Carl Johnson and Patricia Johnson v. Windsong Ranch Community Association

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00483-CV
___________________________

CARL JOHNSON AND PATRICIA JOHNSON, Appellants

V.

WINDSONG RANCH COMMUNITY ASSOCIATION, Appellee

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

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

In 2022, Appellee Windsong Ranch Community Association (the HOA)

imposed a $100 fine on Appellant Carl Johnson for violating a HOA rule by having

drinks in the neighborhood pool. Carl and his wife, Appellant Patricia Johnson,

responded by filing suit. The years of litigation that followed were what the trial court

described as “the single most time-consuming case th[e c]ourt ha[d] dealt with in [its]

time on the bench.”

When the case finally went before a jury, the genuine fact issues had been

whittled down to a small number of elements within two causes of action, one of

which was an HOA counterclaim based on the Johnsons’ breach of an

indemnification provision in a pool-related release. The provision’s interpretation and

breach had already been decided as a matter of law, and the jury found that the

Johnsons’ breach had caused the HOA more than $200,000 in damages in the form of

attorney’s fees. The trial court entered judgment accordingly. And when it did, it also

sanctioned the Johnsons and their counsel for making sworn misrepresentations to

the court, filing groundless claims, and engaging in similarly questionable activities.

The Johnsons now appeal, challenging both the fee-based damages award—

which they assert was neither legally authorized nor properly segregated—and the

sanctions orders—which they claim were based on factually inaccurate findings and

an improper measurement. But the Johnsons’ arguments feign ignorance of the

foundational issues and legal rulings that underlie the challenged aspects of the

2
judgment. And because they attempt to sidestep those issues rather than

acknowledging and refuting them, their challenges fail. We will affirm.

I. Background

The Johnsons live in Windsong Ranch, a development governed by the HOA.

The development’s common amenities include a pool, and during the relevant time

period, the HOA employed Bearfoot Companies, LLC to monitor and manage the

pool. The Bearfoot pool monitors had several tense encounters with the Johnsons.

A. Pool Disputes

A few years before the drinks-in-the-pool incident at issue here, a Bearfoot

employee interacted with the Johnsons’ son, and the Johnsons considered the

employee’s actions improper, so they sued Bearfoot, ultimately settling the case. 1 It

was not long after the settlement, in mid-2022, when a Bearfoot pool monitor

observed Carl in the pool with an alcoholic beverage—a violation of a HOA rule—

and the HOA fined Carl $100. According to the Johnsons, Carl was not at the pool

when the alleged violation occurred; Patricia and another man—Errol Hand—were

the perpetrators who had drinks in the pool. The Johnsons thus viewed the $100 fine

1
A Bearfoot employee spoke with the Johnsons’ then-13-year-old son in the
pool office, and due to concerns reported by a neighbor, the employee asked the son
if he was being mistreated. According to the Johnsons, the employee’s actions were
improper and amounted to an “abduct[ion]” of their son.

3
as Bearfoot and the HOA’s targeting them in retaliation for the prior dispute

involving their son. They paid the fine2 but appealed it to the HOA board.

The HOA board held a meeting on the matter, and the Johnsons attended,

represented by Carl’s later trial counsel. 3 At the hearing, the board asked nonparty

observers to leave the room unless and until they were called as witnesses. But when

the Johnsons and their counsel were given the opportunity to call witnesses and

present argument, they declined to do so; Carl’s counsel instead stated, “No

comment.” Nonetheless, the HOA board suspended Carl’s $100 fine.

B. Litigation

Despite the fine’s suspension, the Johnsons filed “myriad causes of action

against the HOA and Bearfoot,” including claims for breach of the covenant of quiet

enjoyment, intrusion on seclusion, and money had and received. Johnson v. Bearfoot

Cos., LLC, No. 02-23-00366-CV, 2024 WL 2202033, at *1 (Tex. App.—Fort Worth

May 16, 2024, no pet.) (mem. op.); Johnson v. Windsong Ranch Cmty., Ass’n, Inc., No. 02-

23-00385-CV, 2024 WL 725523, at *1 (Tex. App.—Fort Worth Feb. 22, 2024, no

pet.) (mem. op.). The number of active claims ebbed and flowed in the litigation that

followed.

2
The Johnsons received several erroneous invoices for the fine, and as a result,
they paid it more than once.
3
Carl and Patricia hired separate counsel for the trial court proceedings, but
they pursued their cases together, filing joint pleadings and motions.

4
The Johnsons’ claims against Bearfoot were dismissed under Rule of Civil

Procedure 91a, and we affirmed the severed dismissal, holding that the relevant

claims—including the claims against Bearfoot for breach of the covenant of quiet

enjoyment and intrusion on seclusion—lacked a legal or factual basis. Bearfoot, 2024

WL 2202033, at *1–11; see Tex. R. Civ. P. 91a.1. Meanwhile, the Johnsons’ parallel

claims against the HOA continued, though many were disposed of in summary

judgment rulings. See Windsong, 2024 WL 725523, at *2. The HOA also added a

counterclaim for breach of contract to the mix, asserting that the Johnsons’ lawsuit

had triggered their obligation to indemnify the HOA under Windsong’s Facilities Use

Agreement (the Agreement).

