

Opinion issued April 19, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00328-CV
———————————
Ardmore, Inc. f/k/a
GHX Incorporated and Star Properties, LLC, Appellants
V.
The Rex Group, Inc. d/b/a T-3 Support Services,
Inc., Appellee

 

 
On
Appeal from the 125th District Court
Harris
County, Texas

Trial Court Case No. 2007-65381
 

 
O P I N I O N
This appeal concerns whether purchase options in two
leases were properly exercised. 
Appellants, Ardmore, Inc. and Star Properties, LLC, appeal the trial
court’s grants of summary judgment against them and in favor of appellee, The
Rex Group, Inc.  In one issue, Star
Properties argues that the trial court erred by determining that The Rex Group
had timely exercised its option to purchase from Star Properties.  In two issues, Ardmore argues that the trial
court erred by determining the statute of frauds barred the application of its
option to purchase from The Rex Group because (1) the property was identified with
reasonable certainty; (2) Ardmore fully performed under the contract; (3)
Ardmore partially performed under the contract; and (4) The Rex Group is
estopped from asserting the statute of frauds defense.  In a cross-appeal, The Rex Group challenges
the sufficiency of the evidence to support the trial court’s award of
attorneys’ fees in favor of The Rex Group and against Star Properties.
We affirm, in part, and reverse and remand, in part.
                                                                                                       
Background
This lawsuit concerned a dispute over ownership of certain
commercial property located in Houston, Texas. 
There are three parties involved in the suit: Star Properties, the owner
of the property; The Rex Group, the lessee of the property; and Ardmore, a sublessee of the property. 
Both the lease from Star Properties to The Rex Group and the sublease
from The Rex Group to Ardmore contain purchase options, exercisable at the end
of the lease from Star Properties to The Rex Group.  At the end of the lease, The Rex Group
attempted to exercise the purchase option in the lease, and Ardmore attempted
to exercise the purchase option in the sublease.  In turn, Star Properties asserted that The
Rex Group’s attempt was ineffective, and The Rex Group asserted that Ardmore’s
attempt was ineffective.  The parties
brought this litigation seeking to establish their respective claims to
ownership of the property.
The commercial property at issue in this case is located
along Ardmore Street in Houston, Texas.  In
1991, the property in question was owned by Baker Hughes, Inc. and Combustion
Engineering, Inc.  Combustion Engineering later conveyed its interest in the property to
ABB Prospects, Inc.  Baker Hughes,
Combustion Engineering, and ABB Prospects will be referred to collectively as
the “Original Lessors.”  The Original
Lessors entered into a lease agreement with The Rex Group, Inc. in May 1991.  The lease was effective until the end of
November 1997.  During the term of the
lease—provided that proper notice was given—The Rex Group was authorized to
purchase the property in question for $2,500,000.  
The lease also prevented The Rex Group from assigning or
subleasing any portion of the property to non-affiliated parties without
obtaining the prior written consent of the landlord.  Specifically, the lease provided, in
pertinent part,
Except for subleases to affiliates or subsidiaries of
Tenant [The Rex Group] for which no consent to sublease shall be required by
Landlord [the Original Lessors], Tenant may not sublet all or any portion of
the Premises without the prior written consent of Landlord.  Landlord shall not unreasonably withhold its
required consent to a particular subletting provided [certain enumerated conditions
exist].  Tenant shall not be relieved of
any of its obligations hereunder by reason of any sublease of all or part of
the premises.
The lease was amended by agreement of the parties at least
seven times.  Among other things, the
amendments extended the term of the lease to July 2008, and modified the terms
of the purchase option.  As modified by
the sixth amendment, the purchase option section of the lease provided, in
pertinent part,
          A.      In consideration of the mutual covenants
herein contained, Landlord grants to Tenant the option to purchase the Premises
during the Term for $2,500,000 in accordance with this Section.  This option to purchase may not be exercised
to be effective at any time or times other than in the month of June, 2008 (the
“Effective Month”).
 
. . . .
 
          D.      Except as provided in subsection F. below,
to exercise such purchase option, Tenant must . . .
(ii) give Landlord written notice of its intent to purchase at least 90 days
prior to the first day of the applicable Effective Month . . . .
The parties agree that, by the terms of these two
subsections alone, The Rex Group’s deadline to exercise the purchase option was
March 3, 2008.
As of 2001, both The Rex Group and Ardmore were subsidiaries
of Industrial Holdings Incorporated, and both were operating their businesses
in the commercial property subject to the lease.  In 2001, Industrial Holdings began
negotiations over a merger with T3 Energy Services.  One condition of the merger was that
Industrial Holdings would sell Ardmore prior to the merger.
As a result, Industrial Holdings approached Ben Andrews
and Dan Ahuero, the executives then in charge of
Ardmore, about purchasing Ardmore. 
Andrews and Ahuero agreed but insisted as part
of the sale that they be allowed to remain on the leased premises and, if The
Rex Group elected to exercise the purchase option in the lease, that they be
allowed to purchase a lesser portion of the property.
To that end, The Rex Group entered into a sublease with
Ardmore.  The sublease provided that it
was “subject and subordinate to” the lease. 
It also recognized that Ardmore was already subleasing a portion of the
property.  That portion of the property
was defined as the “Premises” in the sublease “as more particularly described
on Exhibit A.”  Exhibit A consists
of the following image:

