Affirmed in Part; Reversed in Part and Remanded, and Memorandum Opinion 

filed April 23, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00278-CV

BILL GREEN, HANS VAN DER VOORT, PHIL BIRKELBACH, AND 

PAUL KATES, Appellants 

V.

RICHARD D. DAVIS, L.L.P., A NEVADA LIMITED LIABILITY 

PARTNERSHIP, RICHARD D. DAVIS, L.L.P., A TEXAS GENERAL 

PARTNERSHIP, AND PATRICIA K. SUAREZ, Appellees 

On Appeal from the 506th Judicial District Court

Waller County, Texas 

Trial Court Cause No. 08-12-19600 

M E M O R A N D U M O P I N I O N 

This appeal arises from a judgment entered January 10, 2017, upon a jury 

verdict in the trial court and is one of three appeals before this court involving the 
2

same parties.1 For the reasons stated below, we affirm in part and reverse and remand 

in part. 

BACKGROUND

In 1993, Richard D. Davis, L.L.P., a Texas General Partnership, (“Davis 

Texas”) purchased a 55-acre tract from Sky Lakes, Inc., that was secured by a deed 

of trust. Skydiving was allowed at the airport. It was either conducted directly by a 

Davis entity or by leasing the airport to other operators.

In 2006, the promissory note was assigned to the Sky Lakes Flyers Foundation 

(“SLFF”). Shortly thereafter, SLFF sent notices of default based on various 

allegations, including failure to provide proof of insurance and payment of taxes, 

and the condition of the property. In August 2007, Davis Texas brought suit (the 

“2007 suit”) against SLFF and Carbett J. Duhon, III, seeking a temporary restraining 

order, temporary injunction and permanent injunction and asserting a claim for 

breach of contract. 

In September 2007, SLFF refused Davis Texas’ check for the August 2007 

payment on the grounds the note had been accelerated. Davis Texas obtained 

injunctive relief to prevent foreclosure and in September 2007 refinanced at an 

interest rate of fourteen and a half percent (14.5%) rather than the original rate of 

five percent (5%) and transferred its’ interest in the property to Richard D. Davis, 

L.L.P., a Nevada Limited Liability Partnership, (“Davis Nevada”). 

On September 19, 2007 SLFF counterclaimed and named Richard D. Davis 

and Patricia K. Suarez as third-party defendants. SLFF asserted breach of contract 

 

1 Already decided by this court are Appeal No. 14-17-00257-CV, arising from a noevidence summary judgment entered January 4, 2017, in the trial court cause, Cause No. 08-12-

19600-A; and Appeal No. 14-17-00372-CV, arising from a summary judgment entered in the trial 

court, Cause No. 07-08-18999 on April 7, 2017.
3

and sought a non-judicial foreclosure on the property. In March 2008, the skydiving 

assets were sold to Todd Bell and Jump-Out Express. A lease was entered into 

permitting Jump-Out Express to conduct skydiving operations. Subsequently, suit 

was brought in 2008 (the “2008 suit”) by Andy Knott, Bill Green, Dempsey Gearen, 

Jim Phillips, Phil Birkelbach, Paul Kates, Danny Langhorne, Hans van der Voort, 

Gene Morton and Stanley Hoffpauir (collectively “the Green Parties”), against Davis 

Nevada, Davis Texas and Patricia K. Suarez (collectively “the Davis Parties”), and 

Jump Out Express, L.L.C. Among other claims, the Green Parties alleged skydiving 

operations had increased and unreasonably interfered with the ability of others to 

use the airstrip. The Davis Parties filed a counterclaim and third-party action on 

March 3, 2009 seeking damages for the alleged orchestration of the “wrongful” 

acceleration of the note and the ensuing “illegal” efforts to foreclose. 

By order signed February 4, 2010 the Davis Parties’ counterclaims in the 2008 

suit were severed (“the 2010 suit”). The claims that remained in the 2008 suit were 

tried to a jury and judgment was entered on January 10, 2017. The Green Parties 

settled with Jump Out Express, LLC, prior to trial. From that judgment, certain 

members of the collective “Green Parties” bring this appeal, namely Bill Green, 

Hans van der Voort, Phil Birkelbach, and Paul Kates (for ease of reference we refer 

to appellants in this opinion as “the Green Parties”). The Davis Parties filed a notice 

of cross-appeal.

