author: EVA M. GUZMAN, Justice.

text:
    James I. MEADER, Individually and on Behalf of All Persons Similarly Situated in the State of Texas, Appellants, v. IRA RESOURCES, INC., California Bank & Trust as Successor in Interest to Eldorado Bank, and Eldorado Bank, Appellees.
    No. 14-04-00552-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 13, 2005.
    Rehearing Overruled Oct. 27, 2005.

      James H. Miller, Houston, for appellants.

      Mike Morris, William Book, Houston, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

This appeal arises from the trial court’s order granting a special appearance motion filed by IRA Resources, Inc., California Bank & Trust as Successor in Interest to Eldorado Bank and Eldorado Bank (“Eldorado”) (collectively, “appellees”). In one issue, appellant James I. Meader challenges the trial court’s order, claiming ap-pellees have sufficient minimum contacts with Texas to support an assertion of personal jurisdiction. We conclude that the record evidence does not establish the requisite minimum contacts with this forum, and therefore affirm the trial court’s order.

I. Factual and Procedural Background

Meader, a Texas resident, purchased three water treatment units sold by Aqua-Dyn Technologies, Inc. (“AquaDyn”), for a total cost of $48,000, to be held as an investment. He purchased the units through Mike Scott, who was at the time employed by Sentinel, a company located in Texas. Scott advised Meader that the AquaDyn units would provide a “guaranteed” fifteen percent return on Meader’s investment. To facilitate the purchase, Meader opened a Self-Directed Individual Retirement Account (“SDIRA”) administered by IRA Resources on behalf of Eldorado, custodian of the SDIRA. Scott provided Meader with the forms necessary to effectuate a transfer of funds from Mead-er’s existing individual retirement account into the SDIRA. The contribution check from Meader’s existing retirement account, for $48,375, was made payable to Eldorado Bank for the benefit of Meader. As administrator of the SDIRA, IRA Resources forwarded $48,000 to AquaDyn to purchase the water treatment units on Meader’s behalf.

Meader claimed the AquaDyn units were securities requiring registration with the Texas State Securities Board and sued appellees under the Texas Securities Act, individually and on behalf of all Texas residents purchasing the AquaDyn units through SDIRAs. Meader alleged the appellees furthered AquaDyn’s scheme to defraud investors by acting as custodian of the SDIRAs, and that the appellees failed to properly investigate the legitimacy of AquaDyn’s water treatment units as ah investment. Meader also asserted statutory and common-law fraud causes of action, and negligence claims. The appellees filed a special appearance motion, which the trial court granted, and this appeal ensued.

II. Standard of Review

Whether a court has personal.jurisdiction over a .defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002). The trial court’s decision to grant or deny a special appearance is subject to de novo review on appeal, but if a factual dispute exists, an appellate court is called upon to review the trial court’s resolution of the factual dispute as well. Id. at 806; BMC Software Belgium, N.V. v. Maryland, 88 S.W.3d 789, 794 (Tex.2002). If the trial court does not issue findings of fact, as in this case, a reviewing court should presume the trial court resolved all factual disputes in favor of its judgment. Am. Type Culture, 83 S.W.3d at 806.

A plaintiff has the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. Id. at 807. When the nonresident defendant files a special appearance motion, he assumes the burden of negating the jurisdictional bases asserted by the plaintiff. Id.; see Tex.R. Civ. P. 120a.

III. Discussion

On appeal, Meader argues the trial court erred in granting the special appearance motion because (1) IRA Resources and Eldorado conducted business in this State, the lawsuit arose out of that business, and therefore, the court has specific jurisdiction; and (2) appellees contracted with other Texas residents and contracted with a Dallas company to perform accounting services, the court has general jurisdiction.

A. Personal Jurisdiction Over Nonresident Defendants

An assertion of personal jurisdiction over nonresident defendants must comport with state statutory and federal constitutional requirements. Am. Type Culture, 83 S.W.3d at 806. The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant “doing business” in Texas, and allows Texas courts to exercise personal jurisdiction “as far as the federal constitutional requirements of due process will allow.” Id.; see Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997).

Personal jurisdiction over nonresident defendants satisfies the-constitutional requirements of due process when the defendant has purposefully established minimum contacts with the forum state, and the exercise of jurisdiction is consistent with traditional notions of fair play and substantial justice. Marchand, 83 S.W.3d at 795 (citing Inti Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, (1945)). Foreseeability is a factor in the minimum contacts analysis, but it alone will not support personal jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). A defendant’s minimum contacts may give rise to either specific jurisdiction or general jurisdiction. Am. Type Culture, 83 S.W.3d at 806.

In his pleadings, Meader stated the trial court had jurisdiction over appellees because all or a substantial part of the events or omissions giving rise to his claims occurred in Texas, the transaction giving rise to the cause of action occurred in Texas, the appellees “had agents” in Texas, and Meader is a Texas resident. Further, Meader alleged his suit arose as follows:

This case arises out of Defendants’ actually participated [sic] in and provided assistance to a scheme to defraud innocent investors out of their retirement dollars. In its role as a custodian of IRAs and/or custodian for self-directed IRAs for [AquaDyn] customers, Defendants actually participated in the sale of unregistered securities and rendered substantial assistance by providing investment mechanisms that allowed AquaDyn customers to invest their IRA funds into AquaDyn [sic] securities.
AquaDyn approached IRA Resources and Eldorado and requested and received approval to sell their IRA custodian services along with the water treatment systems in order to facilitate sales to persons that had funds in-retirement accounts to invest. IRA Resources and Eldorado conspired with AquaDyn to provide qualified IRAs and self-directed IRA custodial accounts to allow to [sic] investors ... to invest in AquaDyn without paying such penalties.

Based on these allegations, Meader asserted the following causes of action: (1) violations of Article 581-33 of the Texas Securities Act; (2) “Statutory Stock Fraud;” (3) common law fraud; (4) negligent misrepresentation; and (5) negligence.

In his brief, Meader argues the record evidence establishes the following contacts in support of specific jurisdiction: (1) Scott was the agent for IRA Resources and AquaDyn; (2) Scott sold the water treatment units to Meader in Texas; (3) in conjunction with the sale, Scott sold appel-lees’ custodial services; and (4) as a result, appellees contracted with Meader. He also contends appellees have conducted business with other Texas residents and contracted with an accounting company located in Dallas.

There is apparently no dispute that Scott was located in Texas at the time of the sale, and that he was acting as an AquaDyn representative when he sold the water treatment units to Meader. The record reflects that AquaDyn is a Mississippi corporation headquartered in Georgia, and appellees are incorporated and headquartered in California, with no offices outside of that state. ■ We first examine whether the trial court can exercise specific jurisdiction over the appellees.

1. Specific Jurisdiction

When specific jurisdiction is asserted, our minimum contacts analysis focuses on the relationship among the defendant, the forum, and the litigation. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex.1991). Specific jurisdiction over a nonresident defendant is established if the defendant’s contacts with the forum state have been purposeful, and plaintiffs cause of action arises out of or relates to those contacts. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Am. Type Culture, 83 S.W.3d at 806. The defendant’s activities, either direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. Am. Type Culture, 83 S.W.3d at 806 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). A defendant cannot, however, be haled into a Texas court for the unilateral acts of a third party, or if the defendant’s contacts with this forum are too fortuitous or attenuated. Id. It is the quality and nature of the defendant’s contacts, rather than them number, that determines whether an assertion of jurisdiction is proper. Id.