The sublease gave Ardmore continued use of the
Premises along with “the non-exclusive right to use for vehicular and
pedestrian access and vehicular parking, any and all driveways, parking areas,
pedestrian walkways, and other common or shared areas, including, without
limitation, the “Shared Drive” depicted on Exhibit A.”
The purchase option in the sublease provided, in pertinent
part:
In the event that Sublessor
[The Rex Group] elects to exercise the option to purchase the premises covered
by the Base Lease (the “Entire Base Lease Premises”) in accordance with the
terms of such purchase option contained in Section 27 of the Base Lease (the
“Purchase Option”), Sublessor shall give Lessors the
required written notice of Sublessor’s intent to
exercise the Purchase Option (the “Exercise Notice”) no later than the
thirtieth (30th) day (“Sublessor Exercise Deadline”)
prior to the last day by which the Purchase Option may be timely exercised
pursuant to Section 27.D(ii) of the Base Lease. . . .  Sublessee [Ardmore]
shall thereupon be entitled, contemporaneously with Sublessor’s
acquisition of the Entire Base Lease Premises, to acquire from Sublessor that portion of the Entire Base Lease Premises
(“Option Property”) as is depicted on the drawing attached hereto as Exhibit
D . . . .
The parties agree that the Ardmore’s exercise deadline, as
defined in the sublease, was February 2, 2008.
Exhibit D consists of the
following image:

Both exhibits were prepared by Andrews on behalf of
Ardmore.  Andrews testified in his deposition
that both exhibits were drafted from the same basic drawing.  Andrews acknowledged that there were already
markings on the basic drawing he used to create the exhibits.  Exhibit A defines the premises to be leased,
and Exhibit D defines the premises subject to the purchase option.  To that end, Andrews testified, Exhibit A
contains a line that “more heavily note[s]” the subleased area.  The markings added to Exhibit D show what
would be subject to the purchase option.
The Original Lessors consented in writing to the sublease
on December 13, 2001.  In it, the
Original Lessors acknowledged that consent was given and provided that the
“Sublease shall not diminish or in any way effect the obligations of Lessee
[The Rex Group] to Lessor [the Original Lessors] under the Lease and Lessee
shall remain primarily liable for the performance of its obligations under the
Lease notwithstanding the existence of the Sublease.”  The consent also provided that “Lessee and Sublessee [Ardmore] acknowledge and agree that Lessor has
executed this Consent solely to evidence its consent to the Sublease and this
Consent shall not in any way create any liabilities, obligations or duties on
the part of Lessor.”  It was signed by
representatives for the Original Lessors, The Rex Group, and Ardmore.
In 2003, the Original Lessors sold the property and its
lease to Star Properties.
On February 7, 2008, The Rex Group sent Star Properties a
written notification of its intent to exercise its purchase option under the
lease.  On February 15, 2008, Star
Properties sent The Rex Group a letter, asserting that The Rex Group had failed
to timely exercise its purchase option in accordance with the lease as modified
by the sublease.
Following The Rex Group’s notification of its intent to
exercise the purchase option under the lease, Ardmore elected to exercise its
purchase option under the sublease.  The
Rex Group asserted that Ardmore could not enforce the purchase option on the
grounds that the description of the property subject to the sublease’s purchase
option violated the statute of frauds.
The underlying litigation ensued.  The Rex Group brought claims against Star
Properties and Ardmore.  Star Properties
and Ardmore each brought counterclaims against The Rex Group.  As those claims pertain to this appeal, each
of the parties sought an adjudication of which, if any, of the purchase options
were properly exercised.  All of the
parties ultimately brought motions for summary judgment on the issues.
As a part of its summary judgment evidence, Ardmore
presented the affidavit of Ernest Roth, a registered professional land
surveyor.  Roth testified in his
affidavit that he was familiar with the locality of the property subject to the
sublease’s purchase option, that he “was able to identify and determine the
boundaries of the Option Property with reference to the description thereof
provided in the sublease and Exhibit D thereto,” and that the property could be
identified with reasonable certainty.  He
included with his affidavit a metes-and-bounds description of the property
subject to the sublease’s purchase option based on the property description.
In a series of rulings on the motions, the trial court
determined that The Rex Group had timely exercised its purchase option under
the lease and that the description of the property subject to the purchase
option in the sublease was rendered unenforceable by the statute of frauds.  
The parties submitted the issue of attorneys’ fees to a
bench trial.  The trial court ultimately
awarded attorneys’ fees in favor of The Rex Group and against Ardmore and Star
Properties.
Each of the parties appealed.
                                                                     