THE GREEN PARTIES

The Green Parties raise three issues. We address each in turn. 

I. Did the trial court disregard the jury’s answer to Question 2?

Relevant to the Green Parties’ first issue are the following portions of the 

court’s charge: 
4

 QUESTION NO. 1 

As to the airstrip in question, did the skydiving operations prior 

to March 21, 2008 unreasonably interfere with, or impair its use by 

others? 

Answer “Yes” or “No.” 

ANSWER: no 

QUESTION NO. 2 

As to the airstrip in question, did the skydiving operations 

beginning March 21, 2008 unreasonably interfere with, or impair its use 

by others? 

Answer “Yes” or “No.” 

ANSWER: yes 

After question No. 2, there was a follow-up to question No. 1: 

If you have answered Question No. 1 “Yes,” then and only in that 

event, answer Question No. 3. 

Question No. 3 

By what date did the [Green Parties] know, or should have 

known, that the sky dive operations unreasonably interfered with or 

impaired their right to use the airstrip for aviation purposes?

Answer giving month, day, and year, if any. 

ANSWER: _______________ 

 Month, Day, and Year 

In the judgment, the trial court granted the following declaratory relief 

requested by the Davis Parties: 

[11.]B. The Davis Partnerships, and their partners’ use of the Sky Dive 

Houston Airport and its airstrip for sky diving is in conformity with 

Federal Aviation Administration (“FAA”) Regulations and does not 

unreasonably interfere with the rights of any lot owners in Sky Lakes 

Addition Section I or Sky Lakes Addition Section II to use the airstrip 

as allowed by any restrictions or dedications in force or effect which 

are currently binding on the property. 
5

[11.]C. The use of the airstrip and airport property for skydiving 

purposes is a lawful aviation use of the airspace over the airstrip and 

airport owned by Davis Nevada Limited Liability Partnership and is a 

use for aviation purposes of the premises which does not unreasonably 

interfere with any other aviation use of the airstrip. Plaintiffs and 

Counter-Defendants, as individuals, have no power to regulate or 

dictate the manner in which a lawful aviation use is conducted on the 

airstrip or airport. The restrictions as written do not prohibit the aviation 

use of skydiving. Plaintiffs and Counter-Defendants have no superior 

aviation rights to the airstrip, but must share the airstrip in common 

with all other users including the public users who are business invitees 

of the Davis Defendants. 

[11.]D. The use by the Davis Partnerships, and their partners, of the Sky 

Dive Houston Airport and airstrip for sky diving activities in 

conformity with FAA Regulations in the manner proven before the jury 

in this case by testimony and evidence does not constitute a substantial 

annoyance to any lot owners or home owners in Sky Lakes Addition 

Sections I and II. 

[11.]E. The Davis Partnerships, and their partners’ use of the Sky Dive 

Houston Airport and its airstrip does not impermissibly "dominate" the 

Sky Dive Houston Airport or airstrip in any manner nor violate any 

restrictions or dedications which are in force and effect that define 

and/or restrict the use of said airport and/or said airstrip.

In their first issue, the Green Parties assert these four declarations ignore the 

jury’s finding that skydiving activities at the airport after March 21, 2008 

unreasonably interfered with their rights. The Green Parties acknowledge, as they 

did in the trial court, that the skydiving activities at the airport substantially increased 

beginning March 2008 when Jump Out Express began operating its skydiving 

business. The Green Parties claim declaration 11.B should state: 

The Davis Partnerships, and their partners’ use of the Sky Dive Houston 

Airport and its airstrip for sky diving beginning March 8, 2008 

unreasonably interfered with the rights of lot owners in Sky Lakes 

Addition Section I or Sky Lakes Addition Section II to use the airstrip. 
6

As to declarations 11.C, 11.D, and 11.E, the Green Parties assert they should be 

reversed and stricken from the judgment. 

 The Davis Parties argue the trial court correctly disregarded the jury’s answer 

to Question No. 2 because it was irrelevant since the Green Parties settled with Jump 

Out Express before trial. The trial court declared, and the Green Parties do not 

challenge, the trial court’s finding in 11.G. as to the operations conducted by Jump 

Out Express LLC: 

[11.]G. Defendants, Suarez and the Davis Partnerships, are not liable 

for any claims concerning the former operations of Jump Out Express, 

L.L.C. , the Davis Partnership’s prior tenant, as a matter of law based 

on lease of airport property. 

 The jury found skydiving operations unreasonably interfered with use of the 

airstrip by others beginning in March 2008, during the tenancy of Jump Out Express, 

LLC. The trial court’s declarations to the effect that the Davis Parties’ use of the 

airstrip did not unreasonably interfere with use of the airstrip by others is supported 

by the jury’s answer to Question No. 1. The trial court’s declarations are not 

inconsistent with the jury’s answers, because the answers reflect the skydiving 

operations that unreasonably interfered with or impaired the landowners’ right to use 

the airstrip, were conducted during the tenancy of Jump Out Express. Accordingly, 

issue one is overruled. 

II. Did the trial court err by declaring the Green Parties were barred by 

prescription and limitations from complaining that the skydiving activities 

violated their rights to use the airstrip?

At trial, the Davis Parties asserted the Green Parties were barred from 

complaining that skydiving activities interfered with their easement rights, because 

the skydiving operations had been ongoing for more than ten years before the Green 

Parties filed suit. 
7

The charge of the court reflects the jury was instructed as follows: 

“Peaceful Possession” means possession of real property that is 

continuous and is not interrupted by an adverse suit to recover the 

property. 

“Prescription” means actual and visible use of real property for a 

particular purpose or purposes, commenced and continued under a 

claim of right that is inconsistent with and is hostile to the claim of 

another person. 

“Privity of Estate” means privity of ownership which exists 

between successive owners when the earlier owner’s rights to

possession and claim to the land passed or was transferred to the latter 

owner by agreement, deed, lease, gift, devise, or inheritance.

You are instructed that peaceable prescription need not be 

continued in the same person or entity, but, when held by a different 

persons or entities, successfully; there must be a privity of estate 

between them. 

The charge submitted to the jury was: 

QUESTION NO. 8

Did Defendants and those with whom they have privity of estate, 

either in person or through tenants, have openly, notoriously, and 

peaceably, use of the air strip in question for parachute and skydiving 

operations for a period of ten consecutive years prior to the date of filing 

this suit?

Answer “Yes” or “No.” 

ANSWER: yes 

The Green Parties specifically complain of the following declarations by the 

trial court relative to prescription and limitations: 

[11.]F. The [Green Parties’] claims concerning [the Davis Parties’]

alleged interference with their rights to use the 55-acre airport or airstrip

are barred by prescription.

. . .
8

[11.]L. Any right that [the Green Parties] had to prevent skydiving 

activities by [the Davis Parties’] utilizing a Twin Otter Aircraft, 

operating at full capacity or right to ban sky diving activities on the 

airport property as an “unreasonable interference” with the rights of lot 

owners to use the airport property or airstrip for aviation purposes, or 

that skydiving harassed and annoyed such lot owners while they were 

making aviation use of the airport, airstrip, and/or its facilities, was lost 

by [the Green Parties] under prescription. [The Davis Parties’] used the 

airstrip and airport to conduct skydiving activities with a Twin otter 

Aircraft carrying and dumping 20 to 23 skydivers per flight that landed 

on the airport and airstrip as an approved drop zone under FAA 

regulations for a continuous period of time from 1993, when R. D. 

Davis Limited Liability Partnership, a Texas General Partnership 

purchased the airstrip and airport, to at least 2007 - a period of time 

over ten (10) years. [The Davis Parties’] use of the Twin otter aircraft 

at full capacity was “open and obvious” to all lot owners in Sky Lakes 

Addition Sections I and II as well as notorious. The use of the airport 

for skydiving activities by smaller aircraft was also “open and obvious” 

and went on for more than ten consecutive years prior to the date the 

[Green Parties] filed suit. The ten (10) years statute of limitations bars 

any complaint by Counter-Defendants that sky diving or the level, 

intensity, or number of skydivers, violates any right they have to use 

the airstrip in question. 

First, the Green Parties assert the Davis Parties cannot obtain a prescriptive 

easement on their own property. We agree. 

Davis Nevada is the present title owner of the airport, which is subject to 

restrictive covenants burdening the estate with an easement benefiting the 

landowners. An easement is a right of use over another’s property. Cecola v. Ruley, 

12 S.W.3d 848, 852 (Tex. App.—Texarkana 2000, no pet.). The party holding title 

does not need an easement as to his own property. See id. “The principle is 

elementary that, to constitute an easement, the dominant and the servient estates 

must be held by different owners . . ..” Id. (quoting Howell v. Estes, 71 Tex. 690, 

693, 12 S.W. 62 (1888)); cf. Tirado v. Tirado, 357 S.W.2d 468, 474 (Tex. Civ. 

App.—Texarkana 1962, writ dism’d) (“When appellee had acquired title to all the 
9

surrounding properties, this brought about an extinguishment of the servitude 

created by the easements for ingress and egress and the merger of the easements into 

the estate held by appellee.”). 

Because the property is owned by Davis Nevada, there is no evidence to 

support the trial court’s declaration that the Davis Parties obtained an easement by 

prescription as to the same property.2

 Accordingly, we sustain the Green Parties’ 

complaint as to paragraphs F and L of subsection 11 of the final judgment. 

III. Did the trial court err in its declarations regarding fees and usage? 

Declaratory judgments are reviewed in the same manner as other judgments. 

Tex. Civ. Prac. & Rem. Code § 37.010. “When a question of law is at issue, such as 

the review of an unambiguous restrictive covenant, our review is de novo.” 

Waterford Harbor Master Ass’n v. Landolt, No. 14-13-00817-CV, 2015 WL 

293262, at *2–3 (Tex. App.—Houston [14th Dist.] Jan. 22, 2015, pet. denied) (mem. 

op.) (citing Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Am. Gold Corp. 

v. Colburn, 65 S.W.3d 277, 279 (Tex. App.—Houston [14th Dist.] 2001, pet. 

denied)). Our objective is to ascertain and give effect to the purposes and intent of 

the language of the restrictive covenant. Id. (citing Wiese v. Healthlake Cmty. Ass’n, 

384 S.W.3d 395, 400 (Tex. App.—Houston [14th Dist.] 2012, no pet.)); see also

Tex. Prop. Code § 202.003(a). If reversal is warranted, we render the judgment the 

trial court should have rendered, unless a remand is necessary for further 

proceedings. See Lone Star Gas Co. v. R.R. Comm’n of Tex., 767 S.W.2d 709, 710 

(Tex. 1989). 

 

2 Although the Davis Parties and the trial court also use the term “limitations,” the jury 

charge reflects only an easement by prescription was contemplated at trial.
10

“Restrictive covenants are subject to the general rules of contract 

construction.” Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 66 (Tex. 

App.—Houston [14th Dist.] 2014, pet. denied) (citing Pilarcik, 966 S.W.2d at 478; 

Wiese, 384 S.W.3d at 400). When construing restrictive covenants, our primary goal 

is to ascertain and give effect to the intent of the drafters by using the language of 

the instrument as a guide. Id. Restrictive covenants are examined considering the 

circumstances present when they were written, affording words and phrases their 

commonly accepted meanings. Id. The trial court’s interpretation of a restrictive 

covenant is reviewed de novo. Id. 

The 1976 restrictions provide, in pertinent part: 

That we, . . . TRUSTEES, owners and developers of the subdivision 

. . . known as “Sky Lakes Addition, Sections I and II” . . . do hereby 

CONFIRM, REAFFIRM, COVENANT and AGREE that the air strip . 

. . herein referred to is hereby dedicated to and for the use of all persons 

owing [sic] land in said subdivision (hereinafter referred to as “land 

owners”), along with others that we, the undersigned, may from time to 

time authorize likewise and permit to use the same, upon the following 

terms, conditions and rules: 

1. There shall be no landing fees to land owners. 

2. The undersigned Trustees shall from time to time establish and 

collect from all landowners reasonable up-keep fees for said air 

strip. 

3. Air craft with a total weight in excess of _____ pounds will be 

prohibited, except in case of emergency. Also, balloons and other 

“lighter than air” air craft will be prohibited, except in case of 

emergency.

4. No one may use said air strip for any purpose except aviation and 

will not unreasonably interfer [sic] with or impair its use by 

others. 

5. This dedication is a covenant running with the land in perpetuity. 

. . .
11

The Green Parties make four complaints about multiple declarations. We 

address each complaint in turn. 

A. Is there evidence to support declarations that the Davis Parties may bar the 

Green Parties from using the airport for failure to pay for or perform 

maintenance? 

The Green Parties contest the following declarations: 

[11.]A. The Plaintiffs and Counter-Defendants, as lot owners in 

either Sky Lakes Addition Section I or Sky Lakes Additions Section II, 

have no rights to use the airstrip in question in this case unless they pay 

a reasonable maintenance fee for the use of same or unless Plaintiffs 

complete all maintenance and repairs, deferred or future, on the Airstrip 

and facilities dedicated to their use as lot owners in the 1976 

Amendment to the Deed Restrictions and Restrictive Covenants 

binding on Sky Lakes Addition Sections I and II lot owners. 

. . .

[11.]I. The right of any lot owner in Sky Lakes Addition Section 

I or II to taxi, take off, or land, on the airstrip at the Sky Dive Houston 

Airport is subject to payment of a maintenance fee. Without payment 

of such maintenance fee, any lot owners of Sky Lakes Addition 

Sections I and II have no right to use the Sky Dive Airport I’s airstrip

for taxiing, landing, or taking off, in their aircraft.

. . .

[11.]K. The Defendants and Counter-Plaintiffs hold the right to 

maintain the airstrip located on the airport property and are entitled to 

collect a reasonable maintenance and/or upkeep fee from the CounterDefendants which includes costs of labor, management, and materials. 

Although the Green Parties include paragraph K in their list of declarations at 

issue, they fail to provide any argument in support of their position. Briefing waiver 

occurs when a party fails to make proper citations to authority or to the record, or to 

provide any substantive legal analysis. See Tex. R. App. P. 38.1(i); Canton-Carter 

v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 

2008, no pet.); Sterling v. Alexander, 99 S.W.3d 793, 798–99 (Tex. App.—Houston 
12

[14th Dist.] 2003, pet. denied). Even though the courts are to interpret briefing 

requirements reasonably and liberally, parties asserting error on appeal still must put 

forth some specific argument and analysis citing the record and authorities in support 

of their argument. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. 

App.—Houston [14th Dist.] 2005, no pet.). Accordingly, as to paragraph K, this 

issue is waived. 

As to paragraphs A and I, the Green Parties concede that the 1976 restrictions 

give the Davis Parties the right to assess reasonable fees for the upkeep of the 

airstrip. Their claim is that use of the airstrip is not tied to payment of the fees. 

The Green Parties’ argument presumes the declarations amount to an order of 

injunctive relief. The authority relied upon by the Green Parties involves specific 

performance of a contract for sale of land, see O’Herin v. Neal, 56 S.W.2d 1105, 

1106 (Tex. Civ. App.—Texarkana 1932, writ ref’d); Stevens v. Palmour, 269 S.W. 

1057 (Tex. Civ. App.—Waco 1925, no writ), and specific performance of a contract 

by injunctive relief, Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied); Canteen Corp. v. Republic of Tex. Properties, 

Inc., 773 S.W.2d 398, 400 (Tex. App.—Dallas 1989, no writ). Thus, the suggestion 

is that by declaring landowners do not have the right to use the airstrip if they fail to 

pay the assessed fees, the trial court has granted injunctive relief preventing use of 

the airstrip or has ordered the landowners to pay the fees. 

The 1964 restrictions contain an enforcement provision which provides “[t]he 

present owners of this property, or any person holding under him . . . shall have the 

right to enjoin the violation of such conditions and restrictions, or to recover 

damages . . .” The Green Parties ignore the enforcement provision in the 1964 

restrictions and therefore make no argument regarding its effect on this issue. 
13

However, in their statement of facts, the Green Parties acknowledge that the 

“ENFORCEMENT PROVISION” authorizes and empowers the property owners to 

enforce the restrictive covenants. 

 The 1976 restrictions expressly provide that the airstrip is “dedicated to and 

for the use of” the landowners “upon the following terms, conditions and rules.” One 

of those enumerated terms is the collection “from all landowners reasonable up-keep 

fees for said airstrip.” Accordingly, the plain language of the 1976 restrictions links 

the right to use the airstrip to payment of the fees and the 1964 restrictions expressly 

provide for enforcement by injunction. We therefore conclude the trial court’s 

declarations as to paragraphs A and I of subsection 11 of the final judgment are 

supported by the evidence and overrule the Green Parties’ complaint.

B. Did the trial court err by declaring non-owners may not use the airport 

property or airstrip for free? 

Next, the Green Parties contend paragraph M “lacks any basis in the deed 

restrictions or Texas Law.” Paragraph M declares: 

[11.]M. The free use of the airport property and airstrip by nonlot 

owners in free fly-ins conducted by any lot owners in Sky Lakes 

Addition Sections I and II is a violation of the Deed Restrictions and 

Restrictive Covenants applicable to Sky Lakes Addition Sections I and 

II as well as a breach of the restrictive covenants. 

The Green Parties argue that in the absence of an express limitation otherwise, 

their right to use the airport without payment of landing fees is extended to “a 

reasonable number of . . . guests and invitees pursuant to Texas law.” The Green 

Parties cite two Texas cases in support of their argument, State v. Brownlow, 319 

S.W.3d 649, 654–56 (Tex. 2010), and Boerschig v. Sw. Holdings, Inc., 322 S.W.3d 

752, 761–62 (Tex. App.—El Paso 2010, no pet.). In Brownlow, the court agreed that 

“‘an unlimited easement carries with it all rights as are reasonably necessary for 
14

enjoyment consistent with its intended use.’” 319 S.W.3d at 656 (quoting Coastal 

Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 601 (Tex. 1979) 

(emphasis added)). And in Boerschig, the court again recognized that an easement 

was not limited “[a]bsent any express language.” 322 S.W.3d at 761 (emphasis 

added). 

At issue in this case is a restrictive covenant, which is a negative covenant, or 

negative easement, that limits permissible uses of land. Teal Trading & Dev., LP v. 

Champee Springs Ranches Prop. Owners Ass’n, 432 S.W.3d 381, 394 (Tex. App.—

San Antonio 2014, pet. denied) (citing Tex. Prop. Code T. 11 (“Restrictive 

Covenants”)). The easement is not unlimited; there is express language of limitation. 

The 1976 restrictions, as noted above, provide landowners may use the airstrip and 

authorize “others” to use it. The restrictions then expressly provide “[t]here shall be 

no landing fees to land owners.” Thus, the restrictions limit free fly-ins to 

landowners. We therefore conclude the trial court’s declaration as to paragraph M 

of subsection 11 of the final judgment is supported by evidence in the record. The 

Green Parties’ complaint is overruled.

C. Is the trial court’s declaration that landowners may be barred from using their 

easement for failure to comply with reasonable rules, regulations or restrictions 

advisory or supported by evidence in the record? 

The Green Parties challenge the following declaration by the trial court: 

[11.]J. The Davis Nevada Limited Liability Partnership as owner 

of the Sky Dive Houston Airport and airstrip, retains the right to 

promulgate and enforce reasonable regulations, rules, and restrictions, 

for the management and use of the Sky Dive Houston Airport and its 

airstrip. All lot owners paying a maintenance and/or upkeep fee and 

using the airstrip on the fifty-five acres must obey such rules and 

regulations or face termination of their rights to use the airstrip. 

The Green Parties first argue the trial court’s declaration is an advisory 

opinion the trial court lacked jurisdiction to issue because there is no evidence they 
15

ever failed to comply with such rules, regulations or restrictions. The Green Parties 

assert there is no evidence the Davis Parties have promulgated any regulations, rules 

or restrictions, or that any landowners have failed to obey such. In response, the 

Davis Parties contend that as successors to the original developers, Sky Lakes Club, 

Inc., they are empowered to enact rules and regulations governing the management 

and use of the airstrip and other club facilities. Further, the Davis Parties assert the 

landowners are required to adhere to and obey such rules and regulations as a 

condition for use of the airstrip and other club facilities. The Davis Parties do not 

dispute that no regulations, rules or restrictions have ever been promulgated. 

