### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00789- CV

P ine F orestInvestm ents G roup, LL C, Appellant

v. The Coun ty of Bastrop, Texas; Th e Bastrop Independ ent School District;

and th e City of Bastrop, Texas, Appellees

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 052 -21 , H ONO RAB LE CARSON TALMADGE CAMP B ELL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Pine For est I nvestments Group, L L C (“the Deve loper” ) complains of the trial court’s final judgme nt in favor of appellee s Ba strop County , Ba strop I nd ep en d en t School District, and the Ci ty of Bastrop (collectively , “the Bastrop Entiti es”)

. The disput e arises out of a
2012 rea l estate contra ct under which the Deve loper soug ht to purcha se 262 lots in the Pine For est Subdivis ion. As explained below, we aff irm the trial court’s judgme nt in part and re v er s e and

rema nd in part for p ro ce ed ings rela ted to the Deve loper’s claims pursuant to the Texas Open Meeting s Act (“ TOMA”)

. See Tex. Gov’t Code §§ 551.001-.146.

F actual and Proc edural Su m m ary This case is g rounded in a l o n g, contentious , and complicated backg round. The fac tual summary below is taken from th e p l ea d i n gs and attache d evidenc e and the testimony and exhibi ts produce d at t he various hear ings be fore the trial cour t. The P ine Forest P roper ty Owner sAssociation (“the Association”) is a n o n - p r o f it c o r p o r ation formed in 1978 to g overn the subdivision, which consists of multipl e “units” of lots—Unit 6, which is wher e the 262 lots in q u es t ion are located, and Units 7 throug h 12. The article s of incorporation state that a v o t i ng member in the Association i s a person or entit y “who is the owner of a f ee interest or of t he equitable title in any lot” in the subdivision and that owner ship is deeme d to have vested “upon delivery of a d u ly executed deed or contra ct” to the buy er. The orig inal Unit 6 Dec lara tion of Covenants, Conditi ons, and Restrictions (CCRs), executed in 1979, define o wner as “(i) the rec ord owner . . . of the fee simple title and (ii) any lot purcha ser who is purcha sing his or her or its lots under an ag ree ment for deed,” and provide that “[e]ach Owner shall automatically be a member of the Association with a rig ht to one vote for eac h whole L ot or Reserve owned.” The CCR s could only be amende d by a vote of at l east one -third of the owners. Units 7 throug h 12 are g overne d by their own CCR s, but those documents do not appea r to have been introduced into evidenc e. The Association is operated by a boar d of direc tors, and the two se ts of CCR s g overn howboard me mbers ar e ele cted.

This dispute arises out of a 2012 rea l estate contra ct (“the Contract”) under which the
Deve loper ag ree d to buy a total of 262 lots in Unit 6 from the Ba strop Entities and the Association. 1
The Ba strop Entities had acquir ed owner ship of the lots larg ely throug h fore closure. The Deve loper, acting throug h its manag ing partne r, Robert L eff ingw ell, ag ree d to pay $2,000 per lot and to provide infrastruc ture for Unit 6. The Contract imposed two “conditions prec edent” —the first require d that

a “fina l construction Deve lopment Ag ree ment” be approve d by the City befor e the closing date and

The Ba strop County Water Contro l an d I m p ro vement District and the Ba strop County 1 Emerg ency Service s District No. 2 wer e also sellers under the contra ct but are not part of this appea l. 2the second require d that the Association execute the contract wi thin 180 day s of the date the first

party signe d it. The Contract also provided that t h e sellers would provide the Deve loper with a commitment for title insurance within forty -five day s of the date the title company was g iven a copy of the Contract; that the Deve loper could object in writing to any defe cts, exceptions, or encumbr ance s to title disclosed in the commitment within thirty day s or befor e closing , whicheve r

was ear lier; and that the selling entities “shall cure the timely objections of [the Deve loper] or any third party lender within 181 day s afte r [t he selling entities] rec eive[] the objections and the Closing
Da t e wi l l be extended as nece ssary . I f objections are not cure d within such 181 day period , t h i s
contra ct will terminate and the ear nest money will be ref

unded to [t he Deve lop er ] unless [t he
Deve loper] waives the objections.” The Contract stated that closing “shall b e held” on or befor e 180 day s afte r the Deve loper rec eives the title commitment, subject to possible extension rela ted to objections to the title commitment. The first of t h e Ba s t ro p Entities executed the contra ct on Fe bruar y 21, 2012, and L eff

ingw ell signe d it on behalf of the Deve loper on Oc tober 15, 2012.
A title company soon sent the Deve loper a title commitment containin g numerous “exceptions to title,” larg ely due to the fac t that the proper ties wer e acquir ed by the Ba strop Entities throug h fore closure. L eff ingw ell testified that the Deve loper objected to those exceptions and never waived those objections. Although L eff ingw ell seems to have soug ht a title commitment elsewhe re, the B astrop Entities never cure d the Deve loper’s obje ctions. Following execution of the Contract, on September 14, 2012, the City and the
Deve loper signe d a Deve lopment Ag ree ment (“the Ag ree ment”) setting out the Deve loper’s duties with reg ard to the infrastruc ture it was to provide to the subdivision. The Ag ree ment provided that

3the Deve loper would submit to the City a Master Dra inag e Plan within ninety day s and specifie d that

Deve loper’s failure to do so “sha l l re s u l t in an automatic and full termination of the Ag ree ment” unless the City specific ally ag ree d in writing to an extension of time. The Ag ree ment would “only become fully an d finally eff ective” when the City ’s eng ineer revie wed and acc epted the Master
Dra inag e Plan, and the City had the rig ht to terminate the Ag ree ment in the event of the Deve loper’s
“uncur ed material defa

ult,” brea ch, or failure “to m eet any stipulated time frame s for deliverable s

or other perf

ormanc e require ment

. . . aft er wr i t t en n otice and rea sonable time to cure .” The
Deve loper provided a “Master Dra inag e Study ” on Dec ember 12, 2012, and on J anuar y 3, 2013, the City asked the Deve loper to provide additio n al information and verify cer tain items. The City reminded the Deve loper that its “re view cannot be completed until the comments of this letter have been ad d re s s ed” and that the drainag e st udy was required under the Ag ree ment and was “the first step prior to submitt ing construction/deve lopment plans.” The Deve loper did not provide the
reque sted information or a n updated draina g e plan, and the parties never closed on any of the lots.
On J une 4, 2013, the City wrote a letter informing Ba strop I SD that the city council had deter mined that the Deve loper “has failed to timely submit

. . . a complete, seale d Master
Dra inag e Plan” or reque st an extension of time for that plan and that “this failure has resulted in an automatic and full termination of the Ag ree ment.” On J une 5, 2013, the City sent the Deve loper a letter stating that the Ag ree ment was “now automatically and fully terminated” beca use the
Deve loper had not responde d to the C ity ’s not ice of defic iencies in the drainag e plan or asked for

an extension of time. The City reminded the Deve loper of its contra ctual duty to submit a “complete
Master Dra inag e Plan” and stated that the defic iencies noted by the C i t y E n gi n eer had to be

4addre ssed befor e the proposed Dra inag e plan would be considere d a complete and final submissi on.

