## In the Co urt of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00427

- CV

___________________________

On Appeal from th e 4 8th District Court Tarrant County, Texas Trial Court No. 048

- 320795

- 20

Befo re Sudderth, C.J. ; Womack and Wal lach , J J. Opinion by Justice Wallach 

### N EX 

### P O IN T 

### A DVISORS 

### , L.P. , Appellant

V


### . U NITED 

### D EVELOPMENT 

### F UNDING 

### IV AND 

### M IKE 

### W ILS ON 

### , Appellees2 OPINION This case involves the Texas Citizens Participation Act (TCPA or the Act ), Tex. Civ. Prac. & Rem. C od e Ann. § § 27.001

– .011. NexPoint Advisors, L.P. (Appellant) sued United Devel opment Fund IV (UD F) and Mike Wil s on (Wi lson ) ( collectively , Appellees ) for defamation , business disparagement , tortious interference with existing contract, and tor tious interfe re nce with prospective business relations

. Appellant sought correction , clarif ication , or retr ac tion und er T ex as C iv il Practice and Remedi es Code Sect ion 73.055 ; compensatory damages ; exemplary damages ; attorney’s fees ; in terest ; and court costs. Appell ees answered and filed motions to dismiss under the TCPA. Appe llan t res po nded to the motions to dis miss. The trial court granted both mo tions to dismiss. A jury trial ensued to determine the amount of trial and appellate atto rney’s f e es to b e awarded to Appellees. The jury w as asked to

assess attorney ’ s fees fo r both A ppel lees jointly , not separately. A fter the jury returned its verdict on att orney ’s f ee s , the trial court rendered judgment that Appellant take nothing on its cl aims aga i nst App el lees and awarded to Appellees th e attorney’s fees found by the jur y. This appeal followed

. Appellant contends th at t he trial court erred in grant in g A pp ellees’ motions to dismiss because: ( 1) Appellees were not entitled to rel ie f un der t he TCPA because the
A ct’s comm erci a l speech exemption applies to th e communications in question ; ( 2) if the Act applies, Appellant est ablished a prim a fa cie c as e of each o f its causes of
action ; and ( 3) Appellees did not establish a defense as a m atte r of law. Regarding3 Wilson, except for th e award of atto rney ’ s fees which w as awarded jointly with UDF, we will affirm th e trial court ’ s judgment dismissing Ap pellan t ’ s claims against Wilson as Appellant ’ s Brief failed to comply with R ule 38.1

. Tex. R

. App. P. 38.1

. As for A ppellant ’ s claims against UDF, b ecause we agr ee that UDF’s

commun ications in question are exemp ted from the TCPA un de r the Ac t’s
commercial speech exemption, we will re verse the judgment of the trial court dismissi n g Appellant’s cla im s against UDF and remand th e case against UDF to the
trial cour t for fur ther pr oceedings.
Since t he trial court sub mit ted the issue of atto rney ’ s fee s to the ju ry without segregating Wilson ’ s attorney ’ s fees from UDF ’ s fees, we will r ev erse and re mand Wilson ’ s att o r ney ’ s fee c laim to be submitted to the factfinder i n a subse quent p roceeding. We will n ot address Appella nt’ s remaining point s as they are n ot

nece ssa ry for resolution of the appeal

. See Tex R. App. P. 47.1.
I. Background (a) T he pa rties
UDF i s a M aryland real estate investment tru s t , formed in 2008. Accor di ng to it s inve stor

- rela tions information, UD F was formed prim arily to genera te cur r ent interest income by investing in secured loans and producing profits from i nv estmen ts in resi dential real estate. By S eptember 2015, UD F had distributed appr oximate ly $164 m illion to its investor s and re purchased $41 mi llion of its sha re s . A s expressed by UDF presid ent Holli s Greenlaw in his July 22, 2020 le tt er to Appellant , which is a4 pr i m ary basis of Ap p ell ant ’ s claims herein , UDF ’ s bus iness plan includ ed a va riety of

