AFFIRMED; Opinion Filed March 20, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-00836-CV

                       JOHN REEDER, Appellant
                                 V.
     BILLIE BREWER CURRY, INDIVIDUALLY AND AS SUCCESSOR TO W.C.
        BREWER, DECEASED, AND TRINITY MATERIALS, INC., Appellees

                           On Appeal from the 86th District Court
                                  Kaufman County, Texas
                              Trial Court Cause No. 66-738-86

                                         OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                   Opinion by Justice Myers
       On the Court’s own motion, we withdraw the opinion and vacate the judgment of

December 31, 2013. The following is now the opinion of this Court.

       John Reeder appeals the summary judgment that he take nothing on his claims against

Billie Brewer Curry, individually and as successor to W.C. Brewer, Deceased, and Trinity

Materials, Inc. Reeder brings six issues asserting the trial court erred by granting appellees’

motion for summary judgment and by failing to grant a continuance of the summary judgment

hearing. We affirm the trial court’s judgment.
                                                           BACKGROUND

           In 1995, Reeder and Curry executed a contract for deed 1 in which Curry and her father

purported to sell Reeder 608.48 acres. 2 Reeder agreed to make monthly payments to Curry for

fifteen years. In 2001, Curry borrowed money from American National Bank and assigned the

contract for deed to the bank. The bank instructed Reeder to make the monthly payments to it.

In 2004, the IRS issued levy notices against Curry and instructed Reeder to pay the IRS any

amounts he owed to Curry. According to Reeder, the confusion over whether he owed the

monthly payment to the bank or to the IRS caused him to miss at least one payment. Curry

declared Reeder in default under the contract for deed, declared the property forfeited, and stated

she was keeping all the payments to that point as liquidated damages pursuant to the contract.

Curry then sold the property to Trinity Materials and paid her debt to the bank. Reeder tried to

send payments to the bank and Curry, but they both returned the payments stating they no longer

had any interest in the property.

           Reeder brought suit against Curry and Trinity for several causes of action, including

specific performance and damages for breach of the contract for deed, trespass, fraud, tortious

interference with contract, and for injunctive relief. Curry and Trinity moved for summary

judgment on Reeder’s claims, which the trial court granted. Reeder appealed, and this Court

reversed the summary judgment, concluding “a genuine issue of material fact exists on whether

Reeder’s failure to make the payments for September and October was reasonable in light of the

circumstances.” Reeder, 294 S.W.3d at 858. We remanded the case to the trial court for further

proceedings. Id. at 862.


     1
        Curry and Reeder also executed an earnest money real estate contract for the property, but they never closed on that contract. None of the
parties’ arguments concern that contract.
     2
       The background facts are set out in greater detail in this Court’s opinion from the first appeal of this case, Reeder v. Curry, 291 S.W.3d
851, 853–55 (Tex. App.—Dallas 2009, pet. denied).



                                                                      –2–
       Back in the trial court, Curry and Trinity moved for summary judgment on Reeder’s

claims on the ground that the property description in the contract for deed was insufficient under

the statute of frauds and no contract formed between Reeder and Curry. Reeder filed a motion to

continue the summary judgment hearing while he conducted discovery and determined whether

to bring an action to reform the contract to provide a sufficient description of the property. The

trial court denied Reeder’s motion for continuance and granted Curry and Trinity’s motion for

summary judgment, rendering judgment that Reeder take nothing on his claims.

                               MOTION FOR CONTINUANCE

       In his sixth issue, Reeder contends the trial court erred by denying his motion for

continuance of the summary judgment hearing. We review a trial court’s decision to grant or

deny a party additional time for discovery before a summary judgment hearing for an abuse of

discretion. Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 696 (Tex. App.—

Dallas 2008, no pet.). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). In considering whether the trial court abused its discretion, we consider such

factors as the length of time the case had been on file before the hearing, the materiality of the

discovery sought, whether the party seeking the continuance exercised due diligence in obtaining

the discovery, and what the party expected to prove. Cooper, 254 S.W.3d at 696.

       In the motion, Reeder stated he needed to take the deposition of a surveyor, Greg Sjerven.

Sjerven stated in his affidavit that he could not do a survey of the property based on the property

description in the contract for deed, yet Reeder stated Sjerven did a survey of the land in 2006.