On J une 10, the County commissioners court convene d a meeting and voted to r ejec t a mendments
to the C ontrac t proposed by the Developer. On J une 12, Ba s t rop County informed the Deve loper that the commi ssioners had voted t o reje ct the amendments and to consider the Contract “void on its own terms,” stating that “[t] here is no valid contra ct for the sale of lots,” the Deve loper “does not have any interest, equitable or otherwise, in the lots,” and the Deve loper “does not have any authority to vote the County

of B astrop’s pr operties at any proper ty owner s’ association meeting.”
At a J une 13, 2013 Association board meeting , board president J ohn Gar dner told the board that althoug h the County and the City had “ca ncele d the contra ct,” the Deve loper “has equitable title, and thus, contra ctual rig hts.” Gar dner said the Deve loper had “sec ured equitable title [t o t h e 2 62 lots] two wee ks befor e the City and the County rene g ed.” I n September 2013, the 2
Association held a meeting and voted to amend the Unit 6 CCR s, which require d approva l by at least

on e- t h i rd o f the Unit 6 lots. Fifty -six non-deve loper-ow ned lots voted ag ainst the amendments, fifty -seve n non-deve loper lots voted for them, and t h e Deve loper added 262 votes in favor —the board minutes state d the Deve loper ha d “re cord title under contra ct” for those lots. Among other 3 things, the amende d CCR s g ave the board sole discretion to “seve r one o r more L ots from the jurisdiction of the Association if dee med re asonable and prude nt.” The a mended CCRs a lso ga

ve

On J une 14, 2013, the Deve loper sued the Ba strop Entities for brea ch of contra ct, but the 2 lawsuit was dismissed after the Entities raised the de fense of sover eig n immunit y . Noe Rey es , an attorney who repr esente d the County and Ba strop I SD in the rea l estate 3 transac tion, testified that the Ba strop Entities knew about the eff orts to amend the CCR s beca use the Deve loper asked the Entities for proxi es to vote on the 262 lots. Rey es said that the Ba strop Entities did not give the re quested proxies and that “it wa s also stated to [t he Developer ] in my law firm’s letter ba ck on June 4th, I believe, or 14th that said y ou are not allowed to vote our lots.”

5the Deve loper exclusive development rig hts for an eig ht-y ear “deve lopment period” and stated that

provisions r elated to de veloper privileg es could not be amende d, modified, or repla ced during that period. On April 11, 2015, repr esenta tives of the Ba strop Entities attended the annual membership meeting , but the president of the board wo u l d not allow the Entities to vote for the 262 lots in question and instead ag ain allowed the Deve loper to cast votes for the 262 lots. The CCR s wer e amende d simil arl y t o t h e 2013 amendments, providing that a member of the Association was a

rec ord owner of fee simple title or any purcha ser under an ag ree ment for deed; g iving the board the ability to sever lots from t h e As sociation’s jurisdiction; and g iving the Deve loper exclusive development r ights for

eig ht y ear s. Me a nw h il e , o n A

p r il 9 , 2 0 1 5, the Ba strop Entities filed this suit, seeking , among other things, a decla

ration that the Contract was “null, void, ineffe ctive and of no leg al merit” beca use the
Deve loper had not complied with the Contract’s conditions prec edent; had brea ched the Ag ree ment, which was a condition prec edent to the Contract; and lacke d sufficie nt funding to perf orm under the
Contract. The Ba strop Entities soug ht a decla ration that the Deve loper had “misappropr iated” their voting rig hts in the Association and that any actions taken by the Association based on votes cast by the Deve loper wer e null and void. The Ba strop Entities al s o soug ht an injunction barr ing the
Deve loper and an y o ne acting in conce rt with the Deve loper from misappropriating the Entities’ voting rig hts. The Deve loper answe red and counter claimed for specific perf ormanc e, later asser

ting

an additional counter cl ai m al l eg ing TOMA violations rela ted to what it claims was an improper executive session held by the City on May 28, 2013. The Association intervene d on the side of the

6Deve loper in Aug ust 2015, and in September 2015, the trial court signe d a scheduling order setting

the matter f

or a be nch trial on May

5 and May

6, 2016. The Bastrop Entit ies filed a mo t ion for partial summary judgme nt asser ting that as of April 11, 2015, the date of the Association’s annual meeting , and Dec ember 21, 2015, they wer e the owner s of the lots in question and entitled to vote as members of the Association. The Ba strop Entities pointed to the Association’s g overning documents and arg ued that they held rec ord title and that there was no ag ree ment or contra ct for deed under which the Deve lo p er m i gh t assert an “equitable rig ht” to the lots. On J anuar y 13, 2016, the trial court held a hear ing on the motion, and about a wee k later, it signe d an order determining that as of April 11 and Decembe r 21, 2015, the
Ba strop Entities were the re cord ow ners of and entitled to vote on beha lf of the lots. 4
On Fe bruar

y 6, 2016, the Associa t ion’s annual membership meeting was held. Clifton Seidel, Drusilla Roge rs, and Br enda Winkl er wer e elec ted to the board of direc tors, and
J ohn Gar dner and Wil liam Hasc hke wer e voted off the board. On Fe bruar y 16, the Ba strop Entities issued a notice of a specia l Association meeting to be held Fe bruar y 27, seeking to decla

re null and

v o i d t h e 2 0 1 3 and 2015 CCR s; to rea ffirm the orig inal CCR s; and to remove J ohn Clark an d Robert L eff

ingw ell from the board. On Fe bruar y 19, the board held a specia l meeting in which four of the seven board members voted to sever 100 lots from the Association’s membership, including the lots owned by Seidel, Winkl er, and Roge rs. On Fe bruar y 24, Clark emailed Seidel, Winkl er, and

