1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O . 09
- 20
- 00036
- CV

__________________ RIVER PLANTATION COMMUNITY IMPROVEMENT ASSOCIATION , Appellant
V. RIVER PLANTATION PROPERTIES LLC AND PREISLER GOLF PROPERTIES LLC, Appellee s

__________________________________________________________________ On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 17
- 07
- 08266
- CV

__________________________________________________________________ OPINION
An ancient philosopher once said : “ [N] othing is permanent except change.” 1
T his case is about change , and the effort by a property owners’ association to stop it. The property owners’ association , River Plantation Community Improvement

1 https://www.brainyquote.com/quotes/heraclitus_165537 (last checked April 7, 2022).2 Association, sued and lost in a summary

- judgment proceeding it s quest to prevent property , formerly used as a golf course , from being develope d into single

- family residential housing

. So, although we too are golfers, we too must follow Texas law that places every property owner on constructive notice of every recital in every document in the instruments that are in their chain s of title. For the reason explained below, the trial court did not err in refusing the Association’s request asking the court to decla re the defendants’ property permanently restricted to a recreational use like golf. Background The dispute arose over three large tracts of property in the River Plantation subdivision in Montgomery County . The Association sued and claimed the tracts owned by River Plantation Properties LLC (Properties) and Preisler Golf Properties LLC (Preisler)

— tracts contain ing three nine

- hole golf courses known as the Augusta, Biloxi, and Charleston courses

— are burdened by an implied

- negative

reciprocal easement. I n layman’s terms, this easement

— when the facts show it exists

— restricts a developer from using the property the developer owns in the subdivision in ways inconsistent with the uniform plan the developer created for the subdivision

. After the Association sued, Properties and later Preisler moved for
summary judgment , asserting that as a matter of law no implied

- negative

- reciprocal easement exist s burdening or restricting the manner they may use the property they3 own that lies in areas designated on plat maps for the subdivision section as
Reserves. To meet their summary

- judgment burden , Properties and Preisler relied on the plat maps, deeds and restrictions filed of record in the official pr operty records of Montgomery Country for the River Plan t ation subdivision. The summary

- judgment evidence they attached to their motions proves that i n 1963, River Plantation Development Company, Inc. (RP Development) filed the initial plat for the first of several sections of the subdivision, which has grown over the past fifty years into multiple platted sections of the River Plantation subdivision

. Over the next several decades, Walter M. Mischer Co. (Mischer) filed other plat maps for other sections of River Planation

. 2 All the recorded maps the developers filed show large areas of the subdivision were planned for use as single

- family residential lots

. That said, the
maps in five section s of the River Plantation subdivision show areas marked on the maps filed by RP Development and Mischer as “Reserves

. ” T he deeds through which RP Development and Mischer acquired the ir interests in the property now at issue ( tracts now owned by Properties and Preisler) are also in the summary judgment and appellate record. Nothing in the deeds or the maps filed of record

2 Mischer bought the land it owned in the subdivision from RP Development in 1966, with RP Development retaining a section of River Planation while also retaining a portion of the Reserves

.4 include language to indicate the areas identified as Reserves are restricted to any particular category of use, such as recreation, or for any specific use, like golf

. Over the years that RP Development and Mischer owned and used the
Reserves , they used the Reserves to build a clubhouse, three nine

- hole golf course s , and tennis court s
. 3 In the past, the golf course operations in the subdivision consisted of three nine

- hole courses , the August a , the Biloxi, and the Charleston courses
. But in 201 8, the Charleston course was closed. Now , the operation s of the golf courses involve the Augusta and the Biloxi courses and the clubhouse

. 4 Upon learning Properties was plan ning to sell the Charleston course to a developer who was planning to repurpose the course to build single

- family residences, the Association sued Properties and asked the trial court to issue a declaratory judgment

. In the suit, t he Association alleged that RP Development and Mischer , who develope d the subdivision, created the subdivision using a common plan and scheme designed to enhance the subdivision’s value, beauty, and design of the subdivision for the mutual benefit of the developers and t hose who bought lots there . According to the Association, a restriction limiting the Reserves to golf should

3 It is not clear from the summary

- judgment record about which entit y, RP Development or Mischer, built the clubhouse, the tennis courts, the swimming pool, or the order in which the three nine

