## IN THE SUPREME COURT OF TEXAS

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### No. 16-0323

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### J OHN 

### A. L ANCE 

### , D EBRA 

### L. L ANCE 

### , F.D. F RANKS 

### , AND 

### H ELEN 

### F RANKS 

### , P ETITIONERS 

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v. 

### J UDITH AND 

### T ERRY 

### R OBINSON 

### , G ARY AND 

### B RENDA 

### F EST 

### , V IRGINIA 

### G RAY 

### , B UTCH



### T OWNSEND AND 

### B EXAR 

### -M EDINA 

### -A TASCOSA 

### C OUNTIES 

### W ATER 

### C ONTROL AND 

### I MPROVEMENT 

### D ISTRICT 

### N O



### . 1., R ESPONDENTS

══════════════════════ ════════════════════ O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE F OURTH D ISTRICT OF T EXAS

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Argued November 7, 2017
J USTICE B OYD delivered the opini on of the Court.
J USTICE B LACKLOCK did not participate in the decision. So stupendous is the conception, so vast the scale of actual accomplishment in the construction of the Medina Dam Project that thousands of its nearest neighbors have positively no conception of the immensity of this undertaking. Yet, by a strange twist of Fate’s perversity, this everlasting monu ment to man’s mastery over the greatest forces of nature has achie ved a deserved fame in the four corners of the earth, until not only the kings of finance, but royalty itself has leaned forward from its g ilded throne and hearkened to the resistless lure of this giant among enterprises. 1

1 1920s sightseeing brochure touting a “lovely scenic ride” to Medina Dam, http://www.edwardsaquifer.net/medina.h tml (last visited March 23, 2018).2 One hundred years ago, the Medina Valley Ir rigation Company (MVICO) embarked on an ambitious plan to create a func tional oasis in the Texas Hill C ountry. The project, which included the Medina Dam, the Diversion Dam a few miles downstream, and a twenty-six-mile canal system, was an engineering marvel at the time. Wh en MVICO completed th e Medina Dam in 1912, it became the largest dam in the state and the fourth largest in the country. By the time the lake first reached its capacity in 1919, the 254,000 acre-feet of water creating 100 miles of live-oaked shoreline had become a popular destination. In addition to the scenic views and recreational opportunities in the Box Canyon west of San Antonio, the project has provided agricultural irrigation, prevented flooding, supplied drinking wa ter, and offered a peaceful place to live or enjoy a weekend home. 2 But the project has faced its challenges as we ll. Seventy men died wh ile constructing the dam. The investors and operators endured financial defaults and receiverships. Droughts and the canyon’s porous limestone have repeatedly left docks stranded on a lake bed dry enough for cattle grazing. Floods and aging have required expensiv e re-stabilization efforts. And disputes over ownership and easement rights in the land surrounding the lake have resulte d in repeated and protracted litigation. In this case, three families who own lots on a peninsula at Medina Lake filed suit after their new neighbors denied them access to an open- space area the community has long considered public space for recreation and access to the la ke. The new neighbors claim they own the open-

2 See Medina Lake , T EXAS S TATE H ISTORICAL A SSOCIATION , https://tshaonline.org/handbook/online/articles/rom09 (last visited March 23, 2018); Zeke MacCormack, 100 Years Later, Medina Dam Still a Marvel , S AN A NTONIO E XPRESS & N EWS , (Aug. 20, 2012), http://www.mysanantonio.com/news/lo cal_news/article/100-years-later-da m-still-a-marvel-3799952.php; Rob McCorkle, Medina Dam at 100 , T EXAS H IGHWAYS (June 2012), http://www.texashighways.com/blog/item/4544- speaking-of-texas-medina-dam-at-100.3 space area and that the community members have no easements or other rights to use it. The plaintiffs contend that a local wa ter district owns the land, and al ternatively, that they have an easement right to use it regardless of who owns it. The trial court and court of appeals agreed with the plaintiffs. We affirm in pa rt and reverse in part and rema nd the case to the trial court.
I. Background To develop the Medina Dam Project, MVICO had to acquire property rights from those whose lands would be flooded to create the lake. MVICO acquired those rights in various forms from numerous different landowners, including Ther esa Spettle and her three daughters. In January 1917, the Spettles conveyed slightly over 1,500 acr es to MVICO. The deed for this conveyance (the Spettle Deed) descri bes eighteen separate tracts by referr ing to each tract’s acreage amounts, prior surveys, and metes and bounds. For example, the deed describes the tract that included the land at issue in this case as “104.5 acres, more or less, off the West end of Survey No. 231-Adams, Beaty, & Moulton, Medina [3] County, Texas, more particularly described by metes and bounds as follows: Commencing at point ''0 1'', thence . . . ,” followed by numerous calls describing specific distances in particular directions, until finally “to place of beginning.” The Spettle Deed provides that the lands conve yed to MVICO were to “be used forever as a reservoir for storing water a bove” the Medina Dam, “for use in the maintenance and operation of the Irrigation System.” It expressly give s MVICO the right to “submerge” the property

