## In the Court of Appeals Second Appellate Distr ict of Texas

at Fort Worth

___________________________ No. 02

- 18

- 0005 6

- CV

____ _______________________

_ ______________________ _ __ _ On Appeal from the 4 15th Dist rict Court Parker Co unty, Texas Trial Court No. CV15

- 1444

Before Sud derth, C.J. ; Kerr, J., and Gonz alez, J

. 1 Memorand um Opin ion by Visiting Judge Ruben Gonzalez , Sitting by Assignme nt

1 T he Hon ora ble Ruben Gonzalez, Jud ge of the 432 nd Distric t Court of Tarrant C ounty , sittin g by a ssignment o f the Chief Just ice of the Texas Sup reme Court pursuant to S ection 74.003(h) o f the G overnment C ode. S ee T ex . G o v’t C ode A nn . § 74 .003(h). 

### G EORGE 

### M ANOR 

### , Appellant

V


### . J UDY 

### I ONE 

### M ANOR 

### , Appellee2 MEMORANDUM OPINION ON REHEARING Appellant George Manor filed a motion for rehearing of our October 17 , 2019 memorandum opinion and judgment. We deny the motion but withdraw our prior opinion and substitute the following in its place. With the exception of a paragraph added to address one of George’s arguments, our opinion otherwise
remains un change d.
T his case arises from a land dispute b etween ex

- spouses . In six issues , Appellant Geor ge Manor appeals the trial court ’ s denial of his motion f or traditional
summary jud gment on the affirmative defense of the statute of frauds and t he trial

court ’ s gr a nt of summary judgment in Appell ee Judy M anor ’ s favor on her claim for
bre ach of contract. We aff irm the trial court ’ s judgment in both resp ects. Background As part of their 2 014 di vor ce, George and Judy di vided their community
intere st i n almost 3 00 acr es of land situated in Park er County. The pa rties ’ d ecree awarded approxi mat ely 123 acres to Judy. 2 I n 2015, the parties negotiated a sale b y Judy of 32 acres of the divided land to George. On June 19 , 201 5, t he y e xecu ted a

2 In a sepa rate suit filed and decided after the parties entered into the contra ct at issue , the tria l cou rt found t he decree ambiguous and resolved the amb iguity in George ’ s favor. In r

e Manor , No. 07

- 16

- 0 014 3

- CV, 2018 WL 14154 07, at *4 (Tex. Ap p.

— Amarillo Mar. 21, 2018, pet. denied) (mem. op.) . I n doing so, the division of the land was sligh tl

y altere d

. Id

. As the parties do not dispute in the instant proceeding t hat Judy was awarded approx imately 123 a cre s in the divorce , w e will not d well o n the nua nces o f the division as address ed by our sister court in the separate proceedi ng.3

F arm and Ranch Contract ( here inafter “ the Contract ” ) which described the subject
land as: “ The land sit uated in the county of Parker, Texa s, descr ibed as follows: House and 32 acres out of 123+/

- acres TR: BLK: SU RV: TEX AS & P ACIFIC R.R.

o r as de scri bed on attached exhibit, also k nown as 2300 Cox Road, Millsap, T X
76066

. ” The C ontra ct stated that an aerial photo was attached and was to be

c ons idered as part of the parti es ’ agreement ; in fact, a Goog l e Earth photograph signed by both George and Judy and dated June 19, 2015 , was a ttache d to th e Contract

. We have attached the aerial photo as Exhibit A to this opinion. The
Co ntract requi red a $35,000 earnest