The Uniform Declaratory Judgments Act (UDJA) allows a person interested 

under a written contract, to have a determination of any question of construction or 

validity arising under the contract and to “obtain a declaration of rights, status, or 

other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a). Because 

the Act does not create or enlarge a trial court’s subject matter jurisdiction, a 

declaratory judgment is appropriate only if a justiciable controversy exists as to the 

rights and status of the parties, and the declaration will resolve the controversy. 

Devon Energy Prod. Co., L.P. v. KCS Res., LLC, 450 S.W.3d 203, 210 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied); see also Tex. Civ. Prac. & Rem. Code 

§ 37.008 (“The 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.”). “A justiciable controversy does not exist and an advisory 

opinion is being sought if a party requests a court to render a declaratory judgment 

premised upon the happening of a future, hypothetical event.” Stop ‘N Go Markets 

of Tex., Inc. v. Exec. Sec. Sys., Inc. of Am., 556 S.W.2d 836, 837 (Tex. Civ. App.—

Houston [14th Dist.] 1977, no writ). There being no evidence that any rules were 

ever enacted, the failure of landowners to obey said rules is only a future, 
16

hypothetical event about which the trial court’s opinion is merely advisory. 

Accordingly, we sustain the Green Parties’ complaint as to paragraph J of subsection 

11 of the final judgment.

D. Are the trial court’s declarations regarding the scope of permissible 

maintenance fees advisory or supported by the record? 

Lastly, the Green Parties contest the trial court’s declarations in paragraphs 

H, K, and O of subsection 11 of the final judgment: 

[11.]H. The Davis Nevada Limited Liability Partnership as 

owner of the Sky Dive Houston Airport and the airstrip has the right to 

charge any lot owner in Sky Lakes Addition Section I or Section II a 

maintenance and/or upkeep fee for necessary maintenance and upkeep 

of the airstrip. 

. . .

[11.]K. The Defendants and Counter-Plaintiffs hold the right to 

maintain the airstrip located on the airport property and are entitled to 

collect a reasonable maintenance and/or upkeep fee from the CounterDefendants which includes costs of labor, management, and materials. 

. . .

[11.]O. The Davis Defendants have the right under the applicable 

Deed Restrictions of Sky Lakes Addition Sections I and II to charge a 

reasonable maintenance or upkeep fee to all lot owners in Sky Lakes 

Addition Sections I and II for all required maintenance on the airstrip. 

As noted above, the Green Parties concede the restrictions expressly give the 

Davis Parties the right to “establish and collect from all landowners reasonable upkeep fees for said air strip.” This concession, however, is inapplicable to paragraph 

K, about which the Green Parties again make no argument. Accordingly, as to 

paragraph K this issue is waived. See Canton–Carter, 271 S.W.3d at 931–32; 

Sterling, 99 S.W.3d at 798–99; San Saba Energy, 171 S.W.3d at 338; Tex. R. App. 

P. 38.1(i). Because the trial court’s declarations in paragraphs H and O are advisory, 

we sustain the Green Parties complaints as to these declarations. 
17

THE DAVIS PARTIES

In their cross-appeal, the Davis Parties raise four issues. We address each in 

turn. 

In their first issue, the Davis Parties assert: 

The trial court erred when it granted summary judgment declaring (a) 

the entire 55-acre tract was dedicated for the benefit of appellant/lot 

owners instead of the air strip, swimming pool, tennis courts, and other 

“club facilities” located on a portion of the 55-acre tract, (b) appellees 

could not use the unrestricted portion of the servient estate for 

residential purposes, and (c) club facilities could not be used for any 

purpose other than aviation. 

The Davis Parties fail to specify or include record references to the 

complained-of declarations. The only authority cited by the Davis Parties is the 

standard of review for declaratory judgments. It is not our duty to review the record, 

research the law, and then fashion a legal argument when a party has failed to do so. 

Canton–Carter, 271 S.W.3d at 931–32. Accordingly, the issue is waived. See 

Sterling, 99 S.W.3d at 798–99; San Saba Energy, 171 S.W.3d at 338; Tex. R. App. 

