Opinion issued July 30, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00619-CV

———————————

LEE ANN WHEELBARGER, TERRI TIEDEMANN,

DOREEN MARDERNESS, JERRY SAVOY, HOWARD JANSON,

CARL ALAN KIVELA, JAMES HUSEMAN, BULL CAPITAL COMPANY, 

JAMES DURHAM, MARY LOU DURHAM, PATRICIA KOELLING, AND 

FRANK GENZER, JR., Appellants/Cross-Appellees

V.

THE LANDING COUNCIL OF CO-OWNERS, Appellee/Cross-Appellant

and

WILLIAM HENSLEE, TOM JENKINS, TROY JONES,

DAVID MARKS, BARNARD PEARL, THOMAS WALSH,

STAN WILLIAMS, ANDREW ROSENBERG, JACK EREIRA, AND

TIMOTHY PATAK, Appellees

On Appeal from the 190th Judicial District Court

Harris County, Texas

Trial Court Case No. 2010-58056
2

O P I N I O N

After Hurricane Ike caused significant damage to their homes, a group of 

condominium owners sued their condominium association and members of its 

board. The plaintiff owners argued that by failing to repair hurricane damage to the 

condominium complex and by demolishing it, the association acted negligently, 

breached the association’s declarations and bylaws, and violated the Texas 

Property Code. The trial court granted directed verdicts on the claims against the 

individual board members and denied requests for declaratory relief. After a trial 

on the remaining claims, a jury returned a verdict for the plaintiffs. Pursuant to the 

plaintiffs’ election, the trial court entered judgment in their favor on their contract 

claims. The plaintiff owners now appeal the dismissal of their claims against the 

individual board members, while the association cross-appeals the judgment 

against it. Finding no error, we affirm.

Background

The Landing was a condominium complex in the City of El Lago, Texas. 

Built in 1969, it consisted of 17 buildings and approximately 156 condominium 

units. The Landing occupied approximately seven acres of waterfront property 

along Clear Lake, and it featured a marina. Many of the units at the Landing had 

boat slips. 
3

The formative document for The Landing was a condominium declaration 

which provided that an association, the Landing Council of Co-Owners, would 

govern and control the affairs of the complex. The Council’s responsibilities 

included decisions such as whether and how to make improvements or repairs to 

common areas and features, as well as any possible decision to terminate the 

condominium development and partition or sell the property. The membership of 

the Council consisted of all owners of condominium units in The Landing, 

although the affairs of the Council were directed or managed by a Board of 

Administrators consisting of seven members. The Council also was governed by a 

set of bylaws.

In September 2008, Hurricane Ike made landfall near Galveston Island, 

bringing high winds and flooding to the area, including the City of El Lago. The 

Landing sustained significant damage. Large quantities of debris washed or blew 

into the parking lot and marina, and multiple buildings suffered interior and 

exterior damage. Several buildings suffered some degree of structural damage. The 

storm also knocked out power throughout much of the area, including power lines 

to the complex. The Landing’s electrical power had come in through a single, 

common line, and it proved impossible to restore power on a building-by-building 

basis. Power was never restored to the complex. 
4

Because The Landing’s buildings sat at a lower elevation than the city sewer 

lines, pumps were used to lift wastewater to the level of the sewer lines. Without 

power, the pumps could not function. But the water supply to The Landing 

remained active, so sewage began flowing back through the pumps and out into 

Clear Lake. To prevent this, the water was also turned off on the day after the 

storm. Because the power was never restored, water and sewer services to the 

Landing also were never restored. 

In accordance with Article 12 of The Landing’s declaration, the Council 

asked its property management committee to mail out notices of a meeting to 

discuss repairs to the complex. In the event that “any part of the condominium 

Property shall be damaged by casualty,” Article 12 provided rules for determining 

“whether or not it shall be reconstructed or repaired . . . .” Those rules required the 

Board of the Council to call a meeting within 15 days of the casualty’s occurrence 

by written notice, to be delivered either personally or by certified mail, return 

receipt requested. The meeting itself had to occur not less than 15 days nor more 

than 40 days after the casualty. At the meeting, the Council members would vote to 

determine whether the “required construction [to repair or rebuild the property] 

comprises the whole or more than two-thirds (2/3) of the Condominium Project.” If 

the Council voted that “reconstruction is required for the whole or more than 2/3 of 

the Condominium Project,” then the Board was required to pay out all insurance 
5

proceeds and the condominium development would be terminated, unless the coowners unanimously agreed to reconstruct and repair all portions of the damaged 

property. If the Council voted that the damage comprised less than two-thirds of 

the property, then the Board was required to proceed with reconstruction and 

repair. 

The property management company tasked by the Council with sending out 

notices of the Article 12 meeting failed to send them by certified mail, return 

receipt requested. Co-owners of the Landing reported to the Board that they had 

not received their notices. According to Tom Jenkins, a Board Administrator, the 

Board did not learn of the incorrect mailing until after the 15-day period for calling 

the meeting had expired. Meanwhile, the postal service returned approximately 

40% of the notices as undeliverable. The Board then consulted an attorney and 

canceled the Article 12 meeting. 

In July 2009, Richard Smith, the Building Official of the City of El Lago, 

determined that The Landing had “been damaged or destroyed to an extent of more 

than fifty-one (51) percent of its fair market value by the hurricane.” As a result, 

under the City’s zoning ordinance, The Landing could be repaired only if it were 

brought into compliance with the City’s building codes. 

The Board attempted to call another Article 12 meeting in October 2009, but 

a group of unit owners calling itself the “Concerned Owners of The Landing 
6

Condominiums” objected on the grounds that the deadline for calling such a 

meeting had passed. The Concerned Owners ultimately obtained a declaratory 

judgment that the proposed meeting was untimely. 

In March 2010, the Board convened a meeting under Article 10, whereby 

two-thirds of the owners could approve alterations or improvements to commonlyowned elements of the Landing. Failing such approval, only those owners 

consenting to the alterations or improvements would be obliged to pay for them. At 

the meeting, a majority of the Landing co-owners voted not to alter or improve the 

property. 

After a hearing on April 26, 2010, the City determined that The Landing’s 

buildings constituted substandard housing and a public nuisance. The Council was 

ordered to apply within 30 days for either a permit to repair the property or a 

permit to demolish it. If the Council elected to repair the property, it was to include 

“explicit details and assurances” that it would bring the property into compliance 

with existing codes. Some of the co-owners of The Landing sought to challenge 

that determination by appealing to Smith and to the mayor of the City of El Lago. 

The City responded that no order, decision, or other determination had been made 

from which an appeal could be taken; such an appeal would be possible only after 

The Landing sought a permit to repair or rebuild. 
7

In late 2010, a fire caused further damage to the Landing. Four buildings 

were damaged directly by the fire. The Board called another meeting after the fire, 

this time under both Article 12 and Article 13, which governs termination of the 

condominium development. At the meeting, approximately 59.5% of the coowners voted not to repair or reconstruct the property.

Ultimately, the Council obtained a demolition permit from the City of El 

Lago, and The Landing was demolished in April 2011.

