1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00036-CV

__________________

RIVER PLANTATION COMMUNITY IMPROVEMENT ASSOCIATION, 

Appellant

V.

RIVER PLANTATION PROPERTIES LLC AND PREISLER GOLF 

PROPERTIES LLC, Appellees

__________________________________________________________________

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

This 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 its quest to prevent 

property, formerly used as a golf course, from being developed 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 chains of title. For the reason explained 

below, the trial court did not err in refusing the Association’s request asking the 

court to declare 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 containing three nine-hole golf courses known as the 

Augusta, Biloxi, and Charleston courses—are burdened by an implied-negativereciprocal easement. In 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 exists burdening or restricting the manner they may use the property they 
3

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 property records of 

Montgomery Country for the River Plantation subdivision. The summary-judgment 

evidence they attached to their motions proves that in 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 sections of the River Plantation subdivision show areas marked on the 

maps filed by RP Development and Mischer as “Reserves.” The deeds through 

which RP Development and Mischer acquired their 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 courses, 

and tennis courts.

3 In the past, the golf course operations in the subdivision consisted 

of three nine-hole courses, the Augusta, the Biloxi, and the Charleston courses. But 

in 2018, the Charleston course was closed. Now, the operations of the golf courses 

involve the Augusta and the Biloxi courses and the clubhouse.

4

Upon learning Properties was planning 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, the Association alleged that RP Development and 

Mischer, who developed 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 those 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 entity, RP 

Development or Mischer, built the clubhouse, the tennis courts, the swimming pool, 

or the order in which the three nine-hole golf courses were built. 4

The record does not show whether the tennis courts and swimming pool are 

still being operated somewhere in the area designated on the plat maps as Reserves. 
5

be implied as to the Reserves because: (1) many homeowners had purchased homes 

in the subdivision after being told the subdivision offered a country-club lifestyle; 

(2) one section in the subdivision has around sixty lots labeled on maps as “golf 

course lots;” (3) two sections in the subdivision have several lots with setback 

restrictions consistent with the restrictions like those appliable to “golf 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 

restrictions as to the portion of the Reserves it acquired that restricted its right to use 

the property to “the operation of golf and tennis facilities and ancillary uses related 

thereto” for eleven years.

5

In the suit, the Association asked the trial court to declare an implied-negativereciprocal easement exists 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 developing and selling the lots they platted in the 

subdivision. The 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 consistent 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 

Properties LLC as 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.” The amended petition asked the trial court to declare an 

implied-negative-reciprocal easement exists, restricting Properties and Preisler from 

using the golf courses 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 traced

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

The 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 repurpose the Charleston course

or sell the tract it owns in the Reserves so that a developer 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 subdivision 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 subdividing the lots to create a countryclub lifestyle for the mutual benefit of the developers and for those who bought lots 

and built homes in the River Plantation subdivision. To support its claim asking the 

court to declare that an implied-negative-reciprocal easement existed on the 

Reserves, the Association pointed to (1) the plat maps and restrictions of record, 

noting the references in the maps and restrictions that refer to a “golf course,” “golf 

course lots,” and plat maps, which the Association argues depicts 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 representations by his realtor that the subdivision would 
8

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 May 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 determining its earlier order 

inadvertently included land Properties had sold and no longer owned—that is, land 

owned by Preisler since July 2018. The 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-negativereciprocal 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 area 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 clubhouse 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 those tracts in the subdivision as golf courses, 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 them addressed the 
10

counterclaims Properties and Preisler filed against the Association to recover 

attorney’s fees.

8

 

In December 2019, the 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 in River Plantation since 1974; (3) Ed Blackburne, 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, the Association filed an appeal.9

On appeal, the Association raises two issues. First, it argues the summaryjudgment 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 restricting their respective rights to use their tracts for any purpose but 

for golf. Second, the Association 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

The 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 

announcing 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. The 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 necessary for the services that were performed by 

the Association’s attorney.10

Analysis

Standard of Review

In its final order, the trial court declared that no implied-negative-reciprocal

easement burdened the tracts owned by Properties and Preisler in the River 

Plantation subdivision restricting their respective rights to use their tracts to golf, to 

using the tracts for a country club, or to using them for a recreational use. On appeal, 

we review rulings granting summary judgments de novo, “taking as true all evidence 

favorable to the nonmovant, and indulging every reasonable inference and resolving 

10See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (allowing a trial court to 

award costs and attorney’s fees on a claim for declaratory 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 party that filed a traditional motion for summary judgment attaches 

summary-judgment proof sufficient to establish no issue of material fact exists on at 

11Barbara 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). 

