Opinion filed October 21, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00250-CV

__________

DAN DIPPREY ET AL., Appellants

V.

DOUBLE DIAMOND, INC. ET AL., Appellees

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C47833

O P I N I O N

This appeal arises from a bench trial concerning “The Cliffs,” a resort property 

development at Possum Kingdom Lake in Palo Pinto County. Appellants Dan 

Dipprey, Curtis Priddy, Ken Hill, Ken Hill Investment Group, Inc., Walt Leutwyler, 

Bryan Harveston, William C. Wageneck, Stanley Jerry Brasher, Cheryl D. Brasher, 

Ray Lunger, Steven Ware, Chris O. Knox, C. Wayne Parks, Daniel J. Dziuba, 

Samuel K. Howard, Ruth M. Howard, Byrom J. Smith, III, Malibu L.P., Steve 

Janicek, Jeffrey Coolidge, Ginger Coolidge, Tony W. Docken, Terry Test, William 
2

E. Walker, II, Steven D. Helling, Douglas M. Boston, Thomas Scheidel, Carol

Scheidel, Terry Zenoble, Sarah Zenoble, James R. Peek, and Trimerica Corp. 

(collectively Appellants) are individuals or entities that own property or an interest 

in property at the Cliffs Resort, or control entities that own property at the Cliffs 

Resort. They are also members of The Cliffs Property Owners’ Association, Inc. 

(the POA), a nonprofit Texas Corporation. The POA is also an appellant in this 

appeal. As noted below, the POA was not an original party to the litigation. 

This proceeding started as a suit by some of the Appellants concerning the 

management of the POA and the development of The Cliffs. They originally brought 

suit against the developer, Appellee Double Diamond, Inc., as well as entities 

affiliated with Double Diamond, Inc.: Appellees Double Diamond Management 

Corp. and Double Diamond Utilities Co. The original Appellants also sued R. Mike 

Ward, the principal officer of the Double Diamond entities and the president of the 

POA for several years. 

Over time, additional property owners joined the suit as plaintiffs. Appellants 

also sued additional defendants, who are also Appellees to this appeal. Appellees 

Cliffs Club Corp., Cliffs Dining Corp., Cliffs Hotel Corp., Cliffs Golf, Inc., and 

Cliffs Marina, Inc. are other entities affiliated with Double Diamond, Inc. that own 

or conduct operations at The Cliffs. Appellants also joined Appellee Double 

Diamond-Delaware, Inc., the parent company and sole shareholder of the Double 

Diamond entities. Appellants also joined Appellee Randy Gracy as a defendant. 

Among other things, Gracy is the president of Double Diamond Utilities. He was 

also the vice president of the POA for several years. 

The earlier phases of the litigation concerned the manner in which the votes 

of the members of the POA were to be tabulated and the way in which the meetings 

of the board of directors were to be conducted. The earlier litigation spawned two 

original proceedings and an interlocutory appeal in this court. See In re Dipprey, 
3

582 S.W.3d 531 (Tex. App.—Eastland 2018, orig. proceeding); In re Double 

Diamond, Inc., 582 S.W.3d 535 (Tex. App.—Eastland 2018, orig. proceeding); 

Double Diamond, Inc. v. Dipprey, No. 11-18-00105-CV, 2019 WL 150921 (Tex. 

App.—Eastland Jan. 10, 2019, no pet.) (mem. op.). During this period, the case 

focused on the efforts of Appellants to gain control of the POA. From the inception 

of the POA until a few months before trial, Ward and employees of the POA made 

up a majority of the board of directors. 

Appellants gained control of the POA during the pendency of the underlying 

proceedings by virtue of securing enough votes to elect a majority of the board of 

directors of the POA. The POA intervened in the suit approximately four months 

prior to trial as a plaintiff aligned with Appellants.

The bench trial focused on the following issues: (1) the interpretation of the 

POA’s governing documents; (2) claims for breach of contract against Appellees for 

alleged overcharges and failure to maintain the resort as required by various

contracts; (3) claims for breach of fiduciary duty against Ward, Gracy, and Double 

Diamond Management; (4) ownership of the water and sewer systems at The Cliffs; 

(5) access to the amenities at The Cliffs; and (6) Appellants’ claims for diminution 

in value of their properties based upon the manner in which the Double Diamond 

entities operated the resort. At the conclusion of the bench trial, the trial court 

entered a take-nothing judgment in favor of Appellees on all claims asserted by 

Appellants and the POA. 

Appellants and the POA bring eleven issues challenging the trial court’s 

rulings and judgment. We note at the outset that Appellants have not challenged the 

trial court’s denial of their claims for diminution in value with respect to the value 

of their properties. In this regard, a significant portion of the trial focused on these 

claims. Additionally, in their seventh issue, Appellants and the POA challenge the 

trial court’s denial of their claims to declare the POA’s “rights of ownership, 
4

maintenance or operation of the central water and central sewer systems . . . to 

compel conveyance of those systems to [the POA].” However, Appellants and the 

POA have withdrawn this issue in a letter to the court dated June 12, 2020. 

Accordingly, we do not address their seventh issue. With respect to Appellants’ and 

the POA’s remaining ten issues, as well as Appellees’ cross-issue, we affirm in part, 

reverse and render in part, and reverse and remand in part.

Background Facts

In the 1980s, a limited partnership known as Cliffs Development, Ltd. began 

developing The Cliffs. Cliffs Development, Ltd. executed a “Declaration of 

Covenants, Conditions, and Reservations for The Cliffs” on August 20, 1986. The 

original declarations addressed the creation of “The Cliffs Homeowners Association, 

Inc.” However, the POA was not created at that time. 

Double Diamond Inc. purchased The Cliffs in 1993 after Cliffs Development, 

Ltd. experienced financial difficulties. Ward filed Articles of Incorporation for the 

POA on January 18, 1994. On behalf of Double Diamond Inc., Ward also executed 

a “Declaration Regarding the Establishment of The Cliffs Property Owners’ 

Association, Inc.” on January 18, 1994 (the Declaration). On January 20, 1994, 

Ward and the other initial directors of the POA executed bylaws for the POA.

On January 25, 1994, Double Diamond Inc. executed an amended Declaration 

of Covenants, Conditions and Restrictions, which amended the previous Declaration 

of Covenants, Conditions and Restrictions filed by Cliffs Development, Ltd. 

Between January 26, 1994, and May 31, 2011, Double Diamond Inc. filed additional 

amendments to the Declaration of Covenants, Conditions, and Reservations, with 

the final amendment being the Fourteenth Amended and Restated Declaration of 

Covenants, Conditions, and Restrictions for The Cliffs filed on May 31, 2011 (the 

Fourteenth Amended CCRs). 
5

In January 1994, the POA executed a contract with Double Diamond Inc. to 

maintain the golf course at The Cliffs and in February 1994, the POA executed a 

separate contract with Double Diamond Inc. to manage certain affairs for the POA 

and to maintain the common areas and amenities at The Cliffs. Double Diamond 

Inc. later assigned the maintenance contracts to Double Diamond Management. 

As noted previously, Appellants became dissatisfied with the manner in which 

Ward and the Double Diamond entities operated The Cliffs and managed the POA. 

Among other things, Appellants and the POA asserted that Appellees operated the 

water and sewer systems at The Cliffs in a deficient manner. Appellants and the 

POA also asserted that Appellees overcharged the POA for services at The Cliffs. 

Analysis

Vote Tabulation

In their first issue, Appellants1 and the POA contend that the trial court erred 

by determining that each owner of a timeshare estate is entitled to a full vote with 

respect to the election of directors of the POA. The trial court made this ruling prior 

to trial,

2 and it confirmed this ruling in its findings of facts and conclusions of law. 

In addition to lots held in fee simple, The Cliffs also has some timeshare units 

that are owned by individuals in one-week increments. Each one-week increment is 

referred to as a “timeshare estate.” The trial court interpreted the POA’s governing 

documents and concluded that each owner of a one-week timeshare estate is entitled 

to a full vote, the same as the owner of a lot in fee simple. In their first issue, 

Appellants and the POA challenge this interpretation. 

1

Appellees contend that only the POA has standing to present the issue concerning the manner in 

which votes should be tabulated. Because of the POA’s participation in this proceeding and its affiliation 

with Appellants, it is not necessary for us to consider Appellants’ standing apart from the POA’s standing. 

2

The trial court’s interlocutory ruling on the tabulation of votes was the subject of the mandamus 

proceeding in In re Dippery, 582 S.W.3d 531. We declined to review the trial court’s interlocutory ruling 

on the basis that the parties had an adequate remedy by appeal. 582 S.W.3d at 533.
6

There are four documents that govern the POA: (1) the Fourteenth Amended

CCRs; (2) the Declaration; (3) the articles of incorporation; and (4) the bylaws. Prior 

to analyzing these documents in detail, we note that the provisions of the Fourteenth

Amended CCRs have little to do with membership of the POA and voting for 

directors. The articles of incorporation also do not address membership and voting 

to any specific degree. The parties do not rely on the provisions of the articles of 

incorporation or the Fourteenth Amended CCRs in their briefs on the timeshare 

voting issue. Accordingly, we focus our analysis on the Declaration and the bylaws. 

The interpretation of the governing documents of a homeowners’ association 

is subject to the general rules of contract construction. C.A.U.S.E. v. Vill. Green 

Homeowners Ass’n, Inc., 531 S.W.3d 268, 274 (Tex. App.—San Antonio 2017, no 

pet.) (citing Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998)); Uptegraph v. 

Sandalwood Civic Club, 312 S.W.3d 918, 925 (Tex. App.—Houston [1st Dist.] 