- hole golf course s were built

. 4 The record does not show whether the tennis courts and swimming pool are still being operated some where in the area designated on the plat maps as Reserves.5 be implied as to the Reserves because : (1) many hom eowners had purchased homes in the subdivision after being told the subdivision offered a countr y - club lifestyle ; (2) one section in the subdivision ha s around six ty lots labeled on maps as “ g olf course lots ; ” (3) two sections in the subdivision have several lots with setback restrictions consistent with the restrictions like those appliable to “ g olf course lots ; ” and (4) in 1977, Plantation Management Company, acquired an area of the Reserves that covered most and possibly all of the Charleston course from RP Development

. After acquiring part of the Reserves, Plantation Management filed a declaration of restriction s as to the portion of the Reserves it acquired that restricted its r ight to use the property to “the operation of golf and tennis facilities and an cillary uses related thereto” for eleven years

. 5 In the suit, the Association asked the trial court to declare an implied

- negative

reciprocal easement exist s on the current owners of the areas historically used in the subdivision for golf because the original developers of the subdivision had employed

a common plan and scheme when develop ing and s elling the lots they platted in the subdivision

. T he Association asked the trial court to permanently restrict Properties

5 The deed from RP Development to River Plantation Management contains a reverter clause that restricts River Plantation Management’s right to use the property, the Reserves, to the restrictions co nsistent with the ones we have quoted above. No one argues that RP Development exercised the reverter clause in the deed used to assign the property to River Planation Management. Moreover, the reverter clause expired in 1988, more than three decades before the Association filed this suit.6 from developing or using the golf courses in River Planation from being used in any

manner inconsistent with golf

. In January 2019, the Association amended its petition and named Preisler Golf Prop erties LLC a s a defendant . In the amended petition, the Association alleged that Preisler owns the Augusta and Biloxi courses and the clubhouse. The Association alleged that Preisler disputes “ there is any implied restriction on the land such that its use could be converted to non

- golf course use at any time or sold to a buyer who would have no intention to use the land as a golf course and instead would use the land for any purpose.” T he amended petition asked the trial court to declare an implied

- negative

- reciprocal easement exists , restrict ing Properties and Preisler from using the golf course s in a manner inconsistent with golf “ and related amenities such as the country club.” In March 2019, Properties filed a traditional motion for summary judgment on the Association ’s declaratory judgment claims

. 6 In its motion , Properties trace d the history of River Plantation , the history of the golf courses , and tied those histories to the legal instruments filed of record in Montgomery County . Based on the information in Montgomery County’s official property records, Properties argued

6 T he motion we discuss in the appeal is Properties’ amended motion , but the amended motion is the live motion at issue in the appeal. The record shows that Properties moved for summary judgment nearly eighteen months before filing the amended motion, but that motion was never heard

.7 no restrictions exist on the rights Properties has to repurpos e the Charleston course or sell the tract it owns in the Reserves so that a de veloper may subdivide the tract into lots and build single

- family residences there

. Properties attached around 250 pages of records consisting of deeds, plat maps and restrictions of record on file in Montgomery County pertaining to the River Planation sub division to support its motion.
In the response to the motion, the Association relied on the same records to argue that when RP Development and Mischer created River Plantation they had created a uniform plan of development by subdivid ing the lots to create a country

club lifestyle for the mutual benefit of the developers and for those who bought lots and built homes in the River Plantation subdivision. T o support its claim asking the court to declare that a n implied

- negative

- reciprocal easement existed on the Reserves, the Association point ed to (1) the plat maps and restrictions of record, noting the refer ences in the maps and restrictions that refer to a “golf course , ” “golf course lots , ” and plat maps , which the Association argues depict s fairways, tee boxes and greens ; (2) summary - judgment evidence consisting of marketing and advertising materials , dated in the late ‘ 60s and early 70’s that marketed the subdivision as a golf

- course and country

- club community ; and (3) an affidavit from George D. Gordon, a resident of River Plantation who bought his home in 1974

. In the affidavit, Gordon swore he relied on representation s by his realtor th at the subdivision would8 be a “golf course community or subdivision” when he was deciding to buy the home. According to Gordon, he would not have bought the home had he known the developers were not obligated to continue using their tracts for golf

. In Ma y 2019, the trial court signed an interlocutory order and ruled that , as a matter of law, no implied

- negative

- reciprocal easement existed requiring Properties
to use the tracts it owns in River Planation in the Reserves as a golf course, country club, or for a recreational use. Less than two weeks later, the trial court amended its interlocutory summary

- judgment order after determin ing its earlier order inadvertently included land Properties had sold and no longer owned

— that is, land owned by Preisler sinc e July 2018. T he trial court vacated its earlier interlocutory
summary - judgment order and signed an another one, which grants Properties’ motion for summary judgment “ONLY AS TO [PLANTATION ’ S] REMAINING
LAND.” 7 The interlocutory order declares Plantation is free to use its remaining land “free of any use restriction or encumbrance by way of an implied

- negative

reciprocal easement that limits the use of the said property as a golf course, country club, recreational area, or in any other manner.”