The Contract rela ted to the sale of 262 lots in Unit 6

. Ho weve r, the trial court’s order 4 g ranting partial summary judgme nt found that the Ba st ro p E n t i t ies owned in total 388 lots in the Association’s jurisdiction as of April 2015 and 394 as of Dec ember 2015. I t appea rs from the rec ord that those almost 400 lots are within Unit 6 and that the Ba strop Entities’ owner ship incre ased afte r 2012 due to fore closure or other tax-rela

ted proc eeding s. 7Roge rs to inform them that they had been remove d from the board. On Fe bruar y 25, the board held another specia l meeting at which they sever ed the rema ining Unit 6 lots from the Assoc iation and appoint ed Ga rdner and Hasc hke back onto the board. That meeting was very contentious, with Seidel insisti ng that he, W inkler, and Roge rs were still board member s and C lark larg ely ref using to allow or answe r questions from those individuals.

On Fe bruar

y 27, a s p ec i al membership meeting called by the Ba strop Entities was held. Clark asser

ted that the meeting had not been proper ly called beca use the Ba strop Entities did
not own enough lots in Units 7 throug h 12, and he a nd three board me mbers voted to adjour n and then left the meeting

. The Ba strop Entities continued with the meeting , and the vast majority of the lot owner s in all units voted to remove Clark and L eff ingw ell from the board. Ex cluding the 262 lots voted by the Bastrop Enti ties in favor of both remova ls, the non-Entit y -owne rs vot ed eighty -three
to two to re m o v e C l ark and eig hty -four to one to remove L eff ingw ell. All forty -three non-Entity

owner s of Unit 6 lots present at the me eting voted to decla re the 2013 and 2015 CCR s invalid a nd
to rea ffirm the or igina l CCR s.

I n Marc h 2016, Clifton Seidel and Drusilla Roge rs (“I nterve nors”) intervene d in the lawsuit, naming J ohn Gar dner, J ohn Clark, Robert L eff ingw ell, and Wil liam Hasc hke as third-par ty defe ndants and seeking decla rations about the validity of the 2013 and 2015 CCR s, the Unit 6

s ev er ance , I nterve nors’ remova l from the board, and the appointment of Gar dner and Hasc h k e. I nterve nors asser

ted that althoug h the 2013 CCRs recited that one-third of t he owners had r atified the chang es—spec ifically that fifty -seve n “non-de veloper lots” and the “26 2 l o t s over which [t he
Deve loper] holds rec o rd t i t l e under contra ct” voted in favor of the chang es while only forty -six

8“non-de veloper owned l o t s” voted ag ainst—the Deve loper improperly voted as “the purported

equitable owner ” when the Ba s t rop Entities wer e instead the owner s; I nterve nors made simil ar alleg ations about the 2015 CCR s. I n April 2016, the third-par ty defe ndants filed their own reque st for decla ratory relief

, asking the trial court to decl ar e t h at t he Fe bruar y 2016 sever ance of Unit 6 from the Assoc iation was valid. 5

The Ba strop Entities filed a motion to enter an amende d scheduling order , asking the
court to r eset the orig inal May 5 bench tr ial and instead set “a partial nonjury trial on May 3, 2016
reg arding the decla

ratory relief soug ht with respe ct to the actions of” the Association and its board;

t h e E n t i ties asked the court to sign the amende d scheduling order “so that there will be cer tainty
reg arding the matters to be tried nonjury befor e the court on May 3, 2016 .” The third-par ty defe ndants then filed a notice setting a hear ing on their reque st for decla ratory judgme nt for May 3. The Ba strop Entities filed a cross-c laim ag ainst the third-par ty defe ndants and a notice of non-jury

6
trial on May 3 on that cross-c laim and on their reque st for decla ratory relief “re g arding the unlawful

ac t i o n s o f [t he Association] and its former Boa rd of direc tors.” The trial court then signe d an

am ended scheduling order stating that a “nonjury trial” was set for May 3 “with respe ct to [t h e Ba strop Entities’] complaints reg arding the actions of the Association, the voting rig hts of members

The third-par

ty defe ndants asser

ted that the sever ance was proper even if the Unit 6 CCR s 5 wer e improperly amende d beca use t h e C C R s fo r Units 7 throug h 12 wer e amende d to allow the board to seve r lots from the Association’s jurisdiction and were never challeng ed. The B astrop Entities’ cr oss-claim soug ht declar ations simil ar to its pleading s ag ainst the 6 Deve loper, lar g ely

asking the trial cour

t to declar e that the De veloper had lac ked author ity

to vote for the 2013 CCR s, that the 2013 and 2015 CCR s wer e not proper ly ratified by the owner s, that the board lacke d authority to sever Unit 6 from the Association’s jurisdiction, and that Seidel, Roge rs, and Winkler wer e still curre nt board membe rs. 9of the Association, and Cliff Seidel an d Dr u silla Roge rs’ Plea in I nterve ntion and Third-Party

Petition for Decla

ratory J udg ment and Application for Tempora ry Injunction.”
A three -day hear ing was held starting on May 3, and at the conclusion, the trial court stated, “Th e re al es tate contract that’s the s ubject of this suit is—has terminated and it is null and void. I t has no eff

ect. The Court wi l l adopt the [Bastrop Entities’] g rounds in evidenc e that the
contra ct is terminated and is null and void.” The court went on to make statements rela ted to actions taken by the Association and its former president, stating that Gar dner told the Association’s board

a “fa lsehood” in stating that the Deve loper, throug h L eff ingw ell, had “sec ured equitable title.” The 7

court stated that it was denying the relief soug ht by the third-par ty defe ndants and was g ranting most of the relief soug ht by the Ba strop Entities in their orig inal petition. The court stated who the board members wer e as of Fe bruar y 6, 2016. A follow-up hear ing was held on May 18 to addre ss whether

cer tain board members should be remove d. At the conclusion of that hear ing, the trial court and the parties’ attorney s discussed draf ting a final judgme nt and the possible sever ance of the Association’s

rema ining claims, noting that there was uncer tainty as to whether the court-de clar ed board members would want to proce ed on those claims. On S eptember 21, the t rial court signe d a final judgme nt in favor of

the B astrop Entities.

We note that althoug h the trial court stated at the conclusion of the May hearing that it 7 believed Gar dner had told a “fa lsehood,” it later remove d that lang uag e from the proposed final judgme nt submitt ed by the Ba strop Entities, instead stating that Gar dner “er red” in sug g esting that the Deve loper he ld equitable title. 10Discussion
I n its first issue, the Developer arg ues t hat i n the hearing or benc h trial held May 3 throug h May 5, the trial court err oneously resolved matters that “had not been pleade d such that they

wer e not noticed prior to trial” and wer e not identified in the trial setting and that it improperly made its rulings “w ithout the benefit of discove ry .” I n its second issue, in which it argues that the c ourt

err ed in r uling that the Deve loper did not have equitable title to the lots in question so as to vote in the Association meeting s, the Deve loper insists that questions rela ted to equitable title “w ere not identified as contested i s s u es i n any pleading ” filed by the Ba strop Entities, wer e not proper ly noticed as issues to be addre ssed in the hear ing, and “we re not the subject of any pre- trial discovery .”
I t further argues that the court err ed in making its deter minations that the Deve loper did not have equitable title to the lots so as to allow it to vote in the Association meeting s. I n its third issue, the
Deve loper contends that the trial court improperly disposed of its TOMA claims without hear ing
argument or evidenc e on those issues. We will consider the Deve loper’s issues rela ted to notice first.

As a preliminary matter, the Deve loper asser ts that the court proce eded to trial when
“no discovery had been conducte d/allowed.” However , the Ba strop Entities filed their orig inal petition in April 2015, discovery was not stay ed until Marc h 2016, and the rec ord ref lects that some 8

At the conc l u sion of the hear ing on Marc h 9, counsel for the Ba strop Entities raised 8 conce rns about pending discovery reque sts, a looming April 4 discovery deadline, and the May 4 trial setting. One of the attorney s said that he would be on vacation the following wee k and that “the two wee ks afte r t hat we have a full set of di scover

y to try to g et ready on the ot her issues in the case,” and he raised conce rns about the trial setting beca use the issue of “who’ s g oing to be on the board” was still pending. T he trial c ourt said, “I ’m just going to stay ever y thing until we c ome bac k here April 5th.” At the he aring on April 5, discover y was not discussed, nor did the court indicate that it was lifting its stay

. 11amount of discovery did in fac t take place betwee n April 2015 and Marc h 2016. Fur thermore , at a hear ing in J anuar

y 2016, the trial court urg ed the parties to finish discovery , noting that April 5 was the discovery deadline. I ndeed, at that hear ing, counsel for the Deve loper, in response to a motion for continuance filed by the Ba strop Entities, stated, “Your Honor, there ’s been an adequate time for discovery

. I t’s been—w e’ve been g oing throug h discovery for six months.” Thus, the Deve loper’s
statements that there was no discovery conducte d or no opport u n i t y fo r discovery rela ted to the validity of the c ontrac t are not supported by the re cord. 9
We now consider whether the trial court improperly exceede d the scope of the issues set for the May

3 hear ing in de clar ing the Contract ter minated.
As explained ear lier, the Bastrop Entities filed a motion to enter an amende d schedu l i n g o rd er , asking the court to set “a partial nonjury trial on May 3, 2016 reg arding the d eclaratory relief soug ht with respe ct t o the actions of” the Association and its board of direc tors, asking for an amende d scheduling order “so that there will be cer tainty reg arding the matters to be tried nonjury befor e the court on May 3, 2016.” Th e t h i rd -p ar t y defe ndants set their reque st for decla ratory judgme nt for hearing on May 3. T h e Bastrop Entities set their request for declar atory relief “re g arding the unlawful actions of [t he Association] and its former Boa rd of direc tors” and its

cross-c laim ag ainst the third-par ty defe ndants for “non-jury trial” on May 3. The trial court signe d

As support for its asser

tion that “no discovery had been conducte d/allowed,” the Deve loper 9 p ro v i des a citation to the rec ord. Howeve r, that cite is to the portion of its motion fo r n ew t ri al stating that the trial court had stay ed discovery , resulting in the canc ellation of planned depositions. See San Miguel v. City of W indcrest , 40 S.W .3d 104, 111 (Tex. App.—San Antonio 2000, no pet.) (plea dings are not evidenc e); Minns v. Piotrowski , 904 S.W .2d 161, 169 (Tex. App.—Waco 1995, writ denied) (ar g ument by counsel is not evidenc e).

12an amende d scheduling order stating that “[o] n May 3, 2016, a nonjury trial is set with respe ct to [t he

Ba strop Entities’] complaints reg arding the actions of the Association, the voting rig hts of members of the Association, and Cliff Seidel an d Dr u s i lla Roge rs’ Plea in I nterve ntion and Third-Party Petition for Dec lara tory J udg ment and Application for Tempora ry I njunction. ” T h

u s , it appea

rs from the record that the parties were on notice that the M ay 3 hear ing would addre ss arguments rela ted
to who had the rig ht to vote on behalf of the lots in question, the validity of the 2013 and 2015 Unit
6 CCR s and the Unit 6 seve ranc e, and w ho the prope r boar d members we re.

At the beg inning of the hear ing, the trial court announce d that it would start with the
Ba strop Entities’ reque st for decla ratory relief

. Counsel for the Ba strop Entities beg an, saying that “the issue of who the owner is with respe ct to the votes that wer e taken at various times is g oing to be an important issue that the Court would have to consider” and noting that the trial court had alre ady ruled in J anuar

y on the issue of “who is an owner in a Property Owner s’ Association.” He 1 0
stated that the court would have to make a decision rela ted to the “distinction betwee n a rea l estate
contra ct, a purcha se money rea l estate contra ct, and a contra ct for deed” ; explained why the Contract

was a “ty pical re al estate contra ct” and not a contra ct for deed; asser ted that the Deve loper did not close on or take title to any of the lots; explained that the Ba strop Entities had g iven the Deve loper

In its brief, the Deve loper acc urate ly states that in J an u ar y 2 0 1 6, the trial court held a 1 0 hear ing on the Ba strop Entities’ motion for partial summary judgme nt rela ted to its voting rig hts in April and Dec ember 2015 and on a no- evidenc e motion f iled by the Deve loper, rela ted to w hether i t wa s financ ially unable to uphold its duties under the contra ct, and “took both motions un d er advisement.” Howeve r, the Deve loper then states that the court “ca rried ruling s on questions of the authority to vote on behalf of particula r lots subject to the Contract until” the May hear ing, when the rec ord ref lects that shortly afte r the J anuar y hear ing, the trial court signe d an order g ranting summary judgme nt as to the Ba strop Entities’ ownership a nd voting r ights a s of April and D ece mber 2015. 13notice that the Ag ree ment, which was “a condition p re ce d en t to the rea l estate contra ct,” had

terminated; and stated that the E n t i t i es had terminated the contra ct well befor e the September 12 board meeting at which the Deve loper voted on behalf of the lots. Counsel for Interve nors noted that there had been “discussion about voting rig hts being tied to equitable interest” and argued that voting rig hts wer e only obtained with rec ord t i t l e o r a contra ct for deed. The Deve loper’s attorney then beg an his opening statement, saying, “B riefly , this case is ab out a brea ch of contra ct. We—the questions to resolve then are : Was there a contra ct and who brea ched.

. . . [W ]e still haven’ t resolved the simple question was there a contra ct.

. . . This Court has never resolved that question of whether

or not there was an eff

ective contra ct in the first place .” Counsel ref ere nced I nterve nors’ discussion of equitable title and stated that the Deve loper had spent considera ble time and money and “ce rtainly demonstrated an equitable interest in these lots,” sever al times reiter ating that the trial court would have to deter

mine first whether there was a contra ct and second wh o had the authority to vote t he lots. Thus, the parties seeme d to place the Contract’s validity front and cen t er i n the issues that the trial cour t wo u l d have to deter mine in order to decla

re owner ship and the acc ompany ing voting r ights. Following opening statements, the attorney s confe rre d and s ta te d to th e tria l court that they believed the various decla ratory claims “intermix[ ed] and intertwine[d] ” and that they “would like to pr esent all of the evidenc e and just a rg ue them all at one time.” The parties then proce eded
to prese nt their evidenc e over three d ay s. At the conclusion of the hear ing, the trial court sever al times asked if the attorney s wanted to call further witnesses, and eac h time counsel for the Deve loper demurre d, never raising conce rns about witnesses being unavailabl e o r a b o ut th e c o u

r t h a v in g stray ed

14bey ond the scope of the notice of the hear ing. At the conclusion of the hear ing, when the trial court

stated that the Contract “has terminated and is null and void,” there wer e no complaints raised that the court had g one bey ond the noticed scope of the hear ing, nor did the Deve loper complain at the follow-up hea

ring about two wee ks later a bout the decision re lated to the validity of the Contrac t. Simi larly , al t h oug h the rec ord does indicate that some, if not all, of the planned depositions wer e never conducted, the rec ord does n o t re flec t that the attorney s informed the trial
court that there wer e fac ts still to be discovere d that might cast a differ ent light on questions of the
Contract’s validity or the concomitant owner ship of the lots. Nor have we found an indication that the Devel o p er o b

j ec t ed to a lack of discovery or depositions at either the May 3 hear ing or the follow-up hear ing. No t u ntil its motion for new trial did the Deve loper asser t that the matters
prese nted to and decide d by the court exceede d the scope of the notice of hear ing and that it had not been a ble to prese nt cer

tain unspecifie d witnesses or e vidence

. 1 1 Considering the intertwined nature of the questions of the Contract’s validity and the voting rights, the trial court’s earlier decision that the B astrop Entities owned the lots in question, the asser tions by counsel for the Deve loper that the case conce rned brea ch of contra ct and whether the Contract was ever eff ective, the Deve loper’s argument s rela ted to whether it could asser t equitable title, and the Deve loper’s failure to object during the hear ing or upon the trial court’s stating its decision rela ted to the Contract, we hold that the Deve loper has waived any err or rela ting

We note that the Ba strop Entities in the April hear ing said that they “ca n’t complete what 1 1 [di scover y ] we need to do for the contra ct by —by May .” Howeve r, the Ba strop E n t i t i es d i d n o t object during the May hear ing that there was unfinished discovery t h at would be rele vant to the issues being addre ssed. 15to notice. See Pointer v. State , No. 03-02-00548- CV, 2003 WL 21241261, at *2 (Tex. App.—Austin

May 30, 2003, pet. denied) (mem. op.) (appe llant, who participa ted in trial, did not complain about lack of notice or scope of trial, and thus waived any complaint); Hoog v. State , 87 S.W .3d 740, 745 (Tex. App.—San Antonio 2002, pet. denied) (par ty waived complaint of insufficient notice that hear ing was full evidentiar y hear ing by failing to object, failing to move for continuance , and fully participa ting in hea

ring ). 1 2
The Deve loper also asser ts that the issue of equitable title should not have been considere d beca

use it had not been “identified as contested issues in” the Ba strop Entities’ pleading s

or the notices of the May 3 hear ing. Howeve r, the claim of equitable title was raised by the
Deve loper and the Association in their arguments of how the Deve loper was entitled to vote for the
262 lots, and the Ba strop Entities wer e not require d to plead the Deve loper’s defe nsive answe r to the
Ba strop Entities’ asser

tion that they held rec ord title. See Rosales v. W illiams , No. 01-09-00454- CV,
2010 WL 457536 , at *3 (Tex. App.—Houston [1st Dist.] Fe b. 11, 2010, no pet.) (mem. op.) (plaintiffs “had no obligation to anticipate def enses a nd plead those issues” ). F urther, the issue of equitable title was r aised a nd explored at the May

3 hear ing w ithout objection.

Be cause the issue of the Contract’s validity was pled by the parties, this case does not fit 1 2 into the case law g overning trial of an unpled issue by consent, as in the case s cited by the Ba strop Entities. See, e.g. , Case Corp. v. Hi -C l a ss Bus. Sys. of Am., Inc. , 184 S.W .3d 760, 771 (Tex. App.—Dallas 2005, pet. denied ) (discussing when unpled issue is considere d tried by consent). Howeve r, t he same g ener al guidelines can be applied: s i gn i fica nt evidenc e and testimony rela ted to the validity of the Contract was prese nted at the hear ing, the attorney s’ arguments and questioning of witnesses indicated that the parties understood that the issue was being considere d, and there wer e no objections to questioning a long those lines or to the trial cour t’s announce ment of its decision. 16We ov er ru l e t he Deve loper’s first issue, asser ting a “proc edura lly flawe d ‘benc h trial,’” and its associate d arguments in its second issue rela ted to the scope of both the May 3 hear ing and the tria l court’s re sulting dec ision as to the Contract’s validity

.