When multiple defendants are involved, we should examine each defendant’s contacts with the forum separately. Shapolsky v. Brewton, 56 S.W.3d 120, 132 (Tex.App.-Houston [14th Dist.] 2001, pet. denied), disapproved of on other grounds, Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788-89 (Tex.2005). In this case, however, Meader does not address each appellee’s contacts individually and, instead, generally ascribes the alleged contacts to both IRA Resources and Eldorado jointly. In our analysis, we will note a distinction in the character of appel-lees’ respective contacts when necessary or when the record so reveals.

a. The alleged contacts

Meader alleges the appellees participated in AquaDyn's scheme to defraud investors by providing the forms that effectuated the rollover of his then existing individual retirement account into the AquaDyn investments. Meader states this act forms the basis of his litigation. He relies on the following contacts to support specific jurisdiction: (1) appellees’ forms were executed in Texas, (2) appellees charged Texas residents fees for the SDI-RA services, (3) appellees mailed periodic statements to Texas residents, (4) Meader performed his contract with the appellees in Texas, and (5) Scott, then employed in Texas by Sentinel, was appellees’ agent. Meader does not allege that appellees made any direct misrepresentations or otherwise had any direct contact with him.

(1) agency

As evidence of minimum contacts, Meader relies primarily on the fact that he signed IRA Resources’ forms in Texas. He also relies on this fact as evidence of the alleged agency. Meader contends that the “crucial question” in determining whether appellees had purposefully directed activities towards Texas is, “How did the Defendants’ IRA Agreements and forms find their way into the living room of [Meader]?” He argues that through these forms, Scott sold appellees’ custodial services, thus contracting with a Texas resident. The law, however, does not presume agency, and there is no record evidence that Scott was acting as the appellees’ agent. See Suarez v. Jordan, 35 S.W.3d 268, 272 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Buchoz v. Klein, 143 Tex. 284, 184 S.W.2d 271, 271 (1944)). There is nothing in the record to evidence that IRA Resources or Eldorado had any control over Scott’s solicitation of the AquaDyn investment or his use of their forms, nor any evidence they manifested any authority over Scott to Meader. See Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 852 (Tex.App.Corpus Christi 1998, pet. dism’d w.o.j.); see also Walker v. Fed. Kemper Life Assurance Co., 828 S.W.2d 442, 452 (Tex.App.-San Antonio 1992, writ denied) (holding that, even if person acts for another, agency does not exist if person is not under the other’s control as to means and details of accomplishing the task).

In an affidavit attached to the special appearance motion, Liane Bruno, president of IRA Resources, denied that Scott was an agent for IRA Resources, stating in part the following:

IRA Resources never exercised any control over Mike Scott, directed any of [Scott’s] activities, or had any contract or other type of agreement with [Scott]. IRA Resources never authorized [Scott] to act on IRA Resources’ behalf or to market, advertise, or promote IRA Resources or otherwise solicit business for IRA Resources. To the best of my knowledge, IRA Resources never sent any of its forms to Mike Scott.

Further, Bruno stated that IRA Resources was not a resident of Texas, had no offices, employees, or agents in Texas, had not engaged in any business in this State, and was not affiliated with AquaDyn in any way. Likewise, Eldorado provided a similar affidavit, stating it never had any agents in Texas, it never had any contact with AquaDyn, or AquaDyn representatives, and it is a California corporation with no offices or branches outside of that state.

Other than the fact Scott provided Meader with appellees’ forms, Meader does not assert there is other evidence of Scott’s alleged agency, and our review of the record reveals none. Meader did not allege that Scott represented himself as being appellees’ agent. Further, although Scott completed the forms for Meader, Scott was listed on the forms as Meader’s financial advisor, and there is nothing in the record to indicate that Scott was acting in any other capacity in preparing the forms on Meader’s behalf. See IRA Resources, Inc. v. Griego, 161 S.W.3d 248, 255 (Tex.App.-Corpus Christi March 31, 2005, pet. filed) (concluding there was no evidence that IRA Resources was aware of an individual’s involvement in the transaction, nor that it approved of such involvement).

Finally, agency is generally a question of fact. Happy, 983 S.W.2d at 852. Although the clerk’s record is before us on appeal, the reporter’s record from the special appearance hearing is not, and the trial court did not issue any findings of fact. Accordingly, we presume the trial court resolved the question of agency against Meader and in favor of its judgment. See Am. Type Culture, 83 S.W.3d at 806.

(2) IRA Resources’forms

Meader also asserts that IRA Resources, and thus Eldorado, “admitted” to allowing their account forms to be used in the sale of AquaDyn units in Texas. As evidence, he points to Bruno’s affidavit stating that an “AquaDyn representative” contacted her to see if AquaDyn could refer its customers to IRA Resources to establish self-directed individual retirement accounts. Although Bruno admits in her affidavit that an “AquaDyn representative” contacted her, she does not state that the representative was in fact Scott. This is not evidence that IRA Resources was aware that AquaDyn may solicit business in Texas. As noted, AquaDyn is a Mississippi corporation with its headquarters in Georgia.

Even were we to interpret Bruno’s statement as suggested by Meader, that it was Scott who contacted her, this does not evidence that appellees purposefully directed any actions towards Texas. See Michiana, 168 S.W.3d at 784-85 (discussing purposeful availment, noting the defendant’s contacts with the forum count, not the unilateral activity of a plaintiff or a third party); CSR Ltd., 925 S.W.2d at 595. The evidence establishes it was Scott who provided IRA Resources’ forms to Meader, completed them, and sold the AquaDyn units, but there is no evidence that appel-lees “participated” in the sale or that they directed any actions towards a Texas resident.

(3) IRA Resources’ contract

The other “contact” alleged by Meader as supporting specific jurisdiction, is the fact IRA Resources’ forms were executed in Texas, the “appellees” charged fees to Meader, and mailed periodic statements to him in Texas. There is no indication in the record as to the frequency with which IRA Resources charged fees or mailed the periodic statements. But, it is well-established that a single contract with a Texas resident does not automatically subject a nonresident defendant to jurisdiction in Texas. Burger King, 471 U.S. at 478, 105 S.Ct. 2174 (“If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s forum, we believe the answer clearly is that it cannot.”); see Michiana, 168 S.W.3d at 786; Equitable Prod. Co. v. Canales-Trevino, 136 S.W.3d 235, 239 (Tex.App.-San Antonio 2004, pet.denied). Nor is the fact a contract is partially performed in Texas determinative of specific jurisdiction. See TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900, 910 (Tex.App.-Austin 2000, pet. denied).

In the affidavits furnished with the special appearance motion, IRA Resources and Eldorado both averred they had never marketed, advertised, promoted, or otherwise solicited business in Texas. Further, as shown above, the evidence reflects that the IRA Resources’ forms and services found their way into this forum through Scott or some other AquaDyn representative. Thus, the fact that Meader executed the forms in Texas does not serve to establish contact sufficient to support an exercise of specific jurisdiction over IRA Resources. See Michiana, 168 S.W.3d at 785-87 (examining the defendant’s contacts with the forum, noting a nonresident defendant cannot be haled into a Texas court based on random or fortuitous contacts).

Nevertheless, a single contract may be sufficient to establish specific jurisdiction if it has a “substantial connection” with the forum. See Guardian Royal Exch., 815 S.W.2d at 230; see also McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). That connection may exist when there is a long-term agreement, involving many contacts over a period of time. See McGee, 355 U.S. at 223, 78 S.Ct. 199; Michiana, 168 S.W.3d at 787; see also P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320, 327 (Tex.App.Houston [14th Dist.] 2001, pet. denied).

