COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NICOLAS FIBELA

,

Appellant

,

v.

KAREN M. WOOD

,

Appellee

. §

§

§

§

§ No. 08

- 20

- 00019

- CV

Appeal from the

County Court at Law Number 6

o f El Paso County, Texas

(TC# 2019DCV1242 )

O P I N I O N

Appellant Nicolas Fibela

, proceeding pro se, appeals the trial court ’ s grant of summary

judgment in favor of Appellee Karen M. Wood

. Fibela raises three issues on appeal. We affirm in

part

, and reverse and remand in part.

I. BACKGROUND

Fibela filed suit against Wood on April 5, 2019, asserting a claim for breach of contract

.

Fibela alleged he and Wood executed

, on February 16, 2015

, a valid and enforceable contract for

the purchase of the real p roperty located at 300 Belva Way in El Paso, Texas (the Property)

.

Fibela ’ s petition alleged he fully performed his contractual obligations, while Wood repudiated on

her performance

, thereby caus ing injury to him. As a result, he sought monetary damages ; and

, in

the alternative, the equitable relief of specific performance of the contract

. Lastly, he asserted both2

the contract terms

, and chapter 38 of the Texas Civil Practice and Remedies Code

, entitled him to

recover attorney ’ s fees.

Fibela attached to his petition a document titled

, “ One to Four Family Residential Contract

(Resale)

, ” signed by both Wood and Fibela. The document indicated the parties to the contract

were Wood (Seller) and Fibela (Buyer). It listed the property address and stated the sale price as

$130,000 ($15,000 to be paid by cash at closing and $115,000 to be seller financed). The closing

date was set for April 10, 2015. At closing, Wood agreed she would deliver to Fibela a general

warranty deed conveying title to the P roperty

. In turn, Fibela agreed he would pay the cash portion

of the sales price an d execute a promissory note to Wood for the financing of $115,000, secured

by both a vendor ’ s lien and a deed of trust lien. The contract contained an addendum indicat ing

Fibela and Wood would each pay half for the preparation of the contract and all customary closing

costs including costs and expense s of a title policy and attorney ’ s fees for preparation of closing

do cuments and legal services

.

Wood filed an original answer to the petition, which included a general denial and

affirmative defenses. By her pleading, Wood alleged two affirmative defenses: (1) statute of

limitations

, and (2) mutual mistake. First, she alleged the purported contract was executed on

February 16, 2015, and four years had elapsed since Fibela sought its enforcement. Second, she

alleged the contract was unenforceable as she was not the title owner of the property on the contract

date. Specifically, Wood asserted the contract upon which Fibela filed suit was the result of a

mutual mistake. S he asserted she had conveyed the P roperty to her daughter and son

- in

- law as of

July 1, 2009. Then, on September 18, 2013, her son

- in

- law conveyed his interest to Wood ’ s

daughter. And finally, not until November 16, 2017, beyond the date of the purported contract with

Fibela, had Wood ’ s daughter conveyed the P roperty back to Wood.3

Relevant to this appeal, W ood next filed a motion for summary judgment, combining a

traditional motion with a no

- evidence motion. In her motion, she challenged Fibela ’ s claim for

breach of contract and asserted an affirmative defense of unilateral mistake

. Wood attached four

items in support of her motion: (1) a copy of a report by the El Paso Central Appraisal District

showing different information on the Property

, including its deed history ; (2) “ A Special

Warranty ” deed

, by Christopher Kent Norris, executed on July 9, 2015

, in which he conveyed his

interest in the Property to Christine Lee Messerli, as her sole and separate property ; (3) a Deed in

Lieu of Foreclosure whereby Christine L. Norris aka Christine Lee Messerli conveyed the Property

to Wood on November 27, 2017 ; and (4) her own affidavit.

Wood testified in her affidavit that

, at the time the contract was executed, her daughter

owned the Property with her husband. After a divorce, her daughter ’ s ex

- husband conveyed his

interest to Wood ’ s daughter as her sole property

. When Wood ’ s daughter went into arrears on

payment, Wood learned from her daughter that Fibela was interest ed in the Property

. She then

further avers : “ [n]ot being versed in real estate law, I mistakenly believed that I could sell the

property without a Deed in Lieu of Foreclosure executed by [my] daughter. ” Only later did she

discover that her daughter and her daughter ’ s ex

- husband were still listed as the owne rs of the

Property with the Central Appraisal District

. T hus, on November 27, 2017, her daughter executed

a Deed in Lieu of Foreclosure. In closing, Wood asserts she did not have title to the Property on

February 16, 2015, and hence, she could not legally convey title to F i bela.