7 As we understand the amended order, the remaining land is the a rea in River Planation formerly used as the nine

- hole Charleston course. It need not be said that when it comes to land, the better practice would be for a court’s orders to describe the property affected by the order more clearly than the description used in the interlocutory order

.9 Just three weeks later, Preisler filed its own traditional motion for summary judgment. Much like Properties, Preisler asked the trial court to declare “its property is not subject to any restrictions in favor of the Association, its members or the public.” Preisler used the same evidence the Association used to support its motion for summary judgment, meaning the same deeds and plats filed of record for the subdivision , which trace the history of the subdivision and the golf courses that are in it. Along with the certified copies of the property records for the subdivision, Preisler supported its motion with an affidavit from David Preisler . David Preisler swore that in July 2018, Preisler acquired the Augusta course, the Biloxi course, and the clubh ouse from Properties by special warranty deed. In June 2019, the trial court conducted a hearing on Preisler’s motion and then granted Preisler’s motion for summary judgment . Once again, the trial court found that no implied

- negative

- reciprocal easement existed on the property owned by Preisler in the Reserves in the River Plantation subdivision . For that reason, nothing required Preisler to use th ose tracts in the subdivision as golf course s , for a country club, or to devote tracts to a recreational use. That said, the summary

- judgment orders at this point remained interlocutory since none of the m address ed the10 counterclaims Properties and Preisler filed against the Association to recover attorney’s fees

. 8
In December 2019, t he trial court conducted an evidentiary hearing to decide whether to award attorney’s fees. Four witnesses testified in the hearing on fees : (1) Jamie Goodman, the president of the Association; (2) George Gordon, a homeowner who has lived i n River Plan t ation since 1974 ; (3) Ed Blackburn e , a homeowner who has lived in River Plantation since 1986; and ( 4 ) David Preisler, the president of Preisler Golf Properties LLC. Following the hearing, the trial court signed a final judgment and found “it would be neither equitable nor just to award attorney’s fees”
to any of the parties

. After that, t he Association filed an appeal. 9 On appeal, the Association raises two issues. First, it argues the summary

judgment evidence reveals an issue of material fact remains about whether an implied

- negative

- reciprocal easement exists on the tracts now owned by Properties and Preisler restrict ing their respective right s to use their tracts for any purpose but for golf. Second, the Asso ciation argues it is entitled to another hearing on whether

8 See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 ( providing that in any proceeding under the Declaratory Judgment Act, “the court may award costs and reasonable and necessary attorney’s fees as are equitable and just”)

. 9 T he River Plantation Municipal Utility District was at one time a party to this appeal. The Utility District was an intervenor in the suit , but while the appeal was pending, the Utility District informed the Court that it had settled its claims. After annou ncing its settlement, the Utility District filed an unopposed motion to dismiss, a motion the Court granted.11 it has a right to be awarded attorney’s fees on its claim for fees . According to the Association, the trial court erred on its declaratory judgment claim against Properties and Preisler by failing to allow a jury to decide what amount to award in fees before deciding whether an award of fees would be equitable and just. T he Association also
argues that as to its fees, the trial court erred in refusing to admit evidence it offered during the hearing on attorney’s fees to show that the fees the Association incurred

were reasonable in amount and necess ary for the services that were performed by the Association’s attorney. 10 Analysis Standard of Review
In its final order, t he trial court declared that no implied

- negative

- reciprocal
easement burden ed the tracts owned by Properties and Preisler in the River Plantation subdivision restrict ing their respective right s to use the ir tracts to golf, to using the tracts for a country club, or to us ing them for a recreation al use

. On appeal,

w e review rulings granting summary judgment s de novo , “ taking as true all evidence favorable to the nonmovant , and indulging every reasonable inference and resolving