3 The tract is actually located in Ba ndera County. The defendants’ expert opined that the mi staken reference to Medina County renders the deed ambiguous. But the tria l court refused to consider his report because it was filed after the deadline for summary-judgment evidence, in supp ort of the Petitioners’ motion for rehearing. Although the Petitioners cite to this evidence in their appellate briefing, th ey do not complain of the trial court’s refusal to consider it. They have also never relied on that portion of the expert’s report for any argument made in this Court or the courts below.4 conveyed “by backing water from its dam over said la nds.” It also reserves for the Spettles rights to “use” the waters and to construct improvement s “upon the edges of the re servoir,” specifically: (1) The right to use the waters in th e reservoir for domestic purposes; (2) The right to use the wate rs in the reservoir for bathing, boating, fishing and hunting; and, (3) The right to construct upon the edges of the reservoir at their own peril and expense and without any liabili ty of the grantors [sic] for the destruction thereof by water or otherwise, such improvements as may be necessary and incident to the exercise of the privileges above reserved by the grantors, their heirs and assigns, which privileges are to be exerci sed by said parties only to the extent and in proportion which the acreage above described bears to the total acreage under the flow line of said reservoir. About six months after executing the Spettle Deed, Theresa and her daughters executed another deed through which they partitione d among themselves about 4,000 acres of their remaining land in Bandera and Medina counties, wh ich until then they held jointly in common. In this Partition Deed, each of the Spettles agreed, on be half of themselves “and their heirs and assigns,” that Theresa would own certain tracts totaling 928 acres, her daughter Mathilda Spettle Redus would own tracts totaling 728 acres, and Ma thilda’s two sisters w ould jointly own the remaining acres. The Partition Deed describes each of the tracts by referring to acreage amounts, previous surveys, and boundaries based on points, directions, distances , and various natural markers. The Deed partitions the respective la nds to each of the Spettles “TO HAVE AND TO HOLD . . . with all and singular the hereditaments and appurtenanc es thereunto belonging, or in anywise incident or appertaining . . . as her separate estate, her heirs and assigns . . . in fee simple and forever.” As mentioned, the Spettle Deed grants MVICO the right to “submerge” the land it acquired from the Spettles “by backing water from its dam over said lands,” and it permits the Spettles to exercise their reserved rights and privileges “only to the extent and in proportion which the acreage5 above described bears to the total acreag e under the flow line of said reser voir.” Apparently alluding to those references, the Partition Deed refe rs to “the backwater or flow line” as one of the natural markers used to describe the partitioned tracts’ boundaries. For example, the deed describes the lands partitioned to Mathilda as including “197 acr es of Survey No. 231 in name of Adams, Beaty & Moulton,” described “more particularly ” by metes and bounds beginning at a “stake set on [MVICO]’s backwater or flow line,” returning a few times to points along the “backwater or flow line,” continuing at one point “along with the meanders of said backwater or flow line, as surveyed for [MVICO],” and finally re turning to “the place of beginning.” The land at issue in this case is on a narrow peninsula at Medina Lake known as Redus Point, which was originally part of the 728 acr es partitioned to Math ilda Spettle Redus. Respondents Judith and Terry Robinson, Gary and Br enda Fest, and Virginia Gray (collectively, the Robinsons) own Lots 1, 2, and 3, respectivel y, in the Redus Point Addition Subdivision. The peninsula generally runs from north to south, and th e lots sit along the western edge, atop an incline or “cliff” as high as fift y feet above the water when the lake is full. Although it is possible to access the water below the cliff from these lots, the steep, rocky incline makes it di fficult and, at least to some degree, unsafe. Because of this, the Robi nsons and other Redus Point lot owners have regularly accessed the water along the peninsula’s gently sloping eastern side, usually using an open space east of Fauries Road, which runs from nor th to south along the peninsula. Since at least the 1970s, the Robinsons and other lot owners have constructed improvement s in this open space, including walkways, a dock, a boat ramp, and a deck. Although the open space has long been surrounded by a low post-and-cable fence, the community members have freely used the open space as a place for recreation a nd easy access to the water.6 The Robinsons claim that their joint rights to use and improve the open space derives from the Spettle Deed, in which the Spettles reserved to themselves and “their heirs and assigns” the right to “use the waters in the reservoir” for domestic and recreational pu rposes and to “construct upon the edges the reservoir . . . such improvement s as may be necessary and incident to the exercise of [those] privileges.” They contend that Theresa Spettle and her three daughters, including Mathilda, each retain ed these rights in the Partitio n Deed as “hereditaments and appurtenances . . . belonging, or in anywise incident or appertai ning” to their partitioned lands. More specifically, the Robinsons contend that the Spettle Deed granted MVICO fee-simple ownership in all of the land up to a point that is even with the height of the top of Medina Dam, which the parties refer to as Elevation 1084. The Robi nsons assert that the Sp ettle Deed’s reference to MVICO’s right to use the land for “backing wa ter” to a “flow line” refers to Elevation 1084, which—they say—constitutes the boundary between the land MVICO acquired and the land the Spettles retained. When the lake is full, however—as opposed to either low or flooded—the water reaches only up to a point that is even with the top of a spillway that is ad jacent to and twelve feet below the top of the dam. The parties refer to this point as Elevation 1072. Beca use of the spillway, the lake reaches only to a meandering line at El evation 1072, leaving a dry area around the lake between Elevation 1072 and Elevation 1084. Because the difference consists of altitudinal feet, the twelve-foot span covers only a short distance on th e cliffs on the west side of the peninsula but extends a much longer distance on the gently slopi ng eastern side. The Robinsons argue that this dry area between Elevation 1084 and Elevation 1072—often referred to as the “contour zone”— was acquired by MVICO in the Spettle Deed and now belongs to MVICO’s successor-in-interest,7 the Bandera-Medina-Atascosa Counties Water Improve ment District No. 1 (the Water District). According to the Robinsons, “the backwater or flow line” in the Partition Deed refers to Elevation 1084, and the contour zone between that line and Elevation 1072 constitutes the “edges of the reservoir” and the “acreage under the flow line” upon which the Spettles reserved the right to construct improvements necessary to exercise th eir right to use the water for domestic and recreational purposes. The open space where the R obinsons and other Redus Point residents have gathered and constructed improvements lies within th is contour zone. The residents appear to have shared the view that they, as Mathilda Spettle Redus’s “assigns,” jointly hold the right to enjoy and construct improvements within the contour zone, at least ar ound the Redus Point peninsula. In October 2011, however, John and Debra Lance purchased Lo t 8 on Redus Point, which sits across Fauries Road from the open-space area. Within a few months, the Lances began replacing the old post-and- cable fence with a new three-rail fence and posting “No Trespassing” signs. In April 2012, the Lances sent a letter to J udith Robinson, notifying her that they intended to construct a fence “on our pr operty” and asking her to rem ove the wood deck from “our property.” When the Robinsons challenged the Lances’ claim to the open space, the Lances produced two deeds they received from Lot 8’s prior owners, F.D. and Helen Franks. The first deed—a Warranty Dee d—describes the “Property” conveyed as “Lot 8, of Redus Point Addition,” as identified in the plat file d for the Redus Point subdivision. The deed conveys title to Lot 8, “together with a ll and singular the rights and appurtenances thereto in any wise belonging,” and expressly excepts any “portion of the Property lyi ng or being situated below the 1084' Contour Line of Medina Lake, Bandera County, Texas.” Bu t it then conveys “any portion8 of the Property lying or being situated below the 1084' Contour Line . . . without express or implied warranty” or any common-law or statutory warranties. In the second deed—entitled Deed Without Warranty—the Franks c onveyed title to the open-space area, defined as “a 0.282 acre tract of la nd, more or less, out of the Adams, Beaty and Moulton Survey No. 231, Abstract No. 18, in Bandera County, Texa s.” Exhibit A to this Deed Without Warranty further describes the property conveyed as “being on Medina Lake adjacent to Lot No. 8,” with boundaries running from the “north east corner of Lot No. 8,” across Fauries Road to an iron rod in “‘the 1072 Cont our,” then “along said ‘1072 Cont our,’” then back across Fauries Road to “the most southerly corn er of said Lot No. 8,” and then “along the southeast line of said Lot No. 8” to the beginning point. In other word s, the Deed Without Warra nty purports to convey the area in the contour zone be tween Elevation 1084 and Elevation 1072 that lies east of Lot 8, which includes the disputed open space. In contrast to the Robinsons’ theory, the La nces contend that the Spettle Deed granted MVICO fee-simple ownership only up to Elevati on 1072, and not up to El evation 1084. In their view, the Spettle Deed’s and Partition Deed’s refe rences to the “backwater or flow line” refer to the top of the spillway, not the t op of the dam, because the lake stores water only up to the spillway. Thus, the Spettle Deed conveyed the land up to Eleva tion 1072 to MVICO, not up to Elevation 1084, and the Partition Deed partitio ned the land down to that same point, so the Spettles retained ownership of the land in the contour zone. An d, according to the Lances, the Deed Without Warranty confirms that they purchased the portion of that land that constitutes the disputed area from the Franks.9 The Robinsons filed this suit against the Lan ces and the Franks (collectively, the Lances) in June 2012, asserting claims for declaratory ju dgment, nuisance, and use of a fraudulent deed under Chapter 12 of the Civil Practices and Remedi es Code. They later amended their petition to add claims to quiet title, for intentional infliction of emotional distress, intentional invasion of privacy, and civil conspiracy. They sought tempor ary and permanent injunctive relief, declaratory relief, actual damages, statutory damages, exempl ary damages, court costs, and attorney’s fees. The trial court granted a temporary restraining or der and later a temporary injunction, finding that the Lances failed to esta blish that the Franks ha d any interest in the pr operty the Deed Without Warranty describes. 4 The Robinsons moved for partial summary judgment on their claim for declaratory judgment and on some elements of their claim for violations of Chapter 12. See T EX

. C IV

. P RAC

. & R EM

. C ODE § 12.003(a)(8). While that motion was pendi ng, the Water District filed a petition in intervention asserting that it “owns the land below Elev ation 1084 which encompasses the entire tract of land purportedly transferre d from the Franks to the Lances” in the Deed Without Warranty. The Water District asserted cl aims for declaratory judgment, Chapter 12 violations, and civil conspiracy. The trial court granted the Robinsons’ moti on for partial summary judgment and entered an order declaring that:

4 The Lances did not take an interlocutory appeal from the temporary-injunction order, but later filed a motion to dissolve the injunction on the ground that the Robinsons l acked standing to challenge the Lance’s ownership of the disputed area and thus the trial court lacked jurisdiction. The trial court denied that motion, and the Lances did take an interlocutory appeal from that order. The appellate court affirmed, finding that the Robinsons have standing as “interested persons” in light of their claim to an easemen t across the disputed area and to ownership of the dock and other improvements. Lance v. Robinson , No. 04-12-00754-CV, 2013 WL 820590, at *1 (Tex. App.—San Antonio, Mar. 6, 2013, no pet.).10 - the Deed Without Warranty did not convey any ownership interest in the disputed area to the Lances because the Fran ks had no such interest to convey, - the Water District owns the disputed ar ea, as successor to MVICO as grantee under the Spettle Deed, - the Robinsons and the Lances have easem ents to use and construct improvements in the disputed area, as assignees of the rights the Spettles reserved in the Spettle Deed and Mathilda retained in the Partition Deed, - the Deed Without Warranty is an “inva lid cloud and burden” on the Robinsons’ easement rights, - the Deed Without Warranty is a “d eed or other record ” under Chapter 12, - the Lances and Franks used the Deed W ithout Warranty with an intent to “create the appearance of an actual conveyance of ownership in the disputed area,” pursuant to Chapter 12, and - the Robinsons own an “express easement” in the disputed area and have standing under Chapter 12. 5 Following an extended hearing on the Lances ’ motion for rehearing, the trial court amended its order by striking through the declarati on that the Water Distri ct owns the disputed area. As a result, on the issue of ownership, the final summary-judgment order declares that the Lances do not own the disputed area, but it does not declare who does own it. The Robinsons then moved to sever the court’s order into a new cause , and both the Robinsons and the Water District moved for their attorney’s fees. The trial court granted the motions, severed the order into a new cause, and entered a final judgmen t awarding attorney’s fees to the Robinsons and the Water District. The Lances appealed, the court of appeal s affirmed, and we granted the Lances’ petition for review.

