Carl Johnson and Patricia Johnson v. Windsong Ranch Community, Association, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00385-CV
___________________________

CARL JOHNSON AND PATRICIA JOHNSON, Appellants

V.

WINDSONG RANCH COMMUNITY, ASSOCIATION, INC., Appellee

On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 22-7967-431

Before Sudderth, C.J.; Birdwell, and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION

This is an accelerated interlocutory appeal pursuant to the Texas Citizens

Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011,

51.014(a)(12) (authorizing interlocutory appeal of an order denying a TCPA motion to

dismiss). Appellants Carl and Patricia Johnson contend that the trial court erred by

denying their TCPA motion to dismiss Appellee Windsong Ranch Community

Association, Inc.’s (the HOA) counterclaim for breach of contract. Because we

conclude that (1) the HOA satisfied its burden to establish a prima facie case for each

essential element of its breach-of-contract claim by clear and specific evidence and (2)

the Johnsons failed to establish an affirmative defense or other grounds entitling them

to judgment as a matter of law, we affirm. See id. § 27.005(c), (d).

I. BACKGROUND

The Johnsons reside within the Windsong Ranch development in Prosper,

Texas. As Windsong Ranch property owners, the Johnsons are bound by the

development’s covenants, conditions, and restrictions commonly referred to as the

“Master Covenant.” Pursuant to the Master Covenant, and subject to the terms of a

Facilities Use Agreement, residents of Windsong Ranch are granted access to certain

common areas, including the Crystal Lagoon, a roughly five-acre pool complex

containing, among other things, three sandy beaches, a playground, grilling areas, and

outdoor showers.

2
 In September 2022, the Johnsons sued the HOA and Bearfoot Aquatic

Management, LLC, the pool-management company engaged by the HOA to monitor

the Crystal Lagoon. The Johnsons alleged that in retaliation for their having filed—

and ultimately settled—a prior lawsuit against Bearfoot, the HOA and Bearfoot had

targeted them by selectively enforcing certain rules, creating false reports, and

imposing “fraudulent fines.”1 Based on these allegations, the Johnsons asserted

myriad causes of action against the HOA and Bearfoot,2 including breaches of

fiduciary duty, the covenant of quiet enjoyment, and the duty of fair dealing;

negligence; intrusion upon seclusion; violations of statutory process and the Texas

Property Code; harassment; conspiracy; aiding and abetting; enforcement of deed

restrictions; money had and received; and unjust enrichment.

In July 2023, the HOA filed a counterclaim for breach of contract against the

Johnsons.3 In its counterclaim, the HOA asserted (1) that by filing their lawsuit, the

1
The Johnsons initiated the underlying lawsuit after the HOA assessed a $100
civil fine against them for violating a pool rule.
2
Bearfoot filed a Rule 91a motion to dismiss all of the Johnsons’ claims against
it. See Tex. R. Civ. P. 91a. After the trial court granted the motion to dismiss,
Bearfoot filed a motion to sever all of the Johnsons’ causes of action against Bearfoot,
which the trial court also granted. The trial court’s ruling on Bearfoot’s motion to
dismiss is the subject of a separate appeal currently pending before this court.
3
The HOA amended its counterclaim in September 2023 after the Johnsons
filed their TCPA motion to dismiss. Because the amended counterclaim was filed
before the hearing on the Johnsons’ TCPA motion and was therefore the HOA’s live
pleading at the time that the trial court ruled on the motion, the HOA’s amended
counterclaim is the relevant pleading for purposes of our TCPA analysis. See Lopez v.

3
Johnsons had triggered their obligation under the Facilities Use Agreement to

indemnify the HOA for its attorney’s fees and costs incurred in defending against the

Johnsons’ claims and (2) that the Johnsons had anticipatorily breached the contract by

making it clear that they had no intention of indemnifying the HOA.

