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

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

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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

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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

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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

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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.

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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.

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§ 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

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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,

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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.

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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

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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

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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

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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

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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

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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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We affirm the order of the trial court.