2010, no pet.) (same); Goddard v. Northhampton Homeowners Ass’n, Inc., 229 

S.W.3d 353, 356 (Tex. App.—Amarillo 2007, no pet.) (same). The court’s primary 

duty is to ascertain the drafter’s intent from the instrument’s language. Uptegraph, 

312 S.W.3d at 925 (citing Bank United v. Greenway Improvement Ass’n, 6 S.W.3d 

705, 707 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)); see Tarr v. 

Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 280 (Tex. 2018) (citing 

Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987)). We review a trial court’s 

interpretation of the governing documents de novo. Uptegraph, 312 S.W.3d at 925 

(citing Air Park–Dallas Zoning Comm. v. Crow–Billingsley Airpark, Ltd., 109 

S.W.3d 900, 909 (Tex. App.—Dallas 2003, no pet.)). Provisions are unambiguous 

if, after appropriate rules of construction have been applied, they can be given a 

definite or certain legal meaning. Id. Mere disagreement over the interpretation of 

provisions does not necessarily render them ambiguous. Id. at 926.
7

We begin and end our analysis by examining the Declaration. We start with 

the Declaration because the bylaws contain a provision indicating that the 

Declaration will control in the event it conflicts with the bylaws. The “Declarant,” 

and thereby the drafter of the Declaration, was Double Diamond, Inc. in its capacity 

as the developer. Ward signed the Declaration in his capacity as the president of 

Double Diamond, Inc. 

The Declaration is a three-page document consisting of four articles. The 

fourth article provides as follows: 

VOTING RIGHTS

The Association shall have one class of voting membership. 

Members shall be entitled to one (1) vote for each Lot or Timeshare 

Estate in which they hold the interest required for membership. When 

more than one person holds such interest or interests in any Lot or 

Timeshare Estate, all such persons shall be Members, and the vote for 

such Lot shall be exercised as they, among themselves, may determine, 

but in no event shall more than one (1) vote be cast with respect to any 

such Lot.

Appellants and the POA focus on the last clause of this provision: “but in no event 

shall more than one (1) vote be cast with respect to any such Lot.” They contend 

that this provision sets a maximum of one vote per lot. Thus, under the interpretation 

advanced by Appellants and the POA, the timeshare estate owners of a timeshare 

unit located on a single lot would only have a fractional vote. For example, if there 

were fifty timeshare estates in one timeshare unit, the owners of those fifty timeshare 

estates would have to caucus to determine how to cast a single vote for the lot upon 

which their timeshare estates are located. 

Conversely, Appellees point out that the voting rights provision in the 

Declaration begins by stating that there is one class of voting membership and that 

“Members shall be entitled to one (1) vote for each Lot or Timeshare Estate in which 

they hold the interest required for membership.” They contend that this provision is 
8

supported by the definitions in the Declaration. The first article of the Declaration 

contains definitions of various terms used in the voting rights provision:

Section 6. “Lot” shall mean and refer to any plot or tract of 

land shown upon any recorded subdivision map(s) or plat(s) of the 

Property, as amended from time to time, which is designated as a “lot” 

thereon.

. . . .

Section 8. “Owner” shall mean and refer to each and every 

person or entity who is a record owner of a fee or undivided fee interest 

in any Lot or Timeshare Estate; however, the word “Owner” shall not 

include person(s) or entity(ies) who hold a bona fide lien or interest in 

a Lot merely as security for the performance of an obligation.

. . . .

Section 11. “Timeshare Estate” shall mean any undivided 

freehold estate in a timeshare unit located on a lot as described in a 

recorded Declaration establishing a Timeshare Regime under the terms 

of the Texas Timeshare Act.3

Appellees assert that the Declaration’s definition of “Owner” includes owners of 

timeshare estates as well as owners of lots. Appellees also point to another provision 

of the Declaration providing that “[e]very person or entity who is now or hereafter 

becomes an Owner shall automatically be and must remain a Member of the 

Association.” Reading these provisions together, Appellees contend that, since 

owners of timeshare estates are Owners, they are also Members, and as such, they 

are entitled to one vote per timeshare estate owned. 

We conclude that the vote tabulation dispute hinges upon the meaning of the 

final clause in the Declaration’s voting rights provision: “but in no event shall more 

than one (1) vote be cast with respect to any such Lot.” As noted previously, 

Appellants and the POA assert that this provision caps the votes that may be cast per 

3

“Timeshare estate” is defined as follows by the Texas Timeshare Act: “an arrangement under 

which the purchaser receives a right to occupy a timeshare property and an estate interest in the real 

property.” TEX. PROP. CODE ANN. § 221.002(24) (West 2014). 
9

lot to only one, including a lot that has multiple timeshare estates in a timeshare unit

located on the lot. Appellants and the POA contend that this reading is more 

equitable in the sense that a person who only owns a timeshare estate that is one

week in duration should not have the same vote as a person that owns a lot in fee 

simple. 

Conversely, Appellees assert that the “one vote per lot” clause is limited by 

the words at the beginning of the sentence in which it is contained: “When more than 

one person holds such interest or interests in any Lot or Timeshare Estate, . . . .” 

Thus, Appellees assert that the “one vote per lot” clause only applies when multiple 

people own a lot or a timeshare estate, to the extent that only one vote may be cast

per lot or timeshare estate.

Appellees further assert that the construction advocated by Appellants and the POA 

would render other provisions of the voting rights provision meaningless. We agree 

with Appellees.

With respect to the equitable argument advanced by Appellants and the POA, 

our primary concern in construing an instrument is to give effect to the written 

expression of the drafter’s intent as written in the instrument as opposed to trying to

determine the most equitable resolution.4

 See Sundown Energy LP v. HJSA No. 3, 

Ltd. P’ship, 622 S.W.3d 884, 888 (Tex. 2021) (citing Forbau v. Aetna Life Ins. Co., 

876 S.W.2d 132, 133 (Tex. 1994)); URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 

(Tex. 2018) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 

2005)). We avoid construing a document in a way that renders parts of its language 

meaningless. See Sundown Energy LP, 622 S.W.3d at 888 (citing Piranha 

Partners v. Neuhoff, 596 S.W.3d 740, 747 (Tex. 2020)). If we were to adopt the 

4

Appellants and the POA assert in their reply brief that Appellees’ interpretation would produce an 

“absurd result” that is “just beyond reason.” We disagree based upon our interpretation of the voting rights 

provision of the Declaration.
10

construction advanced by Appellants and the POA, the earlier part of the voting 

rights provision stating that each owner of a timeshare estate is entitled to one vote 

would be rendered meaningless. 

We agree with Appellees’ contention that the one vote per lot clause is limited 

by the words at the beginning of the sentence:

When more than one person holds such interest or interests in any Lot 

or Timeshare Estate, all such persons shall be Members, and the vote 

for such Lot shall be exercised as they, among themselves, may 

determine, but in no event shall more than one (1) vote be cast with 

respect to any such Lot.

By its express terms, the sentence applies to situations where multiple persons own 

a single lot or multiple persons own a single timeshare estate. In those instances, 

only one vote may be cast. But under the construction advanced by Appellants and 

the POA, the one vote per lot clause would apply to instances where a timeshare 

estate is solely owned by one person. 

Appellees additionally assert that the Declaration treats a “Timeshare Estate” 

as being different than a “Lot.” In this regard, courts “cannot interpret a contract to 

ignore clearly defined terms.” Id. (quoting FPL Energy, LLC v. TXU Portfolio 

Mgmt. Co., 426 S.W.3d 59, 64 (Tex. 2014)). The Declaration has separate 

definitions for a “Lot” and a “Timeshare Estate.” The trial court interpreted the one 

vote per lot clause as only applying to votes cast on behalf of Lots but not on behalf 

of Timeshare Estates. In light of the separate definitions for each term, this 

construction is correct.5

5

Appellants and the POA also rely on a HUD report prepared by Double Diamond, Inc. in 2014 

wherein it stated that each lot has one vote, including lots owned by Double Diamond, Inc. that have 

timeshare units. Appellants and the POA contend that this is a “pre-dispute” interpretation of the 

Declaration that should be binding on Appellees. We disagree. As noted above, “Lot” and “Timeshare 

Estate” are treated differently by the POA’s governing documents. Additionally, the interpretation of the 

Declaration is resolved by construing its express language rather than a document prepared approximately 

thirty years later. 
11

The bylaws contain a voting rights provision that is similar to the voting rights 

provision in the declaration. The “voting rights” provision in the bylaws states as 

follows:

Voting Rights

The Association shall have one class of voting membership. 

Members shall be entitled to one (1) vote for each Lot or Timeshare 

Estate in which they hold the interest required for membership. When 

more than one person holds such interest or interests in any Lot or 

timeshare estate, all such persons shall be Members, and the vote for 

such Lot or Timeshare Estate shall be exercised as they, among 

themselves, may determine, but in no event shall more than one (1) vote 

be cast with respect to any such Lot or Timeshare Estate. 

(Emphasis added). We note that the two instances of the phrase “or Timeshare 

Estate” in the voting rights provision in the bylaws that we have italicized above are 

not present in the voting rights provision of the Declaration. We are mindful that 

these two additions of “or Timeshare Estate” in the bylaws make its voting rights 

provision easier to construe in favor of Appellees’ construction of the Declaration. 

However, the omission of these two later uses of “Timeshare Estate” in the 

Declaration does not require the opposite construction. To do so would render the 

Declaration’s use of the following words meaningless: “Members shall be entitled 

to one (1) vote for each Lot or Timeshare Estate in which they hold the interest 

required for membership.” (Emphasis added). We overrule Appellants’ and the 

POA’s first issue. 

Development Period

In their second issue, Appellants and the POA assert that the trial court erred 

by not entering a ruling on their request for a declaration that the development period 

for The Cliffs has ended. This issue bears on Double Diamond, Inc.’s power to 

unilaterally amend the CCRs as well as the other governing documents of the POA. 

