Opinion issued December 17, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00919-CV

———————————

HONG PHUOC NGO AND DUYEN NGOC DANG, Appellants

V.

ASSOCIATION OF WOODWIND LAKES HOMEOWNERS, INC., Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2018-38662

O P I N I O N

The Association of Woodwind Lakes Homeowners, Inc. (HOA) sued two 

Woodwind Lakes residents—Hong Phuoc Ngo and Duyen Ngoc Dang (collectively, 

the Ngos)—for breach of contract, alleging that they violated the community’s deed 

restrictions. The Ngos moved to dismiss the suit pursuant to the Texas Citizens 
2

Participation Act (TCPA).

1 The trial court denied their motion. In two issues on 

appeal, the Ngos argue that the trial court erred in denying their TCPA motion to 

dismiss because they met their initial burden to establish that the legal action against 

them is based on, relates to, or is in response to their exercise of the right of free 

speech or right of association and the HOA failed to meet its burden to establish by 

clear and specific evidence a prima facie case for each element of its breach-ofcontract claim. We affirm the trial court’s order denying the Ngos’ motion to 

dismiss. 

Background

The Ngos purchased a house in the Woodwind Lakes subdivision, a deedrestricted community. The deed restrictions are set forth in the subdivision’s 

Declaration of Covenants, Conditions and Restrictions for Woodwind Lakes (the 

Declaration). All Woodwind Lakes homeowners, including the Ngos, are members 

of the HOA and are bound by the terms of the Declaration. The Declaration requires

the HOA to discharge functions “necessary to the general maintenance of the 

1 See TEX. CIV. PRAC. & REM. CODE §§ 27.001–27.011. The Texas Legislature 

amended certain provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg., 

R.S., ch. 378, §§ 1–9, § 12, sec. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–.010 

(to be codified at TEX. CIV. PRAC. & REM. CODE §§ 27.001, 27.003, 27.005–.007, 

27.0075, 27.009–.010). The amendments became effective September 1, 2019. Id.

at § 11. Because suit was filed before the effective date of the amendments, this case 

is governed by the statute as it existed before the amendments. See id. All our 

citations and analyses are to the TCPA as it existed prior to September 1, 2019, 

unless otherwise noted.
3

Common Properties” in the community; take action through its board to provide for 

the “upkeep, development, and aesthetic appearance of the Common Properties and 

Common Facilities”; and “enforce The Declaration for the common benefit” of its 

members. Among other things, the Declaration also requires homeowners to submit 

proposed changes to their homes’ exteriors to the HOA’s Modifications Committee.

The Ngos submitted a proposal for landscaping to the HOA’s Modifications 

Committee in February 2017.2 According to the Ngos, proposals are deemed 

automatically approved under the terms of the Declaration if the committee does not 

respond to the proposal within the fifteen-day period. After fifteen days passed 

without a response from the committee, the Ngos began implementing their 

landscaping plans. 

One month after the Ngos submitted their proposal, the HOA sent a deedrestriction-violation letter to the Ngos in which they alleged that the Ngos had failed 

to comply with the “ARCHITECTURAL REVIEW PROCEDURES AND 

GUIDELINES: Application Procedures” by their “non-submission of an 

APPROVED ACC application before starting work on [their] back yard.” 

The HOA and the Ngos exchanged correspondence about the Ngos’ 

landscaping project as well as the Ngos’ other proposed exterior modifications. After 

2 The Ngos submitted additional proposals and plans on March 1, 2017, May 21, 

2018, and May 22, 2018 and assert they received no responses to those proposals 

either. 
4

the parties were unable to resolve their dispute, the HOA sued the Ngos for breach 

of contract and sought injunctive relief ordering the Ngos to cease violating the deed 

restrictions and cure the existing violations. The HOA alleged that the Ngos violated 

the Declaration by making improvements to the exterior of their home without 

obtaining prior written authorization from the HOA and by failing to remove 

modifications that violated the deed restrictions.

The Ngos moved to dismiss the suit under the TCPA. The trial court denied 

their motion, and they appealed.