Windsong residents executed the Agreement to obtain access to the

community’s common amenities. In the Agreement, the resident “release[d the

HOA], on behalf of [him]self and any minor child to whom [he is] guardian, . . . from

liability for any claims, demands, and causes of action with respect to the [common

amenities].” [Formatting altered.] The resident further “AGREE[D] THAT, in

consideration for the [HOA’s] . . . granting [him] access to . . . [the pool] and any

other common amenities of Windsong Ranch . . . for [his] voluntary personal use for

physical, relaxation, and other activities, [he] w[ould] . . . indemnify, defend, and hold

harmless [the HOA] from all liability associated with use of the [common amenities]

5
by [the resident] and [his] Guests.”4 According to the HOA, these contractual

commitments released it from all liability associated with the Johnsons’ use of the

pool and obligated the Johnsons to indemnify the HOA by paying its attorney’s fees.

The Johnsons, however, denied any such obligation and made it clear that they would

not pay the HOA’s attorney’s fees.

The Johnsons sought dismissal of the HOA’s indemnification counterclaim,

but the trial court denied the dismissal motion, and in an interlocutory appeal, we

affirmed. See id. at *1–9 (reviewing Johnsons’ interlocutory appeal from denial of

Texas Citizens Participation Act motion to dismiss). But doing so required us to

construe portions of the Agreement. See id. at *3–8. As relevant here, we recognized

that

• the HOA’s “only obligation” under the Agreement was “to provide the
Johnsons access (via the issuance of access cards) to the . . . common areas”;

• the Johnsons’ execution of the Agreement released all of their claims against
the HOA “with respect to” the common amenities and committed them to
indemnifying the HOA for “all liability associated with [their] use” of the
common amenities; and

• the Johnsons’ claims stemmed from their alleged unfair treatment in the
common amenities and were thus claims “associated with” their use of those
amenities, “trigger[ing] their obligation to indemnify the HOA for its attorney’s
fees and costs,” id. at *5–6.
With these issues settled, the dispute returned to the trial court.

“My Guests” was defined in the Agreement to include the signatory, his family
4

members, and his “guests, tenants, occupants, agents, and/or invitees.”

6
C. Jury Trial

Following remand, the case went before a jury. By then, it had been narrowed

to just two causes of action: (1) the Johnsons’ claim against the HOA for money had

and received based on the $100 fine and (2) the HOA’s counterclaim against the

Johnsons for breach of the Agreement’s indemnification provision. The second cause

of action—the HOA’s counterclaim—also involved an affirmative defense: the

Johnsons asserted prior material breach of the Agreement, claiming that the HOA’s

harassment had prevented them from using the common amenities for “relaxation” as

the Agreement had contemplated.

When the time came for the jury to be charged on the two causes of action and

affirmative defense, the dispute had narrowed even further. As relevant here, the trial

court determined (or reiterated) that, as a matter of law, (1) the indemnification

language in the Agreement required the Johnsons to pay the HOA’s attorney’s fees

for all liability “associated with” the Johnsons’ use of the common amenities; and

(2) because the HOA’s only commitment under the Agreement was to grant access to

the common amenities, and because the Johnsons did not allege or present any

evidence that the HOA had denied them access, there was no evidence of prior

material breach. Thus, the jury was asked to determine only (1) whether the HOA

had wrongfully withheld funds belonging to the Johnsons (as alleged in the Johnsons’

money had and received claim), and if so, how much; and (2) the amount of

reasonable and necessary attorney’s fees required for the HOA’s defense against the

7
Johnsons’ claims. On these two questions, the jury found that the HOA had

wrongfully withheld $100 from Carl and that the Johnsons’ claims had caused more

than $200,000 in attorney’s fees.5 The trial court entered judgment accordingly.

But when it entered judgment, the court also ordered the Johnsons and their

counsel to pay sanctions—and not for the first time.

D. Sanctions Orders

Well before the judgment, the trial court expressed concern regarding the

Johnsons’ and their counsel’s conduct.

1. Pretrial Sanctions

In 2023, the trial court ordered the Johnsons and their counsel to show cause

why they should not be sanctioned for repeatedly filing a “false” declaration from

Carl’s counsel and relying upon it as summary judgment evidence.6

In the declaration, Carl’s counsel had declared that, “at the appeal hearing to

the [HOA] Board, . . . [o]ur witness, Errol Hand . . . was excluded by Defendant.”

5
Specifically, the jury found the reasonable and necessary fee for the HOA’s
defense to be $210,000 in the trial court; $31,000 for representation in the court of
appeals; $16,000 for the petition for review stage in the Texas Supreme Court; and
$12,000 for oral argument and further proceedings in the Texas Supreme Court.
6
The HOA moved for sanctions under Rule of Civil Procedure 13 and Chapter
10 of the Civil Practice and Remedies Code. It also moved to disqualify Carl’s
counsel because, by filing a declaration based on his personal knowledge of the HOA
board meeting, he had held himself out as a fact witness. At the subsequent show-
cause hearing, counsel denied that his declaration made him a fact witness and
represented to the trial court that he would not testify as such.

8
But when this declaration was questioned at the show-cause hearing, the

uncontroverted evidence—including an audio recording of the HOA board meeting

—showed that the Johnsons had been given the opportunity to call witnesses and had

affirmatively declined to do so. Although Errol Hand had been among the individuals

asked to leave the room unless and until he testified, the Johnsons made no attempt

to call him as a witness. Nonetheless, Carl’s counsel doubled down on his declaration,

insisting that the HOA had “excluded all the residents, excluded my witnesses” by

asking nonparties to step out of the room.