Reeder also stated he needed to take Curry’s deposition because she stated in an affidavit that

when she signed the contract for deed, she did not know what land she conveyed. Reeder also

stated that further discovery was necessary to determine if the contract for deed was supposed to


                                               –3–
be for all the property Curry owned in those surveys, because if it was, then the property

description was adequate. Reeder also stated that Curry used the same property description in

the affidavit of forfeiture of the property. Reeder also stated in the motion that he wanted time to

bring an action for reformation of the contract before the trial court heard the motion for

summary judgment.

       In this case, Reeder filed suit on November 30, 2004 and moved for continuance of the

summary judgment hearing and modification of the scheduling order on March 26, 2012, over

seven years later. More than one and one-half years had passed between this Court’s mandate

remanding the case for further proceedings and the motion for continuance. Trinity had raised

the defense of the statute of frauds in its first amended answer filed in July 2005. In January

2011, over a year before the summary judgment motion, Trinity and Curry filed special

exceptions to Reeder’s fourth amended petition complaining that the property description in the

petition, which was the same as the description in the deed, “utterly fails to identify the property

as required by Texas R. Civ. P. 783.” The trial court granted the special exception, giving

Reeder fourteen days to replead using a metes-and-bounds description, but Reeder’s subsequent

amended petitions referred only to the contract for deed and did not provide a metes-and-bounds

description.

       The record also shows Reeder deposed Curry on February 3, 2012 and Sjerven on April

5, 2012. Although Curry’s deposition occurred before appellees filed their motion for summary

judgment asserting the inadequacy of the property description, Sjerven’s deposition was after the

filing of the motion for summary judgment and one week before the April 12 summary judgment

hearing. Reeder does not explain why Sjerven’s April 5, 2012 deposition did not provide Reeder

the information he needed.




                                                –4–
       Reeder did not explain in his motion for continuance why the property description would

be sufficient if it was for all the property Curry owned in each survey. Nor did he cite any

authority in support of this assertion. In his brief on appeal, Reeder states additional discovery

was necessary to determine whether Curry owned any other property in the county other than the

acres in the property description, and he stated that this information “would be relevant to

determining the sufficiency of the property description and as a result for responding to the

motion for summary judgment.” Reeder does not explain why whether Reeder owned additional

property was relevant to the sufficiency of the property description, and he cited no authority in

support of this assertion. The rules of appellate procedure require that a party present argument

and cite authority in support of the contentions made in the brief. TEX. R. APP. P. 38.1(i).

Because Reeder cited no authority and presented no argument beyond the conclusion that the

information was relevant, we conclude Reeder has not properly briefed this assertion.

       Reeder also asserts that if a contract for real property does not sufficiently describe the

property, the plaintiff can request an opportunity to plead for reformation of the contract.

However, Reeder did not request leave to amend his petition to allege a cause of action for

reformation of the contract.

       Relying on Morrow v. Shotwell, 477 S.W.2d 538 (Tex. 1972), Reeder argues that the trial

court abused its discretion by denying a continuance of the summary judgment hearing until

Reeder could conduct additional discovery and then decide whether to allege and prosecute an

action for reformation of the contract. In Morrow, Morrow, a purchaser of real property sued

Shotwell, the seller, for specific performance of a contract to sell two tracts of land. Id. at 539.

The court of civil appeals concluded the property description in the contract was insufficient for

one of the tracts and rendered judgment for the seller as to that tract. See Shotwell v. Morrow,

461 S.W.2d 527, 527 (Tex. Civ. App.—Eastland 1970), rev’d, 477 S.W.2d 538 (Tex. 1972). The

                                                –5–
supreme court agreed with the court of civil appeals that the property description was inadequate

because the contract provided “no means or data by which the tract may be identified.” Morrow,

477 S.W.2d at 539–40. The supreme court stated that the insufficient property description would

ordinarily lead to an affirmance of the lower court. The supreme court then stated,

       There is in the record strong evidence that the parties intended to describe a
       particular and identified tract of 12.375 acres in their contract, and that they were
       mutually mistaken in the belief that the description used was legally sufficient for
       that purpose. If that be a fact, Morrow would have been able entitled to
       reformation of the contract had he sought it. It thus appears that Morrow may
       have tried his case on a wrong theory.

