Pinehurst Trail Holdings, LLC v. Kevin Donnellan , 447 S.W.3d 439 ( 2014 )


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  • 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    Withdrawn, and Substitute Opinion filed September 25, 2014.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).
    17
    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.)
    18
    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.
    20
    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.
    21