10 See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (allowing a trial court to award costs and attorney’s fees on a claim for d eclaratory judgment if the fees are “reasonable and necessary” and “equitable and just”).12 any doubts in the nonmovant’s favor.” 11 To prevail on a traditional motion for summary judgment , the party that filed the motion must demonstrate “ that , except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in any answer or any other response.” 12 If the defendant conclusively negates a single essential element of the plaintiff’s cause of action , or the defendant conclusively establishes an affirmative defense , the defendant is entitled to summary judgment on that claim. 13 By definition, if evidence is conclusive on a question , it may be viewed in only one way , so only one conclusion is possible from evidence that is conclusive

. 14 At issue in the trial court and in the appeal is whether a fact issue exists based on the evidence the Association relies on to claim that the tracts in the subdivision now owned by Properties and Preisler are restricted by an implied easement restricting Properties ’ and Preisler’s tracts in River Planation to a recreational purpose like golf. When a p arty that filed a traditional motion for summary judgment attaches
summary - judgment proof sufficient to establish no issue of material fact exists on at

11 Barbara Techs. Corp. v. State Farm Lloyds , 589 S.W.3d 806 , 811 (2019); Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). 12 Tex. R. Civ. P. 166a(c). 13 Frost Nat’l Bank v. Fernandez , 315 S.W.3d 494, 508

- 09 (Tex. 2010). 14 City of Keller v. Wilson , 168 S.W.3d 802, 81 4 (Tex. 2005).13 least one element of the plaintiff’s claim, “the burden shifts to the nonmovant to raise a genuine issu e of material fact precluding summary judgment ” on the claim. 15
Besides complaining about whether the trial court correctly granted the motions for summary judgment, the Association complains that the trial court erred in excluding some of its summary

- judg ment evidence, meaning the evidence the Association offered to prove its fees were reasonable, necess ary, equitable, and just. We review

a trial court’s ruling excluding evidence for abuse of discretion. 16 In determin ing whether an abuse of discretion occurred, we consider whether the trial court excluded evidence without reference to the guiding rules and principles that apply to recovering attorney’s fees on a claim filed under the Uniform Declaratory Judgment s Act

. 17 Application
A. Is the re an implied easement? First, we turn to the Association ’s argument claiming the trial court erred in finding no implied

- negative

- reciprocal easement exist ed on the tracts Properties and Preisler own in the River Plantation subdivision. In 1969, for the first time, t he Texas

15 Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018)

. 16 See Starwood Mgmt. , LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017). 17

Id . (quoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985) ) ; Tex. Civ. Prac. & Rem. Code Ann. § 37.002(a) (providing “[ t ] his chapter may be cited as the Unform Decl aratory Judgments Act ” )

.14 Supreme Court recognized that the implied

- negative

- reciprocal easement doctrine existed under Texas law

— a doctrine we refer to in the opinion either as the reciprocal

- easement doctrine or as a reciprocal

- easement claim

. 18 Twenty

- one years later, the Texas Supreme Court explained the reciprocal

- easement doctrine

a

pplies when a n owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive cove nants designed to further the owner’s general plan or scheme of development. The central issue is usually the existence of a general plan o f development. The lots retained by the owner, or lots sold by the owner from the development without express restric tions to a grantee with notice of the restrictions in the other deeds, are burdened with what is variously called an implied reciprocal negative easement, or an implied equitable servitude, or negative implied restrictive covenant, that they may not be use d in violation of the restrictive covenants burdening the lots sold with the express restrictions. 19
In Evans , the Texas Supreme Court explained that w hen a plaintiff seek s to enforce a reciprocal

- easement claim against the grantor of the property (or the grantor’s successor) , the plaintiff must prove that both the plaintiff’s and defendant ’s
tracts are

• t race able to a common developer,
• who d eveloped a tract of land for sale in lots , • who pursued a general plan o r scheme to develop the land , • for the benefit of himself and the purchasers of the various lots, and

18 MacDonald v. Painter , 441 S.W.2d 179 , 183

- 84 (Tex. 1969) (holding that no covenant may be implied from filing a map depict ing residential lots when neither the deeds or the map dedicating the lots restrict ed the owner s from subdividing the ir lot s into additional lots ). 19 Evans v. Pollock , 796 S.W.2d 465, 466 (Tex. 1990).15 • by numerous conveyances, when selling the lots, the develop er inserted in the deeds substantially uniform restrictions, conditions, and covenants against the use of the property. 20 The Association argues the recorded plats, deeds, and restrictions of record for the River Planation subdivision show that RP Development and Mischer used a common plan and scheme in developing the subdivision and developed it as a golf

course community. The Association argues the golf

- course restriction they claim appli es to Properties ’ and Preisler ’s tracts ar ose from (1) express restrictions imposed on the lots in the River Plantation subdivision by RP Development and Mischer , (2) advertisements and representations the developers made to those who bought homes in the sixties and seventies in the subdivision, and (3) the plat maps and restrictions , filed of record, which gave those purchasing lots in the subdivision actual or constructive notice that RP Development and Mischer had a common plan and scheme to develop the subdivision as a golf

