COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAKE ROBERT MCGEHEE, A/K/A J. 

ROBERT MCGEHEE; AND JAMES 

THOMAS STEWART, A/K/A TOMMY 

STEWART, A/K/A JAMES THOMAS 

STEWART III, INDIVIDUALLY AND

AS PERSONAL REPRESENTATIVE OF 

THE ESTATE OF LYNN MCGEHEE 

STEWART AND AS TRUSTEE OF 

THOSE CERTAIN TRUSTS

ESTABLISHED UNDER THE STEWART 

REVOCABLE LIVING TRUST, U/T/D 

AUGUST 22, 2003,

 Appellants,

v.

ENDEAVOR ACQUISITIONS, LLC,

 Appellee.

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No. 08-18-00166-CV

Appeal from the 

143rd District Court

of Reeves County, Texas

(TC# 16-09-21663-CVR)

O P I N I O N

Appellants Jake Robert McGehee, a/k/a J. Robert McGehee (McGehee); and James 

Thomas Stewart, a/k/a Tommy Stewart, a/k/a James Thomas Stewart III (Stewart), Individually 

and as Personal Representative of the Estate of Lynn McGehee Stewart and as Trustee of Those 

Certain Trusts Established Under the Stewart Revocable Living Trust, u/t/d August 22, 2003 

(collectively, “Appellants”) appeal from a take-nothing judgment in favor of Appellee Endeavor 
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Acquisitions, LLC (Endeavor). Appellants contend that the trial court erred by granting 

Endeavor’s motion for summary judgment declaring enforceable a Purchase and Sale Agreement 

(PSA) between the parties, denying Appellants’ contrary motion for summary judgment, and 

awarding Endeavor attorney’s fees. We affirm.

I. BACKGROUND

In November 2015, Endeavor sent a solicitation letter to Appellants offering to purchase 

certain property they owned in Reeves County, Texas. Appellants each owned an undivided 40 

acres of surface estate out of a 160 acre portion of described property. Appellants also collectively 

owned one-half of the bonus and royalty interest under an oil and gas lease then existing on the 

property’s mineral interest. With its mailing, Endeavor included a transmittal letter, two original 

PSAs, six original General Warranty Deeds (three for each Seller), and two IRS W-9 forms. The 

letter signed by Endeavor’s president instructed that, if the terms of the offer were acceptable to 

Appellants, they should sign and date the enclosed PSA and General Warranty Deeds in front of a 

notary public, retain a copy of the originals for their own records, and return the remaining 

executed originals in the prepaid envelope supplied with the mailing. Also, Endeavor advised 

Appellants that, upon receipt of the executed documents, it would commence its title review of the 

identified property.

By its opening lines, the enclosed PSA stated that the agreement was entered into between 

Endeavor, defined as “Buyer,” and McGehee and Stewart, jointly defined as “Seller.” As Buyer, 

Endeavor offered to purchase the entirety of Appellants’ surface and mineral interest for a total 

purchase price of $185,000. The terms further provided that upon Endeavor’s receipt of executed 

originals of the PSA and the Warranty Deeds it would be permitted thirty days to review title to 
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the property. A closing would take place five days after expiration of the title review period, 

unless Endeavor, in its sole discretion, extended the review period and delayed the closing as 

reasonably necessary to properly conduct the required title review. The PSA also contained

representations stating that it “has been duly executed and delivered on behalf of each of the parties 

and constitutes their legal and binding obligations enforceable in accordance with its terms” and 

that, “[a]t Closing, all documents and instruments required to be executed and delivered shall 

constitute legal, valid, enforceable, and binding obligations of the parties.”

On receipt of the PSA, McGehee and Stewart each crossed out the purchase price amount 

of $185,000, inserted $200,000 instead, and initialed their changes. They then executed and 

returned the originals to Endeavor without any further changes. Most significantly, Appellants 

did not alter the term “Seller,” as used throughout the PSA, to include both McGehee and Stewart

jointly. Appellants additionally executed and returned the original Warranty Deeds that Endeavor 

had supplied. Those deeds stated by their recitals that the grantor “do[es] hereby grant, bargain, 

sell, convey, transfer, assign and deliver” to Endeavor all of the grantor’s right, title, and interest 

in the described property.

Additional activity took place for several months afterward. In January 2016, Endeavor 

informed Appellants that it was extending the title review period and resetting the closing date to 

a date on or before March 9, 2016. In February 2016, Endeavor filed the executed Warranty 

Deeds in the property records of Reeves County, Texas. In March 2016, Endeavor sent each 

Appellant a check in the amount of $100,000. Appellants, however, informed Endeavor that it 

had refused to negotiate the checks that were tendered, contending that the PSA required payment 

of $200,000 for each individually. Endeavor disagreed on the ground that the PSA expressly 
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defined the term “Seller” as encompassing both McGehee and Stewart, and specifically provided 

that the “total Purchase Price shall be $200,000[.]”

