Full Opinion

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-26-00201-CV IN THE ESTATE OF HELMUTH PETER REITHMEIER, DECEASED On Appeal from Probate Court Number 1 Denton County, Texas1 Trial Court No. PR-2017-01117-01, Honorable David W. Jahn, Presiding November 4, 2026 MEMORANDUM OPINION Before PARKER, C.J., and YARBROUGH and PRATT, JJ. Appellee, Northshore, a Texas nonprofit corporation and private club, sued Appellant, Michael Reithmeier, Independent Administrator of the Estate of Helmuth Peter Reithmeier, for judicial foreclosure of Lots 6 and 7, declaratory relief, and enforcement of restrictive covenants. The Estate filed a counterclaim for fraud, negligent misrepresentation, breach of contract, and violation of the Texas Residential Property Owners Protection Act. Following a bench trial, the court entered a final judgment in favor 1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. of Northshore on the purchase option for Lot 6 but denied Northshore the right to purchase Lot 7. It ordered that Northshore has the right to purchase Lot 6 at a price to be determined by three independent appraisers. The trial court denied the Estate relief on all its counterclaims. Presenting five issues, the Estate challenges the trial court’s final judgment as follows: • the trial court improperly granted Northshore the right of purchase under Lot 6’s Purchase Provision because the triggering event for doing so expired in 2017 when Helmuth died or if it did not expire, then the Purchase Provision violates the Rule Against Perpetuities; • the trial court erred in denying the Estate’s claim for violation of the Texas Residential Property Owners Protection Act because Northshore failed to meet the conditions precedent to establish that the Estate ceased to be a member in good standing; • the trial court erred in granting Count 2 (Declaratory Judgment) of Northshore’s First Amended Petition because a declaratory judgment was not a proper cause of action; • the trial court improperly granted Count 1 (judicial foreclosure) of Northshore’s First Amended Petition because there is no right of judicial foreclosure under Lot 6’s Purchase Provision; and • the trial court erred in denying the Estate’s request for attorney’s fees under section 5.006 of the Texas Property Code. We affirm as modified. BACKGROUND Northshore is the Declarant in a Declaration of Covenants, Conditions, and Restrictions filed on March 30, 1979. It is a private club with ownership of over 70 acres and is responsible for enforcement of the declarations. The Declaration provides that the property is subject to covenants, conditions, and restrictions that shall run with the land. 2 Northshore’s Bylaws provide for different types of Certificates of Membership which determine a member’s voting rights, limited to a maximum of seven votes at meetings. Certificates are forfeited if a member is expelled from Northshore under Article IV, Section 9 of the Bylaws. A member is considered to be in “good standing” unless the member is more than 30 days past due on payments (not applicable here) or the member is censored or suspended after due notice and hearing. Article IV, Section 9 provides that a quorum (seven of eleven board members) at a regular or special meeting may expel any member for “any conduct which in the opinion of the Board of Directors is prejudicial to the welfare and reputation of Northshore.” The procedure for expulsion requires a notice to be sent at least 10 days before the date of a meeting stating the charge being considered and specifying the date, time, and place of the meeting. The member must be advised of the right to submit a written answer to the charges and/or the opportunity to appear in person to be heard. Helmuth acquired Lot 6 in 1996 by General Warranty Deed and Lot 7 in 2007 by a cash Warranty Deed. The Purchase Provision of Lot 6’s General Warranty Deed provides as follows: In the event of death, bankruptcy or adjudication of insanity of the Grantee herein, or in the event the Grantee herein should, for any reason, ceases [sic] to be a member in good standing of Northshore; then, and in such event, Northshore shall have the option to purchase the property described herein within six (6) months of such event . . . at a price to be determined by three independent appraisers . . . . (Emphasis added). 