12Tex. R. Civ. P. 166a(c).

13Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010). 

14City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005). 
13

least one element of the plaintiff’s claim, “the burden shifts to the nonmovant to 

raise a genuine issue 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-judgment evidence, meaning the evidence the Association 

offered to prove its fees were reasonable, necessary, equitable, and just. We review 

a trial court’s ruling excluding evidence for abuse of discretion.16 In determining

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 

Judgments Act.

17

Application

A. Is there an implied easement?

First, we turn to the Association’s argument claiming the trial court erred in 

finding no implied-negative-reciprocal easement existed on the tracts Properties and 

Preisler own in the River Plantation subdivision. In 1969, for the first time, the Texas 

15Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). 16See Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017). 

17Id. (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 Declaratory 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

applies when an owner of real property subdivides it into lots and sells 

a substantial number of those lots with restrictive covenants designed 

to further the owner’s general plan or scheme of development. The 

central issue is usually the existence of a general plan of development. 

The lots retained by the owner, or lots sold by the owner from the 

development without express restrictions 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 used in violation of the restrictive covenants burdening the lots sold 

with the express restrictions.19

In Evans, the Texas Supreme Court explained that when a plaintiff seeks 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

• traceable to a common developer,

• who developed a tract of land for sale in lots, 

• who pursued a general plan or scheme to develop the land,

• for the benefit of himself and the purchasers of the various lots, and 

18MacDonald v. Painter, 441 S.W.2d 179, 183-84 (Tex. 1969) (holding that 

no covenant may be implied from filing a map depicting residential lots when neither 

the deeds or the map dedicating the lots restricted the owners from subdividing their

lots into additional lots).

19Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990). 
15

• by numerous conveyances, when selling the lots, the developer 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 golfcourse community. The Association argues the golf-course restriction they claim 

applies to Properties’ and Preisler’s tracts arose 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 Association is that the plat map and Declaration of 

Restrictions, which RP Development filed in 1964 when it dedicated the initial 

section of the subdivision, reflects that RP Development expressly excepted the 

Reserves from the uniform plan that applies to the lots shown in the map.21 The plat 

20See id. (citing Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 

679 (1963)).

21The restrictions filed by RP Development in 1964, which was before RP 

Development sold any of the land it owned in the subdivision to Mischer, contains 
16

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. And nothing in the deed 

restricts or limits 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 sections in the River Plantation 

subdivision that it developed. When Mischer recorded restrictions for the sections it 

developed bordering the Reserves, it excluded the Reserves from the uniform plan 

that applies 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 

Reserves 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 

subdivision 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 Reserves 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 conveyance of all such numbered lots

in River Plantation, Section One, . . . .” 22The 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 for 
17

homeowners living in the subdivision (the present and former members of the 

Association) bought their lots, the plats for River Plantation, they were on 

constructive notice of the recitals in in official property records maintained 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 restricted their own rights as to how they could use the Reserves. For 

example, nothing in the deeds, maps, or deed restrictions restricted RP Development 

or Mischer from using their tracts in the Reserves to swimming, tennis or golf, and 

nothing in these instruments filed of record devoted the Reserves to a general 

recreational use. 

So prospective purchasers of homes in River Plantation, looking at the recitals 

in the chain of title to their lots, were on constructive notices that RP Development 

and Mischer were not restricted 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 

improvement, 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 numbered 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 court 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 Plantation. Here, the plats 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 developed in the subdivision, the lots that are currently 

owned by members of the Association.

When Properties and Preisler moved for summary judgment, and when 

Properties and Preisler responded to the brief the Association filed here, both pointed 

to the language in the dedicatory instruments filed in Montgomery County’s 

property records excluding the Reserves from the subdivision’s uniform plan.

23 But 

the Association ignores that language in its brief and never explains why a 

reasonable factfinder could have ignored that language in the instruments RP 

23Properties 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 tracts 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 developers are reserving land for themselves that has been excluded 

from the subdivision’s uniform plan.