Id. at 541 (citations omitted). The court stated it had authority under the rules of procedure to

remand a case instead of affirming or rendering when it appeared to the court “that the justice of

the case demands another trial.” Id. (quoting TEX. R. CIV. P. 505 (repealed 1986; current rule at

TEX. R. APP. P. 60.3)). The court then observed that it had often remanded instead of rendering

judgment “when a case was tried on the wrong theory and it appeared to us that the justice of the

case demanded another trial.” Id. The court stated that the rules of procedure and the court’s

precedents provided it with “an independent discretion to order a remand in the interest of justice

after appellate reversal of a trial court judgment.” Id. at 542. The court then reversed the

judgments of the lower courts and “remanded to the trial court so that Morrow may, if he wishes,

amend his pleadings and try his case on a different theory.” Id.

       Morrow concerned the discretion of the supreme court to remand a case in the interest of

justice. It did not concern a trial court’s discretion to deny a motion for continuance. Nothing in

the decision indicates the supreme court would have concluded that a trial court’s denial of a

motion for continuance in that situation would have been an abuse of discretion. The court in

Morrow did not even conclude that the court of civil appeals had abused its discretion by

rendering a take-nothing judgment instead of remanding to the trial court under its own authority

to remand in the interest of justice. See id. (stating that both the court of civil appeals and
                                               –6–
supreme court have discretion to remand in the interest of justice). Morrow did not purport to

create a requirement that a trial court must grant a motion for continuance in this situation.

       In this case, it is clear that Reeder had not yet filed a suit for reformation when he filed

his motion for continuance. This was over sixteen years after he signed the contract for deed

with its defective property description, over five years since Trinity alleged the statute of frauds,

and over a year since Trinity and Curry specially excepted to the property description as failing

to identify the property. The trial court could have concluded that the length of these substantive

and procedural delays weighed against granting the continuance. In light of this evidence,

including the length of time the case had been on file and the length of time the trial court could

have believed Reeder should have been aware of the inadequacy of the property description, we

conclude Reeder has not shown the trial court abused its discretion by denying the motion for

continuance of the summary judgment hearing. We overrule Reeder’s sixth issue.

                                   SUMMARY JUDGMENT

       Reeder’s remaining issues contend the trial court erred by granting appellees’ motion for

summary judgment.       The standard for reviewing a traditional summary judgment is well

established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); McAfee,

Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movant has

the burden of showing that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material

fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be

taken as true. Nixon, 690 S.W.2d at 549; Yost v. Jered Custom Homes, 399 S.W.3d 653, 659

(Tex. App.—Dallas 2013, no pet.); In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—

Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant

and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).


                                                –7–
We review a summary judgment de novo to determine whether a party’s right to prevail is

established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas

2000, pet. denied).

       The nonmovant must present summary judgment proof when necessary to show a fact

issue. City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The

nonmovant must expressly present to the trial court in a written answer or response to the motion

those issues that would defeat the movant’s right to summary judgment and failing to do so, may

not assign them on appeal as error. TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to

the trial court by written motion, answer or other response shall not be considered on appeal as

grounds for reversal.”); City of Hous., 589 S.W.2d at 678.

                      ADEQUACY OF THE PROPERTY DESCRIPTION

       In his first issue, Reeder contends the trial court erred by granting appellees’ motion for

summary judgment because the property description in the contract for deed sufficiently

identified the property.

       To comply with the statute of frauds, a property conveyance “must be in writing and must

be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing.”

TEX. PROP. CODE ANN. § 5.021 (West 2004). Additionally,

       [t]o be valid, a conveyance of real property must contain a sufficient description
       of the property to be conveyed. A property description is sufficient if the writing
       furnishes 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.

AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008). A “conveyance of property . . . which

fails to describe a definite tract of land is void.” Id. The writing does not have to list metes and

bounds to be enforceable, but it must provide the necessary information to identify the property

with reasonable certainty. May v. Buck, 375 S.W.3d 568, 574 (Tex. App.—Dallas 2012, no pet.).


                                                –8–
An unidentifiable portion of a larger, identifiable tract is not sufficient to satisfy the statute of

frauds. Id. at 574–75. “The legal description in the conveyance must not only furnish enough

information to locate the general area as in identifying it by tract survey and county, it need

contain information regarding the size, shape, and boundaries.” Id. at 575 (quoting Reiland v.

Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied)). “Even when ‘the record leaves little doubt that the parties knew and understood what

property was intended to be conveyed, . . . the knowledge and intent of the parties will not give

validity to the contract and neither will a plat made from extrinsic evidence.’” Reiland, 213

S.W.3d at 437 (quoting Morrow v. Shotwell, 477 S.W.2d 538, 540 (Tex. 1972)).

       The contract for deed described the property to be sold as follows:

       28.71 acres in the W. A. Carter Survey Abstract 95
       226.92 acres in the J.M. Carter Survey Abstract 95
       203.75 acres in the J. Beck Survey Abstract A-37
       149.1 acres in the M. J. Love Survey Abstract 295

The property description gave no metes and bounds or other description of the property to be

conveyed from each survey, and it did not “contain information regarding the . . . shape and

boundaries.”

       Appellees relied on Sjerven’s testimony in support of their summary judgment ground

that the property description was inadequate. Sjerven testified in his affidavit that “there is no

W.A. Carter Survey Abstract No. 95 in Kaufman County, Texas.” He also testified that each of

the other surveys contained more acreage than was included in the contract for deed, and that

that there was no way to determine from the contract for deed which part of each survey was

included in the transaction or whether there was only one parcel or many. He stated, “Without

more information than is provided in the contract for deed, it would be impossible for me to

survey or to specifically identify the land that the contract for deed is intended to cover.”



                                                 –9–
           Reeder argues the property description is adequate because Curry used a nearly identical

property description in the affidavit of forfeiture declaring Reeder had forfeited the property for

breaching the contract for deed. 3 However, the fact that Curry may have used the same or

similar property description in another document is no evidence of whether the property may be

identified with reasonable certitude.

           Reeder also argues the property description was adequate because “Sjerven prepared a

survey of the Property for the benefit of John Reeder on February 24, 2006.” In support of this

statement, Reeder cites what he states is a copy of the survey, but nothing on the survey shows it

is based on the property description in the contract for deed. The only property on the survey

attributed to Reeder is three tracts in the “J. Carter Sur. A-95,” two for 64.673 acres and one for

43.830 acres, which total 173.176 acres, far less than the 226.92 acres listed on the property

description for the “J.M. Carter Survey Abstract 95.” The copy of Sjerven’s survey in the

appellate record does not appear to show any other tracts owned by Reeder. The acreage listed

in Sjerven’s survey for each of the different abstracts greatly exceeds the acreage listed in the

contract for deed’s property description. Sjerven’s survey does not show the property listed in

the property description may be identified with reasonable certainty.

           We conclude as a matter of law that the property description in the contract for deed is

inadequate because it does not provide “the means or data by which the particular land to be

conveyed may be identified with reasonable certainty.” AIC Mgmt., 246 S.W.3d at 645. We

overrule Reeder’s first issue.




     3
      In the affidavit of forfeiture of contract for deed, Curry changed the third listing to “the J. Black Survey Abstract A-37” instead of the “J.
Beck Survey Abstract A-37.”



                                                                      –10–
              PERFORMANCE AS EXCEPTION TO STATUTE OF FRAUDS

        In his second issue, Reeder contends that even if the property description is inadequate,

the statute of frauds does not apply because there was partial performance of the contract. To

establish partial performance of a contract for the sale of real estate as an exception to the statute

of frauds, the plaintiff must prove it (1) paid consideration, (2) took possession of the land, and

(3) made permanent and valuable improvements to the land with the defendant’s consent or, if no

improvements were made, that other factors would make the transaction fraudulent if it were not

enforced. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (elements to take oral contract for

transfer of real estate out of statute of frauds).

        In his response to the motion for summary judgment, Reeder stated “that today he has

fully performed 100% of the financial obligation by paying the $650,000.00 according to the

terms of the contract either to Mrs. Curry and/or to the registry of the court.” However, Reeder

did not state in his response that he made any improvements to the land, he did not identify in the

response what “permanent and valuable improvements” he made to the land, nor did he identify

any “other factors” that “would make the transaction fraudulent if it were not enforced. We

conclude Reeder’s response to the motion for summary judgment did not expressly present the

performance exception to the statute of frauds.             See City of Hous., 589 S.W.2d at 678.

Accordingly, it “shall not be considered on appeal as a ground for reversal.” TEX. R. CIV. P.

166a(c).