- money d eposit by G eo rg e an d provi ded the
foll owing remedies in the event of def ault:
15
. DEFAULT : If [George] fails to compl y with this contract, [George] will be in default , and [Judy] may (a) enforce sp ecific performance, seek such other relief a s may be provided by law, or both , or (b) te rminate thi s contract and receive the e arnest mone y as liquidated damages, thereby relea sing b oth parties from thi s contract. T h e Contract also allowed for add iti onal da m ages if any party “ wrongfully ” failed or refused to sign a re lease of the e scrow money: 18. ESCROW:
D. DAMAGES: Any par ty who wrongfully fails or refuse s to s ign a r elease acceptable to the escrow agent within 7 days of rec eipt of the request wi ll be liabl e to the other party for liquidated damages in an amount e qual to the sum of: (i) three times the amount of the earnest m oney; (ii ) th e earnest money; ( iii ) reasonab le att orney ’ s fees; and (iv) all costs of suit.4

The Contract set a closing date of July 6, 2015, and stated that if either party
failed to c lose the sale by the closing date , “ the non

- defaulting party may e xercise the
remedies contain ed in Paragraph 15. ” The p arties did not close on July 6, 2015.
Ac cording to Judy, George repeatedl y delayed the closing

. In Septem ber 2015, J udy
d emanded release of the ear ne st money in lieu of speci fic performance ; G e orge refused to s ign any such release and instead expre ssly d irected the t itle company not

to release the earnest mon ey. In Novembe r 2015, Jud y su ed G eo rge f or breach of contract , 3 alleg in g fraud and malice on his p art and seeking actual da mages, exem plary damages, and attorney ’ s fees. George filed a gene ral de nial and asserted a defense of the statute of frauds. Both parties moved for s ummary judgment

— the trial court granted Judy ’ s motion
and den ied George ’ s. The parti e s agreed to the amount of actual damages to be awarded to Judy ($35,000) and agreed t o try the issue of attorney ’ s fees by affidavit
and w ritten submi ssions , aft er w hich the trial court awarde d Judy $31,405 in attorney ’ s f ees . A final judgment reflecting the trial court ’ s rulings wa s entered in February
2018. This a ppeal followed.

3 Ju dy la ter amende d h er petition to add a claim for tortious interf eren ce with contract , which she nonsuited a fter winn ing sum mary judgm ent on her breach

- o f

contrac t claim

. It is not relevant to this appeal.5 Dis cussion George brings six issues on ap peal , divid e d into two sections. In his f i rst set of
issues , George app eal s the trial court ’ s denial of his motion for summary judgment
because , in hi s view, the Contract is un enfor ceable because it does not satisfy the

stat ute of frauds. In his second s et of issue s, he argues that even if the C o ntract is
enfo rceable, we mus t reverse the trial court’s order granting Judy ’ s summary judgment
motion and remand the cause to the trial co urt because Judy failed to establis h her
ri ght to the $35,000 in earnest m oney as a m atter of law

. I. Sta ndard of r eview applicab le to tradition al summary judgments
In a summar y judgment case, t he issue on appeal is whether the movant met the summary ju dgment burden by establishing that no genui ne issue of material fact
exist s and that the movant is entitled to judgm e nt as a matter of law . Tex. R. Civ. P. 166a(c); Mann Frankfor

t Stein & Lipp Adv isors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de nov o. Trav elers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010).
We take as t r ue all evidenc e favor able to the nonmov ant, and we indulge eve ry reasonable infe rence and resolve any doubts in the nonmovant’s favor. 208 01, Inc. v.
Parker , 249 S.W.3d 392, 399 (Te x. 2008); Provident Life & Acci dent Ins. C o. v. Knott , 128 S.W.3d 211, 21 5 (Tex. 2003). We con sider th e evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmova nt if reasonable jurors could and d isregard ing evidence contrary to the no nmovant unl ess6

reasonable jurors could not

. Mann Frankfo rt , 289 S.W.3d at 848. W e must consider
whether reasonable and fa ir

- minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal

- Mart Stores, Inc. v. Spates , 1 86 S.W.3d 5 66, 568 (Tex. 2006); City of Ke l ler v. Wilson , 168 S. W.3d 802 , 822

– 24 ( Tex. 2005).
Uncontrove rted evidence from an interested witness does nothing more than raise a
fact issue unless it is clear, positive , and dir ect; otherwise credible and fre e from

con t radictions and inconsistencies; and could have been readily c ontroverte d.
Morrison v. Christi

e , 266 S.W.3d 89, 92 (Tex. App.