ac tivities designed to produce p rofit fo r UDF ’ s investo r s : T he Boa rd is fully commi tted to ser ving the bes t interests of the Trust [UDF]. Th e Board has histor ically welc o m ed bona fid e dis cus sions of t ransactions that i t views as ben eficial to the Tru st ’ s s hareholders. For e xam ple, the Trust ha s benefitted fr om enga ging w ith others in tra nsactions regarding the sale of Trust secu rities, securin g credit facilitie s, listing t he Trust ’ s share s o n Nasdaq ( and subsequent incl usion in the R ussell 3000 In dex) , acqu iring an interest in a regional homebu ilder, obtainin g corpo rate a nd debt ratings, structuring a secured d ebt offering and securitizing cert ai n Trust assets. [E mpha s i s added .] Additiona lly , Greenlaw testifi ed that becaus e of da mage th at alleged ly occurred to UDF ’ s share value due t o a n illegal “ short and dist ort ” campaign prior to July 2 2, 2020, UDF ’ s board considered it a “ main pr io rity ” i n the rec overy proces s to

“ protect [ ] its inv es tors and restor [e] their investme nts. ” Wilso n , accordin g to the all egations in Appel lant ’ s petition, is an emplo yee of
UDF

. In his answer, W ilson did not s pecifically deny b ei ng an employee o f U D F

. In
hi s motion to dismiss and supportin g declaration, W i lson s tated h e is the p resident of
UMT H old ings, L.P. , the p arent company of UMTH G enera l Services, L.P. , (UM THGS ) , which is an a dvisor to UD F

. Through UMTHGS , Wi ls on sa id he
p rovi des i n vestor

- r elations su pp ort to UDF. Howev er, Wilson di d not aff irmativ ely den y that he was emplo yed by UDF. Appellant is a De law are li mited partnership with its pr incipal plac e of business in Dallas, Texas. I t is an alternativ e a s s et manager, special izing in high yield credit, public equities , real e state, structu red credi t , and p riv ate equity and special sit uations.5 Ov er a peri od of two years, NexPoint Divers ified Rea l Estate Trust f/k/a NexPoint
Str at egic Opportuniti es F u n d ( NXDT ) , a fund managed by Appellant , acquired over
2 millio n shares of UDF from A pril 2017 to Dece mbe r 2019 at an ag gregate pri ce of

over $ 7.5 mill ion

. Cede & Co. ac ted as the record h older for the shares, but their b en eficial owne r s w ere funds a nd acc ounts advi sed by Appellant

. (b) T he even t s O n J uly 8, 2020 , Ap pellant sen t a le tter to Greenlaw as chairm an a nd CEO of
UDF

. I n that letter, Appellant expressed certai n concerns about UDF ’ s management p ractice s a n d exp ressed a desir e to become involved in UDF ’ s manageme nt. Appellant ass erted t hat it wa s in a uni qu e positi on to ma ximize the v alue of UDF ’ s

a ssets a nd that any trans action with Appellant would be enthusiast ically received by the investment c ommunit y. UDF re sponded wit h its July 22, 202 0 letter, signed by Gre enlaw , whic h acknowledg ed Appel lan t ’ s July 8 letter as an ex press ion of Appe llant ’ s i nterest in a

“ t ra nsaction ” involving the Trust wit hout st ating specific terms. UDF then s p e nt t wo si ngle

- sp aced pages ex p laining its “ concern s ” about conducting discussion s with Appel l ant arising from th e r ecent “ short and di stort ” c ampai gn , which had all ege d ly b een carr ied out again st it by other s , and UDF ’ s be lief that Appellant ’ s principals a nd

a ll ies had be en complicit in t h at effort. UDF also explain ed that its alleged
manag ement f a ilu res, re ferenced in Appellant ’ s Jul y 8 letter , were caus e d by the “ s hort and dist ort ” scheme. However, UDF concluded the July 22 letter by stating ,6 if you wi sh to o pe n a dialo gue regarding a specific t r ansaction, please p ro v ide respons es to the conflic t

- of

- intere st

- rela ted ques t ion s outlined on the att achme nt to this l ette r, and detailed infor ma tion about the

“ transac tion ” that you are interested in discussin g with th e Trust

. The Board will review your response s and indicate wheth er it is co mfortable pr o ceeding

. UDF s en t the July 22 letter to Ap pellant and p ost ed the letter t o its pu blic website. UDF also distributed the let ter to “due diligence contacts, br oker de alers [,] and financial advisers regard i ng United Developme nt Funding IV.” T hose are br oker dea ler s that “represented or tha t had UDF IV ac cou n ts ” acc ording t o Gre enl aw. On July 24, 2020, a link to the July 2 2 l etter was further distributed i n ot he r industry publications by email. T h e DI Wire email new sletter, one such publication rec eived by Appe llant o n July 24, 2020, showed the first link in the email, “ UDF I V Res po nds t o NexPoint, E xpresses ‘ Serious Concern s ’ with Connection t o Kyle Bass , ” which l inked

to an articl e that repeat ed the statements UDF had made in the July 22 l etter. O ther

r e itera tions of these or sim ilar allegedly defamatory state ments were ma de in other press releases, publications , and public filings over the ne xt several weeks b y UDF

