Full opinion text
Terry Jennings, Justice Appellants, Robert Kubbernus and Balaton Group, Inc. ("Balaton") (collectively, "appellants"), challenge the trial court's judgment, entered after a jury trial, in favor of appellees, ECAL Partners, Ltd., Draco Capital, Inc., Robert Mendel, as assignee of Edward Pascal, Robert Mendel, Robert Mendel, as assignee of Stanley Beraznik, Robert Mendel, as assignee of Don Bui, Robert Mendel, as assignee of Ben Ariano, 3791068 Canada, Inc., Peter Taylor, Darshan Khurana, Matteo Novelli, Sequoia Aggressive Growth Fund, Ltd., as assignee of Achim Glauner, Sequoia Aggressive Growth Fund, Ltd., as assignee of Karl-Heinz Glauner, Sequoia Aggressive Growth Fund, Ltd., as assignee of Christian Glauner, Sequoia Aggressive Growth Fund, Ltd., Sequoia Aggressive Growth Fund, Ltd., as successor to Sequoia Diversified Growth Fund, Sequoia Aggressive Growth Fund, Ltd., as assignee of Rig III, Ltd., Sequoia Aggressive Growth Fund, Ltd., as assignee of Aran Asset Management, Sequoia Aggressive Growth Fund, Ltd., as assignee of Semper Gestion, S.A., Eosphoros Asset Management, Inc., Ashwin Sairam, 99869 Canada, Inc., David Burtnik, Mary Hanemaayer, Marlene Tersigni, and George DeWolf (collectively, "appellees"), in their suit against appellants for securities violations under the Texas Securities Act ("TSA"), breach of contract, breach of fiduciary duty, and fraud. In two issues, appellants contend that the evidence is insufficient to support the jury's findings in favor of appellees on their claims for securities violations and attorney's fees under the TSA; certain appellees cannot bring suit under the TSA; and certain appellees' securities-violations claims are barred by the TSA's statute of repose. We affirm. Background In their fifth amended petition, appellees alleged that SkyPort Global Communications, Inc. ("SkyPort"), a Texas-based satellite-technology company, was founded in the late 1990s "by a group of Houston-based business executives and NASA telecommunications experts for the purpose of developing a satellite-communications facility" in Houston, Texas. SkyPort was intended to be "the most advanced and secure satellite-communications facility in the United States" and designed to "provide highly secure telecommunications services to federal and state agencies, as well as to various commercial customers." In March 1999, SkyPort entered into a long-term lease at Ellington Air Force Base in Houston, Texas and began obtaining from the Federal Communications Commission ("FCC") the licenses that it would need to operate a teleport. During this time, SkyPort began raising "several million dollars from investors to finance its activities," estimating that it would need approximately $ 14 million to construct and equip its teleport. In 2002, CenturyTel, Inc. ("CenturyTel"), a large telecommunications company interested in satellite technology, invested $ 8 million to fund the building of SkyPort's teleport. As part of the deal, SkyPort was reorganized into SkyComm, a Delaware holding company with its principal office and activities in Houston, Texas. And SkyPort became a wholly-owned subsidiary of SkyComm, operating in Texas. In exchange for its investment, CenturyTel received SkyComm debentures, which could be converted into shares of SkyComm common stock. CenturyTel continued to fund SkyPort's operation for several years. In 2003, SkyPort completed its teleport and began providing services to customers in January 2004. In 2005, CenturyTel determined that it had erred in investing in "satellite technology," and it announced that it would be "abandon[ing] SkyPort." In July 2005, CenturyTel stopped funding SkyPort, and by November 2005, SkyComm and SkyPort were forced to file for bankruptcy protection. At this time, CenturyTel began looking for a buyer to purchase its SkyComm debentures ("CenturyTel's debentures") and "tak[e] over [its] role as lead investor in SkyPort." In late November 2005, Kubbernus, a purported "expert in finding and profiting from 'undervalued' and 'deeply discounted' companies," was introduced to CenturyTel. Kubbernus offered to raise money on behalf of SkyComm and SkyPort so that they could emerge from bankruptcy. Kubbernus also offered to infuse new equity capital into SkyComm and SkyPort and to arrange for the selling of CenturyTel's debentures. Acting through Balaton, his Canadian investment-banking firm, Kubbernus planned to raise money from a group of investors to purchase CenturyTel's debentures and 133 million to-be-issued shares of SkyComm common stock. The investor group would then convert the debentures that it had purchased from CenturyTel into shares of SkyComm common stock and "control super-majority ownership" in SkyComm and SkyPort. Kubbernus also intended to raise additional funding for SkyComm and SkyPort through "SkyComm private placements" and to take the company public within a year. CenturyTel accepted Kubbernus's proposal, and in December 2005, CenturyTel and SkyComm executed Letters of Intent with Balaton and Kubbernus's investor group, whose members Kubbernus had not yet solicited or identified. Pursuant to the Letters of Intent, Kubbernus's investor group would loan money to SkyComm and SkyPort so that they could emerge from bankruptcy, and the investor group would purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock. In February 2006, Kubbernus formed ClearSky Investments, Ltd. ("ClearSky"), a Delaware limited partnership, to serve as the investment vehicle to raise funds for the purchase of CenturyTel's debentures and the 133 million shares of SkyComm common stock. Kubbernus controlled ClearSky through its general partner, ClearSky Management, Inc. ("ClearSky Management"), an entity wholly owned by Balaton and managed by Kubbernus. In connection with the solicitation of investors for ClearSky (the "ClearSky Investors"), Balaton prepared a Confidential Investment Memorandum and the ClearSky Limited Partnership Agreement. Both documents stated that ClearSky had been formed solely for the purpose of acquiring a controlling interest in SkyComm and SkyPort. And they provided that through the ClearSky Investors, Kubbernus intended for ClearSky to raise up to $ 10 million so that it could purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock (the "SkyPort transaction"). After CenturyTel's debentures were purchased, ClearSky would then convert the debentures into 108 million shares of SkyComm common stock. And ClearSky would ultimately end up owning 80.73% of SkyComm and SkyPort. On February 15, 2006, CenturyTel and Balaton executed a Debenture Purchase Agreement (the "DPA"), which provided that The Watershed Funds, Ltd. ("Watershed"), a Cayman Islands shell corporation that was never actually formed by Kubbernus, would purchase CenturyTel's debentures for $ 3 million. According to appellees, Watershed was merely a placeholder under the DPA for ClearSky, which would acquire ownership of the debentures at closing of the SkyPort transaction, and its investors would actually fund the purchase of CenturyTel's debentures. Contrary to what the ClearSky Investors were told, however, the DPA was later amended, shortly before the closing of the SkyPort transaction, to substitute Balaton for Watershed as the purchaser of CenturyTel's debentures. Also, on February 15, 2006, Balaton signed a DIP Credit Agreement with SkyPort, in which it agreed to provide SkyPort