- course community. But the problem for the A ssociation is that the plat map and Declaration of Restrictions , which RP Development filed in 1964 when it dedicat ed the initial section of the subdivision, reflect s that RP Development expressly except ed the Reserves from the uniform plan that applies to the lots shown in the map. 21 The plat

20 See id

. (citing Minner v. City of Lynchburg , 204 Va. 180, 129 S.E.2d 673, 679 (1963)). 21 The restrictions filed by RP Development in 1964, which was b efore RP Development sold any of the land it owned in the subdivision to Mischer , contains16 maps for the sections of the subdivision later developed by Mischer followed the

same pattern. As to Mischer , the summary

- judgment evidence shows that in 1966, Mischer purchased property in River Plantation from RP Development

. Yet nothing
in Mischer’s deed from RP Development required Mischer to use the property it bought from RP Development, including the tracts it purchased in the Reserves, for any specific or general recreational purposes including golf

. A nd noth ing in the deed restrict s or limit s Mischer from selling the Reserves or subdividing the Reserves into additional lots and then developing those tracts for single

- family residences. In 1967, Mischer filed a plat to develop the first of the section s in the River Plantation subdivision that it developed

. When Mis c her recorded restrictions for the section s it developed border ing the Reserves, it exclude d the Reserves from the uniform plan that applie s to the lots in the subdivision. 22 Stated another way, when the

twenty

- three separately numbered paragraphs and an introductory paragraph that is not numbered . The initial unnumbered paragraph includes language that excepts the R eserves from the uniform plan that RP Development created for developing River Plantation . RP Development accomplished that by using the following language: “[RP Development], a Texas Corporation, being the owner of that certain sub d ivis i on known as River Plantation, . . . and desiring to create and carry out a uniform plan for the improvement, development and sale of all the numbered lots (excluding the Rese rves shown) in River Plantation , Section One,

. . , does hereby adopt and establish the following reservations, restrictions, covenants and easement to apply uniformly in the use, occupancy and conveyanc e of all such number ed lots in River Plantation, Sect ion One, . . . . ” 22 The restrictions Mischer filed in 1967 consists of twenty

- three numbered paragraphs. The initial paragraph in the restrictions, which is not numbered , includes language excepting the Reserves from the uniform plan that Mischer developed for17 homeowners living in the subdivision (the present and former members of the Association ) bought their lots , the plat s for River Plantation , they were on constructive notice of the recitals in in official property records mainta ined in Montgomery County , recitals that show RP Development and Mischer both excluded the Reserves from the uniform plan that applies to the lots. And those who purchased lots were also on constructive notice that RP Development and Mischer had not restri cted the ir own rights as to how they could use the Reserves

. For example, n othing in the deeds, maps, or deed restrictions restricted RP Development or Mischer from using the ir tracts in the Reserves to swimming, tennis or golf , and nothing in these instru ments filed of record devoted the Reserves to a general recreational use.
So prospective purchaser s of home s in River Plan t ation , looking at the recitals in the chain of title to their lots , were on constructive notices that RP Development and Mischer were not restrict ed to using the Reserves for a specific purpose like golf

the subdivision. Mischer did that by using the following language: “[ Mischer ], a Texas Corporation, being the owner of that certain subdivision known as River Plantation, Section Two,

. . . , desiring to create and carry out a uniform plan for the imp rovement, development and sale of all the numbered lots (excluding the Reserves shown) in River Plantation , Section Two,

. . . do [es] hereby adopt and establish the following reservations, restrictions, covenants and easement to apply uniformly in the use , occupancy and conveyance of all such number ed lots in River Plantation, Section Two . . . .” Other sections that Mischer developed in River Plantation , which also border the Reserves , contain the same language excluding the Reserves from the uniform plan

.18 or from further subdividing the Reserves into lots for single

- family residences

. The Association asked the trial court to imply that a restriction existed on Properties ’ and Preisler’s tracts. However, the Association then never explained to the trial cour t and has not explained to this Court why a factfinder could reasonably imply a restriction when the legal instruments to the tracts, filed of record, exclude the Reserves from the uniform plan created by the developers in River Plan t ation