In this case, we examine IRA Resources’ forms to determine the nature of its and Eldorado’s relationship with Meader. Under the terms of IRA Resources’ forms, it was to serve as an “administrator” of Meader’s SDIRA. As an administrator, IRA Resources performed “asset and liability recordkeeping” for those individuals choosing to maintain SDIRAs. The forms expressly state that the client’s funds are to be deposited in an Eldorado individual retirement and interest bearing account until the client delivers investment instructions to the contrary. The forms also provide that the SDIRA client acknowledges the investment decisions he makes are solely his responsibility, that the SDIRA is “not made in connection with any investment for sale, private or public and that neither [appellee] offer [sic] any investment for sale, advise [sic] or endorsement,” and, further, the client agrees to hold appellees harmless from any losses incurred as a direct or indirect result of transfers made under the account. Further, any prospectuses, purchase agreements, or offer memorandums reviewed by IRA Resources in connection with the SDIRA are reviewed only for administrative purposes, and IRA Resources “does not perform due diligence concerning the advisability or suitability [of] the investment.” Finally, the forms state Meader’s account agreement is governed by the law of the state where “the Trust resides,” which in this case is California. See Michiana, 168 S.W.3d at 792 (noting that a forum selection clause may suggest that “no local availment was intended.”). In short, IRA Resources’ forms indicate its services were performed in California, pursuant to instructions received from a Texas resident, and pursuant to his investment decisions.

The record indicates the appellees did not initiate contact with Meader, there were no negotiations between Meader and appellees concerning his SDIRA, and no evidence that “contemplated consequences” arising from the contractual relationship were directed towards Texas. See Burger King, 471 U.S. at 479, 105 S.Ct. 2174 (noting that jurisdiction based on a contract depends on “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.”). Moreover, Meader does not assert any contract claims against appellees, nor allege any mishandling of his SDIRA. Based on the record evidence, we cannot conclude the agreement between IRA Resources and Meader had the substantial connection to this forum necessary to support the exercise of specific jurisdiction.

Moreover, even though the appel-lees may have gained some financial benefit from Meader’s SDIRA, “ ‘financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.’ ” Michiana, 168 S.W.3d at 788 (quoting World-Wide Volkswagen, 444 U.S. at 299, 100 S.Ct. 559).

In sum, appellees’ forms and activities in relation to Meader’s SDIRA do not evidence that the appellees could reasonably anticipate being haled into a Texas court for the causes of action asserted by Meader. See Am. Type Culture, 83 S.W.3d at 806. His claims arise from the sale of AquaDyn’s water treatment units, sold to him by one of AquaDyn’s representatives. Thus, IRA Resources’ services under their agreement with Meader are not at issue. See Hanson v. Denckla, 357 U.S. 235, 251-53, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (concluding that execution of a power of appointment of a trust did not suffice to establish personal jurisdiction because the issues in the lawsuit were based on the underlying trust agreement and not on the power of appointment). In this case, appellees’ contacts with this forum are too random, fortuitous or attenuated to support an assertion of specific jurisdiction. See Am. Type Culture, 83 S.W.3d at 806-07; D.H. Blair Inn Banking Corp. v. Reardon, 97 S.W.3d 269, 275 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.).

For these reasons, we conclude that the record does not support an exercise of specific jurisdiction over IRA Resources or Eldorado.

2. General Jurisdiction

Pointing to the Griego case, Meader also argues that the appellees’ activities in connection with the sale of other unregistered securities in addition to those alleged in this case, establishes sufficient contacts for Texas courts to assert general jurisdiction. He also contends that once an individual retirement account is rolled over into appellees’ SDIRA by a Texas resident, appellees have continuous and systematic contacts with that resident.

Unlike specific jurisdiction, general jurisdiction allows a forum to exercise jurisdiction over a nonresident defendant even if the cause of action did not arise from or relate to the defendant’s contacts with the forum. Am. Type Culture, 83 S.W.3d at 806-07. An exercise of general jurisdiction is constitutionally permissible when the defendant’s business contacts with the forum are “continuous and systematic,” and is a more demanding minimum-contacts analysis than with specific jurisdiction. See id. at 807.

Meader alleged in his pleadings that there were “at least 50 investors” he proposed to represent as the class plaintiff. In Bruno’s affidavit, however, she stated that out of the several thousand self-directed individual retirement accounts it administered, it did so for only two Texas residents holding the AquaDyn water treatment units. Meader did not dispute that fact.

There is no indication in this record that either IRA Resources or Eldorado (1) has ever been licensed or qualified to do business in Texas, (2) has any employees, offices, or bank accounts in Texas, (3) has a mailing address or a telephone number in Texas, (4) pays taxes in Texas, (5) owns real or personal property in Texas, (6) advertises in Texas, or (7) has a registered agent for service of process in Texas.

Under these circumstances, Meader has not established facts sufficient to support the exercise of general jurisdiction.

Moreover, that IRA Resources may have contracted with an unrelated Texas company to perform tax accounting work on the SDIRAs does not establish general jurisdiction.

Based on this record, we conclude that neither IRA Resources nor Eldorado has such a general presence in Texas that they are subject to general jurisdiction.

Conclusion

In sum, the record in this case does not support an assertion of specific or general jurisdiction over IRA Resources or Eldorado. Accordingly, we affirm the trial court’s judgment granting appellees’ special appearance motion.

      . The water treatment units were sold with a “site lease, a lease/back agreement, and a buy/back agreement.”

      . The forms were filled out by Scott and executed by Meader, who was at the time over eighty years old. The funds in Meader’s then-existing pension account were transferred from a financial institution in San Francisco, California, to IRA Resources.

      . Tex.Rev.Civ. Stat. Ann. arts. 581-1 to -43 (Vernon 1964 & Supp.2004-05).

      . Meader alleged in his petition that at least 50 investors were within the proposed class. Scott and AquaDyn were not parties to Mead-er's suit.

      . Section 17.042 provides as follows:
      In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
      (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
      (2) commits a tort in whole or in part in this state; or
      (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.
      Tex Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997).

      . The "fair play and substantial justice” requirement of due process imposes upon the defendant the burden to present a compelling case that the presence of some consideration would render jurisdiction unreasonable. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex.1991). The following factors, when appropriate, should be considered: (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. Generally, when the nonresident defendant has purposefully established minimum contacts with the forum state, the exercise of jurisdiction comports with fair play and substantial justice. Id.

      . Although the Griego court concluded there was no evidence of apparent agency in that case, the court did hold that there were sufficient contacts with Texas to permit an exercise of specific jurisdiction over IRA Resources. See Griego, 161 S.W.3d at 255. The Griego court did so, however, based on IRA Resources’ "contract” with the investor. We discuss the contract as a "minimum contact” later in this opinion.

      . The trial court's docket sheet indicates- a hearing on the special appearance motion was held.

      . Even assuming the identity of the representative is at issue, we must presume the trial court found that another AquaDyn representative contacted Bruno.

      . Meader refers to the subject agreement and forms as being IRA Resources' forms, but argues generally that "appellees” contracted with him, charged him fees, and mailed the statements. In its affidavit attached to the special appearance motion, however, Eldorado averred that its only contract was with IRA Resources, it never directly charged Meader any fees, nor mailed any statements to him in Texas. We acknowledge that the record indicates IRA Resources was the entity charging the fees and mailing the statements to Mead-er.

      . As further support for our conclusion that a substantial connection with Texas does not exist, we note that AquaDyn's contracts provide that "[e]ach party submits to the jurisdiction of any [] court sitting in ... Mississippi.”

