                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                              No. 04-14-00259-CV

                                         Herman Dwayne EVERETT,
                                                 Appellant

                                                      v.
                                                  Daniela
                                          Dyna Graciela ARREOLA,
                                                  Appellee

                     From the 83rd Judicial District Court, Val Verde County, