Motion for Rehearing Denied; Affirmed; Opinion of July 24, 2014
Withdrawn, and Substitute Opinion filed September 25, 2014.




                             In The

               Fourteenth Court of Appeals

                       NO. 14-12-00967-CV

   KINGS RIVER TRAIL ASSOCIATION, INC. AND KINGS RIVER
     VILLAGE COMMUNITY ASSOCIATION, INC., Appellants
                               V.

          PINEHURST TRAIL HOLDINGS, L.L.C., Appellee


                       NO. 14-12-01008-CV

         PINEHURST TRAIL HOLDINGS, L.L.C., Appellant

                               V.

  KEVIN DONNELLAN, MICHAEL DOLE, OLLIE DOLE, CARROLL
 KITE, JOAN KITE, GARY LEVICKY, EDWARD MILLER, SHIRLEY
   MILLER, ROBERT MORGAN, SYLVIA MORGAN, JOHN PING,
MARSHA PING, JAMES POLK, DEBRA POLK, TERRY RAATZ, LINDA
RAATZ, DOUGLAS SMITH, PAMELA SMITH, SIDNEY SMITH, RUTH
 SMITH, JOSEPH ZOLMAN, MARCEY ZOLMAN, DARIN LASATER,
 KRISTI LASATER, KINGS RIVER TRAIL ASSOCIATION, INC. AND
KINGS RIVER VILLAGE COMMUNITY ASSOCIATION, INC., Appellees
                      On Appeal from the 152nd District Court
                               Harris County, Texas
                         Trial Court Cause No. 2010-30418

                                                                         1
                   SUBSTITUTE OPINION
       These consolidated appeals are from a judgment disposing of various claims
between a company that purchased property on which golf courses and
undeveloped acreage were located, on one side, and owners of nearby homes and
two homeowners’ associations on the other side. In the appeal by the homeowners’
associations, we address whether the trial court erred in granting summary
judgment as to the associations’ claims that they adversely possessed certain biking
and hiking trails. We also determine whether we may address the merits of the
associations’ appellate issue regarding certain requests for declaratory relief
despite the associations’ failure to request a record of all trial evidence and their
failure to submit a statement of points or issues to be presented on appeal, as
required by Texas Rule of Appellate Procedure 34.6(c). In the appeal by the owner
of the undeveloped acreage, we consider whether the trial court abused its
discretion by failing to award attorney’s fees under the Declaratory Judgments Act
and whether this court should award just damages under Texas Rule of Appellate
Procedure 45 based on a frivolous appeal. We affirm the trial court’s judgment but
deny the request for frivolous-appeal damages.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Kings River Trail Association, Inc. and Kings River Village Community

1
 We deny the motion for rehearing filed by Kings River Trail Association, Inc. and Kings River
Village Community Association, Inc.; we withdraw the opinion issued in this case on July 24,
2014, and issue this substitute opinion.

                                              2
Association, Inc. (collectively the “Associations”) and various individuals filed suit
against Pinehurst Trail Holdings, L.L.C. (“Pinehurst”). Eventually the individual
plaintiffs were Kevin Donnellan, Michael Dole, Ollie Dole, Carroll Kite, Joan
Kite, Gary Levicky, Edward Miller, Shirley Miller, Robert Morgan, Sylvia
Morgan, John Ping, Marsha Ping, James Polk, Debra Polk, Terry Raatz, Linda
Raatz, Douglas Smith, Pamela Smith, Sidney Smith, Ruth Smith, Joseph Zolman,
Marcey Zolman, Darin Lasater, and Kristi Lasater (collectively the “Individual
Plaintiffs”).

       The Associations and the Individual Plaintiffs (hereinafter collectively the
“Plaintiffs”) alleged that the property at issue in this lawsuit lies within
subdivisions known as Pinehurst of Atascocita, Island Greens, and Kings River
Village and that within this area were three nine-hole golf courses, as well as
roughly eighty-five acres of land originally designated for golf course use, of
which 53.075 acres (hereinafter the “Property”) were deed restricted to golf course
use only when Pinehurst purchased the Property. The Plaintiffs asserted that each
of the Individual Plaintiffs owned a single-family residence built on a lot in this
area that is immediately adjacent to one of the three golf courses or to the
undeveloped eighty-five acres (hereinafter the “Undeveloped Acreage”). In 2009,
Pinehurst purchased the property on which the three nine-hole golf courses were
located, as well as the Undeveloped Acreage.

       In their live pleading, the Plaintiffs alleged that each of the Associations
owns property immediately adjacent to the Undeveloped Acreage or has
maintained greenbelt trails on this property (hereinafter the “Trails”) and that each
of the Associations has acquired title to part of the Undeveloped Acreage by
adverse possession. The Plaintiffs asserted various claims and sought damages and
injunctive relief. They also sought a declaratory judgment that (1) the Undeveloped

                                          3
Acreage is part of a golf course and country club scheme or general plan creating
an implied covenant or equitable servitude in favor of the Plaintiffs that is binding
on Pinehurst; (2) the Undeveloped Acreage is subject to a “Golf Course Use Only”
restriction; (3) the “Amendment to Correction Special Warranty Deed” executed in
2009 (hereinafter “2009 Amendment”), which purports to alter a use restriction on
the Property, is an invalid deed; and (4) the Associations have acquired title to
portions of Pinehurst’s property through adverse possession.

       The trial court granted Pinehurst’s no-evidence motion for summary
judgment as to the Associations’ adverse-possession claims and fraud claims. The
trial court denied various summary-judgment motions, including a summary-
judgment motion in which the Plaintiffs asserted that the 2009 Amendment was
invalid. The Plaintiffs’ remaining claims were tried in a two-week jury trial. The
jury found, among other things, that there was no general plan or scheme of
development whereby the Property was restricted to golf course use for the benefit
of adjacent subdivided lot owners.

       The Plaintiffs filed a “Motion for Entry of Judgment,” in which they asserted
that they were entitled as a matter of law to a declaratory judgment that the
Undeveloped Acreage is subject to a “Golf Course Use Only” restriction and that
the 2009 Amendment is invalid. The trial court impliedly denied this motion when
it rendered its final judgment. In this judgment, the trial court determined that it
would not be equitable or just to award attorney’s fees, and the court did not award
attorney’s fees under the Declaratory Judgments Act to any party. The
Associations and Pinehurst appealed. The Individual Plaintiffs did not appeal.2



2
  Before the trial began, Plaintiffs Carroll Kite and Joan Kite nonsuited their claims against
Pinehurst with prejudice, and this nonsuit was reflected in the trial court’s final judgment.

                                              4
                               II. ISSUES AND ANALYSIS

      In their appeal, the Associations assert the trial court improperly (1) granted
Pinehurst’s no-evidence motion for summary judgment as to the Associations’
adverse-possession claims; (2) denied the Associations’ no-evidence motion for
summary judgment as to the alleged invalidity of the 2009 Amendment; and (3)
denied the Associations’ requests for a declaratory judgment that the Undeveloped
Acreage is subject to a “Golf Course Use Only” restriction and that the 2009
Amendment is an invalid deed. In its appeal, Pinehurst asserts the trial court
abused its discretion under the Declaratory Judgments Act in failing to award
Pinehurst its reasonable and necessary attorney’s fees. Pinehurst also asserts that it
should be awarded damages against the Associations under Texas Rule of
Appellate Procedure 45 because the Associations’ appeal is frivolous. This court
has consolidated these two appeals.

      A.     Was Pinehurst’s summary-judgment motion                    as   to   the
             Associations’ adverse-possession claims ripe?
      For the first time on appeal, the Associations assert that Pinehurst’s
summary-judgment motion was not ripe because it sought dismissal of the
Associations’ adverse-possession claims before the Associations had asserted any
such claims. Pinehurst asserted that there was no evidence as to essential elements
of the Associations’ adverse-possession claims. An inquiry as to whether these no-
evidence summary-judgment grounds were ripe for determination focuses on
whether the these grounds involve uncertain or contingent future events that may
not occur as anticipated or may not occur at all.        See Patterson v. Planned
Parenthood of Houston & Southeast Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998).
The ripeness doctrine serves to avoid premature adjudication.          See id.    The
Associations assert that these no-evidence grounds lacked ripeness because the

                                          5
Associations were not asserting any adverse-possession claims when these grounds
were asserted.

      When Pinehurst asserted these no-evidence grounds, the Associations had
alleged in their Third Amended Petition (their live pleading at that time) that each
of the Associations had acquired title to part of the Undeveloped Acreage by
adverse possession. Because no special exceptions were sustained against the
Associations’ live petition, this court construes that pleading liberally to include all
claims that reasonably may be inferred from the language used in the petition, even
if the petition does not state all the elements of the claim in question. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).
Assessing the Associations’ Third Amended Petition under this construction, we
conclude that the Associations were asserting adverse-possession claims against
Pinehurst when Pinehurst filed its no evidence motion against these claims. See id.

      In their summary-judgment response, the Associations did not state that they
were not asserting any adverse-possession claims. On the contrary, the
Associations asserted that Pinehurst was wrong to allege that the Plaintiffs have no
evidence to support their adverse-possession claims. The Associations asserted
that they had adversely possessed portions of Pinehurst’s property and that the trial
court should deny Pinehurst’s summary-judgment motion. Before the trial court
ruled on this summary-judgment motion, the Plaintiffs filed their Sixth Amended
Petition, in which they expressly requested that the trial court render a declaratory
judgment that the Associations have acquired title to portions of Pinehurst’s
property through adverse possession.

      Concluding that the issues raised by Pinehurst’s no-evidence motion were




                                           6
ripe, we now turn to address the merits of the Associations’ first issue. 3 See
Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 278–79
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that claims were ripe).

       B.     Did the trial court err in granting summary judgment as to the
              Associations’ adverse-possession claims?
       In their first issue, the Associations assert that the trial court erred in
granting Pinehurst’s no-evidence motion for summary judgment as to the
Associations’ adverse-possession claims. In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential elements attacked in the
no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–
08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary
judgment does not specify the grounds upon which the trial court relied, we must
affirm the summary judgment if any of the independent summary-judgment
grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
3
  The Associations also assert that, because Pinehurst’s no-evidence motion was not ripe, to
challenge the Associations’ assertion that they have a claim to the Trails by adverse possession,
Pinehurst would be required to assert a trespass-to-try-title counterclaim, as to which Pinehurst
would have had the burden of proof. A premise of this argument is that Pinehurst’s no-evidence
motion was not ripe. Because the motion was ripe, we need not address this argument.

                                               7
       The Associations asserted that they adversely possessed certain biking and
hiking trails on the Undeveloped Acreage. We presume for the sake of argument
that each of the Associations asserted that it had adversely possessed different parts
of the Trails in the Undeveloped Acreage.4 For there to be an adverse possession
of a part of the Trails by one of the Associations, the entity in question must have
actually and visibly appropriated that part of the Trails and commenced and
continued this appropriation under a claim of right that is inconsistent with and
hostile to the claim of another person. See Tex. Civ. Prac. & Rem. Code Ann.
§16.021(1) (West 2014); Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006). Each
of the Associations must have appropriated that part of the Trails with the intent to
claim that part of the Undeveloped Acreage as its own. See Tran, 213 S.W.3d at
914. Joint use is not enough, because the appropriation must be of such character
as to indicate unmistakably an assertion of a claim of exclusive ownership by each
of the Associations to the part of the Trails in question. See id. Mere occupancy of
land without any intent to appropriate it does not support adverse possession. See
id. at 915. In its summary-judgment motion, Pinehurst asserted, among other
things, that there was no evidence that either of the Associations actually and
visibly appropriated any portion of Pinehurst’s property under a claim of right. In
response, the Associations submitted an affidavit from Mary Ann Lapeze, the Vice
President of the Board of Trustees for Kings River Trail Association, Inc.
(hereinafter the “Trail Association”), who testified as follows:

    • “It is our responsibility to maintain and preserve the trails within our
       community, which were established by Friendswood Development
       Company. . . .”
    • The trails border Kings River Village on the east side of West Lake Houston
4
 Maps attached to the summary-judgment affidavits of Amy Bures Danna and Mary Ann Lapeze
are not entirely clear, but they indicate that each of the Associations asserts that it has adversely
possessed different portions of the Trails.

                                                 8
       Parkway and are for the benefit of the homeowners.
   • Since as early as 1994, the Trail Association has maintained a portion of the
     property that abuts the curb line on West Lake Houston Parkway between
     Kings River Park Way and Upper Lake Drive and inward for seventy-five
     feet.
   • It was intended that the Trail Association be deeded these trails upon the
     inception of the Trail Association, when the Trail Association began
     maintaining these trails.
   • It was later discovered that title to the trails did not get deeded to the Trail
     Association as intended.
   • Despite learning this news several years later, the Trail Association
     continued to maintain these trails by “mowing, watering, providing
     electricity for street lights, and repairing hazardous situations.” The Trail
     Association continues to maintain these trails.
   • In 2009, Plaintiffs had over ten years’ of open use of these trails. Attached
     to Lapeze’s affidavit is a map of the property the Trail Association maintains
     as its own.
      The Associations also submitted an affidavit from Amy Bures Danna, the
Vice President of the Board of Trustees for Kings River Village Community
Association, Inc. (hereinafter the “Village Association”), who testified as follows:

   • Part of the duty of the Village Association is to maintain common areas
     going east from West Lake Drive, extending from the curb inward for
     seventy-five feet and going east from West Lake Houston Parkway
     alongside Kings Park Way.
   • Since 1994, the Village Association has maintained this property.
   • It was intended that the Village Association be deeded these trails upon the
     inception of the Village Association, when the Village Association began
     maintaining these trails.
   • It was later discovered that title to the trails did not get deeded to the Village
     Association as intended.
   • Despite learning this news several years later, the Village Association
     continued to maintain these trails by “mowing, watering, providing
     electricity for street lights, and repairing hazardous situations.” The Village
     Association continues to maintain these trails.
                                          9
    • In 2009, Plaintiffs had over ten years’ of open use of this property. Attached
      to Danna’s affidavit is a map of the property the Village Association
      maintains as its own.
      The summary-judgment evidence also contains various business records of
the Village Association regarding maintenance, as well as a 1998 edition of a
newsletter for Kings River residents that mentioned a plan that was discussed that
included “making the trails with ¼ or ½ mile marks, fitness stations and placing
signs that identify trees and shrubs.” The newsletter refers to an enclosed map
showing “where there are or will be trails or walks provided by the developer as
much as we know at this time.” The summary-judgment evidence also contains
deposition excerpts from the deposition of Joe Stunja, who the Plaintiffs stated was
a principal of Pinehurst, who testifies that (1) there is a greenbelt trail that runs on
the property that Pinehurst owns; (2) Stunja understands that the Trail Association
has maintained that greenbelt since it was created; (3) Stunja is aware that either
the Trail Association or the Village Association maintains the greenbelt trails
“running from West Lake Houston Parkway down Kings Parkway”; and (4) the
original members of the boards of the Trail Association and the Village
Association indicated that there was a commitment by those boards to maintain the
trails “even though it was others[’] property for the benefit of the community.”

      The summary-judgment evidence reflects that each of the Associations has
been maintaining certain trails on Pinehurst’s property since 1994. The evidence
also indicates that the members of each of the Associations use these trails. The
evidence indicates that, for the first several years, each of the Associations
believed that it held title to the trails that each was maintaining. After each of the
Associations learned that it did not hold title to the trails, each of the Associations
continued to maintain the respective trails. Our record contains no evidence that
either of the Associations excluded Pinehurst or any predecessor in title from using

                                          10
any of the trails or that either of the Associations intended to exclude Pinehurst or
any predecessor in title from such use.5 After reviewing all of the summary-
judgment evidence under the applicable standard of review, we conclude that this
evidence does not raise a genuine issue of fact as to whether the Trail Association
or the Village Association actually and visibly appropriated any portion of
Pinehurst’s property under a claim of right.6 See Tran, 213 S.W.3d at 914–15.
Therefore, the trial court did not err in granting Pinehurst’s no-evidence motion for
summary judgment as to the Associations’ adverse-possession claims. 7
Accordingly, we overrule the Associations’ first issue.

       C.      May this court review the trial court’s order denying the
               Associations’ summary-judgment motion?
       In their second issue, the Associations assert that the trial court erred in
denying their no-evidence motion for summary judgment as to the alleged
invalidity of the 2009 Amendment. In this motion, the Associations asserted they
were entitled to a summary judgment declaring that the 2009 Amendment is
invalid and unenforceable as a matter of law. The trial court signed an order
denying this summary-judgment motion, and the Associations’ claims for

5
  The Associations also cite Chittim v. Auld. See 219 S.W.2d 702 (Tex. App.—San Antonio
1949, writ ref’d n.r.e.). But, the facts of Chittum are materially different from the facts shown by
the summary-judgment evidence in today’s case. See id. at 704–07.
6
  The Associations cite DeArman v. Surls. See 618 S.W.2d 88, 93 (Tex. Civ. App.—Tyler 1981,
writ ref’d n.r.e.), a case in which the Tyler Court of Appeals held that evidence of the appellants’
repair of fences, cutting of a few sticks of pulpwood, using and repairing the roadway, giving
permission to others to hunt, and permitting their livestock to graze on the disputed tract, under
the circumstances disclosed by the record, did not establish an actual and visible appropriation of
the disputed land. See id. The DeArman court held that the evidence did not establish adverse
possession as a matter of law. See id. The DeArman court did not hold that there was a fact
issue as to adverse possession, though it did state in an obiter dictum that, at most, the evidence
would only be sufficient to raise a fact issue. See id. The DeArman case is not on point.
7
  We need not and do not address whether declaratory-judgment claims were a proper vehicle for
resolving the Associations’ adverse-possession claims.

                                                11
declaratory relief in this regard proceeded to a jury trial. Therefore, on appeal we
may not review the trial court’s denial of the Associations’ summary-judgment
motion. See 2001 Trinity Fund LLC v. Carrizo Oil & Gas, Inc., 393 S.W.3d 442,
456, n.6 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); Houston v. Ludwick,
No. 14-09-00600-CV, 2010 WL 4132215, at *5 (Tex. App.—Houston [14th Dist.]
Oct. 21, 2010, pet denied) (mem. op.). Thus, we do not consider the Associations’
second issue.

      D.     Do the Associations have standing to seek a declaratory judgment
             that the Undeveloped Acreage is subject to a restriction and that
             the 2009 Amendment is invalid?
      The Associations’ third issue involves their requests for a declaratory
judgment that the Undeveloped Acreage is subject to a “Golf Course Use Only”
restriction and that the 2009 Amendment is an invalid deed. Pinehurst asserts that
the Associations lack standing to seek these declarations because the Associations
have no privity of contract or privity of estate with any of the parties to the 1993
Correction Special Warranty Deed or with any of the parties to the 2009
Amendment, which purports to amend the 1993 deed.

      The issue of standing focuses on whether a party has a sufficient relationship
with the lawsuit so as to have a “justiciable interest” in its outcome. Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). A plaintiff has
standing when it is personally aggrieved. Id. The standing doctrine requires that
there be a real controversy between the parties that actually will be determined by
the judicial declaration sought. Id. at 849. The Associations have organizational
standing if (1) their respective members otherwise would have standing to sue in
their own right; (2) the interests they seek to protect are germane to their purpose;
and (3) neither the claims asserted nor the relief requested requires the


                                         12
participation of individual members in the lawsuit. See Texas Ass’n of Business v.
Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). We conclude that each
of the Associations has standing to seek a declaratory judgment that the
Undeveloped Acreage is subject to a “Golf Course Use Only” restriction or that the
2009 Amendment is an invalid deed. See Bank of New York Mellon v. Soniavou
Books, LLC, 403 S.W.3d 900, 906 n.2 (Tex. App.—Houston [14th Dist.] 2013, no
pet.); Smalley v. Smalley, 399 S.W.3d 631, 636 (Tex. App.—Houston [14th Dist.]
2013, no pet.).

      E.     Did the trial court err in denying the Associations’ requests for a
             declaratory judgment that the Undeveloped Acreage is subject to
             a “Golf Course Only” restriction and that the 2009 Amendment is
             invalid?
      After the trial court denied the Associations’ summary-judgment motion as
to the alleged invalidity of the 2009 Amendment, the trial court did not sever any
claims or order a separate trial as to any claims. Instead, the pending claims
proceeded to a jury trial, including the claims in which the Associations requested
declaratory judgments that the Undeveloped Acreage is subject to a “Golf Course
Use Only” restriction and that the 2009 Amendment is invalid (hereinafter
collectively the “Declaratory Judgment Requests”). The trial lasted two weeks,
and more than two dozen witnesses testified.       The jury did not answer any
questions regarding any of the Declaratory Judgment Requests, and no party
requested that any such questions be submitted to the jury.        After trial, the
Associations filed a “Motion for Entry of Judgment,” in which they asserted that
they were entitled as a matter of law to have the Declaratory Judgment Requests
granted. The trial court impliedly denied this motion when it rendered its final
judgment. The Associations also filed a motion for new trial, in which they
asserted that the evidence conclusively proved that the 2009 Amendment is invalid

                                        13
and that the trial court erred in denying their request for a declaration that this
amendment is invalid. The trial court denied this motion.

      In their third issue, the Associations assert that the trial court erred in
denying the Declaratory Judgment Requests. In this context, for the trial court to
have erred, the evidence at trial must have proved conclusively the Associations’
entitlement to this declaratory relief. See Tex. Civ. Prac. & Rem. Code Ann. §
37.007 (West 2014) (stating that, if a proceeding under the Texas Declaratory
Judgments Act involves the determination of a fact issue, the issue may be tried
and determined in the same manner as issues of fact are tried and determined in
other civil actions); Tex. R. Civ. P. 279 (stating that “[u]pon appeal all independent
grounds of recovery or of defense not conclusively established under the evidence
and no element of which is submitted or requested are waived”); DiGiuseppe v.
Lawler, 269 S.W.3d 588, 598–99 (Tex. 2008) (noting that, under Texas Rule of
Civil Procedure 279, if no element of an independent ground of recovery is
included in the jury charge without request or objection, the ground of recovery is
waived unless the ground of recovery is conclusively established by the evidence);
Hirschfeld Steel Co., Inc., 201 S.W.3d at 287–88 (holding that party could not
recover under breach-of-oral-contract ground of recovery because no element of
this ground of recovery was submitted to the jury or requested and because the trial
evidence did not conclusively prove this ground).

      The Associations requested the court reporter to prepare a partial reporter’s
record from the trial. The record indicates that more than two dozen witnesses
testified at trial, but our appellate record contains the trial testimony of only nine
witnesses.   The record does not contain a reporter’s record reflecting the
proceedings during voir dire, opening statements, closing statements, the charge
conference, or any bench conferences other than those that occurred during the
                                         14
examination of the nine witnesses whose testimony is included in the record. The
record contains all of the trial exhibits.

      Our record does not contain any written request from the Associations to the
court reporter to prepare the reporter’s record. See Tex. R. App. P. 34.6(b). On
appeal, Pinehurst asserts that the Associations never filed a request for the
reporter’s record with the trial court, never sent a copy to Pinehurst’s counsel, and
never made a written statement of the points or issues to be presented on appeal, as
the rules prescribe in an appeal with a partial reporter’s record. See Tex. R. App.
P. 34.6(b), (c). In their reply brief, the Associations indicate that they did not
provide a statement of appellate points or issues to be presented on appeal, either
with their request for the reporter’s record or afterwards.

      We do not have all the evidence from the trial. The Associations have not
followed the steps set forth in the Texas Rules of Appellate Procedure for an
appeal based on a partial reporter’s record. See TEX. R. APP. P. 34.6(c). In sum,
the record does not contain any written request by the Associations for a partial
reporter’s record, nor does the record reflect that the Associations submitted a
statement of points or issues to be presented on appeal, as required by Rule
34.6(c)(1).

      A late-filed statement of points or issues may support the presumption that
the record is complete unless the appellee demonstrates that the late filing of the
statement adversely affected the appellee. See Bennett v. Cochran, 96 S.W.3d 227,
229–30 (Tex. 2002) (per curiam); Burns v. Mullin, 14-12-00966-CV, 2013 WL
5631031, at *1–2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013, no pet.) (mem.
op). Nonetheless, when an appellant completely fails to file a statement of points
or issues, an appellate court must presume that the omitted portions of the record


                                             15
are relevant to the disposition of the appeal and that they support the trial court’s
judgment. See Bennett, 96 S.W.3d at 229–30; Burns, 2013 WL 5631031, at *1–2.

      The Associations assert that they presented adverse-possession claims and
sought to have the 2009 Amendment declared invalid, while the Individual
Plaintiffs sought to impose implied restrictions on the existing golf courses. But,
in the live pleading at the time the Plaintiffs went to trial, all Plaintiffs asserted all
claims, except that there was no allegation that the Individual Plaintiffs adversely
possessed any property. The Associations assert that the claims seeking to impose
restrictions on the existing golf courses became moot after trial and that Pinehurst
is aware that these claims are moot. The Associations claim that they made clear
that a limited appeal would follow when only they appealed and the Individual
Plaintiffs did not. The Associations argue that Pinehurst is well aware of the
difference in the claims asserted by the two subsets of Plaintiffs and that Pinehurst
was aware that the Associations had requested and filed the entire reporter’s record
relating to their claims.     But, as noted above, other than as to the adverse-
possession claims (which were disposed of on summary judgment and are not the
subject of the third issue), the live petition does not reflect that the Associations
were asserting different claims from the Individual Plaintiffs.                That the
Associations were the only Plaintiffs that appealed does not excuse the
Associations from the requirement of filing a statement of points or issues for any
appeal on a partial record. See Bennett, 96 S.W.3d at 229–30; Burns, 2013 WL
5631031, at *1–2. Even if, contrary to the live petition, the Associations had
asserted separate claims from those asserted by the Individual Plaintiffs, that would
not have given Pinehurst notice of the points or issues to be presented by the
Associations on appeal.

      The Associations also cite Segrest v. Segrest and assert that their third issue

                                           16
involves a strict question of law that does not require a review of evidence. See
649 S.W.2d 610, 611–12 (Tex. 1983).               The Segrest court concluded that a
reporter’s record is not necessary on appeal for adjudication of matters that are
strictly questions of law that do not require reference to the evidence at trial. See
id.; Sam Houston Hotel, L.P. v. Mockingbird Restaurant, Inc., 191 S.W.3d 720,
721 (Tex. App.—Houston [14th Dist.] 2006, no pet.). See also Tex. R. App. P.
34.1 (stating that “[t]he appellate record consists of the clerk’s record and, if
necessary to the appeal, the reporter’s record”). The Segrest court held that a
reporter’s record was not necessary because the case involved matters that were
strictly questions of law that did not require reference to the evidence. See Segrest,
649 S.W.2d at 611–12. The high court addressed whether a decision of the United
States Supreme Court applied retroactively to divorce decrees that had become
final before the high court decided the case. See id. at 611–13.

         Under their third issue on appeal, the Associations assert the following:

             • The Associations seek “an extension of current legal guidelines.”
             • Pinehurst “glosses over the overwhelming facts in this case . . . .” 8
             • “Conclusions of law . . . may be reviewed to determine their
               correctness based upon the facts . . .[t]his is what [the Associations]
               now come to the Court of Appeals to seek . . . .”
             • “[T]he law regarding restrictive covenants in a subdivision should be
               extended to the factual situation presented in the case.”
             • A developer’s unilateral right to impose any restrictions it chooses
               within a subdivision or amend or vacate those restrictions ceases once
               lots are subdivided and sold. And, this legal principle applies to the
               circumstances in this case.
             • Representatives of the Associations testified at trial that the
               restrictions imposed by the 1993 deed were a selling point for
               residential homes in Kings River Village.
8
    (emphasis added).

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The Associations’ argument under their third issue contains numerous citations to
testimonial and documentary evidence from trial contained in the incomplete
reporter’s record, including at least ten citations to trial testimony. We conclude
that the Associations’ third issue does not involve matters that are strictly questions
of law that do not require reference to the evidence at trial. See Segrest, 649
S.W.2d at 611–13; Sam Houston Hotel, L.P., 191 S.W.3d at 720–21. Therefore, a
review of the trial evidence still is necessary. See Sam Houston Hotel, L.P., 191
S.W.3d at 720–21 (holding that appellate issues required reference to the trial
evidence and therefore the case did not fall within the scope of Segrest).

       We do not have a record of all the trial evidence, and the Associations
completely failed to file a statement of points or issues to be presented on appeal.9
Therefore, on appeal, we must presume that the omitted portions of the record are
relevant to the disposition of the appeal and that they support the trial court’s
judgment denying each of the Associations’ Declaratory Judgment Requests.10 See
Bennett, 96 S.W.3d at 229–30; Burns, 2013 WL 5631031, at *1–2. Under this
presumption, we must overrule the Associations’ third issue.




9
  The Supreme Court of Texas has not required strict compliance with all of the provisions of
Texas Rule of Appellate Procedure 34.6; instead the high court has adopted “a more flexible
approach in certain cases.” See Bennett, 96 S.W.3d at 229. Nonetheless, the Bennett court
cautioned that litigants should not view the relaxation of rules in a particular case as endorsing
noncompliance, and the court stated that a complete failure to file a statement of points or issues
to be presented on appeal would not satisfy Rule 34.6 and would not change the presumption that
the omitted portions of the record support the trial court’s judgment. See Bennett, 96 S.W.3d at
229–30; Haut v. Green Cafe Management, Inc., 376 S.W.3d 171, 179–80 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). In the case under review, no statement of points or issues was filed.
10
  This court’s holding in W&F Transportation, Inc. v. Wilhelm is not on point because the case
under review involves a partial reporter’s record that does not contain all of the trial evidence.
See 208 S.W.3d 32, 39 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

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      F.     Does this court lack jurisdiction over Pinehurst’s first issue
             because Pinehurst allegedly failed to appeal as to the Individual
             Plaintiffs?
      In the first issue, Pinehurst asserts that the trial court abused its discretion
under the Declaratory Judgments Act in failing to award Pinehurst its reasonable
and necessary attorney’s fees.      The Associations assert that this court lacks
jurisdiction over this issue because Pinehurst appealed only as to the Associations
and not as to the Individual Plaintiffs. This premise is incorrect. Pinehurst filed a
notice of appeal from the trial court’s judgment, which is sufficient to give this
court jurisdiction over all parties to the judgment, including the Individual
Plaintiffs. See Tex. R. App. 25.1(b) (“The filing of a notice of appeal by any party
invokes the appellate court’s jurisdiction over all parties to the trial court’s
judgment or order appealed from”); Phillips v. Bramlett, 407 S.W.3d 229, 235
(Tex. 2013). Therefore, this court has jurisdiction over Pinehurst’s first issue.

      G.     Did the trial court abuse its discretion by failing to award
             Pinehurst attorney’s fees under the Declaratory Judgments Act?
      Under the Declaratory Judgments Act, the trial court may award reasonable
and necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem.
Code Ann. § 37.009 (West 2014). The jury found a reasonable fee for the
necessary services of Plaintiffs’ attorney as well as for Pinehurst’s attorneys. But,
the trial court determined that it would not be equitable or just to award attorney’s
fees, and the trial court did not award attorney’s fees under the Declaratory
Judgments Act to any party. We review this ruling for an abuse of discretion. See
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Applying this standard, we
conclude that the trial court did not abuse its discretion by failing to award




                                          19
Pinehurst attorney’s fees under the Declaratory Judgments Act. 11                  See United
Interests, Inc. v. Brewington, Inc., 729 S.W.2d 897, 906 (Tex. App.—Houston
[14th Dist.] 1987, writ ref’d n.r.e.). Accordingly, we overrule Pinehurst’s first
issue.

         H.    Should this court award Pinehurst damages under Texas Rule of
               Appellate Procedure 45?
         In its second issue, Pinehurst asserts that this court should award Pinehurst
just damages against the Associations under Texas Rule of Appellate Procedure
45, entitled “Damages for Frivolous Appeals in Civil Cases,” because the
Associations’ appeal is frivolous. See Tex. R. App. P. 45. This court may award
just damages under Rule 45 if, after considering everything in its file, this court
makes an objective determination that the appeal is frivolous.                   Glassman v.
Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (en banc). To determine whether an appeal is objectively frivolous, this
court reviews the record from the viewpoint of the advocate and decides whether
the advocate had reasonable grounds to believe the case could be reversed. Id.
But, Rule 45 does not mandate that this court award just damages in every case in
which an appeal is frivolous. Id. The decision to award such damages is a matter
within this court’s discretion, which this court exercises with prudence and caution
after careful deliberation. Id. We conclude that damages under Rule 45 are not
warranted in today’s case. Accordingly, we overrule Pinehurst’s second issue.




11
   Approximately three months before the Associations filed their opening brief, Pinehurst filed
and served a written request for a partial reporter’s record including a statement of points or
issues to be presented on appeal. Under precedent from the Supreme Court of Texas, Texas Rule
of Appellate Procedure 34.6(c) applies and we presume that the partial reporter’s record
designated by Pinehurst constitutes the entire record for purposes of reviewing the stated points
or issues. See Tex. R. App. P. 34.6(c); Bennett, 96 S.W.3d at 228–30.

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                               III.   CONCLUSION
      The issues raised by Pinehurst’s no-evidence motion were ripe, and the trial
court did not err in granting Pinehurst’s no-evidence motion for summary
judgment as to the Associations’ adverse-possession claims. Because the trial
court denied the Associations’ summary-judgment motion seeking a declaration
that the 2009 Amendment is invalid, and because the Associations’ claims for this
declaratory relief proceeded to a jury trial, this court may not review the trial
court’s denial of this summary-judgment motion. The Associations have standing
to seek a declaratory judgment that the Undeveloped Acreage is subject to a “Golf
Course Use Only” restriction and that the 2009 Amendment is an invalid deed.

      We do not have a record of all the trial evidence, and the Associations failed
to file a statement of points or issues to be presented on appeal. Therefore, we are
obliged to presume that the omitted portions of the record are relevant to the
disposition of the appeal and that they support the trial court’s judgment denying
each of the Associations’ Declaratory Judgment Requests.

       The trial court did not abuse its discretion by failing to award Pinehurst
attorney’s fees under the Declaratory Judgments Act. Because we conclude that
damages under Rule 45 are not warranted, Pinehurst’s request for this relief is
denied.

      The trial court’s judgment is affirmed.



                                      /s/       Kem Thompson Frost
                                                Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison.



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