      . Meader argues we must conclude that IRA Resources’ Texas contacts suffice to establish specific jurisdiction as the Griego court did. The Griego court concluded there was specific jurisdiction over IRA Resources relying on evidence that IRA Resources' contacts increased its revenues, IRA Resources knew the fees were coming from a Texas resident, and the cause of action arose from the Texas contacts. 161 S.W.3d at 255. But, as noted, a single contract with a Texas resident does not automatically establish personal jurisdiction, nor does the fact the nonresident defendant may have benefitted from a Texas contact. Instead, when determining whether an exercise of jurisdiction over a nonresident defendant is constitutionally permissible, the focus must be on the defendant’s purposeful availment of the benefits and protections of the forum, and the cause of action must arise out of that purposeful availment. See Am. Type Culture, 83 S.W.3d at 806. Although the Grie-go court stated that IRA Resources’ contacts with Texas were purposeful, the court did not discuss the second prong of this test and merely concluded the suit arose out of the Texas contacts. Here, the mere fact that (1) IRA Resources' forms ended up in Texas, by virtue of Scott's actions, and (2) IRA Resources agreed to act as administrator of Meader’s SDIRA, performing its services in California, but receiving revenues from a Texas resident for doing so, does not equate to the "purposeful availment” required to assert specific jurisdiction, nor are Meader’s causes of action in this case arising out of his agreement with IRA Resources. See generally Burger King, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Hanson, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

      . Eldorado provided an affidavit stating that its only contract was with IRA Resources, to maintain the accounts established by IRA Resources.

      . Griego is distinguishable. In Griego, the court does not address whether IRA Resources had such continuous and systematic contacts with Texas that an assertion of general jurisdiction would be proper, and instead, concluded an exercise of specific jurisdiction was appropriate, and specifically rejected the argument that Eldorado was subject to the general jurisdiction of a Texas court. See Griego, 161 S.W.3d at 255, 257.

      .Having concluded that the appellees are not subject to specific nor general jurisdiction, we do not address Meader’s arguments regarding “fair play and substantial justice.”


source: Caselaw Access Project

author: RICHARD H. EDELMAN, Justice.

license: Public Domain

text:
    Camilla Harris HAYNES, Appellant, v. Alice HAYNES and Metropolitan Life Insurance Company, Appellees.
    No. 14-03-00462-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 15, 2005.
    Rehearing Overruled Oct. 20, 2005.

      Isaac E. Henderson, Houston, for appellant.
    Betsy Lynn Grubbs, L.T. Bradt, Houston, Linda G. Moore, Dallas, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

In this life insurance proceeds dispute, Camilla Harris Haynes (“Camilla”) appeals a judgment entered for Alice Haynes (“Alice”) on various grounds. We affirm as modified.

Background

Jimmy Haynes (“Jimmy”) died in 2001 while employed by Texaco Oil Company (“Texaco”). His employee benefits with Texaco included a life insurance policy (the “policy”) issued by Metropolitan Life Insurance Company (“Met Life”) for which he had designated his mother, Alice, beneficiary. Both Alice and Jimmy’s wife, Camilla, thereafter claimed an interest in the policy proceeds, leading to this lawsuit between them and Met Life. As relevant to this appeal, the trial court ultimately entered judgment awarding Alice the policy proceeds, actual and exemplary damages for tortious interference with contract, and attorney’s fees.

Preemption

Camilla’s seventh issue contends that all of Alice’s claims should be dismissed because they are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”). There is no dispute in this case that the policy is part of an employee benefit plan to which ERISA applies.

State and federal courts have concurrent jurisdiction over actions by a beneficiary to: (1) recover benefits due under an ERISA plan; (2) enforce rights under the plan; or (3) clarify rights to future benefits. 29 U.S.C.A. § 1132(a)(1)(b), (e) (West 1999); Gorman v. Life Ins. Co. ofN. Am., 811 S.W.2d 542, 545 (Tex.1991). To the extent a state court has subject matter jurisdiction over such an action, ERISA preemption is an affirmative defense affecting only the law to be applied (not the trial court’s jurisdiction) and is waived if not asserted. Gorman, 811 S.W.2d at 546.

Conversely, a beneficiary’s state-law claim that “relates to” an ERISA plan but does not fall into one of the three foregoing categories is within the exclusive jurisdiction of the federal courts, and the resulting ERISA preemption deprives a state court of jurisdiction over the claim. Id. at 547. To determine whether a state-law claim has the forbidden connection to ERISA, we look to both the objectives of ERISA and the effect of the asserted state law on ERISA plans. Egelhoff v. Egelhoff, 532 U.S. 141, 147, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001). Among these objectives are to provide a comprehensive uniform scheme that enables claims to be processed and benefits to be disbursed strictly by reference to what is provided in plan documents to ensure fair and prompt enforcement of rights with minimum administrative and financial burden and delay. See id. at 147-48, 121 S.Ct. 1322. In addition, because the scheme is deemed to be comprehensive with regard to the remedies provided and excluded, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the Congressional intent to make the ERISA remedy exclusive and is preempted. See Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 2495, 159 L.Ed.2d 312 (2004). Therefore, to the extent a state-law action is directed at rectifying a wrongful denial of benefits under an ERISA plan (as contrasted from a violation of a legal duty arising independently of ERISA), but provides remedies not available under ERISA, it is completely preempted. Id. at 2497-99.

In this case, Alice’s claim for the life insurance proceeds sought to recover benefits due under an ERISA plan in accordance with the terms of the plan. Therefore, the trial court had jurisdiction to decide that claim, and Camilla’s contention that this claim should be dismissed by reason of preemption is overruled.

On the other hand, Alice’s tor-tious interference claim alleged that, by asserting a baseless community property interest in the policy proceeds, Camilla prevented or delayed Alice’s receipt of the policy proceeds. One of the two compensatory damage elements submitted in the jury charge was the difference between the amount of policy proceeds Alice would have received (i.e., without the interference) and that which she was to actually receive. Because this portion of the tor-tious interferénce claim: (1) was directed at rectifying an alleged denial of benefits due under the policy; (2) sought to decide the claim based on state (tort) law rather than the terms of the plan or ERISA; and (3) sought state law compensatory and exemplary damage remedies against Camilla that are not provided by ERISA, this claim was preempted by ERISA, and the trial court had no jurisdiction to determine it. Therefore, we sustain Camilla’s challenge to this portion of the compensatory tortious interference award and the entire exemplary tortious interference award based on preemption.

Funeral Expenses

The second element of compensatory damage submitted in the jury charge for tortious interference was the amount of burial expenses Alice would have to pay the funeral home out of the proceeds of the policy (because she had made an assignment of the proceeds to do so). The sole basis for this claim was the allegation that Camilla had promised to pay this expense, but had not done so. Because this damage element was not to recover or replace benefits under the plan and because it was based on the violation of a legal duty independent of ERISA, it is not preempted by ERISA.

However, Camilla’s fourth issue challenges the sufficiency of the evidence to prove that any loss Alice might have suffered in this regard was caused by Camilla’s alleged interference with the policy. Alice has cited, and we have found, no evidence making any causal connection between Camilla’s assertion of community property or other rights in the policy and Alice’s obligation to pay the burial expenses. Therefore, we sustain Camilla’s legal sufficiency challenge to this element of damage.

Attorney’s Fees

Camilla’s sixth issue contends that Alice was not entitled to recover attorney’s fees' as a matter of law because attorney’s fees are not recoverable on tort claims generally or under ERISA because: (1) there is no relationship between Alice’s tort claim and furtherance of ERISA policy; and (2) this case did not meet the criteria for recovery under section 1132(g).

However, Camilla fails to demonstrate that the attorney’s fees were awarded in conjunction with the tort recovery, rather than the award of benefits from the partial summary judgment. To the extent the attorney’s fees pertained to the award of policy proceeds (pursuant to ERISA), there is no requirement of a relationship between Alice’s tort claim (which we have concluded is preempted) and furtherance of ERISA policy. Moreover, Camilla’s conclusory contention that the case failed to meet the criteria for an award of attorney’s fees under ERISA is wholly unsupported by analysis, citations to the evidence, or otherwise to demonstrate a legal or factual insufficiency of the evidence to support the award. Therefore, Camilla’s sixth issue is without merit and is overruled.