with $ 1.5 million, funds that would actually come from the ClearSky Investors. It also signed a Credit Agreement and a Securities Purchase Agreement (the "SPA") with SkyComm. Pursuant to the SPA, Balaton would receive 133 million shares in SkyComm common stock in exchange for $ 4 million. The SPA was conditioned upon the FCC approving the transfer of control of SkyComm and SkyPort and provided that Balaton could name additional purchasers of the shares of SkyComm common stock at a later date. On March 15, 2006, SkyComm and SkyPort emerged from bankruptcy. As previously noted, appellees alleged that ClearSky was intended to serve as the sole investment vehicle for the purchase of CenturyTel's debentures and the 133 million shares of SkyComm common stock. Through ClearSky, appellants sought to raise a minimum of $ 1 million and a maximum of $ 10 million from the ClearSky Investors. According to the Confidential Investment Memorandum, dated February 2006 and prepared by Balaton, ClearSky, pursuant to the DIP Credit Agreement executed by Balaton, would transfer $ 1.5 million to SkyPort and, pursuant to the Credit Agreement, up to $ 4 million to SkyComm. And ClearSky, pursuant to the SPA, would purchase the 133 million shares of SkyComm common stock at the closing of the SkyPort transaction. ClearSky, pursuant to the DPA, would also acquire all of CenturyTel's debentures and convert them into 108 million shares of SkyComm common stock. And the closing of the SkyPort transaction would be deferred until the FCC approved the acquisition of control of SkyComm and SkyPort by ClearSky. Appellees further alleged that the Confidential Investment Memorandum stated unequivocally that ClearSky would "acquire ownership of SkyComm common stock," "purchase an aggregate of 133[ ] [million] shares of [SkyComm common] stock," "purchase $ 20,596,000 face amount of ... [CenturyTel's] debentures," and "convert the debentures into [shares of SkyComm common] stock." (Internal quotations omitted.) And the ClearSky Limited Partnership Agreement stated that if $ 10 million in funds were invested in ClearSky by the ClearSky Investors, then ClearSky "would acquire a 76% ownership interest in SkyComm, which would increase to 82%" upon the exercise of certain warrants. Appellees also alleged that Kubbernus, from the outset, "had no intention [of] perform[ing] in accordance with the representations stated in the Confidential Investment Memorandum and the [ClearSky] Limited Partnership Agreement." However, Kubbernus convinced the ClearSky Investors to invest in ClearSky by falsely promising that ClearSky would own SkyComm and SkyPort after the closing of the SkyPort transaction. According to appellees, after the ClearSky Investors had invested $ 7 million in ClearSky, Kubbernus and Balaton deliberately cutoff further investments in ClearSky and made no attempt to reach the $ 10 million maximum goal set out in the Confidential Investment Memorandum and the ClearSky Limited Partnership Agreement. Instead, Kubbernus began soliciting investors to buy stock directly in SkyComm. Ultimately, he raised more than $ 8 million from other investors, but chose to keep those funds outside of ClearSky. In fact, certain ClearSky Investors who wanted to make additional investments in ClearSky were told by Kubbernus that ClearSky was "full" and their additional investments would be placed directly in SkyComm. (Internal quotations omitted.) On November 2, 2006, the SkyPort transaction closed in Houston, Texas. At closing, Balaton used the $ 7 million in funds invested by the ClearSky Investors in ClearSky to acquire CenturyTel's debentures and the 133 million shares of SkyComm common stock. Contrary to representations made by appellants, ClearSky received nothing at closing, and none of the ClearSky Investors received anything for the $ 7 million that they had invested. Instead, appellants structured the deal so that Balaton would take sole title of CenturyTel's debentures and the 133 million shares of SkyComm common stock. In other words, at the closing of the SkyPort transaction, despite the use of the ClearSky Investors' money, "the securities transferring control of SkyPort were ... conveyed only to Kubbernus and his companies." (Emphasis omitted.) ClearSky, the entity that was supposed to receive ownership of SkyComm and SkyPort, did not receive anything. Appellees further alleged that despite what occurred at closing, Kubbernus subsequently told the ClearSky Investors that all of Balaton's rights under the DPA and the SPA had been assigned to ClearSky and it had actually acquired CenturyTel's debentures and the 133 million shares of SkyComm common stock. Over the next two years, appellants sent financial statements and other materials to the ClearSky Investors purportedly confirming ClearSky's ownership interest in SkyComm and SkyPort. And they "made numerous and repeated representations to the ClearSky Investors and others that ClearSky owned the controlling interest in SkyComm" and SkyPort. In regard to investors, other than the ClearSky Investors, appellees alleged that after the closing of the SkyPort transaction, appellants began raising, through misrepresentations, funds directly through SkyComm, ultimately raising an additional $ 8,198,843 from mostly foreign investors (the "Additional Investors"). Further, in July 2007, appellants formed Lavell Systems, Inc. ("Lavell") for the purpose of taking SkyComm and SkyPort public. "Lavell was the culmination of [Kubbernus's] plan to recapitalize SkyComm [and SkyPort] and take the company public." The transaction involved appellees exchanging their shares of SkyComm common stock for Lavell stock with Lavell "becom[ing] the publicly-traded holding company for SkyPort." Appellants sold approximately $ 2 million or $ 3 million in convertible notes and other securities to investors (the "Lavell Investors") related to the taking of SkyComm and SkyPort public. However, appellants failed to disclose material information to the Lavell Investors, including that the source of the cash on SkyComm's financial statements was actually from ClearSky and "the individuals now in control of the company had defrauded the [ClearSky] [I]nvestors who had financed SkyComm's [and SkyPort's] recapitalization." Ultimately, "the going-public efforts" were unsuccessful, and the Lavell Investors lost all of their money. Appellees further alleged that although appellants "raised almost $ 20 million to 'recapitalize' " SkyComm and SkyPort, "very little of that money benefitted the company due to shameless looting through bogus management fees and expenses charged" to SkyComm. And Kubbernus "enrich[ed] himself by looting millions of dollars from both existing and new investors." As a result, any ownership interests and investments made by appellees lost "all value." And in October 2008, SkyComm and SkyPort filed "another petition for relief under Chapter 11 of the Bankruptcy Act" (the "second bankruptcy proceeding"). Related to the second bankruptcy proceeding, Kubbernus filed a proposed reorganization plan, under which SkyComm would be merged into its wholly-owned Texas subsidiary, SkyPort. And Balaton would "emerge as the sole shareholder in the surviving entity." All other shareholders in SkyComm would have their shares expunged. On August 12, 2009, SkyComm was merged into SkyPort, and appellees lost all of their purported interests. According to