The Texas Citizens Participation Act

The Ngos filed their motion to dismiss the HOA’s suit under the TCPA. See 

TEX. CIV. PRAC. & REM. CODE § 27.001–.011. 

Chapter 27 of the Texas Civil Practice & Remedies Code, also known as the 

Texas Citizens Participation Act, “is a bulwark against retaliatory lawsuits meant to 

intimidate or silence citizens on matters of public concern.” Dall. Morning News, 

Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019). The act is intended “to identify and 

summarily dispose of lawsuits designed only to chill First Amendment rights, not to 

dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).

The purpose of the TCPA, as stated in Civil Practice and Remedies Code 

chapter 27, “is to ‘encourage and safeguard the constitutional rights of persons to 

petition, speak freely, associate freely, and otherwise participate in government to 
5

the maximum extent permitted by law and, at the same time, protect the rights of a 

person to file meritorious lawsuits for demonstrable injury.’” ExxonMobil Pipeline 

Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (quoting TEX. CIV. PRAC. & REM.

CODE § 27.002). The TCPA’s primary vehicle for accomplishing its stated purpose 

is a three-step motion-to-dismiss procedure that allows defendants who claim that a 

plaintiff has filed a suit in response to the defendant’s exercise of a constitutionally 

protected right to seek dismissal of the underlying action, attorney’s fees, and 

sanctions at an early stage in the litigation. See TEX. CIV. PRAC. & REM. CODE §§ 

27.003, .005, .009(a); Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 

S.W.3d 127, 132 (Tex. 2019); Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 469–

70 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (en banc).

A defendant who invokes the TCPA’s protections by filing a motion to 

dismiss must show first by a preponderance of the evidence that the TCPA applies. 

See TEX. CIV. PRAC. & REM. CODE § 27.005(b). When this suit was filed, the TCPA 

applied if the plaintiff’s “legal action is based on, relates to, or is in response to” the 

movant’s exercise of (1) the right of free speech; (2) the right to petition; or (3) the 

right of association. Id.; Lipsky, 460 S.W.3d at 586–87.3 A “legal action” is “a 

lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any 

3 Under the amended version of the statute, the TCPA only applies if the legal action 

is “based on or is in response to” a movant’s exercise of a protected right.
6

other judicial pleading or filing that requests legal or equitable relief.” TEX. CIV.

PRAC. & REM. CODE § 27.001(6).

If the defendant makes this initial showing, the burden shifts to the plaintiff to 

establish “by clear and specific evidence a prima facie case for each essential 

element” of his claim. TEX. CIV. PRAC. & REM. CODE § 27.005(c); Lipsky, 460 

S.W.3d at 587. If, however, the plaintiff establishes a prima facie case for its claim, 

then the burden shifts back to the movant to establish, by a preponderance of the 

evidence, each essential element of a valid defense to the claim. TEX. CIV. PRAC. &

REM.CODE § 27.005(d).A plaintiff can avoid the act’s burden-shifting requirements, 

however, by showing that one of the TCPA’s exemptions applies, such as the

commercial speech exemption. See id. § 27.010(b). 

If the trial court grants the motion to dismiss, it must award costs, reasonable 

attorney’s fees, and other expenses of defending against the action “as justice and 

equity may require.” Id. § 27.009(a). The trial court also must sanction the plaintiff 

in an amount “sufficient to deter the party who brought the legal action from bringing 

similar actions.” Id.4

4 This portion of the TCPA was amended, effective September 1, 2019. Under the 

amended version of the TCPA, an award of sanctions is optional, not mandatory.
7

A. Standard of Review

We review de novo the denial of a TCPA motion to dismiss. Dolcefino v. 

Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, 

no pet.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 

S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). To the extent 

resolution of this appeal turns on construction of the TCPA, we review that de novo

as well. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018); Gaskamp, 596 S.W.3d

at 470.