I n its second issue, the Developer arg ues t hat t he trial court err ed i n ruling that the
Deve loper did not have equitable title to the lots in question so as t o allow it to vote on behalf of those lots in the Association meeting s. The De veloper insists that it acquire d equitable title under the Contract, thus entitling it to vote under the Association’s g overning documents, and that “[t] he

rec ord also demonstrates that, for purposes of section 209.002(6) of the Property Code, all one needs to do to tra

nsform an equitable title into a rec ord title is to rec ord the purc hase a g ree ment with the

rea l estate rec ords of Ba strop County .” As support for that asser tion, the Deve loper cites to an email
sent by then-boa

rd-pr esident J ohn Gar dner on May 29, 2013, explaining why the Association would allow the Deve loper to vote the lots in question in the J une 13, 2013 meeting

. I n that email, Gar dner
say s that the proper

ty code “ require s only

‘re cord title,’” and then state s:

There are sever al kinds of titles t h at can be cre ated in rea l estate, including “dete rmin ab l e t itle,” “fe e simple title”, and “equitable title.” All one need do to transfor m an “equitable title” into a “re cord title” is to rec ord the purcha se ag ree ment in the rea l est at e re co rds of Ba strop County

. This will cause the equitable title to become a “re cord title” within the meaning of Section 209.002(6) and superse des the leg al title of th e s eller and qualifies one as an “owne r” under the statute as well as under our Unit 6 CCR s and our [Association] Articles and by -laws.

Howeve r, Gar dner’ s beliefs th at rec ording the Contract in the Ba strop County rea l estate rec ords either g ave t h e De v el o per equitable title or transfor med its equitable title into rec ord title are not proof of the corr ectne ss of those opinions. See Lawrence v. City of W ichita Falls , 122 S.W .3d 322,

17328 (T ex . Ap p . — Fort Worth 2003, pet. denied) (“a n expert’s opinion on an ultimate issue is admissible only if a predic ate is laid to show that the expert knows the proper leg al definition in the question”); Adams o n v
. B urgle , 186 S.W .2d 388, 399 (Tex. Civ. App.—San Antonio 1945, writ ref ’d w.o.m.) (e x pert “ may

not state a leg al conc lusion or an opinion involving a matter of law” ). Our sis ter co u rt h as explained that “re cord tit le” is “title as i t appea rs i n the publ ic

rec ords afte r the deed is proper ly rec orded,” Lon goria v. Lasater , 292 S.W .3d 156, 165 (Tex. App.—San Antonio 2009, pet. denied) (citing Rec ord title , Bla ck’s L aw Dictionary (8th ed. 2004)), and there is no indication that deeds for the lots we re ever transfe rre d to the Deve loper or proper ly

rec orded in the County ’s rec ords. I n fac t, the testimony established that the Deve loper never closed 1 3

on any of the lots. We have not found case s indicating that the filing of a pending rea l estate contra ct in the local proper

ty rec ords suffic es to establish “re cord title,” a nd the Deve loper does not c ite us
to any useful authority

. We thus aff irm the trial court’s conclusions that the Deve loper did not have

rec ord title of the lots in question.

As for whe ther the D evelope r had e quitable title, the Deve loper simply asser ts that it did. I ts substantive arg ument rela ting to equitable title reads a s follows:

The q u es t i on then arises whether [t he Deve loper] assumed equitable title by operation of the Contract. Acc ording to the Articles of I ncorpor ation of [t he Association], it clea

rly did.

Even if the rec ording of the Contract in County rec ords had established “re cord title,” the 1 3 Deve loper does not cite evidenc e in the rec ord showing that the Contract was rec orded, althoug h the trial court’s finding s of fac t and its final judgme nt ref er to a “Memora

ndum of Contract for the Sale and Purcha se of L and” f

iled by Gar dner w ith the County Clerk on J une 4, 2013. 18The Contract made the 262 lots held by Ba strop subject to the CCR s and article s of

incorpora tion of [t he Association]. Pursuant to those documents, once the Contract was rec orded with the Ba strop County Records office , [t h e De v el o p er] assumed equit able title to the lots pending the transfe r of full title. Acc ordingl y [ t h e Deve lop er ] n o t o nly had equitable title, the trial court err ed in first announcing on May 6, 2016, and then rende ring final j u d gm en t and entering finding s of facts that it l acke d equitable title, that Robert L eff ingw ell had no basis to contend [t he Deve loper] held such title, and that [t hen-boa rd-pr esident Gar d ner] err ed in repr esenting that [t he De veloper ] had acquire d such title.
Moreove r, no evidenc e, let alone fac tually sufficie nt evidenc e, supported a judgme nt that [t he Developer ] lacke d equit ab l e t i t l e. The trial court ex plained it s holding in that reg ard by noting that [t he Association’s] then-pre sident told a “fa lsehood” to the Association board when he said that L eff ingw ell had acquir ed equitable title we eks ear lier.[ ] I n fac t, Gar dner told the board that [t he Deve loper] had secur ed equitable

1 4 t i tle throug h the Contract, and that the Contract continued even if a p ar t y wa s i n b reach. The evidenc e that was offe red during the bench trial thus conclusively establishes the contra

ry to the finding made by the trial court, and alt er n at i v e confirms that the trial court’s ruling is ag ainst the g reat weig ht and preponde ranc e of the evidenc e.[ ] Thus, the evidenc e conclusively establishes the contra ry to the trial 1 5 court’s conclusion that [t he Deve loper] never possessed eq u i table title, and at a minimum , such a conclusi o n i s against the g reat weig ht and preponde ranc e of the evidenc e.
The Developer has presented no actua l evidenc e or ci t ed t o authority that supports its claim that the trial court err ed in deciding that the Deve loper lacke d equitable t i t l e. Howeve r,

even if the issue had been proper ly briefe d, we would hold that the Deve loper did n o t o b t ai n equitable title pursuant to this Contract.

As noted ear lier, the trial court re m o v ed the word “fa lsehood” from its final judgme nt, 1 4 instead stating that Gar dner “ err ed” in sug g esting that the Deve loper he ld equitable title.