. The allegations again st Wil son s pecifically were that he “ made phone calls to indi vidual clients and p ot e n t ial clie nt advisers of N ALP [Appellant] making th e same false statem ents about NALP described above. Mr. Wilson initiated t he s e communication s with the specific intent to harm NALP’s current and prospect ive bu siness relationships. ” Othe rwise , A p p ell ant i mplied that Wils on was involved with
the press relea s es made by UDF referenced above

. The only evidence regarding7 W i l son ’ s communicat ions , other than the allegations in the pe tition, was excer pts from hi s deposition

. From this t est im ony, Wilson testified that he did not
communicate direc tly with investors, that he is the president of UMT Holdings, L.P.

an d served as an adv isor to UDF, that he was part of the process for reviewing drafts of UDF ’ s allegedly defam ato ry publications, and that the decision making on the

content of the com munic ations in question rested with un named s enior management of U DF and i ts lawyers.
II. S tandards of Review
We review de novo a trial c our t ’ s rulin g o n a TCPA motion

. UATP M gmt. , LLC v. Leap of F aith Adv ent ures, L LC , No. 02

- 19

- 0 0122

- CV , 2020 WL 6066197 , at *2 ( Tex. App.

— Fort Worth Oct. 15, 2020 , pet
. denie d) (mem. op.). The f ir st step in a TCP A analysis is to determine if the defendant ha s demons t rat ed by a preponderanc e of the evidenc e t hat the TCP A ap pl i es to the c laims against which the TCPA is being

asserte d. Batra v. Covenant Health Sys

. , 562 S.W.3d 696, 706 (Tex. App.

— Am ar illo
201 8, pet. denied)

. In considering whether the TCPA is a pp licabl e , the tria l court is

sta tutorily require d t o conside r all pl e adi ngs, as well as supporting and opposing affida vits stat ing the fa cts on which a claim of liability is based. Tex. Civ. P ra c. & Rem. Code A nn. § 27.006 ; Hersh v. Tatum , 526 S.W. 3d 462, 4 67 (Tex . 2017). Ho wever ,8 “ [

w

] he n i t i s clear fr om the plaintiff ’ s p l ead ings th at the ac tion is covered by the Act,
th e defenda nt need sh ow n o more. ” Hersh , 526 S.W.3d at 467. 1
In th e second s te p, the court may n o t dismiss t he actio n if the non movant “esta blishes by clear a nd specific e vidence a prima fac ie cas e for each e s se ntial

e lement of the claim.” Tex. Civ. Prac. & Rem. Cod e Ann. § 2 7.005(c) ; Creative Oil & Gas, LLC v. Lona Hills Ran ch, L LC , 591 S.W.3d 12 7 , 132 (Tex. 2019). A prima fa c ie
case is “the ‘mi nimu m quantum o f evidence ne cessary to sup po rt a rational inferen c e that th e alle gation of fact is true.’ ” Dall

. Mo rning N ews, Inc. v. Hall , 579 S.W.3d 370,
376

– 77 (Tex. 201 9) (citing KBMT Op erating Co. v. T oledo , 492 S.W.3d 710, 721 ( T ex. 2016) (Boyd, J., di ssenting) )

. The words “clea r and specific” ar e defined to mean , fo r the former, “ ‘unambiguous,’ ‘sure,’ or ‘free from doubt’ ” and, for the latter, “ ‘explicit’
or ‘relati ng to a parti cula r nam ed thing.’ ” In re L ip sky , 460 S .W.3d 579, 590 (Tex. 2015) (quoting KTRK T el

evision , Inc. v. Robinson , 409 S.W.3d 682, 689 (Tex. Ap p.

— Houston [1st Dist.] 2013, pet. denied)) ; Bookout v. Shel ley , No. 02

- 22

- 0 0055

- CV , 2 022 WL 17173526 , at *1 3 (Tex. App.