3 The Warranty Deed selling Lot 7 to Helmuth provided it is “subject to all easements, reservations, conditions and covenants and restrictions . . . .” The deed also bound Helmuth’s “heirs, executors, administrators, successors and assigns.” The option to purchase Lot 7, however, was released by a recorded instrument in 1998, and the trial court correctly denied Northshore the option to purchase Lot 7.2 Helmuth died on February 15, 2017. Michael, who lives in Georgia, was the only heir and filed an Application for Administration. Northshore alleged the property had been abandoned since Helmuth’s death and it had not been maintained as required by restrictive covenants and Bylaws despite repeated notices. The property did not have electricity. Northshore’s primary complaint was overgrown bamboo approximately 10 to 12 feet high and an unkempt appearance of the property. On July 8, 2022, Northshore gave the Estate notice of a July 20, 2022 board meeting to consider expulsion. The notice also advised the Estate of what needed to be corrected to avoid expulsion. Michael acknowledged receiving the notice at his address in Georgia but did not respond and the meeting was postponed. On August 26, 2022, Northshore sent another notice by certified mail advising the Estate of a special board meeting scheduled for September 7 to discuss disciplinary action regarding the Estate’s violations and a vote on expulsion of the Estate as a member. The notice detailed various charges and violations including failure to regularly maintain the property and violations of Flower Mound’s Code of Ordinances. The notice stated the meeting “will be held on SEPTEMBER 7, 2022, AT 7:00 P.M. Central 2 The then-president of Northshore signed a Release of Option to Purchase Lot 7. 4 Standard Time, at the Northshore Clubhouse, 1375 Northshore Boulevard, Flower Mound, Texas 75022.” The Estate was further advised it could resign rather than face expulsion. Photos of overgrown weeds and bamboo were attached to the notice. The Board met as scheduled but Michael did not attend to represent the Estate, nor did he submit a written response to the charges. With a quorum present, the Board voted to expel the Estate due to lack of maintenance and its unwillingness to address the issue. By notice dated September 9, 2022, the Estate was informed of the outcome of the September 7 meeting and given the opportunity to voluntarily resign in lieu of expulsion. On September 21, 2022, Northshore sent the Estate a notice of expulsion effective that date. By letters dated November 10 and December 1, 2022, Northshore offered to purchase the property citing that the Estate ceased to be a member in good standing thereby triggering the deed’s purchase option. Both letters requested an asking price for the lots. Michael testified he received the notice informing the Estate it could resign and avoid expulsion. He chose to make himself heard through counsel. He claimed he requested mediation and arbitration twice. Mediation was unsuccessful and there was no arbitration.3 When the Estate did not provide a sales price for the lots, Northshore sued the Estate for judicial foreclosure and enforcement of restrictive covenants. It also sought a 3 Interestingly, Article XIII of the Bylaws provides that “[a]ny and all disputes . . . shall be submitted to mediation.” It also recites “[f]ailing successful resolution in mediation . . . arbitration shall be the sole remedy for resolution of any and all disputes.” (Emphasis added). The provision continues “[m]ediation and arbitration are the exclusive remedies for any alleged wrong under the terms of the club’s constitution and by-laws.” (Emphasis added). 5 declaratory judgment. Almost a year later, the Estate filed a counterclaim alleging fraud, negligent misrepresentation, breach of contract, and violation of the Texas Residential Property Owners Protection Act. The trial court ruled in favor of Northshore regarding Lot 6 but ruled in favor of the Estate as to Lot 7 due to the waiver of the option to purchase recorded decades earlier. ISSUE ONE—PURCHASE OPTION FOR LOT 6 The Estate asserts the trial court improperly granted Northshore the right of purchase under Lot 6’s purchase provision because the triggering event for doing so expired in 2017 when Helmuth died or if it did not expire, then the purchase provision violates the Rule Against Perpetuities. We disagree. The purchase option in the deed for Lot 6 provided four different triggering events requiring Northshore to exercise its option within six months of an event: (1) death, (2) bankruptcy, (3) adjudication of insanity, or (4) ceasing to be a member in good standing. The Estate maintains that because the deed included only “Helmuth Reithmeier” as “the Grantee” with no mention of heirs or assigns, the only triggering event available to Northshore for exercising the purchase option was his death in 2017. Northshore did not invoke the purchase option until 2022 after determining the Estate had ceased to be a member in good standing. When covenants “run with the land [they] bind the heirs and assigns of the covenanting parties, while personal covenants do not.” Montfort v. Trek Res., Inc., 198 S.W.3d 344, 355 (Tex. App.