Shortly thereafter, the HOA filed a traditional motion for summary judgment

seeking a take-nothing judgment on certain of the Johnsons’ claims based on its

affirmative defenses of waiver and release.4 Additionally, the HOA filed four no-

evidence summary judgment motions seeking take-nothing judgments on the

Johnsons’ negligence, intrusion-upon-seclusion, breach-of-the-covenant-of-quiet-

enjoyment, and breach-of-fiduciary-duty claims. The Johnsons filed joint responses

to all of the HOA’s summary judgment motions, attaching hundreds of pages of

exhibits. After considering the summary judgment evidence, the trial court granted all

Sunstate Equip. Co., No. 05-21-00100-CV, 2022 WL 3714496, at *5 (Tex. App.—Dallas
Aug. 29, 2022, pet. abated) (mem. op.) (considering appellant’s live pleading at the
time of the hearing on appellee’s Rule 91a motion to dismiss to be the relevant
pleading for purposes of appeal).
4
Specifically, the HOA’s summary judgment motion sought a take-nothing
judgment as to the following causes of action asserted by the Johnsons: breaches of
fiduciary duty, covenant (generally), and covenant of quiet enjoyment; negligence;
violations of statutory process and the Property Code; intrusion upon seclusion; and
declaratory judgment.

4
of the HOA’s summary judgment motions, thereby dismissing most or all of the

Johnsons’ claims.5

During this same timeframe, the Johnsons filed a motion to dismiss the HOA’s

counterclaim pursuant to Rule 91a of the Texas Rules of Civil Procedure, arguing that

it failed as a matter of law because (1) the release and indemnification language in the

Facilities Use Agreement was not sufficiently conspicuous and (2) the Facilities Use

Agreement was not supported by consideration. Following a hearing, the trial court

rejected the Johnsons’ arguments and denied their motion to dismiss.

On the same day that the trial court signed the order denying the Johnsons’

Rule 91a motion to dismiss, they filed another motion to dismiss the HOA’s

counterclaim, this time under the TCPA. In their motion, the Johnsons argued that

the HOA’s counterclaim was subject to the TCPA because it was “based on or . . . in

response to” their exercise of the right to petition, see Tex. Civ. Prac. & Rem. Code

Ann. § 27.005(b)(1)(B), and reurged their previously rejected argument that the

Facilities Use Agreement was not supported by consideration. Following a hearing,

5
The trial court’s order granting the HOA’s traditional summary judgment
motion reflects that it is interlocutory because “[the HOA’s] counterclaims for breach
of contract and for attorney[’s] fees . . . remain to be litigated.” This language
suggests that the trial court believed that all of the Johnsons’ claims had been
adjudicated. But in their briefing before this court, the Johnsons stated that they still
have pending claims for money had and received and the enforcement of restrictive
covenants. Because this interlocutory appeal solely concerns the HOA’s
counterclaim, we need not determine whether the Johnsons have any remaining viable
causes of action.

5
the trial court signed an order denying the Johnsons’ TCPA motion. This

interlocutory appeal followed. See id. § 51.014(a)(12).

II. DISCUSSION

In a single issue, the Johnsons contend that the trial court erred by denying

their TCPA motion to dismiss because the HOA failed to establish each essential

element of its counterclaim by clear and specific evidence and because the Johnsons

established an affirmative defense as a matter of law. We disagree.

A. Standard of Review and Governing Law

The TCPA—commonly referred to as Texas’s anti-SLAPP6 statute—is

intended to “protect[] citizens who petition or speak on matters of public concern

from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky,

460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding)); accord Lyden v. Aldridge,

No. 02-23-00227-CV, 2023 WL 6631528, at *2 (Tex. App.—Fort Worth Oct. 12,

2023, no pet.) (mem. op.); see Tex. Civ. Prac. & Rem. Code Ann. § 27.002

(summarizing TCPA’s purpose as “encourag[ing] and safeguard[ing] the constitutional

rights of persons . . . and, at the same time, protect[ing] the rights of a person to file

meritorious lawsuits for demonstrable injury”).

Parties who move for dismissal under the TCPA invoke a three-step, burden-

shifting process: (1) first, the movants seeking dismissal must demonstrate that a

6
SLAPP stands for Strategic Lawsuit Against Public Participation. See Windsor
v. Round, 591 S.W.3d 654, 658 (Tex. App.—Waco 2019, pet. denied).

6
“legal action” has been brought against them and that the action is “based on or is in

response to” an exercise of a protected constitutional right; (2) then the burden shifts

to the party bringing the legal action to avoid dismissal by establishing, by clear and

specific evidence, a prima facie case for each essential element of the claim in

question; and (3) finally, the burden shifts back to the movants to justify dismissal by

establishing an affirmative defense or other ground on which they are entitled to

judgment as a matter of law. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)–(d);

Lyden, 2023 WL 6631528, at *2; Miller v. Schupp, No. 02-21-00107-CV, 2022 WL

60606, at *1 (Tex. App.—Fort Worth Jan. 6, 2022, no pet.) (mem. op.).