appellees, "[e]veryone involved" with SkyComm and SkyPort, other than CenturyTel and appellants, "lost everything." Appellees, who consist of the ClearSky Investors, the Additional Investors, and the Lavell Investors, brought claims against appellants for securities violations under the TSA, breach of contract, breach of fiduciary duty, and fraud. They also sought to recover their attorney's fees. In regard to their claims for securities violations under the TSA, the ClearSky Investors alleged that limited partnership interests, convertible debentures, and shares of common stock are securities within the meaning of the TSA. Appellants offered and sold directly to the ClearSky Investors limited partnership interests in ClearSky. Appellants also offered to sell indirectly to the ClearSky Investors CenturyTel's debentures and the 133 million shares of SkyComm common stock. These offers and sales were made by means of untrue statements of material fact and omissions to state material facts necessary to make the statements made, in light of the circumstances under which they were made, not misleading. The material untrue statements made by appellants, include, but are not limited to: • That ClearSky would acquire ownership of CenturyTel's debentures and stock; • That ClearSky would be the party converting CenturyTel's debentures; • That FCC approval was being sought for ClearSky's ownership of SkyComm and SkyPort; • That Balaton would assign its contractual rights to ClearSky; • That the ClearSky offering had a $ 1 million minimum or no minimum; and • That ClearSky would receive a proportionate share of the SkyComm securities if less than $ 10 million was invested in ClearSky. The material omissions made by appellants, include, but are not limited to: • That, if for any reason, the acquisition of control of SkyComm and SkyPort did not close, the ClearSky Investors would lose all of their money; • That the ClearSky Investors' money would be used to fund Balaton's overhead, to pay Balaton management fees, and for various other undisclosed purposes that benefitted Kubbernus; • That appellants interpreted the ClearSky Limited Partnership Agreement to not require transfer of ownership of SkyComm and SkyPort to ClearSky unless $ 10 million was invested in ClearSky; • That the ClearSky Investors were at risk to receive nothing for their $ 7 million investment; • That the ClearSky Investors were at risk of receiving no consideration for their investment; • That FCC approval for the transfer of ownership of SkyComm and SkyPort would not be sought for ClearSky; and • That ClearSky's right to ownership of SkyComm and SkyPort and the identity of the ClearSky Investors would not be disclosed to the FCC. Further, the ClearSky Investors alleged that appellants sold and offered to sell limited partnership interests, convertible debentures, and shares of common stock by means of untrue promises, which appellants had no intention of performing, i.e., that ClearSky would be assigned the contractual right to acquire CenturyTel's debentures and the 133 million shares of SkyComm common stock and appellants would transfer ownership of CenturyTel's debentures and the 133 million shares of SkyComm common stock to ClearSky. The ClearSky Investors sought damages, costs, and attorney's fees under the TSA. In regard to their claims for securities violations under the TSA, the Additional Investors alleged that appellants controlled SkyComm and appellants made the sales and offers of shares of SkyComm common stock through untrue statements of material fact and omissions to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The material omissions made by appellants, include, but are not limited to: • That all of the ClearSky Investors' funds had been misappropriated by Kubbernus for Balaton; • That the cash on SkyComm's balance sheet had been obtained by fraud on ClearSky; • That the shares of SkyComm common stock represented to be owned by Balaton had been promised to ClearSky; and • That the ClearSky Investors who had put money into recapitalizing SkyComm and SkyPort lost all of their money and received nothing in return. The Additional Investors sought damages, costs, and attorney's fees under the TSA. In regard to their claims for securities violations under the TSA, the Lavell Investors alleged that appellants controlled SkyComm at the time that they solicited the sale of securities to finance the "Lavell IPO" and the solicitations for the Lavell securities largely emanated from Texas. Further, a significant portion of the securities sold in connection with the Lavell transaction were actually securities issued by SkyComm, which provided "rights" in the shares of the prospective IPO. (Internal quotations omitted.) According to the Lavell Investors, the sales and offers by appellants to them were made by means of untrue statements of material fact and omissions to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The material omissions made by appellants, include, but are not limited to: • That the cash on SkyComm's balance sheet had been obtained by fraud on ClearSky; • That the shares of SkyComm common stock represented to be owned by Balaton had been promised to ClearSky; and • That the ClearSky Investors who had put money into recapitalizing SkyComm and SkyPort lost all of their money and received nothing in return. The Lavell Investors sought damages, costs, and attorney's fees under the TSA. At trial, Adrien Pouliot, a ClearSky Investor, testified that his company, Draco Capital, Inc., invested $ 3,816,523 in ClearSky. However, despite his company's investment, it did not receive any ownership rights in SkyComm or SkyPort. In February 2006, Pouliot was introduced to Kubbernus, who flew to Canada to meet with him and present the opportunity to invest in ClearSky. During their meeting, Kubbernus told Pouliot that there was "a teleport operating company in Houston[, i.e., SkyComm and SkyPort,] that was ... in bankruptcy." According to Kubbernus, SkyComm and SkyPort presented "a great opportunity to buy [a] company at a low price and turn it around, operate it and eventually ... sell it." Kubbernus told Pouliot that he had acquired the right, by virtue of a number of agreements that he had signed in February 2006, to "buy [SkyComm and SkyPort] from its current owners." Kubbernus explained the structure of the SkyPort transaction and gave Pouliot a copy of the DIP Credit Agreement, the Credit Agreement, the SPA, and the DPA. In regard to the structure of the SkyPort transaction, Kubbernus told Pouliot that a group of investors, the ClearSky Investors, would invest money in a limited partnership, i.e., ClearSky, with the goal of raising $ 10 million. The general partner of ClearSky would be ClearSky Management, a shell-company owned by Balaton. The money invested in ClearSky by the ClearSky Investors would be used for two purposes related to the acquiring of ownership of SkyComm and SkyPort. First, $ 3 million of the ClearSky Investors' money would be used by ClearSky to purchase CenturyTel's debentures, which ClearSky would subsequently convert into 108 million shares of SkyComm common stock. Second, $ 4 million of the ClearSky Investors' money would be paid to SkyComm directly in exchange for the 133 million shares of SkyComm common stock. As compensation for its role as general partner, ClearSky Management, i.e., Balaton, would receive 30% "of the equity