The trial court found that the declaration was an “attempt[] . . . to mislead the

Court,” stating that Carl’s counsel had “strain[ed] the common meaning of the

word[] . . . ‘excluded’ to justify his declaration and his arguments.”7 The court

ordered the Johnsons and their counsel to pay $3,710 based on the “false” declaration

(Pretrial Sanctions).

It was against this backdrop that the trial court imposed sanctions in the final

judgment (Judgment Sanctions). 8

7
The court noted that the Johnsons had used the false declaration to support
multiple joint filings and that these “groundless” filings were “presented for an
improper purpose to cause unnecessary delay and needless increase in the cost of
litigation.”
8
In the interim, not long after the Pretrial Sanctions, the court set another
show-cause hearing based on other conduct: the Johnsons’ filing of six supplemental
petitions in less than four months, each time purporting to add new causes of action.
The hearing occurred in early 2024; neither the Johnsons nor their counsel appeared.
However, because the case had been stayed pending interlocutory appeal, and because

9
2. Judgment Sanctions

In explaining the basis for the Judgment Sanctions,9 the trial court again noted

Carl’s counsel’s false declaration. But it listed multiple other instances of sanctionable

conduct as well, ranging from the Johnsons’ continued misrepresentations to their

advancing frivolous claims and filing duplicative and excessively lengthy documents.

The court found that, among other things,

• Patricia had filed a “false” declaration stating, “I deny that the Release [i.e.,
Agreement] produced by Defendant in this case was executed by myself on my
behalf” when evidence at trial conclusively established “that [she had] signed
the Release” multiple times on behalf of herself and others;

the Johnsons’ response to the show-cause order had included a motion to recuse, the
trial court did not take any action on the threatened sanctions.
9
As legal authority for the sanctions, the trial court cited “Rule 13 of the Texas
Rules of Civil Procedure, Chapters 9 and 10 of the Texas Civil Practice & Remedies
Code, and . . . the Court’s inherent authority.” See Tex. Civ. Prac. & Rem. Code Ann.
§ 9.011 (recognizing that signing of pleading constitutes the signatory’s representation
“after reasonable inquiry” that “the pleading is not . . . groundless and brought in bad
faith,” for harassment, or to “needless[ly] increase . . . the cost of litigation”), § 9.012
(authorizing sanctions for a violation of Section 9.011 unless Rule 13 or Section
10.004 applies), § 10.001 (providing that, by signing a pleading or motion, the
signatory represents that, “after reasonable inquiry,” each “claim . . . or other legal
contention . . . is warranted by existing law or by a nonfrivolous argument,” each
“factual contention . . . has evidentiary support,” each “denial . . . is warranted on the
evidence,” and the filing is not presented “to harass or to cause unnecessary delay or
needless increase in the cost of litigation”); Tex. R. Civ. P. 13 (recognizing that signing
of pleading constitutes certificate that, “after reasonable inquiry[,] the instrument is
not groundless and brought in bad faith or . . . for the purpose of harassment” and
authorizing sanctions for violation). The Johnsons do not challenge these legal
grounds.

10
• Patricia’s “false declaration [had been] filed as a ‘verified defense’ . . . in a
pleading signed by [the Johnsons’] attorneys . . . [who] had actual knowledge
that [the] declaration was false, yet filed the pleading anyway”;

• the Johnsons’ attorneys had filed multiple petitions that included causes of
action for breach of the covenant of quiet enjoyment and intrusion on
seclusion—claims “which were frivolous when filed”; and

• the Johnsons’ counsel had “engaged in litigation tactics designed to needlessly
increase costs to [the HOA],” such as filing “duplicative [documents with]
hundreds of pages of excessive exhibits in response to [the HOA’s] summary
judgment motions.”
Although the trial court initially imposed sanctions sua sponte at the trial’s end,

it subsequently granted the Johnsons’ request for reconsideration and held a post-

judgment hearing for the Johnsons to show cause why they should not be sanctioned

for the conduct described.

At that show-cause hearing, the Johnsons attempted to justify their actions.10

Carl’s counsel again claimed that his declaration had been accurate, repeating his

“strain[ed]” argument regarding the “meaning of . . . ‘excluded.’” And he made a

similar argument regarding Patricia’s sworn declaration “deny[ing] that the Release

[i.e., Agreement] produced by Defendant in this case was executed by [her]self on

[her] behalf.” According to counsel, this declaration did not deny that she had signed

the Agreement, nor did it deny that she was bound by the Agreement. Rather, Carl’s

counsel stressed that the declaration was carefully worded to limit Patricia’s denial to

10
Carl and his counsel testified as fact witnesses at the post-judgment show-
cause hearing, as did an attorney representing the HOA.

11
those copies of the Agreement that had been (1) “produced by Defendant in th[e]

case” as of the declaration’s date and (2) executed by Patricia “on [her own] behalf,”

as opposed to having been signed on behalf of her children or others. Counsel noted

that, at the time of the declaration, the HOA had produced multiple copies of the

Agreement signed by Patricia, but it had yet to produce a copy signed by her solely

“on [her own] behalf.” The trial court questioned the relevance of this distinction,

noting that the Agreement extended its terms not only to the minor but also to the

adult signatory “on behalf of [her]self”11 and pointing out that Patricia’s declaration

had been filed to support a verified defense. [Formatting altered.] The Johnsons’

counsel acknowledged as much but insisted that, regardless, “her declaration [was]

correct.”