Specifically, there is a provision in the Fourteenth Amended CCRs that provides that 
12

“[t]he power to amend the Covenants and Restrictions is retained by the Developer.” 

The trial court entered a conclusion of law to the effect that the requested declaratory 

relief was “not ripe for adjudication.” The trial court noted in the conclusion that no 

attempt had been made to amend the CCRs since May 2011. 

Ripeness is a component of a court’s subject-matter jurisdiction. Patterson v. 

Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). 

Subject-matter jurisdiction is essential to the authority of a court to decide a case. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). In 

order for a court to have subject-matter jurisdiction, the plaintiff must have standing 

to sue, and the plaintiff’s claim must be ripe. Sw. Elec. Power Co. v. Lynch, 595 

S.W.3d 678, 683 (Tex. 2020). The doctrines of standing and ripeness stem from the 

prohibition of advisory opinions, which in turn is rooted in the separation of powers 

doctrine. Patterson, 971 S.W.2d at 442. Subject-matter jurisdiction is a question of 

law reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

226 (Tex. 2004) (citing Tex. Ass’n of Bus., 852 S.W.2d at 446).

Ripeness examines when an action may be brought, while standing focuses 

on who may bring an action. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 

(Tex. 2000); Landmark Am. Ins. Co. v. Eagle Supply & Mfg. L.P., 530 S.W.3d 761, 

767 (Tex. App.—Eastland 2017, no pet.). Ripeness “emphasizes the need for a 

concrete injury for a justiciable claim to be presented.” Lynch, 595 S.W.3d at 683 

(quoting Patterson, 971 S.W.2d at 442). If the plaintiff’s claimed injury is based on 

“hypothetical facts, or upon events that have not yet come to pass,” then the case is 

not ripe, and the court lacks subject-matter jurisdiction. Id. (quoting Gibson, 22 

S.W.3d at 852).

The Uniform Declaratory Judgments Act (UDJA) states that “[a] person 

interested under a . . . contract . . . may have determined any question of construction 

or validity arising under the instrument . . . and obtain a declaration of rights, status, 
13

or other legal relations thereunder.” TEX.CIV. PRAC.&REM.CODE ANN. § 37.004(a) 

(West 2020). The Act further provides that “[a] contract may be construed either 

before or after there has been a breach.” Id. § 37.004(b). However, a plaintiff 

bringing suit under the UDJA must still properly invoke the trial court’s subjectmatter jurisdiction. Lynch, 595 S.W.3d at 683 (citing Tex. Ass’n of Bus., 852 S.W.2d 

at 444). The UDJA does not permit courts to render advisory opinions, Tex. Ass’n 

of Bus., 852 S.W.2d at 444, and it does not authorize a court to decide a case in which 

the issues are hypothetical or contingent—the dispute must still involve an actual 

controversy. Lynch, 595 S.W.3d at 684.

In determining whether a suit for a declaratory judgment presents a court with 

a ripe controversy, “the declaration sought must actually resolve the controversy.” 

Id. at 685 (quoting Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004)). 

Lynch concerned a dispute over the scope of easements granted in 1949. Id. The 

defendant asserted that the plaintiffs only alleged “a hypothetical future 

controversy.” Id. at 684. The Texas Supreme Court disagreed by holding that the 

dispute was “not merely academic or theoretical,” but rather was a “real and 

substantial controversy . . . involving genuine conflict of tangible interests.” Id. at 

685–86. 

There is a current dispute between the parties as to whether the development 

period for The Cliffs has ended. As noted previously, the dispute bears on Double 

Diamond, Inc.’s power to unilaterally amend the CCRs. Appellants and the POA 

assert that, because of a statutory change in the Texas Residential Property Owners 

Protection Act, Double Diamond, Inc. cannot unilaterally amend the CCRs because 

The Cliffs are no longer in the development period. See PROP. § 209.0041(h) (West 

Supp. 2020). Conversely, Ward testified at a pretrial hearing that “I think the 

development period is alive and well right now and will continue for a long time.” 

On appeal, Appellees assert that “whether [Double Diamond, Inc.] will ever attempt 
14

to unilaterally exercise those rights is hypothetical and contingent.” Appellees 

further assert that the trial court had discretion to decline to issue the requested relief 

under the UDJA. See CIV. PRAC. § 37.008. 

We disagree with Appellees’ contention that the trial court had discretion to 

decline to address the merits of Appellants’ and the POA’s request for declaratory 

relief. Section 37.008 provides that “[t]he court may refuse to render or enter a 

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

uncertainty or controversy giving rise to the proceeding.” This statute only provides 

a trial court with “limited discretion to refuse a declaratory judgment, and [it] may 

do so only where judgment would not remove the uncertainty giving rise to the 

proceedings.” Scurlock Permian Corp. v. Brazos Cty., 869 S.W.2d 478, 486 (Tex. 

App.—Houston [1st Dist.] 1993, writ denied) (citing James v. Hitchcock Indep. Sch. 

Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.] 1987, writ denied)). 

Section 37.008 is inapplicable because a declaratory judgment would terminate the 

controversy in this case—whether the development period remains in existence. 

We also disagree with Appellees’ assertion that the development period 

dispute is not ripe for adjudication because Double Diamond, Inc. has not attempted 

to unilaterally amend the CCRs since 2011. This lawsuit started as an action by 

disgruntled members of the POA concerning the manner in which Appellees 

governed the POA. The dispute between the parties concerning the development 

period is not merely academic or theoretical, but rather it is an actual controversy. 

Furthermore, a declaratory judgment with respect to the development period will 

resolve their actual controversy and will promote judicial economy. Accordingly, 

we disagree with the trial court’s determination that the development period dispute 

is not ripe for adjudication.

There are two provisions in the Property Code that are relevant to the issue 

concerning the development period. In order to resolve this issue, we must construe 
15

these provisions. We review issues of statutory construction de novo. Silguero v. 

CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). In construing statutes, our 

primary objective is to give effect to the legislature’s intent. Id. In interpreting 

statutes, we must look to the plain language, construing the text in light of the statute 

as a whole, because a statute’s plain language is the most reliable guide to the 

legislature’s intent. Id.

Section 209.0041(h) provides that a declaration6 of a property owners’ 

association may be amended only by a vote of sixty-seven percent of the total votes 

allocated to property owners entitled to vote. Section 209.0041 applies to a 

residential subdivision in which property owners are subject to mandatory 

membership in a property owners’ association. PROP. § 209.0041(b). But under 

subsection (d), Section 209.0041 does not apply “to the amendment of a declaration 

during a development period.” Id. § 209.0041(d). “Development period” is defined 

by statute as follows:

(4-a) “Development period” means a period stated in a 

declaration during which a declarant reserves:

(A) a right to facilitate the development, 

construction, and marketing of the subdivision; or

(B) a right to direct the size, shape, and composition 

of the subdivision.

Id. § 209.002(4-a). Thus, we must determine if The Cliffs are still in the 

development period. We conclude that it is not.

We first note that the CCRs do not specifically provide for a development 

period. Appellees contend that The Cliffs remains in the development period 

because the Fourteenth Amended CCRs provides that “[t]he power to amend the 

6

By definition, a “declaration” “means an instrument filed in the real property records of a county 

that includes restrictive covenants governing a residential subdivision.” PROP. § 209.002(3).
16

Covenants and Restrictions is retained by the Developer.” Appellees further assert 

that this is a right that has existed since the adoption of the Fifth Amended CCRs in 

March 1998 by the POA. 

The Second Amended CCRs was the first set of CCRs adopted by Double 

Diamond, Inc. after its acquisition of The Cliffs. As noted in the Third Amended 

CCRs, the Second Amended CCRs granted the power to amend the CCRs to the 

POA’s board of directors. Thereafter, the POA executed the Third, Fourth, and Fifth 

Amended CCRs. Double Diamond, Inc. then executed the Sixth, Seventh, Eighth, 

Ninth, Tenth, Eleventh, Twelfth, Thirteenth, and Fourteenth Amended CCRs. 

The definition of a “development period” indicates that it is a right reserved 

by the developer. Id. § 209.002(4-a). Despite the text of the Fifth through the 

Fourteenth Amended CCRs that “[t]he power to amend the Covenants and 

Restrictions is retained by the Developer” (emphasis added), history indicates

otherwise. While the power to amend was initially reserved by Double Diamond, 

Inc., it subsequently conveyed the right to amend to the POA. Accordingly, The 

Cliffs is no longer in the development period as the term is defined in the Property 

Code because the power to amend was no longer reserved by the developer after it 

conveyed that power to the POA. Moreover, this interpretation is supported by the 

fact that The Cliffs have been in existence for over thirty years. Thus, 

Section 209.0041 is applicable to The Cliffs. 

Because of its determination that the existence of the development period was 

not ripe for adjudication, the trial court did not consider the effect of 

Section 209.0041 on Double Diamond, Inc.’s power to unilaterally amend the CCRs 

or its effect on the other governing documents for the POA. We conclude that a 

remand is necessary for the trial court to consider the effect of Section 209.0041. 

We sustain Appellants’ and the POA’s second issue. We render judgment that The 

Cliffs are no longer in the development period. We remand all issues concerning 
17

the effect of Section 209.0041 on the CCRs and the other governing documents of 

the POA for consideration by the trial court. 

Attorney’s Fees

In their ninth issue, Appellants and the POA assert, conditionally to their first 

and second issues, that the trial court abused its discretion by not awarding attorney’s 

fees for their requests for declaratory relief. The UDJA provides for an award of 

“reasonable and necessary attorney’s fees as are equitable and just.” CIV. PRAC. 