In September 2010, several co-owners of The Landing—Bull Capital 

Company,1 Carl Kivela, Ryan Meischen, Danford Meischen, Jerry Savoy, Howard 

Janson, Larry Thomas, Cheryl Thomas, and Terri Tiedemann—sued the Council 

and several current and former members of the Board in their individual capacities, 

namely: William Henslee, Tom Jenkins, Troy Jones, David Marks, Barnard Pearl, 

Thomas Walsh, Stan Williams, and Jack Ereira. During the course of the litigation, 

condominium owners Doreen Marderness, James Huseman, Patrick Koelling, and 

Frank Genzer, Jr., joined the suit as plaintiffs, and former Board Administrator 

Andrew Rosenberg was named as an additional defendant. The plaintiffs asserted 

claims for breach of fiduciary duty, negligence, breach of The Landing’s 

 

1

The officers of Bull Capital Company, Mary Lou Durham and James 

Durham, also sued in their capacities as officers. However, the Durhams 

were not identified as plaintiffs in the live petition at the time of trial, and 

they did not request or recover any damages at trial. 
8

declaration and bylaws, and gross negligence. They also sought to recover their 

attorney’s fees. 

Co-owner Lee Ann Wheelbarger also sued the named defendants, seeking 

declaratory relief for breach of fiduciary duty, negligence, gross negligence, 

tortious interference with contract, slander of title, damage to title, breach of 

contract, and conspiracy.2 Although she also sought damages for these claims in 

her live pleading, she failed to produce evidence of those damages in response to 

discovery requests. The trial court therefore excluded evidence of her damages,

and the jury was not asked to award Wheelbarger any damages. Finally, the 

plaintiffs sued Timothy Patak, a Board Administrator and former consultant to the 

Board, arguing that he aided and abetted the defendants’ alleged breaches of 

fiduciary duty. 

The trial court directed a verdict dismissing all claims against the individual 

defendants. A jury found that the Council breached The Landing’s declarations and 

bylaws and breached fiduciary duties owed to all of the plaintiffs. The jury 

awarded damages to each plaintiff, excluding Wheelbarger and former plaintiffs 

Mary Lou and James Durham, about whom no damages questions were submitted.

 

2 Wheelbarger also named as third-party defendants the City of El Lago and 

Richard Smith in his official capacity, but those claims were severed from 

the remainder of the case and dismissed for lack of jurisdiction. This court 

affirmed the dismissal. Wheelbarger v. City of El Lago, 454 S.W.3d 55, 60

(Tex. App.—Houston [1st Dist.] 2014, pet. denied).
9

The jury also awarded attorney’s fees to each plaintiff, including Wheelbarger. The 

trial court entered judgment in favor of the plaintiffs, awarding the damages found 

by the jury. It found that the declaratory relief requested by Wheelbarger would 

affect the rights of all co-owners of The Landing, including those not party to the 

suit, and that her pleadings did not support all of the requested declaratory relief. 

The court therefore denied the requested relief. It also awarded the attorney’s fees 

found by the jury, with the exception that it did not award any fees to Wheelbarger, 

who had obtained neither monetary nor equitable relief. Finally, the trial court 

awarded prejudgment and postjudgment interest, with the former running from 

November 20, 2012 until the date of judgment. 

Wheelbarger, Tiedemann, Marderness, Savoy, Janson, Kivela, Huseman, 

Bull Capital, Koelling, and Genzer (collectively, Appellants3), raise three issues on 

 

3

The Meischens and Thomases, although plaintiffs at trial, do not appeal. 

Although the Durhams filed a notice of appeal and are identified as 

appellants in the parties’ briefs, they were not identified as plaintiffs in the 

live petition, the jury was not asked to award them damages, and they did 

not recover any relief at trial. Because they were not parties of record, they 

have no standing to appeal from the judgment. See Gunn v. Cavanaugh, 391 

S.W.2d 723, 724 (Tex. 1965); In re S.J., No. 14-11-00142-CV, 2011 WL 

2150586, at *1 (Tex. App.—Houston [14th Dist.] June 2, 2011, no pet.)

(mem. op.); Cent. Mut. Ins. Co. v. Dunker, 799 S.W.2d 334, 336 (Tex. 

App.—Houston [14th Dist.] 1990, writ denied); see also TEX. R. APP.

P. 25.1(b) (“The filing of a notice of appeal by any party invokes the 

appellate court’s jurisdiction.”). Because standing is a component of subjectmatter jurisdiction, we lack jurisdiction over the Durhams’ attempt to 

appeal. See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 
10

appeal. First, they argue that the trial court erred by directing a verdict as to claims 

against the individual board members. Second, they contend that the trial court 

used an incorrect date for calculation of prejudgment interest and should have used 

one of two earlier dates. Third, Wheelbarger argues that the trial court erred by 

dismissing her claims for declaratory relief and attorney’s fees. 

The Council cross-appeals and also raises three issues. First, it challenges 

the damages award as supported by insufficient evidence based on defects in the 

testimony of the plaintiffs’ expert witness on damages. Second, the Council insists 

that the City had considered and rejected the evidence upon which plaintiffs rely to 

show that the Council had reason and a duty to challenge the City’s substantialdamage determination; thus, legally insufficient evidence supports the jury’s 

findings that the Council should have challenged that determination and that the 

failure to raise such a challenge damaged the plaintiffs. Third, the Council argues 

that no finding or cause of action supports the trial court’s award of attorney’s fees 

to the plaintiffs. 

Analysis

When parties present multiple grounds for reversal of a judgment on appeal, 

we must first address those issues that would afford the appellant the greatest 

 

2001); Sosa v. Koshy, 961 S.W.2d 420, 424 (Tex. App.—Houston [1st Dist.] 

1997, writ denied).
11

relief. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Bradleys’ 

Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999). We 

therefore first consider whether the trial court improperly directed a verdict on 

Appellants’ claims against the individual defendants, which would require a 

remand for trial on those claims. We then consider the Council’s challenges to the 

sufficiency of the evidence regarding liability and damages. Finally, we turn to the 

parties’ arguments on prejudgment interest, declaratory relief, and attorney’s fees, 

each of which would result in lesser forms of relief if sustained.

I. Plaintiffs’ appeal: Directed verdict on claims against individual Board 

Administrators

Appellants first argue that the trial court erred by granting a directed verdict 

at the close of their case-in-chief as to all claims against the individual defendants. 

They contend that sufficient evidence showed that the Board breached certain 

fiduciary and contractual duties and that the individual defendants were members 

of the Board at relevant times. They therefore conclude that the evidence would 

have supported a conclusion that the individual defendants violated their own 

duties as fiduciaries of the co-owners of The Landing.4

 

4 Appellees argue that Wheelbarger has waived her arguments on this issue 

because no copy of her live pleading appears in the record. Wheelbarger 

concedes that no copy appears in the record as a standalone document. We 

note, however, that a copy does appear in the record as an attachment to the 

plaintiffs’ post-verdict brief in support of their amended joint motion for 

entry of judgment. No party challenges this document as inauthentic. In 
12

We review a directed verdict under the same standard as a no-evidence 

summary judgment. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 

2003); Miles v. Lee Anderson Co., 339 S.W.3d 738, 741 (Tex. App.—Houston [1st 

Dist.] 2011, no pet.). “Accordingly, we review the evidence in the light most 

favorable to the non-movant, disregarding all contrary evidence and inferences.” 