Motions for Summary Judgment 
In one issue, Star Properties argues that the trial court
erred by determining that The Rex Group had timely exercised its option to
purchase from Star Properties.  In two
issues, Ardmore argues that the trial court erred by determining the statute of
frauds barred the application of its option to purchase from The Rex Group
because (1) the property was identified with reasonable certainty; (2) Ardmore
fully performed under the contract; (3) Ardmore partially performed under the
contract; and (4) The Rex Group is estopped from asserting the statute of
frauds defense.
A.            
Standard of Review
The summary-judgment movant must conclusively establish
its right to judgment as a matter of law.  See MMP,
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).  Because summary
judgment is a question of law, we review a trial court’s summary judgment
decision de novo.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).
To prevail on a “traditional”
summary-judgment motion asserted under Rule 166a(c), a movant must prove that
there is no genuine issue regarding any material fact and that it is entitled
to judgment as a matter of law.  See Tex. R. Civ. P.
166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d
374, 381 (Tex. 2004).  A matter is conclusively
established if reasonable people could not differ as to the conclusion to be
drawn from the evidence.  See City of Keller v.
Wilson, 168 S.W.3d 802, 816 (Tex. 2005). 
When a party moves
for summary judgment on a claim for which it bears the
burden of proof, it must show that it is entitled to prevail on each
element of its cause of action.  See Parker v. Dodge, 98 S.W.3d 297, 299
(Tex. App.—Houston [1st Dist.] 2003, no pet.). 
The party meets this burden if it produces evidence that would be
sufficient to support an instructed verdict at trial.  Id.  
To determine if
there is a fact issue, we review 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.  See Fielding, 289 S.W.3d
at 848 (citing City of
Keller, 168 S.W.3d at 827). 
We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  Sw. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002).
When, as here, the
parties file cross-motions for summary judgment on
overlapping issues, and the trial court grants one motion and denies the
other, we review the summary judgment evidence supporting both motions and
“render the judgment that the trial court should have rendered.”  FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
B.            
Timeliness of the Notice under the Lease
Star Properties acknowledges that, under the terms of the
lease alone, The Rex Group’s deadline to exercise the purchase option was March
3, 2008.  It also acknowledges that The
Rex Group sent its written notice of its intent to exercise its purchase option
under the lease on February 7, 2008.  Star
Properties maintains that The Rex Group nevertheless failed to timely exercise
the purchase option under the lease because the purchase option under the lease
was modified by the purchase option under the sublease to Ardmore.  
The Rex Group acknowledges that, under the terms of the
sublease purchase option, it had agreed with Ardmore that The Rex Group would
submit its notice of its intent to exercise the purchase option by February 2,
2008.  The Rex Group maintains, however,
that Star Properties was not a party to the sublease and, accordingly, cannot
use the notice deadline under the sublease as a basis to claim that The Rex
Group’s notice was untimely.
The trial court determined that the deadline to exercise
the purchase option under the lease was March 3, 2008 and that The Rex Group
timely exercised its right to purchase the property.
In making its argument, Star Properties relies on the
following facts: The lease required consent of the landlord for subleases with
entities that were not affiliates or subsidiaries of The Rex Group.  Star Properties signed a written consent in
the form of a contract, which incorporated the sublease into the consent.  The sublease incorporated the lease into the
sublease.  The consent was expressly
conditioned on the specific terms of the sublease, including, Star Properties
argues, the February 2 exercise date for the option.
Based on these facts, Star Properties argues, “Because the
consent was a formal contract that expressly incorporated the sublease (which,
in turn, expressly incorporated the lease) and was signed by all three . . . parties to the lease and sublease, the
signing of the consent was tantamount to all three parties also signing the
lease and sublease so as to each be mutually bound by the terms of the three
agreements that applied to them.”  
Specific terms from the lease, the sublease, and the
consent show that this argument is incorrect. 
The lease provides that any sublease entered into by The Rex Group will
not relieve it “of any of its obligations hereunder by reason of any sublease
of all or part of the Premises.”  The
sublease provides that it is “subject and subordinate to” the lease.  The consent provides that the sublease “shall
not diminish or in any way effect the obligations of [The Rex Group] to [then