investment of ClearSky," and the ClearSky Investors would receive 70%. Pouliot explained that the purpose of the Confidential Investment Memorandum, prepared by Balaton, was to provide him and other ClearSky Investors with information about the SkyPort transaction to consider when making their decision whether to invest in ClearSky. Pouliot reviewed the memorandum and relied on it for that purpose, and he relied on it when he decided to invest his company's money in ClearSky. According to the Confidential Investment Memorandum, admitted into evidence by the trial court, the minimum amount of money that the ClearSky Investors had to invest in ClearSky for the SkyPort transaction was $ 1 million, while the maximum amount of money that they could invest was $ 10 million. The memorandum provided, in pertinent part: ClearSky Limited Partnership (the "Partnership") has been formed for the purpose of acquiring control of SkyPort International Inc. ("SkyPort") through its parent corporation, SkyComm Technologies Corporation ("SkyComm") , and assisting SkyComm and SkyPort in realizing significant capital appreciation through organic and structured growth. The General Partner of the Partnership is ClearSky Management, Inc., a wholly-owned subsidiary of Balaton Group Inc. ("Balaton").... The investment contemplated by this offering will support the acquisition and re-structuring of SkyComm and SkyPort by the Partnership. Balaton will assign to the Partnership its rights under certain agreements it has entered into with SkyComm, SkyPort and their secured creditors. By applying the maximum proceeds of this offering in exercise of the rights offered by such agreements, the Partnership will acquire ownership of SkyComm common stock and securities of SkyComm convertible into SkyComm common stock representing approximately 76% percent of the issued and outstanding shares of SkyComm, together with common stock purchase warrants which, if exercised by the Partnership, would increase its fully-diluted ownership position to 82%, excluding any dilution resulting from further recapitalization of SkyComm. The General Partner plans to take SkyComm public within 12 months following the completion of the offering.... .... SUMMARY OF THE OFFERING Issuer Clear Sky Investments, LP.... Issue Class A Limited Partnership interests structured as units.... Issue Amount/Size A minimum of US $ 1,000,000 ... and a maximum of US $ 10,000,000.... .... Use of Proceeds .... (iii) The Partnership will purchase an aggregate of 133,000,000 shares of common stock and 133,000,000 warrants of SkyComm for an aggregate purchase price of $ 4,000,000. The equity subscription will be used in part to repay the principal amount of the Exit Credit Facility, with the balance to be made available to SkyPort for general working capital purposes. Completion of the equity investment will be deferred until receipt of FCC approval to the acquisition of control of SkyComm and SkyPort by the Partnership ; (iv) The Partnership will purchase $ 20,596,000 face amount of convertible debentures of SkyComm from the incumbent holder. The debentures convert into an aggregate of 108,000,000 shares of common stock of SkyComm. Completion of the purchase will be deferred until receipt of FCC approval to the acquisition of control of SkyComm and SkyPort by the Partnership. .... Investment Objectives The objective of the Partnership is to provide to the holders of Class A Units with significant capital appreciation generated by (a) the revitalization and growth of SkyPort; and (b) an enhanced valuation, achieved by seeing the company through the "going public" process and thereby creating liquidity and a greater multiple on earnings. (Emphasis added.) Pouliot further testified that the Confidential Investment Memorandum and the representations that he received from appellants led him to believe that, by virtue of the SkyPort transaction, ClearSky would acquire, own, and control SkyComm and SkyPort. In fact, the memorandum stated that the entire purpose of the formation of ClearSky was to raise money to obtain ownership and control of SkyComm and SkyPort. However, it did not state that the ClearSky Investors were required to invest $ 10 million in ClearSky for the SkyPort transaction to occur. And appellants never told Pouliot that there was a chance that ClearSky would not acquire any ownership of SkyComm and SkyPort by virtue of the SkyPort transaction. According to Pouliot, appellants, through statements made in the Confidential Investment Memorandum, further represented that Balaton would assign any rights or interests it had acquired in SkyComm and SkyPort to ClearSky as part of the SkyPort transaction. And appellants, through statements made in the memorandum, informed Pouliot that ClearSky would be the entity that purchased CenturyTel's debentures and the 133 million shares of SkyComm common stock. In other words, appellants represented that under the terms of the SkyPort transaction, as described in the memorandum, ClearSky would pay CenturyTel $ 3 million and receive $ 20,596,000 in convertible debentures, and ClearSky would pay SkyComm $ 4 million and receive the 133 million shares of SkyComm common stock. Moreover, pursuant to the memorandum, appellants would seek approval from the FCC for ClearSky's ownership and control of SkyComm and SkyPort. In regard to the SPA, an agreement between SkyPort, Balaton, and "other purchasers named [there]" for the purchase of the 133 million shares of SkyComm common stock, Pouliot noted that he had reviewed the document before he decided to invest his company's money in ClearSky. According to Pouliot, although ClearSky was not a party to the SPA when it was initially signed, the agreement specifically provided a mechanism by which ClearSky could be added as a "purchaser" of the 133 million shares of SkyComm common stock. And this fact supported the representations in the Confidential Information Memorandum and ClearSky Limited Partnership Agreement that ClearSky was the entity purchasing the 133 million shares of SkyComm common stock pursuant to the SPA. Further, Kubbernus told Pouliot that when money was invested by the ClearSky Investors into ClearSky, Balaton would assign its rights under the SPA to ClearSky, and the assignment would take place by adding ClearSky's name to Schedule A of the SPA. Pouliot, in making his decision to invest, relied on the representation that ClearSky's name would be added to the SPA. The SPA, admitted into evidence by the trial court, provided, in pertinent part: This Securities Purchase Agreement ("Agreement") is made and entered into as of the 15th day of February, 2006, by and among SkyComm Technologies Corporation, a Delaware corporation ("Company"), having its principal office at 2 Northpoint Drive, Suite 230, Houston, Texas 77060, Balaton Group Inc., an Ontario corporation, having an office at 152 King Street East Toronto, Ontario, MSA 1J3 ("Balaton"), and any other purchasers who may be joined to this Agreement from time to time and identified as a purchaser in Schedule A hereto, as such schedule may be amended from time to time prior to the First Closing Date (as defined herein) (each such party and Balaton being a "Purchaser" and collectively, being the "Purchasers"). .... WHEREAS , the Company, through its wholly-owned subsidiary, SkyPort International, Inc., a Texas corporation ("SkyPort"), is primarily engaged