Partial Summary Judgment

Camilla’s eighth issue challenges the partial summary judgment (awarding Alice the policy proceeds) on the ground that it was granted over her objections to the hearsay affidavit of Andrew Haynes and other inadmissible evidence. However, Camilla’s brief fails to specify which portions of Andrew Haynes’s affidavit were hearsay, why those portions were hearsay, and how those portions were essential to the trial court’s summary judgment decision. See TexR.App. P. 38.1(h). Under these circumstances, Camilla’s eighth issue affords no basis for relief and is overruled.

Accordingly, we: (1) reverse the portion of the trial court’s judgment awarding actual damages (other than funeral expenses) and punitive damages for tortious interference and order that claim dismissed for lack of jurisdiction; (2) reverse the judgment to the extent any remaining damages awarded for tortious interference were for funeral expenses and render judgment that Alice take nothing on that claim; and (3) affirm the remainder of the judgment.

      . Because the seventh issue is largely disposi-tive of the appeal, we address it first.

      . See 29 U.S.C.A. §§ 1001-1461 (West 1999 & Supp.2005).

      . Cathey v. Metro. Life Ins. Co., 805 S.W.2d 387, 390-91 (Tex.1991).

      . See also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 145, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (holding that an employee's claim for wrongful discharge based on the employer's desire to avoid contributing to, or paying benefits under, the employee’s pension fund is preempted by ERISA, even though the claims are asserted under tort theories (not ERISA) and seek damages only in the form of lost wages, mental anguish, and punitive damages (not benefits under the plan)); Cathey, 805 S.W.2d at 391-92 (holding that causes of action asserted under the Texas Insurance Code and Deceptive Trade Practices Act were preempted by ERISA because they sought remedies that were not provided by ERISA’s civil enforcement provisions for benefits that were denied pursuant to the terms of their ERISA plan).

      . Camilla does not assert preemption to challenge the law applied to this claim.

      . This consisted of a $2000 payment Alice made to Met Life to settle its counterclaims against her in this suit.

      . See 29 U.S.C.A. § 1132(g) (West 1999) (giving trial court discretion to award reasonable attorney’s fees and costs to either party in any action by a participant, beneficiary, or fiduciary under subchapter I of ERISA).

      . Although Camilla's brief refers to the objections she filed to Haynes’s affidavit, those objections refer globally to five entire paragraphs of the affidavit and merely assert in a conclusory manner that the testimony in those paragraphs is hearsay and fail to include facts showing Haynes’s competence to offer the evidence and establish the proper predicate for the testimony. In addition, the objections assume reliance on the affidavit because it is the only summary judgment evidence offered despite that the policy terms are undisputed.


author: TERRIE LIVINGSTON, Justice.

text:
    RAMAN CHANDLER PROPERTIES, L.C., Villas at Caldwell Creek, Ltd., Caldwell’s Creek, Ltd., Appellants, v. CALDWELL’S CREEK HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2-04-207-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 22, 2005.
    Rehearing Overruled Oct. 13, 2005.

      David R. Casey, Hurst, for appellant.
    Winstead, Seehrest & Minick, P.C.; William Frank Carroll and Thomas B. Alte-rnan, Dallas, for appellee.
    PANELA: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellants Raman Chandler Properties, L.C. (the Managing Partners), Villas at Caldwell Creek, Ltd. (The Villas), and Caldwell’s Creek, Ltd. (the Developer) appeal from a declaratory judgment the trial court granted in favor of appellee Caldwell’s Creek Homeowners Association, Inc. (the Association) in connection with an access easement located in the Caldwell’s Creek Addition (the Addition). After a trial to the court, it rendered judgment in favor of the Association and determined that the easement and common areas were for the sole benefit and exclusive use of the homeowners of the Addition and that therefore the Managing Partners and the Developer had no authority to grant an access easement to The Villas. The trial court also granted the Association its attorneys’ fees under sections 37 and 38 of the civil practices and remedies code. We affirm.

I. Factual Summary

The Developer was the owner of 57.9 acres in the Colleyville area of Tarrant County that it planned to develop for high-end residential use. The Developer is a Texas limited partnership whose general managing partner is Raman Chandler Properties, L.C. (the Managing Partner). According to the plat for the Addition, the Developer dedicated a common area consisting of all “private, open spaces, Lot 39, Block 2 and Median and the 20-foot strip along Lot 41, Block 2 ... as defined in the Deed Restrictions.” These areas were developed with parks, small streams, ponds, and walkways. After various amendments to the plats, the common areas in the Addition consisted of all private open spaces and Lots 39, 40A, and 41A, Block 2 and the median at Caldwell Creek Drive.

From 1994 through 1999 the Developer sold lots in the Addition. In October 1999 the Association was formally incorporated as Caldwell’s Creek Homeowners Association, Inc. In December 1999, however, the Developer executed an easement agreement (the Easement Agreement) granting access to the Addition’s common areas in favor of The Villas, an adjacent development. The Developer for the Addition was also the developer for The Villas. The purported access easement was a twenty-foot easement that ran generally north and south along the east property line of the Addition, along the east edge of Lots 39 and 40A of Block 2 of the Addition, and adjacent to a portion of The Villas. It ran from the north end at John McCain Road to the southeast corner of the Addition where it abutted a railroad right of way forming the lower boundary of the Addition. Under the easement’s terms, the Association remained obligated for all expenses incurred maintaining the common areas, with The Villas assuming the expense and maintenance of a new iron and brick fence along their common border with the Addition. As a result, lot owners in The Villas gained virtually free and uninterrupted pedestrian access from The Villas to John McCain Road over the Addition’s common areas as well as full access and use of the Addition’s common areas. This was so despite the fact that The Villas already had access to John McCain Road over and through its own development and by virtue of its most northerly border that abutted John McCain Road.

After granting the easement, the Developer removed the pre-existing wooden privacy fence along the common border between the two additions. Then, in January 2000 the Developer deeded the lots in the common areas of the Addition to the newly formed Association, but the conveyance was specifically subject to the just-granted access easement in favor of The Villas. Simultaneously, the Developer assigned all of its rights, powers, and authority in the Addition to the Association.

The Association rejected the deed by written notice to the Developer’s Managing Partner. The Association claimed that the property had already been conveyed to it by operation of law when the Association was formed. It claimed it was not subject to the Developer’s newly created Easement Agreement with The Villas and demanded its removal. When the Developer refused, the Association ultimately filed this suit. The case was tried to the court, which rendered judgment for the Association.

II. Issues Presented

In six issues appellants challenge the trial court’s judgment in favor of the Association. In their first issue, they challenge the trial court’s determination that the common areas were for the “sole and exclusive use” of the homeowners in the Addition.

In their second issue, appellants assert trial court error in basing its judgment on “estoppel in pais,” claiming that there were no pleadings to support that theory. Additionally, appellants raise legal and factual sufficiency challenges to the conclusion that estoppel in pais precluded the Managing Partner and the Developer from granting easement rights that affect the Addition’s common areas. Here, appellants challenge findings of fact fifteen and sixteen and conclusions of law nine and ten.

In their third issue, appellants assert that the trial court erred in concluding that the Developer was barred from granting an easement affecting the common areas of the Addition for the use and benefit of The Villas.

In their fourth issue, appellants assert trial court error in finding that the December 17, 1999 Easement Agreement is null and void, thereby voiding the language in the Special Warranty Deed from the Developer to the Addition that made that grant subject to the Easement Agreement.

In their fifth and sixth issues, appellants allege trial court error in awarding the Association its attorneys’ fees under either the declaratory judgments act or chapter 38 of the civil practices and remedies code.