— Fort Worth 2008, no pet.) (citing
Tex. R. Civ . P. 166a(c); Trico Techs. Corp. v. Montiel , 949 S.W.2d 308, 310 (Tex. 199 7))

. The summary judgment will be affirm e d only if the record establis hes that t he
movant has conclusiv ely proved all essential elements of the movant’s cause of action
or defense as a matter of law. City of Housto n v. Cle ar Cr eek Basin Auth. , 589 S.W.2 d 671, 678 (Tex. 1979).
When , as here, bo t h parties move for summary ju dgme nt and the trial court grants one motion and denies the other, the reviewing court should review both
part ies’ summary judgment evidence and determin e all questions presented. Man n Frankfort , 289 S.W.3d at 848. The revie w ing court shou ld render the j udgm ent th at the trial court shou ld have rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n , 300 S. W.3d 746, 753 (Tex. 2009); Mann Fra nkfort , 289 S.W.3d at 848.7

II. George ’ s statute - o f

- frauds a ffirmative defense
G e orge ’ s first four issues rela te to the denial of his motion fo r summary judgment. They allege (1 ) that the Contract ’ s property description does not satisfy the
statute of frauds, (2 ) that the insufficient property descripti on cannot be cured by
affidavit s and testimony, (3) that the insufficient property description cannot be cured by documents prepared after the Contract was signed , and (4) that Jud y did not produce eviden ce to supp ort the application of a n exception to the statute of fr auds.
Because we hold that the pr operty description is sufficient to satisfy the statute of frauds, we overrule George ’ s first issue and do not reach his third and fourth is sues . See Tex. R. App. P. 47.1. Bec ause some parol e vi dence is properly consider ed in our analysi s , see Tex. Buil

ders v. Keller

, 928 S.W.2d 479, 4 81 (Tex. 1996) , we overrule George ’ s second issue. We will address George ’ s firs t and second issue s tog ether

. A. Applicabl e law
Geor ge wa s entitled to summary j udgment on his statute

- of

- fra uds affirmative
d efense if he co nclusively prove d all the element s of the affirmative defense. S ee Chau
v. Ri ddle , 254 S.W.3d 453, 4 55 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c). To

ac complish t his, George was required to present summary judgment evid ence that
establ i she d each eleme nt of the affirmative defense as a ma tter of law. See Chau , 254 S.W.3d at 455 ; Ryland Grp., Inc. v. Hood , 924 S.W.2d 120, 12 1 (Tex. 1996).
A c on t ract for th e sale of real estate is subject to th e statute of frauds. Tex.
Bu s. & Com. Code A n n. § 26.01(b)(4 )

. It must sufficiently describe the property8

being sold , a nd the sufficiency of t he de scr iption is a quest ion of law. A IC Mgmt . v. Crews , 246 S .W.3d 640, 645 (Tex. 2008); Anderson Energy Corp. v. Dominion Okla. Tex. Expl. & Prod. , 469 S. W .3d 280, 295 (T ex. App.

— San Antonio 2015, no pet

. ). A real

estate contract sufficiently describes the subject property if enou gh information appears in the descript ion, or in a docu m ent it refers to, for the pro pe rty to be
identified with rea sonable certa int y. Davis v. Mue ller

, 528 S.W .3d 97, 101 (Tex. 20 17) ; see also Butler v. Benefield

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

— Dallas 1979, writ ref ’ d n.r.e.) ( “ The purpose o f a d es cription i s to ‘ afford a mean s of identifi cation , ’ not necessarily to i dentify. ” ( qu oti ng Krueger v. W .K. Ewing Co. , 139 S.W.2d 836, 839 (T ex. Civ. App.

