Opinion filed October 8 , 20 20



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 8

- 00 2 8 8

- C V

__________ DAYSTON, LLC , Appellant

V. JONATHAN D. BROOKE , Appellee

On Appeal from the 266 th District Court

Erath County , Texas Trial Court Cause N o. C V

- 34805

O P I N I O N
Jonathan D. Brooke (Appellee) sued Dayston , LLC (Appellant) , seeking a declaratory judgment to void a Farm and Ranch Contract (the Agreement) due to an inadequate property description. Appellee also sought the return of earnest money held in escrow. The trial court granted summary judgment in favor of Appellee , declar ed the Agreement void , and order ed the earnest money returned. We affirm.2 Factual and Procedural History On October 24, 2 017, Appellant, as the seller, and Appellee, as the buyer, executed the Agreement for the purchase of real property

. The Agreement describe d
the land s as “[t]he land situated in the County of Erath, Texas, described as follows: 3379 FM Hwy 913, 515 Tennyson Dr, and +/

- 81.50 AC of A0681 Smith Hancock and A0057 DW Babcock or as described on attached exhibit, also known as
Exh ibit A.” Exhibit A further describe d the land as:

3379 FM HWY. 913 STEPHENVILLE, TX 76401

To Include: Legal: Acres: 8.29 0 , A0057 BABCOCK D W; & HOUSE Legal: Acres: 1.740, A0057 BABCOCK D W;

515 TENNYSON DRIVE STEPHENVILLE, TX 76401

To include: Acres: 8.246, S8010 SIMS CREEK SUBD, TRACT 1; Legal: Acres: 10.290, A0057 BABC O CK D W;

81.50 Acres

- Part of A0681 SMITH HANCOCK & A0057 D W

BABCOCK (1.91 ACS) Parcel. *Please note the 81.50 acre parcel is being surveyed and renamed. Title company will co nvey the new legal address once completed. Appellee filed a motion for summary judgment asserting that the Agreement

was void under the s tatute of f rauds because the property description was insufficient

. Appellant argued that the property description was sufficient and that there was a genuine issue of material fact because a person familiar with the area
could locate the land with reasonable certainty, including Appellee , who had visited the land on multiple occas ions. Appellant further argued that the Agreement allowed Appellant to provide a survey “within 5 days of the effective date” of the Agreement and that the survey was referenced by the Agreemen t , which satisfied the s tatute of3

f rauds

. Appellant attached seven exhibits to its amended summary judgment
response : affidavits from Appellant and Appellant’s employee , e

- mails between the parties and their representatives , a land survey, and several illegible copies of
documents

. The trial court granted Appellee’s motion for summary judgment

. It found that the land descriptio n was inadequate, rendering the Agreement void. The trial court also found that the extrinsic evidence offered by Appellee was inadmissible to cure the inadequate description and th at the illegible copies of documents were unauthenticated and otherwise inadmissible. All monies held in escrow were
ordered returned to Appellee. Appellant moved for a new trial on August 22, 2018

. The trial court did not rule on the motion, and it was overruled by operation of law.
T EX

. R. C IV

. P. 329b(c) ( stating that motions for new trial not disposed of by written order within seventy

- five days of a final judgment are considered overruled by operation of law)

. Appellant now raises two issues on appeal. First, Appellant argues that the description in the Agreement , which incorporate d the land survey , was sufficient to satisfy the s tatute of f

rauds

. Second, Appellant argues that the extrinsic evidence
offered in response to the summary judgment was sufficient to create a genuine issue
of material fact as to whether a person familiar with the area could locate the land
with certainty. Appellee challeng es the timeliness of Appellan t’s response to the motion for summary judgment below and argu es that the land survey and other attached extrinsic evidence are not properly before this c ourt for review. Standard of Review We review an appeal from a summary judgment de novo

. Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). The

movant bears the burden o f proof and must show that there is no genuine issue of4

material fact as to an essential element of the claim , which entitles the party t o judgment as a matter of law

. T EX

. R. C IV

. P. 166a(c); Nassar v. Liberty Mut. Fire
Ins. Co. , 508 S.W.3d 254, 257 (Tex. 2017). We review the evidence in the light
most favorable to the non movant, drawing reasonable inferences and resolving all
doubts in the nonmovant’s favor. Nixon v. Mr. Property Mgmt. Co. , 690 S.W.2d 546, 548

– 49 (Tex. 1985). Analysis
We first address , as a threshold issue, Appellee’s argument that Appellant’s summary judgment response below was untimely and , as a result, not before this

c ourt for review. We note that Appellant filed both an untimely response and an untimely amended response. To be timely, a nonmovant must file summary judgment response s at least seven days before the summary judgment hearing , unless the court grants leave to file it later. T EX

. R. C IV

. P. 166a(c). The summary judgment hearing took place on July 18, 2018. Appellant filed the original response on July 12
at 11:18 a

. m

. and the amended response four hours later at 3:11 p

. m. Ap pellant’s amended response intended to cure an omitted exhibit.
W e presume that a trial court does not consider late

- filed evidence without an affirmative showing of acceptance in the record. Benchmark Bank v. Crowder , 919 S.W.2d 657, 663 (Tex. 1996) ; Basin Credit Consultants, Inc. v. Obregon , 2 S.W.3d 372, 374 (Tex. App.