III. Standards of Review

A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827-28, 48 Tex.Sup.Ct. J. 848, 863, (Tex.2005).

If a party is attacking the legal sufficiency of an adverse finding on an issue on which the party had the burden of proof, and there is no evidence to support the finding, we review all the evidence to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex.App.-Fort Worth 1999, no pet.). Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. Mehan v. WAMCO XXVIII, Ltd., 138 S.W.3d 415, 418 (Tex. App.-Fort Worth 2004, no pet.); Rogers v. City of Fort Worth, 89 S.W.3d 265, 277 (Tex.App.-Fort Worth 2002, no pet.); Forbis v. Trinity Universal Ins. Co., 833 S.W.2d 316, 319 (Tex.App.-Fort Worth 1992, writ dism’d).

The trial court filed thirty-six findings of fact and twelve conclusions of law. Appellants have not challenged findings of fact one, two, five, six, ten, fourteen, seventeen, eighteen, twenty, twenty-two, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, or thirty-six or conclusions of law two, five, seven, or twelve. We will so note the effect of this where appropriate to the analysis of the issues raised.

IV. Discussion

A. Overview

Key to a discussion of appellants’ issues on the merits is the central question of when and if a developer loses its right to make adjustments to a dedicated plat of a subdivision and what rights, if any, inure to the benefit of the homeowners who purchase lots within a subdivision during the start-up phase of the development — before the deed restrictions allow for or establish the actual homeowners’ association that will ultimately hold the obligations and duties previously held by the developer. Answers to these questions will establish the framework for our analysis of the issues raised by appellants in this appeal. We turn first to issues one, three, and four, which they discuss together.

B. Restrictive Covenants

We review a trial court’s interpretation of restrictive covenants de novo. Buckner v. Lakes of Somerset Homeowners Ass’n, Inc., 133 S.W.3d 294, 297 (Tex.App.-Fort Worth 2004, pet. denied). We apply general rules of contract construction when construing restrictive covenants. Id.; see also Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). If the covenant has a definite or certain meaning, it is unambiguous as a matter of law. Buckner, 133 S.W.3d at 297.

A restrictive covenant should be liberally construed to give effect to its purpose and intent. Tex. PROp.Code Ann. § 202.003(a) (Vernon 1995). However, doubts should be resolved in favor of the free and unrestricted use of the premises, and any ambiguity must be strictly construed against the party seeking to enforce the restrictive covenant. Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 308-09 (Tex.App.-Fort Worth 2001, no pet.).

Id.; see also Youssefzadeh v. Brown, 131 S.W.3d 641, 644-45 (Tex.App.-Fort Worth 2004, no pet.).

Texas has long recognized the use of restrictive covenants in the development of real estate subdivisions. See Davis v. Huey, 620 S.W.2d 561, 565 (Tex.1981); City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924, 925 (1904). “A subdivision developer is generally free to amend restrictions in covenants for the subdivision prior to the sale of lots in the subdivision, assuming the amendments do not violate public policy.” Youssefzadeh, 131 S.W.3d at 644; see also Hill v. Trigg, 286 S.W. 182, 183 (Tex. Comm’n App.1926, judgm’t adopted). However, the sale of subdivision lots usually triggers amendment mechanisms set forth in the dedication. Dyegard, 39 S.W.3d at 313. When the power to amend the land use restriction is reserved to the developer, the amendment of a restrictive covenant must be in the precise manner authorized by the dedicating agreement. Id.

“Generally, landowners have the unilateral or ‘ex parte’ right ... to impose any restrictions they choose, to alter or cancel restrictions, or to abrogate them in their entirety, so long as no lots ... have been sold.” Id. While in some restrictions the power to amend covenants and restrictions may be reserved to the developer, any amendments must be in the exact manner provided in the dedication. Id. We look to the restrictions to see if three conditions have been met. We must determine who has the right to amend the restrictions and the method for amending them; whether the amendment corrects, improves, or reforms the restrictions rather than destroying them; and whether the amendment is illegal or against public policy. Id.

“A ‘restrictive covenant’ is a negative covenant that limits permissible uses of land.” Voice of Cornerstone Church Corp. v. Pizza Prop. Partners, Inc., 160 S.W.3d 657, 665 (Tex.App.-Austin 2005, no pet.). The covenant attaches and burdens the land in one of two ways: “as a covenant that runs with the land at law or as an equitable servitude.” Id. A covenant runs with the land if 1) it touches and concerns the land, 2) it relates to a thing in existence or specifically binds the parties and their assigns, 3) the original parties to the covenant intended it to run with the land, and 4) the successor to the burden has notice of the restriction/covenant. Id.

When we look at the restrictions for this Addition we see the following language:

[Declarant] does hereby impress upon said property the following restrictive covenants which will run with the land and shall be binding on all persons claiming under it, as well as upon all persons to whom may own, lease or occupy said land or any part thereof for a term of fifty (50) years from the date that this Declaration is recorded. [Emphasis added.]

By section 16 of the restrictions, each lot owner gives the Developer a power of attorney — a unilateral right to perform any act on behalf of other owners for a three-year-period ending on the earlier of the third anniversary of the filing of the plat dedication or when the developer no longer owns lots within the subdivision. Section 17 declares that these covenants and restrictions “shall run with and bind the land ... for a term of fifty (50) years.” Section 18 states that the Developer can make amendments to the plat, covenants, and restrictions during this same three-year-period. After the three-year-period expires, approval of seventy percent of the lot owners is required before any amendment can be effective. Section 26, called “Common Open Space,” includes, but is not limited to, designated parks, common access easements, and common areas provided by the Developer or the Association. Section 27 establishes the homeowners’ association once seventy to ninety percent of the homes are constructed. Mandatory membership in the Association exists for each lot owner. Once the Association is created and the organizational meeting held, the Association “shall be responsible for and assess reasonable and appropriate fees for the maintenance of the Common Open Space.”

The Addition’s amended final replat of September 23, 1994 preserved the prior provisions of the original plat, stating that “[a]ll private open spaces, Lot 39, Block 2 and median and the 20 foot strip along Lot 41, Block 2, will be owned and maintained by the Homeowners’ Association of Caldwell’s Creek Addition as defined in the deed restrictions.” [Emphasis added.]

By the fall of 1999, seventy percent of the lots in the Addition had been sold; the Developer called an association organizational meeting on October 13, 1999 and established an interim homeowners’ association board. The Association’s articles of incorporation were filed on October 14, 1999. The first annual meeting was called November 9, 1999, at which time the officers and board members were elected.

At about this same time, the Developer was in the process of creating The Villas. The Villas development was located along the eastern border of the Addition and was comprised of less expensive, zero lot line patio homes.

In the fall of 1999, the Developer approached the Association about merging with The Villas’ association and giving The Villas access to the Association’s common areas. The Association indicated it would consider a contractual arrangement giving access to its open and common areas to The Villas in exchange for some proportionate responsibility for the maintenance costs of these areas. The Developer never pursued this offer.

Instead, on December 17, 1999 the Developer unilaterally, and without the consent of the Association, executed an easement agreement in favor of The Villas, granting it free and uninterrupted pedestrian access from The Villas to John McCain Road via a twenty-foot-wide strip running in a northerly direction along the eastern edge of the Addition’s common areas. The Easement Agreement was executed by the Developer’s Managing Partner, purportedly on behalf of both the Developer and The Villas. The Developer then removed the pre-existing wooden privacy fence that had segregated the Addition from The Villas. Counsel for The Villas notified the Association of the Easement Agreement by letter dated March 15, 2000 that enclosed a copy of the agreement, notified the Association of The Villas’ (or the Developers’) intent to construct a lower brick and wrought iron fence along its border with the Addition, and warned the Association not to interfere.