We review a trial court’s ruling on a TCPA motion to dismiss—including its

determination of the parties’ satisfaction of their respective burdens—de novo.

Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021); Lyden,

2023 WL 6631528, at *2; Miller, 2022 WL 60606, at *1–2. Our review encompasses

“the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil

Procedure, and supporting and opposing affidavits stating the facts on which the

liability or defense is based,” and we view all of these in a light most favorable to the

nonmovant. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); see Maggret v. Ramsey’s

Rods & Restoration, No. 02-20-00395-CV, 2021 WL 2253244, at *2 (Tex. App.—Fort

Worth June 3, 2021, no pet.) (mem. op.); Stallion Oilfield Servs., Ltd. v. Gravity Oilfield

Servs., LLC, 592 S.W.3d 205, 214 (Tex. App.—Eastland 2019, pet. denied).

7
B. The TCPA Applies

To satisfy their burden under the TCPA’s first step, the Johnsons argue that the

TCPA applies because the HOA’s counterclaim was “based on or . . . in response to”

their exercise of the right to petition.7 Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(b)(1). We agree.

The TCPA defines “exercise of the right to petition” as “a communication in

or pertaining to,” among other things, “a judicial proceeding.” Id. § 27.001(4)(A)(i).

In its counterclaim, the HOA asserted that the filing of the Johnsons’ petition

initiating the underlying lawsuit triggered the indemnification provision in the

Facilities Use Agreement that the Johnsons anticipatorily breached. Because the

HOA alleged that the Johnsons’ petition itself gave rise to the breached obligation and

because the petition constitutes a “communication in . . . a judicial proceeding,” we

conclude that the HOA’s counterclaim is “based on or . . . in response to” the

Johnsons’ right to petition. See id. § 27.001(1), (4)(A)(i); Doe v. Cruz, No.

04-21-00582-CV, 2023 WL 8246181, at *6 (Tex. App.—San Antonio Nov. 29, 2023,

no pet. h.) (op. on reh’g) (holding “revenge porn” counterclaim complaining about

the inclusion of a photograph in plaintiff’s publicly available amended petition was

based on plaintiff’s “exercise of the right to petition”—and therefore fell within the

7
Although the HOA contested the issue of TCPA’s application in the trial
court, it appears to have conceded this point on appeal by not addressing the first step
of the TCPA analysis in its appellate brief.

8
auspices of the TCPA—because the amended petition constituted a “communication

in or pertaining to . . . a judicial proceeding”). Accordingly, the Johnsons have

satisfied their initial burden to show that the TCPA applies to the HOA’s

counterclaim.

C. The HOA Established the Essential Elements of its Counterclaim

Having concluded that the Johnsons satisfied their initial burden to show that

the TCPA applies, we must determine whether the HOA carried its burden under the

TCPA’s second step to establish each essential element of its counterclaim by clear

and specific evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). We

conclude that it did.

1. The Principles Governing Our Analysis of the HOA’s Evidence
As we have previously recognized, a specialized body of law has emerged to

define the prima facie burden a party responding to a TCPA motion to dismiss bears,

to define the words used in the statute, and to explain the TCPA’s concepts of proof.

Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *8 (Tex. App.—Fort

Worth Mar. 11, 2021, no pet.) (mem. op.). The salient governing principles are as

follows:

• To present “clear and specific” evidence, the nonmovant “must provide
enough detail to show the factual basis for its claim” and must provide
enough evidence “to support a rational inference that the allegation of fact
is true.” Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019).

• The words “clear and specific” are defined to mean, for the former,
“‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or

9
 ‘relating to a particular named thing.’” Lipsky, 460 S.W.3d at 590 (quoting
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston
[1st Dist.] 2013, pet. denied)).

• “The [party responding to a TCPA motion to dismiss] may rely on
circumstantial evidence—indirect evidence that creates an inference to
establish a central fact—unless ‘the connection between the fact and the
inference is too weak to be of help in deciding the case.’” Dall. Morning
News, 579 S.W.3d at 377 (quoting Lipsky, 460 S.W.3d at 589).