§ 37.009. “[The] UDJA does not require an award of attorney’s fees to anyone; 

rather, it ‘entrusts attorney fee awards to the trial court’s sound discretion.’” Allstate 

Ins. Co. v. Irwin, 627 S.W.3d 263, 271 (Tex. 2021) (quoting Bocquet v. Herring, 

972 S.W.2d 19, 21 (Tex. 1998)). 

Appellants and the POA have not provided any argument in support of this 

issue. A brief must “contain a clear and concise argument for the contentions made, 

with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). 

“Failure to cite legal authority or to provide substantive analysis of the legal issues 

presented results in waiver of the complaint.” Smale v. Williams, 590 S.W.3d 633, 

639 (Tex. App.—Texarkana 2019, no pet.). Accordingly, Appellants and the POA 

have waived this issue. We overrule their ninth issue.

Fiduciary Duty of Double Diamond Management 

and Double Diamond, Inc.

In their third issue, Appellants and the POA assert that the trial court erred by 

granting summary judgment to the effect that Double Diamond Management did not 

owe a fiduciary duty to the POA. As the third issue is worded, Appellants and the 

POA appear to be presenting a procedural complaint—that the trial court erred by 

granting summary judgment “moments before calling the cause to trial” by holding 
18

that Double Diamond Management owed no fiduciary obligations to the POA.7 

However, they have not cited any authority and we have found none that supports 

the proposition that a trial court errs by granting summary judgment on the morning 

of trial. 

We additionally note that, as worded, the third issue only references Double 

Diamond Management. In this regard, the trial court’s oral grant of summary 

judgment on the morning of trial only referenced Double Diamond Management. 

However, the trial court also noted that if “[Double Diamond Management] doesn’t 

have a fiduciary duty under the Service Agreement, neither would [Double 

Diamond, Inc.] under that theory.” We agree with the trial court that Double 

Diamond, Inc. and Double Diamond Management are similarly situated because 

Double Diamond Management is the successor to Double Diamond, Inc. under the 

parties’ service agreement.

We further note that in their fourth issue, Appellants and the POA also 

challenge the trial court’s determination that neither Double Diamond Management 

nor Double Diamond, Inc. owed a fiduciary duty to the POA. They also assert in 

their fourth issue that the trial court erred by determining that Double Diamond 

Management and Double Diamond, Inc. did not breach any fiduciary duties. 

Appellants and the POA challenge several findings of fact and conclusions of law 

with respect to these claims. 

Appellants and the POA argue their third and fourth issues together with 

respect to whether Double Diamond, Inc., and Double Diamond Management owed 

a fiduciary duty. In doing so, they only cite evidence offered at trial rather than the 

7

The third issue states as follows: “The trial court erred in granting summary judgment moments 

before calling the cause to trial and holding that Defendant Double Diamond Management Company 

(DDM) owed no fiduciary obligations to the Association, including, but not limited to, that DDM had no 

duty to account to the Association for how it handled Association money. (The summary judgment is in 

error as a matter of law, and there were material issues of disputed fact.)”
19

summary judgment evidence. Because of their overlap, we will address the third 

and fourth issues together.

The trial court found that Double Diamond, Inc., and then Double Diamond 

Management, acted as a property management company for The Cliffs. They did so 

pursuant to a written service agreement wherein Double Diamond, Inc., and then 

Double Diamond Management, agreed to provide the POA with various services, 

including accounting and financial services. Appellants’ and the POA’s claims for 

breach of fiduciary duty against Double Diamond, Inc. and Double Diamond 

Management are based on the primary contention that Double Diamond, Inc. and 

Double Diamond Management overcharged the members of the POA for their 

services. Appellants and the POA asserted that, as fiduciaries, Double Diamond, 

Inc. and Double Diamond Management had the burden of proof to account for their 

use of POA money. Appellants and the POA assert that Double Diamond, Inc. and 

Double Diamond Management failed to meet their burden of proof to account for 

expenditures. 

Lying at the heart of Appellants’ and the POA’s issues is the question of who 

has the burden of proof on the claims that the members of the POA were 

overcharged. By asserting that Double Diamond, Inc. and Double Diamond 

Management had the burden of proof as fiduciaries, Appellants and the POA sought 

to shift the burden to Double Diamond, Inc. and Double Diamond Management to 

prove that they did not overcharge the members. 

In discovery, Appellees provided Appellants and the POA with “detail trial 

balances,” which essentially was the general ledger for the POA. Appellants and the 

POA were dissatisfied with the production of the detail trial balances as a 

justification of the expenses assessed to the POA’s members. They sought the 

source documents that supported the entries on the detail trial balances. Appellants 

and the POA complain that Appellees only provided the source documents in a 
20

“document dump” in the form of giving them access to at least “176 banker boxes” 

containing the documents of the POA commingled with records of entities that are 

unrelated to The Cliffs. Appellants and the POA assert that the document production 

was at best an “Easter Egg Hunt.”

The trial court noted that the task of matching up the source documents to the 

detail trial balances would be a “monumental task.” The trial court further noted at 

trial that no one had undertaken that monumental task. Appellants and the POA 

asserted that Double Diamond Management and Double Diamond, Inc. should have 

completed this monumental task in order to justify its management of the finances 

of the POA, and they relied on their claim for breach of fiduciary duty to support 

their argument. We conclude that the trial court did not err in ruling that Double 

Diamond Management and Double Diamond, Inc. did not owe the POA a fiduciary 

duty. 

To succeed on a claim for breach of fiduciary duty, a plaintiff must establish 

“(1) a fiduciary relationship between the plaintiff and defendant, (2) a breach by the 

defendant of his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or 

benefit to the defendant as a result of the defendant’s breach.” Severs v. Mira Vista 

Homeowners Ass’n, Inc., 559 S.W.3d 684, 703 (Tex. App.—Fort Worth 2018, pet. 

denied) (quoting Lindley v. McKnight, 349 S.W.3d 113, 124 (Tex. App.—Fort 

Worth 2011, no pet.)); Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston 

[14th Dist.] 2008, pet. denied); accord Flagstar Bank, FSB v. Walker, 451 S.W.3d 

490, 499 (Tex. App.—Dallas 2014, no pet.). “Certain formal relationships create 

fiduciary relationships as a matter of law.” Severs, 559 S.W.3d at 703. Examples 

of formal fiduciary relationships include attorney–client, partnership, and trust 

relationships. See Crim Truck & Tractor v. Navistar Int’l Transp. Corp., 823 S.W.2d 

591, 594 (Tex. 1992), superseded by statute on other grounds as noted in Subaru of 

Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225–26 (Tex. 2002). 
21

Sometimes informal relationships, whether moral, social, domestic, or purely 

personal, may also give rise to fiduciary duties where one person trusts in and relies 

on another. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex. 

1997); Severs, 559 S.W.3d at 703. “But not every relationship involving a high 

degree of trust and confidence rises to the stature of a fiduciary relationship.” 

Swanson, 959 S.W.2d at 176–77. In order to give full force to contracts, courts do 

not create fiduciary relationships lightly. Id. at 177. Thus, “to impose such a 

relationship in a business transaction, the relationship must exist prior to, and apart 

from, the agreement made the basis of the suit.” Id. “[M]ere subjective trust does 

not . . . transform arm’s-length dealing into a fiduciary relationship.” Id.

“Where the underlying facts are undisputed, determination of the existence, 

and breach, of fiduciary duties are questions of law, exclusively within the province 

of the court.” Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (quoting Nat’l 

Med. Enters. v. Godbey, 924 S.W.2d 123, 147 (Tex. 1996)). In this case, the facts 

concerning the relationship between Double Diamond, Inc., Double Diamond 

Management, and the POA are undisputed. Appellants and the POA assert that 

Double Diamond, Inc. and Double Diamond Management owed a fiduciary duty to 

the POA “because they have collected, held, and disbursed the POA’s funds and are 

tasked with managing and disbursing those funds for the benefit of the POA.” Thus, 

Appellants and the POA do not assert the existence of a confidential relationship 

existing prior to, and apart from, the service agreement. See Swanson, 959 S.W.2d 

at 177; Robbins Ranch Subdivision Homeowners’ Ass’n v. Partners of Benchmark 

Props., L.P., No. 12-18-00317-CV, 2019 WL 2119659, at *4 (Tex. App.—Tyler 

May 15, 2019, pet. denied) (holding that a developer of a subdivision did not owe a 

fiduciary duty to the homeowners’ association in the absence of a showing of a 

special relationship of trust and confidence existing prior to, and apart from, the 

agreement made the basis of the suit); see also T.F.W. Mgmt., Inc. v. Westwood 
22

Shores Prop. Owners Ass’n, 79 S.W.3d 712, 720 (Tex. App.—Houston [14th Dist.] 

2002, pet. denied) (declining to recognize fiduciary duty between owner of a country 

club and property owners’ association that paid club fees). 

The terms of the service agreement do not specifically provide that Double 

Diamond, Inc. or Double Diamond Management owe a fiduciary duty to the POA. 

See Lindley, 349 S.W.3d at 124 (“Fiduciary duties . . . may be created by contract” 

(quoting Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 698 (Tex. App.

—Fort Worth 2006, pet. denied))); see also Lincoln Gen. Ins. Co. v. U.S. Auto Ins. 

Servs., Inc., 787 F.3d 716, 727 (5th Cir. 2015) (an example of a fiduciary duty 

created by contract). The service agreement simply provided that Double Diamond, 

Inc., and then Double Diamond Management, would provide various services to the 

POA, including accounting and financial services. 

Appellants and the POA assert that “since 2007 [Double Diamond 

Management] completely controlled the Association’s money.” Based on this 

assertion, Appellants and the POA assert that Double Diamond Management owed 

a fiduciary duty to the POA. Appellants and the POA cite several cases in support 

of this proposition. We find them distinguishable. 