5 The trial court denied the Robinsons’ request for an additional declaration that the Lances and Franks used the Deed Without Warranty with intent to cause the Ro binsons to “suffer financial injury” under Chapter 12.11 II. Summary-Judgment Evidence
The Lances first contend that the trial c ourt erred in granting the Robinsons’ summaryjudgment motion because the Robinsons failed to attach any of the re levant deeds to that motion. At the earlier temporary-injuncti on hearing, the Robins ons offered certified copies of the deeds into evidence, and the trial court admitted th em without objection. In their summary-judgment motion, the Robinson’s expressly “referenced and sp ecified” the injunction-hearing transcript and exhibits “as evidence in support of” the motion. At the summary-judgment hearing, the trial court judge had the temporary-injunctio n transcript—including the deed s and other exhi bits—in front of him, reviewed the deeds, an d discussed them with counsel, in cluding the Lances’ counsel, who never raised this issue or otherwise objected on the ground that the Robinsons had not re-filed the deeds as attachments to their summary-judgment motion. Nevertheless, the Lances now contend that the Robinsons failed to meet their summar y-judgment burden because the deeds were not in evidence. The court of appeals held th at any defect in the summar y-judgment evidence was not substantive, and thus the Lances waived this i ssue by failing to object in the trial court. — S.W.3d —, 2016 WL 147236, at *4–5 (Tex. App.—San An tonio 2016). Rely ing primarily on MBank Brenham, N.A. v. Barrera , 721 S.W.2d 840 (Tex. 1986) (per curiam), the Lances argue that a movant’s failure to attach su mmary-judgment evidence to a su mmary-judgment motion creates a complete absence of evidence and thus constitute s substantive error that requires reversal even without an objection because all summary-judgmen t evidence must be “part of the summary judgment record.” We disagree. It is true that the complete ab sence of evidence necessary to12 support a summary judgment constitutes a substantiv e error that may be ra ised for the first time on appeal. Id. 842 (holding that “no evidence existed” to create a fact issue because respondent “never filed [the evidence] with th e court as summary judgment proof”). 6 But in MBank and similar cases, the necessary evidence was completely absent from the trial court’s file, and not just from the “summary judgment record.” The Lances acknowledge that the trial court admitted the deeds as evidence at the temporary-injunction hearing, but c ontend that the Robinsons had to re-file them as attachments to their summary-judgment motion. Whether this alleged error involved th e “form of the summaryjudgment record” or its “substance” is irrelevant because the alleged error was not error at all. Our rules require a trial court to grant a summary-judgment motion if the evidence “ on file at the time of the hearing , or filed thereafter and before judgment with permission of the court,” establishes that the movant is “entitled to judgment as a matter of law.” T EX

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. P. 166a(c) (emphasis added). 7 Here, the deeds were indisputably “on file ” with the court at the time of the summaryjudgment hearing. At the very end of the tem porary-injunction hearing, after the Robinsons’ attorney asked if he should “withdraw” the exhib its, the trial court announced, “I’m going to leave all the exhibits with the file.” The court’s docke t sheet reflects that the court reporter filed the

6 See also Sorrells v. Giberson , 780 S.W.2d 936, 937 (Tex. App.—Austin 1989, writ denied) (holding that appellant’s failure to object to appellee’s failure to a ttach promissory note to summary-judgment affidavit was “irrelevant to the issue of the sufficie ncy of [appellee’s] proof to support su mmary judgment” because the note “was completely absent from the summary judgment record” and thus could not “serve as a basis for summary judgment”); Trimble v. Gulf Paint & Battery, Inc. , 728 S.W.2d 887, 888 (Tex. App.—Houston [1st Dist. 1987, no writ) (holding that failure to attach exhibits to summary-judgment evidence was a substan tive defect because a summary-judgment motion “must be supported by its own summary judgment proof” and, “in order to constitute part of the summary judgment evidence, must be a ttached to the affidavit”).

7 The parties may rely on discovery products “not on file with the clerk” if they time ly file copies “or a notice containing specific references to the discovery . . . together with a statement of intent to use the specified discovery as summary judgment proofs.” T EX

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. P. 166a(d).13 deeds with the court clerk that same day, just as the rules require. See T EX

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. P. 75a (requiring court reporter to “file with the clerk of the cour t all exhibits which were admitted into evidence . . . during the course of any hearing, proceeding, or trial”). The record thus establishes beyond doubt that the deeds were “on file at the ti me of the hearing,” as rule 166a requires. Nevertheless, the Lances contend that the deed s cannot be considered “filed” because they do not appear in the clerk’s record of the summ ary-judgment hearing. Similarly, they argue the Robinsons could not rely on the deeds for summ ary-judgment purposes because they did not request an exhibits volume from the temporary- injunction hearing until after the case was on appeal. Therefore, they argue, “the record cont aining the deeds did not ex ist at the time of the summary judgment hearing.” “At a minimum,” they assert, “summary judgment evidence must be part of the summary judgment reco rd in such a way that when the parties bring that record to an appellate court, that ev idence will be found in th at appellate record.” These arguments conflate the trial court’s “file” with the clerk’s and reporter’s “records.” Compare T EX

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. P. 75b (requiring all “filed exhibits” to “remain at all times in the clerk’s office or in the court or in the custody of the clerk”) with T EX

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. P. 34.5, 34.6 (designating what “filings” should be included in the appellate record). The fact that evidence is not included in a clerk’s record or reporter’s record does not mean it was not “on file” with the trial court. While the trial court’s “file” always exists, the court cl erk and court reporter do not prepare the “record” until requested. See T EX

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. P. 34.6(b)(1), 35.1, 35.3. An item ma y be on file with the court yet “omitted” from the record and thus “supplemented” to the record. T EX

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. P. 34.5(c). Here, while the deeds may not have been incl uded in the “summary judgment record,” the appellate record confirms that th ey were on file with the court at the time of the summary-judgment14 hearing because they had been offered and admitted at the prior temporary-injunction hearing. They thus qualified as proper summary-judgment ev idence, and the trial cour t did not err by relying on them. See, e.g. , Stark v. Morgan , 602 S.W.2d 298, 304 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (holding exhibit “offe red” at prior temporar y-injunction hearing was “on file with the court” and thus properly “before the trial court for the purposes of the hearing on the motion for summary judgment”). 8
III. Summary-Judgment Burden The Lances next argue that the trial court e rred by granting summary judgment because the Robinsons did not meet their summary-judgment bur dens to support the tria l court’s declarations. Specifically, they challenge the trial court’s de clarations that (A) th e Lances do not own the disputed area, (B) the Robinsons have an express easement over the disputed area, and (C) the Robinsons established certain elemen ts of their Chapter 12 claim. In addition, they contend that (D) the trial court erred by awar ding attorney’s fees to the Robinsons and to the Water District.