Original Lessors, now Star Properties] under the Lease” and that the Original
Lessors “executed this Consent solely to evidence [their] consent to the
Sublease.”  The plain language of each of
these contracts establishes that Star Properties was not a party to the
sublease and that the sublease did not modify the lease.
Star Properties argues that the provision in the consent
stating that the sublease does not diminish or effect the obligations of The
Rex Group should not affect our analysis because the purchase option is a
right, not an obligation.  The Rex Group
counters that, while the purchase option may generally be a right, the notice
requirement and deadline are obligations. 
We agree with The Rex Group. Generally, an option in a contract “is a
privilege or right.”  Faucette v. Chantos,
322 S.W.3d 901, 907 (Tex. App.—Houston [14th Dist.] 2010, no pet.).  But that right can only be exercised by
strictly complying with the obligations set out in the contract.  See id.
at 908; Mensa-Wilmot
v. Smith Int’l, Inc., 312 S.W.3d 771, 781 (Tex. App.—Houston [1st Dist.]
2009, no pet.).  The consent explicitly
provides that the sublease would not “in any way effect” The Rex Group’s
obligations in the lease.  No exception is
made for the obligations required to exercise the purchase option.
Star Properties also argues that allowing the lease and
sublease to have separate exercise dates for the purchase option in the lease
leads to the conclusion that The Rex Group intended to allow for the breach of
the sublease.  It further argues that such
a conclusion would violate the rules of contract construction because this
would mean the sublease was fraudulently induced and, accordingly,
invalid.  See Tawes v. Barnes, 340 S.W.3d 419, 425
(Tex. 2011) (holding all provisions of a contract must be given effect so that
none is rendered meaningless).
Whether the sublease was fraudulently induced, is
unenforceable, or allows for an easy breach by The Rex Group is irrelevant to
our analysis.  “The general rule is that
only the parties to a contract have the right to complain of a breach thereof;
and if they are satisfied with the disposition that has been made of it and all
claims under it, a third person has no right to insist that it has been broken.”  Wells
v. Dotson, 261 S.W.3d 275, 284 (Tex. App.—Tyler 2008, no pet.); see also Allan v. Nersesova,
307 S.W.3d 564, 571 (Tex. App.—Dallas 2010, no pet.) (holding
party must be in privity of contract or beneficiary of contract to have
standing to complain about contract). 
Neither The Rex Group nor Ardmore has asserted that the modified
notification date in the sublease was fraudulently induced, rendered the
contract unenforceable, or has resulted in a material breach of the
contract.  Star Properties may not assert
this argument on their behalf.  See Wells, 261 S.W.3d
at 284.
We hold that the evidence establishes, as a matter of law,
that The Rex Group timely exercised its purchase option under the lease.  We overrule Star Properties’ sole issue.
C.            
Application of the Statute of Frauds to the
Purchase Option in the Sublease
In its first issue, Ardmore argues the trial court erred
by granting The Rex Group’s motion for summary judgment.  Both parties’ motions for summary judgment focus
on whether the statute of frauds bars the application of the purchase option in
the sublease and, if it does, whether any of the exceptions to the application
of the statute of frauds also apply.
Under the applicable statute of frauds, a contract for the
sale of real estate is not enforceable unless it, or a memorandum of it, is in
writing and signed by the person to be charged with the contract.  Tex.
Bus. & Com. Code Ann. § 26.01(a), (b)(4)
(Vernon 2009).  For a contract concerning
the conveyance of real estate to satisfy the statute of frauds, “the writing
must furnish within itself, or by reference to some other existing writing, the
means or data by which the particular land to be conveyed may be identified
with reasonable certainty.”  Wilson v. Fisher, 188
S.W.2d 150, 152 (Tex. 1945).  This
applies to a purchase option in a contract. 
See Matney
v. Odom, 210 S.W.2d 980, 981–82 (Tex. 1948) (applying statute of frauds
analysis to purchase option in contract). 
Whether a contract falls within the statute of frauds is a question of
law.  Iacono v. Lyons, 16 S.W.3d 92,
94 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
The purpose of a description in a written conveyance is
not to identify the land, but to afford a means of identification.  Jones
v. Kelley, 614 S.W.2d 95, 99–100 (Tex. 1983).  While we apply a strict application of the
statute of frauds, we allow for a liberal construction of the words describing
the land.  Gates v. Asher, 280 S.W.2d 247, 248 (Tex.
1955).    
A metes-and-bounds description is not required to satisfy
the statute of frauds.  Tex. Builders v. Keller,
928 S.W.2d 479, 481 (Tex. 1996).  Similarly,
a plat in a recorded property description is not required.  Nguyen v. Yovan, 317 S.W.3d 261, 269
(Tex. App.—Houston [1st Dist.] 2009, pet. denied).  Nor does the description of the property
require “[c]onviction beyond all peradventure of
