Date: 09-12-2022

Case Style:

ANTHONY G. BUZBEE AND ANTHONY G. BUZBEE, LP D/B/A THE BUZBEE LAW FIRM V. TERRY & THWEATT, P.C.

Case Number: 01-20-00659-CV

Judge: April L. Farris

Court:

Court of Appeals For The First District of Texas

On appeal from 334th District Court Harris County, Texas

Plaintiff's Attorney: William David George
Judith Lee Ramsey
Kimberly Dang

Defendant's Attorney:

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Houston, Texas – Civil Litgation lawyer represented appellee with a tortious interference with contract claim.

Terry & Thweatt, P.C., and Anthony G. Buzbee, LP d/b/a The Buzbee Law
Firm (“the Buzbee Law Firm”) are both law firms with offices located in Houston.
The underlying dispute between them arose after Jade James and her ex-husband,
John Luengas, approached both firms seeking representation following the death of
their eighteen-year-old daughter, Alanna.
Alanna had worked at the Splendor Gentleman’s Club (“Splendor”). On the
night of Alanna’s death, Splendor had allegedly provided her with alcohol and
3
allowed her to leave the premises in her vehicle even though she was intoxicated.
On her way home, Alanna was in a car accident. Her car was then hit by another
vehicle driven by someone who had been drinking. Alanna died at the scene of the
accidents.
On October 10, 2017, James and Luengas met with attorneys at Terry &
Thweatt to discuss the possibility of filing a wrongful death lawsuit against Splendor
and the customer with whom Alanna had been drinking. During the meeting,
Luengas mentioned that he was already represented by another attorney. Terry &
Thweatt declined to represent Luengas. James denied being represented by
Luengas’s counsel, but she informed the firm that she had spoken with Luengas’s
counsel about Alanna’s death. Terry & Thweatt did not present a representation
agreement to either James or Luengas.
Two days later, on October 12, 2017, James and Luengas met with Lee
Thweatt, one of the firm’s partners. Luengas allegedly informed Thweatt that he had
verbally terminated the attorney-client relationship with his counsel, but he did not
present any written proof. Thweatt informed Luengas that, under Texas law, if he
had terminated his prior counsel without cause, counsel could later assert their full
fee interest in Luengas’s case, and Luengas could potentially be liable for two sets
of attorney’s fees. Thweatt again declined to represent Luengas.
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James, however, informed Thweatt that she had not hired Luengas’s counsel.
She signed a representation agreement with Terry & Thweatt and agreed to pay
attorney’s fees on a contingency basis. Under the contract, Terry & Thweatt would
be entitled to 33 1/3% of James’s recovery “[i]f settled before suit or arbitration is
filed” and 40% of the recovery “[i]f settled before trial begins.” The contract
included a provision stating:
Client has the right to discharge Attorneys for any reason upon giving
reasonable notice. Unless Client has good cause to discharge Attorneys,
Attorneys are entitled to retain any fees based on recoveries before the
date of discharge as well as Attorneys’ fee, as set forth herein, to be
paid out of any future recoveries. . . .
The day after James signed the representation agreement, James sent Thweatt
an email terminating the agreement. In the email, James stated:
I apologize for any inconvenience but John and I have decided to go
with a different attorney. We thank both you and [J]oe [Terry] for your
time but we think that a different lawyer is the best for winning for our
daughter. I am terminating our agreement.
Thweatt responded that because James had terminated the agreement without cause,
she should inform her new counsel that Terry & Thweatt would not relinquish its fee
interest in her case. On October 16, 2017, the Buzbee Law Firm filed a wrongful
death lawsuit against Splendor on behalf of James and Luengas.
On July 10, 2019, the parties in the wrongful death lawsuit reached a
confidential settlement agreement. The next day, an associate at the Buzbee Law
Firm contacted Terry & Thweatt, informed the firm of the settlement agreement, and
5
offered payment to the firm “that was far less than the Firm’s 40% contingency fee
agreement with James.” Terry & Thweatt rejected the offer and stated that it intended
to seek recovery of the full amount of the contingent fee interest under the
representation agreement that James had signed. Terry & Thweatt also sought “an
equivalent amount to address Buzbee’s suspected tortious interference with the
prospective client contract for Luengas.”
Several days later, the Buzbee Law Firm, on James’s behalf, initiated an
arbitration proceeding against Terry & Thweatt under the representation agreement.
