Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 415th District Court Parker County, Texas
Trial Court No. CV15-1444
Sudderth, C.J.; Kerr, J., and Gonzalez, J. 
MEMORANDUM OPINION ON REHEARING
Gonzalez Visiting Judge
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
case arises from a land dispute between ex-spouses. In six
issues, Appellant George Manor appeals the trial court's
denial of his motion for traditional summary judgment on the
affirmative defense of the statute of frauds and the trial
court's grant of summary judgment in Appellee Judy
Manor's favor on her claim for breach of contract. We
affirm the trial court's judgment in both respects.
of their 2014 divorce, George and Judy divided their
community interest in almost 300 acres of land situated in
Parker County. The parties' decree awarded approximately
123 acres to Judy. In 2015, the parties negotiated a sale by
Judy of 32 acres of the divided land to George. On June 19,
2015, they executed a Farm and Ranch Contract (hereinafter
"the Contract") which described the subject land
as: "The land situated in the county of Parker, Texas,
described as follows: House and 32 acres out of 123 acres
TR: BLK: SURV: TEXAS & PACIFIC RR. or as described on
attached exhibit, also known as 2300 Cox Road, Millsap, TX
76066." The Contract stated that an aerial photo was
attached and was to be considered as part of the parties'
agreement; in fact, a Google Earth photograph signed by both
George and Judy and dated June 19, 2015, was attached to the
Contract. We have attached the aerial photo as Exhibit A to
this opinion. The Contract required a $35, 000 earnest-money
deposit by George and provided the following remedies in the
event of default:
15. DEFAULT: If [George] fails to comply
with this contract, [George] will be in default, and [Judy]
may (a) enforce specific performance, seek such other relief
as may be provided by law, or both, or (b) terminate this
contract and receive the earnest money as liquidated damages,
thereby releasing both parties from this contract.
Contract also allowed for additional damages if any party
"wrongfully" failed or refused to sign a release of
the escrow money:
D. DAMAGES: Any party who wrongfully fails or refuses to sign
a release acceptable to the escrow agent within 7 days of
receipt of the request will be liable to the other party for
liquidated damages in an amount equal to the sum of: (i)
three times the amount of the earnest money; (ii) the earnest
money; (iii) reasonable attorney's fees; and (iv) all
costs of suit.
Contract set a closing date of July 6, 2015, and stated that
if either party failed to close the sale by the closing date,
"the non-defaulting party may exercise the remedies
contained in Paragraph 15." The parties did not close on
July 6, 2015. According to Judy, George repeatedly delayed
the closing. In September 2015, Judy demanded release of the
earnest money in lieu of specific performance; George refused
to sign any such release and instead expressly directed the
title company not to release the earnest money.
November 2015, Judy sued George for breach of contract,
alleging fraud and malice on his part and seeking actual
damages, exemplary damages, and attorney's fees. George
filed a general denial and asserted a defense of the statute
of frauds. Both parties moved for summary judgment-the trial
court granted Judy's motion and denied George's. The
parties agreed to the amount of actual damages to be awarded
to Judy ($35, 000) and agreed to try the issue of
attorney's fees by affidavit and written submissions,
after which the trial court awarded Judy $31, 405 in
attorney's fees. A final judgment reflecting the trial
court's rulings was entered in February 2018. This appeal
brings six issues on appeal, divided into two sections. In
his first set of issues, George appeals the trial court's
denial of his motion for summary judgment because, in his
view, the Contract is unenforceable because it does not
satisfy the statute of frauds. In his second set of issues,
he argues that even if the Contract is enforceable, we must
reverse the trial court's order granting Judy's
summary judgment motion and remand the cause to the trial
court because Judy failed to establish her right to the $35,
000 in earnest money as a matter of law.
Standard of review applicable to traditional summary
summary judgment case, the issue on appeal is whether the
movant met the summary judgment burden by establishing that
no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review
a summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in
the nonmovant's favor. 20801, Inc. v. Parker,
249 S.W.3d 392, 399 (Tex. 2008); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). We consider the evidence presented in the light most
favorable to the nonmovant, crediting evidence favorable to
the nonmovant if reasonable jurors could and disregarding
evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort, 289 S.W.3d at 848. We
must consider whether reasonable and fair-minded jurors could
differ in their conclusions in light of all of the evidence
presented. See Wal-Mart Stores, Inc. v. Spates, 186
S.W.3d 566, 568 (Tex. 2006); City of Keller v.
Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005).
Uncontroverted evidence from an interested witness does
nothing more than raise a fact issue unless it is clear,
positive, and direct; otherwise credible and free from
contradictions and inconsistencies; and could have been
readily controverted. Morrison v. Christie, 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. 1997)).
summary judgment will be affirmed only if the record
establishes that the movant has conclusively proved all
essential elements of the movant's cause of action or
defense as a matter of law. City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
as here, both parties move for summary judgment and the trial
court grants one motion and denies the other, the reviewing
court should review both parties' summary judgment
evidence and determine all questions presented. Mann
Frankfort, 289 S.W.3d at 848. The reviewing court should
render the judgment that the trial court should have
rendered. See Myrad Props., Inc. ...