doubt.”  Gates, 280 S.W.2d at 249; see
also Templeton v. Dreiss, 961 S.W.2d 645, 659
(Tex. App.—San Antonio 1998, pet. denied) (holding mathematical certainty not
required).  Instead, only proof within
“reasonable certainty” is required.  Gates, 280 S.W.2d at
249.
“If enough appears in the description so that a party
familiar with the locality can identify the premises with reasonable certainty,
it will be sufficient.”  Id. at 248–49.  Generally speaking, a property can be
identified with reasonable certainty if it identifies the general area of the
land and “contains information regarding the size, shape, and boundaries.”  Reiland v. Patrick
Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—Houston [1st Dist.]
2006, pet. denied); accord Fears v. Tex.
Bank, 247 S.W.3d 729, 736 (Tex. App.—Texarkana 2008, pet. denied).
“[W]hen construing a conveyance, the court does not look
at terms in isolation; rather, it must give effect to all parts of the
conveyance and construe the document as a whole.”  Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex. 1995).  When a contract includes a map of the
property to be conveyed as a part of its description of the property, this is
included in the analysis of whether the description satisfies the statute of
frauds.  Matney, 210 S.W.2d at 984; U.S. Enters., Inc.
v. Dauley, 535 S.W.2d 623, 628 (Tex. 1976).  “Whether a map is helpful in remedying
descriptive defects of the contract depends on whether the missing details are
shown on the map.”  U.S. Enters.,
535 S.W.2d at 628.
While parol evidence may be
considered under certain circumstances, it cannot be used to supply the
“essential elements” of the contract.  Wilson, 188 S.W.2d at
152.  In contrast, it can be used
to “explain or clarify the essential terms appearing in the” contract.  Id.  
If it does not sufficiently describe the land to be
conveyed, a conveyance of an interest in real property is void and
unenforceable under the statute of frauds. 
Nguyen, 317
S.W.3d at 267.
In order to determine if the purchase option under the
sublease is barred by the statute of frauds, we must determine if the property
to be sold under the sublease is identified with reasonable certainty.  Wilson,
188 S.W.2d at 152. 
We begin by noting that the entire property subject to the lease is
described by three metes-and-bounds descriptions.  The lease identifies the property subject to
the lease as the property “described on Exhibit A” of the lease.  Exhibit A of the lease is a metes-and-bounds
description of three tracts of land.
The sublease expressly incorporated the lease by
reference, and made the lease “a part [of the sublease] for all purposes.”  Additionally, the purchase option in the
sublease expressly recognizes The Rex Group’s authority to purchase the
premises covered by the lease and defines those premises as the “Entire Base
Lease Premises.”  The sublease then
allows Ardmore to purchase a portion of the Entire Base Lease Premises,
provided that The Rex Group exercises its right to purchase the Entire Base
Lease Premises.
The question we must answer, then, is whether the portion
of the Entire Base Lease Premises that was a part of the purchase option in the
sublease was sufficiently identified.  See Matney,
210 S.W.2d at 982 (considering whether portion of larger identified property
was sufficiently identified).
The sublease identifies the portion subject to its
purchase option as “that portion of the Entire Base Lease Premises
. . . as is depicted on the drawing attached hereto as Exhibit
D.”  Exhibit D is a map of the
premises, including designations of the buildings on the premises at the time
of the creation of the sublease.  There
are three main markings on Exhibit D.  It
contains an irregular loop around certain buildings on the map.  It contains a dashed line that intersects the
property from Highway 288 to Ardmore Street. 
It also contains a solid line that follows the same basic path as the
dashed line.  On either end of the two
lines are two arrows that point in the same direction.  Next to one of the arrows is a notation that
says “property covered by option.”
The Rex Group focuses on the irregular loop and the arrows
on the map, arguing that these drawings are too vague to identify the property
subject to the sublease’s purchase option. 
Ardmore, in contrast, focuses on the solid line and arrows on the map,
arguing this is sufficient to satisfy the statute of frauds.  We hold that Ardmore’s explanation of the
markings on Exhibit D is supported by the record.
Andrews, one of the representatives for Ardmore, prepared Exhibit
D to the sublease.  In his deposition,
Andrews testified that he prepared both Exhibit A and Exhibit D.  He further testified that both exhibits were
drafted from the same basic drawing.  Andrews
acknowledged that there were already markings on the basic drawing used to prepare
the exhibits.  Exhibit A defined the
premises to be leased, and Exhibit D defined the premises subject to the
purchase option.  To that end, Andrews
testified, Exhibit A contains a line that “more heavily note[s]” the subleased
area.  The markings added to Exhibit D showed
what would be subject to the purchase option. 

