise of the right of association by bar

patrons, and even their agents and employees, but they provided no

evidence that their own associational rights, as defined by the statute,

were implicated by the nuisance claims.” Id. (emphasis added).

If the defendants had been asserting their own right of

association, the result might have been different. The Court’s analysis

did not turn on timing, but instead implicitly acknowledged the

communications did not need to be contemporaneous at all. See id. at *4

(“[T]he appellants in this appeal do not allege or provide evidence to

suggest that the nuisance claim was based on, related to, or in response

to their past or future communications with others at the nightclub.”)

(emphasis added).

4
 LFMC Enterprises is inapposite because Appellants assert their

own rights of association—both in the form of not associating with

Appellants and choosing to communicate and associate with another

company. See Appellants’ Brief at 19–21. A legal action implicates a

movant’s right of “association” when it relates to a “communication

between individuals who join together to collectively express, promote,

pursue, or defend common interests.” TEX. CIV. PRAC. & REM. CODE

§ 27.001(2). The TCPA broadly applies to any claim that is “based on,

relates to, or is in response to the party’s exercise” of the right to

associate. Id. § 27.005(b). “Relates to” ordinarily means “having a

connection with or reference to” and is a broad term that should be

construed expansively. See Colorado v. Tyco Valves & Controls, L.P.,

432 S.W.3d 885, 890 (Tex. 2014).

The communications Appellees focus on clearly “relate to” the

exercise of Appellants’ right of association. They claim, for example,

that Long “guaranteed Wilson that when the [Military] contract was

awarded Wilson would be the manufacturer.” (CR 69; see also CR 26–

28, 30, 53, 64.) These alleged communications concern Appellants’ right

of association in the procurement and supply of a government Military

5
contract for the national defense, and qualify as “related to” the “right

of association” under the TCPA’s plain language. Therefore, the TCPA

applies because Appellees’ claims target Appellants’ rights of

association as defined in the statute.

B. Texas Courts Have Squarely Rejected Appellees’
Argument that the TCPA Applies Only to Speech by
“Politically and Socially Active Individuals.”

With regard to speech, Appellees abandon their argument that the

TCPA distinguishes between public and private speech and now argue

that the communications in question “are not matters of public concern”

because the “statements are misrepresentations about a commercial

business venture.” Response at 12. They urge that the TCPA should

apply only in cases involving “politically and socially active individuals”

and not in a case “about a commercial transaction related to a

government contract.” Response at 13. As described in Appellants’ Brief,

Texas courts have repeatedly and squarely rejected this argument. See

Appellants’ Brief at 10, 17–18, 21–24. Appellants do not respond to

these arguments and authorities.

Like the right of association, the TCPA’s definition of the exercise

of the right of free speech is broad and not limited to constitutional

6
concepts of free speech. “The TCPA casts a wide net” that “is not fully

coextensive with the constitutional free-speech right protected by the

First Amendment.” Adams, 2018 WL 1883075, at *1, *3.

Instead, under the TCPA’s plain language, a legal action impinges

on a movant’s right of free speech when it relates to “communication[s]

made in connection with a matter of public concern,” which expressly

includes, e.g., “an issue related to … economic, or community well-being;

… the government; [or] a good, product, or service in the marketplace.”

TEX. CIV. PRAC. & REM. CODE §§ 27.001(3), (7). The TCPA’s plain

language confirms that the speech in question need not be actually

about these specific issues but only “related to” them.

It is undisputed that Appellees’ claims hinge on alleged

communications regarding the business of manufacturing and

procurement of products for the government, i.e., the United States

Military for use in Kuwait. The crux of Appellees’ damage claim is that

they were entitled to the profits of a Military contract for products to be

used in the national defense. See Adams, 2018 WL 1883075, at *4

(finding plaintiff’s claimed business damages to be “an admission” that

the statements pertain to services in the marketplace for the purposes

7
of TCPA application). Facially, these are matters of public concern to

which the TCPA applies. See TEX. CIV. PRAC. & REM. CODE

§ 27.001(7)(C); see also Appellants’ Brief at 23–24 (citing authorities).