Then, on January 21, 2000 the Developer executed a special warranty deed, purporting to convey Lots 39, 40A, and 41A of Block 2 of the Addition, the common areas along the eastern and southern borders of the Addition, to the Association. However, the deed made the conveyance subject to the purported December 17 easement for the benefit of The Villas.

From the record, we can determine that the original dedication and recording of the plat for this Addition occurred on May 9, 1994. Thus, we conclude, as did the trial court in findings of fact ten and eleven, that on May 9, 1997 the three-year-period during which the Developer could amend the plat or the dedication and restrictions without seventy percent of the lot owners’ approval had expired. Thus, by the time the Developer attempted to convey any interest in the Addition to The Villas it had already lost the right to amend the restrictions without at least seventy percent of the homeowners’ approval. Appellants do not contend that they obtained approval of seventy percent of the lot owners for any amendments to the restrictions or authority to convey any portion of or any interest in the lots that had been previously dedicated to or for the use and benefit of the Addition.

Additionally, the record shows that litigation between the Developer and the City of Colleyville regarding Lots 40 and 41, Block 2 had concluded such that those lots had been returned to the subdivision released from the obligation to commit those lots for use as a future park. The Developer filed an amended replat in 1998 returning these lots to their prior use to be “owned and maintained” by the Association. The amended corrected replat filed on January 13, 1999 contains the following language:

All private open space, Lot 39, Block 2 [formerly Lots 40 and 41, Block 2] and Median at Caldwell Creek Drive will be owned and maintained by the Homeowners Association of Caldwell’s Creek Addition as defined in the Deed Restrictions.

Appellants argue that the trial court erred in concluding that the plats, dedication, and restrictive covenants, along with the amended replats, conveyed the common areas to the Association as found by the trial court in conclusion of law one. Appellants contend that these instruments are not instruments of conveyance and that, therefore, the Association does not “own” or control the common areas.

Under these facts, the actual legal ownership of the common areas is irrelevant. The primary issue is whether the Developer, in 1999, retained the right to unilaterally amend the plat or create and burden the common areas for the benefit of a different association by granting it an easement. The answer is “No.” Restrictive covenants that run with the land, such as these, generally burden and govern all lots within the subdivision to which they were intended to apply. See generally Evans v. Pollock, 796 S.W.2d 465, 466 (Tex.1990) (explaining implied reciprocal negative easement doctrine). Additionally, according to Texas statute, express designations establishing the methods for extending, adding, or modifying such restrictions control over other statutory provisions for same. Tex. PROp.Code Ann. § 204.003 (Vernon Supp.2004-05). Thus, only if the Developer followed the specific procedure for amending the restrictions or the plat as set forth in the covenants could it have had the right to create such an easement for the benefit of some entity or owner other than the Association and its lot owners. See Miller v. Elliott, 94 5.W.3d 38, 43 (Tex.App.-Tyler 2002, pet. denied). Unchallenged findings of fact twenty-three and twenty-four find that neither the easement nor the deed were recorded with the required seventy percent approval of lot owners. Thus, conclusion of law six, which invalidates the easement created for the benefit of The Villas, and conclusion of law eight, which invalidates the deed to the Association subject to the easement, are proper.

Additionally, regardless of ownership, the lots comprising the common areas were and are subject to the restrictive covenants created by the original dedication and restrictions as well as any amendments to them. Once an association shows that a plan or scheme exists for the benefit of all lot owners, it has shown a right to enforcement of such covenants and restrictions. McCart v. Cain, 416 S.W.2d 463, 465 (Tex.App.-Fort Worth 1967, writ ref'd n.r.e.). Thus, we agree with the trial court that these lots were dedicated as open space common areas to be maintained for the benefit of the Association and lot owners and at the expense of the Association. Additionally, we note that the trial court concluded in conclusion of law three that when lots are conveyed with “reference to a plat, the designation of any recreational areas for the exclusive use of lot owners become part of the deed by incorporation by reference,” citing Anderson v. McRae, 495 S.W.2d 351, 359 (Tex.App.-Texarkana 1973, no writ). This is a correct statement of law. Issues one, three, and four are overruled.

C. Estoppel in Pais

In appellants’ second issue, they contend the trial court erred in rendering judgment based upon the theory of estoppel in pais because there were no pleadings to support this theory in the Association’s live pleading at the time of trial. Appellants also complain that the evidence is legally and factually insufficient to support the trial court’s conclusion that estoppel in pais “precludes Raman Chandler Properties, L.C. and Caldwell’s Creek, Ltd. from granting easement rights that affect the rights to the common areas in the Caldwell’s Creek Addition, or from granting access rights to others” when the evidence shows purchasers relied on representations regarding the common areas, complaining of findings of fact fifteen and sixteen, and conclusions of law nine and ten.

1. Supplemental Pleading — Procedural Question

Addressing the procedural complaint first, we note that appellants point to the first time the issue of estoppel in pais was specifically asserted: in the Association’s written final argument filed with the trial court. We agree that this was the first time the theory was raised. However, as appellants acknowledge, the Association also filed a supplemental petition on November 10, 2003, a few weeks after trial, that specifically set forth its estoppel in pais theory. Appellants contend, however, that the pleading should be struck because the Association failed to seek leave to file its supplemental answer post-trial as required by rule 63. Tex.R. Civ. P. 63.

Leave to file an amended or responsive pleading is required under rule 63. But rule 63 does not apply to this situation; rule 67 on amendments to conform pleadings to issues tried by consent applies. Tex.R. Civ. P. 63, 67. Rule 67 likewise requires leave to file. Tex.R. Civ. P. 67. However, appellants made no objection to the Association’s trial amendment. Failure to object at trial preserves nothing for review on appeal. Tex.R.App. P. 33.1; Wright v. Pino, 163 S.W.3d 259, 263 (Tex.App.-Fort Worth 2005, no pet.); City of Denton v. Mun. Admin. Servs., Inc., 59 S.W.3d 764, 773 n. 6 (Tex.App.-Fort Worth 2001, no pet.). Further, when it is clear that the parties tried a theory by consent, such as occurred here, we will not disregard it on appeal. See Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 854-55 (Tex.App.-Dallas 2005, pet. denied); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Mitchell v. LaFlamme, 60 S.W.3d 123, 133 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

The Association asserted its es-toppel theory as a bar to appellants’ right to convey the lot owners’ and the Association’s rights away. The Association claimed that appellants made representations to prospective lot owners, who comprise the Association, by virtue of the recorded plats, the deed restrictions, marketing materials, and testimony of one of the lot owners that specified areas would be maintained for the common use and benefit of all the lot owners. In other words, people purchased lots in this particular subdivision in reliance on the proposed development as represented to prospective purchasers in all of these materials. This evidence and testimony were admitted without objection. We therefore conclude that this theory was tried by consent, that the trial court did not err in allowing an amendment to include the estoppel theory, and that we may consider this theory on appeal as well. See Reed v. Wright, 155 S.W.3d 666, 670 (Tex.App.-Texarkana 2005, pet. denied). This portion of appellants’ second issue is overruled.

2. Sufficiency Challenge to Estoppel in Pais Theory

Turning to appellants’ sufficiency complaints, we have defined estop-pel in pais as a principle preventing one party’s conduct — which induces another to act in a particular manner — from allowing it to adopt an inconsistent position and thereby cause loss or injury to another party. Super Wash, Inc. v. City of White Settlement, 131 S.W.3d 249, 260 (Tex.App.-Fort Worth 2004, pet. granted). “The linchpin for equitable estoppel is equity-fairness.” Id. “Estoppel is defensive in character, and its function is to preserve rights, and not to bring into being an independent cause of action.” Alamo Cmty. Coll. Dist. v. Browning Constr. Co., 131 S.W.3d 146, 160 (Tex.App.-San Antonio 2004, pet. filed) (citing Hermann Hosp. v. Nat’l Standard Ins. Co., 776 S.W.2d 249, 254 (Tex.App.-Houston [1st Dist.] 1989, writ denied)).