After the original checks expired, Endeavor sent Appellants each a second check, dated 

April 21, 2016, in the amount of $100,000. These checks, like the original checks, stated that 

they were “VOID AFTER 45 DAYS.” Forty-five days following April 21, 2016 fell on June 5, 

2016.1 McGehee deposited his check with his bank on May 31. On June 6, that bank notified 

him that the check was returned for insufficient funds, but that it was redepositing the check for 

his benefit. On June 15, McGehee’s bank informed him that the redeposited check was returned 

because of a stop payment order. Stewart deposited his check with his bank on June 3. But on 

June 8 he learned that it was returned because of a stop payment order.

Endeavor acknowledges that it stopped payment on June 6 on Stewart’s check and on June 

9 or 10 on McGehee’s check, because the 45-day period had ended, and the checks had expired. 

Endeavor states that it was not aware that Appellants had deposited the checks when it stopped 

payment.

Endeavor tendered payment to Appellants a third time by initiating two wire transfers of 

$100,000 each, one to McGehee on July 22, 2016, and one to Stewart on August 1, 2016. 

Appellants reversed and refused to accept the funds. By affidavit, the president of Endeavor 

asserted that he communicated to Appellants that the company remained ready, willing, and able 

to pay the agreed purchase price of $200,000.

1 The actual 45th day following April 21, 2016, was June 5, 2016. Because that day was a Sunday, the 45th day was 

effectively the last banking day, which was June 4, 2016. The parties both use June 4, 2016, as the relevant expiration 

date.
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Appellants filed suit against Endeavor in September 2016, seeking a judgment that declared 

the PSA and Warranty Deeds invalid because Endeavor breached the PSA by failing to tender the 

stated consideration. They requested that the court remove a cloud on their title created by the 

PSA and Warranty Deeds. Appellants later amended their petition to request rescission of the 

Warranty Deeds. Appellants requested an award of attorney’s fees under the Declaratory 

Judgments Act.

In answer to Appellants’ claims, Endeavor raised affirmative defenses including waiver 

and estoppel. Endeavor also asserted a counterclaim requesting a declaration that the PSA is a 

valid and enforceable contract providing for a total purchase price of $200,000. Like Appellants, 

Endeavor also requested an award of attorney’s fees under the Declaratory Judgments Act.

Endeavor then moved for partial summary judgment, asserting as grounds that (1) the PSA 

is an enforceable contract, (2) the total purchase price under the PSA is $200,000, (3) the stop 

payment orders do not constitute a breach of the PSA, (4) Appellants are not entitled to rescission, 

and (5) Endeavor is entitled to recover attorney’s fees, in an amount to be determined. Appellants 

countered with their own summary judgment motion, asserting as their sole ground that the PSA 

is void and unenforceable because Endeavor did not deliver to them an executed copy of the PSA 

at or prior to a closing (which never occurred) or prior to stopping payment on the second set of 

tendered checks. Endeavor did deliver an executed PSA to Appellants, but not until after this 

lawsuit was filed.

Appellants amended their pleadings twice more before the summary judgment hearing. 

At the time of the hearing, they sought a variety of declarations concerning the validity and 

enforceability of the PSA. Appellants also asserted claims for breach of contract, rescission, 
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removal of a cloud on title, and attorney’s fees. In addition, they asserted that Endeavor is 

estopped from claiming that the PSA is a valid and enforceable contract.

After the trial court heard and considered both sides’ summary judgment motions, 

responses, replies, and evidence, the court signed an order denying Appellants’ motion and 

granting Endeavor’s motion on all claims and issues except the amount of Endeavor’s attorney’s 

fees. After considering the attorney’s fee issue by submission, the court signed its final judgment 

on August 16, 2018. In that judgment, the court ordered that Appellants take nothing on their 

claims against Endeavor, declared that the PSA is a valid and enforceable contract providing for a 

total purchase price of $200,000, and awarded Endeavor attorney’s fees in the sum of $51,046, 

plus contingent fees on appeal. This appeal followed.

II. DISCUSSION

Appellants raise three issues on appeal. They assert that the trial court erred as a matter 

of law by granting Endeavor’s motion for summary judgment and awarding attorney’s fees, and 

by denying their own cross-motion for summary judgment. As a foundation of their arguments, 

Appellants argue that the PSA is not a valid and enforceable contract.

A. Standard of Review 

1. Motions for Summary Judgment

Summary judgments are reviewed de novo. Mann Frankfort Stein & Lipp Advisors, Inc. 