8 See also, e.g. , Galindo v. Snoddy , 415 S.W.3d 905, 914 (Tex. App.—Texarkana 2013, no pet.) (holding trial court was required “to consider th e explicitly referenced summary judgment evidence that was on file” with the court); Kastner v. Jenkens & Gilchrist, P.C. , 231 S.W.3d 571, 581 (Tex. App.—Dallas 2007, no pet.) (noting that the rules “do not require that summar y judgment evidence be physica lly attached to the motion”); Johnson v. Driver , 198 S.W.3d 359, 363 (Tex. App.—Tyler 2006, no pet.) (holding exhibits not attached to summary-judgment motion but attached to opposing party’s response “were prop erly before the court at the time it ruled”); Gerald C. Marshall & Co. v. Gilley , No. 11-93-248-CV, 1994 WL 16189969, at *3 (Tex. App.—Eastland Nov. 17, 1994, no writ) (not designated for publication) (holding evidence submitted with two earlier summary-judgment motions were “on file” when judgment was entered and constituted “adequate summary judgment evidence”); R.I.O. Sys., Inc. v. Union Carbide Corp. , 780 S.W.2d 489, 492 (Tex. App.—Corpus Christi 1989, writ denied) (holding evidence “on file prior to the summary judgment hearing,” including documents a ttached to earlier summary-judg ment motion, were “proper summary judgment evidence”); Vaughn v. Burroughs Corp. , 705 S.W.2d 246, 248 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding eviden ce attached to earlier summary-judgment motion was “properly before the court”); Dousson v. Disch , 629 S.W.2d 111, 112 (Tex. App.—Dallas 1981, writ dism’d w.o.j.) (holding documents filed four months before summary-judgment motion were proper summary judgment evidence).15 A. Ownership interests The trial court granted summar y judgment declaring that th e Deed Without Warranty did not convey any ownership interest in the disputed area to the Lan ces because the Franks had no such interest to convey, and that the Deed W ithout Warranty is therefore an “invalid cloud and burden” on the Robinson’s easement rights. Initially, th e court also declared that the Water District owns the disputed area, but it deleted that decl aration in its amended su mmary-judgment order. The court’s judgment thus declares that the Lanc es do not own the disputed area, but it does not declare who does own it. The Lances challenge these declarations, ar guing that the Robins ons did not bring the proper cause of action to challenge the Deed Without Warranty, that the Robinsons lacked standing to challenge the validity of the Deed Without Warranty, that the Robinsons were required to establish who does own the disputed area to prove that the Lances do not own it, and that the Robinsons failed to prove either of those facts. The Lances also complain that the appeals court failed to adequately address some of these argu ments in violation of Te xas Rule of Appellate Procedure 47.1. Although the court of appeals did inadequately address some of the Lances’ arguments, none of the arguments merit reversal of the trial court’s ownership declarations.
1. Legal theories The Robinsons pleaded and sought summary judgment on their cl aims regarding the parties’ rights to th e disputed area under the Declarator y Judgments Act. The trial court’s declarations included declarations that the Lances do not have any ownership interest in the disputed area because the Franks had no interest in that land to conve y in the Deed Without Warranty. The Lances argue that the Declaratory Judgments Act is the wrong vehicle to determine16 title to the disputed area. Instead , they argue that the Robinsons ha d to plead and prove claims for trespass to try title. The Lances further argue that none of the Robinsons’ claims supported the declaration that the Lances have created an “invalid cloud” on th e alleged easement. We hold that the Declaratory Judgments Act was the proper mechanism by which the Robinsons could seek declarations regarding th e Lances’ authority to obstruct the Ro binsons’ access to the disputed area.

a. Trespass to try title The Lances argue that the trial court’s “rulings concerning ownership, both for and against,” cannot be determined in a suit for declaratory judgment, but instead “must be presented and determined under Trespass to Try Title principles .” In response, the Robinsons assert that they were not required to file a trespass-to-try-titl e action because they do not claim any ownership or possessory rights to the disputed area, and inst ead are seeking only to protect their alleged

easement. 9 We agree with the Robinsons. The issue of whether a claimant must seek re lief related to property interests through a trespass-to-try-title action, as opposed to a suit under the D eclaratory Judgments Act, has been the source of some confusion in this Court and othe rs. The Declaratory Judgments Act provides that a “person interested under a deed . . . or whose rights, status, or other legal relations are affected

9 The Robinsons also respond by arguing that (1) the La nces waived this complaint by failing to adequately address it in their brief on the merits in this Court; (2) a declaratory-judgment action is an appropriate vehicle for an “equitable plea” to set aside a deed that is “fake” or fraudulent, even if the eff ect of the declaration is to determine title; and (3) the Deed Without Warranty is effectively a mere quitclaim deed that “raises no presumption of ownership, and therefore does not put title into issue.” While we agree that the Lance’s briefing on this point is less than robust, they do clearly assert that “rulings concerning ownership, both for and against, must be presented and determined under Trespass to Try Title principles,” and that “finding owne rship, or a lack thereof, in a party with a valid deed, is a determination involving ownership and that determination cannot be made under the Declaratory Judgments Act.” While they failed to directly support these statements with c itations to authority in their opening brief, they did cite and address several relevant authorities when discussing the Robinsons’ responses to these points. Without deciding the Robinsons’ waiver argument, we w ill liberally construe the Lances’ brie f and proceed to address this issue. Because we agree that the Robinsons we re not required to file a trespass-to-try-title action because they do not claim any ownership or possessory right to the disputed area, we need not address their alternative arguments.17 by a . . . contract . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of ri ghts, status, or other le gal relations thereunder.”
T EX

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. P RAC

. & R EM

. C ODE § 37.004(a). This action “provides an efficient vehicle for parties to seek a declaration of ri ghts under certain instruments.” Martin v. Amerman , 133 S.W.3d 262, 265 (Tex. 2004). But the Texas Property Code states that a “trespass to try title action is the method of determining title to lands, teneme nts, or other real property.” T EX

. P ROP

. C ODE § 22.001(a) (emphasis added). Actions under th is statute “involve detailed pl eading and proof requirements.”
Martin , 133 S.W.3d at 265 (citing T EX

. R. C IV

. P. 783–809). “To prevail in a trespass-to-try-title action, a plaintiff must usually (1 ) prove a regular chain of conve yances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proo f that possession was not abandoned.” Id. (citing Plumb v. Stuessy , 617 S.W.2d 667, 668 (Tex. 1981)). Through the ye ars, the issue of whether claimants were required to seek reli ef through a trespass-to-try-t itle action has b een relevant to such questions as whether this Court had jurisdiction on appeal, whether particular proof was required to prevail, whether res judicata applied when the claimant was involved in multiple suits, and whether the parties could recover their attorney’s fees. See id. at 264–67 (describing history of such disputes). 10

10 The issue of which theory applies when the par ties dispute a boundary line between their adjacent properties presented particular difficulties for the courts. The parties to such a dispute necessarily compete for title to the disputed strip between the asserted boundaries, but they typically do not contest their opponent’s ownership subject to the proper boundary. See Martin , 133 S.W.3d at 267. We thus held that, although such boundary disputes must be brought as trespass to try title actions, the requirements ar e “relaxed” when “there would have been no case but for the question of boundary,” so th at “a recorded deed is sufficient to show an interest in the disputed property without having to prove a formal chain of superior title.” Id. at 265, 268 (citing Plumb, 617 S.W.2d at 669). The Legislature has since amended the Declaratory Judgments Act to expre ssly provide that, notwithstanding the trespass-to-try-title statute, a claimant may sue for declaratory relief “when th e sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.” T EX

. C IV

. P RAC

. & R EM

. C ODE § 37.004(c).18 The trespass-to-try-title statut e, however, only applies when the claimant is seeking to establish or obtain the claimant’s ownership or possessory right in the land at issue. While section 22.001(a) may be unclear on this point, see T EX

. P ROP

. C ODE § 22.001(a) (“A trespass to try title action is the method of determining title.”), subsequent sections pr ovide greater clarity. See id. §§ 22.002 (requiring the claimant to demonstrate “evid ence of . . . sufficient title to maintain a trespass to try title action”), .003 (describing th e judgment in a trespass-to-try title action as establishing “title or right to possession . . . against the party from whom the property is recovered”). Our procedural rule s thus require the petition in a trespass-to-try-title action to expressly state that “the plainti ff was in possession of the premises or entitled to such possession.”
T EX