— Fort Worth Nov. 2 3 , 2 02 2 , no pet.) (m em . op.). More than me re no tice pleading is requir ed to establish a prima fa cie case by the part y asserting the claims. Clear and spe cific evidence means the party a sserting the claim s must provide suffici ent detail to demonstra te the f act ua l ba s i s for th e cl aim.

1 In this case, there is no dispute tha t the first ste p was met.9 Bedford v. Spa ssoff , 520 S.W.3d 9 01 , 904 ( Tex. 2017) ; Rogers v. Soleil C hartered Bank , N o . 02

- 19

- 001 24

- CV , 2019 WL 4686303 , at *7 (Tex. App.

— Fort Worth Sept. 26,
201 9) (mem. op .)

. Concluso ry allega t ions in a pleading do not ris e to t he le ve l of c le a r and spec ific evi den ce. Mogged v. Lindam o od , No. 02

- 18

- 00126

- CV , 2020 WL 70743 90 , at *9 (Tex. A p p.

— Fort Wo rth Dec. 3, 2020 , pet. denied) (en banc mem. op. on re h ’ g ) ; Buckingham Senior Living C m ty, Inc. v. Washi ngton , 605 S. W .3d 800, 80 8

– 09 ( Te x. App.

— Housto n [ 1 st Dist. ] 2020, no p et.) ; F awcett v. Grosu , 498 S.W.3d 650 , 660 (Tex. App.

— Houston [1 4 th D ist.] 2016, pet. denied). The party asserting the cl aims may survive a
motio n to dismiss even where its pleadings are no t suff i c ien tly det ailed if it submit s

e vi d ence that fills the g ap. But if neither the pleadings nor the evidence provi de s the
req uisite details, the party has failed to meet its burden of proof and the movan t is entitled to di smissal. Rog ers , 2019 W L 46863 03, at * 7 ; see also Was h ington , 605 S.W .3d at 808

– 10 ( recognizing that concluso ry plead ing s without clear and specific s upport ing evid e n ce are in sufficient to establish a prima facie case)

. 2 In reviewing t he trial court ’ s

2 O ther cour ts of appeal s require both suf fic ient pleading s and evid en ce for the non m ovant t o establish a prima facie case

. S e e H eave nly Home s of S

. Tex

. , LLC v. Infinity C

ustom Constr

. , LLC , No. 13

- 21

- 00298

- CV , 202 2 WL 2069 232 , at * 8 (Tex. App

. — Corpu s Christi

– Edinbur g June 9, 2022, no pet.) ( m e m. op .); Yu v. Koo , 633 S.W.3d 712, 729 (Tex. App.

— El Paso 2021 , no pet.) ; Baylor S co t t & Whi te v. Pr oject Rose MSO, LLC , 633 S.W.3 d 263, 290 (Tex. App.

— Tyler 2021 , pet. denied ) ; Buzbe e v. Clear Channel O utdoor, LLC , 616 S.W.3d 1 4, 29 (Tex. App.

— Houston [1 4th D ist. ] 2020, no pet.).10 ruling on the prima facie case issue, we v ie w the p leading s and the evi den c e in the
l ig ht most favorable to the non

- mov ant. Bookout , 202 2 WL 17173526 , at *10

. A party c a n avoi d th e TCP A ’ s burden

- shifti ng requ irements by de monstrating
that one of the statutory exemptions apply , such as the commer ci al speech exempt ion.
State ex re l . Best v. Ha rpe r , 5 62 S.W.3d 1, 11 ( Tex. 201 8) ; Round Table Physicians Grp., PLLC v. Kilgore , 6 07 S.W.3d 878, 883 (Tex. App.

— Houston [14 th Dist.] 2020, pet. denied); Staff Care, Inc. v. Eskridge En ter s. , LLC , No . 05

- 18

- 007 32

- CV,
2019 WL 2121116, at *7 (Tex. App.

— Da llas May 15, 2019, no pet.) (mem. op.)

. The
p arty a sserting the exemption be a r s the b u rden o f p roving it by a prepo nderan ce of the evidence. UATP Mgmt, LLC , 2020 WL 6066197 , at *4 ; Staff C are, Inc. , 201 9 WL 2121116 , at * 8 ; Abatecola v. 2 Savages Co n cret e P umping, LLC , N o . 14

- 17

- 00678

- CV , 2018 WL 31 18601 , at *1 0 (Tex. App.