In determining whether to grant or deny a motion to dismiss, the court must 

consider the pleadings and supporting and opposing affidavits stating the facts on 

which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE § 27.006(a);

Lipsky, 460 S.W.3d at 587. In some cases, the relevant evidence may also include 

live testimony and other documentary evidence. See Batra v. Covenant Health Sys., 

562 S.W.3d 696, 707 (Tex. App.—Amarillo 2018, pet. denied); see generally TEX.

CIV. PRAC. & REM. CODE § 27.006(b) (stating trial court “may allow specified and 

limited discovery relevant to the motion” to dismiss). We view the pleadings and 

evidence in the light most favorable to the nonmovant. Dolcefino, 540 S.W.3d at 

199; Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 84 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied).
8

B. Applicability of the TCPA to the HOA’s Breach-of-Contract Claim

The Ngos argue that the TCPA applies to the HOA’s suit because the lawsuit

is based on, related to, or in response to the Ngos’ exercise of their right of free 

speech and their right of association. 

1. Right of Free Speech

The TCPA defines the “[e]xercise of the right of free speech” as “a 

communication made in connection with a matter of public concern.” TEX. CIV.

PRAC. & REM. CODE § 27.001(3). A “communication” includes “the making or 

submitting of a statement or document in any form or medium, including oral, visual, 

written, audiovisual, or electronic.” Id. § 27.001(1). When this suit was filed, a 

“matter of public concern” included “an issue related to: (A) health or safety; (B) 

environmental, economic, or community well-being; (C) the government; (D) a 

public official or public figure; or (E) a good, product, or service in the marketplace.” 

Id. § 27.001(7)5; Coleman, 512 S.W.3d at 899.

5 The current version of the TCPA, which became effective on September 1, 2019,

defines a “matter of public concern” as “a statement or activity regarding: (A) a 

public official, public figure, or other person who has drawn substantial public 

attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter 

of political, social, or other interest to the community; or (C) a subject of concern to 

the public.” TEX. CIV. PRAC. & REM. § 27.001(7) (current version). Notably, 

“environmental, economic, or community well-being” and “a good, product, or 

service in the marketplace” are no longer defined as a “matter of public concern.”
9

Although “[t]he TCPA casts a wide net,” Adams v. Starside Custom Builders, 

LLC, 547 S.W.3d 890, 894 (Tex. 2018), the statute’s scope is not as far reaching as 

once thought. As the Texas Supreme Court recently explained in Creative Oil & 

Gas, “not every communication related somehow to one of the broad categories set 

out in section 27.001(7) always regards a matter of public concern.” 591 S.W.3d at

137. In that case, the lessor of an oil and gas lease sued the lessee in a trespass and 

trespass-to-try-title action, seeking a ruling that the lease was terminated due to 

cessation of production. Id. at 130. As relevant here, the lessee and the operator filed 

counterclaims alleging that the lessor had breached the lease and had falsely told 

third-party purchasers of production from the lease that the lease was expired and 

that payments on the purchases should stop. Id. The lessor moved to dismiss the 

counterclaims pursuant to the TCPA and argued that its statements to third parties 

about the lease were an exercise of its right of free speech because these 

communications were made in connection with matters of public concern, namely, 

economic well-being.

The supreme court, however, rejected this argument, and held that the lessor’s 

communications with third parties were not covered by the TCPA because they were 

private business communications regarding a private contract dispute. Id. at 134–37. 

As the court explained, the term “economic well-being” had to be interpreted 

considering the common meaning of a “matter of public concern,” which does not 
10

include “purely private matters.” Id. at 135. Therefore, the court rejected the 

argument that the communications at issue concerned a matter of public concern, 

namely, economic well-being, because “[a] private contract dispute affecting only 

the fortunes of the private parties involved is simply not a ‘matter of public concern’ 

under any tenable understanding of those words.” Id. at 137.

Relying in part on Creative Oil & Gas, an en banc panel of this Court held in 

Gaskamp that communications between former employees that related to the 

employees’ alleged conduct of misappropriating, sharing, and using the plaintiff’s 

trade secrets and conspiring with one another in furtherance of their tortious actions, 

did not constitute an exercise of their free-speech rights because these 

communications “had no public relevance beyond the pecuniary interests of the 

private parties.” Gaskamp, 596 S.W.3d at 477; see also Creative Oil & Gas, 591 

S.W.3d at 137 This court also held that communications made by the plaintiff’s 

former employees in soliciting and procuring business from a third party did not 

constitute an exercise of the employees’ free-speech rights because these 

communications did not have any “relevance to a public audience of buyers or sellers 

but instead were limited to ‘the pecuniary interests of the private parties involved.’” 