• The nonmovant surmounts its burden of establishing a prima facie case
when the evidence presented is “sufficient as a matter of law to establish a
given fact if it is not rebutted or contradicted.” Lipsky, 460 S.W.3d at 590.
Stated differently, the burden is met by “the ‘minimum quantum of
evidence necessary to support a rational inference that the allegation of fact
is true.’” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (orig. proceeding)).

• Statements that are conclusory or evidence that is speculative is not
sufficient to carry the nonmovant’s burden. Mogged v. Lindamood, No. 02-18-
00126-CV, 2020 WL 7074390, at *9 (Tex. App.—Fort Worth Dec. 3, 2020,
pet. denied) (en banc mem. op. on reh’g).
Guided by these principles, we will analyze the evidence supporting the HOA’s

breach-of-contract claim to determine whether the HOA has satisfied its burden

under the TCPA’s second step.

2. The Evidence Supporting the HOA’s Breach-of-Contract Claim

A plaintiff (or counterplaintiff) asserting a breach-of-contract claim may avoid

dismissal under the TCPA if it offers clear and specific evidence showing that (1) the

parties entered into a valid, enforceable contract; (2) the plaintiff performed the

contract; (3) the defendant breached the contract; and (4) the plaintiff sustained

damages as a result of the breach. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d

10
479, 501 n.21 (Tex. 2018). Here, the record contains clear and specific evidence

showing each of these elements.

Regarding the first element, the HOA presented copies of the Facilities Use

Agreement reflecting the Johnsons’ initials and signatures, excerpts from Carl

Johnson’s deposition transcript in which he acknowledged that he had executed the

Facilities Use Agreement and understood its terms, and an email exchange between

Patricia Johnson and the HOA reflecting that she had executed the Facilities Use

Agreement to receive access cards to the Windsong Ranch common areas. Because

this evidence supports a rational inference that the parties entered into an enforceable

contract,8 the HOA has satisfied its burden as to the first element of its counterclaim.

See Dall. Morning News, 579 S.W.3d at 377.

8
The Johnsons argue that the Facilities Use Agreement is unenforceable
because it is not executed by the HOA. However, a contract can still be effective
even if it is signed by only one party. See DeClaire v. G & B Mcintosh Fam. Ltd. P’ship,
260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Specifically, if one
party signs a contract, the other may accept by its acts, conduct, or acquiescence to
the terms. See id. Here, it was the HOA who required the Johnsons to sign the
Facilities Use Agreement—which was drafted by (or on behalf of) the HOA and
contains only one signature block (for the “[o]wner” or “[p]articipant”)—as a
condition to being granted access to the Windsong Ranch common areas. The record
reflects that the HOA granted the Johnsons access to the common areas after they
executed the Facilities Use Agreement. Thus, under the circumstances presented in
this case, we may rationally infer that the HOA accepted the Facilities Use
Agreement’s terms. See id.; see also Dall. Morning News, 579 S.W.3d at 377 (to satisfy its
step-two burden, a nonmovant must provide enough evidence “to support a rational
inference that the allegation of fact is true”).

11
 Regarding the second element—the plaintiff’s performance under the

contract—the HOA’s only obligation under the Facilities Use Agreement is to

provide the Johnsons access (via the issuance of access cards) to the Windsong Ranch

common areas, including the Crystal Lagoon. That the HOA granted the Johnsons

access to the common areas does not appear to be in dispute. Indeed, many of the

Johnsons’ causes of action are predicated on events that occurred while the Johnsons

were using the common areas, and their second amended petition9 explicitly states

that “[t]he pool and related facilities were a big part of the Johnsons’ family life” and

they “used the facilities year-round.” Given this judicial admission, we conclude that

the record contains clear and specific evidence to support the second element of the

HOA’s counterclaim. See Park v. Suk Baldwin Props., LLC, No. 03-18-00025-CV, 2018

WL 4905717, at *5 (Tex. App.—Austin Oct. 10, 2018, no pet.) (mem. op.) (holding

that appellees had met their burden under the TCPA’s second step to establish a

prima facie case based on appellants’ judicial admission); see also TX Far W., Ltd. v.