James asserted that the 40% contingency fee interest was unconscionable and that,
because she terminated the representation agreement after only one day, an award of
anything more than $5,000 to Terry & Thweatt would also be unconscionable.
On the same day, the Buzbee Law Firm also filed a lawsuit on Luengas’s
behalf against Terry & Thweatt. In this suit, Luengas alleged that Terry & Thweatt
had claimed that Luengas must pay it hundreds of thousands of dollars in attorney’s
fees. Luengas sought a declaration that he did not owe any attorney’s fees to Terry
& Thweatt. In an article that appeared in the Texas Lawyer about the lawsuit,
Luengas was quoted as stating that he “never even considered” hiring Terry &
Thweatt. Luengas ultimately non-suited this lawsuit without prejudice.
James and Luengas both filed separate grievances against Thweatt with the
State Bar of Texas. Terry & Thweatt alleged that, at the hearing before the grievance
6
committee in February 2020, James testified under oath that Buzbee had assured her
that she would not be responsible for paying the fee to Terry & Thweatt; instead, the
Buzbee Law Firm would pay any fees that James owed to Terry & Thweatt. James
then terminated her representation agreement, and she and Luengas hired the Buzbee
Law Firm.
During the arbitration proceeding between James and Terry & Thweatt, the
Buzbee Law Firm stipulated that it had agreed to pay any breach of contract damages
that James owed to Terry & Thweatt. Ultimately, the arbitrator awarded $5,000 in
fees to Terry & Thweatt. The State Bar of Texas dismissed both James’s and
Luengas’s grievances against Thweatt.
In May 2020, Terry & Thweatt sued the Buzbee parties for tortious
interference with an existing contract—the representation agreement with James. It
alleged that the Buzbee parties knew of James’s contract with Terry & Thweatt and
“actively encouraged” her to discharge Terry & Thweatt without cause and hire the
Buzbee Law Firm instead. To encourage James to terminate her contract, “Tony
Buzbee personally assured James that if she ended up owing any fees to Terry &
Thweatt, P.C., the Buzbee Law Firm would pay those fees for James.” Terry &
Thweatt alleged that, due to the Buzbee Law Firm’s interference, it lost “the full
40% contingency fee that would have been earned on the settlement of James’s
case.”
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Terry & Thweatt also sought exemplary damages, alleging that the Buzbee
parties acted with malice or gross negligence.
The Buzbee parties moved to dismiss the lawsuit under the TCPA. In this
motion, the Buzbee parties argued that the TCPA applied because Terry & Thweatt’s
tortious interference claim was based on or in response to the Buzbee parties’
exercise of their right of free speech, right of association, and right to petition. The
Buzbee parties also argued that the trial court should dismiss Terry & Thweatt’s
claims because it could not present clear and specific evidence raising a prima facie
case on each element of its tortious interference and exemplary damages claims. The
Buzbee parties further argued that even if Terry & Thweatt could present evidence
raising a prima facie case, the court must dismiss Terry & Thweatt’s claims because
the Buzbee parties could establish two affirmative defenses as a matter of law: statute
of limitations and payment. The Buzbee parties requested that the trial court award
them attorney’s fees and costs, and they also requested sanctions against Terry &
Thweatt.
As supporting evidence, the Buzbee parties attached several exhibits to their
TCPA motion. These exhibits included a July 2019 affidavit from Crystal Del Toro,
an associate who met with Buzbee, James, and Luengas in October 2017; a July 2020
affidavit from James; a July 2020 affidavit from Buzbee; the final award in the
arbitration proceeding between James and Terry & Thweatt; a $5,000 check from
8
the Buzbee Law Firm to Terry & Thweatt, dated April 21, 2020; and news articles
concerning the lawsuit against Splendor, Luengas’s declaratory judgment lawsuit
against Terry & Thweatt, and the underlying lawsuit.
In response, Terry & Thweatt argued that its claims were not based on the
Buzbee parties’ exercise of their free speech, association, or petition rights but were
instead based on a private fee dispute between two law firms. Terry & Thweatt also
argued that its claims should not be dismissed because they fell within two statutory
exemptions to the TCPA: (1) the exemption for legal actions seeking recovery for
wrongful death or statements regarding such a legal action, and (2) the commercial
speech exemption. Additionally, Terry & Thweatt argued that if the TCPA applied,
the trial court should not dismiss the claims because it could present evidence
demonstrating a prima facie case on each element of its claims. Finally, Terry &
Thweatt argued that the Buzbee parties could not prove their affirmative defenses as
a matter of law.
