Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00048-CV

FDP, LP and Larry Friesenhahn,

Appellants

v.

Robert MARX and Debbie Marx,

Appellees

From the 218th Judicial District Court, Wilson County, Texas

Trial Court No. 17-07-0416-CVW

Honorable Polly Jackson Spencer, Judge Presiding1

Opinion by: Liza A. Rodriguez, Justice

Sitting: Luz Elena D. Chapa, Justice

Beth Watkins, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: March 23, 2022

AFFIRMED

FDP, LP and Larry Friesenhahn (collectively “FDP”) appeal from the trial court’s

judgment in favor of Robert and Debbie Marx. We affirm.

The factual background of the dispute between FDP and the Marxes is detailed in our 

previous opinion, Marx v. FDP, LP, 474 S.W.3d 368 (Tex. App.—San Antonio 2015, pet. denied).

After mandate issued in the previous appeal, the Marxes executed a Warranty Deed with Vendor’s 

1

Sitting by assignment 
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Lien, which contained an option to purchase the Marxes’ homestead property. The deed, which 

conveyed 417.355 acres to FDP, contains the following option provision:

Option: Grantor [the Marxes] hereby grants to Grantee [FDP] the exclusive option 

to purchase the Homestead Property, described on the attached Exhibit “C,” for the 

price of $500,000.00, for the period of 120 days from the earlier of: (i) written 

notice from the Grantor; (ii) the death of the last surviving Grantor; (iii) or the 

expiration of eight (8) years [from] the effective date of this Warranty Deed with 

Vendor’s Lien.

Thereafter, FDP sued the Marxes for breach of contract,2 alleging that Robert Marx had removed 

fixtures from the Homestead Property and had announced that he intended to remove additional 

fixtures from the property. FDP alleged that it sought “an order of specific performance ordering 

[the Marxes] to perform the agreements made with [FDP], including but not limited to preserving 

the property [that] is the subject of the exclusive option agreement, and to maintain security over 

the premises.” FDP further prayed for permanent injunctive relief over “any farm and ranch 

improvements or fixtures on or about” the Homestead Property. In response to the lawsuit, the 

Marxes filed a counterclaim, seeking declaratory relief under the Texas Uniform Declaratory 

Judgments Act. They further alleged (1) FDP had no standing to bring its claims, and (2) the 

doctrine of merger by deed barred FDP’s suit. 

The Marxes then moved for partial summary judgment, arguing first that the doctrine of 

merger by deed barred FDP’s breach of contract claim because the “Pre-Judgment Agreements”3

that were entered into before the first lawsuit and appeal were merged into the subsequent warranty 

deed filed by the Marxes. The Marxes further argued that because an option provision in the 

warranty deed does not give FDP a legal or equitable interest in the Homestead Property, FDP 

2

Larry Friesenhahn also sued Robert Marx for assault and fraud but nonsuited those claims before the jury trial. 3

These agreements included the original “Farm and Ranch Contract,” the “Mediated Settlement Agreement,” the 

arbitration ruling and confirmation of arbitration award.
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lacked standing to bring its breach of contract claim. After considering the Marxes’ motion, the 

trial court granted partial summary judgment in favor of the Marxes and decreed the following: 

1. That [FDP] take nothing on [its] claims for damages or injunctive relief based upon 

any breach of the Pre-Judgment Agreements, as that term is defined [in] the [Marxes’s 

motion for partial summary judgment], as such claims are barred by the [d]octrine of 

[m]erger.

2. That [FDP] take nothing on [its] claims for monetary damages based upon damage to 

the personal property and/or real property to be conveyed, if and when [its] option is 

exercised, as [FDP] do[es] not have a legal or equitable interest in the [Marxes’] 

property sufficient to provide standing to recover monetary damages for its loss.

3. That [FDP is] not entitled to injunctive relief to preserve the personal property and/or 

real property to be conveyed, if and when [its] option is exercised, as [FDP has] not 

legal or equitable interest in that property sufficient to provide standing to obtain 

injunctive relief for its protection.

After the trial court granted partial summary judgment, the remaining issue of attorney’s fees was 

decided by a jury. The trial court then signed a final judgment that incorporated its partial summary 

judgment and awarded the Marxes attorney’s fees pursuant to section 37.009 of the Texas Civil 

Practice and Remedies Code in the amount of $41,709.38 for trial, with additional attorney’s fees 

to be paid if FDP appealed.

On appeal, FDP argues the trial court erroneously granted summary judgment in favor of 

the Marxes. According to FDP, “[a]s a matter of law, the Marxes do not have the right to destroy 

or remove the real property covered by the option, and FDP has standing to sue for the destruction 

and threatened destruction of the Homestead Property.” In support of this assertion, FDP first 

argues the holder of an option to purchase property has “the right to compel a sale of property on 

the stated terms before the expiration of the option.” Riley v. Campeau Homes (Tex.), Inc., 808 

S.W.2d 184, 188 (Tex. App.—Houston [14th Dist.] 1991, writ dism’d pursuant to agreement). 

Second, FDP argues “[a]n option to purchase land creates an interest in land.” Madera Prod. Co. 

v. Atlantic Richfield Co., 107 S.W.3d 652, 600 (Tex. App.—Texarkana 2003, pet. denied in part, 
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pet. dism’d in part). Third, FDP argues that an optionor fails to perform his obligations under the 

deed if his actions prevent the completion of the sale. See Colligan v. Smith, 366 S.W.2d 816, 820 

(Tex. Civ. App.—Fort Worth 1963, writ ref’d n.r.e.). 