Tex. Invs. Mgmt., Inc., 127 S.W.3d 295, 307 (Tex. App.—Austin 2004, no pet.) (“It is

well established that ‘assertions of fact . . . in the live pleadings of a party are regarded

as formal judicial admissions.’” (quoting Holy Cross Church of God in Christ v. Wolf, 44

S.W.3d 562, 568 (Tex. 2001))).

9
Although the Johnsons have supplemented their second amended petition no
less than six times, it appears to have been their live pleading at the time of the trial
court’s ruling on their TCPA motion.

12
 Regarding the third element—the defendant’s breach of the contract—the

Facilities Use Agreement signed by the Johnsons provides:

I hereby ACKNOWLEDGE AND AGREE THAT, in consideration
for the [HOA] and Tellus Group, LLC (“TG”), VP Windsong
Operations LLC (“VPO”), VP Holdings (“VPH”), and each of their
affiliates, parent companies, officers, directors, partners, managers,
agents and employees (together, the [HOA], TG, VPO, and VPH are
referred to as “Windsong Ranch”)[] granting me access to THE
LAGOON, Commons Amenity Center, the Fitness Center, the Pools,
the Dog Park, the Mountain Biking and Disc Golf Courses, and any
other common amenities of Windsong Ranch (the “Facilities”) . . . , I
will be bound by the terms, conditions, and provisions of this Facilities
Use Agreement (this “Agreement”). I agree that access to and use of the
Facilities is AT MY OWN RISK and that Windsong Ranch does not,
by provision of the Facilities, assume any responsibility or liability to me,
my family members, my guests, tenants, occupants, agents and/or
invitees (collectively, “My Guests”). I also agree to indemnify, defend,
and hold harmless Windsong Ranch from all liability associated with use
of the Facilities, by myself and My Guests.

Furthermore, I accept the current and future condition of the
Facilities and the property on which the Facilities are located (the
“Property”) as is and with all faults. I understand that Windsong
Ranch does not make implied or express representations or warranties of
any kind whatsoever regarding the Facilities and the Property, including,
but not limited to, the safety or security of the Facilities and the
Property, the compliance of the Facilities and the Property with any
applicable law, or the fitness for any use by me or My Guests. I
understand that no affirmation of Windsong Ranch, by words or actions,
shall constitute a warranty of any kind whatsoever. In addition, I
understand that Windsong Ranch shall not be liable to me or My Guests
for any damage to person or property proximately caused by any of my
acts, omissions or neglect, or the acts, omissions or neglect of My
Guests; and I agree to indemnify and hold harmless Windsong Ranch
from all claims, demands, actions, suits, and liabilities, of any kind
whatsoever, for any such damage. I understand that Windsong Ranch
shall in no event be liable for any damage to person or property
proximately caused by any act, omission, or neglect of Windsong
Ranch. . . .

13
 I HEREBY RELEASE, ON BEHALF OF MYSELF AND
ANY MINOR CHILD TO WHOM I AM GUARDIAN, AND ON
BEHALF OF MY HEIRS, EXECUTORS, ADMINISTRATORS
AND ASSIGNS, WINDSONG RANCH, AND ALL
DIRECTORS, OFFICERS, PARTNERS, AFFILIATES,
PARENT COMPANIES, MANAGERS, EMPLOYEES,
AGENTS, MANAGERS AND/OR STAFF OF WINDSONG
RANCH FROM LIABILITY FOR ANY CLAIMS, DEMANDS,
AND CAUSES OF ACTION WITH RESPECT TO THE
FACILITIES OR THE PROPERTY.
Thus, under the terms of the Facilities Use Agreement, the Johnsons released all

claims and causes of action against the HOA “with respect to” the Windsong Ranch

common areas and agreed to “to indemnify, defend, and hold harmless [the HOA]

from all liability associated with” the Johnsons’ use of these common areas.