As supporting evidence, Terry & Thweatt relied upon its original petition
against the Buzbee parties and a declaration from Lee Thweatt. Thweatt attached
several exhibits to his declaration, including the representation agreement with
James; correspondence between James and Thweatt concerning termination of the
agreement; a July 2019 affidavit executed by James; and a July 2019 affidavit
executed by Del Toro.
9
The trial court denied the Buzbee parties’ motion to dismiss without stating
the grounds on which it ruled. This interlocutory appeal followed. See TEX. CIV.
PRAC. & REM. CODE § 51.014(a)(12) (authorizing interlocutory appeal from order
denying motion to dismiss under TCPA).
TCPA Motion to Dismiss
In their sole issue on appeal, the Buzbee parties argue that the trial court erred
by denying their motion to dismiss Terry & Thweatt’s claims under the TCPA.
A. Standard of Review and Governing Law
The purpose of the TCPA is to “encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise participate
in government to the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE § 27.002; In re Lipsky, 460 S.W.3d 579, 586 (Tex.
2015) (orig. proceeding) (stating that TCPA “protects citizens from retaliatory
lawsuits that seek to intimidate or silence them on matters of public concern”). The
TCPA provides a mechanism for the early dismissal of a legal action that is based
on or in response to certain statutorily defined rights.1 TEX.CIV. PRAC. & REM.CODE
1 The Texas Legislature amended the TCPA in the 2019 legislative session and
provided that the amendments apply to legal actions filed after September 1, 2019.
Terry & Thweatt’s lawsuit was filed in May 2020. We therefore apply the version
of the TCPA currently in effect.
10
§ 27.003. The basis of a legal action is determined by the plaintiff’s allegations.
Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
The TCPA employs a burden-shifting framework. The party moving for
dismissal bears the initial burden to demonstrate that the legal action is based on or
in response to the party’s exercise of the right of free speech, the right of association,
or the right to petition. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b)(1).
Each of these rights are statutorily defined in the TCPA.
Even if the legal action is based on or in response to the movant’s exercise of
statutorily protected rights under the TCPA, the motion to dismiss must be denied if
the claimant establishes the applicability of a statutory exemption. See State ex rel.
Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018) (stating that if statutory exemption
applies, movant cannot invoke TCPA’s protections); Morrison v. Profanchik, 578
S.W.3d 676, 680 (Tex. App.—Austin 2019, no pet.) (“If an action falls under a
TCPA exemption, the TCPA does not apply and may not be used to dismiss the
action.”). In ruling on the motion, the trial court may consider the pleadings,
evidence that could be considered in a summary judgment proceeding, and affidavits
stating the facts on which the liability or defense is based. TEX. CIV. PRAC. & REM.
CODE § 27.006(a).
We review de novo a trial court’s ruling denying a TCPA motion to dismiss.
Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Dolcefino v.
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Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017,
no pet.). We view the evidence in the light most favorable to the nonmovant.
Dolcefino, 540 S.W.3d at 199; Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214
(Tex. App.—Houston [1st Dist.] 2014, no pet.). We must construe the TCPA
liberally to effectuate its purpose and intent fully. ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam).
B. Commercial Speech Exemption
Below, the Buzbee parties argued that Terry & Thweatt’s legal action was
based on or in response to the exercise of their right of free speech, right of
association, and right to petition. Assuming without deciding that the Buzbee parties
satisfied this initial burden, we examine whether Terry & Thweatt established that
its legal action was exempt from the TCPA’s coverage. See, e.g., Hieber v.
Percheron Holdings, LLC, 591 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.]
2019, pet. denied) (assuming arguendo that TCPA movant satisfied initial burden to
show lawsuit was based on right of free speech and association and addressing
whether suit fell within commercial speech exemption, which was dispositive of
appeal). We address only the commercial speech exemption because it is dispositive.
1. Basis of tortious interference claim
In its original petition, Terry & Thweatt asserted a claim for tortious
interference with an existing contract—its representation agreement with James.
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Terry & Thweatt alleged that James and Luengas had approached the firm and
sought representation following the death of their eighteen-year-old daughter. Their
daughter had worked at Splendor Gentleman’s Club. On the night of her death,
Splendor allegedly provided her with alcohol and allowed her to drive home. She
was involved in two car accidents on her way home, and she died at the scene.