King Ranch, 118 S.W.3d at 751. “A no evidence point will be sustained when 

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by 

rules of law or of evidence from giving weight to the only evidence offered to 

prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a 

mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital 

fact.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 

(Tex. 1997)). Therefore, the trial court should not grant the motion if “there is any 

evidence of probative value to raise an issue of material fact on the question 

presented.” Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 

(Tex. 2011).

Fiduciary duties arise either from formal relationships that are recognized as 

fiduciary as a matter of law, or in some cases, from the existence of an informal, 

 

light of our disposition overruling this issue, we need not determine whether 

the pleading’s inclusion as an attachment to another document preserves this

issue as to Wheelbarger. We therefore decline to hold that Wheelbarger has 

waived her first issue.
13

“confidential” relationship between the parties. Ins. Co. of N. Am. v. Morris, 981 

S.W.2d 667, 674 (Tex. 1998). The elements of a claim for breach of fiduciary duty 

are (1) the existence of a fiduciary relationship between the plaintiff and defendant; 

(2) the defendant’s breach of a fiduciary duty arising from that relationship; and (3) 

injury to the plaintiff, or benefit to the defendant, resulting from that breach. Id.

The individual defendants moved for a directed verdict on the grounds that 

the plaintiffs introduced evidence only as to actions taken by the Board that 

constituted negligence or breached a fiduciary or contractual duty, not those duties 

owed or breached by the individual defendants. On appeal, Appellants make six 

arguments that the directed verdict was improper. Three of these arguments focus 

on the evidence presented at trial, while the others address primarily legal 

arguments for imposing liability on the individual defendants. However, because 

Appellants fail to show what actions any individual took that gave rise to a cause 

of action, all of their arguments fail.

A. Lack of evidence of individual Board Administrators’ wrongful 

actions

First, Appellants argue that they presented expert testimony from Charles 

Jacobus, a board-certified real estate attorney and expert in homeowner association 

law, regarding the duties owed by the Board to The Landing’s owners and the 

Board’s breaches of those duties. While Jacobus did offer such testimony, his 

testimony focused on the duties of the Board itself, not the duties of the Board’s 
14

members. He did not testify about any action taken by any of the individual 

defendants, in any capacity.

Second, Appellants argue that they presented sufficient evidence that the 

plaintiffs sustained damages due to the wrongful demolition of The Landing. They 

did not connect such damages to any individual’s acts, nor do they do so on appeal. 

Rather, the damages flowed from the demolition of the property, which resulted 

from actions taken by the Board as a whole.

Third, Appellants argue that they presented legally sufficient evidence as to 

the membership of the Board at relevant times. In support, they point to 40 

“examples of evidence in the record.” These examples include various summaries 

of the evidence, such as “the oral testimony of Lee Ann Wheelbarger . . . that a 

demolition permit was submitted on May 26, 2010, with no attempt to appeal and 

no denial of any permit ever having been returned.” Another is that “Williams, 

Patak and Jones accompanied [a building inspection company] during its 

inspection.” Yet another is that “the City refused to recognize [plaintiffs’] attempt 

to appeal [the determination that The Landing was substantially damaged] on 

November 24, 2009 because no permit had been submitted and refused as of that 

date.”

None of this evidence demonstrates that any particular individual took any 

action in violation of any particular duty. As Wheelbarger concedes in her reply 
15

brief, these 40 facts do not bear “on the existence of a duty or breach of duty of the 

board members,” but they prove, at most, the membership of the Board at various 

times. And as the defendants observed in argument on the motion for directed 

verdict, no witness ever mentioned Administrators Henslee or Walsh by name in 

testimony during Appellants’ case-in-chief; the names of many other Board 

members were mentioned only in passing. While Appellants point to numerous 

actions of the Board and note repeatedly that no Board member appealed the 

substantial-damage determination or applied for a repair permit, they make no 

effort to show how any individual acted in a way that was legally improper. 

Instead, they attempt to impute actions of the entire Board to each Board member, 

individually, without showing, for example, which Board members voted to take a 

particular action. Indeed, a major theme of trial was the inability of co-owners to 

take actions as individuals with respect to repairing, rebuilding, or preventing the 

demolition of The Landing. At most, Appellants point to certain attitudes, 

predispositions, or knowledge that certain Board members purportedly held, not 

actions taken in breach of any particular duty.5

 

5

In light of this reasoning, we need not address Appellants’ arguments that 

the Charitable Immunity and Liability Act, Chapter 84 of the Civil Practice 

and Remedies Code, does not confer immunity on the Board members or 

that that individual Board members are liable under a “general standard of 

care.” In the absence of evidence demonstrating the wrongful actions taken 

by individual Board members, the availability of immunity and the 

applicability of any particular standard of care are irrelevant.
16

B. Inapplicability of personal liability under Property Code 

Chapter 82

Finally, Appellants contend that the Board members are subject to personal 

liability for their alleged breach of fiduciary duties based upon several sections of 

the Property Code. First, Section 82.103(a) provides: “All acts of [a condominium] 

association must be by and through the board unless otherwise provided by the 

declaration or bylaws or by law.” TEX. PROP. CODE § 82.103(a). Further, “[e]ach 

officer or member of the board is liable as a fiduciary of the unit owners for the 

officer’s or member’s acts or omissions.” Id. Finally, Section 82.161 provides: “If 

a declarant or any other person subject to this chapter violates this chapter, the

declaration, or the bylaws, any person or class of persons adversely affected by the 

violation has a claim for appropriate relief.” Id. § 82.161. These statutes do not 

support Appellants’ position that the individual Board members are liable for the 

Board’s actions. Rather, to apply these statutes requires that the individual Board 

member take some action for which liability may lie; Appellants failed to prove 

that any particular Board member took such an action.

Appellants rely on two cases to advance this theory of individual liability. In 

the first, Harris v. Spires Council of Co-Owners, 981 S.W.2d 892 (Tex. App.—

Houston [1st Dist.] 1998, no pet.), this court held that an association did not breach 

a duty of ordinary care in recommending a former association employee to two coowners seeking a housekeeper, even though that person had been fired on 
17

suspicion of theft and later misappropriated the co-owners’ funds. Harris, 981 

S.W.2d at 894, 898. Appellants also rely on Sassen v. Tanglegrove Townhouse 

Condominium Ass’n, 877 S.W.2d 489 (Tex. App.—Texarkana 1994, writ denied), 

in which the court of appeals reinstated a jury verdict holding an association liable 

for breaching a fiduciary duty to the condominium owners. Neither Harris nor 

Sassen, however, involves allegations against the condominium board’s members, 

individually, and neither supports Appellants’ argument that all actions of the 

Board can be attributed to each Board member individually without proof of that 

member’s own actions. These cases thus have no bearing on this appeal.