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Provident Life & Accident Ins. Co. v. Knott, 128 

S.W.3d 211, 215 (Tex. 2003). A party moving for traditional summary judgment has the burden 

to establish that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. Mann, 289 S.W.3d at 848; TEX. R. CIV. P. 166a(c). “[A] defendant who 
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conclusively negates at least one essential element of a cause of action or conclusively establishes 

all the elements of an affirmative defense is entitled to summary judgment.” KCM Fin. LLC v. 

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).

“When both sides move for summary judgment and the trial court grants one motion and 

denies the other, we review the summary judgment evidence presented by both sides and determine 

all questions presented.” Mann, 289 S.W.3d at 848. And where, as in this case, “the trial court’s 

order does not specify the grounds for its summary judgment, we must affirm the summary 

judgment if any of the theories presented to the trial court and preserved for appellate review are 

meritorious.” Knott, 128 S.W.3d at 216. 

2. Entitlement to Attorney’s Fees

“It is an abuse of discretion to award attorney’s fees under the Declaratory Judgment Act 

when the statute is relied upon solely as a vehicle to recover such fees.” Crews v. Dkasi Corp., 

469 S.W.3d 194, 203 (Tex. App.—Dallas 2015, pet. denied). “A trial court abuses its discretion 

if it acts without reference to any guiding rules and principles such that the ruling is arbitrary or 

unreasonable. But a trial court has no discretion in determining what the law is or applying law 

to facts.” Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019) (citations and internal quotation 

marks omitted).

B. Issues One and Three: Whether the trial court erred in granting Endeavor’s motion 

for summary judgment while denying Appellants’ cross-motion for summary 

judgment

Appellants contend in their first issue that the trial court erred by granting Endeavor’s 

motion for summary judgment. They contend in their third issue that the trial court erred by 

denying their motion for summary judgment. Because the motions, in large part, sought opposing 
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declarations concerning the validity of the PSA, we will address the first and third issues together.

1. Contract Formation

a. Signature and Delivery

With their primary argument, Appellants contend that Endeavor’s failure to deliver an 

executed PSA to them at or prior to a formal closing renders the PSA void and unenforceable. In 

opposition, Endeavor contends that longstanding contract law supports its position that the PSA is 

valid and enforceable, regardless of when, or even whether, it delivered an executed copy to 

Appellants. We begin with the applicable, fundamental principles of contract law. 

A contract is established when proven by a preponderance of evidence that an offer is 

accepted, accompanied by consideration. Excess Underwriters at Lloyd’s, London v. Frank’s 

Casing Crew & Rental Tools, Inc., 246 S.W.3d 42, 71 (Tex. 2008). Parties form a binding 

contract when the following elements are present: (1) an offer, (2) an acceptance in strict 

compliance with the terms of the offer, (3) meeting of the minds, (4) each party’s consent to the 

terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. 

Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 

2002, pet. denied). Relevant to the subject matter at issue, the statute of frauds requires a contract 

for the sale of real estate to be in writing and signed by the party to be charged with the promise 

or agreement. See TEX. BUS. & COM. CODE ANN. § 26.01(b)(4); Copano Energy, LLC v Bujnoch, 

593 S.W.3d 721, 729-30 (Tex. 2020) (“To satisfy the statute of frauds, it is not enough that the 

writings state potential contract terms, . . . [t]he writings must evidence the agreement . . . so that 

the contract can be ascertained from the writing.”).

As for the elements of a contract, “[w]here an offer prescribes the time and manner of 
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acceptance, those terms must ordinarily be complied with to create a contract.” Padilla v. 

LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Of note, a purported acceptance that changes a 

material term of an offer results in a counteroffer rather than acceptance. Amedisys, Inc. v. 

Kingwood Home Health Care, LLC, 437 S.W.3d 507, 513–14 (Tex. 2014). Indeed, contracts 

require mutual assent, which, in the case of a written contract, is generally evidenced by the 

signatures of the parties and delivery with the intent to bind. Baylor Univ. v. Sonnichsen, 221 

S.W.3d 632, 635 (Tex. 2007). “But while signature and delivery are often evidence of the mutual 

assent required for a contract, they are not essential.” Phillips v. Carlton Energy Grp., LLC, 475 

S.W.3d 265, 277 (Tex. 2015). 

In Wright v. Hernandez, we set out relevant contract principles on which Appellants in part 

rely: 

• “[T]he absence of a party’s signature does not necessarily destroy an otherwise valid 

contract and is not dispositive of the question of whether the parties intended to be 

bound by the terms of a contract.” 

• “[W]hen the terms of the contract make it clear that a signature is required, a party’s 

failure to sign the agreement will render the agreement unenforceable.” 

• “Conversely, when there is no evidence in the record to suggest that the parties intended 

for a signature to be a condition precedent to the signing of an agreement, then a party’s 

failure to sign the agreement does not render the agreement unenforceable, as long as 

it appears that the parties otherwise gave their consent to the terms of the agreement.”