. Here, the plat s and subdivision restrictions are in the summary

- judgment evidence . They show that RP Development and Mischer never intended to include the Reserves in the uniform plan created for the lots being develop ed in the subdivision, the lots that are currently

ow ned by members of the Association.
W hen Properties and Preisler moved for summary judgment , and when Properties and P r eisler responded to the brief the Association filed here , both pointed
to the language in the dedicatory instruments file d in Montgomery County ’s property records exclud ing the Reserves from the subdivision’s uniform plan

. 23 But the Association ignore s that language in its brief and never explain s why a reasonabl e factfinder could have ignore d th at language in the instruments RP

23 Properties and Preisler attached certified copies of the relevant documents tracing the properties they own to the original developers of the subdivision, RP Development and Mischer.19 Development and Mischer filed of record when relying on what tracts were included in the subdivision’s uniform plan. Of course, we recognize that when developing tract s of land for sale , developers may by their conduct create an equitable servitude by creating a uniform plan of development when they sell lots without having given prospective purchasers notice that the developer s are reserving land for themselves that has been excluded from the subdivision’s uniform plan

. 24 But that’s not wh at happened here. W hen courts have applied the reciprocal

- easement doctrine, they have done so on facts proven at trial that s h owed the purchasers were given no actual or constructive notice of the fact the developer ’s property was not include in the subdivision’s uniform plan. 25 So unlike Evans , the case the Association relies on, the plat maps and subdivision restrictions for River Plan t ation, documents in the official property record files of Montgomery County , include recitals that p laced the owners of lots in River Plantation on notice of the fact that the Reserves in River Plantation were excluded from the subdivision’s uniform plan

. And t he recitals o f record notified prospective purchasers including those who are members of the As sociation that RP

24 See Evans , 796 S.W.2d at 466. 25 Id . at 466

- 69.20 Development and Mischer kept the Reserves ( without restricti ng or limiting the use of the Reserves) for themselves. 26
T he Association ’s remaining summary

- judgment evidence fails to create a fact issue on its reciprocal

- easement claim. The ad vertisement s for River Plantation , placed in a Conroe newspaper in the mid

- 60 ’ s and early 70 ’ s , the ad vertisements placed in Conroe High School ’s yearbook in the late 60 ’ s and early 70 ’ s , and the affidav it of George Gordon , who bought a home in River Plan t ation in 1974 , all fail to show that the tracts owned by Properties and Preisler are burdened by an implied
easement restrict ing the ir rights to use the tracts to a recreational use like golf. First, we will discuss the information in the ads

. In general , the ads were placed by someone who chose to advertise River Plantation as a place where there were tennis courts, Olympic outdoor pools, outstanding school districts, and that had

26 See Tex. Prop. Code Ann. § 13.002(1) (“An instrument that is properly recorded in the proper county is . . . notice to all persons of the existence of the instrument [

. ] ”); Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex.1982) ( explaining that a purcha ser of real property “ is bound by every recital, reference and reservation contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims”); see also Adams v. Rowles , 228 S.W.2d 849, 853 (Tex.19 50) ( noting in a trespass to try title action that the respondent ’ s chain of title showed the respondent held title to his land with reference to a dedicatory plat duly recording a valid public road , so since the dedication was in the respondent ’s chain of title, the respondent was charged with knowledge of its existence and “ took his land burdened with the roadway ” )

.21 property tax es of j ust two

- thirds of that on properties in Houston. 27 In the 1971 Conroe High School yearbook, River Plantation is advertised as a subdivision just “35 minutes from downtown Houston on [the] Dallas Freeway (Interstate 45) just past the San Jacinto River[.]” E ven though the summary judgment does not reveal whether RP Development, Mischer, or whether another entity created and placed the ad , we doubt the ads were intended to imply that the subdivision would never change. Stated another way, the ads , when viewed reasonabl y, cannot have been intended to imply that traffic patterns between Conroe and Houston in 1971 would remain 35 minute s forever

. Instead, the ad s about the commute, the tennis courts, the swimming pools, the schools, and the golf course do nothing more than inform potential buyers about the advantages of living in the subdivision on dates contemporaneous with those the ads were placed

. Nothing in the ads represent that River Plantation was designed or planned as a com munity with recreational opportunities the developers permanently dedicated to recreation, including recreational uses like swimming, tennis, and golf