Following service of Wood ’ s motion for summary judgment, Fibela filed a first amended

petition

, which added a claim of s tatutory f raud against Wood. Fibela asserted

, at the time the

contract was executed, Wood represented to him she was the record owner of the P roperty and she

could convey title. Fibela asserted Wood made a false representation to him for the purpose of4

inducing him to enter the contract, and his reliance on her representation caused him financial

injury.

Responding, Wood filed an amended motion for summary judgment

, restating her original

arguments and adding arguments against the new statutory fraud claim

. 1 Fibela filed a response to

Wood ’ s amended motion for summary judgment with attached evidence in support. As summary

judgment evidence he attached four items: (1) an affidavit by himself; (2) a copy of communication

he received from a title company representative; (3) a copy of a handwritten temporary agreement,

signed by him and Wood, dated November 27, 2014 ; and (4) a copy of the Deed in Lieu of

Foreclosure, dated November 27, 2017, wherein Wood ’ s daughter

, Christine L. Norris, conveyed

title of the Property to Wood

.

On October 17

, 2019, the trial court granted Wood ’ s motion for summary judgment in its

entirety

. The trial court order ed Fibela take nothing against Wood and denied all claims asserted

by Fibela. Fibela subsequently filed a motion to reconsider and a motion for new trial

, which were

both denied by the trial court

. This appeal follow ed

. 2

II. STANDARD OF REVIEW

Wood filed a combined no

- evidence and traditional motion for summary judgment. See

T EX

. R. C IV

. P

. 166a(c), (i). Both types of motions for summary judgment are reviewed de novo.

See Valence Operating Co

. v. Dorsett

, 164 S.W.3d 656, 661 (Tex. 2005); Harris v. Ebby Halliday

Real Estate, Inc.

, 345 S.W.3d 756, 759 (Tex. App.

— El Paso 2011, no pet.)

. We review no

evidence motions for summary judgment under the same legal sufficiency standard used to review

1 No argument is made about Wood’s pleaded statute of limitations defense.

2 Fibela was represented by an attorney at the trial level. Fibela filed his notice of appeal pro se and proceeds without

an attorney5

a directed verdict. Painter v. Amerimex Drilling I, Ltd

. , 561 S.W.3d 125, 130 (Tex. 2018). A party

without the burden of proof at trial, after adequate time for discovery, may move for summary

judgment on the ground that there is no

- evidence of one or more essential elements of a claim or

defense. T EX

. R. C IV

. P

. 166a(i). “ In a no

- evidence summary judgment, the movant must

specifically state the elements as to which there is no evidence. T he burden then shifts to the non

movant to bring forth evidence that raises a fact issue on the challenged e lements. ” See Macias v.

Fiesta Mart, Inc.

, 988 S.W.2d 316, 316

- 17 (Tex. App.

— Houston [1st Dist.] 1999, no pet.)

. “ [A]

no

- evidence summary judgment is improperly granted if the respondent brings forth more than a

scintilla of probative evidence to raise a genuine issue of material fact. ” See King Ranch, Inc. v.

Chapman

, 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla exists “ when the evidence rises

to a level that would enable reasonable and fair

- minded people to differ in their conclusions. ”

Macias

, 988 S.W.3d at 31 7 (internal quotation marks omitted)

. Conversely, “ [l] ess than a scintilla

of evidence exists when the evidence is so weak as to do no more than create a mere surmise or

suspicion

. ” Id

. (internal quotation marks omitted).

A traditional motion for summary judgment requires the moving party to show that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. T EX

. R.

C IV

. P

. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co

., 508 S.W.3d 254, 257 (Tex. 2017). To prevail

as a movant

, a defendant mu st either negate at least one of the essential element s of a cause of

action or conclusively establish each element of an affirmative defense. See Randall ’ s Food Mkts.,

Inc. v. Johnson

, 891 S.W.2d 640, 644 (Tex. 1995). Once a movant initially establishes a right to

summary judgment on the issues expressly presented in the motion, t he burden shifts to the

nonmovant to present issues or evidence precluding summary judgment. City of Houston v. Clear

Creek Basin Auth.