— San Antonio 1999 , pet. denied )

. However, the record contains
affirmative evidence that the trial court did consider Appellant’s response s

. The trial court’s final judgment states tha t the court considered “ all motions [and] pleadings .”
See
, e.g. , Goswami v. Metro

. Sav. & Loan Ass’n , 751 S.W.2d 487, 490 (Tex. 1988) (finding an amended pleading part of the record, despite untimely filing, when the trial court’s judgment stated that all pleadings on file were considered by the court). As such, we conclude that Appellant’s amended response and attached exhibits are properly bef

ore this c ourt for review.5

We now turn to Appellant’s first issue, whether the Agreement contained a sufficient legal description of the property to satisfy the s tatute of f rauds

. To be valid, a contract for the sale of real property must satisfy the s tatute of f rauds ; the

contract must be in writing and sig ned by the person to be charged. T EX

. B US

. &
C OM

. C ODE A NN

. § 26.01(a) , (b)(4) (West 201 5 ) ; T EX

. P ROP

. C ODE A NN

. § 5.021 (West 201 4 ). Because the statute requires a signed writing, t he knowledge and intent of the parties has no effect on the validity of the contract

. Reiland v. Patrick Thomas Props

. , Inc. , 213 S.W.3d 431, 437 (Tex. App.

— Houston [1st Dist.] 2006, pet

. denie d) (“Even when ‘the record leave s little doubt that the parties knew and understood what property was intended to be conveyed, .

. . the knowledge and intent of the parties will not give validity to the contract and neither will a plat made
from extrinsic evidence.’” (quoting Morrow v. Shotwell , 477 S.W.2d 538, 540 (Tex. 1972) ) )

. It is well settled that the writing must furnish “within itself or by reference to other identified writings then in existence, the means or data by which the particular
land to be conveyed may be identified with specific certainty. ” Pick v. Bartel , 659
S.W.2d 63 6 , 63 7 (Tex. 1983) (citing Morrow , 477 S.W.2d at 539 )

. C ourts may construe multiple writings prepared for the same transaction as one contract. See
, e.g. , Wilson v. Fisher , 188 S.W.2d 150, 152 (Tex. 1945) . However, any documents
referred to and incorporated in the contested agreement must be in existence at the
time the parties executed the contested agreement. Boddy v. Gray , 497 S.W.2d 600, 603 (Tex. App.

— Amarillo 1973 , writ ref’d n.r.e. ). If the writing and other identified writings do n ot sufficiently describe the property to be conveyed, then the
conveyance violates the s tatue of f rauds and is voidable

. Pick , 659 S.W.2d at 6 3 7 ; Troxel v. Bishop , 201 S.W.3d 290, 300 (Tex. App.

— Dallas 2006 , no pet.); Eland Energy, Inc. v. Rowden Oil & Gas, Inc. , 914 S.W.2d 179, 186 (Tex. App.

—6

San Antonio 1995, writ denied) (“A contract that fails to meet the requirements of the statute of frauds is not void but is merely voidable. ” )

. Although the writing does not have to list met e s and bounds , it must f urnish data that identifies the property with reasonable certainty. May v. Buck , 375 S.W. 3d 568, 574 (Tex. App.

— Dallas 2012, no pet.). The description must typically “ furnish enough information to locate the general area

. . . by tract survey and county , [and] it need contain information regarding the size, shape, and boundaries.” Reiland , 213
S.W.3d at 437. When it is possible that more than one tract of land fits the description, the s tatute of f rauds is not satisfied. For example, an unidenti fied portion of a larger tract is insufficient

. See
, e.g. , Morrow , 477 S.W.2d at 540 (finding land described as “ [t] he north acreage

. . . out of 145.8 acre tract of the Jefferson McGrew Survey No. 245” insufficient to satisfy the s tatue of f rauds).
Texas courts have likewise held that a street address, standing alone, may be
insufficient if there is uncertainty about the amount of land in the conveyance. See
, e.g. , Friedlander v. Christianson , 320 S.W.2d 404, 407 (Tex. App.