— El Paso 1940 , no w rit ) )

. Texas courts have rec ognized that a property can be i dentified with r e asonabl e ce rtaint y if the descriptio n identifies the general area of
the land and contains inf ormation about t he property ’ s size, shape , and bo unda ries.
Ardmore , Inc. v. Rex Grp. , 377 S.W.3d 45, 56 (Tex. Ap p.

— Houston [1st Dist.] 2012, pet. denied).

“ If enough appears in the d escription so that a party familiar with the locality

c an identify t he premise s with re asonable certainty, it will be su ffi cient. ” Gates v.
Asher , 280 S.W. 2d 247, 248

– 49 (Tex. 19 55) ; May v. Buck , 375 S.W.3d 568, 574 (Tex. App.

— Dalla s 2012 , no pet.). The tr ial court may consider e vidence to determine
whether “ a perso n fam ili ar with the area can locate the premises with rea sonable certainty. ” May , 365 S.W.3d at 574 (citing Apex Fin. Co rp. v. Garza , 155 S.W.3d 230, 237 (Tex. App.

— Dall as 2004 , pet. den ied) ). In this respect, p arol e vidence may be9

used to explai n or clarify the written agreeme nt but not to supply the essentia l terms.
Tex. Builders , 928 S.W.2d at 4 81 (citing Morrow v. Shotwell , 477 S.W.2d 538, 5 41 (Tex. 1972) ). For example, “ a contract that provides for sale of ‘ my r a n ch of 2200 acres ’ is sufficient, where e xtr ins ic evidence shows that the granto r owned one r anch, which
indeed contained 2200 ac res . ” Id. at 481

– 82. B. Application
W e will ad dress George ’ s argument s in two se ctions

. F irst , we will consider George ’ s ar gument that the Contract ’ s identificatio n o f the “ attached exhibit ” is ambiguous. Second, w e will address his argument that the property description is
insufficient even if w e c onsider the aerial photo as part o f the prop erty description.

1
. The aeri al photo as the “ attached exhibit ” George a r gues that there is no evidence that the “ attached exhibit ” as re ferred
to in the Contract ’ s written description is the a erial photo we have attached as Exhibi t A

. Essen tially, Ge orge urges us to hold that the C ontract ’ s reference to an “ attached
exhibi t ” is ambiguous as a matter of law. We disagree and reject this contention. In doing so, we keep in mind that our primary concern in construi ng a c ontract is to ascerta i n the par ties ’ true inten tions as expressed in t he ins trument. Coker v.
Coker , 650 S. W.2d 391, 393 (Tex. 1983) . To do so, we are to “ examine and consider the entire writing in an effort to harmonize and give effect to all th e provisions o f the

contract s o that no ne will be rende red meanin gless. ” Id. If the c ontract is so worded
that i t can be given a c ertain or definit e legal meaning o r interpretation, then as a10

matter of law it is not ambiguous. Id. I f, on the other han d , the c ontract ’ s meaning is

“ u ncertain and doubtful ” or reasonably susceptible to more than one meaning, the

c ont r a c t is ambiguous. Id. (emphasis added).
With this i n mind, we consider the provision s of the Contract. Paragraph 2.A. , on the first page of the Contrac t, des cr ibes the la nd as t he “ [ h ] ous e and 32 acres out
of 123 +/

- acres ” in the “Texa s & Pacific R R ” su rvey, located at “ 2300 Co x Road, Millsap, TX 76066 ” in Parker County, and “as described on attached exhibit. ” On
page eight of the C ontract, two ad de ndums are designate d: an “[a] e rial photo ” and a
min eral addendum. The parties do not dispute that the aer ial pho t o we have attached

as Exhibit A was attached to the Contract

— through his affidavit attached to his
second motion for tr aditional summary judgm ent , George auth ent icated a c o py of the
Contract with t hat photo att ached