, 589 S.W.2d 671, 678

- 79 (Tex. 1979). All theories in support of or in opposition6

to a motion for summary judgment must be presented in writing to the trial court. See

T EX

. R. C IV

. P. 166a(c).

In reviewing either type of summary judgment motion, we view the evidence in the light

most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so,

and disregarding contrary evidence unless reasonable jurors could not. Merriman v. XTO Energy,

Inc.

, 407 S.W.3d 244, 248 (Tex. 2013); Valence Operating Co.

, 164 S.W.3d at 661

. When the trial

court ’ s order does not specifically state the grounds for granting judgment, we must affirm the

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

meritorious. ” Provident Life & Acc. Ins. Co. v. Knott

, 128 S.W.3d 211, 216 (Tex. 2003). When a

party moves for both a traditional and a no

- evidence summary judgment, we first review the trial

court ’ s summary judgment under the no

- evidence standard of Rule 166a(i). Ford Motor Co. v.

Ridgway

, 135 S.W.3d 598, 600 (Tex. 2004). If the no

- evidence summary judgment was properly

granted, we do not reach arguments under the traditional motion for summary judgment. See id.

III. BRIEFING WAIVER AND THE SCOPE OF THE RECORD

As a preliminary matter, Wood presents several arguments about the adequacy of Fibela ’ s

briefing. Wood argues Fibela failed to adequately brief the issues or demonstrate error by the trial

court. Specifically, Wood asserts Fibela fails to cite to the record or engage in an analysis of the

application of the law

. Based on inadequate briefing, Wood argues Fibela has effectively waived

error and this Court should affirm the trial court ’ s order

. Wood also contends Fibela ’ s brief asserts

new arguments, new allegations of fact, and additional requests for relief

, which were not

presented to the trial court. She also contends that Fibela wrongly includes additional documents

in his Appendix which were not made a part of the trial record.7

Fibela is acting pro se on appeal. Thus, we are directed to construe his brief liberally and

with patience. See Johnson v. McAdams

, 781 S.W.2d 451, 452 (Tex. App

. — Houston [1st Dist.]

1989, orig. proceeding) (citing Haines v. Kerner

, 404 U.S. 519, 520 (1972) ( “ The Supreme Court

directs us to seek the substance of a pro se complaint by reviewing pro se applications with

liberality and patience. ” ) )

. In doing so, however, we are not permitted to make allowances simply

because a pro se litigant is not an attorney. Jonson v. Duong

, 642 S.W.3d 189, 193 (Tex. App.

—

El Paso 2021, no pet.)

. To do otherwise would give an unfair advantage over those parties

represented by counsel. Id. Furthermore, o ur briefing rules instruct that a brief “ contain a clear and

concise argument for the contentions made, with appropriate citations to authorities and to the

record

. ” T EX

. R. A PP

. P

. 38.1(i)

. However, briefs must also “ be liberally, but reasonably, construed

so that the right to appeal is not lost by waiver. ” Lion Copolymer Holdings, LLC v. Lion Polymers,

LLC

, 614 S.W.3d 729, 732 (Tex. 2020)

. Similarly, we are instructed that c ourts should hesitate to

resolve cases based on procedural defects and instead work to resolve cases on their merits. See

St. John Missionary Baptist Church v. Flakes

, 595 S.W.3d 211, 213

- 14 (Tex. 2020) (per curiam).

In Fibela ’ s brief, under the section titled “ Argument and Authorities

, ” he asserts the trial

court erred in granting summary judgment favorable to Wood because (1) Wood was unable to

satisfy all elements of her affirmative defense, (2) Fibela ’ s claims were supported by the evidence,

and (3) Wood did not disprove at least one element of his cause of action. He then summarizes the

evidence attached to his response to summary judgment. Although Wood takes issue with Fibela ’ s

brief not citing to the record, the appellate record here consists only of the clerk ’ s record containing

about 140 pages. Based on the issues advanced by this appeal

, we are required to not only review

the parties ’ pleadings but also their summary judgment pleadings and all evidence attached to th e se8

documents

. In this instance, we determine that Fibela ’ s lack of citation to the record does not

render his appeal unreviewable.