This testimony is borne out by a review of the two
exhibits.  Both exhibits contain the
irregular loop and the dashed line. 
Exhibit A adds the heavier line, which follows the basic path of the
irregular loop.  It also adds some shaded
areas with arrows indicating that the shaded areas were a shared drive.  In contrast, Exhibit D adds the solid line,
which follows the same basic path of the dashed line.  It also adds the arrows at the top and bottom
of the solid line and the notation “property covered by option.”
While Andrews’s testimony is parol
evidence, it falls within the exception of when parol
evidence can be considered.  See Wilson, 188 S.W.2d at 152 (holding parol evidence can be used to “explain or clarify the
essential terms appearing in the contract”); see also David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.
2008) (per curiam) (holding when contract contains
ambiguity, courts can admit extraneous evidence to determine true meaning of contract).[1]  Because there were multiple markings on
Exhibit D, Andrews’s testimony may be used to clarify the meaning of the
markings.
We are left, then, with a map of the Entire Base Lease
Premises with a line running through the parking lot, midway between two groups
of buildings, and notations indicating that the property covered by the
purchase option is everything to one side of this line.  To put it another way, the property subject
to sale under the sublease can be identified with a metes-and-bounds
description—by reference to the property description in the lease, which
contains a metes-and-bounds description of the entire premises—on three out of
four of its borders.  Whether the fourth
border—the hand-drawn line running through the premises—can be identified with
reasonable certainty determines whether the purchase option under the sublease
satisfies the statute of frauds.
The Rex Group argues that the map is too ambiguous to
identify the property subject to the sublease’s purchase option with reasonable
certainty.  To support this argument, The
Rex Group relies on U.S. Enters., 535
S.W.2d at 623 and Guenther v. Amer-Tex Constr. Co., 534 S.W.2d 396 (Tex. Civ.
App.—Austin 1976, no writ).
In U.S. Enterprises,
the Texas Supreme Court recognized that, when a map is included as a part of a
property description, it “becomes a part of the written contract and can aid a
defective written description if the map contains enough necessary descriptive
information.”  535
S.W.2d at 628.  In that case, the
written description of the land to be sold was 10 tracts of land out of three
identified surveys in Wise County, Texas. 
Id. at 625.  The 10 tracts were generally identified in
the written description.  Id. 
The written description also said that the tracts—other than certain
identified tracts—were identified on a map marked as Exhibit A.  Id.  
The issue for the court to resolve was whether two of the 10
tracts were properly identified in the contract, including the map.  Id. at 626–27.  It was
undisputed that, without the map, the two tracts were not sufficiently
identified.  Id. at 628.  The court held that the map did not correct
this inadequacy because there was nothing on the map “which supplies any aid as
to the name or location of” the tracts at issue.  Id.  U.S. Enterprises sought to establish by parol evidence that the two tracts were located on the map,
but the court held that—even if this were a proper use of parol
evidence—the proffered evidence did not show where on the map the two properties were.  Id. at 629. 
Accordingly, even if admissible, it was insufficient.  Id.  
In Guenther, the
only reference to the land to be conveyed was a map.  534 S.W.2d at 396–97.  The map referenced two roads, two fences, and
a utility line to establish the boundaries of the land.  Id.  One of the fences bordered a park.  Id.  The court recognized that the two roads and
the fence bordering the park could likely be found.  Id. at 398.  It held,
however, that the type of utility line—such as electric, telephone, or gas—forming
one of the borders was not identified.  Id. 
Even if this utility line could be identified, the last border was a
fence that was not identified in any way. 
Id.  Because there was no indication of the
location of the fence, the size of the property or the length of the borders,
there was no information to fill in what would be needed to identify this last
border either.  See id.  
We find this case to be easily distinguishable from U.S. Enterprises and Guenther.  Unlike U.S.
Enterprises, the map consists only of the property subject to the lease’s
purchase option and the portion of that property that is subject to the
sublease’s purchase option is demarcated. 
Unlike Guenther, three of the
four boundaries can be identified with metes-and-bounds descriptions, leaving
only one line that is not identified at that level of detail.
We hold that this last line on Exhibit D of the sublease
can be identified with reasonable certainty. 
There is enough detail on the map—including designations of buildings on
the premises—to show fairly clearly where this last line falls.  While the location of the line is not
identified with exact precision, this is not required to satisfy the statute of
frauds.  See Gates, 280 S.W.2d at 249 (holding “[c]onviction
beyond all peradventure of doubt” is not required); Templeton, 961 S.W.2d at 659 (holding mathematical certainty is not
required).
Additionally, as Ardmore points out, the property subject
to the sublease’s purchase option has been identified by a land surveyor.  Roth, the surveyor, testified in his
affidavit that he was familiar with the locality of the property subject to the
sublease’s purchase option, that he “was able to identify and determine the
boundaries of the Option Property with reference to the description thereof
provided in the sublease and Exhibit D thereto,” and that the property could be
identified with reasonable certainty.  He
included with his affidavit a metes-and-bounds description of the property
subject to the sublease’s purchase option based on the property description.
The Rex Group argues that Roth’s affidavit and attached metes-and-bounds
description cannot be considered because after-the-fact parol
evidence cannot be used to cure an inadequate description in a contract.  It is true that, the information required to
satisfy the statute of frauds must be in the document “or by reference to some
other existing writing.”  Wilson,
188 S.W.2d at 152 (emphasis added).  It
is also true that parol evidence cannot be used to
supply the essential requirements to satisfy the statute of frauds.  Id.
at 57, 188 S.W.2d at 152.  Roth’s affidavit and attached metes-and-bounds
description do not function in violation of either of these rules, however.  Instead, they function to show “that a party
familiar with the locality can identify the premises with reasonable
certainty.”  Gates, 280 S.W.2d at 248–49; see
also Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 195 (Tex. App.—Tyler 2004,
pet. denied) (holding testimony of surveyor can be admitted to show that
property can be identified with reasonable certainty); Foster v. Bullard, 496 S.W.2d 724, 733 (Tex. Civ. App.—Austin 1973,
writ ref’d n.r.e.) (holding parol evidence can be
considered to show property can be identified with reasonable certainty).
The Rex Group included evidence of its own surveyor, who
asserted in an affidavit that the property subject to the sublease cannot be
identified with reasonable certainty.  At
best, however, this creates a fact issue. 
We must review the evidence in
the light most favorable to Ardmore, crediting favorable evidence if reasonable
jurors could do so, and disregarding contrary evidence unless reasonable jurors
could not.  See Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827).  Additionally, we must indulge every
reasonable inference and resolve any doubts in Ardmore’s favor.  See Sw.
Elec. Power Co. v. Grant, 73 S.W.3d at 215.  The affidavit of The Rex Group’s surveyor
does not overcome the affidavit of Ardmore’s surveyor.  As a result, The Rex Group was not entitled
to judgment as a matter of law.
In this way, this case is similar to W. Beach Marina, Ltd. V. Erdaljac, 94
S.W.3d 248 (Tex. App.—Austin 2002, no pet.). 
In West Beach Marina, the
property at issue was identified by “a hand-drawn sketch superimposed on an
elevation map that indicates the location of” the relevant property.  Id. at 265.  Both
parties presented testimony from a surveyor. 
Id. at 266.  During a bench trial, one surveyor asserted
he could not identify the property with reasonable certainty, while the other
surveyor testified that he could identify it and created a metes-and-bounds
description of the property.  Id. 
The court of appeals held that the trial court did not err in relying on
the other surveyor’s testimony and accepting that the property could be
identified with reasonable certainty.  Id. 