— Houston 1959, no writ ) ( finding a conveyance describing a house by address insufficient because the conveyance did not also specify whether , or how much of, the underlying tract of land was included). However, a street address may be sufficient in other
circumstances when only one tract o f land meets the description. See
, e.g. , Butler v

. Benefield , 589 S.W.2d 778, 780 (Tex. App.

— Dallas 1979 , writ ref’d n.r.e.). The certainty of the description of the land may be aided by parol evidence “only with
certain limitations , ” and “[t]he essential elements may never be supplied by parol.”
Wilson , 188 S.W.2d at 152. Courts allow parol evidence when the writing contains a “nucleus of description”

— or descriptive words that can help clarify the property in question.
See
, e.g. , Smith v. Sorelle , 87 S.W.2d 703, 705 (Tex. 1935)

. The extrinsic evidence
cannot be the sole means to “supply [] the location or description of the land” and7

can only help identify the land “from the data in the [writing] .” Wilson , 188 S.W.2d

at 152 (citing O’Herin v. Neal , 56 S.W.2d 1105 (Tex. App.

— Texarkana 1932 , writ ref’d) )

. For example, courts have held that words of ownership may be used as a nucleus of description to identify land with reasonable certainty. See Pickett v. Bish i p , 223 S.W.2d 222, 223 (Tex . 1949) (contemplating “my property,” “my land,”

or “owned by me” as descripti ve words that allow the use of extrinsic evidence to show that the seller owns only one tract of land matching the description in the writing) ; Sanderson v. Sanderson , 109 S.W.2d 7 44 , 74 7 (Tex. [Comm’n Op.] 1937) (upholding the language “Mrs. Kelton’s farm in Haskell [C] ounty” when
Mrs. Kelton owned only one farm in Haskell C ounty). Here, the Agreement appears to contemplate three separate tracts of land in a single conv eyance. The Agreement lists the lands , separated by a series of commas and a conjunction, as two street addresses and a n estimated number of acres within a larger tract : “3379 FM Hwy 913, 515 Tennyson Dr, and +/

- 81.50 AC of A0681
Smith Hancock and A0057 DW Babco ck or as described on attached exhibit, also known as Exhibit A.” On its face, “+/

- 81.50 ” ac r es is an indefinite amount and insufficient to describe land with certainty. The incorporated exhibit adds little clarity. The exhibit again describes the land as two street addresses , listing the accompanying a cres, and 81.50 acres from two larger tracts of land

. Under Morrow and its progeny, the description of the land is insufficient to identify it with certainty.
See Morrow , 477 S.W.2d at 540. Appellant contends that the insufficient description is cured for two reasons. First, A ppellant argues that the conveyance can be located with reasonable certainty because Appellee “personally visited the property on at least 3 occasions

. ” This argument is unpersuasive and directly opposed to the Texas Supreme Court’s finding
in Morrow that the “knowledge an d intent of the parties will not give validity to [an

a greement].” Id.8

Second, Appellant argues that the su rvey offered as an exhibit to the amended summary judgment response is incorporated into the Agreement by reference because the Agreement declares that “the 81.50 acre parcel is being surveyed and renamed” and that the title company “will convey the new le gal address once completed.” Appellant argues that the referenced survey “was actually already completed on Septembe [sic] 16, 2017 ” and is part of the agreement as a document
in existence. This argument is also unpersuasive. The Agreement specifically states that the “parcel is being surveyed” and that “the new legal address” will be provided “once completed.” The Agreement may contemplate another document, but such
document was not “then in existence ” a t the time the Agreement was executed as required under supreme court precedent. Pick , 659 S.W.2d at 63 7 (citing Morrow , 477 S.W.2d at 539) (requiring incorporated documents to exist at the time of the contested agreement)

. Even if the September survey was the survey contemplated by the parties in the Agreement , the trial court cannot look to parol evidence to supply an essential element of an agreement. Wilson , 188 S.W.2d at 152. Because the conveyance is

not sufficiently describ ed in the Agreement and because the survey referenced in the agreement did not exist in completed form at the time of execution, the trial court

was correct in rul ing that the extrinsic evidence offered by Appellant was
inadmissible and in declaring that the Agreement is void under the s tatute of f rauds. Accordingly, we overrule Appellant’s first issue on appeal. Having determined that the trial court did not err when it refused to consider
the extrinsic evidence offered by Appellant be cause that extrinsic evidence constituted inadmissible parol evidence , we need not address Appellant’s second
issue arguing that the extrinsic evidence offered in response to the summary judgment was sufficient to create a genuine issue of material fact

. See T EX

. R.
A PP

. P . 47.1.9 This Court’s Ruling We affirm the judgment of the trial court.

KEITH STRETCHER
JUSTICE

October 8 , 20 20
Panel consists of: Bailey , C.J., Stretcher, J., and Wright, S.C.J. 1

Wil l son, J., not participating

.

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.