In the underlying lawsuit, the Johnsons have asserted claims against the HOA

relating to, among other things, unfair treatment that they have allegedly experienced

while using the Windsong Ranch common areas and potential attempts by the HOA

to restrict their access to these common areas. By filing a lawsuit against the HOA

asserting claims and causes of action “associated with” their use of the Windsong

common areas, the Johnsons triggered their obligation to indemnify the HOA for its

attorney’s fees and costs.10

The Johnsons argue that the indemnification clause does not apply to some of
10

their causes of action, including targeting, retaliation, and selective enforcement. But
these claims all pertain to the Johnsons’ use of the Windsong Ranch common areas
and the HOA’s actions in regulating such use. Thus, these claims are clearly
“associated with” the Johnsons’ use of the common areas and therefore fall within the
broad scope of the indemnification clause. See associated, Merriam-Webster.com,

14
 In its live pleading, the HOA alleged that the Johnsons had “made it well

known that [they have] no intention of indemnifying [the HOA]” and had therefore

anticipatorily breached the Facilities Use Agreement. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.006(a) (instructing that courts “shall consider the pleadings” in

deciding a TCPA motion to dismiss). Even if the Johnsons have not repudiated the

indemnification provision with their words as alleged by the HOA, they have certainly

done so with their actions. See Jenkins v. Jenkins, 991 S.W.2d 440, 447 (Tex. App.—

Fort Worth 1999, pet. denied) (“Repudiation consists of words or actions by a

contracting party that indicate he is not going to perform his contract in the future.”

(emphasis added)). By filing the underlying lawsuit, the Johnsons made a definitive

statement that they did not intend to indemnify the HOA; therefore, the lawsuit’s very

existence constitutes clear and specific evidence of their repudiation. See Ingersoll-Rand

Co. v. Valero Energy Corp., 953 S.W.2d 861, 868 (Tex. App.—Corpus Christi–Edinburg

1997) (holding that appellee’s act of filing suit against certain appellants was an

“unequivocal repudiation” of a contract’s indemnity provision), rev’d on other grounds,

997 S.W.2d 203 (Tex. 1999); cf. NRG Expl., Inc. v. Rauch, 671 S.W.2d 649, 652 (Tex.

App.—Austin 1984, writ ref’d n.r.e.) (“A suit brought by a lessor to have the lease

terminated constitutes a repudiation.”). Thus, the HOA has satisfied its burden as to

the third element of its counterclaim.

https://www.merriam-webster.com/dictionary/associated (last visited Feb. 12, 2024)
(defining “associated” to mean, inter alia, “related” or “connected”).

15
 Regarding the fourth element—damages resulting from the breach—the HOA

alleged that it has sustained damages in the form of attorney’s fees and costs incurred

in defending itself against the Johnsons’ claims. The record reflects that the HOA has

retained counsel to represent it in the underlying lawsuit, and this fact is sufficient to

support a rational inference that it has incurred attorney’s fees. See Dall. Morning News,

579 S.W.3d at 377; see also USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 202–

03 (Tex. 2023) (“To make a prima facie case under the [TCPA], . . . plaintiffs need not

prove the entirety of their damages with specificity.”); cf. Tex. Civ. Prac. & Rem. Code

Ann. § 38.004 (authorizing trial court to judicially notice usual and customary

attorney’s fees and contents of the case file without receiving further evidence in a

bench trial on a breach-of-contract claim).

Therefore, the HOA has satisfied its burden under the TCPA’s second step to

establish a prima facie case for each of its counterclaim’s required elements by clear

and specific evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).

D. The Johnsons Did Not Establish an Affirmative Defense or Other Grounds
on Which They Are Entitled to Judgment as a Matter of Law
Because the HOA satisfied its burden under the TCPA’s second step, the

burden shifted back to the Johnsons to establish an affirmative defense or other

grounds for judgment as a matter of law. See id. § 27.005(d). The Johnsons have

asserted two such grounds, neither of which has merit.

16
 1. Lack of Consideration

The Johnsons argue that the Facilities Use Agreement is unenforceable because

it lacked consideration. Specifically, they assert that the HOA’s supposed

consideration—granting the Johnsons access to Windsong Ranch’s common areas—

is illusory because the Master Covenant already granted the Johnsons easements of

enjoyment and access to these common areas. However, this argument is based on a

selective reading of the Master Covenant that simply ignores many of its key

provisions. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995)

(admonishing that when construing a contract, courts must “read all

parts . . . together” and “must be particularly wary of isolating from its surroundings

or considering apart from other provisions a single phrase, sentence, or section”); see

also Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998) (acknowledging that

restrictive covenants are subject to the same rules of construction as contracts).