The same reasoning is applicable here.  The property description contained with the
sublease is not so vague or ambiguous as to render its
boundaries indeterminable.  Additionally,
the record shows that a surveyor, using the information contained in or
referenced by the sublease, was able to identify the property with reasonable
certainty.  Accordingly, we hold that the
trial court erred by determining, as a matter of law, that
the property subject to the sublease’s purchase option could not be identified
with a reasonable certainty.[2]
In the remainder of its first issue, Ardmore argues that,
if we reverse the trial court’s summary judgment in favor of The Rex Group, we
must also reverse the trial court’s award of attorneys’ fees in favor of The
Rex Group.  The Rex Group acknowledges
this is the law, and we agree.  See Bd. of Med. Exam’rs
v. Nzedu, 228 S.W.3d 264, 276 (Tex. App.—Austin
2007, pet. denied) (holding that reversal of declaratory judgment act claim
also requires reversal of award of attorneys’ fees for new determination of
equitable and just award).  Accordingly,
we reverse the trial court’s award of attorneys’ fees in favor of The Rex Group
and against Ardmore.
We sustain Ardmore’s first issue.
Ardmore’s second issue concerns whether the trial should
have granted summary judgment in favor of Ardmore and against The Rex Group.
When a party moves
for summary judgment on a claim for which it bears the
burden of proof, it must show that it is entitled to prevail on each
element of its cause of action.  See Parker, 98 S.W.3d
at 299.  When, as here, the parties file cross-motions for
summary judgment on overlapping issues, and the trial court grants one motion
and denies the other, we review the summary judgment evidence supporting
both motions and “render the judgment that the trial court should have
rendered.”  FM Props., 22 S.W.3d at 872.  
Ardmore’s
counter-petition against The Rex Group seeks specific performance of the
purchase option, arguing that it had exercised the purchase option and that it
“is ready, willing, and able to complete its purchase of the property.”  Ardmore argued the same thing in its motion
for summary judgment.  In its prayer,
Ardmore asked the court to “enter judgment decreeing specific performance,
requiring [The Rex Group] to convey the property described in Exhibit ‘D’ to
the sublease to [Ardmore] in accordance with the terms and conditions of the
sublease.”  
Ardmore’s only
summary judgment evidence, however, concerned whether the purchase option was
unenforceable under the statute of frauds. 
Its motion for summary judgment did not present any legal authority for
what was required to entitle it to specific performance of the purchase
option.  Nor did it present any evidence
to establish that it had done everything required to entitle it to specific
performance.  See Tex. R. Civ. P.
166a(c) (requiring movant to establish with competent evidence that it is
entitled to judgment as a matter of law). 
Accordingly, we hold that the record does not permit us to render
judgment in favor of Ardmore and against The Rex Group.
We overrule
Ardmore’s second issue.
                                                                        