The Johnsons also attempted to explain the basis for their “frivolous” claims,

including their claims for breach of the covenant of quiet enjoyment and intrusion on

seclusion. Their counsel conceded that the Johnsons had asserted the same claims

against Bearfoot and that those claims had been held to lack a legal or factual basis,

but they framed the issue as a mistake and attempted to show why they had believed

the claims had merit.

11
The Agreement also stated—just above the signature line for the parent or
guardian—“that they [i.e., the signatory] and the minor [we]re subject to all the terms
of th[e] document.”

12
Counsel took a slightly different approach when it came to the Johnsons’

voluminous filings. The trial court noted that the Johnsons had filed “hundreds, if

not thousands, of pages of responses” to the HOA’s summary judgment motions

with “the exhibits to all of those responses, 1 through 17, [being] the same

document[s]” except for one exhibit to one motion, which was an “extra item

interposed in the middle of 500 pages of other documents.” Carl’s counsel

acknowledged as much but blamed the HOA for the duplication, pointing out that

the HOA had chosen to challenge the Johnsons’ causes of action in separate summary

judgment motions.12

In short, the Johnsons’ counsel claimed that their behavior had been

appropriate and their claims well grounded. But after hearing the evidence, the trial

court disagreed. It reaffirmed the Judgment Sanctions, concluding that “Plaintiffs’

counsel do not appreciate that their tactics in this case were an abusive use of the

judicial process” and that “[u]nless sanctioned[,] . . . counsel [we]re likely . . . [to]

engage in similar improper conduct in the future.” It ordered Carl and his counsel to

pay $50,000 and Patricia and her counsel to pay another $50,000, explaining that such

amounts “approximate[d] a disgorgement of fees paid by Plaintiffs’ to their attorneys

12
Counsel’s explanation for the Johnsons’ failure to appear at the prior show-
cause hearing was similar in tone. See supra note 8. Carl’s counsel insisted that such
failure was not his fault because “[t]he case had been stayed” pending interlocutory
appeal, so he had assumed that the hearing had been canceled. In fact, due to the
stay, counsel insisted that “[t]here was no hearing” as far as he was concerned.

13
in this case calculated as $125 per hour times 400 hours (each) spent on the case,”

which was the hourly rate and time each of the Johnsons’ counsel had estimated

charging and expending.

II. Discussion

The Johnsons raise three appellate issues, arguing that (1) the HOA’s fees-as-

damages award was erroneous because it was neither legally authorized nor

segregated; (2) the trial court erred by refusing to submit a jury question on the

Johnsons’ affirmative defense of prior material breach; and (3) the sanctions orders

were based on factually inaccurate findings and an improper measurement. 13 But the

Johnsons ignore the evidence and legal rulings that—while unfavorable to them—

support the challenged aspects of the judgment.

13
Throughout their brief, the Johnsons offhandedly question other aspects of
the trial court proceedings, including the absence of a jury question regarding their
breach of the Agreement, the absence of a jury question on the element of causation,
the HOA’s alleged failure to “plead for attorney’s fees under any purported
contractual provision,” the trial court’s initial issuance of the Judgment Sanctions
without a hearing, and the recipient of the sanctions awarded. Because the Johnsons
do not expound on those criticisms or raise them in separate issues, we do not
address them. See Tex. R. App. P. 38.1(f) (requiring appellant’s brief to “state
concisely all issues or points presented for review”), (i) (requiring brief to include
“clear and concise argument for the contentions made, with appropriate citations to
authorities”), 38.9 (explaining that briefs must “acquaint the court with the issues”
and “present argument that will enable the court to decide the case”), 47.1 (limiting
court’s opinion to necessary and dispositive issues).

14
A. Contract Damages

The Johnsons first argue that (1) there was no contract or statute authorizing

the HOA’s recovery of attorney’s fees and (2) the HOA failed to segregate its fees

between recoverable and nonrecoverable claims.

1. Legal Authorization for Fees

In their challenge to the legal authorization for the damages award, the

Johnsons emphasize the American Rule,14 the requirements surrounding a party’s

statutory right to recover attorney’s fees in certain circumstances, and the precedent

recognizing that statutorily authorized attorney’s fees are not damages. They note the

Agreement’s indemnification provision only long enough to dismiss it out of hand,

stating that it “does not allow for attorney’s fees to any party under any

circumstances.”15 They neglect to mention, however, that we construed the

Agreement in the opposite manner in their prior interlocutory appeal.16

14
“[T]he American Rule . . . prohibits the recovery of attorney’s fees from an
opposing party in legal proceedings unless authorized by statute or contract.” Tucker
v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).
15
In their discussion of the requirements for statutorily authorized attorney’s
fees, the Johnsons state, “[T]he indemnifying language in the Facilities Use Agreement
covered damage to person or property caused by the Johnsons or their guests.” The
Johnsons do not explain their proposed interpretation of the Agreement’s scope,
though.
16
Although our interpretation of the Agreement came at a preliminary stage
when the parties’ burdens of proof were different than they were at trial, the
interpretation of an unambiguous contract is a matter of law. See URI, Inc. v. Kleberg
Cnty., 543 S.W.3d 755, 763 (Tex. 2018).