Appellants failed to demonstrate that any particular Board member took any 

action that constituted a tort or breach of fiduciary or contractual duty. They 

further failed to demonstrate that any particular Board member had any duty to act 

in a particular manner, independently of the rest of the Board, but failed to act 

accordingly. The individual defendants were therefore entitled to a directed verdict 

on the claims against them. We overrule Appellants’ first issue.6

 

6 Appellants’ failure to present any evidence of actions taken by the individual 

defendants is dispositive of their claims against those individuals. We 

therefore do not reach the merits of Appellants’ arguments regarding the 

nature of any duties owed by members of the Board, to whom such duties 

are owed, or the availability of relief against the individual defendants in 

their individual capacities.
18

II. Council’s cross-appeal: Evidence of feasibility of repairs

We next turn to the Council’s second argument, that the evidence was 

legally insufficient to establish that it should have challenged the City’s 

substantial-damage determination and that the failure to raise such a challenge 

damaged the plaintiffs. Specifically, it argues that the condominium owners’ 

claims all hinge on the premise that The Landing could have been repaired and 

restored to pre-hurricane status but for the Council’s failures and inactions. 

According to the Council, there is no evidence to support that theory, as the 

evidence that repairs were feasible—the evidence upon which any challenge to the 

City’s determination would have been brought—was either rejected by the City or 

unavailable before the May 26, 2010 deadline for the application for a repair or 

demolition permit. Thus, the Council argues that there is no evidence that the 

Board could or should have appealed, that such an appeal would have been 

successful, or that the failure to act damaged the plaintiffs.

When a party challenges the legal sufficiency of the evidence supporting a 

judgment, the reviewing court must look at all of the evidence admitted and 

determine whether, after disregarding all evidence that a reasonable trier-of-fact 

could disregard, more than a scintilla of evidence supports the judgment. City of 

Keller v. Wilson, 168 S.W.3d 802, 827–28 (Tex. 2005). Evidence is legally 

insufficient if the record reveals the “complete absence of evidence of a vital fact”; 
19

if the only evidence supporting a judgment is incompetent, such that a court cannot 

consider it; if “the evidence does not rise above a scintilla [such that] . . . jurors 

would have to guess whether a vital fact exists”; or if the evidence “conclusively 

establishes the opposite of a vital fact.” Id. at 811–14. In conducting a legalsufficiency analysis, we review all of the evidence in the light most favorable to 

the verdict. Id. at 822.

We begin by noting that the jury did not make any explicit findings of the 

sort of which the Council complains. The jury charge did not ask whether the 

Council should have challenged the substantial-damage determination or whether 

the failure to mount such a challenge damaged the plaintiffs. Rather, to the extent 

the jury considered any such questions, it would have done so only in the process 

of answering questions actually presented in the jury charge. The question before 

us, then, is not whether sufficient evidence supports the hypothetical findings that 

the Council attacks, but whether the purported absence of evidence to support 

those findings undermines the verdict that the jury actually made and upon which 

the judgment relies. See id. at 827–28.

The plaintiffs elected breach of contract as their remedy. As such, they 

recovered damages only for the Council’s breach of the bylaws and declarations. 

The plaintiffs presented evidence at trial that the Council breached its obligations 

under these documents in numerous ways, including by failing to timely call and 
20

hold an Article 12 meeting, by failing to take actions to mitigate the damage 

caused by the hurricane and fire, by failing to pay out or use insurance proceeds in 

a timely manner, by ceasing to make and collect assessments, and by demolishing 

The Landing without a proper vote by the co-owners. The plaintiffs also presented 

evidence that The Landing could have been repaired, but its condition deteriorated 

with the passage of time while the buildings lacked power and running water. The 

jury could have found that the Council breached its obligations under the 

declarations and bylaws and damaged the plaintiffs in a number of ways; it was not 

limited to deciding upon the failure to appeal the substantial-damage 

determination. We hold that legally sufficient evidence supported the jury’s 

findings regarding breach of contract and resulting damages. See id. at 811–14.

Because legally sufficient evidence supports the jury’s breach-of-contract 

findings, we overrule the Council’s second issue.

III. Council’s cross-appeal: Damages

The Council also argues that the damages awards must be overturned 

because (1) the plaintiffs’ expert failed to account for the residual value of the land 

associated with The Landing, (2) the expert made and acknowledged an error in 

calculating damages attributable to plaintiff Genzer’s unit, and (3) the award of 

damages allows for a double recovery, given that the plaintiffs have already 

received insurance proceeds.
21

The admission of expert testimony is governed by Rule of Evidence 702. See 

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). 

“Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony 

is relevant and based on a reliable foundation.” Cooper Tire & Rubber Co. v. 

Mendez, 204 S.W.3d 797, 800 (Tex. 2006). Expert testimony is unreliable if it is 

no more than subjective belief or unsupported speculation. Robinson, 923 S.W.2d 

at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599, 113 S.

Ct. 2786, 2800 (1993)). Expert testimony is also unreliable if there is too great an 

analytical gap between the data the expert relies upon and the opinion offered. 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). In 

applying this reliability standard, the trial court determines whether the analysis 

used to reach the expert’s conclusions is reliable. Id. at 728.

When a party challenges an expert opinion as unreliable and constituting no 

evidence, we independently consider whether the evidence at trial would enable 

reasonable and fair-minded jurors to reach the verdict. Whirlpool Corp. v. 

Camacho, 298 S.W.3d 631, 638 (Tex. 2009). “[A] no-evidence review 

encompasses the entire record, including contrary evidence tending to show the 

expert opinion is incompetent or unreliable.” Id.
22

A. Method of calculating damages

The Council argues that plaintiffs’ damages expert, David Dominy, failed to 

account for the value of the land upon which The Landing once stood and in which 

each plaintiff holds an undivided interest. Under Texas law, “condominium 

ownership is the merger of two estates in land into one: the fee simple ownership 

of an apartment or unit in a condominium project and a tenancy in common with 

other co-owners in the common elements.” Dutcher v. Owens, 647 S.W.2d 948, 

949 (Tex. 1983). According to the Council, Dominy’s testimony accounted only 

for the former, ignoring the latter, and his methodology was thus unreliable for 

purposes of calculating the fair market value of each plaintiff’s ownership interest.

The Council argues that Dominy’s opinion therefore should have accounted

for both the value of the now-demolished buildings and the value of the land in 

order to be reliable evidence of market value of the plaintiffs’ ownership interests. 

Dominy defined “market value” as “the price that a willing buyer would pay a 

willing seller, assuming neither party were under duress.” But a condominium 

owner may not sell a unit without also conveying that ownership share of the 

property owned in common with the other condominium owners. Id.

In the critical portion of Dominy’s testimony, he was asked, given that 

plaintiff “Genzer’s unit had been demolished . . . what value does Mr. Genzer’s 
23

unit have?” He answered, “Zero.” Immediately after Dominy gave this answer, the 

Council’s attorney conducted the following cross-examination:

Q. It has a zero value, are you aware that there’s property that’s he

got an interest that he can recover? I mean, he’s still got the 

property value, did you not take that into consideration when 

you did this?

A. He asked me what that unit was worth, and that unit is worth 

zero.

Q. What Mr. Genzer is entitled to as a unit owner is a percent of 

the total, correct, in this case, the total of the property?

