NO. 05-18-00127-CV 

IN THE COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

MICHAEL D. LONG AND 

SOLAR MOD SYSTEMS, INC.,

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

State Bar No. 24046902

starkb@gtlaw.com 

Brennwyn B. Romano

State Bar No. 24099028

romanob@gtlaw.com

GREENBERG TRAURIG, LLP

2200 Ross Avenue, Suite 5200

Dallas, Texas 75201

Telephone: (214) 665-3600

Facsimile: (214) 665-3601

Kendyl T. Hanks

State Bar No. 24032273

hanksk@gtlaw.com

GREENBERG TRAURIG, LLP

300 West 6th Street, Suite 2050

Austin, Texas 78701

Telephone: (512) 320-7200

Facsimile: (512) 320-7210

COUNSEL FOR APPELLANTS MICHAEL D. LONG AND 

SOLAR MOD SYSTEMS, INC. 

ACCEPTED

05-18-00127-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

6/4/2018 1:56 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 6/4/2018 1:56:02 PM LISA MATZ Clerk
ii

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
iii

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
iv

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
v

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
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 
2

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.
3

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 
4

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). 
5

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 
6

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 
7

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 
8

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 
9

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 
10

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. 
11

See Response at 14–16 & n.2 (arguing this Court should reject the “fourprong 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.
12

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
13

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 
14

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.
15

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).
16

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 
17

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 
18

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. 
19

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.
20

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
21

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