—Eastland 2006, no pet.). In Montfort, which involved an obligation to furnish fresh water for oil and gas operations, the deed used the term 6 “Grantor or its successors and assigns” but failed to include “successors and assigns” when referring to the “Grantee.” Id. at 354. Trek, the Grantee who acquired his interest from a prior owner, asserted that the absence of “successors and assigns” relieved him of the obligation to provide fresh water to Montfort. Id. After the appellate court determined the parties intended the obligation to run with the land, they noted that the absence of terms such as “successors and assigns” was not dispositive of the issue and did not need to be included in the deed. Id. at 355. The omission of limiting language indicated an intent for the obligation to last longer. Id. at 356. The use of such terms is helpful in determining intent but is not dispositive and an obligation intended to run with the land can be created without such terms. Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990 S.W.2d 386, 394–95 (Tex. App.—Texarkana 1999, pet. denied). Here, Northshore’s Declaration of Covenants, Conditions, and Restrictions specified they “shall run with the real property and shall be binding on all parties having any right, title or interest in or to the above-described property or any part thereof, and their heirs, successors, and assigns.” See Inwood North Homeowners’ Ass’n v. Harris, 736 S.W.2d 632, 635 (Tex. 1987) (recognizing the Declaration of Covenants specifically bound the parties, their successors, and assigns). The Estate did not claim it had no notice of the Declaration. Notwithstanding omission from the deed of terms such as “heirs,” “assigns,” or “successors,” the Declaration’s language bound Helmuth’s only heir, Michael. We also note that the four events in the deed that triggered the purchase option for Lot 6 were presented disjunctively and gave Northshore a choice of which to pursue. 7 We conclude Northshore was not required to exercise the purchase option to Lot 6 when Helmuth died in 2017. The Estate argues that if the purchase option did not expire six months after Helmuth’s death, then it violates the Rule Against Perpetuities and is unenforceable. The Rule provides that “no interest is valid unless it must vest, if at all, within twenty-one years after the death of some life or lives in being at the time of the conveyance.” Peveto v. Starkey, 645 S.W.2d 770, 772 (Tex. 1982). The Estate reasons that the other three triggering events (bankruptcy, adjudication of insanity, or ceasing to be a member in good standing) might not vest within 21 years following Helmuth’s death. According to the Estate, an “everlasting property interest” would violate the Texas Constitution which provides that “[p]erpetuities . . . are contrary to the genius of free government, and shall never be allowed.” TEX. CONST. art. I, § 26. Northshore argues it did not waive its right to enforce the purchase option by waiting until the Estate ceased to be a member in good standing as the triggering event. It maintains the right of first refusal would vest upon the occurrence of any of the triggering events. Relying on ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 867 (Tex. 2018), Northshore contends that when an instrument is subject to two constructions, Texas courts favor the construction that saves the validity of the instrument. The Supreme Court has declined to hold an interest void when it does not violate the purpose of the Rule. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 526 (Tex. 1982) (a preferential right to purchase that is unlimited as to time is not prohibited by the Rule because it does not constitute an unreasonable restraint on alienation). Even if Northshore’s preferential 8 right to purchase the property might extend beyond 21 years from Helmuth’s death, there was a limitation on time of six months to exercise any of the options. Northshore’s President testified that reasonable offers to purchase the property had been extended to the Estate and several written inquiries had been made for an asking price. It offered to match the price of a bona fide purchaser or whatever price was set by three independent appraisers. The Rule was not violated because there was no possibility Northshore’s purchase option would not vest within 21 years of a life in being, the right to enforce the option vested at the time of Helmuth’s death and was not waived merely because Northshore waited for another triggering event; and the purchase option was limited in time and price. We agree with Northshore that the Rule Against Perpetuities was not violated. Issue one is overruled. ISSUE TWO—CONDITIONS PRECEDENT OF TEXAS RESIDENTIAL PROPERTY OWNERS PROTECTION ACT The Estate argues the trial court erred in denying his counterclaim that Northshore violated the Act by failing to comply with conditions precedent as required by section 209.006(a) of the Property Code. Thus, he maintains the Estate remained a member in good standing and Lot 6’s purchase provision was not triggered. Northshore claims the Estate waived this issue by failing to timely complain about lack of notice and failing to request abatement of the suit to cure alleged defects. We agree the issue is waived. Section 209.006(a) of the Residential Property Owners Act requires written notice to a property owner by certified mail before filing suit except under certain circumstances not applicable in the underlying case. TEX. PROP. CODE § 209.006(a). The notice requirements are mandatory but not jurisdictional. Park v. Escalera Ranch Owners’ 9 Ass’n, Inc., 457 S.W.3d 571, 590 (Tex. App.—Austin 2015, no pet.). But a party may waive the mandatory requirements by failing to timely object because the notice provision may be cured by a defendant’s timely request for abatement of the suit to allow for provision of the notice. Roddy v. Holly Lake Ranch Ass’n, 589 S.W.3d 336, 345 (Tex. App.—Tyler 2019, no pet.). Generally, a party must request abatement with the filing of an answer or very soon thereafter to be timely. Park, 457 S.W.3d at 589–90. In the underlying case, the Estate did not timely file an answer and Northshore moved for a default judgment. Three days after the motion was filed, the Estate filed its answer. It did not, however, complain of lack of notice or request abatement of the suit. When the Estate filed its counterclaim almost a year later, it raised the issue of lack of notice but still did not request abatement. By failing to do so, it waived the mandatory notice requirements of the Act.4 Id. Issue two is overruled. ISSUE THREE—DECLARATORY RELIEF The Estate contends the trial court erred in granting Northshore declaratory relief because a declaratory judgment was not a proper cause of action. We agree. A declaratory judgment is a remedial measure “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” TEX. CIV. PRAC. & REM. CODE § 37.002(b). It is proper if there is a justiciable controversy as to the rights and status of the parties and will “serve[] a useful purpose or will terminate the 4 As the Estate asserts, it did present alleged violations of the Act during trial but at no time did it request an abatement of the suit. Even if the issue had been preserved, the notice requirements of section 209.006 did not apply because Northshore filed suit requesting foreclosure as a cause of action. Dao v. Mission Bend Homeowners Ass’n, 667 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2022, no pet.). 10 controversy between the parties.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467– 68 (Tex. 1995). Declaratory relief is inappropriate if it would add nothing to other relief sought. Boatman v. Lites, 970 S.W.2d 41, 43 (Tex. App.—Tyler 1998, no pet.). It does not enlarge a court’s power to permit the rendition of advisory opinions. Tex. Dep’t of Pub. Safety v. Alexander, 300 S.W.3d 62, 80 (Tex. App.