24 But that’s not what happened here. When 

courts have applied the reciprocal-easement doctrine, they have done so on facts 

proven at trial that showed 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 Plantation, documents in the official property 

record files of Montgomery County, include recitals that placed 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 the recitals of record notified 

prospective purchasers including those who are members of the Association that RP 

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

25Id. at 466-69.
20

Development and Mischer kept the Reserves (without restricting or limiting the use 

of the Reserves) for themselves.26

The Association’s remaining summary-judgment evidence fails to create a 

fact issue on its reciprocal-easement claim. The advertisements for River Plantation,

placed in a Conroe newspaper in the mid-60’s and early 70’s, the advertisements

placed in Conroe High School’s yearbook in the late 60’s and early 70’s, and the 

affidavit of George Gordon, who bought a home in River Plantation in 1974, all fail 

to show that the tracts owned by Properties and Preisler are burdened by an implied 

easement restricting their 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 

26See 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 purchaser 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.1950) (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 taxes of just 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[.]” Even 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 reasonably, cannot have been 

intended to imply that traffic patterns between Conroe and Houston in 1971 would 

remain 35 minutes forever. Instead, the ads 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 community 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 claims. According to Gordon, he saw sales brochures for River 

27The 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

Plantation 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 subdivision had a twenty-seven-hole course. 

While Gordon said that at first, he considered building a home 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 

revealed the realtor’s name or the name of his realtor’s employer. Gordon never 

claimed the realtor worked for or was an agent of Mischer, which the other summaryjudgment evidence shows is the entity responsible for developing section five.

As to section five, the summary-judgment evidence shows that in 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. The 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-judgment 
23

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 that the trial court 

correctly granted Properties’ and Preisler’s motions for summary judgment. First, 

the summary-judgment evidence traces 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-judgment evidence establishing that when RP Development and Mischer 

developed River Plantation, they carved out the Reserves and retained the Reserves 

for themselves without restricting the manner they could use the Reserves. The deeds 

and maps of record in Montgomery County do not restrict or contain covenants that 

restrict or limit RP Development or Mischer from using the Reserves for a specific 

purpose like golf. Third, the instruments used to dedicate the various sections of 

River Plantation 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 

28See Gaines v. Kelly, 235 S.W.3d 179, 183-84 (Tex. 2007) (explaining the 

declarations of the alleged agent, without more, are incompetent to establish the 

existence or scope of the agency relationship).
24

plan, the Association failed to respond with summary-judgment evidence precluding 

the trial court from granting summary judgment for Properties and Preisler on their 

claims asserting no reciprocal easement exists on the Augusta, Biloxi, and the former 

Charleston courses.

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 reciprocaleasement claim. 

B. Was the Association entitled to recover attorney’s fees? 

The Association raises two 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 excluded evidence the Association offered to 

prove its fees were reasonable and necessary for the services of its attorney.

The Association’s claim for attorney’s fees against both Properties and 

Preisler is based on the Uniform Declaratory Judgments 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 

29Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011. 

30Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). 
25

UDJA claim.

31 Assuming 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, the Association was not the party who prevailed in the 

trial, and it has not prevailed 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 shows 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

31Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 712-713 (Tex. 2021). 

32The Association presents the argument complaining 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).

33Tex. R. App. P. 44.1.
26

jury to decide what amount the Association should recover as a reasonable fee, if 

any, for the services that were necessary in the case for the services of its attorney.

The UDJA authorizes trial courts to award “costs and reasonable and 

necessary attorney’s fees as are equitable and just.”34 Under the UDJA, decisions

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 the Association, the trial court abused its discretion because it 

refused to consider evidence that addressed all four of the statutory UDJA factors

34Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Allstate Ins. Co. v. Irwin, 627

S.W.3d 263, 270 (Tex. 2021). 

35Allstate, 627 S.W.3d at 270. 

36Bocquet, 972 S.W.2d at 21. 37Id. 
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 nor 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 nonprevailing 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 overrule the Association’s second issue. 

Conclusion

We conclude the Association’s members, like all purchasers of real property,

are “bound by every recital, reference and reservation contained in or fairly disclosed 
28

by any instrument which forms an essential link” in their respective chains 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

restricting 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.

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