The re co rd citation provided by the Deve loper as evidenc e of its equitable title is to its 1 5 motion for new tria l, in whic h it state d that Gar dner told the boa rd that the De veloper

had sec ured equit able title. Howeve r, pleading s are not proof, and a party ’s statement char acte rizi n g wh at a witness said is not evidenc e of that testim o n y . S ee , e.g. , Colli n Cty. Dist. Attorney’s Office v. Fourrier , 453 S.W .3d 536, 541 (Tex. App.—Dallas 2014, no pet.); Allen v. N a tional Bank of Conroe , 884 S.W .2d 928, 931 (Tex. App.—Be aumont 1994, no writ.). 19I n our revie w of rele vant case law, the term “equitable title” commonly ref ers to the interest a buy er obtains in land purcha sed under a “c o n trac t for deed,” sometimes ref err ed to an “e x ecutor y contra ct.” See Flores v. Mill ennium Interests, Ltd. , 185 S.W .3d 427, 429 (Tex. 20 0 5 ) (“A contra ct for deed, unlike a m o rt gage , al lows the seller to reta in title to the proper ty until the purcha ser has paid for the proper ty in full.”); Shook v. W

alden , 3 6 8 S

. W

. 3 d 6 04, 624-25 (Tex. App.—Austin 2012, pet. denied) (distinguishing executory contra ct from “conve ntional contra ct for sale of rea lty , in which the seller and purcha ser mutually ag ree to complete pay ment and title transfe r

on a date cer

tain”). “‘Equitable title’ is a rig ht, enforc eable in equity , to have the le g al title to r eal
estate tra nsfer red to the ow ner of the rig ht upon the perf ormanc e of spe cified c onditions.” City of
Hous. v. Guthrie , 332 S.W .3d 578, 588 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ; see also
Travis Cent. Appraisal Dist. v. Signature Flight Support Corp. , 140 S

. W .3d 833, 840 (Tex. App.—Austin 2004, no pet.) (“e quitable title is de fined as the prese nt r ight to c ompel leg al title”); Neeley v. Intercity Mgmt. Corp. , 623 S.W .2d 9 4 2 , 9 5 0 -51 (Tex. App.—Houston [1st Dist.] 1981,

no writ) (“e quitable title is an enfor cea ble rig ht to have leg al title transfe rre d t o t h e h o l d er of the equity ,” and “mer e equitable rig ht rises to the dignity of an equitable title when perf ormanc e under the particula

r contra ct occur s, such as pay ment of purcha se money ”). There is no indication in the 1 6

See, e.g. , Culli ns v. Foster , 171 S.W

. 3d 521, 533-34 (Tex

. App.—Houston [14t h Dist.] 1 6 2005, pet. denied) (“Equitable title may be shown when the plaintiff proves that he h as p ai d t he purcha se price and fully perf ormed the obligations under the contra ct. Upon such perf ormanc e, he become s vested with a

n equitable title to the prope rty which is sufficie nt to allow him to maintain his action in trespass t o t ry title.” (quoting W hite v. Hughs , 867 S.W .2d 846, 849 (Tex. App.—Texarkana 1993, no writ))) ; Texas Am. Bank/Leve lland v. Resende z , 706 S.W. 2 d 343, 345-46 (Tex. App.—Amar illo 1986, no writ) (co n t ra ct that specifie d conditions for eventua l passing of seller’ s interest wa s executory contra ct and “ not effe ctive as a convey ance ”). 20rec ord that the Deve loper had any “p re sent rig ht to compel leg al title,” see Signature Flight ,

140 S.W .3d at 840, and the Contr ac t wa s a conventional rea l estate contra ct, intended to pass the
Ba strop Entities’ interest in the proper ties to the Deve loper upon closing within 180 day s of the date the title commitment was delivere d, not a contra ct for de ed so as to conve y equitable title. Finally , we consider whether the Contract was proper ly decla red t er m i n ated. Although the Deve loper insists th at q u es t i o ns rela ted to the Contract’s validity wer e improperly

rea ched, we have overr

uled that contention. The evidenc e in the rec ord and the court’s finding s provide a t least three g rounds for de clar ing the Contract had te rminated:

• The Ba strop Entities did not cure the Deve loper’s objections to the title commitment, and the Deve loper never waived those objections; the Contract provided that in such an instance “this contrac t will terminate.”

• Th e Deve loper never closed on the Contract, which provided for closing to occur within 180 day s “af

ter re ceipt of the commitment.”

• The Contract require d the Deve loper to provide a final Deve lopment Ag ree ment and obtain the City ’s approva l of that Ag ree ment befor e closing

. The Deve loper and the City signe d the Ag ree ment, but the Ag ree ment provided that it was not eff ective until the City eng ineer had revie wed and acc epted the Deve loper’s Master Dra inag e Plan. The Ag ree ment expli citly stated that the Deve loper’s failure to provide a completed, seale d plan within ninety day s would result in “automatic and full termination of the Ag ree ment” unless the City ag ree d to an extension of the deadline. The Deve loper submitt ed a “Master Dra inag e Study ,” and the City sent the Deve loper its comments and re quests for more information and de tail to be provided in the plan, e x plaining that the C ity could not complete its revie w until its comments had been addressed. The De veloper

never responde d.

The Deve loper does not explain how the evidenc e is insufficient to support the trial court’s finding s rela ted to those Contract provisions, nor does it appea r from the rec ord that the trial court lacke d an evidentiar y basis for those finding s. See Graham Cent. Station, Inc. v. Peña , 442 S.W .3d 261, 263

21(Tex. 2014) (par ty attacking leg al s ufficie ncy

of adve rse f

inding on issue on whic h it did not have burden of proof must demonstrate that no evidenc e supports finding ); Iliff v. Iliff , 339 S.W .3d 126,
134-35 (Tex. A

pp.—Austin 2009) , aff’d , 339 S.W .3d 74 (Tex. 2011) (trial cour t’s finding s of fac t have same weight as j u ry verdic t and are evalua ted under same standards; finding will only be
overturne d if so contra

ry to overwhe lming we ight of evidenc e as to be clea

rly wrong and unjust). The Deve loper has not shown that the trial court erred in deter mining that the
Deve loper had never closed on any lots under the Contract, that the Contract terminated on its own
terms 181 day s afte r the Ba s t rop Entities failed to cure the Deve loper’s objections to the title commitment, or that the final Deve lopment Ag ree ment—a cond i t i o n prec edent to the Contract’s validity —never beca me ef fec tive due to the De veloper ’s failure t o comply with the City ’s re quest for c h an ges t o t h e draina g e plan. The fact that the t rial court variously decla red the Contract was
“ter minated,” “null and void,” “neve r eff ective,” and “of no eff

ect” is of no importance in rea ching

our conclusion. See, e.g. , Hitzelberger v. Samedan Oil Corp. , 948 S.W .2d 497, 503 (Tex. 1 7 Ap p . — Waco 1997, pet. denied) (“inc orre ct conclusion of law will be followed if the controlling finding s of fact s upport a correc t leg al t heor y ”) ; W est ech Eng’g, Inc. v. C learwater Constructors,
Inc. , 835 S.W .2d 190, 196 (Tex. App.—Austin 1992, no writ) (“Conclusions of law will be upheld

on appea l if the judgme nt can be sustained on any l ega l t h eo ry s upported by the evidenc e,” and