While the Master Covenant grants homeowners such as the Johnsons

easements of access and enjoyment to the Windsong Ranch common areas, these

easements are “subject to” certain “restrictions and reservations,” including “[t]he

right of . . . the [HOA’s] Board . . . to promulgate [r]ules regarding the use” of these

common areas and “[t]he right of the [HOA] to suspend [a] [m]ember’s right to use

the [c]ommon [a]rea” for unpaid assessments or other violations of the Master

Covenant. Further, the Master Covenant authorizes the HOA to “make, establish,

17
and promulgate . . . [r]ules not in conflict with this Covenant, as it deems proper,

covering any and all aspects of the Development . . . .”

Thus, the Master Covenant did not grant the Johnsons unfettered access to the

common areas. Rather, their right of access was clearly made subject to the HOA’s

rule-making authority. Because the HOA had the authority to condition the

Johnsons’ access to the common areas on their execution of the Facilities Use

Agreement, the consideration flowing to the Johnsons under that agreement was not

illusory. Accordingly, the Johnsons have not satisfied their burden to establish that

the Facilities Use Agreement lacked consideration. See TLC Hosp., LLC v. Pillar Income

Asset Mgmt., Inc., 570 S.W.3d 749, 761 (Tex. App.—Tyler 2018, pet. denied)

(recognizing that a recital of consideration creates a presumption that a contract was

supported by consideration and the burden is on the party alleging lack of

consideration to rebut this presumption).

2. Fair Notice Requirements

The Johnsons argue that the Facility Use Agreement’s indemnification

provision is unenforceable because it fails to comply with applicable fair notice

requirements.11 We disagree.

11
The Johnsons included this argument in the section of their brief addressing
step two of the TCPA’s analytical framework, but the HOA addressed it under step
three. Because the Johnsons’ fair notice argument is, in essence, an attempt to
establish “grounds on which [they are] entitled to judgment as a matter of law,” we
address this argument under step three. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(d); see also Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004)

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 Fair notice encompasses (1) the express negligence doctrine and (2) the

conspicuousness requirement. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505,

508 (Tex. 1993). The express negligence doctrine requires that “the intent of the

parties must be specifically stated within the four corners of the contract.” Ethyl Corp.

v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987); see Reyes, 134 S.W.3d at 192.

Conspicuousness requires that “something must appear on the face of the [contract]

to attract the attention of a reasonable person when he looks at [the provision].”

Dresser Indus., 853 S.W.2d at 508 (quoting Ling & Co. v. Trinity Sav. & Loan Ass’n, 482

S.W.2d 841, 843 (Tex. 1972)).

The Johnsons’ fair notice argument fails for two reasons. First, the Johnsons

did not raise this argument in their TCPA motion and have therefore waived it for

TCPA purposes.12 See Edry-TX-II, GP v. CCND-Main ST Shopping Ctr., LP, No. 14-22-

00826-CV, 2023 WL 5111061, at *6 (Tex. App.—Houston [14th Dist.] Aug. 10, 2023,

pet. denied) (concluding that by failing to raise an affirmative defense in its TCPA

motion to dismiss and instead raising it for the first time in its reply brief, appellant

“waived that defense for purposes of the TCPA”); see also Bookout v. Shelley, No. 02 –

(“A contract which fails to satisfy either of the fair notice requirements when they are
imposed is unenforceable as a matter of law.”).
12
The Johnsons briefly argued lack of conspicuousness at the beginning of the
hearing on their TCPA motion, but they spent only a small portion of their allotted
time addressing this issue. They never explicitly referenced the express negligence
doctrine at the hearing and, indeed, did not ever assert it in the trial court as a basis
for granting the TCPA motion.

19
22 – 00055 - CV, 2022 WL 17173526, at *12 (Tex. App.—Fort Worth Nov. 23, 2022,

no pet.) (mem. op.) (holding that trial court did not err by declining to grant relief that

was not requested in TCPA motion itself but was only later requested in the movants’

reply brief). Second, even if the Johnsons had not waived the issue, the record does

not show that the HOA is seeking indemnity for its own negligence; thus, the fair

notice rules do not apply. See Dresser Indus., Inc., 853 S.W.2d at 507 n.1 (“Today’s

opinion applies the fair notice requirements to indemnity agreements and releases

only when such exculpatory agreements are utilized to relieve a party of liability for its

own negligence in advance.”); DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d