in the business of operating a satellite services company; WHEREAS , the Company intends to issue up to 133,333,335 units ("Units"), each Unit to consist of one share of common stock of the Company, par value $ 0.001 per share ("Common Stock"), and one warrant to purchase one share of Common Stock of the Company ("Warrant"), and Balaton desires to purchase Units, and if no other Purchasers are joined to this Agreement, all 133,333,335 Units, subject to the terms and conditions contained herein; .... ARTICLE I AUTHORIZATION AND SALE Section 1.1 Authorization. Subject to the terms and conditions hereof, the Company has authorized: (a) the sale and issuance of up to 133,333,335 Units; and (b) the reservation for issuance of up to 133,333,335 shares of the Company's Common Stock upon exercise of the Warrants issued as part of the Units ("Warrant Shares"). Section 1.2 Sale of Units. Subject to the terms and conditions contained in this Agreement, the Company hereby agrees to issue and sell and Purchasers hereby agree to purchase from the Company from time to time, an aggregate of 133,333,335 Units at a price of $ 0.03 per Unit (the "Purchase Price"). (Emphasis added.) In regard to the DPA, an agreement initially between CenturyTel and Watershed for the purchase of CenturyTel's debentures, Pouliot testified that Kubbernus told him that he had negotiated the right to assign the DPA. Moreover, ClearSky would be substituted for Watershed in the DPA because Watershed "was not going to get off the ground." Pouliot reviewed the DPA before he invested his company's money in ClearSky, and it expressly provided that Watershed's rights under the agreement could be assigned to ClearSky. Thus, Pouliot believed appellants' representations that ClearSky would purchase CenturyTel's debentures under the DPA. The DPA, admitted into evidence by the trial court, states, in pertinent part: This DEBENTURE PURCHASE AGREEMENT (this "Agreement"), dated as of February 15, 2006, is by and between CenturyTel, Inc., a corporation incorporated under the laws of the State of Louisiana (the "Seller''), and The Watershed Funds, Ltd., a corporation incorporated under the laws of the Cayman Islands (the "Purchaser"), and is joined into as of such date by Balaton Group, Inc., a corporation incorporated under the laws of the Province of Ontario, Canada ("Balaton"), for the purposes of guaranteeing the Purchaser's obligations hereunder (the "Balaton Guaranty") and by SkyComm Technologies Corporation, a corporation incorporated under the laws of the State of Delaware ("SkyComm"), for the limited purposes described hereinafter. .... WHEREAS, the Seller owns (i) $ 20,596,000 aggregate principal amount of convertible debentures (which are described further on Exhibit A and are hereinafter referred to as the "Debentures") issued by SkyComm, which owns all of the issued and outstanding capital stock of SkyPort International, Inc. ("SkyPort"), a Texas corporation subject to bankruptcy proceedings (the "SkyPort Bankruptcy Proceedings") following its filing on November 21, 2005 of a voluntary petition for reorganization under the federal bankruptcy code, and (ii) a revolving promissory note dated July 1, 2005 in the principal amount of $ 750,000 made by SkyComm and SkyPort (the "Revolving Note"); WHEREAS, the Debentures are convertible into shares of common stock of SkyComm that, upon issuance, would constitute over 50% of SkyComm's capital stock; WHEREAS, as one component of a comprehensive plan of Balaton to recapitalize SkyComm and SkyPort (the "Recapitalization Plan"), the Seller wishes to sell, transfer, assign, convey and deliver the Debentures to the Purchaser, and the Purchaser wishes to purchase, acquire and accept the Debentures from the Seller, in each case upon the terms and conditions of this Agreement ; and WHEREAS, simultaneously with the execution of this Agreement, Balaton has entered into definitive recapitalization agreements with SkyComm and SkyPort (collectively, the "Recapitalization Agreements"), including the DIP credit agreement (the "DIP Agreement"), the credit agreement (the "Credit Agreement") and the securities purchase agreement; .... ARTICLE I SALE AND PURCHASE OF DEBENTURES Section 1.01. Sale of Debentures. Subject to the terms and conditions specified herein, on the Closing Date (as defined in Section 1.05(a)) (i) the Seller shall sell, transfer, assign and convey all of its right, title and interest in the Debentures to the Purchaser, free and clear of any lien, security interest, pledge, mortgage or other encumbrance ("Lien") with respect thereto, and (ii) the Purchaser shall purchase, acquire and accept the Debentures in exchange for the Purchase Price (as defined in Section 1.02). Section 1.02. Purchase Price. The aggregate purchase price for all of the Debentures (the "Purchase Price") shall be (i) $ 3.0 million cash , which the Purchaser agrees to pay at the Closing (as defined in Section 1.05(a)), and (ii) the Purchaser's commitment to make reimbursement payments under Section 1.03. (Emphasis added.) In addition to reviewing the Confidential Investment Memorandum, the SPA, and the DPA provided to him by appellants, Pouliot traveled to Houston, Texas to tour SkyPort's facilities, meet with SkyPort's representatives and entire management team, including SkyPort's president, and attend management presentations. And Pouliot had additional meetings with Kubbernus, during which they discussed SkyComm and SkyPort and various "scenarios[,] including what would happen" to the ownership of SkyComm and SkyPort if the ClearSky Investors did not invest $ 10 million in ClearSky, but instead only invested $ 7 million. Before making his investment, Pouliot also received additional documents from appellants, including a "cap table," admitted into evidence by the trial court. The "cap table" specifically stated that at the closing of the SkyPort transaction, ClearSky would pay $ 3.24 million to CenturyTel in exchange for its debentures, which ClearSky could then convert into 108 million shares of SkyComm common stock. And ClearSky would pay $ 4 million to SkyComm in exchange for the 133 million shares of SkyComm common stock. Pouliot also received from Kubbernus a document titled, "SkyPort Strategies," admitted into evidence by the trial court, which discussed what would happen if the ClearSky Investors invested only $ 7 million in ClearSky. Based on this document, appellants represented that the SkyPort transaction would still go forward, with ClearSky obtaining ownership of SkyComm and SkyPort. And appellants never stated that ClearSky would not receive any ownership in SkyComm or SkyPort if the ClearSky Investors invested only $ 7 million in ClearSky. Additionally, Kubbernus gave Pouliot a document titled "SkyPort Shareholders List," admitted into evidence by the trial court, which showed that Balaton would assign its rights and interests in SkyComm and SkyPort to ClearSky. In fact, Kubbernus hand-wrote ClearSky's name on the document to illustrate that ClearSky, upon the closing of the SkyPort transaction, would own the 133 million shares of SkyComm common stock and an additional 108 million shares in SkyComm common stock after the conversion of CenturyTel's debentures. While discussing this document, Kubbernus told Pouliot, "Don't worry.... [I]t's going to be ClearSky that's going to end up with these shares." (Internal quotations omitted.) He also said, and the "SkyPort Shareholders List" showed, that if the ClearSky Investors invested only $ 1 million in ClearSky, then ClearSky would receive 22,703,333 shares of SkyComm common stock, and if the ClearSky Investors invested only $ 7 million in ClearSky, then ClearSky would receive 158,923,333 shares of SkyComm common stock. Notably, before Pouliot decided to invest his company's money in ClearSky, appellants did not tell him that he and the other ClearSky Investors would receive "nothing" and lose all of their money if they did not invest $ 10 million in ClearSky. Pouliot further testified that in September 2006, he decided to invest, through his company, Draco Capital, Inc., in ClearSky. In doing so, Pouliot relied on the aforementioned representations made by appellants and the documents provided to him by appellants. And in the course of making his investment, Pouliot, like every ClearSky Investor, signed the ClearSky Limited Partnership Agreement, admitted into evidence by the trial court. It provides, in pertinent part: ARTICLE II ORGANIZATION .... 