15
There, we held that the Agreement required the Johnsons to pay the HOA’s

attorney’s fees for claims “associated with” the Johnsons’ use of the common

amenities. See Windsong, 2024 WL 725523, at *5–6 & n.10 (concluding that the

Johnsons had “agreed . . . ‘to indemnify, defend, and hold harmless [the HOA] from

all liability associated with’ the Johnsons’ use of these common areas” and that “[b]y

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”). The trial court applied this

interpretation to the jury charge on remand, asking the jury to determine the

“reasonable fee for the necessary legal services of [the HOA’s] attorneys for their

defense of the claims brought by [the Johnsons] in this case”—i.e., the amount of

damage sustained by the HOA for the Johnsons’ refusal to indemnify it. See id.

The Johnsons do not acknowledge this interpretation of the Agreement’s

indemnification provision. In fact, the Johnsons do not cite Windsong once in their

75-page brief. And because they do not address or challenge the foundational legal

basis for the HOA’s fees-as-damages award, this portion of the Johnsons’ first issue

fails.

16
2. Scope of Indemnified Fees

The Johnsons’ complaint regarding segregation of attorney’s fees fails for much

the same reason. 17 They assert that “[t]he HOA failed to segregate attorney’s fees

between claims for which attorney[’s] fees [we]re allowed and those for which

attorney[’s] fees [we]re not allowed,” and as an example of a claim for which fees were

not allowed, they point to their claim for money had and received. But they forget to

mention that we rejected their argument in the prior interlocutory appeal.

There, we noted the Johnsons’ contention “that the indemnification clause

d[id] not apply to some of their causes of action”—including money had and received

and other allegations of “targeting, retaliation, and selective enforcement.” Id. at *6

n.10 (referencing causes of action regarding “targeting, retaliation, and selective

enforcement” in particular); see Appellant’s Brief at 32, 2024 WL 725523 (arguing that

the Johnsons’ claims “for example, [for] suit to enforce restrictive covenants or

money had & received[,] or, for that matter, any allegation of targeting, retaliation, or

selective enforcement,” were not covered by the Agreement’s indemnification clause).

But we disagreed with this contention, citing the “broad scope” of the

indemnification provision and explaining that the relevant “claims all pertain[ed] to

17
The Johnsons submitted a proposed jury question regarding the segregation
of attorney’s fees, but their question “identifie[d] two subsets [of fees], damage to
person or property proximately caused by plaintiffs’ acts and damages associated with
plaintiffs’ use of the facilities.” Nonetheless, we assume without deciding that the
Johnsons preserved their challenge to the HOA’s failure to segregate between
recoverable and nonrecoverable claims.

17
the Johnsons’ use of the Windsong Ranch common areas and the HOA’s actions in

regulating such use,” so the claims were “clearly ‘associated with’ the Johnsons’ use of

the common areas.” Windsong, 2024 WL 725523, at *6 n.10 (quoting Merriam-

Webster.com definition of “associated”); see Associated, Merriam-Webster.com,

https://www.merriam-webster.com/dictionary/associated (last visited Aug. 15, 2025)

(defining “associated” as, among other things, “related [or] connected”).

Once again, the Johnsons do not acknowledge Windsong or identify why we

should reconsider it. Nor do they explain how their claim for money had and

received—a claim centered on their alleged compliance with HOA rules at the

community pool—was not “associated with [their] use of the [common amenities].”

See Windsong, 2024 WL 725523, at *5–6 & n.10.

Therefore, we overrule this final portion of their first issue. 18

B. Jury Question

The same flaw plagues the Johnsons’ second appellate issue. They assert that

the trial court erred by refusing to submit a jury question regarding the HOA’s prior

material breach. Specifically, the Johnsons claim that the Agreement obligated the

HOA to ensure that they could use the common amenities for “relaxation[] and other

18
In passing, the Johnsons suggest other ways in which the HOA’s fees should
have been further segregated. Because the Johnsons do not expound on these
suggestions, address whether their proposed methods of segregation were even
possible, or raise their arguments as separate appellate issues, we need not address
them. See supra note 13; cf. Tex. R. App. P. 38.1(f), (i), 38.9, 47.1.

18
activities” and that the HOA’s “harass[ment]” and “[t]hreats” prevented them from

enjoying the facilities so they were entitled to a jury question on prior material breach.

But the Johnsons do not acknowledge that, in the prior interlocutory appeal,

we stated that “the HOA’s only obligation under the Facilities Use Agreement [wa]s

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

Ranch common areas.” Id. at *5. And we further noted that “the HOA[’s] grant[ing]

the Johnsons access to the common areas d[id] not appear to be in dispute.” Id. This

remained true following remand; the Johnsons did not dispute that they were given

keycards to access the common amenities. The actions that the Johnsons pointed to

as evidence of prior material breach—the HOA’s creation of an unpleasant

environment such that the Johnsons could not use the common areas for

“relaxation”—would not, even if true, have constituted a breach of the Agreement.

See id. And because the Johnsons do not acknowledge, address, or challenge our prior

ruling clarifying the HOA’s limited obligations under the Agreement, they do not

identify any reason why that ruling should be reconsidered.

We overrule the Johnsons’ second issue.

C. Sanctions Orders

In their final issue—and the main focus of their briefing—the Johnsons

dispute the Sanctions Orders. They do not challenge the legal grounds cited by the

19
trial court for its orders, 19 the trial court’s compliance with procedural requirements,

or the court’s findings regarding the sanctioned parties’ motives. Rather, the

Johnsons challenge the factual accuracy of some of the trial court’s findings of

sanctionable conduct20 and the measurement that they claim the trial court relied

upon to set the Judgment Sanctions at $50,000 each. But again, the Johnsons’

complaints are largely undermined by their failure to acknowledge and address

unfavorable aspects of the record.