Gaskamp, 596 S.W.3d at 479 (quoting Creative Oil & Gas, 591 S.W.3d at 136). The 

supreme court, which acknowledged that it had “previously held that private 

communications are sometimes covered by the TCPA” in Coleman and Lippincott, 
11

explained that the communications in those cases were covered by the TCPA only 

because they “involved environmental, health, or safety concerns that had public 

relevance beyond the pecuniary interests of the private parties involved.” Creative 

Oil & Gas, 591 S.W.3d at 136 (citing Coleman, 512 S.W.3d at 898, 901; Lippincott 

v. Whisenhunt, 462 S.W.3d 507, 509–10 (Tex. 2015); see also Gaskamp, 596 S.W.3d

at 476.

The Ngos argue that the TCPA applies to the HOA’s suit because the 

applications they submitted to the HOA’s modifications committee, as well as the 

correspondence they exchanged regarding their dispute over the improvements they 

made to their home, are communications that relate directly to matters of “safety,” 

“economic well-being,” and “community well-being,” as set forth in the Declaration. 

TEX. CIV. PRAC. & REM. § 27.001(7).6 Specifically, the HOA alleged that the Ngos 

violated the Declaration by making improvements to the exterior of their home 

without obtaining prior written authorization from the HOA and by failing to remove 

improvements that violate the deed restrictions. 

6 The Ngos argue for the first time on appeal that “[t]he HOA itself can also be 

considered the ‘government’ for the purposes of the statute,” and therefore the 

communications at issue in this case are protected because they were made in 

connection with “the government.” TEX. CIV. PRAC. & REM. CODE § 27.001(7). We 

do not need to reach this contention, however, because it was waived by the Ngos’ 

failure to raise it with the trial court. See TEX. R. APP. P. 33.1(a) (explaining that, as 

prerequisite to presenting complaint for appellate review, record must show 

complaint was made to trial court and trial court ruled or refused to rule); Baumgart 

v. Archer, 581 S.W.3d 819, 826 n.4 (Tex. App.—Houston [1st Dist.] 2019, pet. 

denied).
12

The applications the Ngos submitted to the HOA’s modifications committee 

were contractually required by the Declaration, and the correspondence the Ngos 

and the HOA exchanged that are related to those applications are attempts by the 

parties to resolve their ongoing disputes regarding the Ngos’ alleged violations of 

the Declaration. Private communications regarding a private contract dispute are not 

a matter of public concern. See Newpark Mats & Integrated Services, LLC v. Cahoon 

Enterprises, LLC, 605 S.W.3d 671, 681–82 (Tex. App.—Houston [1st Dist.] Mar. 

26, 2020, no pet.) (citing Creative Oil & Gas, 591 S.W.3d at 134–37); cf. Baywood 

Estates Prop. Owners Ass’n, Inc. v. Caolo, 392 S.W.3d 776, 782 (Tex. App.—Tyler 

2012, no pet.) (stating that restrictive covenant is contractual agreement); Ski 

Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 668 (Tex. App.—San Antonio 

2008, no pet.) (same).

We further note that the only parties who have a tangible interest in any

diminished resale value/property value of the homes in the subdivision caused by 

the Ngos’ breaches of the Declaration are the other homeowners in the subdivision, 

i.e., other HOA members. The same can be said for any nuisances, annoyances, or 

disturbances these alleged violations have caused the owners and occupants of the 

homes in the subdivision located near the Ngos’ residence. The pleadings and the 

record do not reflect any element of public involvement or public interest in this 

dispute between the HOA and the Ngos. Therefore, none of these matters amount to 
13

a matter of public concern because, as pleaded, this is private contract dispute

affecting only the interests of the parties involved—the Ngos, the HOA, and the 

other HOA members. See Creative Oil & Gas, 591 S.W.3d at 137 (stating that “[a] 

private contract dispute affecting only the fortunes of the private parties involved is 

simply not a ‘matter of public concern’ under any tenable understanding of those 

words”). Notably, the opinions that the Ngos rely upon for the proposition that the 

TCAP applies in this case were issued before Creative Oil & Gas and Gaskamp 

clarified what can be considered a matter of public concern for purposes of the 

TCPA.