. George Gordon’s affidavit doesn’t raise a fact issue either on the Association’s claim s
. According to Gordon, he saw sales brochures for River

27 The summary

- judgment evidence does not show whether the ads were placed in the newspaper or annual by RP Development, by Mischer, by a homebuilder, or by a realtor

.22 Plan t ation in the early 70’s when he was looking for a home. River Plantation , Gordon explained, was advertised as a golf course and country club community

. Gordon swore that in the 70’s , the subdivisi on had a twenty

- seven - hole course

. While Gordon said that at first, he considered building a ho me in another section of the subdivision , he decided to buy an existing home in section five of the subdivision in 1974 , a section which , when he bought the house, had holes of a golf course in the section . Gordon still lives in his same home today. While Gordon swore his realtor told him the subdivision would stay a golf

- course community , he never reveal ed the realtor ’s name o r the name o f his realtor ’s employer. Gordon never claim ed the realtor worked for or was an agent of Mischer, which the other summary

judgment evidence shows is the entity responsible for developing section five. As to section five, the summary - judgment evidence shows that i n 1969, Mischer dedicated section five by filing a deed for that section of the subdivision

. The deed creates a uniform plan , which applies to the lots in section five . T he deed , however, excludes the Reserves from the uniform plan

. Mischer filed the deed dedicating section five in Montgomery County’s property records , so Gordon was on constructive notice of the recitals in the deed as the recitals in the deed dedicating section five are in the chain of title to Gordon’ s home

. And no summary - judgment23 evidence shows the unnamed realtor Gordon referred to in his affidavit acted with implied or apparent authority on behalf of Mischer when selling Gordon his home

. 28 To sum it up, we conclude for the following four reasons t hat the trial court correctly granted Properties ’ and Preisle r ’s motions for summary judgment . First, the summary - judgment evidence trace s the title to the properties at issue

— the Augusta course , the Biloxi course, and the former Charleston course

— to a common grantor, RP Development . Second, both RP Development and Preisler presented
summary - judg m ent evidence establish ing that when RP Development and Mischer developed River Plantation, they carve d out the Reserves and retained the Reserves for themselves without restrict ing the manner the y could use the Reserves . The deeds and maps of record in Montgomery County do not restrict or contain covenant s that restrict or limit RP Development or Mischer from using the Reserve s for a specific
purpose like golf. T hird, the instruments used to dedicat e the various sections of River Plan t ation bordering the Reserves ( filed by RP Development and Mischer in the 60’s and 70’s and filed in official property records of Montgomery County ) exclude the Reserves from the subdivision’s uniform plan. Fourth, faced with evidence that RP Development and Mischer excluded the Reserves from the uniform

28 See Gaines v. Kelly , 235 S.W.3d 179, 18 3

- 84 (Tex. 2007) ( explaining the declarations of the alleged agent, without more, are incompetent to establish the existe nce or scope of the agency relationship).24 plan, the Association failed to respond with summary

- judgment evidence pre c luding the trial court f rom granting summary judgment for Propert ies and Preisler on their claim s asserting no reciprocal easement exist s on the Augusta , Biloxi, and the former Charleston course s
. We overrule the Association’s first issue and hold the Association failed to raise a genuine issue of material fact precluding summary judgment on its reciprocal

easement claim.
B. Was the Association entitled to recover attorney’s fees? The Association raises t w o procedural arguments to support its claim that it should receive a new trial on its claim for attorney’s fees

. First, we will address the Association’s complaint the trial court exclud ed evidence the Association offered to
prove its fees were reasonable and necess ary for the services of its attorney

. T he Association ’s claim for attorney’s fees against both Properties and Preisler is based on the Uniform Declaratory Judgment s Act , the UDJA for short

. 29 Under the UDJA, a party need not prevail at trial to recover attorney’s fees because the statute allows a trial court a measure of discretion in deciding whether to award fees. 30 Even so, while there are several factors in deciding whether to award fees, the most critical factor courts must consider is whether the party prevailed on its

29 Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001

- .011. 30 Bocquet v. Herring , 972 S.W.2d 19, 20 (Tex. 19 9 8).25 UDJA claim

. 31 A ssuming the trial court erred in excluding the Association ’ s evidence, the Association never explains how the error was harmful even though the bills were marked in the hearing and they are among the exhibits in the appellate record. And on top of that, t he Association was not the party who prevailed in the trial, and it has not prevail ed in its appeal. 32
We further find that even if the trial court erred in excluding the Association ’s evidence, the Association was not harmed by the error. The evidence sh ows the Association’s members were on constructive notice of every recital in the instruments filed of record in Montgomery County’s property records for the River Plantation subdivision , recitals that exclude the Reserves from the uniform plan that applies to the lots

