Opinion filed October 8, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-18-00288-CV

__________

DAYSTON, LLC, Appellant

V.

JONATHAN D. BROOKE, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CV-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, 

declared the Agreement void, and ordered the earnest money returned. We affirm.
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Factual and Procedural History

On October 24, 2017, Appellant, as the seller, and Appellee, as the buyer, 

executed the Agreement for the purchase of real property. The Agreement described

the lands 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 

Exhibit A.” Exhibit A further described the land as:

3379 FM HWY. 913 STEPHENVILLE, TX 76401

To Include:

Legal: Acres: 8.290, 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 BABCOCK 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 convey the new legal address once completed. 

Appellee filed a motion for summary judgment asserting that the Agreement 

was void under the statute of frauds 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 occasions. 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 Agreement, which satisfied the statute of 
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frauds. 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 description 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 that 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. 

TEX. R. CIV. 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 incorporated the land survey, was sufficient to 

satisfy the statute of frauds. 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 challenges the timeliness of Appellant’s response to the motion for 

summary judgment below and argues that the land survey and other attached 

extrinsic evidence are not properly before this court 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 of proof and must show that there is no genuine issue of 
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material fact as to an essential element of the claim, which entitles the party to 

judgment as a matter of law. TEX. R. CIV. 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 nonmovant, 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 

court 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 responses at least seven days before the summary judgment hearing, unless 

the court grants leave to file it later. TEX.R.CIV. 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. Appellant’s 

amended response intended to cure an omitted exhibit.

We 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 responses. The trial 

court’s final judgment states that 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 before this court for review.
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We now turn to Appellant’s first issue, whether the Agreement contained a 

sufficient legal description of the property to satisfy the statute of frauds. To be 

valid, a contract for the sale of real property must satisfy the statute of frauds; the 

contract must be in writing and signed by the person to be charged. TEX. BUS. &

COM. CODE ANN. § 26.01(a), (b)(4) (West 2015); TEX. PROP. CODE ANN. § 5.021 

(West 2014). Because the statute requires a signed writing, the 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.

denied) (“Even when ‘the record leaves 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 636, 637 (Tex. 1983) (citing Morrow, 477 S.W.2d at 539). Courts 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 not sufficiently describe the property to be conveyed, then the 

conveyance violates the statue of frauds and is voidable. Pick, 659 S.W.2d at 637; 

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.—
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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 metes and bounds, it must furnish 

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 statute of frauds is not satisfied. For example, an unidentified 

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 statue of frauds).

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 of 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” and 
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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. 

Biship, 223 S.W.2d 222, 223 (Tex. 1949) (contemplating “my property,” “my land,” 

or “owned by me” as descriptive 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 744, 747 (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 County).

Here, the Agreement appears to contemplate three separate tracts of land in a 

single conveyance. The Agreement lists the lands, separated by a series of commas 

and a conjunction, as two street addresses and an 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 Babcock or as described on attached exhibit, also 

known as Exhibit A.” On its face, “+/- 81.50” acres 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 acres, 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, Appellant 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 and intent of the parties will not give validity to [an

agreement].” Id.
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Second, Appellant argues that the survey 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 legal 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” at the time the Agreement was executed as 

required under supreme court precedent. Pick, 659 S.W.2d at 637 (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 described 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 ruling that the extrinsic evidence offered by Appellant was 

inadmissible and in declaring that the Agreement is void under the statute of frauds. 

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 because 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 TEX. R.

APP. P. 47.1.
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This Court’s Ruling

We affirm the judgment of the trial court.

KEITH STRETCHER

JUSTICE

October 8, 2020

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

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

sitting by assignment.