. Despite this, George now ar gue s that because the aerial phot o is not explic itly labe led as the “ attached exhibit , ” there is no evidence that
it was in tended to be the “ attached exhibit ” referred to i n the prop erty d escript ion in
par agraph 2 .A. George ’s argument c onflicts with th e a forementioned ru le s o f construction by asking us to find multiple provisions of the Contract meaning less. See id. We decl

ine
to do so

—

we must consider the Contr act as a whole , i ncluding the attach ed aerial photo, and we must harmon i ze the provisions d esc ribing the prope rt y by
in corporating the “attached exhibit ” (the aer ial photo) to su pplement that d escription

. See id. ; cf. In re 24R, Inc. , 324 S .W.3d 564 , 567 (Tex. 2 010) (orig . proceeding)11

( “ Do cuments incor p orated into a contract by reference become pa rt of that

contract. ”) . We may als o consider that both parties signed the aerial photo

co ncurrently with the Con tract i tself. In re Prudential Ins. Co. of Am

. , 148 S.W .3d 124,
1 35 (Tex. 2004) (orig. proceeding) ( re citing t hat agreeme nts executed at th e s ame time, with the same purpose, and as part of t he s a me transaction, are construed together)

. And finally, w e can consider Judy ’ s affidavit testimony stating that the

ae rial pho to was attached t o the Contract in or der to identify t he property

. 4 In do ing

so, we are not supplying essential terms of t he Contr ac t but are instead using this parol evidence to explain and clar ify the written agreement
. See Tex. Builders , 928 S.W.2d at 4 81

. We therefore reject George ’ s ar gument that the a erial photo cannot b e

c onsidered as part of the Contract ’ s property descripti on .

2
. Sufficiency of the property d escription
We continu e our analysis in determining whether the aerial p hoto an d the
p rop erty description in Paragraph 2

. A

. as “ House and 32 ac r es out of 123+/

- ac res T R: BLK: SU RV: TEXAS & P ACIFIC R.R. o r as de scri bed on at tached exhibit, also known as 2300 Cox Road, Millsap, TX 76066 , ” is sufficient as a matter of law

.

4 Judy stated in her summary judgment affidavit, “ On th e s ame day we signed the Farm and Ranch C ontract, George and I both signed an aer ial photog raph
s howi ng the property that would be conveye d to Georg e in the sale. ”12

George attac k s th e Con tract ’s property description in p iecemeal fashion

. H e argues that P ar agra ph 2

. A

. is insufficient because “ 123 +/

- acr es ” and “ House an d 32

acres ” are insufficient ly identified ; and that the a er ial photo ( 1) does not iden tify the
boundaries of th e land to be transferred, ( 2) does n ot sho w where the land is located,
and (3) does not s how the course and distance of t he purported boundaries

. These arguments fail because they take the descript ive elements out o f cont ext and ignore key features of the a e rial ph o to. First , t he identification of the “ 123 +/

- acres ” is not ambiguous. Ge org e even admits in his argument that Ju dy was awarded 123 acres at 2300 Cox Road in the parties ’ divor ce. Contrary to his assertion otherwi se, we may consider this paro l
evidence to clarify the Contract ’ s reference to the 3 2 acres to be sold by Judy. See T ex. Builders , 928 S.W.2d at 4 81 ; May , 3 7 5 S.W.3d at 574

. We therefore reject that portion of his argument.
I n his argument that the written d es criptors of “ 123 +/

- a c res ” and “ House
and 32 acres ” are insu fficient, George m isplaces his reliance on cas es th at a re clearly distinguis hable because they did not bene fit from additional details similar to the ae rial photo and the writt en description including the add ress and s ize of the subject
property
. See Te

x. Builders , 928 S.W.2d at 482 ( holding desc ript

io n o f property in l ease insufficient w here it only identi fied a portion of property owned by lessor and provided no furt her identifica tion of p r operty to be leased); H e ref ord v. Til son , 20 0
S.W. 2d 985, 988

– 89 (Tex. 1947) ( h olding description of property i n lea s e insufficient13

to enforce purchase o ption where it i dentified land only by address and wher e extrin sic evide nce showed it was onl y part of the land owned by the l e ss o r )