Ignoring the TCPA’s plain language, Appellees focus on notions of

political and social activism and traditional First Amendment

protections. But the Texas Supreme Court has clearly held that the

TCPA applies more broadly. “It does not follow from the fact that the

TCPA professes to safeguard the exercise of certain First Amendment

rights that it should only apply to constitutionally guaranteed

activities.” Youngkin v. Hines, No. 16-0935, 2018 WL 1973661, at *4

(Tex. Apr. 27, 2018). “Whatever might be connoted by a reference to

‘free speech’ in other contexts, for purposes of the TCPA the ‘exercise of

the right of free speech’ is defined as ‘a communication made in

connection with a matter of public concern.’” Collins v. Collins, No. 01-

17-00817-CV, 2018 WL 1320841, at *3 (Tex. App.—Houston [1st Dist.]

Mar. 15, 2018, rule 53.7(f) motion granted) (mem. op.) (quoting TEX.

CIV. PRAC. & REM. CODE § 27.001(3)); see also Craig v. Tejas Promotions,

LLC, No. 03-16-00611-CV, 2018 WL 2050213, at *5 (Tex. App.—Austin

May 3, 2018, no pet. h.) (“[T]he Texas Supreme Court’s TCPA

8
precedents instruct[] that we apply a ‘plain-meaning’ construction of the

Act’s broad terms that … operates largely independently of and extends

considerably beyond the constitutional ‘right of association,’ ‘speech,’ or

‘petition’ that might otherwise have informed the meaning of those

terms.”). Appellees’ request that this Court limit the TCPA’s scope to

traditional constitutional notions is therefore unsupportable under

controlling Texas law.

The communications Appellees allege facially relate to matters of

public concern—including safety, economic and community well-being,

and the government—and Appellees’ claims fall within the protections

of the TCPA as exercises of Appellants’ rights of free speech. See TEX.

CIV. PRAC. & REM. CODE § 27.001(7)(A), (B), (C).

II. THE TEXAS SUPREME COURT RECENTLY REJECTED APPELLEES’
ARGUMENT ON THE TCPA’S EXEMPTION.

The TCPA exempts a limited class of cases from its scope,

including “a legal action brought against a person primarily engaged in

the business of selling or leasing goods or services, if the statement or

conduct arises out of the sale or lease of goods, services, or … a

commercial transaction in which the intended audience is an actual or

9
potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b).

Based on the undisputed facts and the Texas Supreme Court’s recent

decision in Castleman, Appellees have not met their burden of showing

the TCPA’s exemption applies because Appellees do not allege the

intended audience of any communication was an “actual or potential

buyer or customer” of Appellants. Id.; see also Castleman, 2018 WL

1975039, at *5.

Appellees argue that their claims are exempt from the TCPA

because the parties were “contemplating a commercial transaction

between them when Appellants made statements related to Appellees’

claims.” Response at 5–6 (emphasis added); see also id. at 13–18.

Appellees’ argument hinges on the position that the TCPA’s exemption

does not require the statements be made to an actual or potential

customer of the defendant—because Appellants were neither. Instead,

the communications were among potential business partners

contemplating coming together for the purpose of selling products to the

United States Military.

Appellees rely on a line of cases that the Texas Supreme Court

rejected in April when it resolved a split in the Texas courts of appeals.

10
See Response at 14–16 & n.2 (arguing this Court should reject the “four-

prong test for ‘commercial speech’”). In particular, Appellees rely on the

holdings of three cases that the Texas Supreme Court has now

expressly rejected. Id. at 13–18 (discussing Redflex Traffic Sys., Inc. v.

Watson, No. 02-16-00432-CV, 2017 WL 4413156 (Tex. App.—Fort Worth

Oct. 5, 2017, no pet.) (mem. op.); Global Tel*link Corp. v. Securus

Techs., Inc., No. 05-16-01224-CV, 2017 WL 3275921 (Tex. App.—Dallas

July 31, 2017, pet. dism’d); Castleman v. Internet Money Ltd., No. 07-16-

00320-CV, 2017 WL 1449224 (Tex. App.—Amarillo Apr. 19, 2017),

review granted, judgment rev’d, No. 17-0437, 2018 WL 1975039 (Tex.

Apr. 27, 2018)).

In Castleman, the Texas Supreme Court squarely rejected

Appellees’ argument when it clarified the scope of the commercial

speech exemption and applied the same four-part test on which

Appellants rely, and which Appellees ask this Court to eschew.1 See

Castleman, 2018 WL 1975039, at *2–3 (acknowledging and resolving

1 The Supreme Court’s opinion in Castleman was issued on April 27, 2018, four
days before Appellees filed their Response.