2.2. Name. The name of the Partnership shall be "Clear Sky Investments, L.P." .... 2.6. Purpose. The purpose of the Partnership is to use the maximum aggregate initial Class A Limited Partners' maximum Capital Contributions of US $ 10,000,000 to acquire debt and equity securities of SkyComm Technologies Corporation ("SkyComm") and its wholly owned subsidiary SkyPort International Inc. ("SkyPort") pursuant to and in accordance with the agreements to be assigned to the Partnership by Balaton Group Inc. ("Balaton") and The Watershed Funds Ltd. ("Watershed") described in Exhibit B to this Agreement and to assist management of SkyComm and Sky Port in revitalizing the operating business of SkyPort and seeing SkyComm through a going public transaction and thereby enhancing the fair market value of the Securities held by the Partnership for the benefit of the Partners. The maximum aggregate initial Class A Limited Partners' Capital Contributions of US $ 10,000,000 if completed, will support the acquisition and re-structuring of SkyComm and SkyPort by the Partnership. As the Partnership is capitalized with subscriptions for Class A Limited Partners' interests, Balaton and Watershed will assign to the Partnership rights to participate under the agreements described in Exhibit B. By applying the Class A Limited Partners Capital Contributions in exercise of the rights offered by such agreements, the Partnership will acquire ownership of SkyComm common stock and securities of SkyComm convertible into SkyComm common stock. If the maximum aggregate initial Class A Limited Partners' Capital Contributions of US $ 10,000,000 are completed, Balaton and Watershed will assign all of their participation rights in the Exhibit B agreements to the Partnership and the Partnership will acquire stock representing approximately 76% percent of the issued and outstanding shares of SkyComm, together with common stock purchase warrants which, if exercised by the Partnership, would increase its fully-diluted ownership position to 82%, excluding any dilution resulting from further recapitalization of SkyComm. If less than the maximum aggregate initial Class A Limited Partners' Capital Contributions of US $ 10,000,000 are completed, the Partnership's participation in the acquisition and re-structuring of SkyComm will be proportionately reduced and Balaton and Watershed may retain any participation rights which have not been assigned to the Partnership. (Emphasis added.) Pouliot explained that when he signed the ClearSky Limited Partnership Agreement, Kubbernus again told him that the purpose of ClearSky was to acquire, or own, SkyComm and SkyPort. And at the closing of the SkyPort transaction, ClearSky would become the owner of SkyComm and SkyPort. Pouliot explained that he was never told that a scenario existed wherein ClearSky would not obtain ownership of SkyComm and SkyPort. And if he had been told that there was a possibility that his company, a ClearSky Investor, and ClearSky, would not receive anything in exchange for the money that his company had invested in ClearSky, then he would not have invested with appellants. In regard to the closing of the SkyPort transaction, Pouliot noted that, ultimately, the ClearSky Investors invested $ 7 million in ClearSky, and on November 2, 2006, the SkyPort transaction closed in Houston, Texas. After closing, Pouliot continued to receive communications from Kubbernus, including representations from him that ClearSky, by virtue of the SkyPort transaction, owned CenturyTel's debentures and the 133 million shares of SkyComm common stock. In fact, in every communication received from appellants after closing, Pouliot was led to believe that the SkyPort transaction "had occurred as per the Confidential Information Memorandum." Kubbernus affirmatively told Pouliot that ClearSky was the "new owner" of SkyComm and SkyPort. And he did not disclose to Pouliot that ClearSky had not purchased CenturyTel's debentures and the 133 million shares of SkyComm common stock, but rather he repeatedly confirmed that "ClearSky w[as] now the shareholder of SkyComm." In August 2009, Pouliot first became aware that ClearSky did not have any ownership interest in SkyComm and SkyPort; Balaton had never assigned any of its interests or rights in SkyComm and SkyPort to ClearSky; and Balaton, using the ClearSky Investors' money, had purchased CenturyTel's debentures and the 133 million shares of SkyComm common stock at the closing of the SkyPort transaction. In fact, Kubbernus, while testifying during the second bankruptcy proceeding, specifically stated that ClearSky and the ClearSky Investors had "absolutely no interest" in SkyComm and SkyPort and "no right whatsoever to any of the shares" of SkyComm common stock. He further told the bankruptcy court that because the ClearSky Investors did not invest $ 10 million in ClearSky, but instead invested only $ 7 million, they "never had [any] shares" and were entitled to "nothing" in regard to SkyComm and SkyPort. Pouliot further testified that the ClearSky Investors' main complaint about the SkyPort transaction and appellants' actions surrounding the SkyPort transaction was that the ClearSky Investors' money was supposed to be used by ClearSky to purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock, and appellants falsely represented to the ClearSky Investors that ClearSky "would be the owner" of CenturyTel's debentures and the 133 million shares of common stock upon the closing of the SkyPort transaction. In other words, appellants "stole[ ]" the ClearSky Investors' money and used that money, in the SkyPort transaction, to acquire CenturyTel's debentures and the 133 million shares of SkyComm common stock for themselves, leaving the investors without their money or ownership of SkyComm and SkyPort. Further, because of the "fraudulent appropriation" of the ClearSky Investors' money by appellants, the ClearSky Investors "lost the[ir] money" and did not receive anything in return for the $ 7 million that they had invested in ClearSky. Franklin Craig, a private investor who "put[s] together syndicates and business deals," testified that he raised $ 8 million related to the SkyPort transaction from his investors, who consisted of certain ClearSky Investors, Additional Investors, and Lavell Investors. Craig explained that he learned of the investment