P. 38.1(i).

The Davis Parties’ second issue contends the trial court erred in awarding 

attorney’s fees to the Green Parties pursuant to Tex. Prop. Code § 5.0063 because 

they were not the prevailing party. The final judgment reflects the Green Parties 

 

3

 Section 5.006 of the Texas Property Code, entitled “Attorney’s Fees in Breach of 

Restrictive Covenant Action,” provides: 

(a) In an action based on breach of a restrictive covenant pertaining to real property, the 

court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition 

to the party’s costs and claim. 

(b) To determine reasonable attorney’s fees, the court shall consider: 

(1) the time and labor required; 

(2) the novelty and difficulty of the questions; 

(3) the expertise, reputation, and ability of the attorney; and 

(4) any other factor.
18

were awarded attorney’s fees in the amount of $125,000, under the UDJA, based 

upon the trial court’s order for partial summary judgment signed December 9, 2015, 

in their favor. See Tex. Civ. Prac. & Rem. Code § 37.002(b). The trial court also 

found the Davis Parties were entitled to attorney’s fees through trial in the amount 

of $22,500 and reduced the award to the Green Parties by that amount. 

The Davis Parties contend because they were the prevailing party, they should 

recover their entire attorney’s fees and the Green Parties should recover none. In 

support, the Davis Parties cite Pegasus Energy Group, Inc. v. Cheyenne Petroleum 

Co., 3 S.W.3d 112, 128 (Tex. App.—Corpus Christi 1999, pet. denied), and 

WWW.URBAN.INC. v. Drummond, 508 S.W.3d 657 (Tex. App.—Houston [1st 

Dist.] 2016, no pet.). In both cases, the court reviewed the trial court’s decision to 

award attorney’s fees to a “prevailing party” under a contractual attorney’s fee 

provision. But in a declaratory judgment action, “the court may award costs and 

reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. 

& Rem. Code § 37.009. An award of attorney’s fees under section 37.009 is clearly 

within the trial court’s discretion and is not dependent on a finding that a party 

“substantially prevailed.” Barshop v. Medina Cty. Underground Water 

Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). Accordingly, we overrule the 

Davis Parties’ second issue.

The Davis Parties’ third issue contends the trial court erred in awarding 

attorney’s fees to the Green Parties because they failed to present and/or have 

admitted into evidence fee statements/billings supporting their attorney fee claims. 

The trial court awarded the amount of attorney’s fees determined by the jury to be 

reasonable and necessary. The Davis Parties do not contend the testimonial evidence 

of attorney’s fees presented to the jury is insufficient and do not address that issue. 

The Davis Parties make no claim that the evidence did not establish the fees were 
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reasonable and necessary, but contend the Green Parties were not entitled to an 

award of attorney’s fees, relying solely upon the fact that fee and/or billing 

statements were not introduced. “[P]roof of fees actually incurred or paid are not 

prerequisites to the recovery of attorney’s fees in Texas.” AMX Enterprises, L.L.P. 

v. Master Realty Corp., 283 S.W.3d 506, 520 (Tex. App.—Fort Worth 2009, no 

pet.). The Davis Parties cite no authority to the contrary. Issue three is overruled.

Lastly, the Davis Parties argue the trial court erred in refusing to award them, 

as damages, the temporary injunction bond posted by the Green Parties. A party who 

wrongfully obtains an injunction is liable to the party enjoined for damages caused 

by the injunction. Ferguson v. Tanner Dev. Co., 654 S.W.2d 835, 837 (Tex. App.—

Houston [14th Dist.] 1983, no writ). However, the Davis Parties’ entire argument 

that the temporary injunction was wrongful is: “[r]eview of the temporary injunction 

establishes that the injunction obtained by [the Green Parties] was wrongful.” This 

conclusory statement is not sufficient to support the Davis Parties’ issue on appeal. 

The issue is waived. See Canton–Carter, 271 S.W.3d at 931–32; Sterling, 99 S.W.3d 

at 798–99; San Saba Energy, 171 S.W.3d at 338; Tex. R. App. P. 38.1(i). Issue four 

is overruled.

CONCLUSION

The trial court’s declarations in paragraphs F, L, J, H and O of subsection 11 

of the final judgment are reversed. In all other respects, the judgment of the trial 

court is affirmed. 

We remand the case for further proceedings in accordance with this opinion. 
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 /s/ Margaret “Meg” Poissant

 Justice 

Panel consists of Justices Wise, Hassan, and Poissant.