1. Standard of Review

We review sanctions orders for an abuse of discretion and will affirm unless

“the [trial] court acted without reference to any guiding rules and principles” such that

its ruling is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004); see Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020);

Callaway v. Martin, No. 02-16-00181-CV, 2017 WL 2290160, at *3 (Tex. App.—Fort

Worth May 25, 2017, no pet.) (mem. op.). A “trial court does not abuse its discretion

if it bases its decision on conflicting evidence and some evidence supports its

19
The Pretrial Sanctions order did not specify a legal basis, but the HOA had
moved for sanctions under Rule of Civil Procedure 13 and Chapter 10 of the Civil
Practice and Remedies Code. As for the Judgment Sanctions, the trial court cited four
legal grounds in its order: Rule 13, Chapters 9 and 10 of the Civil Practice and
Remedies Code, and the court’s inherent authority. The Johnsons do not challenge
any of these legal grounds.
20
The Johnsons seek reversal of the trial court’s third show-cause order as well,
but that order did not impose or result in any sanctions. See supra note 8. We
therefore do not address it. See Tex. R. App. P. 47.1.

20
decision.” Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); see Brewer, 601

S.W.3d at 717; Powell v. Fletcher, No. 01-22-00640-CV, 2024 WL 4885846, at *4 (Tex.

App.—Houston [1st Dist.] Nov. 26, 2024, no pet.) (mem. op.); Callaway, 2017 WL

2290160, at *3.

To determine whether a sanctions order is supported by some evidence, we

review the entire record. Powell, 2024 WL 4885846, at *4; Callaway, 2017 WL 2290160,

at *4. The trial court is in the best position to examine the sanctioned parties’

credibility, and we defer to those credibility assessments. See Powell, 2024 WL

4885846, at *4 (affirming sanctions and noting that “[w]e defer to the credibility

decision made by the trial court”); Callaway, 2017 WL 2290160, at *6 (holding trial

court did not abuse its discretion by reconsidering sanctions and noting that “the trial

court, as the trier of fact, is the sole judge of the credibility of witnesses and the

weight to be given to their testimony”); Canada v. Canada, No. 02-11-00483-CV, 2013

WL 1759894, at *8 (Tex. App.—Fort Worth Apr. 25, 2013, no pet.) (mem. op.)

(affirming trial court’s decision not to award sanctions and noting that “[t]he trial

court was in the best position to examine [the relevant party’s] credibility”).

Although we are not bound by the trial court’s findings or conclusions in the

sanctions context, when, as here, the trial court catalogues multiple instances of

sanctionable conduct, we will “uphold the trial court’s sanctions award if any of the

sanctionable conduct in the order has support in the record.” Alwazzan v. Alwazzan,

596 S.W.3d 789, 816–17 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); see Powell,

21
2024 WL 4885846, at *5; Dunavin v. Meador, No. 2-07-230-CV, 2008 WL 2780782, at

*4 (Tex. App.—Fort Worth July 17, 2008, no pet.) (mem. op.); cf. Callaway, 2017 WL

2290160, at *5 (recognizing that, when trial court orders sanctions pursuant to a

party’s motion, “[w]e may uphold the ruling . . . if any ground raised in the motion is

supported by the record”).

2. Evidentiary Support for Pretrial Sanctions

First, the Johnsons challenge the fact findings underlying the Pretrial Sanctions.

They insist that Carl’s counsel’s declaration was accurate in its description of witness

exclusion, arguing that counsel used the word “excluded” to refer to the witnesses’

being asked to step out of the meeting room. But such parsing misses the point.

The word “exclude” has a certain meaning when used to describe witness

testimony in the legal context. As the trial court explained at the show-cause hearing,

“the meaning of excluded [requires] more than invoking the [R]ule” to remove the

witness from the courtroom; 21 it means “[t]hey were prevented from testifying” by a

court ruling. See Exclusion, Black’s Law Dictionary (12th ed. 2024) (defining exclusion

in evidentiary context as “[a] trial judge’s determination that an item offered as

evidence may not be presented to the trier of fact”); see also Tex. R. Evid. 103(a)

21
“At the request of either party, . . . the witnesses on both sides shall be sworn
and removed out of the courtroom to some place where they cannot hear the
testimony as delivered by any other witness in the cause. This is termed placing
witnesses under the rule.” Tex. R. Civ. P. 267(a).

22
(clarifying requirements for a party to claim error “in a ruling to . . . exclude

evidence”).

The Johnsons do not acknowledge the legal meaning of “exclude”; they treat

their definition of the word as the only reasonable understanding of counsel’s

declaration. But whether or not they acknowledge the word’s legal meaning, it was

reasonable for the trial court to interpret counsel’s declaration in light of that meaning

and to conclude that counsel intended to invoke it.

The declaration was a sworn statement from a licensed, practicing attorney. It

was provided to the trial court as summary judgment evidence on multiple occasions

in a legal proceeding. And it characterized a witness as “excluded” from a quasi-

judicial evidentiary hearing that had occurred earlier in the case. The trial court thus

reasonably construed the evidence-related statements made by legal counsel in a legal

proceeding based on the legally understood meaning of “exclude.” And at the pretrial

show-cause hearing, the undisputed evidence showed a factual reality at odds with this

legal term.