— Housto n [ 14 t h Dis t .] Jun e 26, 2018, p et. den ied) ( me m . o p .). T he fac tu al all egations conta ined in the pleadings may
alon e be sufficien t to demonstrate that the nature of the claims i s s uch that the cla ims are statutorily exempt with out need of additional proof. Ga ska m p v. W SP USA , Inc. , 596 S .W.3d 457, 48 0 ( Tex

. App.

— Hous t on [1 st Dist.] 2020, p e t. dism ’ d) ; Dickens v. Jason C. We bster, P. C. , No. 05

- 17

- 00423

- CV, 2018 WL 6839568, at *7 ( Tex . A pp.

— Dallas De c. 31, 2018, no pet.) (mem. op. ) (determin ing whether the com me rci al
sp e e ch exe mption applie s by examinin g p lai n tiff ’ s petition ); G rant v. Pivot Tech

. Sol s

. , Ltd. , 556 S.W.3d 865, 889 (Tex. App.

— Austin 2018, pet. denied) ( examining

“ e viden c e, ” wh ich co nsist ed o f the plainti ffs ’ plea dings , to determ i ne whether claims11 f

e ll withi n the c o mmercial spee c h exemption )

. In addition to the factual al legations , the court may consider oth e r evidence enumerated in Tex as Civ il Prac tice and Remed ies Code Sect ion 27.006 (a) , s uch a s affidavits stati ng the facts on which liability
i s ba sed

. Ab at e co la , 2018 WL 311 8601 , at * 10. However, conclusory and vague allegations and evid ence do not constitu t e compet ent evidence. Avid Sq uare Const r . , LLC v. Valcon Consul ting, LLC , No. 0 2

- 2 2

- 00297

- CV , 2023 WL 3113950 , at *5 (Tex. App.

— Fort Worth Apr

. 27, 2023, no pe t. ) (mem. op.)

. III. A nalys is To prevail on a mot io n to dismiss under the TCPA, the defenda nt

– mov ant

mu st first prove the TCPA applies

— step on e of the analysi s . Hersh , 5 26 S.W.3d at 467

– 6 8 ; ExxonMobil Pip eline Co. v. Coleman , 512 S.W.3d 895, 8 98 ( Tex

. 2017) ; Gr able
Grimshaw Mora , PLLC v. Christopher J. Web er, LLC , No. 04

- 21

- 00064

- CV , 2021 WL 30575 00 , at *2 (Te x. App.

— San Ant onio July 21, 2021 , p et. denied) (mem

. op.). As no ted , i f the TCPA would otherwise apply to the defendant

– m ovant ’ s

sta teme nt or c o nduct , the nonmovan t can avoid the TCPA ’ s burden of demons trating a prima facie case by showing that o ne of the TCPA ’ s exe mptions applies, such as the

comm ercial speec h exemp tion. Gra ble , 2021 WL 3057500, a t *2; R i gUp, Inc. v . Sierra Hamilton, LLC , 6 13 S. W .3d 177, 1 82 (Tex. App.

— Austin 2020, no pet.); a ccor d Roun d Table Physicians Grp ., PLLC , 60 7 S.W. 3d at 884 ; Hi eber v. P erc heron Holdings, LLC , 591 S.W.3d 208, 210

– 11 (Tex. A pp . — Ho uston [ 14 th D ist.] 2019 , pet. denied) (“Regardless of any such defense s, a n onmovant can avoid a dism issal a ltog eth er by12 establishin g that it s le gal ac tion is e xempt f rom th e TCPA under a specific st atutory exemptio n.”)

. The TCPA ’ s commercial speech exempt ion p ro vi des t hat , even if the TCPA would other wise apply, it does not apply to a legal action brought against a pe rson p rimarily engaged in the business of sel li ng o r l eas ing go o ds or se rvices , if the sta tement or con duct arises out of the sale or lease of goo ds , serv ices, or a n insurance product, insurance services, or a commerc ial transaction in which the inten d ed
a udienc e is an a ctual or potential buyer or cu st omer . T ex . C iv

. P rac . & R em . C od e A nn . § 2 7.010( a ) (2 )

. This exemption ha s been interpreted to incl ud e four element s: (1 ) the defendant was primarily engaged in the busine ss of selling or leasing goods [ or s ervi ces ] , (2) the d efendant made the statement o r eng aged in the c onduct on which th e clai m is based in t he defendant ’ s ca pacity as a seller o r lesso r of those good s o r services , (3) the statement or conduct at issue aro se out of a commercial transaction invo lving t he kind of goods or services the defe ndant provid e s, an d (4) th e inten de d audi ence of th e sta tement or conduct were actual or pote ntial c us tomers o f the de fendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd

. , 546 S.W .3d 684, 688 (Tex. 2018) (per curi am) ; s e e also Grable , 2021 WL 30 5750 0 , a t * 2; Kostur a v. Judge , No. 07

- 20

- 00310

- CV,
2021 WL 2325 33 6, at *4 (Te x. A pp.