. Even had the trial court admitted the exhibit, we conclude the error probably did not cause the trial court to render an improper judgment or prevent the Association from properly presenting any argument in its appeal

. 33 Last, the Association argues the trial court erred in deciding whether an award of attorney’s fees was “equitable and just” before empaneling a jury and allowing a

31 Farmers Grp., Inc. v. Geter , 620 S.W.3d 702, 712

- 713 (Tex. 2021). 32 The Association presents the argument c omplaining about the trial court refusing to consider the evidence it offered on fees in a single sentence of its brief without citing any authority. Even so, we need not resolve its argument based on the Association’s failure to cite legal authority to support its issue

. See Ross v
. St. Luke’s Episcopal Hosp ., 462 S.W.3d 496, 500 (Tex. 2015) (citing ERI Consulting Eng ’ rs, Inc. v. Swinnea , 318 S.W.3d 867, 880 (Tex. 2010)) ; see also Tex. R. App. P. 38.1(i). 33 Tex. R. App. P. 44.1.26 jury to decide what amount the Association should recover as a reasonable fee , if
any, for the ser vices that were necessary in the case for the services of its attorney

. The UDJA authorize s trial courts to award “ costs and reasonable and necessary attorney’s fees as are equitable and just.” 34 Under the UDJA , decision s about whether to award an attorney a fee are placed in the trial court’s sound discretion , and in the appeal, we review the trial court’s decision about whether to award fees and if so how much using an abuse

- of

- discretion standard

. 35 In deciding whether or not to award fees and deciding how much to award, we review the trial
court ’s exercise of discretion based on four factors :

• the “ fees must be reasonable [ ; ]”
• the “ fees must be necessary [ ; ]”
• the fees must be equitable; and
• the fees must be just. 36
The first two factors are questions of fact , while the last two are treated as questions of law. 37 According to t he Association , the trial court abused its discretion because it refused to consider evidence that addressed all four of the statutory UDJA f actors

34 Tex. Civ. Pr ac. & Rem. Code Ann. § 37.009; Allstate Ins. Co. v. Irwin , 62 7 S.W.3d 263, 27 0 (Tex. 2021). 35

Allstate , 627 S.W.3d at 270. 36 Bocquet , 972 S.W.2d at 21

. 37

Id

.27 before declining to award the Association anything on its claim for attorney’s fees. To be fair, its argument might have had more traction if the argument was one being made by a party who prevailed . But neither Properties n or Preisler

— although they prevailed

— were not awarded anything for their fees . Even so, Properties and Preisler have not complained about the trial court’s decision awarding them nothing for their fees. And we further note we have found no legal authority to support the Association ’s claim that it is an abuse of discretion for a trial court to decide it is not “equitable and just” to award a non

- prevailing party fees under the UDJA before empaneling a jury to consider and decide what would be a reasonable and necessary fee for the services of the attorney for a party that did not prevail

. It strikes us that empaneling a jury for that purpose under circumstances like these in most circumstances would create more legal expenses when the equities indicate the non

prevailing party is likely to leave without any award. We conclude the trial court did not abuse its discretion by finding the Association, the non

- prevailing party on its UDJA claim, was entitled to nothing in fees. Accordingly, we over rule the Association’s second issue. Conclusion
We conclude the Association’s members, like all purchaser s of real property ,

are “ bound by every recital, reference and reservation contained in or fairly disclosed28 by any instrument which forms an essential link ” in the ir respective chain s of title

. 38 For that reason, we affirm the trial court’s final judgment declaring that the Augusta, Biloxi, and Charleston golf courses are not burdened by a reciprocal

- easement restrict ing Properties and Preisler from using their tracts in the Reserves for a purpose that differs from a recreational purpose like golf. We also affirm the trial court’s judgment denying the claims of all parties to recover attorney’s fees

. AFFIRMED.

_________________________ HOLLIS HORTON Justice Submitted on August 19, 2021 Opinion Delivered April 28, 2022 Before Golemon , C.J., Horton and Johnson, JJ.

38 Westland Oil , 637 S.W.2d at 908

.