• “[A] parties’ [sic] intent to be bound by a contract may be evidenced by its conduct at 

the time a contract is drafted and by its subsequent conduct reflecting that it was acting 

in accordance with the terms of the contract.”

469 S.W.3d 744, 757-58, 760 (Tex. App.—El Paso 2015, no pet.).

As explained by the Texas Supreme Court, “Texas law recognizes that a contract need not 

be signed to be ‘executed’ unless the parties explicitly require signatures as a condition of mutual 
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assent. If a written draft of an agreement is prepared, submitted to both parties, and each of them 

expresses his unconditional assent thereto, there is a written contract.” Phillips, 475 S.W.3d at 

277; see Mid-Continent Cas. Co. v. Glob. Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010) 

(contract need not be signed to be executed); W. Techs., Inc. v. Omnivations II, L.L.C., 583 S.W.3d 

786, 793 (Tex. App.—El Paso 2019, no pet.) (contract may be accepted other than by signature; 

unsigned contract may be binding if parties mutually assent to terms). As this Court recognized 

in Omnivations, “[w]e must read the terms of the purported contract itself to decide whether an 

offer was conditioned on certain criteria or not.” Id.

Here, the record establishes that Endeavor made a written offer to Appellants to purchase 

their interest in the subject property for a total purchase price of $185,000. The terms of the offer 

were contained in the PSAs included with Endeavor’s transmittal letter. By means of its letter, 

Endeavor indicated that Appellants should sign the PSAs and Warranty Deeds before a notary 

public and return the executed originals if the offer was acceptable. We concluded in Lujan v. 

Alorica, 445 S.W.3d 443, 449 (Tex. App.—El Paso 2014, no pet.), that instructions of this nature 

manifested a requirement that a party accept an offer only by signing it. Specifically, the offeror 

in Lujan instructed, “[i]f the above is agreeable to you, please sign and date below and return to 

Human Resources.” Id. The offeror twice more required acceptance by signature, once by 

characterizing the offeree’s signature as “a condition of accepting this offer of employment,” and 

again by stating that the offer letter, “when signed by you, sets forth the terms of your 

employment[.]” Id.

On review, we conclude that the solicitation letter of Endeavor prescribed the method by 

which Appellants could accept the enclosed offer to purchase their property. Although Appellants 
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generally followed Endeavor’s instructions, they did not accept the initial offer but instead made 

a counteroffer by striking out the original purchase price of $185,000 and changing it to $200,000. 

See Amedisys, 437 S.W.3d at 513–14 (“Under the common law, an acceptance may not change or 

qualify the material terms of the offer, and an attempt to do so results in a counteroffer rather than 

acceptance.”). The question that arises next, then, is whether Appellants in turn prescribed the 

method by which Endeavor could accept their counteroffer. In contrast to Endeavor’s separate 

letter of instruction, Appellants do not contend on appeal that they prescribed the method of 

acceptance by any means other than the terms of the PSA itself. Consequently, the question at 

hand is narrowed to whether there is any language in the PSA requiring that Endeavor accept 

Appellants’ counteroffer only by signing the PSA and delivering an executed copy to Appellants. 

In other words, we next consider whether there is any language in the PSA requiring Endeavor to 

sign it as a condition precedent to its validity. See Mid-Continent Cas., 323 S.W.3d at 157–58.

Appellants point to the following language in the PSA as requiring Endeavor to execute 

and deliver the PSA before it has any binding effect: 

This Agreement has been duly executed and delivered on behalf of each of the 

parties and constitutes their legal and binding obligations enforceable in accordance 

with its terms. At Closing, all documents and instruments required to be executed 

and delivered shall constitute legal, valid, enforceable, and binding obligations of 

the parties.

Following our review of the highlighted text, however, we disagree. Nothing in the 

language prescribes a particular method required for Endeavor’s acceptance of Appellants’ 

counteroffer or requires Endeavor’s signature and delivery of the PSA as a condition precedent to 

its validity. See Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992) (“A condition 

precedent is an event that must happen or be performed before a right can accrue to enforce an 
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obligation.”). The first sentence of the quoted provision is a representation that the PSA has been

duly executed and delivered by each of the parties and constitutes their binding obligations. It 

does not state that the PSA must be executed and delivered by each of the parties in order to 

constitute their binding obligations. Stated conversely, it does not direct that the PSA is not 

binding unless it is executed and delivered by each of the parties. Similarly, the second sentence 

quoted above is a representation that documents required to be executed and delivered shall 

constitute valid and enforceable obligations at closing. It does not state that the PSA is valid and 

enforceable only if it is executed and delivered at closing. 