Additionally, we note, Fibela does cite to authority when arguing the substance of his

appeal

. The Supreme Court of Texas ha s instructed courts “ to construe the Rules of Appellate

Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements

not absolutely necessary to effect the purpose of a rule. ” Verb urgt v. Dorner

, 959 S.W.2d 615,

616

- 17 (Tex. 1997)

. For these reason s

, we reject Wood ’ s contention that Fibela committed briefing

waiver.

Lastly, regarding the scope of the record, Fibela did attach new evidence to his appella nt ’ s

brief and reply brief. He also asserts new factual allegations in such brief ing

. The appellate record

consists of the clerk ’ s record and, if necessary, the reporter ’ s record. T EX

. R. A PP

. P. 34.1. The

attachment of additional documents as exhibits or appendices to briefs is not formal inclusion in

the record on appeal and, therefore, the documents cannot be considered. Barton v. Barton

, 584

S.W.3d 147, 152

- 53 (Tex. App.

— El Paso 2018, no pet.)

. Additionally, we will not consider new

arguments not presented to the trial court. See T EX

. R. C IV

. P. 166a(c). Accordingly, we review the

summary judgment pleadings, responses, and any evidenced attached thereto

, and disregard any

new ly asserted arguments or evidence.

IV. DISCUSSION

Fibela presents three issues on appeal challenging the grant of summary judgment in favor

of Wood

. In his first issue, Fibela asserts Wood did not meet her summary judgment burden by

fail ing to satisfy all elements of her affirmative defense asserted against his breach of contract

claim

. In his second issue, he contends he met his burden of proof by present ing evidence in

support of his claim s for breach of contract and statutory fraud, and there exist triable issues of9

fact as to those claims. In his third and final issue, Fibela contends Wood failed to meet her burden

of proof to negate at least one element of his breach of contract claim

. Although Fibela addresses

all t hree issues collectively, he essentially argu es the summary judgment burden applicable to each

was not met for each of his two claim s for relief

.

A. Wood ’ s combined motion for summary judgment

We begin by reviewing the substance of Wood ’ s amended motion for summary judgment

.

In her motion, she first includes a section which she title s as a traditional motion for summary

judgment

. Under that section

, Wood first asserts an argument that Fibela ’ s breach of contract claim

fails because there was no valid enforceable contract. Next

, she argues the evidence she presented

had conclusively established the affirmative defense of unilateral mistake

, which rescind ed the

contract. Lastly, she argues the evidence she presented negated at least one element of Fibela ’ s

st atutory fraud claim.

The traditional motion section is followed by a section titled as a no

- evidence motion for

summary judgment. Under th e no

- evidence section, Wood asserts there was “ no evidence that

[she] knew she was not the owner of the property on February 16, 2015[,] or that she knowingly

made a material misrepresentation to [Fibela] with the intent that [Fibela] would rely on this

misrepresentation to his detriment, or that [Fibela] incurred damages related thereto. ” We interpret

Wood ’ s argument as asserting a no

- evidence motion against Fibela ’ s statutory fraud claim. See

T EX

. R. C IV

. P

. 166a(i) ; see also Tex as Integrated Conveyor Sys., Inc. v. Innovative Conveyor

Concepts, Inc.

, 300 S.W.3d 348, 375 (Tex. App.

— Dallas 2009, pet. denied) (holding courts should

determine the nature of a motion for summary judgment after considering the substance of the

motion).10

Because we first review the trial court ’ s summary judgment under a no

- evidence standard,

we will address that summary judgment basis first. Ridgway, 135 S.W.3d at 600. Then, if

necessary, we look to Wood ’ s asserted grounds for traditional summary judgment. After

reordering the arguments

, we construe the substance of Wood ’ s motion as asserting: (1 ) a no

evidence summary judgment challenge against Fibela ’ s statutory fraud claim, (2) a traditional

summary judgment challenge against Fibela ’ s statutory fraud claim, ( 3 ) a traditional summary

judgment challen ge to an element of Fibela ’ s breach of contract claim

, and ( 4 ) a traditional

summary judgment challenge on her affirmative defense of mistake

, as asserted against the breach

of contract claim

. We address each basis in turn

.