A. I agree with that.

Q. So, in fact, what the value that Mr. Genzer, as an example, and 

all the plaintiffs have in that property, they would still have a 

percent of the value that the property is worth?

A. They have a residual interest, they don’t have the value of their 

unit as they had it before.

(Emphasis supplied.)

Contrary to the Council’s characterization, Dominy’s testimony that the 

value of Genzer’s “unit” is zero did not ignore the value of plaintiffs’ interests in 

the land. Rather, Dominy explicitly acknowledged that the plaintiffs still have “a 

residual interest” in common elements of the property. Throughout the 

questioning, Dominy used “unit” in a manner that referred specifically to certain 

improvements on the land (i.e., the particular condominium “units”), separate and 

apart from a plaintiff’s joint ownership interest in the commonly-owned land and 

improvements. The jury could have understood Dominy’s testimony as addressing 
24

the pre-casualty and post-demolition values of plaintiffs’ individual ownership 

interests in the improvements. No party contended that The Landing’s actions 

damaged the land; only the portion of market value attributable to the 

improvements was in dispute.

The calculations Dominy made were supported by testimony about his 

methodology, his experience appraising real estate, comparable buildings in the 

area, and various other facts that he identified as bases for his opinions. They did 

not consist only of subjective beliefs or unsupported speculation. On the contrary, 

while Dominy testified as to his methodology in detail, the Council did not attempt 

to demonstrate that his methods were unreliable under the Robinson factors. 

Instead, it simply argues on appeal that Dominy’s testimony can be understood 

only as assigning no value to the land or as having included the land in the 

appraisal of pre-casualty value, but not in his determination of post-casualty value. 

According to the Council, either understanding would be incompatible with the 

evidence at trial that the land has a positive value, rendering Dominy’s testimony 

unreliable. We disagree that these are the only reasonable interpretations of 

Dominy’s testimony regarding the value of Genzer’s “unit.”

We hold that Dominy’s testimony regarding the valuation of the plaintiffs’ 

“units” was sufficiently reliable to support the jury’s verdict regarding the 
25

plaintiffs’ damages. See Cooper Tire, 204 S.W.3d at 800; Robinson, 923 S.W.2d at 

557. 

B. Plaintiff Genzer’s unit

The Council next argues that Dominy made and admitted to a calculation 

error in determining the value of the unit belonging to plaintiff Frank Genzer, Jr., 

and that this error requires a new trial. Dominy performed two appraisals of units 

at the Landing. In the first appraisal, he calculated the valuations of the units twice, 

using two effective dates in December 2010, just before and just after the fire. In 

that appraisal, he stated the size of Genzer’s unit as 981 square feet. In the second 

appraisal, he calculated the values with an effective date in September 2012 and 

stated the size of Genzer’s unit as 1,887 square feet.

According to the Council, Dominy’s first appraisal is evidence of the correct 

size of Genzer’s unit. The jury, however, awarded damages in the amount that 

Dominy calculated in the second appraisal, using the larger size. Specifically, 

Dominy calculated $70 as the value per square foot of Genzer’s unit. Multiplying 

by 1,887 square feet and adding a $20,000 premium for Genzer’s boat slip, he 

arrived at a total value for Genzer’s unit of $152,090, and the jury awarded 

damages in this amount. According to the Council, Dominy should have used 981 

square feet in his calculations, resulting in a value of no more than $88,670.
26

The Council argues that Dominy admitted that he used the wrong square 

footage. Specifically, it points to the following testimony:

Q. Okay. We compare that 83,765 in December of 2010 to the 

September 2012 number of 152,000, correct?

A. Well, the difference is the unit size. Those would be in “C-1-C” 

unit.

Q. You have identified it as a “B” unit, but you’re saying it should 

be “C-1-C?”

A. Let me see here just a second. Well, it is supposed to be [a] 

1,887 square-foot unit, and for some reason on this other chart, 

it shows up as a 987 square-foot unit.

Q. So the calculations are wrong in one of the exhibits?

A. Well, probably just the designation of a number was wrong in 

the first report.

According to the Council, Dominy thus admitted that he made a calculation error 

by using the 1,887 square-foot size. Dominy’s testimony clearly stated the 

opposite: the 1,887 square-foot size was correct, and the earlier report incorrectly 

used a smaller size. No other testimony addresses the size of Genzer’s unit.

The Council also points to the declaration establishing The Landing, which 

states the size of unit 144, Genzer’s unit, as 981 square feet. According to the 

Council, this conclusively demonstrates that Dominy’s assumptions regarding the 

facts were incorrect, rendering his testimony legally insufficient to support the 

judgment. We disagree that the square-footage number in this document, a number 

about which the record contains no testimony, conclusively established the size of 
27

the unit as 981 square feet, much less that Dominy’s valuation of Genzer’s unit 

was necessarily unreliable or incorrect.

“It is the province of the jury to resolve conflicts in the evidence.” City of 

Keller, 168 S.W.3d at 820. “Accordingly, courts reviewing all the evidence in a 

light favorable to the verdict must assume that jurors resolved all conflicts in 

accordance with that verdict.” Id. Here, the jury was entitled to accept Dominy’s 

testimony regarding which report was in error and regarding the size of Genzer’s 

unit. Accordingly, we reject the Council’s argument that the purported error in 

valuation of one unit requires a new trial.

C. Double recovery

The Council also argues that the trial court’s judgment permits a double 

recovery, allowing the co-owner plaintiffs to profit from a casualty by recovering 

both insurance proceeds and damages for their claims against the Council. For 

example, Mary Lou Durham, though not herself a plaintiff at trial, testified that she 

intended to collect both insurance proceeds and damages from the Council. And as 

the Council correctly observes, undisputed testimony established that various 

plaintiffs received insurance payments for the damages suffered during the 

hurricane and fire. But as Appellants point out in response, the Council did not 

plead offset as an affirmative defense, nor did it obtain any jury findings on the 

amounts of the plaintiffs’ insurance payments. 
28

A party who argues that a judgment should be discounted by insurance 

proceeds or that a damages award is unrecoverable in whole or part due to payment 

of such proceeds is asserting the defense of offset. Brown v. Am. Transfer & 

Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). “The right of offset is an 

affirmative defense.” Id. “The burden of pleading offset and of proving facts 

necessary to support it are on the party making the assertion.” Id. (citing Sw. Bell 

Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex. Civ. App.—San Antonio 1977, writ ref’d 

n.r.e.)); see also TEX. R. CIV. P. 94. But the Council did not plead offset as a 

defense, nor did it object to the jury questions regarding damages or request 

alternative questions. The argument is therefore waived. See TEX. R. CIV. P. 272, 

274; Brown, 601 S.W.2d at 936.

IV. Plaintiffs’ appeal: Prejudgment Interest

In their second issue, Appellants argue that the trial court erred by 

calculating prejudgment interest using a “trigger date” of November 20, 2012. 

They argue that the correct date is 180 days from September 26, 2008, when 

Appellants first gave written notice of their claim, or, alternatively, September 10, 

2010, when they filed suit.