Unlike the offer in Lujan, or even Endeavor’s original offer, the PSA does not state that 

Endeavor’s signature is a condition of accepting the offer or that the PSA sets forth the terms of 

the parties’ agreement only when signed by Endeavor. See Lujan, 445 S.W.3d at 449. 

Therefore, the PSA does not supplant general contract law governing acceptance of an offer by 

means other than signature and delivery. See Phillips, 475 S.W.3d at 277; Mid-Continent Cas., 

323 S.W.3d at 157; Omnivations, 583 S.W.3d at 793; Wright, 469 S.W.3d at 760.

In sum, there is no language in the PSA requiring that Endeavor accept Appellants’ 

counteroffer only by signing and delivering the PSA, and no evidence that Endeavor’s signature 

and delivery are conditions precedent to the PSA’s validity. See Mid-Continent Cas., 323 S.W.3d 

at 157–58. The trial court correctly concluded that Endeavor’s failure to sign and deliver the PSA 

did not render it invalid and unenforceable. This does not end our analysis, however, because 

Endeavor still bore the affirmative duty of establishing that the PSA is valid and enforceable. 

b. Manifestation of Assent

Although Endeavor was not required to sign and deliver the PSA in order to accept 
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Appellants’ counteroffer, it was still required to accept the counteroffer by manifesting assent to 

its terms. See Phillips, 475 S.W.3d at 277; Mid-Continent Cas., 323 S.W.3d at 157-58; Lujan, 

445 S.W.3d at 448-49. Endeavor contends that it did so by tendering payment of the $200,000 

purchase price.2 We agree.

Endeavor’s original offer was to pay a total purchase price of $185,000 for the property of 

both McGehee and Stewart. Appellants’ counteroffer, as reflected by their alteration of the 

amount of the purchase price, required a total purchase price of $200,000. As Appellants did not 

change the definition of “Seller,” which encompassed both McGehee and Stewart jointly, the 

counteroffer required a sum of $200,000 in total, not $200,000 each. Further, Appellants did not 

change any of the other terms originally offered by Endeavor. Endeavor’s tender of the $200,000 

purchase price thus constituted acceptance of Appellants’ counteroffer and completed the 

formation of the PSA as a valid and enforceable contract. See Phillips, 475 S.W.3d at 277 

(contract formed where written draft is prepared, submitted to both parties, and each expressed

unconditional assent); Frank’s Casing, 246 S.W.3d at 71 (“contract is established when . . . offer 

is accepted, accompanied by consideration”). 

Nevertheless, however, Appellants argue that there was no mutual assent to the PSA 

because Endeavor requested a stop payment order on the second set of tendered checks before the 

date on which those checks expired. But, as just discussed, Appellants assented by executing and 

delivering the PSA and Warranty Deeds, and Endeavor assented by tendering the first set of 

checks. The contract was fully formed at that time. See Phillips, 475 S.W.3d at 277; Mid2 Endeavor also manifested assent to the terms of the PSA by letter to Appellants dated January 25, 2016. In that 

letter, Endeavor describes the PSA as an agreement Appellants entered into with Endeavor, and further specifically 

invokes the PSA provision permitting it to extend the review period and reschedule the closing.
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Continent Cas., 323 S.W.3d at 157-58; Lujan, 445 S.W.3d at 448-49. Moreover, in satisfaction 

of the requirements of the statute of frauds, the PSA included all essential elements of the 

agreement to include the signatures of Appellants (as parties to be charged with the promise or 

agreement) so that the contract could be ascertained from the writing without resort to oral 

testimony. See TEX. BUS. & COM. CODE ANN. § 26.01(b)(4); Copano, 593 S.W.3d at 721. 

In sum, Endeavor conclusively established its acceptance of Appellants’ counteroffer and 

mutual assent to the terms of the PSA. The trial court did not err by concluding that the PSA is 

valid and enforceable notwithstanding Endeavor’s failure to sign and deliver it.

c. Necessity of a Formal Closing

In addition to their “lack of signature and delivery” argument, Appellants argue that the 

PSA was not valid and enforceable unless and until the parties conducted a formal closing, at 

which time payment and title would be exchanged. See Bryant v. Cady, 445 S.W.3d 815, 819 

(Tex. App.—Texarkana 2014, no pet.) (describing usual procedure concerning conventional 

contract for sale of realty). Appellants do not cite any authority to support their assertion that 

failure to hold a formal closing on a contract for the sale of real property prevents the formation of 

the contract for sale. Indeed, such an argument defies logic by requiring that the contract be fully 

performed before it can be said to exist. 