— Amarillo June 7, 2021, pet. denied ) . The burden of p roof to establish the commerci a l speech ex emption rests with the pa rty relying on
it. Grable , 2021 WL 305750 0 , a t * 2 ; RigUp , 613 S.W.3d at 18 7

.13 (a) Claims against Wilson
Rule 38.1 ( g

) req ui res the appellan t ’ s brief to “ state con cisely and without argument the facts pertinent to the issues or points pre sented

. ” Tex. R. App. P. 38.1(g). Rule 38.1(i) re quires that the a pp ella n t ’ s brief must “ contain a clear and concise argum ent for the conten ti ons made , with a pprop riate citations to aut horities and to the r ecord. ” Tex. R. App. P. 38.1( i). In the absenc e of appropriate record citations or a substantive analysis, a brief d oes no t pr esent an adequate appellate issue.
Hornbu ckle v. Cadillac , N o . 0 2

- 15

- 00267

- CV , 201 6 WL 3157569 , at *2 (Tex. App.

— Fort Worth June 2, 2016, no pet.) (per curiam) (mem. op. ) ; s ee also Shetty v. Arconic , N o . 01

- 19

- 00158

- CV , 2020 WL 2026371 , at *2 (Te x. App.

— Ho uston [1 st Dist.] Apr

. 28, 2020, no pet.) (mem. op.) ; Arzola v. A CM Prop s . , L P

, N o. 04

- 12

- 00713

- CV , 2013 WL 5948413 , at *2 (Te x. App.

— San Antonio Nov. 6, 2013 , n o pet.) (mem. o p.). The appell ate court has no duty to brief issues for an appellant

. Shetty , 2020 WL 2026371 , a t *2 ; Horn buckle , 201 6 WL 3157569, at *2

. Like wi se, we ar e not

r esponsible for searching the record for facts that are f avorable to the appellant ’ s position. H ornbuckle , 2016 WL 3157569, at *2

. Failure to p rovide citation to the recor d
or citati ons for leg al references constitutes in adequate briefing an d waiver. Fredon ia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 283

– 84 (Tex. 1994) ; Shetty , 2020 WL 20 26371, at *2 ; Hornbuckle , 2016 WL 3157569, at * 2

.14 The Appellant ’ s Bri ef is wholly ina dequate regarding Wi lson

. The Brief only mentions Wilson i n very curs ory and conclusory statements and mostly without reference to t he record , a) “ Wilson did not deny making communications derogatory to NexPoint. Indeed, his Motion relies upon him m aking comm unications. His only affidavit testimony is to state his r ol e as Pres ident o f UMT Holdings, L.P. the parent company of an advisor to UDF IV that provides investor relation s support. ” b) “ W ilson acted with neg ligenc e. ” [refer ring to a prima case of defamation and business disparagem en t] c) “ NexPoint Presented Prima Facie Proof Tha t UDF IV and Wilson Published False Statements of Fact ” Even if such cursory statements amounted to ad equate briefing, t hese references are incomplete and misleading wh en looki ng further into th e record. In Appellant ’ s own response t o Wilson ’ s Motion to Di smiss, it attached excerpts from Wilson ’ s deposition, reference d above. Those excerpts do not indicate that W ilson made any communications. At most, he was part of a co rporate re view process that was ultimately controll ed by UDF through its senior managem ent and legal counsel. Although Appellant seems to be relying o n Wilson ’ s alleged failure to deny maki ng

comm unications, such reliance is misplaced since its allegation s about Wi lson were
conclu sory and conclusory allegations are not com petent evidence, ev en in a TCPA
setti ng. Avid Square Const. LLC , 2023 WL 31 13950 , at * 9