We agree with the general proposition that FDP, at the time the option period is triggered, 

may compel the Marxes to sell the Homestead Property as stated in the option provision in the 

warranty deed before expiration of the option period. See Riley, 808 S.W.3d at 188. We further 

agree that “[o]ne who owns an option to purchase real property most certainly has an ‘interest’ in 

specific land not possessed by members of society in general.” Hitchcock Props., Inc. v. Levering, 

776 S.W.2d 236, 238 (Tex. App.—Houston [1st Dist.] 1989, writ denied). However, as explained 

by the supreme court, “[a]n option agreement does not pass title or convey an interest in property.” 

N. Shore Energy v. Harkins, 501 S.W.3d 598, 605 (Tex. 2016) (per curiam) (emphasis added). 

Finally, we agree with the “general rule that an optionor who has given the right to purchase 

property within a specified time may not commit any act or omit to perform any duty calculated 

to cause the optionee any delay in exercising the right.” Colligan, 366 S.W.2d at 820.4 However, 

these general statements of law cited by FDP simply do not support FDP’s assertion that the 

Marxes owe a duty to not remove or destroy any fixtures on the Homestead Property before the 

option period is triggered. We note that FDP has not cited any caselaw supporting this specific 

assertion. 

4

For example, in Elliott v. Lewis, No. 05-91-01216, 1994 WL 709333, at *1 (Tex. App.—Dallas 1994, no writ), the 

parties executed a residential lease agreement with an option to purchase the property after the one-year lease 

terminated. At the end of the lease and prior to the option period ending, the optionor wrote a letter to the optionee’s 

lenders that “troubled both lenders,” causing the lenders to worry the optionor was no longer willing to sell her 

property. Id. at *2. The optionor then told the optionee that she was still willing to sell, but that she would not sign 

anything to reassure the lenders, resulting in the optionee failing to secure financing until after the option period ended. 

Id. The optionee then sued for specific performance. Id. at *3. The court of appeals held that the optionee’s failure to 

tender the purchase price during the option period was excused because of the optionor’s actions. Id. at *5. The court 

noted that an optionor “may ‘not commit any act or omit to perform any duty’ that would cause the optionee not to 

exercise the option.” Id. (quoting Colligan, 366 S.W.2d at 820).
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“An option contract has two components: (1) an underlying contract that is not binding 

until accepted, and (2) a covenant to hold open to the optionee the opportunity to accept.” N. Shore 

Energy, 501 S.W.3d at 606 (quoting Faucette v. Chantos, 322 S.W.3d 901, 908 (Tex. App.—

Houston [14th Dist.] 2010, no pet.)). An option contract involving real estate typically gives the 

optionee the right to elect to purchase the property at stated terms within a specified period of time, 

but with no obligation to do so. Lefevere v. Sears, 629 S.W.2d 768, 770 (Tex. Civ. App.—El Paso 

1981, no writ). As such, an option contract is considered unilateral in nature and does not become 

a binding, bilateral contract unless and until the prospective buyer exercises the option. Colligan, 

366 S.W.2d at 820; see N. Shore Energy, 501 S.W.3d at 606 (explaining that option contract is not 

binding until accepted). Because it is not binding until accepted, an option contract does not pass 

title or convey any interest in the property at the time it is formed. N. Shore Energy, 501 S.W.3d 

at 605; Knox v. Brown, 277 S.W. 91, 94 (Tex. [Comm’n Op.] 1925). It merely gives the optionee 

the option to purchase property or execute a lease within a certain time period. Knox, 277 S.W. at 

94; Faucette, 322 S.W.3d at 907.

In applying these legal principles, we conclude the option provision in the warranty deed 

does not grant possession or title of the Homestead Property to FDP. The option provision merely 

gives FDP the option to purchase the Homestead Property at a certain time. See N. Shore Energy, 

501 S.W.3d at 606. While FDP’s option to purchase the Homestead Property gives FDP “an 

‘interest’ in [the Homestead Property] not possessed by members of society in general,” Hitchcock,

776 S.W.2d at 23, it does “not pass title or convey an interest in property,” N. Shore Energy, 501 

S.W.3d at 605 (emphasis added). We note that FDP urges us to analyze an option contract in the 

same manner as a life estate, where a life tenant has the obligation to upkeep and repair the real 

property and owes a duty not to destroy the property. See Knopf v. Gray, 545 S.W.3d 542, 546 

(Tex. 2018). However, when a person grants another a life estate in his property, he retains a 
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reversionary interest in the property. See El Dorado Land Co. v. City of McKinney, 395 S.W.3d 

798, 802 n.7 (Tex. 2013). In contrast, an option contract does not pass title or convey an interest 

in property. N. Shore Energy, 501 S.W.3d at 605. Thus, the duties a life tenant owes are not 

comparable to the facts presented here.

We find no support for FDP’s assertion that the Marxes owe any duty to not remove fixtures 

until the option period is triggered. Accordingly, we conclude FDP has no standing to bring its suit 

against the Marxes. See N. Shore Energy, 501 S.W.3d at 606 (holding that “because an option 

contract does not grant possession or title to property, even if the Option Agreement had granted 

North Shore the exclusive option to explore the land, North Shore would not have standing to sue 

Dynamic for trespass because North Shore does not have a possessory interest in the land via the 

Option Agreement”). 

CONCLUSION

Having determined that FDP has no standing as a matter of law to bring its lawsuit against 

the Marxes, we need not consider the other independent ground in support of the summary 

judgment, the doctrine of merger. Further, we need not consider FDP’s alternative issue regarding 

the award of attorney’s fees. We affirm the trial court’s judgment. 

Liza A. Rodriguez, Justice