In addition, we agree with Endeavor that, in the circumstances of this case, conducting a 

formal closing would have been superfluous. “The law does not require the doing of a vain and 

useless thing[.]” Mackey v. Lucey Prod. Corp., 150 Tex. 188, 239 S.W.2d 607, 608 (1951); see

Ware v. Miller, 82 S.W.3d 795, 804 (Tex. App.—Amarillo 2002, pet. denied). Appellants’ 

obligation under the PSA was to deliver executed Warranty Deeds, which they did. In fact, 
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Appellants urged in their motion for summary judgment that “[e]ach [Appellant] fully performed 

his obligation under the tendered PSAs . . . . Nothing remained to be done by [Appellants].” 

Endeavor likewise performed its obligation by tendering payment of the purchase price. Nothing 

further remained to be accomplished at a formal closing. Accordingly, Appellants’ contention 

that the parties’ failure to conduct a formal closing rendered the PSA invalid is overruled.

d. Conditional Delivery of the PSA and Warranty Deeds 

“When an instrument bearing the signature of one party is delivered with the intent that it 

not be binding until signed by the other party, the existence of the instrument is destroyed by the 

other party’s failure to sign the instrument.” Lujan, 445 S.W.3d at 448-49. Appellants now urge 

that they delivered the executed PSA with the intent that it not be binding until signed by Endeavor. 

They further urge that the existence of the PSA was accordingly destroyed by Endeavor’s failure 

to sign it. See id. Appellants do not, however, identify any summary judgment evidence to 

establish the conditional intent that they now assert. In addition, that intent cannot be fairly 

inferred from the circumstances. 

Appellants do not identify anywhere in the record where they gave any indication, prior to 

filing this lawsuit, that they did not intend their delivery of the executed PSAs to be binding unless 

and until Endeavor also signed each document. On the contrary, the only area of dispute 

identified by Appellants prior to filing suit concerned the amount of the purchase price. Nothing 

in the record supports Appellants’ belated position that, at the time they delivered the executed 

PSAs, Appellants did not intend for them to be binding.3

3 Because Appellants’ execution and delivery of the revised PSA was a counteroffer, their contention that it was not 

binding unless Endeavor signed it is actually just a reiteration of the contract formation argument that Endeavor’s 

signature was the required means of acceptance.
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Appellants similarly argue that the effect of their delivery of the Warranty Deeds was 

limited by their subjective intent. “It is settled that title to transferred property will vest upon 

execution and delivery of the deed.” Stephens Cty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 

261 (Tex. 1974). But a party may overcome the presumption that a deed was delivered with the 

intent that it operates as a conveyance by showing that it was delivered for a different purpose. 

Id. at 262. Appellants assert that they delivered the executed Warranty Deeds with the intent only 

to trigger Endeavor’s title review period, not with the intent that the deeds operate as conveyances. 

The only evidence Appellants cite in support of this assertion is a provision in the PSA itself stating 

that the title review period begins upon Endeavor’s receipt of the executed Warranty Deeds. But 

that provision merely identifies one effect of delivery of the deeds. It does not constitute any 

evidence of Appellants’ actual intent in delivering the executed deeds and therefore does not 

overcome the presumption that the deeds were delivered with the intent that they operate as 

conveyances. See id.

The record demonstrates that Appellants delivered the executed PSA and Warranty Deeds 

to Endeavor unconditionally. Upon delivery, the PSAs were binding on Appellants—as the 

parties to be charged—and the deeds effectively operated as conveyances of Appellants’ property 

interests regardless of whether Endeavor4signed and delivered the PSA to Appellants. The trial 

court correctly concluded that there are no genuine issues of material fact regarding Appellants’ 

intent that preclude the court from granting Endeavor’s motion for summary judgment on the 

validity and enforceability of the PSA. 

4 The PSA was also binding on Endeavor once it accepted Appellants’ counteroffer. Appellants’ argument to the 

contrary notwithstanding, Endeavor has not taken the position that it is not bound by the PSA.
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In addition, because Appellants effectively conveyed their interests in the property by 

executing and delivering the Warranty Deeds, the trial court did not err by granting summary 

judgment that Appellants take nothing on their claim to remove a cloud from their title. See 

Swenson, 517 S.W.2d at 261 (title vests on execution and delivery of deed); Vernon v. Perrien, 

390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet. denied) (plaintiff seeking removal of a cloud 

on title must prove an interest in the property).

In conclusion, the summary judgment evidence conclusively establishes that the PSA “is a 

valid and enforceable contract providing for a total purchase price of $200,000 covering all 

interests conveyed by Plaintiffs to Endeavor[.]” The trial court did not err by so declaring.

Accordingly, Appellants’ challenges to that declaration are overruled.

2. Breach of Contract

Endeavor also sought summary judgment on the ground that stopping payment on the 

second checks issued to Appellants was not a breach of the PSA. Appellants contend that 

stopping payment was a breach of contract and that such breach excused them from any further 

performance under the PSA. See Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 692 (Tex. 

1994) (material breach by one party excuses other party from any obligation to perform). 