Prejudgment interest is governed by Section 304.104 of the Texas Finance 

Code, which provides, “Except as provided by Section 304.105 or 304.108, 

prejudgment interest accrues on the amount of a judgment during the period 
29

beginning on the earlier of the 180th day after the date the defendant receives 

written notice of a claim or the date the suit is filed and ending on the day 

preceding the date judgment is rendered.” TEX. FIN. CODE § 304.104. “A ‘claim’ is 

‘a demand for compensation or an assertion of a right to be paid.’” Johnson & 

Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex. 1998) 

(quoting Robinson v. Brice, 894 S.W.2d 525, 528 (Tex. App.—Austin 1995, writ 

denied)). A defendant has notice of a claim for purposes of prejudgment interest 

only if the plaintiff’s written notice communicates that the plaintiff is claiming a 

right to compensation and provides enough information that the defendant could 

plausibly settle the claim without incurring interest. Id.; see also Owens–Ill., Inc. v. 

Estate of Burt, 897 S.W.2d 765, 769 (Tex. 1995).

Appellants first argue that they gave written notice of their claim on 

September 26, 2008, and that prejudgment interest should therefore run from 

180 days after that date. The purported notice in question is an email from Mary 

Lou Durham (an officer of condominium owner and plaintiff Bull Capital) to 

Andrew Rosenberg (who became a Council Board Administrator in 2009, but was 

not an Administrator in 2008). In a series of emails, Durham explained that she 

was dissatisfied with the Board’s handling of the damages inflicted by Hurricane 

Ike two weeks earlier and described meeting with an attorney. Rosenberg 

discussed the attorney in question and opined, in an email on September 27, that 
30

Rick Butler, the Council’s attorney, had violated The Landing’s bylaws. The

document did not make a demand that anyone pay money to anyone else, nor did it 

specify any amounts by which anyone had been damaged or any reasons why such 

a payment should be made.

Durham was not a plaintiff at the time of trial or when judgment was 

rendered. Although she initially participated in the suit in her role as an officer of 

Bull Capital, she ceased to be a party before trial. Moreover, Rosenberg was not on 

the Board at the time of the email in question. 

We also note with respect to this document that Durham testified she was 

not contemplating a lawsuit when she wrote the email. Appellants argue that Board 

President Jenkins nonetheless interpreted the email as a threat of a lawsuit. But 

Jenkins testified only that Durham was “threatening lawsuits” at the time the Board 

decided not to proceed with the improperly called Article 12 vote in the fall of 

2008. He explained that the threats were “[o]ver calling an Article 12 meeting.” He 

made no mention of any demand for payment of a claim. Appellants also rely on

statements during argument by the defendants’ counsel that plaintiffs gave notice 

of their intent to sue within two weeks of the storm. The arguments of counsel are 

not evidence, and mere notice of the intent to sue is not legally sufficient to 

establish a written claim for these purposes because a demand of compensation

must be included. See Johnson & Higgins, 962 S.W.2d at 531.
31

We hold that the September 26, 2008 email from Mary Lou Durham, a nonplaintiff, to Andrew Rosenberg, who was not then a member of the Board and thus 

not liable for any actions taken by the Board during the relevant time period, did

not constitute a claim for purposes of triggering the accrual of prejudgment 

interest. See TEX. FIN. CODE § 304.104; see also Lee v. Fenwick, 907 S.W.2d 88, 

89–90 (Tex. App.—Eastland 1995, writ denied) (actual receipt of written notice by 

potential defendant is statutory requirement).

Alternatively, Appellants argue that prejudgment interest should run from 

the date when they filed suit in 2010. But prejudgment interest does not always run 

from the date on which a plaintiff files suit. Rather, the relevant date is that on 

which the plaintiff asserted the claim which ultimately results in a recovery. See, 

e.g., I-10 Colony, Inc. v. Lee, 393 S.W.3d 467, 480 (Tex. App.—Houston [14th 

Dist.] 2012, pet. denied); Tex Star Motors, Inc. v. Regal Fin. Co., 401 S.W.3d 190, 

203–04 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Citizens Nat’l 

Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 487–87 (Tex. App.—Fort Worth 

2004, no pet.).

For example, in Tex Star Motors, Inc. v. Regal Finance Co., 401 S.W.3d 190 

(Tex. App.—Houston [14th Dist.] 2012, no pet.), the plaintiff first asserted the 

claims on which it later recovered, in an amended petition. Tex Star Motors, 401 

S.W.3d at 204. The defendant had no notice of those claims until the filing of the 
32

amended petition. Id. The court of appeals held that the plaintiff could recover 

prejudgment interest only from the date of the amended petition. Id.; see also I-10 

Colony, 393 S.W.3d at 480.

In this case, the plaintiffs initially asserted only one claim: that the Council 

and the Board were negligent in failing to prepare for and respond to Hurricane 

Ike. They asserted five theories of liability: (1) failure to ensure that vessels were 

removed from the marina or properly secured before the storm; (2) failure to repair 

structures after the storm; (3) failure to appeal Smith’s substantial-damage 

determination; (4) waste of assets after the storm that could have been used for 

repairs; and (5) “other acts and omissions.” They eventually elected to recover 

their damages based solely on the Council’s breaches of two contracts: the bylaws 

and declarations. But the original petition did not contain a breach-of-contract 

claim. Rather, the plaintiffs asserted their breach-of-contract claim in their seventh 

amended petition, filed November 20, 2012. 

Moreover, the sole measure of damages submitted to the jury was the fair 

market value of each of the plaintiff’s condominiums as if they had been repaired 

to pre-hurricane condition. This measure of damages was only relevant in the event 

that a property was found to be totally destroyed or damaged beyond repair; it 

would not have been proper for any damage to the property that could be repaired. 

When repairs are economically feasible, the proper measure of damages is the cost 
33

of repair; the diminution in market value of the property is the correct measure

only when it is less than the cost of repairs. See N. Ridge Corp. v. Walraven, 957 

S.W.2d 116, 119 (Tex. App.—Eastland 1997, pet. denied); B.A. Mortg. Co., Inc. v. 

McCullough, 590 S.W.2d 955, 957 (Tex. Civ. App.—Fort Worth 1979, no writ). 

The total destruction of The Landing occurred at its demolition in April 2011, after 

the plaintiffs filed their original petition. That petition could not have served as 

notice of a claim that had not yet accrued.

Because neither the September 26, 2008 email nor the plaintiffs’ original 

petition put the defendants on notice of the claim upon which the plaintiffs 

ultimately recovered, prejudgment interest did not begin to accrue until the 

plaintiffs asserted their breach of contract claim. We hold that the trial court did 

not err in calculating prejudgment interest from November 20, 2012.