opportunity related to SkyComm and SkyPort from Kubbernus, he spoke with Kubbernus directly, and Kubbernus actually met with his investors. In regard to the ClearSky Investors, Craig received, as did his investors, the Confidential Investment Memorandum, which explained that the purpose of ClearSky was to raise money from investors for the purchase of SkyComm and SkyPort, with the goal being for the ClearSky Investors to invest between $ 1 million and $ 10 million. Craig explained that the memorandum stated, "in black and white," that following the SkyPort transaction, ClearSky would own SkyComm and SkyPort. He also received a copy of the ClearSky Limited Partnership Agreement and the ClearSky Subscription Agreement, as did his investors. And Craig's investors relied on the statements contained in these agreements and in the Confidential Investment Memorandum when they decided to invest about $ 500,000 in ClearSky. In regard to the Additional Investors, Craig explained that Kubbernus telephoned him to discuss adding new investors. Kubbernus and the "SkyPort team" then met with the Additional Investors and presented them with an opportunity to invest their money directly in SkyComm. According to Craig, the Additional Investors invested money directly into SkyComm, and they did so based on the documentation provided to them by appellants. In exchange for their investment, the Additional Investors were to receive shares of SkyComm common stock. In regard to the Lavell Investors, Craig explained that Lavell was a Canadian Company "set up by Balaton" to "be a vehicle [by] which all of the ... SkyComm/SkyPort/ClearSky [I]nvestors" could "exchange their [SkyComm] shares and receive shares of Lavell, which was supposed to be listed on the Toronto Stock Exchange." "[A] couple" of Craig's investors invested their money in Lavell, and in exchange for their investment, the Lavell Investors received "a note," which was never paid. And Craig did not "know where the Lavell money" had gone. According to Craig, none of his investors, i.e., the ClearSky Investors, the Additional Investors, and the Lavell Investors, received anything in exchange for the money that they had invested. He was asked what was the "main ... thing" that appellants did wrong from the perspective of the ClearSky Investors. And he responded that appellants used the ClearSky Investors' money in the SkyPort transaction, but ClearSky did not acquire CenturyTel's debentures or the 133 million shares of SkyComm common stock. Further, in regard to the Additional Investors and the Lavell Investors, Craig explained that appellants never told them that the ClearSky Investors, "who funded" the SkyPort transaction, actually received "nothing" in exchange for the money that they had invested. Instead, appellants told the Additional Investors and the Lavell Investors that the ClearSky Investors owned shares, were "happy," and had received what they had been promised, and the Additional Investors and the Lavell Investors "should invest just like the[ ] [ClearSky Investors] did." And if the Additional Investors and the Lavell Investors had known the "the truth" about what had occurred with the ClearSky Investors' money, then they "would have never invested and would never have lost [their money]." In other words, if the Additional Investors and the Lavell Investors "had known that ... shares [had not] be[en] given to the people that [had] put their hard money up," i.e., the ClearSky Investors, then they would not have invested their money with appellants. Kubbernus testified that he was previously a shareholder, and involved in the formation, of Balaton, a company that specialized in "[d]istress situations." When he first learned of the opportunity with SkyComm and SkyPort, they were "in deep trouble" financially, and CenturyTel, at the time, did not want to continue its funding of SkyPort. Soon thereafter, SkyComm and SkyPort filed for bankruptcy protection, and Kubbernus saw the bankruptcy proceeding as an opportunity to "clean up" some of their business contracts and make them profitable. After SkyComm and SkyPort emerged from bankruptcy, appellants aided them in raising capital, making decisions, and rebuilding their business. On February 10, 2006, appellants formed ClearSky as "an investment vehicle," and the ClearSky Investors invested $ 7 million in it. According to Kubbernus, the ClearSky Investors were given the Confidential Investment Memorandum, prepared by Balaton, prior to them making their decisions to invest their money in ClearSky. And appellants intended for the ClearSky Investors to rely on the Confidential Investment Memorandum when making their decisions to invest in ClearSky. Kubbernus conceded that the Confidential Investment Memorandum informed the ClearSky Investors that ClearSky would acquire ownership of SkyComm and SkyPort as part of the SkyPort transaction; ClearSky would purchase the 133 million shares of SkyComm common stock; and Balaton would assign any of its rights under the SPA and DPA to ClearSky. Kubbernus further explained that the Confidential Investment Memorandum did not tell the ClearSky Investors that ClearSky might acquire only some of Balaton's interests in SkyComm and SkyPort "maybe someday"; Balaton would use the ClearSky Investors' money for itself and ClearSky "might or might not" obtain any interest in SkyComm and SkyPort; if the ClearSky Investors did not invest $ 10 million in ClearSky, then ClearSky would receive "nothing," i.e., no ownership of SkyComm and SkyPort; and appellants could cancel ClearSky's "economic interest" in SkyComm and SkyPort at any time without notice. Kubbernus noted that once the ClearSky Investors had decided to invest their money in ClearSky, each investor signed the ClearSky Subscription Agreement, in which they affirmed that they had read the Confidential Investment Memorandum and the ClearSky Limited Partnership Agreement and relied on the information contained in them when deciding to invest their money in ClearSky. Kubbernus further testified that despite the representations made in the Confidential Investment Memorandum, appellants never intended for ClearSky to obtain ownership of SkyComm and SkyPort or acquire CenturyTel's debentures and the 133 million shares of SkyComm common stock when the SkyPort transaction closed. Rather, appellants always intended for Balaton to purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock at closing. However, Kubbernus admitted that appellants actually used the $ 7 million of the ClearSky Investors' money so that Balaton could purchase, for itself, CenturyTel's debentures and the 133 million shares of SkyComm common stock. Kubbernus explained that ClearSky did not ever obtain ownership rights to SkyComm and SkyPort, and it did not acquire CenturyTel's debentures or the 133 million shares of SkyComm common stock. Instead, according to Kubbernus, ClearSky "ended up" with "[a] [d]ifferent economic interest than what[ ] [had been] represented" by appellants to the ClearSky Investors in the Confidential Investment Memorandum. Specifically, as a result of the SkyPort transaction, ClearSky merely received "an interest in acquiring ... stock" at some point in the future. In regard to the SkyPort transaction, Kubbernus testified that, under the SPA, SkyComm was to receive $ 4 million in exchange for the 133 million shares of its common stock. And under the DPA, CenturyTel