. This failure to see the bigger picture continues in Georg e ’ s attacks of the a e rial
p hoto. George argues that the property ’ s boundarie s are not identified in the aerial
p ho to because the white

- outlined area is n ot shaded, labeled, or other wis e de sign ated by wr iting on the aerial photo as the subject property. While this may be a be st
prac t ice, we disagree with his assertion that this is a f atal flaw. Only one area is
outlined on the aerial photo, right in the cen ter of the photo. In comparison , t he

cases tha t George cites as support for this piece of his argument involved leases o r

contr acts for t he sale of multiple tracts of land and with maps attached that outlined multiple tracts of land

. See U.S. Enter s . , Inc. v. Dauley , 535 S.W.2d 6 2 3, 6 31 (Te x. 1976) ( holdin g, in case involving sale of ten tracts of land, that map was not cl ea r in identifying two particular tracts and land subject to sale was not sufficient ly de scribed by contract) ; c

f. Ardmore , 3 77 S.W.3d at 59 (di stinguishing con t rac t fro m D auley on b asis that Ardmore map “consist [ed] only of the property subject to the lea se ’s
pu rchas e option ”)

. 5 It is therefore a reasonable con cl usion that the partie s intended
that the white

- outlined area be the subject of the sale.

5 In suppor t of his argument, George notes that in drafting the parties ’ divor ce decre e, th e ir attorn eys included a map that was shaded and labeled to identify whic h portions of th e 20 0

- acre tract were to be awarded to each party

. This is likewis e distinguish able , a s there were multiple tract s of land at issue and to be awar ded to multiple part

ies , rathe r than t he sale of a single tract of land as in th e instan t case
.14

Similarly, Ge o rge ’ s ar gument tha t the ae rial photo does not show where the
land is located is easily re buf fe d by looking to the written description in the Contract,
p rovi ding a street address of 2300 Cox Road, Millsa p, TX 76066 , for the property.
O nly one road bo rd ers th e whit e
- outlined area in the a erial photo ; it is logical to
conclude that th is is Cox Road

. F in ally, George ’ s argument that the aerial photo does no t show the cour se and length of the s ubject proper ty ’ s boundaries disregards the p resence of a map s cale a t the bottom of the aerial photo

. The scale provides a me ans of measuring the fee t or

met ers of each boundary a s it is drawn on the aerial photo , and the photo provides
landmarks from which those mea surements ca n be made

— most notably, the road to the ho use on t he propert y. Using the scale, for example, one can determ ine the
distance o f t he le ngth of the eastern border , as well as the location of the p roperty ’ s south eastern corner. The rema ining borders can be similarly determined.
Th is is d ifferent from the cases cite d by George. For instance, in Guent h er v. Amer

- Te x Const r uction Co. , the propert

y subject to sale was identified solely through a map that referenced two roads, two fen ces (one of wh ich bordered a park) , and a utility line. 5 34 S .W.2d 396, 396

– 98 (Tex. A pp.

— Austin 1976, no writ)

. The court recognized that two r oad s and the f e nce bor dering the park could likely be found, but the utility line r eferred to was unclear; it was not ide ntified a s a n electric, phone , or gas line. I d. at 398. And even if the u t ility line could be identified, the last boundary

— the
second fence

—

was not ident

i fied in any way. Id. Additionally, there was no way to15

determine th e intended size of the property to be conveyed or the len gth of its
border s . Id. Th e m ap t here fore faile d to adequately define the property. Id.; s ee also Smith v. Griffin , 116 S .W .2d 1 064 , 1066 (Tex. [Comm ’ n Op.] 1938 ) ( holding insufficient a prop erty descr iption that defined a corner of the su bject property a nd
declared that it should be rect a n gu lar in for m but did not provide the length of any of
the boundaries )

. T he subject pr opert

y n e ed ed to be described wit h “ reasonable certainty ” ; a description that identifies the general area of the lan d and contains information about the property ’ s si ze, shape , and bounda ries meets this r equir ement
. See Ardmore , 377 S.W.3d at 56