Appellants complain of legal and factual insufficiency of the evidence to support findings fifteen and sixteen and conclusions of law nine and ten, all relating to the Association’s estoppel theory. Appellants say the evidence does not support the trial court’s conclusions that the lot owners retained the exclusive rights to the common areas and that these exclusive rights were an inducement to prospective buyers to purchase lots in the Addition. Likewise, they contend the evidence does not support a finding that Steve McGee, a lot owner who testified about the representations and factors he considered in purchasing a lot, was induced to purchase his lot based upon the amended plat and what it showed. The record, however, supports the trial court’s findings.

Testimony showed that appellants provided prospective lot purchasers with plats and brochures showing the common areas. Likewise, the plats admitted into evidence showed dedicated common areas for the “use and benefit” of the lot owners. Applying the appropriate legal and factual sufficiency standards of review, we conclude that there is more than a scintilla of evidence to support appellee’s estoppel in pais theory and that the evidence is not so weak or the evidence to the contrary so overwhelming that the answer should be set aside. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Garza, 395 S.W.2d at 823. We overrule appellants’ second issue.

D. Attorneys’ Fees

In appellants’ fifth and sixth issues they challenge the trial court’s award of attorneys’ fees to the Association under both sections 37 — declaratory judgments — and 38 — for claimants for services rendered, labor or material supplied, or breach of oral or written contracts — of the civil practices and remedies code. Tex. Civ. Prac. & Rem.Code Ann. §§ 37.009, 38.001 (Vernon 1997). These issues challenge conclusion of law eleven that awarded the Association its attorneys’ fees under both provisions.

Appellants appear to contend that the Association is not entitled to attorneys’ fees because it had not sought true declaratory relief as described by chapter 37 of the civil practices and remedies code. Id. § 37.009. In particular, appellants contend that the Association did not seek a declaration of its rights under a deed, but only sought to defeat a deed signed by appellants. Additionally, appellants contend that the Association’s efforts to void the deed signed by appellants or to determine the Association’s authority as the proper association in light of appellants’ actions, do not require a declaration of the Association’s rights or authority. We disagree.

The determination of the propriety of an award of attorneys’ fees is a question of law to be determined by the court. Willis v. Donnelly, 118 S.W.3d 10, 45 (Tex.App.-Houston [14th Dist.] 2003, pets. granted). “We review a trial court’s conclusions of law de novo as legal questions.” Hawkins v. Ehler, 100 S.W.3d 534, 542 (Tex.App.-Fort Worth 2003, no pet.); Boyd v. Boyd, 67 S.W.3d 398, 404 (Tex.App.-Fort Worth 2002, no pet.); Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, pet. denied). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Boyd, 67 S.W.3d at 404.

Chapter 37 authorizes courts to determine “rights, status, and other legal relations” and to make such declarations in either an affirmative or negative form. Tex. Crv. PRAC. & Rem.Code Ann. § 37.003(a), (b). A person interested

under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Id. § 87.004(a). This provision, however, is not to be construed as limiting or restricting the exercise of the “general powers conferred ... in any proceeding in which declaratory relief is sought.” Id. § 37.003(c). In such declaratory actions, a trial court has discretion to award attorneys’ fees to any of the parties. Id. § 37.009; Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161-62 (Tex.2004); Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998).

These provisions clearly authorize a trial court to interpret the rights, obligations, and duties of both a developer of a subdivision and the resulting homeowners’ association that is ultimately created under the developer-created plat, restrictive covenants, and deeds. The trial court’s findings of fact clearly set forth and declare the rights of the Developer, the lot owners, and the Association.

For example, finding of fact five finds that “[t]he Dedication and Restrictions set forth the time and manner in which the homeowner’s [sic] association for Caldwell’s Creek Addition was to be formed.” Also, finding of fact six finds that “[p]ursu-ant to the Dedication and Restrictions, easements are reserved as shown on the recorded subdivision plat.” Likewise, findings of fact ten and eleven find that the Developer’s power of attorney to “exercise, or perform any act ... in connection with, or relating to the Dedication and Restrictions .... [or] to sign, execute, acknowledge, deliver, or record any instruments which modified the terms of the Dedication and Restrictions expired” on May 9, 1997. This date is long before the Developer’s December 17, 1999 attempt to create the Easement Agreement granting rights to adjacent landowners of The Villas, by virtue of that purported easement or by the deed executed by the Developer “subject to” such easement. These findings necessarily include a “declaration” of the rights of the Association, the lot owners, and the Developer.

Appellants challenge none of the trial court’s findings of fact that clearly declare the rights, duties, and powers of the parties to this suit and ultimately support the trial court’s conclusion of law eleven — that the Association is entitled to recover attorneys’ fees under the declaratory judgments act. Unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706, 708 (Tex.App.-Fort Worth 2002, no pet.); see also McGalliard, 722 S.W.2d at 696; Reliance Ins. Co., 999 S.W.2d at 629. Since none of the findings that declare the rights of the parties to this litigation are challenged in connection with the award of attorneys’ fees and we conclude that those findings support the trial court’s legal conclusion that attorneys’ fees could be awarded, we conclude the trial court properly granted the Association its attorneys’ fees under the declaratory judgments act. We overrule appellants’ fifth issue.

Under appellants’ sixth issue, they challenge the propriety of any award to the Association for its attorneys’ fees under chapter 38 of the civil practices and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001. We note, however, that the final judgment awarded appellee its attorneys’ fees under both chapters 37 and 38 of the code. Because we have already determined that the award of attorneys’ fees was appropriate under at least chapter 37 of the code as set forth in conclusion of law eleven, it is unnecessary for us to also determine whether the award was appropriate under chapter 38. See Tex.R.App. P. 44.1(a); see also Loaiza v. Loaiza, 130 S.W.3d 894, 904 (Tex.App.-Fort Worth 2004, no pet.). Because the judgment for attorneys’ fees is supportable under at least one of the Association’s theories, we overrule appellants’ sixth issue.

V. Conclusion

Having overruled all of appellants’ issues on appeal, we affirm the judgment of the trial court.

      . Raman Chandler Properties, L.C. was one of the named defendants in the trial court below. We note, however, that both Raman Chandler Properties, L.C. and Raman Chandler Properties, Inc. have executed documents that were admitted at trial by the Developer.
      Neither party has challenged Raman Chandler Properties, L.C.’s role or capacity in this litigation, so we do not address any issue relative to that parly’s participation in the case.

      . Although appellants failed to designate which conclusions they were challenging in this issue, we interpret this issue as a challenge to conclusions of law one and three.

      . Although appellants failed to designate which conclusions they were challenging in this issue, we interpret this issue as a challenge to conclusions of law four, six, and eight.

      .Although appellants failed to designate which conclusions they were challenging in this issue, we interpret this issue as a challenge to conclusions of law six and eight.

      . The record does not reflect when each of the lots was sold or whether they were all ever sold. Thus, we will presume the three-year-period ran on May 9, 1997 since the parties agree on that date as being “the earlier” date upon which the Developer’s right to amend the plat expired. In any event, trial court’s finding of fact four states that the dedication and restrictions for the Addition were filed on May 9, 1994, and agreed to an unchallenged finding of fact ten states that the Developer’s authority to exercise the power of attorney contained within the dedication expired on May 9, 1997.

      . The trial court instructed the parties to submit their closing arguments to the trial court in written form.