was to sell its convertible debentures to Balaton for $ 3 million. At the time that the SPA and the DPA were signed on February 15, 2006, Kubbernus never intended for ClearSky or the ClearSky Investors to become a party to those agreements. And he never, at any time, intended for ClearSky to "buy[ ]" SkyComm and SkyPort. When the SkyPort transaction closed in November 2006, Kubbernus told CenturyTel to sell its debentures to Balaton, and he told SkyComm to sell its 133 million shares of common stock to Balaton. Kubbernus further admitted that Balaton actually used the ClearSky Investors' money to purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock, but Balaton never assigned any of its rights in SkyComm or SkyPort to ClearSky. ClearSky was also never added as a purchaser of securities under either the SPA or the DPA. And Kubbernus could not recall whether, before the second bankruptcy proceeding in August 2009, he had ever disclosed to the ClearSky Investors that ClearSky did not receive CenturyTel's debentures or the 133 million shares of SkyComm common stock, even though the ClearSky Investors' money was used to complete the SkyPort transaction. Finally, Kubbernus testified that appellants never submitted an application to the FCC to obtain approval for ClearSky to purchase SkyComm and SkyPort. And he conceded that he had never told the ClearSky Investors that FCC approval would not be sought, and had not been sought, on ClearSky's behalf. And although, before Pouliot had invested his company's money in ClearSky, Kubbernus sent Pouliot an email in which he stated that FCC approval for ClearSky's ownership of SkyComm and SkyPort would be sought, appellants never actually sought such approval. Instead, appellants submitted an FCC application, subsequently approved by the FCC, stating: "This application seeks [the] Commission['s] consent for [the] transfer of control of SkyPort International, Inc. from CenturyTel, Inc. to Balaton Group Inc." Brogan Taylor ("Brogan") testified that he previously worked for Balaton and, as an employee, he became involved with the SkyPort transaction in December 2005. In February 2006, ClearSky was created in order to raise capital for the SkyPort transaction. Each ClearSky Investor was given the Confidential Investment Memorandum, which "outline[d] the whole purpose of" the creation of ClearSky, "outlined the entire deal," and "promise[d] ownership [of SkyComm and SkyPort] to the ClearSky [I]nvestors." According to Brogan, appellants knew that the ClearSky Investors "had been told that they would own ... stock" in SkyComm and SkyPort, and the memorandum was never changed to reflect that Balaton, and not ClearSky, would be acquiring ownership of SkyComm and SkyPort when the SkyPort transaction closed. Brogan later discovered that the representations made by appellants related to ClearSky acquiring ownership of SkyComm and SkyPort were untrue. And the ClearSky Investors were never told that the terms of the SkyPort transaction had ever changed. Ultimately, although the ClearSky Investors' money was used to purchase CenturyTel's debentures and the 133 million shares of SkyComm common stock, Balaton became the owner of those securities. Brogan further explained that FCC approval was necessary before the SkyPort transaction could close. The FCC application, filed on April 4, 2006, requested the transfer of control of SkyComm and SkyPort from CenturyTel to Balaton. And no application was ever submitted to the FCC seeking approval of ClearSky as the owner of SkyComm and SkyPort. In regard to the SPA and the DPA, Brogan characterized the agreements as the "two main deal documents," and he noted that ClearSky was never added to either agreement, even though the SPA allowed for the ClearSky Investors or ClearSky to be added. Instead, the SPA and DPA showed Balaton as the entity acquiring CenturyTel's debentures and the 133 million shares of SkyComm common stock. Brogan knew at the time of closing that the debentures and the shares of SkyComm common stock were being issued in Balaton's name; however, it was the ClearSky Investors' money that was actually used to purchase the 133 million shares of SkyComm common stock at the closing of the SkyPort transaction. In regard to the Additional Investors and the Lavell Investors, Brogan testified that after the closing of the SkyPort transaction, Balaton was involved in selling shares of SkyComm common stock to investors, outside of ClearSky, at a higher price. Brogan also noted that he represented to Craig that ClearSky's shares of SkyComm common stock, i.e., the 133 million shares of SkyComm common stock, were being held in a trust for ClearSky because that is what Kubbernus had told him. In regard to Kubbernus, Brogan opined that he had "no character for truthfulness," and he had "experienced him lying firsthand to investors of ClearSky and to ... [other] individuals." The jury found that appellants had committed, against the ClearSky Investors, the Additional Investors, and the Lavell Investors, securities violations under the TSA. And it awarded damages to appellees. After a hearing on attorney's fees, the trial court entered judgment in favor of appellees on their securities-violations claims, awarding them damages and attorney's fees under the TSA. Applicability of Texas Securities Act In a portion of their first issue, appellants argue that certain appellees are prohibited from bringing claims for securities violations under the TSA because the TSA does not apply extraterritorially; only one appellee is a Texas citizen; certain appellees constitute "foreign plaintiffs" ; and "foreign plaintiffs" cannot bring suit under the TSA "because the operative facts of their claims are not connected to Texas." In doing so, appellants assert that "[t]he test in ... section [148(2) ] of the Restatement [ (Second) Conflict of Laws]" "determine[s] whether a plaintiff can assert a claim under the TSA." See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 148(2). We note that section 148(2) is relevant to a choice-of-law analysis. See Petroleum Workers Union of the Republic of Mex. v. Gomez , 503 S.W.3d 9, 32 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (typically Texas courts resolve issue of whether Texas law applies under principles enunciated in Restatement (Second) of Conflict of Laws); Highland Crusader Offshore Partners, L.P. v. Motient Corp. , 281 S.W.3d 237, 249-252 (Tex. App.-Dallas 2009, pet. denied) ; GJP, Inc. v. Ghosh , 251 S.W.3d 854, 884 (Tex. App.-Austin 2008, no pet.) ; Grant Thornton LLP v. Suntrust Bank , 133 S.W.3d 342, 357-58 (Tex. App.-Dallas 2004, pet. denied) (conducting choice-of-law analysis where defendant asserted TSA did not apply to non-Texas residents); Vanderbilt Mortg. & Fin., Inc. v. Posey , 146 S.W.3d 302, 315 (Tex. App.-Texarkana 2004, no pet.). A choice of which state's law should apply to a particular case is a question of law that we review de novo. See Torrington Co. v. Stutzman , 46 S.W.3d 829, 848 (Tex. 2000) ; In re Chestnut Energy Partners, Inc. , 300 S.W.3d 386, 398 (Tex. App.-Dallas 2009, pet. denied) ; Pittsburgh Corning Corp. v. Walters , 1 S.W.3d 759, 769 (Tex. App.-Corpus Christi 1999, pet. denied). Choice of law issues can be waived if not properly invoked. Gen. Chem. Corp. v. De La Lastra , 852 S.W.2d 916, 919 (Tex. 1993) ; DaimlerChrysler Motors Co. v. Manuel , 362 S.W.3d 160, 196-97 (Tex. App