V. Wheelbarger’s claims for declaratory judgment and attorney’s fees

In her final issue, Wheelbarger argues that the trial court erred by denying 

her claims for declaratory relief and attorney’s fees.7

 

7 Appellees again argue that Wheelbarger has waived this issue by failing to 

include her live pleading in the appellate record. For the same reasons that 

we declined to hold that Wheelbarger waived her challenge to the directed 

verdict, see supra note 4, we decline to hold that she waived her final issue.
34

A. Declaratory relief

The judgment denied the requested declaratory relief on two bases. First, the 

trial court found “that the Declarations requested would affect the rights of all 

condominium owners and therefore all condominium owners [are] necessary 

parties to this litigation [but] not all condominium owners are parties to this 

litigation.” Second, it found that Wheelbarger’s pleadings did not support all of the 

requested declarations. Wheelbarger challenges both of these reasons, arguing that 

(1) her pleadings support the requested declarations, (2) she obtained jury findings 

sufficient to support the declarations, (3) joinder of the other co-owners of The 

Landing was not required, and (4) she is entitled to attorney’s fees because the 

jury found that she was “adversely affected” by the Council’s actions. 

Declaratory judgments are authorized by Section 37.003 of the Civil Practice 

and Remedies Code, which provides, “A court of record within its jurisdiction has 

power to declare rights, status, and other legal relations whether or not further 

relief is or could be claimed.” TEX. CIV. PRAC. & REM. CODE § 37.003(a). A trial 

court’s decision to enter or refuse a declaratory judgment therefore rests within the 

sound discretion of the trial court. See, e.g., Space Master Int’l, Inc. v. Porta-Kamp 

Mfg. Co., Inc., 794 S.W.2d 944, 947 (Tex. App.—Houston [1st Dist.] 1990, no 

pet.).
35

“It is . . . within the discretion of the trial court to refuse to enter a 

declaratory judgment or decree if the judgment or decree would not terminate the 

uncertainty or controversy giving rise to the proceeding.” Id.; see also SpawGlass 

Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.—Houston [14th 

Dist.] 1998, pet. denied); Scurlock Permian Corp. v. Brazos Cnty., 869 S.W.2d 

478, 486 (Tex. App.—Houston [1st Dist.] 1993, writ denied). “The Declaratory 

Judgments Act was never intended to provide for the piecemeal litigation of 

lawsuits.” Space Master Int’l, 794 S.W.2d at 947 (citing United Serv. Life Ins. Co. 

v. Delaney, 396 S.W.2d 855, 858 (Tex. 1965)).

Wheelbarger first argues that her live pleading requests findings that track 

the language of the declarations that she ultimately sought. Her live pleading 

requested four declarations relating to her claims against the Council and the Board 

members:

1. That a vote of the members of the Association to demolish The 

Landing was required before the Board of Administrators of the 

Association would have been permitted to seek a permit for and 

proceed with the demolition of the Landing Condominium 

Complex;

2. In order for the Association’s Board of Administrators to have 

proceeded to seek a permit for demolition of The Landing 

Condominium Complex (and then actual demolition), a vote of 

no less than 75% of the members of the Association would have 

been required to approve such demolition;

3. The appeal requested by members of the Supporting Owners 

regarding the City’s “substantial damage” determination must 
36

be completed prior to a vote of the members of the Association 

on demolition and termination of the condominium regime; and

4. The Texas Property Code required The Landing Condominium 

Complex to be rebuilt or repaired unless the exceptions and 

required vote set forth in either 81.206 or 82.111(i) of the Texas 

Property Code were satisfied.

By contrast, in her proposed judgment Wheelbarger sought the following 

declarations:

1. Following Hurricane Ike in September 2008, The Landing 

Council of Co-Owners had a mandatory duty under Texas law 

to repair and rebuild all portions of The Landing Condominium 

Complex damaged by Hurricane Ike;

2. The Landing Council of Co-Owners failed to timely call and 

hold a Special Meeting of Co-Owners under Article XII of the 

Declarations following Hurricane Ike;

3. The legal consequence of failing to timely call and hold a 

Special Meeting of Co-Owners under Article XII of the 

Declarations following Hurricane Ike is that the Landing 

Council of Co-Owners’ duty to repair and rebuild the portions 

of The Landing Condominium Complex that was damaged by 

Hurricane Ike is unabated and still remains;

4. Following the fire in December 2010, The Landing Council of 

Co-Owners had a mandatory duty under Texas law to repair and 

rebuild all portions of The Landing Condominium Complex 

that was damaged by such fire; 

5. At a Special Meeting of Co-Owners under Article XII of the 

Declaration held less than forty (40) days after such fire, less 

than sixty-seven percent (67%) of the Co-Owners of The 

Common Elements voted in favor of finding that more than 

two-thirds of The Landing Condominium Complex required 

reconstruction because of the fire or other casualty; 
37

6. The legal consequence of obtaining less than 67% of the vote of 

the Co-Owners of The Common Elements in The Landing is 

that the Landing Council of Co-Owners’ duty to repair and 

rebuild the portions of The Landing Condominium Complex 

that was damaged by such fire is unabated and still remains;

7. All insurance proceeds paid to the Landing Council of CoOwners as a result of either Hurricane Ike or the fire, less the 

expenses of the Trustee, are required to be used to repair and 

rebuild the portions of The Landing Condominium Complex 

damaged by Hurricane Ike or the fire, as applicable;

8. The condominium regime of the Landing Condominium 

Complex has not been and may not be terminated pursuant to 

Article XII or Article XIII of the Declarations as a result of 

Hurricane Ike or the fire in December 2010; and

9. The Board of Administrators of The Landing Council of CoOwners does not have any authority to market or sell any 

portion of the Common Elements, including, but not limited to, 

the land.

There is no clear relationship between any of the declarations that 

Wheelbarger sought in her motion for entry of judgment and the claims for 

declaratory relief on which she proceeded to trial. On the contrary, the relief that 

Wheelbarger sought after trial is both significantly different and significantly 

greater than that requested in her pleadings. A trial court commits reversible error 

if it grants relief beyond that requested in the parties’ pleadings. Binder v. Joe, 193 

S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 

Moreover, the factual findings that Wheelbarger obtained from the jury do 

not support her requested declarations. The jury made only three findings of 

relevance to this issue. First, it found that the Council failed to obtain the consent 
38

of all co-owners and their first-lien mortgagees before obtaining a demolition 

permit and demolishing The Landing. Second, it found that the Council prevented 

the “Concerned Owners of The Landing Condominiums” from proceeding with 

their attempted appeal of the substantial-damage determination. Third, it found that 

at the Article 12 meeting in January 2011, fewer than 67% of the co-owners of The 

Landing’s common elements voted to find that more than two-thirds of The 

Landing required reconstruction because of the fire or other casualty. These 

findings do not support any of the declarations requested by Wheelbarger in either 

her live pleading or motion for entry of judgment.

Because the requested declarations are not supported by Wheelbarger’s 

pleadings or by the questions submitted to the jury, we hold that the trial court did 

not abuse its discretion in denying declaratory relief.

B. Attorney’s fees

Wheelbarger also contends that the trial court should have awarded her 

attorney’s fees because the jury found that she was “adversely affected” by the 

Council’s failure to comply with the bylaws, declarations, and Property Code. She 

relies on Section 82.161 of the Texas Property Code, which provides:

(a) If a declarant or any other person subject to this chapter violates 

this chapter, the declaration, or the bylaws, any person or class 

of persons adversely affected by the violation has a claim for 

appropriate relief.
39

(b) The prevailing party in an action to enforce the declaration, 

bylaws, or rules is entitled to reasonable attorney’s fees and 

costs of litigation from the nonprevailing party.