Be cause there are three other grounds on which the Contrac t ca n b e d ec l are d as having 1 7 terminated on its own terms, we need not addre ss the Deve loper’s arguments rela ted to the Ba strop Entities’ ref

ere nce to or relianc e on section 209.0059 of the proper ty code in the h ear ing on their motion for partial summary judgme nt, nor need w e discuss whe ther the tria l court er red in finding that the Association sig ned the Contrac t outside 180 day s from the da te it was first sig ned. 22incorre ct conclusions of law will not require reve rsal “if the controlling finding s of fac ts will support

a cor rec t leg al theory .”).

I n its third issue, the Deve loper contends that the final judgme nt is err oneous beca use the court never h ear d evidenc e or argument rela ted to the Deve loper’s TOMA counter claims.
Acc ording to pleading s filed by the Deve loper and the Association , t h e City held a meeting to discuss the Contract on May 28, 2013, and that meeting “wa s not held in a public meeting ,” in violation o f TOMA. There fore , the Deve loper argued, any actions taken during that executive session should be ruled void. See Tex. Gov’ t Code § 551.141 (ac tion taken by g overnme ntal body in violation of chapte r 5 5 1 i s v o i dable)

. The rec ord does not appea r to include any further information about this alleg ed executive session. Unlike the issue of the validity of the Contract, the topic s set for the May hear ing cannot be interpre ted as including any TOMA issues. Nor did the evidenc e or arguments put forth in the May hear ing touch on the propriety of t he C ity ’s ex ecutive session. The Deve loper broug ht this conce rn to the trial court’s attention in a hear ing held afte r the May 3 hear ing, noting that the TOMA c ounterc laims had not been a ddresse d, but neither the final j u d gm en t nor the court’s finding s of fac t and conclusions of law mention the counter claims. W e
ag ree with the Developer that the i ssue of its claims rela ted t o alleg ed TOMA violations wer e not
proper ly noticed for

or consider ed in the May hear ing. We sustain the De veloper ’s third issue.
T h e D e v e lo p e r a s s e r

ts that the err or means that the judgme nt signe d in September w a s “non-f inal and not subject to appea l” and states that we should dismiss the appea l for want of jurisdiction and return the cause to the trial cou rt t o d i spose of the rema ining claims. Howeve r, viewing the lang uag e of the order , as well as the rec ord as a whole, we hold that the final judgme nt

23was i n fa ct i n t en d ed to be a final judgme nt and should be considere d as such. Cf. Lehmann

v. Har–Con Corp. , 39 S.W .3d 191, 205-06 (Tex. 2001); Taborda v. Tamirisa , No. 14-16-00545- CV,
2018 W L 1476269, at *2-3 (Tex. App.—Houston [14t h Dist.] Mar. 27, 2018, no pet.) (mem. op.) (orde r entitled “fina l judgme nt” was not final and appea lable beca use it did not dispose of all claims,

rec ord did not include order s of sever ance or nonsuit, motion fo r entry of final judgme nt did not mention claims, and order was premised only o n s u m m ary judgme nt and counter claim). By disposing of the TOMA counter claims without notice, evidenc e, and argument on those issues, the trial court err oneously signe d a final order g ranting more relief than the Ba strop Entities had shown themselves entitled to. See Binder v. Joe , 193 S.W .3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006,

no pet.) (“B y g ranting more relief than Danny reque sted in his petition, the trial court err ed, and that

err or is appar ent on the fac e of the rec ord.”) ; Labrie v. Kenney , 95 S.W .3d 722, 728 (Tex. App.—Amar illo 2003, no pet.) (plaintiffs soug ht decla ratory judgme nt and none of defen d an t ’s

m o t i o n s fo r summary judgme nt ref err ed to that reque st, much less prese nted g rounds to justif y dismiss al of reque st; thus, in g ranting summary j u dg ment and dismiss ing all claims, including
reque st for dec lara tory

judgme nt, trial court er

roneously g rante d more re lief than wa s reque sted).

Conclusion The Deve loper has not show n err or in the trial court’s deter minations re lated to the
Contract’s validity or the Deve loper’s voting rig hts. I t has, howeve r, shown that the co u rt err ed in also disposing of the Deve loper’s TOMA claims. W e t h erefore reve rse the final judgme nt

24and rema nd the cause to the trial court for further p ro ce ed ings on the Deve loper’s
TOMA counte rcla ims. 1 8

__________________________________________ Cindy Olson Bour land, J ustice
Be fore J ustices Pury ear , Field, a nd Bour land Affir med in Part; Reverse d and Remande d in Part Filed: June 22, 2018

Given the complex p ro ce d u ral history and the lack of information provided to us on 1 8 appea l, or indeed in our revie w of the rec ord, we have almost no information about the merits of the Deve loper’s TOMA claim. The sum total of the information contained in the rec ord seems to be the asser tion by the Deve loper that the City held an executive session on May 28, 2013, without proper notice, and its reque st that the actions taken by the City council as to the Deve loper as a result of that improperly noticed meeting be decla red void. S

ee T ex . Gov’t Code § 551.141 (ac tion by g overnme ntal body in violation of TOMA is voidable). We rec og nize that the Deve loper’s TOMA claim may have been rende red moot by the trial court’s det er m i n ations rela ted to the Contract’s validity

. See Mee ker v. Tarrant Cty. Coll. Dist. , 317 S.W .3d 754, 758-62 (Tex. App.—For t Worth 2010, pet. denied)

. Howeve r, due to t h e lack of information provided by the parties, we have no choice but to remand the c ause on this issue. 25