Carl’s counsel acknowledged, and the audio recording confirmed, that the

Johnsons had been given the opportunity to call witnesses at the HOA board

meeting, and by choice, the Johnsons elected not to do so. No witness testimony was

“excluded” in the legal sense. Cf. Exclusion, Black’s Law Dictionary (12th ed. 2024).

The record thus supports the trial court’s findings that Carl’s counsel’s

declaration contained a false statement regarding the HOA board meeting and that

23
the declaration “strain[ed] the common meaning of the word[] . . . ‘excluded’” in an

“attempt[] . . . to mislead the Court.” Cf. Tex. R. Civ. P. 13 (recognizing that signing

of “pleading, motion, or other paper” constitutes certificate that “the instrument is

not groundless”); Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a) (recognizing

attorney’s duty of candor toward the tribunal and prohibiting attorney from

“knowingly . . . mak[ing] a false statement of material fact or law” or “offer[ing] or

us[ing] evidence”—such as a declaration offered to support a summary judgment

motion—“that the lawyer knows to be false”); Alwazzan, 596 S.W.3d at 817 (affirming

sanctions under Rule 13 when party filed false affidavit to support request for service

by publication and pleaded false statements regarding residency); In re Lewis, No. 05-

08-01541-CV, 2010 WL 177817, at *4 (Tex. App.—Dallas Jan. 20, 2010, no pet.)

(mem. op.) (holding that evidence was sufficient to support Rule 13 sanctions when

party’s “sworn statement[s] in his rule 202 petitions w[ere] false”). We overrule this

portion of the Johnsons’ issue.

3. Support for Judgment Sanctions

The Johnsons next challenge the other fact findings supporting the Judgment

Sanctions. They dispute the factual accuracy of many of the findings, explaining why,

in their view, the trial court was wrong or their actions were justified. But again, their

arguments are hindered by their failure to acknowledge or address the aspects of the

record that are unfavorable to them.

24
For example, the Johnsons assert that Patricia’s sworn declaration—in which

she denied “that the [Agreement] produced by Defendant in this case was executed by

[her]self on [her] behalf”—was accurate. But they do not acknowledge the reasons

why the trial court labeled the declaration false. As the trial court noted at the post-

judgment show-cause hearing, Patricia’s sworn statement was filed to support a

verified defense. 22 Although the Johnsons insisted that Patricia had not intended to

deny being bound by the Agreement, if the declaration had—as the Johnsons

claimed—merely pointed out that the HOA had yet to produce in discovery the copy

of the Agreement that Patricia had signed solely on her own behalf, then the

declaration would not have served as a basis for a verified defense. Cf. Tex. R. Civ. P.

93. As with Carl’s counsel’s declaration, the trial court did not abuse its discretion by

interpreting the Johnsons’ sworn filing in light of its legal context and by concluding

that the Johnsons had intended for it to be so construed. The Johnsons’ failure to

acknowledge this rational interpretation of the declaration hinders their ability to

challenge it on its merits.

Because Patricia’s sworn misrepresentation—and the Johnsons’ counsel’s joint

filing of it—was some evidence supporting the Judgment Sanctions, we could affirm

In fact, the verified defense was untimely added, and the Johnsons moved for
22

leave to file it, implicitly asserting that it merited an exception to the trial court’s
scheduling order. The trial court granted leave, and Patricia’s verified defense
remained part of the Johnsons’ live pleading at the time of trial, though they claimed
they had intended to withdraw the relevant pleading.

25
on this basis alone. See Alwazzan, 596 S.W.3d at 817 (affirming sanctions based on

false statements in affidavit and petition); Callaway, 2017 WL 2290160, at *3 (affirming

sanctions and recognizing that “an abuse of discretion does not occur when . . . some

evidence of substantive and probative character supports [the trial court’s] decision”).

But other findings of sanctionable conduct support the Judgment Sanctions as well.

Of particular note, the Johnsons dispute the trial court’s characterization of

their claims for breach of the covenant of quiet enjoyment and intrusion on seclusion

as “frivolous when filed,” and they argue that the claims were based on valid factual

and legal theories. But in Bearfoot, we held that the Johnsons’ nearly identical claims

against Bearfoot lacked a factual or legal basis.23 See Bearfoot, 2024 WL 2202033, at

*5–9. And even though the Johnsons’ parallel claims against the HOA were not

23
Specifically, as relevant here, we held that:

• the Johnsons’ claim for breach of the covenant of quiet enjoyment lacked a
factual basis and they cited no authority to support their allegation that a “de
facto landlord–tenant relationship” existed based on “the restrictive covenant
of the community”; and

• “[t]he Johnsons’ [intrusion on seclusion] claim [wa]s based entirely on alleged
actions that occurred while they were at the community pool[, b]ut the
Johnsons had no reasonable expectation of privacy in this communal area” so
“their intrusion-on-seclusion claim lack[ed] a legal basis.”
Bearfoot, 2024 WL 2202033, at *5–9. When the Johnsons initially filed these claims,
they asserted them against the “Defendants” generally without distinguishing between
the HOA and Bearfoot. And although the Johnsons dispute the trial court’s
characterization of the claims as frivolous, they have yet to cite any authority showing
the existence of a landlord–tenant relationship and have yet to explain how they had a
reasonable expectation of privacy in the common amenities.