– 10

. Even more tro ublesom e is the Appellant ’ s complete lack of analysis and
citation to legal authority relating to Wilson. Wherever Appellant mentions Wilson, it15 does so simply by l umping him into i ts discussion of UDF. See Tex. R. App. P. 38.1( i)

. S ince we h ave no indepen dent duty t o rev iew th e record to determine whether there was error, and w it h only conclusory “ factual ” stateme nts about Wilson, with little or no record references and n o meaningful analysis of error allegedly committed by the
trial cour t pertain ing to Wi lson, we ho ld th at App ellant has waived any error regarding Wilson due to inadequate briefing. Shetty , 2020 WL 2026371 , at *2 ; Hornbuckle , 2016 WL 3157569, at *2. (b) Cl aims against UD F
Doe s the commercial speech e xemption ap ply to Appel la n t ’ s claims agai n st UDF ? We hold that it does

. The first element of the commercial speech exemption is that the defend ant, UDF, was primarily engaged in the business of selling or leasi n g goods or services

. Ser vices is no t a def in ed term. Se e Tex. C iv. Pr ac. & Rem. Code Ann. § 27.001.
Th erefore, we look to its common meaning. See Caliber Oil & Gas, LLC v. Midl and
V isi ons 2000 , 591 S.W.3d 226, 242 (Tex. App.

— Eastla nd 2019, no pet.) ( explai ning that, because the term “ goods ” is n ot defin ed in the T CPA, t he c ourts should loo k to its comm on m eanin g )

. To determine a term ’ s common, ordinary meaning, we typically look first to diction ary d efinitions. Kawcak v. Antero Res

. Corp. , 582 S.W.3d 566, 5 75

– 76 ( Te x. App.

— Fort Wort h 201 9, pet. denied) ( “ [ W ] e must b e e spec i al ly careful to
foll ow this ‘ dict i ona r y
- driven ’ analysis when interpret ing the language of the TCPA. ” )

. According to the Brita nnica Dictionary, “ service ” includes “ wo rk done by an16 orga niza tion or person that does n ot in volve producing good s . ” Servi ce , Bri t an ni ca Dictionary , htt p:// www.brita n nica.com / dictionary/ service (last visited July 28, 2023 )

.

“ Serv ices ” is a lso d efine d as “ ec ono mic co mmodities, such as b anking, th at a re mainly
int an gible and usuall y consumed concurrently with their producti on. ” Serv ices , Dictionary.com, ht t p:// ww w.dic ti onar y.com / browse/s ervice (la st vis i t ed July 31,
2023 )

. Clearly, UDF was in t he bu s iness of sel ling financial ser vices. As described above , UDF mar k eted an d sold shares in its business and e ngaged in “ wo rk ” t o protect and enhanc e its share ho lder s ’ investment values as p a rt of t heir purc hase and ownership of the shares

. Servi ce , Bri ta nnica Dictionary

. Al though this did not involve the sale of goods, UDF perfor med th is “ work ” for pu rchasers of its shares of stoc k,
i.e. , shareholder s . Id

. We hold that th ese a ctiv ities consti tute selling services within the

mea ning of the commercial spe ec h exemption in S ecti on 27.010(a)(2). Tex. Civ. Prac.
& Rem. Co de Ann. § 27.010(a)(2). The second e lem ent of the commercia l speech ex em ptio n requires us to determin e if the defendan t made the statemen t or engaged i n the conduct on which the claim is based i n the defendant ’ s ca pacity as a seller or lessor of tho se g ood s or services . We hold that it did

. UDF made the sta tements as part of i ts r esponse to Appellan t ’ s ov erture t o become in volved in UDF ’ s m anagement
. UDF ’ s board specifically referenced its dut y t o protect its sh areh ol ders ’ investment value and17 express ly a ske d Appellant to explai n how it prop osed to acco mplish its obj ect ive. Th e last paragraph of UDF ’ s July 22 let ter stated : In light of the Board ’ s concern s and other circumstances described above , if you wish to o pen a dialogue regarding a specific tr ansac ti on, please provide r espon ses to th e conflict