Appellants and the POA cite City of Fort Worth v. Pippen, 439 S.W.2d 660, 

665 (Tex. 1969), for the proposition that when one controls or manages the money 

of another, a fiduciary relationship is created. As noted by the Dallas Court of 

Appeals in Flagstar Bank:

Pippen involved an action by the city against its land agent, title 

company and the title company's vice-president to recover funds 

converted by the land agent to his own use. The city’s land agent duped 

the city into authorizing the purchase of property for an amount greater 

than had been actually negotiated with the sellers. The city sent these 

greater amounts to the title company with instructions to pay those 

amounts to the sellers. Instead, contrary to the instructions, the title 

company paid the sellers a lesser amount and paid the difference to the 

land agent. 
23

451 S.W.3d at 502 (footnotes omitted) (citing Pippen, 439 S.W.2d at 662, 664–65). 

The court in Flagstar Bank noted that “Pippen was decided on an agency theory; it 

was not a breach of fiduciary duty case.” Id. at 503 (citing Wessen v. Jefferson Sav. 

& Loan Ass’n, 641 S.W.2d 903, 906 (Tex. 1982) (stating Pippen decided on theory 

that agent owes fiduciary duty to principal)). 

Appellants and the POA did not plead or establish an agency theory against 

Double Diamond, Inc. or Double Diamond Management. Agency is a type of special 

relationship that gives rise to a formal fiduciary duty. Davis-Lynch, Inc. v. Asgard 

Techs., LLC, 472 S.W.3d 50, 60 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 

(citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002)). An 

agency relationship arises when the principal consents to the agent acting on the 

principal’s behalf. Id. (citing Walker Ins. Servs. v. Bottle Rock Power Corp., 108 

S.W.3d 538, 549 (Tex. App.—Houston [14th Dist.] 2003, no pet.)). An essential 

element of the principal–agent relationship is the alleged principal’s right to control 

the actions of the alleged agent. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 

1993). This right to control includes not only the right to assign tasks, but also the 

right to dictate the means and details of the process by which an agent will 

accomplish the task. Olympia Capital Assocs., L.P. v. Jackson, 247 S.W.3d 399, 

413 (Tex. App.—Dallas 2008, no pet.). The evidence does not establish that the 

POA had the right to control either Double Diamond, Inc. or Double Diamond 

Management in any respect. “Thus, even though one acts for and in behalf of 

another, if he is not under that other person’s control, the relation of agency does not 

exist.” Daily Int’l Sales Corp. v. Eastman Whipstock, Inc., 662 S.W.2d 60, 64 (Tex. 

App.—Houston [1st Dist.] 1983, no writ).

Appellants and the POA also cite Talamantez v. State, 790 S.W.2d 33 (Tex. 

App.—San Antonio 1990, pet. ref’d); Home Loan Corp. v. Texas American Title 

Co., 191 S.W.3d 728 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); and 
24

Shearer v. Shearer, No. 06-12-00096-CV, 2013 WL 3771409 (Tex. App.—

Texarkana July 16, 2013, no pet.) (mem. op.). Talamantez is a criminal case that 

cited Pippen for the proposition that “an agent who accepts money from a principal 

to be used for a specific purpose owes a fiduciary duty to the principal.” 790 S.W.2d 

at 35 n.1 (citing Pippen, 439 S.W.2d at 665). Home Loan Corp. involved a claim 

against a settlement agent for the closing of a residential mortgage loan. 191 S.W.3d 

at 730. Citing Pippen, the court held that “a title company that accepts funds for 

disbursement in a closing transaction for a fee owes the party remitting those funds 

a duty of loyalty, a duty to make full disclosure, and a duty to exercise a high degree 

of care to conserve the money and pay it only to those persons who are entitled to 

receive it.” Id. (citing Pippen, 439 S.W.2d at 664–65). The court in Shearer cited 

Pippen for the proposition that “[g]enerally, an agent is obligated to exercise a high 

degree of care to conserve the principal’s money and to pay it only to those entitled 

to receive it.” 2013 WL 3771409, at *8 (citing Pippen, 439 S.W.2d at 665). For the 

same reasons that Pippen does not apply, Talamantez, Home Loan Corp., and 

Shearer are also inapposite. 

Appellants and the POA also cite Paschal v. Great Western Drilling, Ltd., 215 

S.W.3d 437 (Tex. App.—Eastland 2006, pet denied), in support of their claim that 

Double Diamond, Inc. and Double Diamond Management owed a fiduciary duty to 

the POA. Paschal involved an accountant for an oil company that stole almost 

$1,500,000 from the company by diverting the payment of revenue to a fictious

payee. Id. at 442. The trial court submitted an issue to the jury as to whether a 

fiduciary relationship existed between the accountant and the oil company that 

employed him. Id. at 450. On appeal, the accountant’s widow asserted that the 

fiduciary duty question should not have been submitted to the jury. Id. We held that 

the oil company was entitled to the submission of an issue on the existence of a 

fiduciary duty because of the “peculiar confidence” entrusted to the accountant by 
25

the oil company. Id. at 451 (citing Kinzbach Tool Co. v. Corbett–Wallace Corp., 

160 S.W.2d 509, 512 (Tex. 1942)). We noted that the oil company assigned him the 

responsibility to distribute millions of dollars of revenue to the appropriate recipient. 

Id. 

Paschal is distinguishable both procedurally and factually. The appellate 

complaint in Paschal concerned the existence of evidence to support the submission

of a jury issue. The appellant in Paschal did not challenge the jury’s answer to the 

question. Factually, the accountant in Paschal was an employee in charge of 

disbursing revenue received by the oil company to the various working interest and 

royalty interest owners who owned interests in the leases that the oil company 

operated. Id. “It is well established in Texas that an employee may be in a fiduciary 

relationship with his or her employer.” Orbison v. Ma-Tex Rope Co., 553 S.W.3d 

17, 30 (Tex. App.—Texarkana 2018, pet. denied) (citing Kinzbach Tool, 160 S.W.2d 

at 513); see Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 700 

(Tex. 2007) (noting that an agency relationship imposes certain fiduciary duties and 

that an employer–employee relationship is such an agency relationship). As we 

noted, there was at least a fact question in Paschal as to whether the 

accountant occupied a position of peculiar confidence to pay millions of dollars to 

the appropriate recipients. 215 S.W.3d at 451. The accountant was the only person 

that examined the checks at the oil company before they were mailed to the 

recipients. Id.

Appellants and the POA also rely on a statement in Lincoln General that 

“control over funds belonging to others is the classic situation in which a fiduciary 

duty arises.” 787 F.3d at 728. Lincoln General involved a contract that specifically 

provided that an agent would have a fiduciary duty. Id. at 727. Thus, the agent had 

a fiduciary duty in its actions dealing with another party’s money. Id. at 728. The 

court in Lincoln General cited a U.S. Supreme Court opinion as support for the 
26

above quote. Id. (citing Pegram v. Herdrich, 530 U.S. 211, 231 (2000)). In 

addressing the fiduciary duty owed by a trustee, the Supreme Court in Pegram stated 

that “[a]t common law, fiduciary duties characteristically attach to decisions about 

managing assets and distributing property to beneficiaries.” 530 U.S. at 231. The 

holdings in Lincoln General and Pegram are inapposite because Double Diamond, 

Inc. and Double Diamond Management were not agents or trustees of the POA and 

did not have a contract with the POA that specified that they were fiduciaries. 

We conclude that the trial court did not err in ruling that Double Diamond,

Inc. and Double Diamond Management did not owe a fiduciary duty to the POA. 

“[A] contractual obligation does not generally give rise to a fiduciary duty.” Brewer 

& Pritchard, 73 S.W.3d at 203. The POA executed a service agreement with Double 

Diamond, Inc., and then with Double Diamond Management, to manage the affairs 

of The Cliffs. The service agreement did not specify a fiduciary relationship, and 

neither Double Diamond, Inc. nor Double Diamond Management was an agent of 

the POA because the POA did not have the right to control them. 

A no-evidence summary judgment is proper when a claim fails as a matter of 

law. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We 

conclude that a trial court does not err by resolving a claim that fails as matter of law 

by granting a summary judgment on the eve of trial, particularly in the setting of a 

bench trial. On the merits, that trial court did not err by ruling that Double Diamond, 

Inc. and Double Diamond Management did not owe a fiduciary duty to the POA as 

a matter of law. The evidence offered at trial did not change this conclusion. We 

overrule Appellants’ and the POA’s third and fourth issues. 

Accounting

In their fifth issue, Appellants and the POA assert that the trial court erred in 

determining that Appellees had fully accounted to the POA. “An ‘accounting’ is 

designed to require a person in possession of financial records to produce them, 
27

demonstrate how money was expended, and return pilfered funds in his or her 

possession.” 1 TEX. JUR. 3d Accounts and Accounting § 166. “To be entitled to an 

accounting, a plaintiff usually must have a contractual or fiduciary relationship with 

the party from which the plaintiff seeks the accounting.” T.F.W. Mgmt., 79 S.W.3d 

at 717 (citing Hunt Oil Co. v. Moore, 656 S.W.2d 634, 642 (Tex. App.—Tyler 1983, 

writ ref’d n.r.e.)).

As the fifth issue is stated, it appears that Appellants and the POA are

challenging the legal and factual sufficiency of the evidence supporting various 

findings on the amounts charged to the POA. The issue as stated does not indicate 

under which theory of recovery Appellants and the POA assert a right to an 

accounting. In their argument, Appellants and the POA assert their claim for an 

accounting under their claim for breach of fiduciary against Double Diamond, Inc. 

and Double Diamond Management. They also assert a contractual claim for an 

accounting. Because we have determined that Double Diamond, Inc. and Double 

Diamond Management did not owe the POA a fiduciary duty, we limit our 

discussion of the fifth issue to the contractual claim for an accounting. 