TEX. PROP. CODE § 82.161. The jury found that the Council violated 

Section 82.111(i) of the Property Code, The Landing’s bylaws, and the 

declarations, and that these violations “adversely affected” Wheelbarger. 

According to Wheelbarger, she is therefore entitled to recover her attorney’s fees. 

Under the statute, however, she can do so only if she is a “prevailing party.”

It is well-settled under Texas law that “to prevail, a claimant must obtain 

actual and meaningful relief, something that materially alters the parties’ legal 

relationship.” Intercont’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 

652 (Tex. 2009); see also Farrar v. Hobby, 506 U.S. 103, 109–10, 113 S. Ct. 566, 

572 (1992). This rule applies in the context of Section 82.161: to qualify as a 

“prevailing party,” Wheelbarger must show not only that she was “adversely 

affected” but also that she suffered damages or otherwise obtained affirmative 

relief from the trial court. See Buttross V., Inc. v. Victoria Square Condo. 

Homeowners’ Ass’n, Inc., No. 03-09-00526-CV, 2010 WL 3271957, at *3–4 (Tex. 

App.—Austin Aug. 18, 2010, pet. denied) (mem. op.). She obtained no relief from 

the trial court, however, and therefore she is not a prevailing party within the 

meaning of Section 82.161.
40

Because Wheelbarger has not demonstrated that the trial court erred in 

denying her declaratory relief or attorney’s fees, we overrule her third issue.

VI. Council’s cross-appeal: Attorney’s fees

In the Council’s final issue, it argues that we should modify the trial court’s 

judgment to exclude attorney’s fees. It contends that the jury’s findings regarding 

violations of the Property Code cannot sustain the fees award. It further argues that 

the trial court erred by refusing to submit a question on excuse due to impossibility 

as an affirmative defense to the plaintiffs’ breach-of-contract claims, and therefore 

the breach-of-contract findings also cannot sustain the fees award. Specifically, it 

argues that it was entitled to a question regarding whether performance under the 

bylaws and declaration was impossible, excusing the Council’s breaches of those 

agreements.

A prevailing party is entitled to recover attorney’s fees incurred in pursuing 

a claim for breach of contract. TEX. CIV. PRAC. & REM. CODE § 38.001(8). Here, 

the plaintiffs recovered damages for breach of the bylaws and declaration and 

elected those damages as their remedy. The Council argues that the omission of a 

question regarding the affirmative defense of excuse renders the judgment 

unsupportable and, along with it, the recovery of attorney’s fees.

At the charge conference, the Council requested the inclusion of the 

question: “Was Defendants’ failure to comply [with the bylaws or declaration] 
41

excused?” They requested as the accompanying proposed instruction: “Failure to 

comply by the Landing is excused by Plaintiffs’ previous failure to comply with a 

material obligation of the same agreement.” They also asked the trial court to add 

an instruction to the breach-of-contract liability questions that the Council’s failure 

to comply was excused if the plaintiffs waived performance. None of the requested 

questions or instructions relates to impossibility of performance. The trial court 

refused the requested question and instructions. See TEX. R. CIV. P. 276.

By contrast, on appeal, the Council argues that the trial court should have 

submitted a question on excuse due to impossibility. It argues that a third party’s 

failure to mail notices of the Article 12 meeting, combined with delays in mail 

delivery and the dispersion of The Landing’s residents after the hurricane, made it 

impossible to hold that meeting in a timely manner. It also argues that changes in 

the City of El Lago’s building codes made it impossible for the Council to repair 

the property to the pre-storm condition or to use insurance proceeds for that 

purpose. 

A party is obligated to present its objections to the charge “before the charge 

is read to the jury.” TEX. R. CIV. P. 272. The objection must be specific; “[a] party 

objecting to a charge must point out distinctly the objectionable matter and the 

grounds of the objection.” TEX. R. CIV. P. 274; Ford Motor Co. v. Ledesma, 242 

S.W.3d 32, 43 (Tex. 2007). Moreover, the party’s objection must have “stated the 
42

grounds for the ruling that the complaining party sought from the trial court with 

sufficient specificity to make the trial court aware of the complaint, unless the 

specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a). A party 

must “clearly designate the alleged error and specifically explain the basis of its 

complaint in its objection to the charge.” Hamid v. Lexus, 369 S.W.3d 291, 296 

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Carousel’s Creamery, 

L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404–05 (Tex. App.—

Houston [1st Dist.] 2004, pet. dism’d)).

Failure to object timely to error in a jury charge constitutes a waiver of that 

error. TEX. R. CIV. P. 272. “Any complaint as to a question, definition, or 

instruction, on account of any defect, omission, or fault in pleading, is waived 

unless specifically included in the objections.” TEX. R. CIV. P. 274. A party also 

waives an objection when it is “obscured or concealed by voluminous unfounded 

objections, minute differentiations or numerous unnecessary requests.” Id.; Dallas 

Cnty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 53 (Tex. App.—Dallas 

2012, pet. denied). “Failure to submit a question shall not be deemed a ground for 

reversal of the judgment, unless its submission, in substantially correct wording, 

has been requested in writing and tendered by the party complaining of the 

judgment; provided, however, that objection to such failure shall suffice in such 

respect if the question is one relied upon by the opposing party.” TEX. R. CIV.
43

P. 278. “Failure to submit a definition or instruction shall not be deemed a ground 

for reversal of the judgment unless a substantially correct definition or instruction 

has been requested in writing and tendered by the party complaining of the 

judgment.” Id. “Upon appeal all independent grounds of recovery or defense not 

conclusively established under the evidence and no element of which is submitted 

or requested are waived.” TEX. R. CIV. P. 279.

The Council’s arguments on appeal do not comport with its requested 

question and instructions at trial. Moreover, it identifies no evidence in the record, 

and we have not found any, supporting the questions and instructions that it 

actually requested regarding excuse due to prior material breach or excuse by 

waiver of compliance. Because the Council failed to present a question or 

instruction regarding excuse due to impossibility, it waived the right to complain 

on appeal that the charge omitted such questions or instructions. TEX. R. CIV.

P. 278, 279; see also TEX. R. CIV. P. 272, 274. And because it has not shown that 

the questions and instructions that it did request on the defense of excuse were 

supported by the evidence, it has not shown that the trial court erred in refusing the 

requests. E.g., TEX. R. CIV. P. 278 (questions and instructions must be supported by 

the evidence); see also TEX. R. CIV. P. 272 (parties must object); TEX. R. CIV.

P. 274 (objection must be specific).
44

We hold that the trial court did not err by refusing to submit the Council’s 

requested question and instructions on excuse, and the jury’s findings that the 

Council breached the bylaws and declaration support the award of attorney’s fees. 

TEX. CIV. PRAC. & REM. CODE § 38.001(8). We therefore overrule the Council’s 

third issue.

Conclusion

Having overruled all of the parties’ issues on appeal, we affirm the judgment 

of the trial court.

Michael Massengale

Justice

Panel consists of Justices Jennings, Massengale, and Lloyd.