- of

- interest

rel at ed que stion s outlined on the atta chment to this letter, a nd detailed inform ation about the “ transaction ” that you are interested in d iscussing with t he T r ust. The Board will review your r espon se s and indicate wheth er it is comfo rtable proc eeding. Thi s sta tement exemplifies how UDF wa s making the stat ements in qu estion in its capacity as seller of its financial services. UD F was purporting t o p rotect its in vestors while, at the sam e ti me, solici ting a pro posal from Appellant to s ee if it ma de a
p ro po sal con sistent with UDF ’ s goa l of en hancing profits a nd value. The third requirement for the comme r cial speech exemption is whe th er th e

statement or conduct at i ssue arose out of a “ comm erci al transac tion ” invo lving the kind of goods o r services the de fe ndant pro vides

. Id. We hold that i t d id. B oth parties

a cknowledged that they were engaging in commun ications regarding a potentia l

“ tra nsact ion

. ” Since the term “ c ommercia l tr ansa ction ” is not de fined , see id

. § 27.001 , we again turn to t he comm on m eanin g of the p hr ase. Kawcak , 582 S.W.3 d at 57 5

. “ A

co mmer cial transaction is generally a business deal. ” W instead PC v. USA L ending Gr p. , Inc

. , 664 S.W.3d 384 , 393 (Tex. App

. — Tyler 202 1, pe t. granted) (mem. o p .) (citing
Commerci al Transac tion , Black ’ s Law Dictionary (10t h ed. 2014 ) ) , rev ’ d on other grounds, USA Lending Grp., Inc. v. Winstead PC , 669 S.W.3d 195 , 205 (Tex. 2023)

. This

“ transaction ” was clearly related to a “ business deal

. ” S ee id.18 The comme rcial spe ech ex emption doe s not re quire a completed transaction

. Hi eber , 591 S.W.3d at 212

. A “ commer cial transact ion ” can include conduct or
statements th at m e rely prop ose a commercia l transaction. Caste lman , 546 S.W.3d a t 690 ( holding t ha t the comm e rcial speech exempti on applies to com munica t i ons that do no mor e than propose a c omme rcial transac tion ) ; R ose v. Sci

. Mach. & Welding, I nc. , N o . 03

- 18

- 00721

- CV , 201 9 WL 2588512 , at *6 (Tex. App.

— Austin June 25, 2019 , no pet.) ( mem. op.)

. We h ol d that the commu ni cat ions in question rela ted to a “ com mercial
transaction ” invol ving t he kinds of goods or serv ices t hat UDF provides. See Molin a Healthcar e , Inc. v. State ex rel Thurmond , N o . 03

- 20

- 00077

- CV , 2020 WL 7233609 , at

* 3 (Tex. App.

— Austin Dec

. 9, 202 0, pet. de ni ed) (mem. op.).
The las t req u irement of the commercial speech e xempt ion is whether the intende d au di enc e of the statement or conduct w as a ctua l or potential c usto mers of the defendant for the kind of goods or services the defendant prov id es . W e answer th is query in the af firm ative. In his deposition , Greenlaw test ifie d t hat the July
22 letter by U DF w a s sent to broker

– deal ers that represente d or that had UDF

ac coun ts in addition to being filed with its SEC 8

- K filing and p ress rel ease to t h e public

. The same is true for the September 1 press relea se and other communications whi ch reiterate m any of the s am e n egative “ concerns ” of UDF about Appell an t. UDF ’ s commun icat ions were exempted f rom th e application of th e T CPA by
the comm ercial speech exempti on. Th e trial court ’ s d ismissal w as err oneous. We19 re verse the judgment of the t rial court dismissi ng Appellant ’ s claims agains t U DF and

awa rdin g UDF its attorney ’ s fees and remand the cas e to the trial court for fur th er p roceedings

. IV. C on clu sion
We sus tain A ppellant ’ s first issue

— UDF ’ s communicatio ns in question were exempted und er t he TCPA ’ s commercial speech ex emption , so we revers e the judg ment of the trial court i n favor of UDF and remand the case for furthe r procee d i ngs. As to W ilso n , w e o ver rule A ppellant ’ s presum ed issue s two th rough four for the reasons stated above , so we affirm the trial court ’ s judgme nt dismissing Appellant ’ s claim s agai nst Wilson. Ho wever, because t h e trial court awarded attorney ’ s fe es joint ly to UDF and W ils o n, and UD F is not entitled to att orney ’ s fees

un der our disposition of the appe al, we will reverse the attorney ’ s fees judgmen t in favor of Appellees jointly a nd r emand th e issu e of at torney ’ s f ees for Wilson for subsequent proce edings i n the tria l court.

/s/ Mike Wallach Mike Wallach Justice Delivered: August 3, 2023