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. P. 783(d). We have explained that the “plaintiff in a trespass to try title action must allege and prove the right to present possession of the land.” City of Mission v. Popplewell , 294 S.W.2d 712, 714 (Tex. 1956). For example, we have held that clai mants who sought to establish a future remainder interest in land that was subjec t to a life estate could not obtain such re lief though a trespass-totry-title action becau se the claimants “had no right of po ssession to the property at that time.” Dougherty v. Humphrey , 424 S.W.2d 617, 621 (Tex. 1968). The tr espass-to-try-title statute “is typically used to clear problems in chains of title or to recover possession of land unlawfully withheld from a rightful owner,” an d the plaintiff in such an action must “establish superior title” to the property. Martin , 133 S.W.3d at 265. A trespass-to-try-title plaintiff, in other words, “must recover upon the strength of his own title.” Rogers v. Ricane Enters., Inc. , 884 S.W.2d 763, 768 (Tex. 1994); see Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 926 (Tex.19 2013) (noting that a determination of the claimant’s “legal intere sts and possessory rights . . . is the very relief that the trespass- to-try-title statute governs”). For this reason, we have explained that the tres pass-to-try-title statute does not apply to a claimant who seeks to establish an easement, because such a claimant “does not have such a possessory right.” Popplewell , 294 S.W.2d at 714. An easement “i s a nonpossessory interest that authorizes its holder to use the pr operty for only particular purposes.” Marcus Cable Assocs., L.P. v. Krohn , 90 S.W.3d 697, 700 (T ex. 2002) (citing R ESTATEMENT (T HIRD ) OF P ROPERTY (S ERVITUDES ) § 1.2 cmt. d). A claimant who prevails on a claim to establish an easement cannot prevail on a trespass-to-t ry-title claim wit hout also establishing title or a possessory right. Dougherty , 424 S.W.2d at 621. We hold that the Robinsons were not required to file a trespass-to-try-title action to assert their alleged easement rights over the disputed area in Redus Point. In seeking to establish alleged easement rights, the Robinsons do not assert any ow nership or possessory interest in the disputed area. Although they do allege that the Water Distri ct owns the disputed ar ea and they challenge the Lances’ ownership claim, it wa s not necessary to resolve the ow nership issue to determine the Robinson’s easement rights. The Robinsons claim to have an easement over the disputed area regardless of whether the Water District or the Lances own the land, and a trespass-to-try-title action is not required when “ownership of the fee is not determinative of the existence of the
easement” Popplewell , 294 S.W.2d at 714. Nevertheless, the Robinsons challenged the La nces’ denial of access to the disputed area on two different grounds. First, they argued that the Lances cannot deny them access because the Lances do not own the disputed area. Second, they argued that even if the Lances own the area,20 the Robinsons have an easement over the disputed area. The trial court’s declarations regarding ownership ( i.e. , that the Deed Without Warranty did no t convey any ownershi p interest in the disputed area to the Lances because the Franks ha d no such interest to convey) relate to the first argument, not to the second. But the Robinsons s ought these declarations to defend their alleged nonpossessory easement, not to asse rt superior title or possessor y rights in themselves. We hold that they could properly pursue that relief unde r the Declaratory Judgments Act, and were not required to sue for trespass to try title. The Water District, however, intervened and alleged that it is th e “title owner of the disputed tract and the surroundi ng area below Elevation 1084.” Li ke the Robinsons, the Water District sued under the Declaratory Judgments Act, seeking declarati ons that it owns the disputed area and that the Lances do not. Because the Water District asserted superi or title and possessory rights in itself, it could only bring that claim as a su it for trespass to try title. The trial court initially declared that the Water District owns the lan d, but it later amended its order to strike that declaration. Although the trial court declared that the Lances do not own the land, the effect of that declaration could only deprive the La nces of the right to exclude th e Robinsons; it could not resolve any ownership dispute between the Lances and th e Water District. Because the Lances and the Water District assert competing claims for superior title to the disputed area, those claims must be resolved through a suit for tres pass to try title. The summary-j udgment order before us today, however, does not resolve that dispute.
b. Suit to quiet title The Lances argue that the trial court erred by declaring that the Deed Without Warranty is an “invalid cloud and burden” on the Robinson’s eas ement rights. First, they contend that the21 Robinsons “did not plead a cause of action in equity to remove a cloud on an easement. And importantly, they did not move for summary j udgment on this ground.” Alte rnatively, they argue that a party cannot sue to quiet title by removing a cloud on title unless the party owns the title allegedly clouded. Because the Robinsons do not clai m ownership in the disputed area, the Lances argue the Robinsons were not entitled to any d eclaration quieting title in the disputed area or removing any cloud on their alleged easement. Based on the record before us, we agree th at the Robinsons’ pleadings do not support the trial court’s declaration. In their original petition, the Robinsons did not plead any claim to quiet title. They did plead such a claim in their fifth amended petition, requesting legal and equitable relief to “cancel, quiet and remove the cloud cr eated by the [Deed Without Warranty] from their easement rights, dominant estate and/or other rights in the disputed tract.” But the Robinsons filed their fifth amended petition three months after they filed their motion for partial summary judgment. The record does not include any prior amended petitions, so we are unable to determine whether they pleaded a quiet -title claim before they moved for summary judgment. In their summary-judgment motion, the Robins ons moved for a declaration that the Deed Without Warranty “is an invalid cloud on the owners hip rights of the plain tiffs and [the Water District] in the disputed area.” As the Lances note, however, the Robinsons do not assert any “ownership rights” in the disputed area, and the judgment declared that the Deed Without Warranty creates an “invalid cloud” on the Robinsons’ ease ment rights, not on any ownership rights. We agree with the Lances that th e Robinsons’ pleadings do not suppor t the trial court’s declaration. We can find no evidence or indication, however, that the Lances ever object ed to the invalid-cloud declaration on that ground.22 The court of appeals held that the Lances waived any complaint about the invalid-cloud declaration by failing to adequate ly brief the issue. — S.W.3d at —. We agree with the Lances that the court of appeals erred in this conclusion. Th e Lances asserted in their brief to the court of appeals that a “deed cannot be a cloud on an easement” and a “cl oud on title” only exists when a claim or encumbrance affects or impairs “the title to the owner of the property,” citing Hahn v.
Love , 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Di st.] 2009, pet. denied). Because the Robinsons “are not claiming to be the owners of th e disputed area,” and “[b] ecause it is irrelevant who owns the land, there is no such thing as a d eed causing an invalid cloud on an easement.” We hold this argument, thou gh brief, was sufficient to preserve the substantive argument on appeal. We have never addressed the nuanced differenc es between quiet-title claims, trespass-totry-title claims, and mode rn declaratory-judgment claims in any real depth. And although we have noted in passing that a claim “for declaratory ju dgment . . . to remove cloud from title to their ‘easements’” appeared sufficient, see James v. Drye , 320 S.W.2d 319, 323 (Tex. 1959), we have never directly addressed the question of whether a quiet-title claim is an appropriate vehicle to remove a cloud on an easement. The Texas courts of appeals have addressed quiet-title actions more extensively, explaining that such an actio n, “also known as a suit to remove cloud from title—relies on the invalidity of the defendant’s claim to the property.” Essex Crane Rental Corp.
v. Carter , 371 S.W.3d 366, 388 (Tex. App.—Houst on [1st Dist.] 2012, pet. denied) (citing Longoria v. Lasater , 292 S.W.3d 156, 165 n.7 (Tex. App.—San Antonio 2009, pet. denied)). More specifically, the appellate courts have stat ed that a “suit to ‘quiet title’ and a ‘trespassto-try-title claim’ are both actions to recover pos session of land unlawfully withheld, though a23 quiet-title suit is an equitable remedy whereas a tr espass-to-try-title suit is a legal remedy afforded by statute.” Cameron Cty. v. Tompkins , 422 S.W.3d 789, 797 (Tex. App.—Corpus Christi 2013, pet. denied). The quiet-title suit exists “to enable the holder of the feeblest equity to remove from his way to legal title any unl awful hindrance having the appearance of better right.” Bell v. Ott , 606 S.W.2d 942, 952 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.) (quoting Thomson v. Locke , 1 S.W. 112, 115 (Tex. 1886)). The plaintiff in a quiet-t itle suit “must prove, as a matter of law, that he has a right of ownership and that the adverse claim is a cloud on the title that equity will
remove.” Essex Crane , 371 S.W.3d at 388 (citing Hahn, 321 S.W.3d at 531). These decisions appear to support the Lances’ ar gument that an equitable quiet-title action is available only to those who cl aim ownership in the property w hose title is allegedly “clouded.” The Robinsons, however, cite to other appellate -court decisions that a ppear to support their argument that such actions provide an appropr iate method to remove a cloud on an alleged