Terry & Thweatt alleged that James—not Luengas—signed a representation
agreement with the firm on October 12, 2017. However, James terminated the
agreement one day later, informing the firm that she and Luengas had decided to
hire different counsel. Terry & Thweatt informed James that, because she terminated
the agreement without cause, their firm had a contractual fee interest in any recovery
that she obtained. On October 16, 2017, the Buzbee parties filed suit against
Splendor on behalf of James and Luengas.
Here, Terry & Thweatt’s tortious interference theory is that, at the initial
meeting on October 13, 2017, the Buzbee parties knew of James’s existing contract
with Terry & Thweatt “and actively encouraged her to terminate Terry & Thweatt,
P.C. without cause and hire [the Buzbee parties] instead.” The Buzbee parties then
contracted with James for a 40% contingency fee. Terry & Thweatt alleged:
Most importantly, despite the affidavit testimony submitted by James
and Del Toro in July 2019 which essentially denied any tortious
interference by Buzbee and his firm, on February 12, 2020, the Firm
learned and discovered for the first time that to encourage James to
terminate Terry & Thweatt, P.C., Tony Buzbee personally assured
13
James that if she ended up owing any fees to Terry & Thweatt, P.C.,
the Buzbee Law Firm would pay those fees for James.
Buzbee’s assurance to James in this regard was concealed from the
Firm by two misleading affidavits submitted by James and Del Toro in
July 2019. Nonetheless, after James’ February 12, 2020 testimony in
the grievance proceeding, it was quite clear that with Buzbee’s
assurance in place, James terminated Terry & Thweatt, P.C. without
cause. She and Luengas both then hired the Buzbee Law Firm to pursue
wrongful death claims arising from their daughter’s death.
Terry & Thweatt alleged that, due to these actions, it was deprived of “the full 40%
contingency fee that would have been earned on the settlement of James’s case.”
Instead, Terry & Thweatt only received $5,000 at arbitration.
In light of these pleadings, we conclude that Terry & Thweatt’s tortious
interference claim is factually based on Buzbee’s alleged promise to James, made at
their initial meeting on October 13, 2017, that his law firm would personally pay any
fees that James owed to Terry & Thweatt. This is the operative statement that
allegedly caused James to terminate her representation agreement with Terry &
Thweatt without cause and hire the Buzbee parties instead. Consequently, this is the
operative statement that we analyze in determining the applicability of the
commercial speech exemption.
2. Elements of commercial speech exemption
The TCPA does not apply to 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 an insurance product,
14
insurance services, or a commercial transaction in which the intended audience is an
actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE
§ 27.010(a)(2). The Texas Supreme Court has held that this 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.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam).
The party asserting the commercial speech exemption bears the burden to prove its
application. Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 479 (Tex. App.—Houston
[1st Dist.] 2020, pet. dism’d) (en banc). We consider the pleadings and record
evidence in determining whether the party met its burden. Id.; Hawkins v. Fox Corp.
Housing, LLC, 606 S.W.3d 41, 46 (Tex. App.—Houston [1st Dist.] 2020, no pet.)
(“We may rely on the factual allegations in a plaintiff’s petition, alone, to meet the
elements [of an exemption].”).
a. Defendants are primarily engaged in the business of selling
or leasing goods or services
With respect to the first element—whether the defendant was primarily
engaged in the business of selling or leasing goods or services—Terry & Thweatt
alleged that the Buzbee parties are in the business of providing legal services in
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Houston. In his affidavit in support of the TCPA motion, Buzbee acknowledged that
he is a practicing attorney and owns the Buzbee Law Firm. Consequently, Terry &
Thweatt established that the Buzbee parties are primarily engaged in the business of
selling legal services. See TEX. CIV. PRAC. & REM. CODE § 27.010(a)(2); Castleman,
546 S.W.3d at 688; see also Hieber, 591 S.W.3d at 212 (stating that commercial
speech exemption can apply when TCPA movant is employee of business entity).
b. Defendants made the statement in the capacity as sellers of
goods or services
The next question is whether the TCPA movant made the statement on which
the claim is based in the defendant’s capacity as a seller or lessor of goods or
services. See Castleman, 546 S.W.3d at 688. Here, the relevant communication is
Buzbee’s alleged statement to James that the Buzbee Law Firm would pay any fees
James ended up owing to Terry & Thweatt, which caused James to terminate her
representation agreement with Terry & Thweatt and hire the Buzbee parties.2
To determine whether the Buzbee parties made the challenged statement in
the capacity as sellers of goods or services, we consider the context in which the
2 Terry & Thweatt’s tortious interference claim is not based on Del Toro’s July 2019
affidavit, James’s testimony before the State Bar grievance committee in February
2020, or the Buzbee parties’ stipulation made to the arbitrator in March 2020
concerning its payment of James’s fees. All of these statements occurred well after
James terminated her contract with Terry & Thweatt in October 2017 and thus could
not have served as the act or conduct that allegedly interfered with the contract.