Specifically, Appellants argue that Endeavor’s breach relieved them of any obligation to accept 

Endeavor’s third tender of payment. Appellants’ argument is premised on the belief that 

Endeavor stopped payment on the checks before they expired. But the record is to the contrary.

The checks at issue are dated April 21, 2016, and each check states on its face that it is 

“VOID AFTER 45 DAYS.” Accordingly, the checks expired by their own terms on June 4, 2016. 

Each Appellant deposited his check with his bank before that date, but there is evidence that the 
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checks were not presented to Endeavor’s bank for payment until after that date. In any event, 

Endeavor’s president stated in a summary judgment affidavit that he, on behalf of Endeavor, 

stopped payment on Stewart’s check on June 6, 2016, and on McGehee’s check on June 9 or 10, 

2016. These dates, which both fall after the date on which the checks became void, are further 

reflected on the records of Endeavor’s and Appellants’ banks, respectively.

A letter dated June 15, 2016, to McGehee from his bank contains a copy of the returned 

check with a stop payment notation and the date of June 10, 2016. A letter to Stewart from his 

bank, dated June 8, 2016, states that the check was returned on June 7, 2016 due to a stop payment 

order. A second letter to Stewart from his bank, dated June 9, 2016, contains a copy of the 

returned check with a stop payment notation and the date of June 6, 2016. Finally, a stop payment 

report from Endeavor’s bank shows that payment was stopped on McGehee’s check on June 9, 

2016, and payment was stopped on Stewart’s check on June 6, 2016.

Appellants point out that the report from Endeavor’s bank indicates that the origination 

date of the stop payment orders on Appellants’ checks was June 2, 2016. They urge that this 

evidences a breach of contract by Endeavor because June 2 predates the expiration of the checks 

on June 4. But the alleged breach is not the mere filing of a stop payment order—nothing in the 

PSA precludes Endeavor from doing so. The alleged breach, as described in Appellants’ brief, is 

“fail[ing] to make funds available for the purchase,” i.e., actually stopping payment on the checks.

The record conclusively establishes that payment was not actually stopped on Appellants’ 

checks until June 6 for Stewart’s check, and June 9 or 10 for McGehee’s. This demonstrates that 

the stop payment requests filed before the June 4 expiration date were not applied to Appellants’ 

checks until after that date. Those requests therefore did not impact the parties’ rights under the 
19

contract because the checks were already void by their own terms. In other words, even though 

Endeavor’s requests were premature, they did not result in a breach of the PSA by failing to make 

funds available for the purchase because the funds were already unavailable.

The conclusion that Endeavor was not in breach of the PSA leads to the further conclusion 

that Appellants were not excused from performing their obligations under that contract. Cf.

Hernandez, 875 S.W.2d at 692 (material breach by one party excuses other party). Consequently, 

Appellants’ contention that they were entitled to reject Endeavor’s third tender of the correct 

purchase price lacks merit. 

The summary judgment record conclusively establishes that Endeavor did not breach the 

PSA by stopping payment on the second set of tendered checks.5 The trial court did not err by 

granting summary judgment that Appellants take nothing on their claim for breach of contract.

Accordingly, for all the reasons discussed above, Appellants’ first and third issues are 

overruled.

C. Issue Two: Award of attorney’s fees

The Declaratory Judgments Act (“Act”) authorizes a court to “award costs and reasonable 

and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 

37.009. All parties in this case invoked the Act and requested an award of attorney’s fees pursuant 

to its provisions. Nevertheless, in their second issue on appeal, Appellants argue that Endeavor 

is not entitled to attorney’s fees because the true nature of Appellants’ claim is a claim to remove 

a cloud from their purported title. Regardless of how Appellants characterize their claim, 

however, we note that Endeavor clearly asserted its own claim for declaratory judgment after it 

5 Because of these holdings, we need not address the parties’ arguments concerning merger, waiver, and estoppel.
20

had already been served with Appellants’ petition. That claim supports an award of attorney’s 

fees if it is properly cognizable under the Act in light of the claims asserted by Appellants. See 

id.

“A counterclaim that presents no new controversy[ ] but exists solely to pave the way to 

an award of attorney’s fees is improper.” Howell v. Mauzy, 899 S.W.2d 690, 706 (Tex. App.—

Austin 1994, writ denied); see Save Our Springs All., Inc. v. Lazy Nine Mun. Util. Dist., 198 

S.W.3d 300, 318 (Tex. App.—Texarkana 2006, pet. denied). In other words, a party generally 

may not invoke the Declaratory Judgments Act to settle disputes that are already pending before 

the court. BHP Petro. Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding). This 

is sometimes referred to as the “mirror-image” rule. See Washington Square Fin., LLC v. RSL 

Funding, LLC, 418 S.W.3d 761, 776 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Save 

Our Springs, 198 S.W.3d at 318.