—Austin 2009, pet. denied). The Estate asserts that Northshore’s entire case revolved around a breach of contract of certain documents by which it sought enforcement. It posits the case did not concern an interpretation of the General Warranty Deed conveying Lot 6 to Helmuth nor did Northshore allege any ambiguity or vagueness in the instrument. It is undisputed that a justiciable controversy existed between the parties. But that controversy was unrelated to their rights and status. It concerned whether the Estate violated restrictive covenants and whether Northshore could enforce those restrictions. Northshore pleaded three causes of action: (1) Count 1—judicial foreclosure, (2) Count 2—declaratory judgment, and (3) Count 3—suit to enforce restrictive covenants. Under Count 2, Northshore asserted that section 37.004(a) of the UDJA permitted it to have determined any question of construction or validity arising under an instrument and to have its rights declared thereunder. But it then pleaded for the trial court to “grant” the option to purchase under the General Warranty Deed. Northshore did not request to have its rights declared under the deed. Neither is there an allegation of ambiguity or vagueness of the deed. By Count 3, Northshore alleged that if judicial foreclosure was not an appropriate cause of action, it alternatively sought enforcement of the deed’s restrictive covenants. Given such allegations, Northshore was not seeking to have its rights or status determined; rather, it sought enforcement of restrictions on alleged 11 violations by the Estate. Its request for declaratory relief was superfluous, and the trial court erred in granting it. Issue three is sustained. ISSUE FOUR—JUDICIAL FORECLOSURE The Estate contends the trial court improperly granted Count 1 (judicial foreclosure) of Northshore’s First Amended Petition because there is no right of judicial foreclosure under Lot 6’s purchase provision. Northshore asserts this complaint is waived because it is being raised for the first time on appeal. We agree the issue is waived but for a different reason.5 The issue is waived due to inadequate briefing. In one paragraph, the Estate argues none of Northshore’s governing documents nor the General Warranty Deed includes the right to judicial foreclosure. The argument references the record and several exhibits. It does not, however, include any citation to legal authority. TEX. R. APP. P. 38.1(i) (requiring argument to be supported by appropriate citations to authority); Arreola v. Brown, No. 02-24-00500-CV, 2026 Tex. App. LEXIS 5509, at *29–30 (Tex. App.—Fort Worth June 11, 2026, no pet.) (mem. op.) (finding a few short paragraphs of argument with only one statutory reference as supporting authority to be an inadequately briefed issue not preserved for appeal). Issue four is overruled. 5 We disagree the issue was not raised in the trial court. During cross-examination of the President of Northshore’s Board of Directors, the Estate’s counsel asked if it was “prudent to attempt to enforce a provision that doesn’t exist?” Counsel was referring to a release of the purchase option regarding Lot 7. The witness responded, “[t]he way you worded it, no.” Over objection, the witness was asked whether his petition sought judicial foreclosure, to which he answered, “[a]s I understand it, yes.” When asked if he was aware of any provisions in the Bylaws that provided for judicial foreclosure, he commented he could not answer because he was not a lawyer. He confirmed that during his time on the Board, he could not recall Northshore judicially foreclosing on any other members’ property. When Michael was testifying on direct examination, he was asked about Northshore’s desire to judicially foreclose on Lots 6 and 7 belonging to his father’s estate. The issue of judicial foreclosure was clearly presented to the trial court through cross-examination of the Board’s president and during Michael’s testimony. 12 ISSUE FIVE—DENIAL OF ATTORNEY’S FEES The Estate maintains the trial court erred in denying attorney’s fees requested under section 5.006 of the Texas Property Code.6 We disagree. The Property Code provides for an award of attorney’s fees to the prevailing party in an action to enforce deed restrictions pertaining to real property. TEX. PROP. CODE § 5.006(a); Reed v. Lake Country Prop. Owners Ass’n, No. 02-17-00136-CV, 2017 Tex. App. LEXIS 12093, at *10 (Tex. App.—Fort Worth Dec. 28, 2017, pet. denied) (mem. op.). The statute does not define “prevailing party.” However, courts have construed the phrase to mean the party must recover at least some of the relief sought by its claim. Hawkins v. Walker, 233 S.W.3d 380, 400 (Tex. App.—Fort Worth 2007, pet. denied). In the trial court, the Estate was not the prevailing party. Thus, it was not entitled to attorney’s fees under section 5.006. Issue five is overruled. CONCLUSION That portion of the trial court’s Final Order/Judgment granting Northshore a declaratory judgment is vacated. In all other respects, the Final Order/Judgment is affirmed. Alex Yarbrough Justice 6 The Estate concedes reversal of the judgment is required to be entitled to attorney’s fees. 13