B. The no

- evidence m otion challenging the s tatutory f raud c laim

Texas law prohibits false representations in transactions involving real estate or stock.

T EX

. B US

. & C OM

. C ODE A NN

. § 27.01. Tukua Investments, LLC v. Spenst

, 413 S.W.3d 786, 796

(Tex. App.

— El Paso 2013, pet. denied)

. T he elements for a statutory fraud claim based on a real

estate transaction are: “ (1) there was a transaction involving real estate ; (2) during the transaction,

the defendant made a false representation of fact, made a false promise, or benefitted by not

disclosing that a third party ’ s representation or promise was false; (3) the false representation or

promise was made for the purpose of inducing the plaintiff to enter into a contract; (4) the plaintiff

relie d on the false representation or promise by entering into the contract; and (5) the reliance

caused the plaintiff injury. ” Chapa v. Arellano

, No. 13

- 18

- 00665

- CV, 2019 WL 4200299, at *2

(Tex. App.

— Corpus Christi Sept. 5, 2019, no pet.) (citing T EX

. B US

. & C OM

. C ODE A NN

. § 27.01 ).

Wood asserts there was “ no evidence that [she] knew she was not the owner of the property

on February 16, 2015[,] or that she knowingly made a material misrepresentation to [Fibela] with

the intent that [Fibela] would rely on this misrepresentation to his detriment, or that [Fibela]11

incurred damages related thereto. ” We interpret her argument as attacking the second, third, fourth,

and fifth element s of F ibela ’ s statutory fraud claim.

As the nonmovant on the no

- evidence challenge, Fibela had the burden to bring forth

evidence to raise a fact issue on each of the challenged elements

. See Macias

, 988 S.W.2d at 317

.

Without dispute, Fibela ’ s evidence established that Wood was not the owner of the Property on

the date the contract was executed

. The correspondence between Fibela and the title company

showed the representative believed Wood was attempting to get the issues with title resolved. This

shows Wood knew about the title issues at some point. Wood herself also concedes that her

daughter and her son in law remained as record owners of the Property on the date of contract

execution. But even so, it is not clear from the evidence when such title issue came to light as

Fibela ’ s evidence of Wood ’ s knowledge has no date. As to reliance, Fibela testified he believed

Wood held title to the property at the time the contract was executed. Additionally, he testified he

fully performed his contractual obligations and was “ ready, willing, and able to complete the sale

of the Property in accordance with the terms specified within the contract. ” Fibela also stated he

made improvements to the Property “ in anticipation of the closing of the transaction. ”

Yet

, despite all such evidence, Fibela presented no evidence establishing that Wood entered

the contract knowing she was not the owner of the Property. Fibela failed to establish a genuine

issue of fact that Wood made a representation to Fibela that she knew was false. In context

, the

evidence indicates the title issue came to light only after the contract of sale was signed

. Moreover,

the correspondence between Fibela and the title company showed the representative belie ved

“ seller has been attempting to get this issue resolved. ” Fibela presented no evidence that Wood

was not planning to convey title at closing. See Int ’ l Bus. Machs. Corp. v. Lufkin Indus

., 57312

S.W.3d 224, 228 (Tex. 2019) (To prove a false promise of future performance, the plaintiff must

establish the defendant made a promise with no intention of performing it.).

Indeed, Wood testified by her affidavit that

, when she executed the contract with Fibela,

her daughter and son in law owned the Property “ subject to a Deed of Trust and promissory Note

with me as the payee. ” She further stated, however, that her daughter went into arrears on her

payments on the p romissory note, and she was informed by her daughter that Fibela was interested

in the property. Contrary to knowingly making a false representation of fact, Wood a verred she

had mistakenly believed she held titl e based on her daughter ’ s loan default

. Wood stated, “ Not

being versed in real estate law, I mistakenly believed that I could sell the property without a Deed

in Lieu of Foreclosure executed by [ my ] daughter. ”

Fibela merely asserts that, because Wood did not have good title to the Property at the time

the contract was executed, he raised a fact issue on the required elements of his statutory fraud

claim. For multiple reason s, we disagree

. First, there is no

- evidence showing that any false

representation of fact was made by Wood to Fibela. Specifically, t here is no

- evidence that Wood

knew she did not own the property at the time she executed the contract or that she expressly

represented to Fibela that she otherwise did

. Rather, the contract only shows she promised

, at

closing, she would “ execute and deliver a general warranty deed conveying title to the Property to

Buyer[.] ” Without this showing, Fibela presented no evidence to support the second and third

elements of his statutory fraud claim

.