easement. See, e.g. , Anderson v. McRae , 495 S.W.2d 351, 356–57 (Tex. App.—Texarkana 1973, no writ) (holding subdivision lot owners were entit led to seek to quiet title through Declaratory Judgments Act for recreational easements in areas adjacent to lake); Howard v. Young , 210 S.W.2d 241, 243 (Tex. Civ. App. 1948, writ ref’d n.r.e.) (holdi ng quiet title and injunctive relief were appropriate remedies when an easement’s dimens ions and validity were at issue). We find it unnecessary to decide that issue here, however, because the parties have identified no reason why the answer would make any difference in this case. If the trial court properly declared that the Deed Without Warranty conveyed no owners hip interest to the Lances or that the Robinsons enjoy an easement over the disputed area rega rdless of who owns it, the declar ation that the Lances created an “invalid cloud and burden” on the easement is irre levant. And if the trial court erred by both its24 ownership and easement declarati ons, its invalid-cloud declaration cannot stand. We thus decline to issue any advisory opinions in this case regard ing the nature and requir ements of a quiet-title action.
2. Standing The Lances argue that the trial court’s owners hip declarations constitute error because the Robinsons lack standing to challenge the De ed Without Warranty. Relying primarily on our decision in Nobles v. Marcus , 533 S.W.2d 923 (Tex. 1976), they argue that a claimant who is not a party to a deed cannot sue to se t it aside. And until a court sets a deed aside, it remains “valid and represents prima facie evidence of title.” Id. at 926; see also Morlock, L.L.C. v. Bank of N.Y. , 448 S.W.3d 514, 517 (Tex. App.—Houston [1st Dist .] 2014, pet. denied) (“A third party lacks standing to challenge this voidabl e defect in the assignment.”); Lopez v. Morales , No. 04-09- 00476-CV, 2010 WL 3332318, at *3 (T ex. App.—San Antonio, A ug. 25, 2010, no writ) (mem. op.) (“[A] suit to set aside a deed obtained by fraud can only be maintained by the defrauded party.”). We do not agree that the Nobles rule applies here. The Nobles plaintiffs sought to enforce a judgment lien against property the judgment debtor, Macoa, had deeded to others. Nobles , 533 S.W.2d at 925. But instead of pleading and proving “the re had been a fraudulent conveyance that was a fraud upon” themselves, the plaintiffs alle ged that the deed was invalid because Macoa’s corporate officer committed forgery and a fraud against Macoa by signing the deed without authority. Id. at 925–26. They pleaded these acts “as frauds upon the co rporation and not as fraud upon their own rights as creditors.” Id. at 926. After holding that the facts did not support a forgery25 claim, we held that the plaintiffs lacked stan ding to pursue the void-for-f raud claim because deeds “procured by fraud are voidable only, not void, at the election of the grantor.” Id. We did not hold in Nobles that grantors are the only parties who can ever sue to set aside a deed for fraud. In fact, we noted that the law is “well settled in Texas” th at creditors who plead a fraudulent-conveyance claim—mean ing a claim for fraud against themselves as creditors—may “maintain an action ‘to v acate a fraudulent conveyance of his debtor’s land.’” Id. at 925 (quoting Eckert v. Wendel , 40 S.W.2d 796, 797 (Tex. 1931)). But because “only the person whose primary legal right has been breached may seek redress for an injury,” a creditor cannot seek to set aside a conveyance based on fraud against the grantor

. Id. at 927. “A suit to set aside a deed obtained by fraud can only be maintained by the defrauded party.” Id. “The plaintiffs lack standing to bring the present action, not because they incompletely pleaded the elements of a fraudulent conveyance but because they pleaded fraud, and under those plea dings they were not the defrauded party.” Id. In this case, however, the Robinsons do not s eek to set aside the Deed Without Warranty based on fraud by the grantees (the Lances) against the grantors (t he Franks). Rather, their claim is that the Lances and the Franks both committed fraud against third parties (the Robinsons) by creating and presenting a deed that purports to conve y an interest that neith er of them owns. The Robinsons have standing to challenge the deed’s effect on their alleged easement because they are the ones who are allegedly suffering harm. If the deed is fraudulent or othe rwise invalid, the Franks as grantors are not harmed; the Robinsons are. Whether the Robinsons can challenge the deed as fraudulent or merely as ineffective to convey a ny interest does not matter; in either case, the Robinsons, who allege an easement interest in th e land, may seek a declaratory judgment that the deed conveyed no ownership interest. We conclude that the Robinsons have standing to seek a26 declaration that the deed is ineffective because th ey allege the deed harms their own interests, not those of the part ies to the deed.
3. Evidentiary support Having concluded that the Robi nsons had standing to sue for ownership declarations and that their pleadings support that relief, we now turn to the Lan ces’ arguments that the evidence does not support the declarations. The court of appeals did not address these evidentiary arguments. Instead, after holding that the deeds were properly in evidence and that the Robinsons were not required to sue for tres pass to try title, the court conc luded that none of the Lances’ remaining arguments could be “construed to challe nge the trial court’s” declarations regarding ownership. — S.W.3d —. The Lances complain that the court of appeals violated Rule 47.1 by failing to address “every issue raised and nece ssary to final disposition of the appeal.” See T EX

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. P. 47.1; see also Sloan v. Law Office of Oscar C. Gonzalez, Inc. , 479 S.W.3d 833, 834 (Tex. 2016) (“This Court has held that ‘this provision is mandatory, and the courts of appeals are not at liberty to disreg ard it.’”) (quoting West v. Robinson , 180 S.W.3d 575, 577 (Tex. 2005) (per curiam)). Any issue that is not properly presented on appeal, however , is not considered raised for purposes of Rule 47.1. Further, Rule 47.1 requires onl y that the court of appeals address issues necessary to dispose of the appeal. T EX

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. P. 47.1. We agree with the Lances that they challeng ed the ownership evidence on appeal. In their merits brief, 11 the Lances argued that the evidence did not conclusively establish that they had no

11 The brief’s “Issues Presented” included whether the Robinsons met “their burden of conclusively establishing each element of their cau ses of action,” and whether the trial court had a “factual basis to render a summary judgment for the Plain tiffs declaring that the Deed Without Warran ty did not convey ownership or that the Franks had no ownership interest to convey to the Lances or that the Lances do not own the disputed area.” In the “Summary of the Argument” section, the Lances asserted that, beyond the alleged procedural errors, the Robinsons27 ownership in the disputed area because (1) the R obinsons’ expert agreed that “there are a number of homes that have been built below elevation 1084 along Medina Lake’s (former) shoreline,” and that testimony “conflicts with the [Robinsons’] testimony that they believe they have access to lake property at any location if the property is below elevation 1084”; and (2) F.D. Franks (the grantor in the Deed Without Warra nty) “testified that it was his in tent to convey whatever rights, if any, he had to that area to th e Lances.” The Lances argued that this evidence created a fact issue, so “ownership of the disputed area remains disputed and as long as that di spute remains, there can be no determination of title.” In short, they asserted, “Nothing was conclusively proven at the hearing on the issues of ownership to the disputed area or the easement rights of the Plaintiffs to the disputed area.” We agree that the court of appeals should have addressed these evidentiary arguments, however meritless they may be. But they are meritless, and we agree with the trial court that, at least on this record, no evidence could support a finding that Lances own the disputed area. The Lances rely on the Deed Without Warranty to establish their ownership, but no evidence establishes th at the Franks had any interest in the land that deed describes. The onl y deed by which the Franks obtained any interest in land on Redus Point is the deed the Franks re ceived from their predecessors, the Prados. That deed, however, describes the prop erty conveyed as being “Lot 8” in the Redus Point Addition subdivision, as recorded in the Ba ndera County plat records. The ev idence establishes that a prior owner, Dee Walker, platted the Redus Point Addition in 1950. Wa lker acquired the land in 1947, as part of a 200-acre conveyance by deed from Mathilda Spettle Redus. The deed from Mathilda