        Reeder also argues that the statute of frauds is not enforced when to do so would amount

to a virtual fraud by causing a substantial detriment to one party and an unearned benefit to the

other party. See, e.g., Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas

2002, pet. denied); Carmack v. Beltway Dev. Co., 701 S.W.2d 37, 40 (Tex. App.—Dallas 1985,

no writ). However, Reeder did not present this argument in his response to the motion for


                                                     –11–
summary judgment. Accordingly, we may not reverse on that ground. See TEX. R. APP. P.

166a(c); City of Hous., 589 S.W.2d at 678. We overrule Reeder’s second issue.

                                           ESTOPPEL

       In his third issue, Reeder contends appellees are estopped from asserting the insufficiency

of the property description under the doctrines of quasi-estoppel, judicial estoppel, and estoppel

by contract. Reeder’s response to the motion for summary judgment did not mention or present

these legal doctrines. Reeder argues the estoppel doctrines were presented in the response

because he stated in the response, “The Plaintiff [Reeder] incorporates by reference John

Reeder’s response in opposition to the motions for summary judgment filed by the Defendant,

Trinity Materials, Inc., Volume[s] 1 through 4 the same as if they are fully set forth.”

       This four-volume document was Reeder’s 128-page response filed in April 2006 with

over seven hundred pages of attachments.         That response concerned appellees’ motion for

summary judgment asserting Curry was entitled as a matter of law to enforce the forfeiture

provision of the contract for deed; that Reeder, as a matter of law, was barred by limitations and

laches from enforcing the earnest money contract; and other issues. See Reeder, 294 S.W.3d at

855–862. The statute of frauds and the sufficiency of the property description were not raised in

that summary judgment proceeding. See id. The trial court was not required to sift through

Reeder’s lengthy 2006 response to find arguments that might apply to defeat appellees’ current

motion for summary judgment. We conclude Reeder’s estoppel arguments were not “expressly

presented to the trial court” as required by rule 166a(c). See McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 342–43 (Tex. 1993) (grounds for summary judgment or issues defeating

summary judgment must be presented in the motion or response itself and not in a separate

document). We overrule Reeder’s third issue.




                                               –12–
                                     LAW OF THE CASE

       In his fifth issue, Reeder asserts the law of the case doctrine “preclude[s] yet another

summary judgment concerning whether there was sufficient evidence of breach of contract.”

Reeder argues that this Court’s 2009 opinion is “law of the case” that there was a fact issue about

whether Curry breached the contract for deed by declaring the property forfeited. Reeder did not

raise or discuss the doctrine of law of the case in his response to the motion for summary

judgment. Because he did not expressly present law of the case in his response to the motion for

summary judgment, it “shall not be considered on appeal as grounds for reversal.” TEX. R. CIV.

P. 166a(c); see West v. Northstar Fin. Corp., No. 02-08-00447-CV, 2010 WL 851415, *10 (Tex.

App.—Fort Worth Mar. 11, 2010, pet. denied) (mem. op.). We overrule Reeder’s fifth issue.

                                        CONCLUSION

       We conclude Reeder has not shown the trial court erred by granting appellees’ traditional

motion for summary judgment asserting the contract for deed was void and unenforceable due to

the inadequate property description. Accordingly, we need not address Reeder’s fourth issue

contending the trial court erred by granting appellees’ no-evidence motion for summary

judgment concerning mutuality of obligation, damages, performance under the contract for deed,

and breach by Curry. See TEX. R. APP. P. 47.1 (opinion must address every issue necessary to

final disposition of the appeal).

       We affirm the trial court’s judgment.




                                                   /Lana Myers/
120836F.P05                                        LANA MYERS
                                                   JUSTICE




                                               –13–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       JUDGMENT

John Reeder, Appellant                               On Appeal from the 86th District Court,
                                                     Kaufman County, Texas
No. 05-12-00836-CV         V.                        Trial Court Cause No. 66-738-86.
                                                     Opinion delivered by Justice Myers.
Billie Brewer Curry, Individually and as             Justices FitzGerald and Francis participating.
Successor to W.C. Brewer, Deceased, and
Trinity Materials, Inc., Appellees

       We VACATE this Court’s judgment of December 31, 2013. The following is now the
judgment of this Court.
       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
       It is ORDERED that appellees Billie Brewer Curry, Individually and as Successor to
W.C. Brewer, Deceased, and Trinity Materials, Inc. recover their costs of this appeal from
appellant John Reeder.


Judgment entered this 20th day of March, 2014.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE




                                              –14–