. Vie wi ng the Con t ract ’ s written description and a erial photo as a whole,
we are able t o determine the location, size, shape, a nd boundaries of the property George intended to pur chase from Judy. We therefore hold that the tr ial court did not err by denying Geor ge ’ s mo tio n for summary judgment and overrule his first and
second issue s . I II
. Judy ’ s breach

- of

- contract claim
In h is second category of issues, George argues th at the t rial court erred by granting summary judgment in Judy ’ s fav or because (1) George did not de fau l t under
the terms of the Contract, (2) J ud y did not terminate the C on tract, and (3) George did not wrongful ly refuse to release the earnest money.
To su cce ed on her claim of breach of contract, Judy was required to show (1)
the ex istenc e of a v alid an d e nforceable contract, (2) that sh e performed or tendered16

performanc e, ( 3) that George brea ched the C ontract , and (4) that she was damage d as
a result of th at breac h. See , e . g. , City of The Colony v. N

. Tex. Mun. Water Dist. , 272 S.W.3d 699, 739 (

Tex. Ap p.

— Fort Worth 2008, pet. dism ’ d). We have rejected George ’ s challenge to the enforceability of the C ontract on the basis of the statu te of frauds , and h e has assert ed no othe r challenge to the
Contract ’ s valid ity or enforceability

. View ing the Con tract a s a whole, w e hold th at the Contract is vali d and enfo rceable.
To show that she performed he r duties under the C ontract, Judy produced
evidence that she provided G eorge with a commitment for title insurance , secur ed a
survey o f the pro perty , deliv er ed th at surv ey to George, and obt ain ed an owner ’ s policy of title insurance

. 6 George did not object to any of this evide nce and does not complain on appeal of any failur e of Judy to perform her d uties under the Con tract. 7 Judy ’ s summary judgment eviden ce est ablished that she performed her duties under
the C ontract.

6 Jud y provided this evidence in the form of her own a ffidavit , an affida vit of the real

- estate agen t, a business

- record affidavit of the surve yor authenticatin g a survey of t he pr operty, an d a business

- record affida vit of the title compa ny authent icatin g the commitment of title insurance and a n owner ’ s policy.

7 In fact, George did not file a response to Judy ’ s second motio n for traditional summary judgment. Even so, Judy wa s req uired to e sta blish legally sufficien t grou nds for summary judgment. See Rhone

- Poulenc, Inc. v. Steel , 997 S.W.2d 217, 22 3 (Tex. 1999) ( re iterating that sum mary judgments must stand on their own merits).17

In her motio n for summary judgment, Judy alle ged that Ge orge brea ched the Contract in two way s: (1) by fa iling to s ign a rel ease of th e earnest money wi thin seven days of re ceiving the rele ase from Judy a nd (2) by failing to cl ose the sale and pay her $ 435,000

. Even v

iewing t he evidence in the light most favor able to George, we a gree

t hat no material fact is sue exists as to whether George breached the Contract by
fa iling to timely close as provided by the Contract ’ s terms. The p ar ties d o not dispute that the closing did not h ap pen on July 6, 2015 , or at any time after that

. George ar gues that t his was not a ma terial br each of the
Contract because the Co ntract did not state that time was of the essence , but his
argument is misp laced. The plain wor ding of the Con tract provide d J udy with a remedy for Ge orge ’s fail ure to close on time , and where a contract is w orded to g i ve

c ertain or definite meaning, w e w ill interpret those words as a matter of law

. Coker , 650 S.W.2d at 393. Paragra ph 9

. A

. expressly state d , “If either party fa ils to close the sale by the C losin g da te, the non

- defaulting party may e xercise t he remedie s contained
in Paragraph 15 , ” and Paragraph 15 provide d that if the buyer (George) fail ed t o comply with the Cont ract, he w ould be in default and the seller (Judy) c ould terminate
the C ontra ct and receive the earn est money as liqu idated damages. The plain wording of this pr ovision establishe d t hat the failure to close the sale on time wa s a def ault
entitl ing th e non

- de faulting party to terminate the Contract and rec o ver t he e arnest
money. See also Capcor at K irbymain, L.L.C. v. Moody Nat ’ l Kir by H ouston S , L.L. C. , 509
S. W.3 d 379, 390

– 9 1 (Tex. App.