7 See e.g., Adams, 547 S.W.3d 890; Schimmel v. McGregor, 438 S.W.3d 847 

(Tex. App.—Houston [1st Dist.] 2014, pet. denied); Garton v. Shiloh Vill. Partners, 

LLC, No. 12-16-00286-CV, 2017 WL 6884451 (Tex. App.—Tyler Aug 23, 2017, 

no pet.) (mem. op.).

Based on the record before us, we conclude that the matters raised by the 

HOA’s lawsuit that arise from the breach of a private contract, the Declaration, are 

private in nature and have no public relevance beyond the pecuniary interests of the 

7 We further note that most of the opinions the Ngos rely upon are also not binding 

upon this court. See, e.g., Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865 (Tex. 

App.—Austin 2018, pet. denied); Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 

520 S.W.3d 191 (Tex. App.—Austin 2017, pet. dism’d); Green v. Port of Call 

Homeowners Ass’n, No. 03-18-00264-CV, 2018 WL 4100855 (Tex. App.—Austin 

Aug. 29, 2018, no pet.) (mem. op.); Abatecola v. 2 Savages Concrete Pumping, 

LLC, No. 14-17-00678-CV, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.] 

June 26, 2018, pet. denied) (mem. op.); Neyland v. Thompson, No. 03-13-00643-

CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet.) (mem. op.).
14

Ngos, the HOA, and the other HOA members. See Creative Oil & Gas, 591 S.W.3d

at 136. Therefore, we conclude that the Ngos did not meet their burden of showing, 

by a preponderance of the evidence, that the HOA’s suit was based on, relates to, or 

is in response to the Ngos’ exercise of their right to free speech. See TEX. CIV. PRAC.

& REM. CODE § 27.005(b)(1).

Having done so, we next decide whether the Ngos met their burden to show 

that the HOA’s suit is “based on, relates to, or is in response” to an exercise of the 

Ngos’ right of freedom of association.

2. Right of Association

At the time to this suit was filed, the TCPA defined the “[e]xercise of the right 

of association” as a “communication between individuals who join together to 

collectively express, promote, pursue, or defend common interests.” Id. § 27.001(2).

An en banc panel of this court held in Gaskamp that the right of association

“with respect to the pre-amendment version of the TCPA, the proper definition of 

‘common’ in the phrase ‘common interests’ is ‘of or relating to a community at large: 

public.’” 596 S.W.3d at 476. Relying upon this interpretation, this court held that the 

defendants did not meet their burden of showing by a preponderance of the evidence 

that the suit was based on, related to, or was in response to an exercise of their right 

of association because the conduct and communications at issue, which involved 

misappropriating plaintiff’s trade secrets and conspiring to commit related torts, 
15

“benefitted only the five alleged tortfeasors” and there were no “allegations that the 

tortfeasors ‘join[ed] together to collectively express, promote, pursue, or defend’ any 

public or community interests.” Id.

Relying upon Gaskamp, a panel of this court recently held that 

communications made between private parties regarding an investigation into 

possible overbilling in violation of a private contract were not protected 

communications because there was no indication in the record that the investigation 

of the billing practices “involved any manner of public or citizen participation.”

Newpark Mats, 605 S.W.3d at 679–80. We explained that these communications 

involved “a private contract dispute between two private parties and the only party 

who would benefit from this investigation is [the plaintiff], and possibly the 

customers [the plaintiff] had overbilled.” Id. at 680.