“failed to prove the issue of ownership as a matter of law” because the evidence “does not establish title to the disputed area.”28 to Walker described 200 acres in Bandera Coun ty (including 125 acres out of Survey No. 231) using metes and bounds beginning at a point on the “No. 1084 contour line,” returning to another point on the “No. 1084 contour line, ” then “Northerly with the . . . No. 1084 contour line, to the point of beginning.” The Redus-to-Walker deed appears to establis h that, whatever the 1917 Spettle Deed’s and the 1917 Partition Deed’s referen ces to the “backwater and flow line” may have referred to ( i.e. , to the height of the dam at Elev ation 1084 or to the height of th e spillway at Elevation 1072), the land Walker acquired from Mathilda in 1947 extend ed only to Elevation 1084. The uncontroverted evidence also establishes that, when Walker platted the Redus Point Addition subdivision in 1950, he platted the lots to the Elevation 1084 bounda ry, consistent with the la nd he had acquired from Mathilda. 12 Except for the Deed Without Warranty, all of the subsequent deeds involving property on Redus Point, including the Prad os’ deed to the Franks and th e Franks’ Warranty Deed to the Lances, identify the land conveyed by referring not to metes and bounds, but to specific “Lots” in the Redus Point Addition, as identified in the plat of record. So regardless of whether Mathilda or MVICO owned the contour zone area between El evation 1084 and Elevation 1072 after the Spettle Deed and Partition Deed, this record can only es tablish that the property Walker received from Mathilda and then platted and conveyed extends only to Elevation 1084. And since Walker is the

12 The 1950 plat was admitted into ev idence at the temporary-injunction he aring and a copy is in the Court’s record, but its print is not sufficiently legible to confirm th at the lots were platted to Elevation 1084. The Robinsons’ expert witness, however, a professional land surveyor, testified that he had reviewed the plat and all of the deeds and that Redus Point is “platted to Elevation 1084.” The Robinsons also offered an exhibit that summarized a “chronology” of the relevant deeds, which refers to the 1950 plat as including “27 lots, platted to Elevation 1084 meander lines.” This exhibit was admitted into evidence without objection. Although the Lances contend that some evidence would support the conclusion that the Spettle Deed and Partition Deed involved land that reached down to Elevation 1072, we have found no record evidence that the land deeded to Walker or the Redus Point lots, as platted or as subsequently conveyed, extend past Elevation 1084.29 sole source of any interest the La nces or Franks claim, no evidence exists in this record that the Franks had any interest to convey to the Lances in land below Elevation 1084. Like the trial court, however, we do not hold th at the Water District owns the disputed area described in the Deed Without Warranty, in the contour zone su rrounding Redus Point, or in any of the contour zone surrounding Medi na Lake. That is one of many i ssues that have given rise to other litigation involving Medina Lake, 13 but we cannot and need not resolve it here. MVICO acquired different rights in the lands for Medina Lake from nume rous different landowners through different deeds that each contai n their own unique provisions. Even as to the disputed area at issue here, we cannot say that the record in this case conclusively establishes that the Water District or any other party owns it. In support of their assertion that the Water District owns it, the Robi nsons and the Water District rely on the Spettle Deed, the Partition Deed, and the testimony of thei r expert witness. But the Spettle Deed and Partition Deed never mention El evation 1084 or Elevation 1072; th ey merely refer to “storing water,” “backing water,” the “flow line,” and “the backwater or flow line.” The Robinsons’ expert

13 See, e.g. , Whalen v. Firmin , No. 04-99-00056-CV, 1999 WL 1246928, at *1 (Tex. App.—San Antonio Dec. 22, 1999, no pet.) (not designated for publication) (addressing similar dispute arising from deed without warranty conveying lot in contour zone in different Medina Lake subdivision); Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n , 2 S.W.3d 459, 462 (Tex. App.—San Antonio 1999, pet. denied) (affirming summary judgment for landowners finding Wate r District violated Open Meetings Act); Haby v. Howard , 757 S.W.2d 34, 36–40 (Tex. App.—San Antonio 1988, writ denied) (holding fact issues precluded summary judgment in dispute between private owners over whether deed’s references to “high datum water line” and “fronting and adjoining Medina Lake” referred to the “1084 foot natural contour line” or the “1072 foot natural contour line”); Medina Lake Prot. Ass’n v. Bexar-Medina-Atascosa Ctys. Water Control & Imp. Dist. No. 1 , 656 S.W.2d 91, 96 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.) (holding that landowners established that Water District impliedly dedicated road across the spillway and dam as a public road); Bexar-Medina-Atascosa Ctys . Water Control & Imp. Dist. No. 1 v. Medina Lake Prot. Ass’n , 640 S.W.2d 778, 780 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.) (holding Water District lacked authority to enforce regulations governing recreational activ ities “below the 1084 foot elevation” against plaintiffs who “resided outside of Di strict’s regulatory area”); Bexar-Medina-Atascosa Ctys. Water Imp. Dist. No. 1 v. Wallace , 619 S.W.2d 551, 552–56 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e.); see also Stephan Rogers, Judge Approves WPOA-BMA Settlement , T HE B ANDERA B ULLETIN (April 26, 2005) (describing court-approved settlement of litigation between Water District and owners of waterfront property on Medina Lake), http://www.banderabulletin.com/news/article_ dd33b8f4-f468-5b46-ab0f-11d36ac413c2.html.30 made no attempt to define the land MVICO acqui red through the Spettle Deed or the land the Spettles partitioned in the Partition Deed based on the metes-and-bounds descriptions in the deeds. Instead, he testified merely to his opinion that Eleva tion 1084 is the “bounda ry line between [the Water District property] and all the adjoining la nd” because that is the elevation at which the reservoir “stores water.” But he made no effort to address the Lances’ argument that the reservoir “stores water” only up to the level of the spillway (Elevation 1072), not up to the top of the dam, and he admitted that many Medina Lake resi dents own land and have homes below Elevation 1084. We find that his effort to define the boundaries based on the deeds’ references to “backwater or flow lines,” without attempting to follo w the actual metes-and- bounds descriptions, is insufficient to establish the boundaries as a matter of law. Thus, even if the Water District had properly pleaded their claim as a trespass-to-try-title suit, we agre e with the trial court’s decision not to declare that the Water Dist rict owns the disputed area or any land in the contour zone, at least based on this summary-judgment record. The Lances argue, however, that by failing to prove who owns the disputed area, the Robinsons necessarily failed to pr ove that the Lances do not own it. We disagree. As we have explained, the Lances claim their title from the Fr anks, who claim theirs from the Prados, who in turn must trace theirs to Walker, who this reco rd establishes only owned and platted Redus Point down to Elevation 1084. That evidence sufficiently establishes that the La nces do not own the disputed area, regardless of who does own it. We conclude that the trial court did not err in granting summary judgment on this record declaring that the Deed Without Warranty did not convey any ownership interest in the disputed area to the Lances because the Franks had no such interest to31 convey. And as the trial court prope rly concluded, if the Lances do not own the disputed area, they have no authority to deny the R obinsons or others access to it.
B. Easement interests Having addressed the trial court’s declarations regarding ownership of the disputed area, we now turn to its declarations regarding the Robinsons’ claim to an easement. The court of appeals noted that, because the Lanc es’ lack of any interest in the disputed area deprives them of any right to exclude the Robinsons from it, “it would appear the remaining arguments presented are moot.” — S.W.3d at —. But the court went on to address the remaining claims because they “pertain to the origin and continuing validity of the Robinson parties’ asserted easement to the use and enjoyment of the subject land.” Id. We agree that, for purposes of resolving the Robinsons’ decl aratory-judgment claim, our holding that the Lances do not own the disputed area makes it unn ecessary to decide whether the Robinsons have a valid easement. Because the Lan ces do not own the disputed area, they have no authority to deny the Robinsons access and no standing to contest the alleged easement. Absent some dispute regarding their po ssible joint rights as alleged eas ement holders, there can be no justiciable controversy between th em. Any dispute over the existen ce, scope, or validity of the alleged easement must occur between the Robins ons and whoever owns the disputed area. The validity of the Robinsons’ alleged easement could remain relevant, however, to the issue of whether they have standing to pursue th eir claim for statutory vi olations under Chapter 12. As explained below, however, we conclude that the Lances have waived any challenges to that issue, at least for purposes of this appeal.32 C. Chapter 12 In addition to their claims for declaratory relief, the Robinsons sought summary judgment on certain elements of their claim under Chapte r 12 of the Civil Practi ce and Remedies Code. Chapter 12 prohibits a person from making, presen ting, or using a “document or other record” with: (1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim ag ainst real or personal prope rty or an interest in real or personal property; (2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or th e United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and (3) intent to cause another person to suffer: (A) physical injury; (B) financial injury; or (C) mental anguish or emotional distress.
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. C ODE § 12.002(a) (emphases added). A person who violates this prohibition is liable to each injured person for (1 ) actual damages or $10,000, whichever is greater, (2) court costs, (3) reasonable attorney’s f ees, and (4) exemplary damages “in an amount determined by the court.” Id. § 12.002(b). When the violation i nvolves a “fraudulent lien or claim against real or personal property or an interest in real or personal propert y,” any “person who owns an interest in the real or personal property” may sue for such relief. Id. § 12.003(8). The Robinsons alleged that the Franks and Lances violated Chapter 12 by executing, presenting, filing, and relying on the Deed With out Warranty. The trial court granted summary judgment on this claim in part, declaring that th e Deed Without Warranty is a “deed [sic] or other record” and that the Lances “made, used, and/or presented the Deed Without Warranty with the33 intent to create the appearance of an actual conv eyance of ownership in the disputed area.” These declarations indicate that the Robinsons have established the statute’s second requirement. The court also declared that the Robinsons “own an express easement in the di sputed area, and have standing under [Chapter 12].” The Robinsons did not seek a summary-judgment declaration, however, that the Lances and Franks knew that the Deed Without Warranty was “fraudulent,” and the trial court declined to declare that the Lanc es used the deed with the intent to cause the Robinsons to “suffer financial injury,” so th e Robinsons have not obtained summary judgment on the statute’s first and third requirements. The Lances’ challenges to the trial court’s Ch apter 12 declarations are confusing at best. They begin by asserting that “there is . . . no s upport for [the] declarati ons the judgment makes as to [the] elements of this claim.” They then sugges t that, in “the interest of judicial economy, this Court should make that determination now so that the Defendants, on remand, will not be met with having to defend a Chapter 12 claim.” Finally, citing to no legal authorities at all, they offer a brief challenge to two of the trial court’s Chapter 12 d eclarations. First, they a ssert that the Robinsons lack standing under Chapter 12 because (a) they “ do not own an express easement in the disputed area,” and (b) even if they did own an easement, their “easement rights cannot be impaired by any owner or by any deed. Ownership does not matter.” Second, they argue that “t he very nature of a deed without warranty negates the trial court’s finding” that the Lances intended to “create the appearance of an actual conveyance of ownership in the disputed ar ea,” apparently because a deed without warranty makes “no promis e or guarantee of ownership.” The Lances block-copied these arguments from the merits brief they filed in the court of appeals. Like us, the court of ap peals found them to be “disjointed statements that propose no clear34 or concise argument.” — S.W.3d —. As that cour t noted, the Lances’ assertion that we should determine now that “there is . . . no support” for the declarations “in the intere st of justice,” so that the Lances will not have to defend the Chapte r 12 claim on remand, a ppears to argue that the
Lances are entitled to summary judgme nt on this claim. And as the court of appeals concluded, “even if this court were to make the determination proposed, given that this is an appeal from summary judgment, this court cannot make such a determination, nor would any determination preclude any litigation on remand.” — S.W.3d —. For this reason, the c ourt summarily overruled this issue and declined to address the Lances’ specific arguments. In their responsive brief in this Court, th e Robinsons note that th eir Chapter 12 claims remain pending in the trial court in the original case from which this case was severed. Because of this, they assert, without any further explanation, that “the mer its” of the trial court’s Chapter 12 declarations “are not before this Court.” Ba sed on that assertion, th e Lances may raise any jurisdictional challenges to the Robinsons’ Chap ter 12 claims, including any challenge to the Robinsons’ standing to pursue such cl aims, in the pending original case. We conclude that the court of appeals did not err in decl ining to address the Lances’ arguments on the Chapter 12 claims, and we d ecline to address them for the same reason. Procedurally, we—like the court of appeals—cannot issue any deci sion on those claims that would protect the Lances from having to defend them in the original case. And substantivel y, we simply do not comprehend the Lances’ arguments. Their assertion that the Robi nsons lack standing (regardless of whether they have an easement) because easement rights “cannot be impaired by any owner or by any deed” seems to contradict th eir reliance on th e Deed Without Warranty as the basis for denying the Robinsons access to the di sputed area. And their argument that a Deed35 Without Warranty cannot be intended to be an “act ual conveyance of property” contradicts their claim that, unlike a “quitclaim” deed, the Deed Without Warranty gave them ownership of the disputed area. In the absence of any citations to legal authorities that support or clarify these contentions, we decline to consider them. 14
D. Attorney’s fees Finally, the Lances argue that the trial cour t erred by awarding atto rney’s fees to the Robinsons and to the Water District under the Decl aratory Judgments Act. Specifically, they assert that both awards lack evidentiary suppor t and neither is “equitable and just.” The Robinsons respond by asserting that the Lances waived review of their atto rney’s fees by failing to raise it as an issue it their petition fo r review in this Court. The Lances did not note attorney’s fees as a separate issu e in their petition for review, but they did address attorney’s fees under their general issue that the court of appeals “failed to addr ess numerous issues raised and necessary to final disposition of the appeal in violation of Texas Rule of Appellate Procedure
47.1.” See Tex. Dep’t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 642 n.1 (Tex. 2004); Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989) (“[I]t is our practice to construe liberally points of error in order to obtain a just, fair, and equitabl e adjudication of the rights of the