Wood asserts that Fibela ’ s affidavit contains conclusory statements unsupported by any

evidence and is therefore incompetent summary judgment evidence. See Houle v. Casillas

, 594

S.W.3d 524, 560 (Tex. App.

— El Paso 2019, no pet.) (stating conclusory statements in affidavits

will be considered incompetent to support a summary judgment). We agree that Fibela ’ s assertions13

of injury are conclusory and without supporting evidence

. Additionally, Fibela presents new

arguments that we cannot consider on appeal. His assert ion that he spent over $13,000 in repairs

to the Property was not previously presented to the trial court ; thus, we cannot consider it.

For all these reason s

, we hold that Fibela failed to meet his burden of proof to raise a

genuine issue of material fact on each challenged element of his statutory fraud claim. Because we

conclude t he trial court did not err in ruling in favor of Wood

, we affirm that portion of the

summary judgment rendered in favor of Wood

.

As part of her combined motion, Wood also argued for summary judgment in her favor

under the traditional summary judgment standard

. See T EX

. R. C IV

. P

. 166a(c). Because we affirm

the summary judgment in favor of Wood on the statutory fraud no

- evidence ground, it would be

redundant to address Wood ’ s argument under the traditional standard. See Rid gway

, 135 S.W.3d

at 600. For this reason, we overrule Fibela ’ s second and third issues in part as to the claim of

statutory fraud.

C. The t raditional m otion for s ummary j udgment

Next, we determine whether Wood met her traditional summary judgment burden on the

breach of contract claim

. In her motion, Wood first argues that Fibela ’ s breach of contract claim

fail s because there is no valid enforceable contract. Second, Wood argues a contract may be

rescinded based on unilateral mistake. 3 We look at each argument in turn.

3 We note that Wood’s answer did not plead an a ffirmative defense of unilateral mistake. Instead, Wood’s motion

only pleaded the affirmative defenses of statute of limitations and mutual mistake. Affirmative defenses, like unilateral

mistake, must be pleaded unless tried by consent. In re USAA Gen. Ind em. Co.

, 629 S.W.3d 878, 884 (Tex. 2021)

. However, Fibela did not object to Wood’s asserted affirmative defense on this basis and responded in substance to the

motion. We conclude that unilateral mistake was tried by consent. Montoya v. Gutierrez

, No. 04

- 1 9

- 00070

- CV, 2019

WL 5580263, at *3 (Tex. App.

— San Antonio Oct. 30, 2019, no pet.)

.14

1. V alid enforceable contract

To establish a breach of contract claim, a plaintiff must prove: (1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) a breach by the defendant;

and (4) the plaintiff incurred damages as a result of the defendant ’ s breach. USAA Tex as Lloyds

Co. v. Menchaca

, 545 S.W.3d 479, 502 n.21 (Tex. 2018)

. As movant, Wood has the burden to

negate at least one essential element of Fibela ’ s breach of contract claim to succeed on summary

judgment

. See Johnson, 891 S.W.2d at 644. Here, Wood asserts there was not a valid agreement

because a meeting of the minds was lacking as she did not own the property at the time the contract

was formed. This argument attacks only the first element of Fibela ’ s breach of contract claim

—

the existence of a valid contract.

To establish a valid, enforceable contract

, the following elements must be shown: “ (1) an

offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds

on the essential terms of the contract (mutual assent); (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. ” E

- Learning

LLC v. AT & T Corp.

, 517 S.W.3d 849, 858 (Tex. App.

— San Antonio 2017, no pet.)

. Wood asserts

there was no meeting of the minds because the property was not actually owned by her at the time

the contract was executed or at the time set for closing. Wood ’ s attached evidence demonstrated

she did not own the Property at the time the contract was executed. Wood asserts this proves there

was no meeting of the minds and the contract is unenforceable.

However, “ [i n ] an express contract, mutual agreement is expressly stated [.] ” Wal

- Mart

Stores, Inc. v. Lopez

, 93 S.W.3d 548, 557 (Tex. App.