James’s testimony before the grievance committee is how Terry & Thweatt
allegedly learned of Buzbee’s promise to James. It is not the statement upon which
the tortious interference claim is based.
16
Buzbee parties made the statement. See Gaskamp, 596 S.W.3d at 481; Hawkins, 606
S.W.3d at 47 (“We review the context of the statements to determine whether the
challenged statements propose a commercial transaction.”). Here, the pleadings
supply the relevant context: James signed an agreement to Terry & Thweatt’s
representation on October 12, 2017. The next day, James and Luengas met with
Buzbee and Del Toro. James emailed Thweatt and informed him that she was
terminating the representation agreement. James and Luengas then hired the Buzbee
parties as their counsel. The Buzbee parties filed suit on James and Luengas’s behalf
and negotiated a settlement agreement. Terry & Thweatt alleged that it became
aware at James’s grievance hearing in February 2020 that Buzbee promised James
that his firm would pay any fees James owed to Terry & Thweatt. It alleged that the
Buzbee parties made this promise to encourage James to terminate her contract with
Terry & Thweatt and hire the Buzbee parties instead.
In connection with the TCPA motion to dismiss, both James and Buzbee
provided affidavits in which they disputed that this promise occurred before James
terminated her relationship with Terry & Thweatt. Instead, both James and Buzbee
averred that Buzbee promised James that his law firm would pay her fees after Terry
& Thweatt informed her that, despite her termination of the representation
agreement, it would still seek its fees from her recovery. In reviewing the trial court’s
denial of a TCPA motion to dismiss, we view the evidence in the light most favorable
17
to the nonmovant. Dolcefino, 540 S.W.3d at 199. Moreover, even when the
defendant denies making the challenged statement, we must assume the defendant
made the statement for purposes of determining whether a TCPA exemption applies.
See Morrison, 578 S.W.3d at 683. Here, the non-movant is Terry & Thweatt, which
alleged in its pleadings and in Thweatt’s declaration that Buzbee made this alleged
promise at his initial meeting with James and that this promise led to her terminating
her relationship with Terry & Thweatt.
Terry & Thweatt complain about alleged conduct by the Buzbee parties that
occurred during a meeting with James, a client of Terry & Thweatt’s who
nevertheless spoke with the Buzbee parties about obtaining representation for a
wrongful death lawsuit. Buzbee, Del Toro, and James all averred that the purpose of
this meeting was to discuss possible representation of James and Luengas by the
Buzbee Law Firm. It is also undisputed that James terminated her attorney-client
relationship with Terry & Thweatt during this meeting and that she hired the Buzbee
parties.
Reviewing the pleadings and the evidence in the light most favorable to the
non-movant, we conclude that the alleged promise—if made—was made in the
Buzbee parties’ capacity as sellers of legal services. See TEX. CIV. PRAC. & REM.
CODE § 27.010(a)(2); Castleman, 546 S.W.3d at 688; Gaskamp, 596 S.W.3d at 481
(concluding that defendants—former employees—sent advertising brochures to
18
plaintiff’s clients “in the context of furthering [competitor’s] business for the
purpose of securing sales for [competitor]” and thus acted in their capacity as sellers
of new employer’s services). The commercial speech exemption “applies when
communications involve business pursuits for oneself or a business stands to profit
from the statements at issue.” Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-
00732-CV, 2019 WL 2121116, at *8 (Tex. App.—Dallas May 15, 2019, no pet.)