— Houston [1st Dist.] 2014, no p et .) ( inte rpretin g a18

clause with an identi cal paragraph 9

. A

. and holding , “ As a matter of con tractual terms

. . . Capcor ’ s failure to deliver good funds acceptable to the e scrow agen t by the la st day t he contract fixed for closing unequivocally permitted M oody Kirby to ter minate
the contract and obt ain the earnest money. ” ) ; Limestone Gr p
. , Inc. v . Sai Th ong, L.L. C. , 107 S.W.3d 793, 797 (Tex. App.

— Amarillo 2003, no pet.) (def ining “ def

ault ” as

c o nnoting “ a mere failure, omission, or breach, ” and “ eschew[ing] attempt[s] to af fix

wor ds of qualification or measure to it, such as substantial or materia l ” ).
A lternativ ely, George argues on appeal that Judy waived any requirement o f timely c losing by repeate dly agreeing to postpone the closing. But George never p leaded or argued waiver in t he tr ial court, so he has failed to preserve this argument.
Se e Tex. R . App. P. 33.1 ( a ) (1)(A) ; see also Tex. R. Evid. 103 ( a) ( 1) , Tex. R. Civ. P.
166 a (c) (“ Issues not express ly presented to the trial court by written motion, an swer or other res ponse shall not be considered on appeal as grounds for reversal. ”)

. We

t he re fore r eject thi s argument. In his motion for rehearing, George asserts that we neglected to address his argument that Judy failed to establish that she terminated the Contract. We disagree. Judy provided evidence that

— after George defaulted by failing to close

— she demanded the rel ease of the earnest money, as permitted by paragrap h 18C of

t he Contract and which stated, “Upon termination of this contract, either party . . . may send a release of earnest money to each party and the parties shall execute19

counterparts of the release.” Judy provided, in her summary judgment evidence,

c o pies of letters demanding the release of the earnest money, at least one of which expressly stated, “Mr. Manor has breached the contract and is refusing to sign the Release of Earnest Money.” Judy therefore established her termination of the
Cont ract aft er George’s default. Finally, r elying on P aragraph 18

. D

. , G eorge argues th at in order to establish a
b reach , Judy was required to establish that George “ wr ongfully ” failed or re fused to sign the release. We disagree

. If Judy had recovered the t r eb le da mages perm itted by
P aragraph 18. D., she might have been required to make that showing, but Judy did

not recover those damages . J udy only rec over ed the $35,0 00 e arnest money and her
attorney ’ s fee s. Judy was permitted b y P aragraph 15 to reco ver th e earnes t mon ey,

a nd by showing that George breached the C ontract by failing to timely close, she was permitted to recover he r attorney ’ s fees. S e e Tex. Civ. Prac. & Rem. Code Ann. § 38.001( 8 )

. Even v iew ed in the li ght most favorable to George as the non mov ant, as we

are re quired to do , Judy estab lished Georg e ’ s breach of the Contract as a matter of
law. A ccording to the unambiguous provisions of the Contract, Judy was therefore
enti tled to receive the $35,000 in earnest money as damages , as well as her att orney ’ s fees. Th e trial court did not err by rendering summary judgment in Judy ’ s fa vor , a nd we overrule George ’ s fifth and sixth issue s .20 Conclusion Having ove rruled George ’ s disp ositive issues on ap peal, we a ffirm the trial

court ’ s judgment and lift the st ay previously ordered by thi s court
.
/s/ Ruben Gonzalez Ruben Gonzalez Visiting Judge
Delivered: December 31, 201921 

# EXHIBIT A22