— Houston [14th Dist.] 2002, no pet.)

. Here,

Fibela presented evidence of the express terms agreed to by both Fibela and Wood. The parties ’

writing demonstrated that Wood agreed to sell the Property to Fibela for an agreed price and15

closing on a certain date

. Based on such writing, Wood failed to negate the existence of an

enforceable contract.

Furthermore, Wood cited no authority demonstrating that a contract for sale is rendered

unenforceable when a seller does not own the property at the time the contract is made. “ Generally,

in the absence of an agreement to the contrary, it is unimportant that the vendor ’ s title is bad, or

that the land is encumbered at the time the contract is made, if it is made in good faith and he is

prepared to convey the title guaranteed at the time set for performance

. ” MTrust Corp. N.A. v. LJH

Corp.

, 837 S.W.2d 250, 254 (Tex. App.

— Fort Worth 1992, writ denied) (citing Runnells v. Pruitt

,

204 S.W. 1017, 1019 (Tex. App.

— Dallas 1918, no writ) )

. Thus, “ [t]here is no rule of law which

renders it illegal for a person to promise to convey land which he does not own. ” Id. (citing

Hufstutler v. Grayburg Oil Co

., 48 S.W.2d 591 (Tex. Comm ’ n App

. 1932

, holding approved )).

“ The fact that the seller did not own the land at the time the contract was made becomes important

only in connection with other facts showing grounds for equitable relief to the purchaser. ” Id. Here,

the contract provides the closing of the sale will be on or before April 10, 2015. It further states

that “ [s] eller shall execute and deliver a general warranty deed conveying title to the Property to

Buyer and

. . . furnish tax statements or certificates showing no delinquent taxes on the Property. ”

Wood does not guide us to any authority

, and we find none, that shows a lack of ownership of the

subject property at the time of the contract execution excuses the seller ’ s performance. We

conclude that Wood ’ s lack of ownership of the property provides no basis to nullify the contract.

For this reason, Wood failed to meet her summary judgment burden on this ground. We

sustain Fibela ’ s second and third issue in part as to the breach of contract claim.16

2. Unilateral mistake

Wood asserted the affirmative defense of unilateral mistake. Generally, a mistake by one

party to an agreement will not be grounds for equitable relief. Cigna Ins. Co. of Tex as v.

Rubalcada

, 960 S.W.2d 408, 412 (Tex. App.

— Houston [1st Dist.] 1998, no pet.)

. E quitable relief

may be granted for unilateral mistake when: “ (1) the mistake is of so great a consequence that to

enforce the contract would be unconscionable; (2) the mistake relates to a material feature of the

contract; (3) the mistake occurred despite ordinary care; and (4) the parties can be placed in status

quo, i.e.

, the recission must not prejudice the other party except for the loss of the bargain. ” Id.

Wood argued her evidence showed it was uncontradicted that she was a 78

- year

- old widow

and that she did not know she was not the title owner of the property. Therefore, she argues, there

is not a scintilla of evidence that she knowingly or intentionally made a representation to Fibela

that she knew to be untrue.

As movant

, Wood ha d the burden to establish each element of her affirmative defense of

unilateral mistake as a matter of law. T EX

. R. C IV

. P

. 166a(c); Johnson, 891 S.W.2d at 64 4. It is

not until Wood meets that initial burden that the burden then shift s to Fibela to present any issues

or evidence precluding summary judgment. Clear Creek Basin Auth.

, 589 S.W.2d at 678

- 79

.

Wood ’ s arguments are conclusory and fail to meet the elements of unilateral mistake. Rubalcada

,

960 S.W.2d at 412

. Furthermore, as mentioned above, Wood fails to show that a lack of ownership

renders a contract unenforceable, such as to excus e a seller ’ s performance.

Accordingly, the trial court erred in rendering summary judgment for Wood on her

unilateral mistake claim. We sustain Fibela ’ s first issue.17 V. CONCLUSION

We affirm the trial court ’ s judgment granting summary judgment in favor of Wood on

Fibela ’ s statutory fraud claim. We reverse the trial court ’ s judgment regarding Fibela ’ s breach of

contract claim and remand for further proceedings.

GINA M. PALAFOX, Justice

September 28

, 2022

Before Rodriguez

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

.