(mem. op.). The alleged promise would alleviate any potential concerns about the
financial detriment from terminating the representation agreement with Terry &
Thweatt. Communications made in furtherance of the business satisfy the second
prong of the commercial speech analysis. Gaskamp, 596 S.W.3d at 481.
c. The statement arose out of a commercial transaction
involving the kinds of services that defendants provide
Related to the second element of the commercial speech exemption is the third
element: the complained-of statement or conduct must arise out of a commercial
transaction involving the kind of goods or services the defendant provides. See
Castleman, 546 S.W.3d at 688; Gaskamp, 596 S.W.3d at 481. Here, Terry &
Thweatt asserted that the Buzbee parties made the alleged promise to James during
a meeting in which Buzbee and James discussed whether the Buzbee parties would
represent James in her wrongful death lawsuit. This is a commercial transaction
involving the kinds of services the Buzbee parties provide: legal services.
“[E]mploying a lawyer is one type of commercial transaction[.]” Buzbee v. Canales,
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621 S.W.3d 802, 808 (Tex. App.—El Paso 2021, pet. denied) (internal quotations
omitted).
The Buzbee parties argue that the commercial speech exemption does not
apply in this case because, for the exemption to apply, the statements must be about
the defendant’s goods or services. They argue that all statements attributed to the
Buzbee parties in Terry & Thweatt’s petition—the Buzbee parties’ letter to Terry &
Thweatt offering to pay it a portion of James’s recovery; the stipulation to the
arbitrator about payment of James’s fees; and statements in Luengas’s declaratory
judgment action against Terry & Thweatt—are statements about Terry & Thweatt’s
services, not the Buzbee parties’ services. However, the key communication is
Buzbee’s alleged promise to James that the Buzbee Law Firm will pay her fees owed
to Terry & Thweatt.
In construing the commercial speech exemption in Castleman, the Texas
Supreme Court noted that “‘the sale or lease of goods or services’ must refer to the
defendant’s sale or lease of goods or services.” 546 S.W.3d at 688; Toth v. Sears
Home Improvement Prods., Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (“Even before Castleman, courts have held that the exemption
is not established unless the challenged statement was ‘about’ the speaker’s
particular goods or services, or the speaker’s business of selling them. As Castleman
acknowledges, the mere fact that a person sells goods or services does not deny him
20
the TCPA’s protections when he speaks of ‘other goods’ in the marketplace.”); see
also Hawkins, 606 S.W.3d at 48 (concluding that this element of exemption was
established because claims arose out of sales services defendant provided).
Additionally, “the only reasonable construction of the exemption’s reference to ‘the
statement or conduct’ is as a reference back to ‘the defendant’s’ statement or conduct
‘on which the claim is based.’” Castleman, 546 S.W.3d at 688 (emphasis added).
Here, the challenged statement that forms the basis of Terry & Thweatt’s
tortious interference claim refers to the Buzbee parties’ sale of services. Buzbee
allegedly promised James that if she ended up owing any fees to Terry & Thweatt,
the Buzbee Law Firm would pay those fees. This is a promise concerning an act that
the Buzbee Law Firm would undertake as part of its representation of James and its
provision of legal services to her. This statement refers to the Buzbee parties’
services, not to Terry & Thweatt’s services.
The Buzbee parties further argue that the commercial speech exemption
cannot apply because no commercial transaction existed between the Buzbee Law
Firm and Terry & Thweatt. Instead, the only commercial transactions involved were
between James and Terry & Thweatt and between the Buzbee parties and James and
Luengas. However, nothing in the text of the commercial speech exemption or in
Castleman requires the existence of a commercial transaction between the plaintiff
and the defendant. See Morrison, 578 S.W.3d at 683. Instead, the statute requires
21
only that the statement arise “out of the sale or lease of goods, services, or an
insurance product, insurance services, or a commercial transaction.” TEX.CIV. PRAC.
& REM. CODE § 27.010(a)(2). Here, the alleged statement arises out of Buzbee’s sale
of legal services to James. We conclude that the alleged statement arises out of a
commercial transaction involving the kind of services the Buzbee parties provide.
See TEX. CIV. PRAC. & REM. CODE § 27.010(a)(2); Castleman, 546 S.W.3d at 688;
Gaskamp, 596 S.W.3d at 481.
d. The intended audience of the statement was actual or
potential customers of defendants for the kind of services
that defendants provide
The final element of the commercial speech exemption requires that “the
intended audience of the statement or conduct” be “actual or potential customers of
the defendant for the kind of goods or services the defendant provides.” Castleman,
546 S.W.3d at 688. Terry & Thweatt alleged that James—the audience for Buzbee’s
promise to pay any fees owed to Terry & Thweatt—was a potential customer of the
Buzbee parties’ legal services. Terry & Thweatt alleged that, based on this promise,
James became an actual customer of the Buzbee parties.