14 We do note our disagreement, however, with the Robins ons’ argument that the court of appeals has already determined their standing under Chapter 12 in the Lances’ interlocutory appeal from the trial court’s denial of the motion to dissolve the temporary injunction, and that the Lances are bound to that determination. See Lance , 2013 WL 820590, at *5. The court of appeals did not hold that the Robinsons had standing under Chapter 12; it held only that for the purposes of deciding whether the trial court abused its discretion in refusing to dissolve the temporary injunction based on the Lances’ claim that the Robinsons lacked standing, “both [the Robinsons’] pleadings and their arguments to the trial court at the hearing on the motion to dissolve support [the Robinsons’] claim of standing as easement holders and personal property owners under section 12.003(a)(8).” Id. Because the issue of whether the Robinsons proved standing as a matter of law presents a substantially different question than the one presented regarding the temporary injunction, the law-of-the-case doctrine does not support the Robinsons’ argument on this point. See Hudson v. Wakefield , 711 S.W.2d 628, 630 (Tex. 1986) (“Further, the doctrine does not necessarily apply when either the issues or the facts pres ented at successive appeals are not substantially the same as those involved on the first trial.”).36 litigants.”). However, their assertions as to that issue were limited solely to the attorney’s fees awarded to the Water District and did not address the award of attorney’s fees to the Robinsons. We agree with the Robinson that the Lances waiv ed any challenge to the Robinsons’ fee award by failing to adequately raise the issue in their petition for review. Guitar Holding Co. v. Hudspeth Cty. Underground Water Conservation Dist. No. 1 , 263 S.W.3d 910, 918 (Tex. 2008) (“[I]ssues not presented in the petition for review and brief on the merits are waived.”). Regarding the fees awarded to the Water Di strict, the Lances argue that the award is arbitrary and unreasonable because the Water District voluntarily intervened in this suit to assert its claim to ownership of the di sputed area, the Water District did not move for summary judgment on that or any other claim, and the trial court refu sed to declare that the Water District owns the disputed area. They also contend that the court of appeals violated Rule 47.1 by failing to address these arguments. We agree that the court of appeal s should have addressed the Water District’s fee award. But in light of our holding that the Water District had to bring any claim to ownership of the disputed area as a trespass-to-try-title actio n, and that such ownershi p is irrelevant to the resolution of this suit in light of the court’s dete rmination that the Lances do not own the disputed area, we conclude that the trial court must reconsid er this fee award. We reverse the award of fees to the Water District and remand the case to the trial court for reconsideration of that award. T EX

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. C ODE § 37.009 (“In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney ’s fees as are equitable and just.”).
IV. Conclusion We affirm that part of the court of appeals’ judgment upholding the trial court’s declarations that the Lances do not own the disput ed area described in the Deed Without Warranty.37 In light of that holding, we do not decide whet her the Deed Without Wa rranty creates a cloud on the Robinsons’ alleged easement over the disputed area, nor do we address the validity of that alleged easement. Because the Lances do not own the disputed area, they have no standing to challenge the Robinsons’ alleged easement over that area or auth ority to exclude the Robinsons from the area. We hold that the Lances waived any challenge to the Chapter 12 declarations and any challenge to the attorney’s f ees awarded to the Robinsons. We re verse that part of the court of appeals’ judgment upholding the award of attorney ’s fees to the Water District, however, and remand this case to the trial court for further proceedings consistent with this opinion.

_____________________ Jeffrey S. Boyd Justice Opinion delivered: March 23, 2018