11
split in favor of four-prong test). The Supreme Court confirmed that the

TCPA exemption applies

when (1) the defendant was primarily engaged in the
business of selling or leasing goods [or services], (2) the
defendant made the statement or engaged in the conduct on
which the claim is based in the defendant’s capacity as a
seller or lessor of those goods or services, (3) the statement
or conduct at issue arose out of a commercial transaction
involving the kind of goods or services the defendant
provides, and (4) the intended audience of the statement or
conduct were actual or potential customers of the defendant
for the kind of goods or services the defendant provides.

Id. at *3 (emphasis added); compare with Response at 14–15 & n.2. As

a result, the previous split among the courts of appeals is resolved and

it is settled Texas law “that ‘the intended audience’ of the statement or

conduct must be actual or potential customers of the defendant.”

Castleman, 2018 WL 1975039, at *5 (emphasis added).

In reaching this holding, the Supreme Court disapproved of the

same three cases on which Appellees heavily rely in their Response.

Compare id. at *3 n.3 (citing Global Tel*Link, Redflex, and the Amarillo

Court of Appeals’ decision in Castleman as among the cases taking the

approach that the Supreme Court rejected in its opinion), with

12
Response at 13–18 (discussing and asking this Court to apply the same

three cases).

Instead, the Supreme Court approved the cases on which

Appellants rely in their opening brief, adopting the requirement that a

communication be made to the defendant’s actual or potential customer

in order for the TCPA exemption to apply. Compare Castleman, 2018

WL 1975039, at *2 & nn.1–2 (citing, among other cases, Backes v.

Misko, 486 S.W.3d 7, 21 (Tex. App.—Dallas 2015, pet. denied); Kinney

v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012,

at *6 (Tex. App.—Austin, Apr. 11, 2014, pet. denied) (mem. op.); Better

Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d

345, 354 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); Newspaper

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 89–

90 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); Better Bus.

Bureau of Metro. Dall., Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex.

App.—Dallas 2013, pet. denied)), with Appellants’ Brief at 25–28 (citing

same cases).

As detailed in Appellants’ Brief, it is undisputed that the alleged

statements were not made to any actual or potential buyer or customer

13
of Appellants but, instead, between Appellants and Appellees.

Therefore, the Texas Supreme Court’s decision in Castleman controls.

Because Appellees do not allege or present any evidence that the

statements in question were made to Appellants’ buyers or customers,

the TCPA’s exemption does not apply.

Finally, Appellees have failed to meet their burden of showing the

other three prongs of the TCPA exemption apply. See, e.g., BH DFW,

Inc., 402 S.W.3d at 309. Appellees cite no evidence and make no

argument to support the applicability of the TCPA exemption to the

specific facts of this case. Appellees offer no evidence that either Long or

Solar Mod is “primarily engaged” in the business of selling or leasing

goods or services. See TEX. CIV. PRAC. & REM. CODE § 27.010(b). They

also do not argue that any statement arose from the sale of “goods or

services.” See id. Other than generally claiming this case involves

“commercial speech,” Appellees do not show that the “intended

audience” of Appellants’ alleged statements was “an actual or potential

buyer or customer” of anyone. See id. Appellees have thus not carried

their burden of showing any TCPA exemption applies. See Kinney, 2014

WL 1432012, at *6–7; Newspaper Holdings, 416 S.W.3d at 88–89.

14
III. APPELLEES FAILED TO PRODUCE CLEAR AND SPECIFIC EVIDENCE
ESTABLISHING A PRIMA FACIE CASE FOR EACH ESSENTIAL
ELEMENT OF THEIR CLAIMS.

A. Appellees Do Not Address the Issue of Whether Their
Affidavits are Substantively Defective.

Claiming they have made a prima facie case, Appellees’ Response

recites conclusory factual allegations from their own affidavits. As

discussed in Appellants’ brief, these affidavits are substantively

defective and incompetent evidence. See Appellants’ Brief at 29–31; see

also, e.g., Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam)

(affidavit showing no basis for personal knowledge is legally

insufficient); Paragon Gen. Contractors, Inc. v. Larco Const., Inc., 227

S.W.3d 876, 883–84 (Tex. App.—Dallas 2007, no pet.) (“Conclusory

affidavits do not raise fact issues.”) (citing Ryland Group, Inc. v. Hood,

924 S.W.2d 120, 122 (Tex. 1996)).

Appellees do not respond to this issue raised in Appellants’ brief,

which is alone sufficient to find Appellees did not satisfy their prima

facie burden under the TCPA. See TEX. CIV. PRAC. & REM. CODE

§ 27.005(c).