Appellants and the POA assert that Double Diamond, Inc. and Double 

Diamond Management had a duty to account to the POA under the service 

agreement. They do not cite any specific provision in the service agreement in 

support of this contention, but rather they assert that it arises generally 

from the contract because of Double Diamond, Inc.’s and Double Diamond 

Management’s “use of the Association’s funds.” Thus, in many respects, 

Appellants’ and the POA’s claim for an accounting under the service agreement is 

the same as their fiduciary duty claim against Double Diamond, Inc. and Double 

Diamond Management—both are based on the control of the POA’s funds.

The service agreement does not contain a requirement for Double Diamond, 

Inc. or Double Diamond Management to make an accounting to the POA. It 
28

provides that Double Diamond, Inc., and then Double Diamond Management, would 

provide accounting and financial services for the POA but it does not contain a 

requirement that they would provide an after-the-fact accounting to the POA. Courts 

do not imply a requirement for an accounting when the parties’ contract is silent on 

the matter. T.F.W. Mgmt., 79 S.W.3d at 719. 

Moreover, “[a] suit for an accounting is generally founded in equity.” Id. at 

717 (citing Sw. Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 809 (Tex.

App.—San Antonio 1994, writ denied)). An equitable accounting is proper when 

the facts and accounts presented are so complex that adequate relief may not be 

obtained at law. Id. at 717 (citing Hutchings v. Chevron U.S.A., 862 S.W.2d 752, 

762 (Tex. App.—El Paso 1993, writ denied)). As noted in T.F.W. Management, 

“When a party can obtain adequate relief at law through the use of standard 

discovery procedures, such as requests for production and interrogatories, a trial 

court does not err in not ordering an accounting.” Id. at 717–18. An order granting 

an accounting is within the discretion of the trial court. Dooley, 884 S.W.2d at 809

(citing Gifford v. Gabbard, 305 S.W.2d 668, 672 (Tex. Civ. App.—El Paso 1957, 

no writ)). 

In many respects, Appellants’ and the POA’s claim for accounting is a 

discovery dispute. They were dissatisfied with the detail trial balances as evidence 

of the accuracy of the expenses assessed by Double Diamond Management to the 

POA and they sought more information in the form of the source documents. The 

adequacy of a party’s discovery responses is a matter within the trial court’s 

discretion. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. 

proceeding) (citing Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.

1995) (orig. proceeding)). The trial court noted that the task of matching up the 

source documents to the detail trial balances would be monumental. Appellants and 

the POA did not want to undertake this task—they wanted Appellees to complete 
29

this task. The trial court disagreed with Appellants and the POA by holding that, as 

plaintiffs, they had the burden of proof. We agree. See Vance v. My Apartment 

Steak House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984) (“It is a well 

accepted postulate of the common law that a civil litigant who asserts an affirmative 

claim for relief has the burden to persuade the finder of fact of the existence of each 

element of his cause of action.”). The record does not reflect that the trial court 

abused its discretion in its discovery rulings.

The trial court made specific findings that Double Diamond Management 

accurately tracked goods purchased for The Cliffs as well as the expenses of the 

POA and that Double Diamond Management presented annual budgets that were 

approved by the duly elected board of directors. The trial court also determined that 

Double Diamond Management properly accounted to the POA. When reviewing the 

sufficiency of the evidence to support the trial court’s express or implied findings, 

we apply the same standards of review that apply to a jury’s verdict. See MBM Fin. 

Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009) (citing 

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)). 

When a party attacks the legal sufficiency of an adverse finding on an issue 

on which it has the burden of proof, it “must demonstrate on appeal that the evidence 

establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. 

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); accord Sterner v. Marathon Oil 

Co., 767 S.W.2d 686, 690 (Tex. 1989). In reviewing a “matter of law” challenge, 

we first examine the record for evidence that supports the finding, and we ignore all 

evidence to the contrary. Francis, 46 S.W.3d at 241 (citing Sterner, 767 S.W.2d at 

690); see City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If no evidence 

supports the finding, we then examine the entire record to determine if Appellant’s 

contrary position is established as a matter of law. Francis, 46 S.W.3d at 241.
30

When a party attacks the factual sufficiency of an adverse finding on an issue 

on which it has the burden of proof, it “must demonstrate on appeal that the adverse 

finding is against the great weight and preponderance of the evidence.” Id. at 242. 

“The court of appeals must consider and weigh all of the evidence, and can set aside 

a verdict only if the evidence is so weak or if the finding is so against the great weight 

and preponderance of the evidence that it is clearly wrong and unjust.” Id. We do 

not pass upon the witnesses’ credibility or substitute our judgment for that of the 

trier of fact, even if the evidence would support a different result. Gonzalez v. 

McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

Appellants and the POA do not assert that they conclusively established their 

claims regarding overcharges as a matter of law. Instead, they assert that there was 

“no evidence” to support the trial court’s findings about the appropriateness of the 

charges assessed to the POA. A “no evidence” challenge would be a legal 

sufficiency challenge asserted by a party that did not have the burden of proof. See 

City of Keller, 168 S.W.3d at 827; Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 

1983). As noted previously, Appellants and the POA had the burden of proof on 

this issue. 

The trial court received extensive testimony from Double Diamond 

Management’s Chief Financial Officer, Rick De La Fuente, regarding the manner in 

which the detail trial balances were prepared as well as the preparation of the 

financial statements for the POA. He testified that if an expense was placed on the 

detail trial balances, then it was an expense of the POA. De La Fuente testified that 

he believed that the entries on the detail trial balances were accurate. In many 

respects, the accuracy of the detail trial balances was inherently a matter of 

credibility. The trial court determined that Appellees’ detail trial balances were 

credible evidence of the actual expenses of the POA. In a bench trial, we defer to 
31

the credibility determinations of the trial court. See S-G Owners Ass’n, Inc. v. 

Sifuentes, 562 S.W.3d 614, 620 (Tex. App.—Houston [1st Dist.] 2018, no pet.). 

There were instances when monies were directed from the POA’s account to 

unrelated entities controlled by Double Diamond, Inc. However, these amounts 

were later paid back to the POA. There was also an instance where the trial court 

essentially assigned De La Fuente some “homework” to explain a discrepancy noted 

by Appellants’ and the POA’s expert. Both the trial court and the expert were 

satisfied with De La Fuente’s later explanation. 

At trial, Appellants and the POA contested De La Fuente’s act of transferring

$1.725 million from the POA’s account to Double Diamond, Inc. in January and 

February 2018. These transfers occurred prior to Appellants taking control of the 

POA. De La Fuente testified that he transferred this amount because the financial 

records of the POA indicated that Double Diamond, Inc. had made advances to the 

POA that had not been paid back. During closing argument, Appellants and the POA 

asserted that there was insufficient evidence that this indebtedness of the POA 

continued to exist at the time the transfers were made. On appeal, Appellants and 

the POA assert that the advances violated the statute of frauds.8

De La Fuente testified that these advances had been continuously carried on 

the books of the POA. In this regard, Ward testified that Double Diamond, Inc. 

advanced funds to the POA at the start of Double Diamond, Inc.’s involvement with 

The Cliffs because the POA was unable to maintain the golf course at the start. 

These advances were carried on the books rather than paid back earlier to keep the 

maintenance fees assessed to the members of the POA low. Ward testified that 

Double Diamond, Inc. extended credit to the POA at no interest. Furthermore, Ward 

8

The statute of frauds is an affirmative defense that must be raised in the trial court in order to 

preserve error on appeal. See Dynegy, Inc. v. Yates, 422 S.W.3d 638, 641 (Tex. 2013). The trial court 

permitted Appellants and the POA to file a trial amendment to assert the statute of frauds. 
32

testified that the finances of the POA were discussed at every annual meeting of the 

members, including the existence of the POA’s indebtedness to the Double Diamond 

entities.

The statute of frauds requires a written agreement or memorandum to be 

complete within itself in every material detail and to contain all of the essential 

elements of the agreement so that the contract can be ascertained from the writings 

without resort to oral testimony. Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex.

1978). “The statute of frauds does not require that the contract itself be in writing.

Instead, the written instrument merely furnishes written evidence of a contract and 

its essential terms.” Maginn v. Norwest Mortg., Inc., 919 S.W.2d 164, 167 (Tex. 

App.—Austin 1996, no writ) (citing EP Operating Co. v. MJC Energy Co., 883 

S.W.2d 263, 267 (Tex. App.—Corpus Christi 1994, writ denied)). The financial 

statements and detail trial balances of the POA constituted sufficient written 

memoranda of the advances made by Double Diamond, Inc. to the POA. 

As we have said, the trial court correctly determined that Double Diamond, 

Inc. and Double Diamond Management did not owe a fiduciary duty to the POA. 

Furthermore, the POA did not have a contractual right to an accounting under the 

service agreement. The trial court noted that the POA contemporaneously approved 

the actions taken by Double Diamond, Inc. and Double Diamond Management under 

the service agreement. It was only after Appellants gained control of the POA that 

the POA sought to question what it had previously approved. The trial court’s 

determination that Double Diamond Management properly accounted to the POA 

on a contemporaneous basis is a credibility determination that is supported by the 

evidence. We overrule Appellant’s fifth issue. 

Fiduciary Duty of Ward and Gracy

In their sixth issue, Appellants and the POA assert that the trial court erred by 

determining that Ward and Gracy did not breach their fiduciary duties as officers 
33

and directors of the POA. See Ritchie v. Rupe, 443 S.W.3d 856, 868–69 (Tex. 2014)

(citing Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex. 1963))

(corporate officers and directors owe a fiduciary duty to the corporation). The sixth 

issue, as stated, is a challenge to the legal and factual sufficiency of the evidence of 

many of the findings of fact that Appellants and the POA challenged in their fifth 

issue concerning their claim for an accounting. 