880, 885 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that the fair notice

requirements do “not apply where an indemnitee is seeking indemnification from

claims not based on the negligence of the indemnitee”); see also C&F Int’l, Inc. v. Interoil

Servs., LLC, No. 14-18-00698-CV, 2020 WL 1617261, at *4 (Tex. App.—Houston

[14th Dist.] Apr. 2, 2020, no pet.) (mem. op.) (“Because the record does not show that

[the indemnitee] was seeking indemnity from its own negligence, conspicuousness is

not required.”). Although the Johnsons asserted a negligence claim against the HOA,

the trial court granted the HOA’s traditional and no-evidence summary judgment

motions regarding this claim and dismissed it with prejudice. Therefore, nothing in

the record suggests that the HOA was negligent, much less that its counterclaim seeks

indemnity for its own negligence.13 Because “[t]he record does not conclusively

We cannot conclude that the mere assertion of a negligence claim—even an
13

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establish that [the HOA’s] loss was due to its own negligence,” the fair notice

requirements do not apply. See C&F Int’l, Inc., 2020 WL 1617261, at *4.

Because the HOA has presented clear and specific evidence establishing a

prima facie case for each essential element of its counterclaim for breach of contract

and the Johnsons have not established an affirmative defense or other grounds that

would entitle them to judgment as a matter of law, the trial court did not err by

denying the Johnsons’ TCPA motion to dismiss. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.005(c), (d).

III. CONCLUSION

Having determined that (1) the TCPA applies to the HOA’s counterclaim,

(2) the HOA presented clear and specific evidence of each element of its

counterclaim, and (3) the Johnsons failed to establish an affirmative defense or other

grounds that would entitle them to judgment as a matter of law, we affirm the trial

court’s order denying the Johnsons’ motion to dismiss and remand this matter for

further proceedings.14

unmeritorious one—is sufficient to subject an indemnity clause to the fair notice
rules. If this were the case, parties would be incentivized to assert negligence causes
of action—even ones short on both legal and evidentiary support—merely to lay the
foundation for a fair notice attack on an indemnity provision. The Johnsons have not
cited any authority establishing such a rule, and we decline to do so here.
14
The Johnsons filed objections to all references in the HOA’s brief “to
evidence outside the HOA’s four exhibits made a part of the record for the TCPA
motion by the HOA.” However, the TCPA provides that in deciding a motion to
dismiss, a trial court shall consider, among other things, all “evidence a court could

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 /s/ Bonnie Sudderth

Bonnie Sudderth
Chief Justice

Delivered: February 22, 2024

consider under Rule 166a, Texas Rules of Civil Procedure.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.006. When deciding a Rule 166a summary judgment motion, a trial
court is not limited to considering only the evidence attached to the motion but may
take judicial notice of its own record and consider any documents on file at the time
of the hearing. See Tex. R. Civ. P. 166a(c) (stating that summary judgment proof need
only be “on file at the time of the hearing, or filed thereafter and before judgment
with permission of the court”); Lance v. Robinson, 543 S.W.3d 723, 732 (Tex. 2018)
(“Our rules require a trial court to grant a summary-judgment motion if the evidence
‘on file at the time of the hearing, or filed thereafter and before judgment with permission
of the court,’” establishes that the movant is “entitled to judgment as a matter of law.”
(emphasis added) (quoting Tex. R. Civ. P. 166a(c))); Weisberg v. London, No. 13-02-659-
CV, 2004 WL 1932748, at *6 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2004,
no pet.) (mem. op.) (“When considering a summary-judgment motion, the trial court
may judicially notice documents that are part of its record in the case at issue, since
they are already on file and available for the court’s consideration.”); Jones v. Jones, 888
S.W.2d 849, 852–53 (Tex. App.—Houston [1st Dist.] 1994, no writ) (stating that
because a trial court may take judicial notice of documents and orders that are part of
its record, a movant need not attach copies of such documents and orders to a
summary judgment motion). Here, the trial court, in the sound exercise of its
discretion, took judicial notice of “the procedural history, pleadings, and evidence that
ha[d] been adduced in the case so far” and noted that it had “read every document
filed.” Because the trial court considered documents beyond the four exhibits to the
HOA’s response to the Johnsons’ TCPA motion, we see no reason to limit our review
to those documents. Accordingly, we overrule the Johnsons’ objections.

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