15
 B. Appellees Have Otherwise Failed to Meet Their Prima
Facie Burden.

Appellees recite the same general and conclusory factual

allegations in their Response that they advanced in the trial court. See

Appellants’ Brief at 31–55. These allegations do not show clear and

specific evidence to support each element of their fraud and negligent

misrepresentation claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(c);

see also In re Lipsky, 460 S.W.3d at 590.

Appellees do not allege any misrepresentations attributable to

Solar Mod. Instead, Appellees generally allege that Long and Solar Mod

are alter egos, attempting in a single sentence to attribute alleged

statements by Long to the entity. See Response at 20 (“Appellants Long

and Solar Mod are either a joint enterprise, or else Solar Mod is an alter

ego of Long.”). As in the trial court, Appellees offer no law or details to

support this conclusory allegation. Because this does not satisfy the

TCPA’s standard, Appellees’ fraud and negligent misrepresentation

claims against Solar Mod fail.

The remainder of Appellees’ Response does nothing more than

recite the basic allegations made in the trial court without responding

16
to the various deficiencies raised in Appellants’ Brief. Compare

Appellants’ Brief at 31–55, with Response at 19–25. They do not

address the alleged statements’ materiality. They do not respond to

Appellants’ argument and legal authorities requiring a duty to disclose

before the omission of information is actionable as fraud. See Bradford

v. Vento, 48 S.W.3d 749, 755–56 (Tex. 2001). They do not address the

lack of evidence regarding intent to induce reliance, as required to

sustain a fraud claim. Nor do they articulate a reason why, in this arm’s

length transaction, any reliance by Appellees was justifiable. The

failure of any one of these elements forecloses Appellees’ claims.

Finally, Appellees’ damages argument is wholly deficient under

the TCPA’s clear-and-specific standard, as applied by the Texas

Supreme Court. Compare Appellants’ Brief at 43–47, 54–55, with

Response at 22, 24–25. “[G]eneral averments of direct economic losses

and lost profits, without more, [do not] satisfy the minimum

requirements of the TCPA.” In re Lipsky, 460 S.W.3d at 593; see also

Elliot v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV;

2017 WL 2118787, at *6 (Tex. App.—Dallas May 16, 2017, pet. filed)

(mem. op.). Appellees have done nothing more than offer general

17
averments, which under Lipsky is insufficient to satisfy the TCPA. See

Appellants’ Brief at 43–47 (detailing the wide variety of information

absent from Appellees’ conclusory allegation they suffered damages,

including any information about assets, sales, revenues, expenses, or

other information from which alleged lost profits could be evaluated).

Appellees have failed to meet their prima facie burden under the

TCPA for the reasons above and those detailed in Appellants’ Brief.

CONCLUSION AND PRAYER

For the foregoing reasons, Appellants respectfully request that the

Court reverse the trial court order denying their TCPA Motion to

Dismiss, render judgment dismissing Appellees’ common law fraud and

negligent misrepresentation claims with prejudice, and remand to the

trial court for determination of attorney’s fees and sanctions under

Section 27.009 and for further proceedings on Appellants’ pending

claims against Appellees.

18
Respectfully submitted,

GREENBERG TRAURIG, LLP

By:
Kendyl T. Hanks
State Bar No. 24032273
hanksk@gtlaw.com
300 West 6th Street, Suite 2050
Austin, Texas 78701
Telephone: (512) 320-7200
Facsimile: (512) 320-7210

P. William Stark
State Bar No. 24046902
starkb@gtlaw.com
Brennwyn B. Romano
State Bar No. 24099028
romanob@gtlaw.com
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
Telephone: (214) 665-3600
Facsimile: (214) 665-3601

Counsel for Appellants Michael D.
Long and Solar Mod Systems, Inc.

19
 CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i), I
hereby certify that the foregoing document is a computer-generated
document containing 3,424 words. The undersigned relied upon the
word count feature of her word processing program to determine the
word count.

Kendyl T. Hanks

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing
document was served on counsel of record by using the Court’s e-filing
system on June 4, 2018, addressed as follows:

W.D. Masterson
wdm@kilgorelaw.com
Theodore C. Anderson
tca@kilgorelaw.com
3109 Carlisle
Dallas, Texas 75204
Telephone: (214) 969-9099
Facsimile: (214) 953-0133

Counsel for Appellees
James D. Vincent, Jr. and
Randall T. Wilson

Kendyl T. Hanks

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