The trial court determined that Appellants and the POA failed to present any 

credible evidence that the act of hiring Double Diamond Management to serve as 

the property manager of the POA constituted a breach of fiduciary duty. The trial 

court further determined that the POA did not suffer any damages as a result of the 

service agreement with Double Diamond Management, nor did Ward and Gracy 

benefit from it. In that regard, the trial court denied the request of Appellants and 

the POA to pierce the corporate veil with respect to Ward and all of the corporate 

entities. 

The claims by Appellants and the POA against Ward and Gracy are essentially 

the same as their claims against Double Diamond, Inc. and Double Diamond 

Management for an accounting that we addressed in the fifth issue. They essentially 

contend that the trial court erred in finding Double Diamond Management’s 

evidence of the accuracy of the expenses charged to be credible. As we previously 

noted, we do not disturb the trial court’s credibility determinations. For the same 

reason, the trial court did not err by accepting the proof of the charges assessed by 

Double Diamond Management as being fair and accurate. We overrule Appellant’s 

sixth issue.

Texas Citizens Participation Act

In their eighth issue, Dipprey, Priddy, Hill, and Ken Hill Investment Group, 

Inc. (KHIG) (collectively Movants) assert that the trial court erred when it failed to 

award attorney’s fees and sanctions based on Movants’ successful prosecution of a 
34

motion to dismiss filed pursuant to the Texas Citizens Participation Act, TEX. CIV.

PRAC. & REM. CODE ANN., §§ 27.001–.011 (West 2015) (the TCPA).9 Double 

Diamond, Inc., Double Diamond Management, and Ward (collectively CrossAppellants) (1) respond that the trial court’s failure to award sanctions does not 

constitute reversible error and that, because the trial court erred when it granted the 

motion to dismiss, there was no basis for the trial court to award attorney’s fees and 

sanctions and (2) in one issue on cross-appeal, contend that the trial court improperly 

granted the TCPA motion to dismiss because Movants failed to timely file evidence 

in support of the motion and failed to carry their burden to establish that the TCPA 

applies to any of the dismissed counterclaims. 

As relevant to these complaints, the record establishes that Cross-Appellants

filed counterclaims (1) against Movants for malicious prosecution, business 

disparagement, and conspiracy; (2) against Dipprey for breach of fiduciary duty and 

tortious interference; and (3) against Hill for tortious interference and breach of a 

nondisclosure agreement. Movants filed a motion to dismiss the counterclaims 

pursuant to the TCPA and requested that they be awarded attorney’s fees, costs, and 

expenses incurred in connection with the motion. 

In amended counterclaims, Cross-Appellants nonsuited the claim for 

malicious prosecution and added claims for tortious interference against Priddy and 

KHIG. Cross-Appellants also filed a response to the motion to dismiss in which 

they asserted that the motion was not supported by timely filed evidence, that 

Movants had not carried their burden to show that the TCPA applied to the 

9

The Texas legislature amended the TCPA effective September 1, 2019. See Act of May 17, 2019, 

86th Leg., R.S., ch. 378, §§ 1–9, 12 (H.B. 2730) (codified at TEX. CIV. PRAC. & REM. CODE ANN.

§§ 27.001, .003, .005–.007, .0075, .009–.010). Because the underlying lawsuit was filed prior to September 

1, 2019, the law in effect before that date applies. See id. §§ 11–12. For convenience, all citations to the 

TCPA in this opinion are to the version of the statute prior to September 1, 2019. See Act of May 21, 2011, 

82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by Act of May 24, 2013, 83d Leg., 

R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. 
35

counterclaims, and that they had established by clear and specific evidence a prima 

facie case for each element of each counterclaim. 

The trial court denied the motion to dismiss as to (1) the claim for breach of 

fiduciary duty against Dipprey and (2) the claims for tortious interference and breach 

of the nondisclosure agreement against Hill. The trial court granted the motion to 

dismiss as to (1) the claims for tortious interference against Dipprey, Priddy, and 

KHIG and (2) the claims for business disparagement, conspiracy, and malicious 

prosecution against Movants.10 In its order, the trial court stated that a hearing would 

be set for the determination of attorney’s fees, costs, expenses, and sanctions 

incurred in connection “with the advancement of the TCPA Motion pursuant to 

TCPA § 27.009.” 

Movants filed a motion for an award of attorney’s fees and sanctions and 

provided evidence in support of the requested fees and sanctions. The trial court 

held a hearing on the motion on February 20, 2018, at which it heard Movants’ 

evidence and Cross-Appellants’ “response thereto.” The trial court did not sign an 

order on Movants’ motion for attorney’s fees and sanctions and did not award any 

attorney’s fees or sanctions to Movants in the final judgment. Further, in the final 

judgment, the trial court ordered that “any relief sought by any of the parties” that 

was not specifically granted in the judgment was denied. 

We generally review a trial court’s decision on an award of attorney’s fees or 

the assessment of sanctions for an abuse of discretion. Landry’s, Inc. v. Animal 

Legal Def. Fund, No. 19-0036, 2021 WL 2021130, at *2 (Tex. May 21, 2021) 

(applying abuse-of-discretion standard to the trial court’s sanction award under the 

10Although Cross-Appellants’ nonsuited their counterclaim for malicious prosecution before the 

trial court ruled on the motion to dismiss, a party may not dismiss a claim in order to avoid a TCPA motion 

to dismiss. Davis v. Gulf Coast Auth., No. 11-19-00309-CV, 2020 WL 5491201, at *4 n.3 (Tex. App.—

Eastland Sept. 11, 2020, no pet.) (mem. op.); see also Clayton Mountain, LLC v. Ruff, No. 11-20-00034-

CV, 2021 WL 3414754, at *7 (Tex. App.—Eastland Aug. 5, 2021, no pet. h.) (mem. op.).
36

TCPA); Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (holding that the 

determination of a reasonable attorney’s fee under the TCPA “rests within the 

court’s sound discretion”). A trial court abuses its discretion when it acts arbitrarily 

or unreasonably or without regard to guiding rules and principles. Landry’s, 2021 

WL 2021130, at *2.

Under the version of the statute applicable to this case, when a trial court 

dismissed a legal action pursuant to the TCPA, it was required to award the 

successful movant:

(1) court costs, reasonable attorney’s fees, and other expenses incurred 

in defending against the legal action as justice and equity may require; 

and

(2) sanctions against the party who brought the legal action as the court 

determines sufficient to deter the party who brought the legal action 

from bringing similar actions. 

CIV. PRAC. & REM. § 27.009(a). Accordingly, the trial court abused its discretion 

when it failed to award Movants reasonable attorney’s fees incurred in connection 

with defending against the dismissed counterclaims and to assess sanctions against 

Cross-Appellants. See id.; United Locating Servs., LLC v. Fobbs, 619 S.W.3d 863, 

875 (Tex. App.—Houston [14th Dist.] 2021, no pet.). We, therefore, turn to whether 

the trial court’s errors require reversal. See TEX. R. APP. P. 44.1 (setting out the 

standard for reversible error in civil cases).

Although sanctions under Section 27.009(a) are mandatory, the proper 

amount of the sanctions is left to the trial court’s discretion. See CIV. PRAC. & REM.

§ 27.009(a)(2); Rich v. Range Res. Corp., 535 S.W.3d 610, 613 (Tex. App.—Fort 

Worth 2017, pet. denied). If it determines that a party is unlikely to file a similar 

action in the future, the trial court may award nominal sanctions in the amount of 

$1. Rich, 535 S.W.3d at 613; see also Morales v. Barnes, No. 05-18-00767-CV, 

2020 WL 597346, at *4 (Tex. App.—Dallas Feb. 7, 2020, pet. denied) (mem. op.). 
37

A trial court’s rejection of a request for sanctions under Section 27.009(a) constitutes 

an implied finding that the nonmovant did not need to be deterred. Rich, 535 S.W.3d 

at 613; see also Tatum v. Hersh, 559 S.W.3d 581, 588 (Tex. App.—Dallas 2018, no 

pet.). In such a case, the failure to award a nominal amount of damages is harmless 

error. Rich, 535 S.W.3d at 614 (“It is well-settled that a trial court’s failure to award 

$1 is not reversible error.”); see also Tatum, 559 S.W.3d at 588. 

In this case, the trial court implicitly determined that no sanctions were 

necessary to deter Cross-Appellants from bringing similar suits in the future. Unless 

the record establishes that this finding was an abuse of discretion, the trial court had 

discretion to award nominal sanctions and its failure to make that award is harmless 

error. See Tatum, 559 S.W.3d at 588.

Movants, as the party seeking relief, had the burden to bring forward a 

sufficient record to show reversible error. Christiansen v. Prezelski, 782 S.W.2d 

842, 843 (Tex. 1990) (per curiam); Kocaoglan v. Law Office of Chris Sanchez, P.C., 

No. 13-19-00596-CV, 2021 WL 161395, at *4 (Tex. App.—Corpus Christi–

Edinburg Jan. 14, 2021, pet. denied) (mem. op.). The record reflects that, on 

February 2, 2018, the trial court held a hearing on Movants’ request for sanctions at 

which it heard Movants’ evidence as well as Cross-Appellants’ “response thereto.” 

Movants did not request that a transcript of this hearing be included in the appellate 

record. Because Movants neither provided a complete reporter’s record nor 

complied with Rule 34.6(c) of the Texas Rules of Appellate Procedure,11 we must 

presume that the omitted portion of the record supports the trial court’s implicit 

finding that no sanctions were necessary to deter Cross-Appellants from filing a 

similar action in the future. See Christiansen, 782 S.W.2d at 843–44; Kocaoglan, 

2021 WL 161395, at *4. Therefore, while the trial court erred when it failed to award 

11Rule 34.6(c) of the Texas Rules of Appellate Procedure sets out the procedure that an appellant 

must follow when it seeks to appeal based on a partial reporter’s record. See TEX. R. APP. P. 34.6(c).
38

a nominal sanction against Cross-Appellants, that error was harmless, and we will 

not reverse the trial court’s judgment on that basis.