Bench Trial on Attorneys’ Fees 
In a cross-appeal, The Rex Group challenges the
sufficiency of the evidence to support the trial court’s award of attorneys’
fees in favor of The Rex Group and against Star Properties.
A.            
Standard of Review
In conducting a legal sufficiency review of the evidence,
we consider all of the evidence in a light favorable to the verdict and indulge
every reasonable inference that supports it.  City of
Keller, 168 S.W.3d at 82.  We consider evidence favorable to the finding
if a reasonable factfinder could consider it, and
disregard evidence contrary to the finding unless a reasonable factfinder could not disregard it.  Id. at 827.  In
conducting a factual sufficiency review, we consider all of the evidence
supporting and contradicting the challenged finding and set it aside only if
the evidence is so weak as to make it clearly wrong and manifestly unjust.  Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986); see
also Plas–Tex, Inc. v. U.S. Steel Corp., 772
S.W.2d 442, 445 (Tex. 1989).  In an
appeal of a judgment rendered after a bench trial, we may “not invade the
fact-finding role of the trial court, who alone determines the credibility of
the witnesses, the weight to give their testimony, and whether to accept or
reject all or any part of that testimony.”  Volume Millwork, Inc. v. W. Hous. Airport Corp., 218 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). 
B.            
Analysis
In the bench trial on the issue of attorneys’ fees, The
Rex Group presented evidence that it had incurred $209,552 in attorneys’
fees.  It also presented expert testimony
concerning whether the fees were reasonable and necessary based on Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997) (quoting Tex. Disciplinary Rules Prof’l Conduct R. 1.04, reprinted
in Tex. Gov’t Code
Ann. tit. 2, subtit. G,
app. A (Vernon Supp. 2011) (Tex. State Bar R., art.
X, § 9)).  
During the bench trial, it was established that Star
Properties had incurred about $120,000 in attorneys’ fees for about 410 hours
of work through the time that summary judgment was rendered against it.  Star Properties’ attorney then acknowledged
to the trial court that it was “in no position to deny that [$]120,000 is reasonable in the case.”
Ultimately, the trial court awarded $85,000 in attorneys’
fees in favor of The Rex Group and against Star Properties.  On appeal, The Rex Group argues the trial
court abused its discretion by only awarding $85,000 in attorneys’ fees based
on Star Properties’ attorney’s statement. 
Specifically, The Rex Group argues,
Thus the record contains undisputed evidence that Rex’s
reasonable and necessary attorneys’ fees against Star were at least
$120,000.  This conclusion in turn
triggers a series of subsidiary conclusions: (1) that as a matter of law the
evidence contradicts the trial court’s implied finding that only an $85,000 fee
was reasonable and necessary; (2) that the finding is against the great weight
and preponderance of the evidence; and (3) that the trial court abused its
discretion in setting the fee at $85,000.
The Rex Group does not cite to any legal authority to show
why the statement made during closing arguments by Star Properties’ attorney
would constitute evidence or would otherwise be binding on the trial
court.  Star Properties’ attorney’s
statement does not constitute a judicial admission.  “A judicial admission results when a party
makes a statement of fact which conclusively disproves a right of recovery or
defense he currently asserts.”  Seminole Pipeline Co. v.
Broad Leaf Partners, Inc., 979 S.W.2d 730, 740 (Tex. App.—Houston [14th
Dist.] 1998, no pet.).  The
elements for establishing that a statement is a judicial admission are (1) the
statement must be made in the course of a judicial proceeding; (2) it must be
contrary to an essential fact or defense asserted by the party; (3) it must be
deliberate, clear, and unequivocal; (4) it cannot be destructive of the
opposing party’s theory of recovery or defense; and (5) enforcing the statement
as a judicial admission would be consistent with public policy.  Kaplan
v. Kaplan, 129 S.W.3d 666, 669 (Tex. App.—Fort Worth 2004, pet.
denied).  The public policy concerning
judicial admissions is that it would be unjust to permit a party to recover
after he has sworn himself out of court by a clear, unequivocal statement.  Id.  
Star Properties’ attorney’s recognition that it would risk
appearing hypocritical arguing it should be entitled to $120,000 in attorneys’
fees but that The Rex Group should be entitled to less for work done during the
same period is not tantamount to a deliberate, clear, and unequivocal admission
that $120,000 is inherently reasonable and necessary.  See id.  
Moreover, unsworn statements of counsel generally do not
constitute evidence.  See Banda v. Garcia, 955 S.W.2d 270, 272
(Tex. 1997); see also Vaughn v. Tex. Emp’t Comm’n, 792 S.W.2d 139,
144 (Tex. App.—Houston [1st Dist.] 1990, no writ) (holding unsworn attorney’s
statement does not constitute evidence to support award of attorneys’
fees).  The Rex Group offers no argument
as to why Star Properties’ attorney’s statement should be excepted
from this rule.  Accordingly, we hold
that this statement did not preclude the trial court from performing its
obligation to determine what were reasonable and necessary attorneys’ fees.
We overrule The Rex Group’s sole issue.
                                                                                                          
Conclusion
We reverse the trial court’s grant of summary judgment in
favor of The Rex Group and against Ardmore as well as its award of attorneys’
fees in favor of The Rex Group and against Ardmore.  We affirm the judgment in all other respects.  We remand this case to the trial court for
further proceedings.
 
 
                                                                      Laura
Carter Higley
                                                                      Justice

 
Panel consists of Chief Justice Radack and Justices Higley and Brown.




[1]         While The Rex Group argues that the irregular loop formed the
property subject to the sublease’s purchase option, it presented no evidence
that this in any way reflected the intent of the parties.  Accordingly, whether this alternative
interpretation satisfies the statute of frauds is not before us.  See
Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (holding
appellate courts may only review issues “actually presented to and considered
by the trial court”); City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (holding that
trial court may not grant summary judgment on ground not presented by movant in
writing).


[2]         Because we hold that the trial court could not determine as a
matter of law that the statute of frauds barred the enforcement of the purchase
option in the sublease, we do not reach Ardmore’s remaining arguments
concerning the application of certain exceptions to the statute of frauds.  See
Tex. R. App. P. 47.1 (requiring appellate courts to address every
issue raised and necessary
to final disposition
of the appeal).