26
before us at the time, we noted that those claims “involve[d] the same facts and

issues.” Id. at *10–11 (dismissing the Johnsons’ concern of issue preclusion but

acknowledging the similarity between their claims against Bearfoot and their still-

pending claims against the HOA).24

The Johnsons themselves acknowledged Bearfoot’s ramifications at the post-

judgment show-cause hearing. Carl’s counsel recognized that the Johnsons’ claim for

breach of the covenant of quiet enjoyment should not have been asserted against the

HOA25 and that their claim for intrusion on seclusion could not survive in light of

Bearfoot. Yet, on appeal, the Johnsons do not acknowledge Bearfoot and instead insist

that their claims were factually and legally grounded. Because they ignore Bearfoot,

they do not distinguish it or fill in the gaps that it identified in their causes of action.

We thus cannot conclude that the trial court abused its discretion by applying Bearfoot

to the Johnsons’ substantially similar claims against the HOA and labeling the claims

as “frivolous.” Cf. Tex. R. Civ. P. 13 (clarifying that “[g]roundless . . . means no basis

Our holding here is not based on issue preclusion. As we noted in Bearfoot,
24

that concept does not “preclude litigation of [issues] that a trial court explicitly
separates or severs from th[e] action.” Id. at *11.
25
Carl’s counsel argued that, based on his understanding of Bearfoot, “it’s not
that [the Johnsons] d[id]n’t have that easement [of quiet enjoyment] . . . but [that they]
brought it against the wrong defendant.” Counsel did not elaborate further on this
understanding of Bearfoot, nor did he identify who he believed the correct defendant to
be. But see id. at *8 n.7 (questioning “whether a residential tenant can assert a breach-
of-the-covenant-of-quiet-enjoyment claim following the passage of Property Code
Section 92.061”). Regardless, counsel conceded that, at a minimum, the Johnsons
“should have sued somebody else rather than the HOA.”

27
in law or fact and not warranted by good faith argument for the extension,

modification, or reversal of existing law”).

Plus, while the Johnsons vehemently dispute the trial court’s findings regarding

Patricia’s “false” declaration and the “frivolous” nature of their claims, they entirely

ignore another finding of sanctionable conduct: that involving their “multiple

duplicative filings of hundreds of pages of excessive exhibits in response to [the

HOA’s] summary judgment motions.” Cf. Tex. Civ. Prac. & Rem. Code Ann.

§ 10.001 (providing that, by signing a motion, the signatory represents that it is not

presented “to harass or to cause unnecessary delay or needless increase in the cost of

litigation”). And the very face of the clerk’s record supports this finding.

The record shows that, in a single week, the Johnsons filed more than 10,000

pages of summary judgment responses, supplemental responses, and exhibits. Within

these 10,000 pages, the same exhibits were filed five times. The trial court pointed to

such filings as an example of the Johnsons’ attempts “to needlessly increase costs to

[the HOA],” and given the filings’ voluminous and duplicative nature, the trial court’s

conclusion was not unreasonable.

This body of sanctionable conduct is sufficient to support the challenged

Judgment Sanctions. See Powell, 2024 WL 4885846, at *5 (noting that appellant

“challenge[d] some but not all the trial court’s [sanctions] findings” and that “[w]e

must uphold the trial court’s sanctions order if it is correct on ‘any legal theory

supported by the record’”); Alwazzan, 596 S.W.3d at 816–17 (recognizing that “even if

28
the trial court made some findings of non-sanctionable conduct, the sanctions will

nonetheless be upheld if they are based on other findings of sanctionable conduct

supported in the record”). We thus need not address the factual accuracy of the

remainder of the trial court’s sanctions findings, see Tex. R. App. P. 47.1, and we

overrule this portion of the Johnsons’ issue.

4. Measurement for Judgment Sanctions

In the final portion of their issue, the Johnsons assert that “it appears that a

basis for the [Judgment S]anctions is the Johnsons’ $50,000 settlement with Bearfoot

in a prior lawsuit,” and they challenge the propriety of this measurement. They claim

that it was unjust to tie their sanctions to “a voluntary settlement approved by the trial

court . . . in a prior case,”26 and for the same reason, that the yardstick was not directly

related to the punishable conduct.

But when the trial court reaffirmed its Judgment Sanctions, it clarified that the

$50,000 “sanctions amounts approximate[d] a disgorgement of fees paid by Plaintiffs[]

to their attorneys in this case calculated as $125 per hour times 400 hours (each) spent

on the case.” 27 The Johnsons do not discuss this yardstick. And because they do not

26
The Johnsons repeatedly complain that the trial court should not have
considered their conduct in prior litigation at all. But at the post-judgment show-
cause hearing, the Johnsons themselves offered evidence of their conduct in prior
litigation.
27
Originally, the Judgment Sanctions referenced the Bearfoot settlement as an
alternative rationale for the $50,000 amounts. But the trial court’s subsequent order

29
discuss it, they do not explain why it is excessive, improper, or unrelated to their

sanctionable conduct. Thus, the Johnsons’ complaint fails, and we overrule it.

III. Conclusion

Having overruled the Johnsons’ three appellate issues, we affirm the trial

court’s judgment, including its imposition of sanctions. See Tex. R. App. P. 43.2(a).

/s/ Bonnie Sudderth

Bonnie Sudderth
Chief Justice

Delivered: August 29, 2025

reaffirming the Judgment Sanctions tied the amounts solely to the Johnsons’
attorney’s fees.

30