The trial court was also statutorily required to award Movants the reasonable 

attorney’s fees that they incurred in defending against the dismissed counterclaims. 

CIV. PRAC. & REM. § 27.009(a)(1); Sullivan, 488 S.W.3d at 299. “A ‘reasonable’ 

attorney’s fee ‘is one that is not excessive or extreme, but rather moderate or fair.’” 

Sullivan, 488 S.W.3d at 299 (quoting Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 

2010)). Accordingly, while the trial court had discretion to determine the amount of 

reasonable fees to be awarded, it did not have discretion to award no fees. See 

Sullivan, 488 S.W.3d at 299; see also D Magazine Partners, L.P. v. Rosenthal, 529 

S.W.3d 429, 441–42 (Tex. 2017); Morales, 2020 WL 597346, at *2.

Cross-Appellants, however, argue that Movants were not entitled to recover 

any attorney’s fees because the counterclaims were not properly dismissed and assert 

in a cross-issue that the trial court erred when it partially granted the motion to 

dismiss because the Movants failed to establish that the TCPA applies to the 

counterclaims. Cross-Appellants request that we affirm the trial court’s take-nothing 

judgment. 

Generally, we can grant only the relief requested by a party. Tex. Parks & 

Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 392 (Tex. 2011) (“Generally, a 

party is not entitled to relief it does not request.”). We recognize that, if the trial 

court erred when it partially granted Movants’ TCPA motion to dismiss, Movants 

would not be entitled to recover attorney’s fees pursuant to Section 27.009(a). 

However, the appropriate remedy for any error by the trial court in granting 

Movants’ motion to dismiss would be the reversal of the erroneous portions of the 

trial court’s order of dismissal and final judgment and a remand of the improperly 

dismissed counterclaims to the trial court for further proceedings. See 

Neurodiagnostic Consultants, LLC v. Nallia, No. 03-18-00609-CV, 2019 WL 
39

4231232, at *12 (Tex. App.—Austin Sept. 6, 2019, no pet.) (mem. op.); Berry v. 

ETX Successor Tyler, No. 12-18-00095-CV, 2019 WL 968528, at *8–9 (Tex. 

App.—Tyler Feb. 28, 2019, no pet.) (mem. op.).

Although we have the power to remand a case, see TEX. R. APP. P. 43.3, it is 

improper for us to sua sponte grant relief that the party has not sought and has 

indicated that it does not want. State v. Brown, 262 S.W.3d 365, 370 (Tex. 2008);

see Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000) (per curiam) 

(denying review where the petitioner raised a complaint for which remand would 

have been the appropriate remedy but the petitioner “specifically requested that this 

Court not remand for a new trial and prayed only for rendition”). Pursuant to 

Stevens, courts have affirmed cases that might otherwise warrant remand when the 

party “expressly rejects the only available relief.” Garza v. Cantu, 431 S.W.3d 96, 

109 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also Molina v. Moore, 

33 S.W.3d 323, 326 (Tex. App.—Amarillo 2000, no pet.) (“[I]f an appealing party

chooses to seek only reversal and rendition of judgment, then the appellate court will 

not reverse and remand the case.”). Because Cross-Appellants have rejected the 

only relief available to them for the asserted error, we decline to consider their crossissue. See Stevens, 11 S.W.3d at 186.

Having held that the trial court erred when it failed to award any attorney’s 

fees incurred by Movants in connection with the counterclaims that were dismissed 

pursuant to the TCPA, we must consider whether remand or rendition is appropriate. 

The reasonableness of attorney’s fees that are authorized by a statute is a fact 

question. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489 

(Tex. 2019). Movants assert that “[t]he record contains uncontroverted evidence of 

the reasonable fees for the TCPA motion (adjusted for partial success)” and request 

that we render judgment for attorney’s fees of $59,814.10 and appellate fees of 

$20,000. However, the record indicates that there was a hearing on February 20, 
40

2018, at which the trial court heard Movants’ evidence in support of their request for 

attorney’s fees as well as Cross-Appellants’ “response thereto.” Again, we do not 

have a reporter’s record from that hearing. Based on the record before us, we cannot 

conclude that the evidence of Movants’ attorney’s fees was uncontroverted. 

We overrule (1) Movants’ eighth issue to the extent that they complain that 

the trial court failed to assess sanctions against Cross-Appellants and (2) CrossAppellants’ sole issue. We sustain Movants’ eighth issue to the extent that they 

complain that the trial court failed to award reasonable attorney’s fees that Movants 

incurred in defending against counterclaims that were dismissed pursuant to the 

TCPA, reverse the trial court’s award of no attorney’s fees, and remand the issue of 

Movants’ reasonable attorney’s fees with respect to the TCPA to the trial court for 

further proceedings.

Easement or Irrevocable License

In their tenth issue, Appellants and the POA assert that the trial court should 

have entered a declaratory judgment to the effect that the property owners either 

possess an easement or an irrevocable license to use the amenities of The Cliffs. 

Appellants and the POA raise this issue in only two pages of their brief, and they 

support it with a citation to Plaintiffs’ Exhibit No. 90, which is a reporter’s record 

from a hearing on a motion to abate and temporary injunction. Including exhibits, 

the reporter’s record is over 250 pages. However, Appellants and the POA have not 

cited to any specific pages in this lengthy exhibit. 

The trial court concluded that the claims of Appellants and the POA to an 

easement or irrevocable license should be denied as a matter of law. Appellants and 

the POA have not challenged this specific conclusion of law. The trial court based 

its ruling on its determination that Appellees had not claimed to have the right to 

revoke or impede a member of The Cliffs from utilizing the common areas or 

recreational facilities. Appellants and the POA essentially contend that the trial 
41

court erred in making this determination based upon conduct by Ward in the past in 

the form of threatened action in February 2019 that the operations of the facilities 

and amenities of The Cliffs would have to close if the new board diverted the funds 

of the POA from Double Diamond Management. 

We agree with the trial court that this matter does not present an actual 

controversy to be resolved by a declaratory judgment. See Lynch, 595 S.W.3d at 

684. In this regard, the evidence before the trial court supported its determination 

that a controversy did not currently exist. We overrule Appellants’ and the POA’s 

tenth issue. 

Excluded Evidence

In their eleventh issue, Appellants and the POA contend that the trial court 

erred by not admitting evidence of overcharges that they sought to offer. They 

reference an offer of proof. They also make reference to this offer of proof in 

connection with the argument of their fifth issue. However, Appellants and the POA 

have not cited any authority in support of their assertion that the trial court erred in 

denying the admission of this offer of proof. A brief must “contain a clear and 

concise argument for the contentions made, with appropriate citations to authorities 

and to the record.” TEX. R. APP. P. 38.1(i). “Failure to cite legal authority or to 

provide substantive analysis of the legal issues presented results in waiver of the 

complaint.” Smale v. Williams, 590 S.W.3d 633, 639 (Tex. App.—Texarkana 2019, 

no pet.). Accordingly, Appellants and the POA have waived their evidentiary 

complaint for appellate review. 

Moreover, we review a trial court’s decision to admit or exclude evidence for 

an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (citing In 

re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)). We must uphold the trial court’s 

evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning 

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). An appellate court 
42

should not reverse a trial court for an erroneous evidentiary ruling unless the error 

probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1; 

Malone, 972 S.W.2d at 43; Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 421 (Tex. 

App.—Eastland 2006, no pet.); see Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 

394, 396 (Tex. 1989). 

The offer of proof consisted of Appellants’ and the POA’s attempt to assert 

that Double Diamond Management overcharged the POA for operating The Cliffs 

because the POA subsequently found contractors willing to charge less after 

Appellants gained control of the board of directors. The trial court denied its 

admission on multiple grounds. First, the trial court ruled that it had not been timely 

disclosed in discovery. At the end of the offer of proof, the trial court noted that 

there was a discrepancy in the amounts charged by the new contractors for electricity 

for the golf course. The trial court also stated: 

I’ve got serious issues about a damage calculation under that 

model anyway. I mean, [the new golf course company] has been out 

there three weeks. I mean, they don’t have a track record out there. We 

don’t know how well they’re going to do or not do.

I mean, I’m not going to use those figures. Those figures are 

unreliable to me, if you ask me my opinion on it. We haven’t got to the 

heat of the Texas summer yet. Lines haven’t been breaking. They 

haven’t been mowing. They’re probably just starting to mow out there.

There’s too much uncertainty with these figures over here in my 

mind to justify damage calculations.

For the reasons stated by the trial court, it did not abuse its discretion by denying the 

damage calculations that Appellants and the POA sought to offer. We overrule 

Appellants’ and the POA’s eleventh issue.

This Court’s Ruling

We reverse the trial court’s judgment to the effect that the development period 

is not ripe for adjudication. We render judgment that The Cliffs are no longer in the 
43

development period, and we remand all issues concerning the effect of 

Section 209.0041 of the Texas Property Code on the governance of The Cliffs 

Property Owners’ Association, Inc. to the trial court for further proceedings. We 

also reverse the trial court’s award of no attorney’s fees to Movants for their TCPA 

claims and remand the issue of Movants’ reasonable attorney’s fees with respect to 

the TCPA to the trial court for further proceedings. In all other respects, the 

judgment of the trial court is affirmed.

JOHN M. BAILEY

CHIEF JUSTICE

October 21, 2021

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.