A. 11. B. 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. They also sought a declaratory judgment that (1) the Undeveloped 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. 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. 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. 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). 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. 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? It was later discovered that title to the trails did not get deeded to the Village Association as intended. Because we conclude that damages under Rule 45 are not warranted, Pinehurst's request for this relief is denied. The evidence also indicates that the members of each of the Associations use these trails. 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. 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. 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. In 2009, Pinehurst purchased the property on which the three nine-hole golf courses were located, as well as the Undeveloped Acreage. The trails border Kings River Village on the east side of West Lake Houston Parkway and are for the benefit of the homeowners. 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. 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. A plaintiff has standing when it is personally aggrieved. The record contains all of the trial exhibits.
Because the motion was ripe, we need not address this argument. 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).
See Tex. See Bennett v. Cochran, 96 S.W.3d 227, 22930 (Tex.2002) (per curiam); Burns v. Mullin, 141200966CV, 2013 WL 5631031, at *12 (Tex.App.-Houston [14th Dist.] The DeArman case is not on point. 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. 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. The ripeness doctrine serves to avoid premature adjudication. See Bennett, 96 S.W.3d at 22930; Burns, 2013 WL 5631031, at *12. The Associations asserted that they adversely possessed certain biking and hiking trails on the Undeveloped Acreage. 10. 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. The jury found a reasonable fee for the necessary services of Plaintiffs' attorney as well as for Pinehurst's attorneys. See id. See Tex.R.App. See 618 S.W.2d 88, 93 (Tex.Civ.App.-Tyler 1981, writ ref'd n.r.e. Our record does not contain any written request from the Associations to the court reporter to prepare the reporter's record. 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. denied); Houston v. Ludwick, No. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). 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 granted Pinehurst's no-evidence motion for summary judgment as to the Associations' adverse-possession claims and fraud claims. 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 examination of the nine witnesses whose testimony is included in the record. 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. Our record contains no evidence that either of the Associations excluded Pinehurst or any predecessor in title from using 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 91415. 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. See id. 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. 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 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. ; we withdraw the opinion issued in this case on July 24, 2014, and issue this substitute opinion. 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. Accordingly, we overrule Pinehurst's second issue. Under the Declaratory Judgments Act, the trial court may award reasonable and necessary attorney's fees as are equitable and just.
It was later discovered that title to the trails did not get deeded to the Trail Association as intended. 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. 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. Under this presumption, we must overrule the Associations' third issue. See Tex.R.App. 3. at 70407. 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. But, the facts of Chittum are materially different from the facts shown by the summary-judgment evidence in today's case. The trial lasted two weeks, and more than two dozen witnesses testified. 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. 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. 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. 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. 2006, no pet.) 7. App .-Houston [14th Dist.] See id. The Associations cite DeArman v. Surls. 2006, no pet.). 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. (mem.op). 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. See id. P. 34.6(b). 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. Oct. 21, 2010, pet denied) (mem.op.). at 915. 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. 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. 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, 59899 (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 28788 (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). See 208 S.W.3d 32, 39 (Tex.App.-Houston [14th Dist.] The Associations requested the court reporter to prepare a partial reporter's record from the trial. The Associations claim that they made clear that a limited appeal would follow when only they appealed and the Individual Plaintiffs did not. This premise is incorrect. 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. at 61113. Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.App.-Houston [14th Dist.] 5. The DeArman court held that the evidence did not establish adverse possession as a matter of law. The Individual Plaintiffs did not appeal.2.
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). Civ. Begin typing to search, use arrow keys to navigate, use enter to select. We affirm the trial court's judgment but deny the request for frivolous-appeal damages. FM Props. See id. See Sam Houston Hotel, L.P., 191 S .W.3d at 72021 (holding that appellate issues required reference to the trial evidence and therefore the case did not fall within the scope of Segrest). We need not and do not address whether declaratory-judgment claims were a proper vehicle for resolving the Associations' adverse-possession claims. The Associations and Pinehurst appealed. Please try again. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005). 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.
Johnson v. Brewer & Pritchard, P.C., 73 S.W .3d 193, 20608 (Tex.2002). Prac.
See 649 S.W.2d 610, 61112 (Tex.1983). ), 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. & Rem.Code Ann.
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. Attached to Lapeze's affidavit is a map of the property the Trail Association maintains as its own. 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. 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. 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. 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. The trial court impliedly denied this motion when it rendered its final judgment. See 2001 Trinity Fund LLC v. Carrizo Oil & Gas, Inc., 393 S.W.3d 442, 456, n.6 (Tex. 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. 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. See id. In 2009, Plaintiffs had over ten years' of open use of this property. H. Should this court award Pinehurst damages under Texas Rule of Appellate Procedure 45? 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? This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. 2012, no pet.). The trial court denied this motion. See Bank of New York Mellon v. Soniavou Books, LLC, 403 S.W.3d 900, 906 n.2 (Tex.App.-Houston [14th Dist.] 9. 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). See Tran, 213 S.W.3d at 914. See TEX.
P. 34.6(c); Bennett, 96 S.W.3d at 22830. at 849. The trial court denied various summary-judgment motions, including a summary-judgment motion in which the Plaintiffs asserted that the 2009 Amendment was invalid. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex.1993).
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. Pinehurst asserted that there was no evidence as to essential elements of the Associations' adverse-possession claims. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). 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.. In their summary-judgment response, the Associations did not state that they were not asserting any adverse-possession claims. 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. 2006, no pet.). See Tex.R.App. Id. 2012, pet. P. 34.6(c). See Bennett, 96 S .W.3d at 22930; Haut v. Green Cafe Management, Inc., 376 S.W.3d 171, 17980 (Tex.App.-Houston [14th Dist.] 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. 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. 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. 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. 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). 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. 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. 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. 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 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. 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. See also Tex.R.App. 2013, no pet.).
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). All rights reserved. denied) (en banc). See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). 2. Therefore, on appeal we may not review the trial court's denial of the Associations' summary-judgment motion. 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. The Associations also cite Segrest v. Segrest and assert that their third issue involves a strict question of law that does not require a review of evidence. 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.