The Ngos argue that there are two exercises of associational rights at issue in 

this case, namely, their right to “join together” with the other HOA members: (1) “in 

furtherance of their common interest to preserve and advance the welfare of the 

neighborhood in which they live;” and (2) “to promote, pursue, or defend their 

common interests of enjoying the free use of their property.” According to the Ngos, 

the written applications they submitted to the HOA’s Modifications Committee and 

the related correspondence are protected “communications” between them and other 

HOA members. See TEX.CIV. PRAC. & REM.CODE § 27.001(2) (defining “[e]xercise 
16

of the right of association” as “communication between individuals who join 

together to collectively express, promote, pursue, or defend common interests”).

The Declaration is a private contract between private parties intended to 

protect the parties’ financial interests in their respective properties, including the

common properties shared by all the HOA members. There is no indication in the 

record that the Ngos and other HOA members’ shared interests in “preserv[ing] and 

advanc[ing] the welfare of the neighborhood in which they live” or “enjoying the 

free use of their [private] property,” involve any manner of public or citizen 

participation. See Newpark Mats, 605 S.W.3d at 680; see also Gaskamp, 596 S.W.3d

at 476. Indeed, the petition is not based on the Ngos joining “together” with the 

HOA or other HOA members. On the contrary, the basis of the petition is that the 

Ngos have violated the Declaration and are in direct conflict with the HOA. 

The opinions that the Ngos rely upon were issued before Gaskamp and 

Newpark Mats and/or are factually distinguishable.8 For example, unlike in the 

supreme court’s opinion in Adams, there are no allegations of malfeasance or 

criminality by any party involved in this case. See Adams, 547 S.W.3d at 893

(business disparagement suit based on blog posts and emails in which homeowner 

8 We further note that the other opinions that the Ngos rely upon are not binding upon 

this court. See, e.g., Grant, 556 S.W.3d 865; Elite Auto Body LLC, 520 S.W.3d 191; 

Green, 2018 WL 4100855; Abatecola, 2018 WL 3118601; Neyland, 2015 WL 

1612155.
17

implied that prior owner of neighborhood developer is felon, developer engaged in

illegal or improper business practices, homeowner’s association was being 

controlled by alleged felon, and homeowner’s association had been cutting down 

trees without city permits and violated city ordinances). Here, the record and the 

pleadings reflect that the Ngos’ dispute with the HOA is essentially a contract 

dispute. This court’s opinion in Fawcett v. Rogers, 492 S.W.3d 18, 24 (Tex. App.—

Houston [1st Dist.] 2016, no pet.), which was issued prior to the en banc court’s 

opinion in Gaskamp, was based on the presumption that a “common interest” does 

not require any degree of public involvement—reasoning that Gaskamp implicitly 

disavowed. See Gaskamp, 596 S.W.3d at 476 (holding “common interest” means “of 

or relating to a community at large: public,” and concluding that movants had not 

met their burden to prove that suit “was based on, relates to, or is in response to an 

exercise of their right of association” because there were “no allegations that the 

tortfeasors ‘join[ed] together to collectively express, promote, pursue, or defend’ any 

public or community interests,” as opposed to private interest shared only between 

tortfeasors).

Based on the record before us, we conclude that the Ngos did not meet their 

burden of showing, by a preponderance of the evidence, that the HOA’s suit was 

based on, relates to, or is in response to the Ngos’ exercise of their right of 

association as that term is used in the TCPA. See TEX. CIV. PRAC. & REM. CODE
18

§ 27.005(b)(3). The trial court did not err by denying the Ngos’ motion to dismiss 

pursuant to the TCPA because the Ngos did not establish that the TCPA applied. 

We overrule the Ngos’ first issue.9

Conclusion

We affirm the trial court’s interlocutory order denying the Ngos’ motion to 

dismiss.

Russell Lloyd

Justice

Panel consists of Justices Keyes, Lloyd, and Landau.

Landau, J., dissenting.

9 Having determined that the Ngos did not meet their initial burden to establish the 

application of the TCPA, we do not need to address the issue presented in the Ngos’

second issue—whether the HOA established by clear and specific evidence a prima 

facie case for each element of its breach-of-contract claim.