The mirror-image rule is not, however, without limitations. “Once a plaintiff claims relief 

under the Declaratory Judgments Act, the mirror-image rule does not prohibit the trial court from 

awarding attorney’s fees even if the defendant’s counterclaim for declaratory relief only duplicates 

the claims already raised.” Save Our Springs, 198 S.W.3d at 318. The rationale is that, because 

a court may award attorney’s fees to either party under the Act, “a defendant that raises a mirrorimage counterclaim in response to the plaintiff’s declaratory-judgment claim cannot be said to 

have raised the counterclaim solely to pave the way for an award of otherwise-impermissible 

attorney’s fees.” Washington Square, 418 S.W.3d at 776; see Castille v. Serv. Datsun, Inc., No. 

01-16-00082-CV, 2017 WL 3910918, at *11 (Tex. App.—Houston [1st Dist.] Sept. 7, 2017, no 

pet.) (mem. op.).
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Appellants in the case before us invoked the Act and sought to recover attorney’s fees 

under that Act in each of its petitions, including the live petition at the time of the summary 

judgment hearing. Appellants also sought declaratory relief and attorney’s fees in their motion 

for summary judgment. It appears from the record that Appellants did not take the position that 

their claim is not one for declaratory relief, and that attorney’s fees are not available, until after the 

trial court issued its adverse summary judgment rulings. 

Endeavor asserted its counterclaim for declaratory relief in response to Appellants’ First 

Amended Original Petition for Declaratory Judgment. Because Appellants had already invoked 

the Act, it cannot be said that Endeavor asserted its counterclaim “solely to pave the way for an 

award of otherwise-impermissible attorney’s fees.” Washington Square, 418 S.W.3d at 776; 

Castille, 2017 WL 3910918, at *11. As a result, even if Endeavor’s counterclaim for declaratory 

relief simply mirrored the claims already raised, its claim for attorney’s fees would not be barred. 

See Save Our Springs, 198 S.W.3d at 318.

Endeavor’s claim for attorney’s fees is also supported by the principle that “a declaratory 

judgment counterclaim [is allowed when it] has greater ramifications than the original suit[.]” 

BHP Petro., 800 S.W.2d at 842. Such is the case when a defensive declaratory judgment presents 

issues beyond those raised by the plaintiff (i.e., does more than simply mirror the plaintiff’s 

claims). Id. at 841. The pleadings here show that Endeavor’s counterclaim presented an issue 

beyond those raised by Appellants.

Regardless of how their claims are characterized, the foundation of Appellants’ lawsuit is 

the contention that the PSA is unenforceable because Endeavor did not sign and deliver it to them 

at or before a formal closing. In responding, Endeavor counterclaimed for a mirror-image 
22

declaration that the PSA is valid and enforceable. But it also requested a declaration that the terms 

of the agreement provided for a total purchase price of $200,000. As discussed above, Appellants 

had previously rejected Endeavor’s tender of $200,000 on the ground that the purchase price was 

actually $200,000 each. While Appellants then attempted to accept a second tender of that 

amount, they later rejected a third tender of the same amount. 

The Act provides that “[a] person interested under a . . . written contract . . . may have 

determined any question of construction or validity arising under the . . . contract . . . and obtain a 

declaration of rights, status, or other legal relations thereunder.” TEX. CIV. PRAC. & REM. CODE

ANN. § 37.004. Appellants’ conduct brought into question the purchase price required by the PSA 

and so warranted construction of that contractual term by means of a declaratory judgment. See 

id. Endeavor’s request to construe this term presented an issue beyond those raised by Appellants, 

which related only to the validity and enforceability of the PSA. Had the court simply denied 

Appellants’ claims, the issue surrounding the purchase price would have remained unresolved and 

subject to further dispute.

6

 We conclude, then, that Endeavor’s declaratory judgment 

counterclaim was properly allowed and supports a grant of attorney’s fees because it had “greater 

ramifications” than Appellants’ original suit. See BHP Petro., 800 S.W.2d at 842; see also First 

City Nat. Bank of Midland v. Concord Oil Co., 808 S.W.2d 133, 138 (Tex. App.—El Paso 1991, 

no writ) (upholding fee award because defendant sought declaratory relief different than that 

sought by plaintiff).

In sum, we conclude that the trial court did not abuse its discretion by awarding Endeavor 

its attorney’s fees. Accordingly, Appellants’ second issue is overruled.

6 Even on appeal, Appellants refer to the purchase price dispute as being unresolved.
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III. CONCLUSION

We conclude that Appellants have not demonstrated error in the trial court’s summary 

judgment rulings or by its award of attorney’s fees to Endeavor. The judgment of the trial court 

is affirmed.

GINA M. PALAFOX, Justice

April 29, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.