The Buzbee parties argue that none of the statements attributed to it in Terry
& Thweatt’s petition were made to an audience of actual or potential customers.
They point out that Del Toro’s affidavit and James’s testimony were made to the
State Bar grievance committee; their stipulation concerning payment of James’s fees
22
was made to the arbitrator; and their letter offering a portion of James’s settlement
agreement was made to Terry & Thweatt itself. The audience for these statements—
the grievance committee, the arbitrator, and Terry & Thweatt—were not actual or
potential customers of the Buzbee parties. These are not the pertinent
communications. Rather, Terry & Thweatt’s tortious interference claim was based
on the Buzbee parties’ alleged promise to James made at the October 13, 2017
meeting. James was a potential customer of the Buzbee parties’ legal services, and
she became an actual customer after this meeting.
We conclude that Terry & Thweatt have satisfied this element of the
commercial speech exemption. See TEX. CIV. PRAC. & REM. CODE § 27.010(a)(2);
Castleman, 546 S.W.3d at 688; Gaskamp, 596 S.W.3d at 481 (concluding that by
sending advertising materials to plaintiff’s clients, former employees were seeking
to market competitor’s services to potential customers).
We conclude that Terry & Thweatt established that its tortious interference
claim—based on Buzbee’s alleged promise to James, a client of Terry & Thweatt’s
and potential client to the Buzbee Law Firm—falls within the commercial speech
exemption. See TEX. CIV. PRAC. & REM. CODE § 27.010(a)(2); Castleman, 546
S.W.3d at 688.
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3. Exemplary damages
In its original petition, Terry & Thweatt also pleaded that it was entitled to
recovery of exemplary damages. Exemplary damages are not a standalone cause of
action; instead, exemplary damages are a remedy that is potentially recoverable for
certain claims if the claimant meets specific standards of pleading and proof. See
TEX.CIV. PRAC. & REM.CODE §§ 41.001(5) (defining “exemplary damages” as “any
damages awarded as a penalty or by way of punishment but not for compensatory
purposes”), 41.003 (setting out standards for recovering exemplary damages,
including requirement that claimant establish that harm results from fraud, malice,
or gross negligence, which must be proved by clear and convincing evidence and, if
in jury trial, must be found by unanimous verdict); Van Der Linden v. Khan, 535
S.W.3d 179, 202 (Tex. App.—Fort Worth 2017, pet. denied) (noting, in TCPA case,
that heightened standards for exemplary damages do not alter elements of underlying
tort claim but are instead “a potential barrier” to damages plaintiff might be able to
recover should plaintiff prevail on underlying tort claim at trial).
The TCPA “applies to the dismissal of causes of action, not remedies,” and
although recovering exemplary damages at trial might require the plaintiff to provide
additional proof, seeking exemplary damages does not alter the elements that the
plaintiff must prove to recover general damages for an underlying tort claim. Van
Der Linden, 535 S.W.3d at 202; see also TEX. CIV. PRAC. & REM. CODE § 27.001(6)
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(defining “legal action” as “a lawsuit, cause of action, petition, complaint, crossclaim, or counterclaim or any other judicial pleading or filing that requests legal,
declaratory, or equitable relief”).
Exemplary damages are a potential remedy if Terry & Thweatt proves its
tortious interference claim. See Seelbach v. Clubb, 7 S.W.3d 749, 757 (Tex. App.—
Texarkana 1999, pet. denied) (stating that plaintiff can recover exemplary damages
for tortious interference with contract claim if plaintiff establishes that interference
was malicious); see also Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex.
1996) (noting that plaintiff is not required to prove actual malice to recover
compensatory damages for tortious interference with existing contract, but such
finding is required to recover exemplary damages for claim). Exemplary damages
are not, however, an independent claim that is separate from Terry & Thweatt’s
tortious interference claim. Terry & Thweatt is therefore not required to demonstrate
that the request for exemplary damages also falls within the commercial speech
exemption. See Van Der Linden, 535 S.W.3d at 202.
Because Terry & Thweatt established the applicability of an exemption to the
TCPA,we hold that the trial court did not err by denying the Buzbee parties’ TCPA
motion to dismiss.3
3 Because we hold that Terry & Thweatt’s sole claim falls within an exemption to the
TCPA, we need not address whether Terry & Thweatt established a prima facie case
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Outcome: We affirm the order of the trial court.

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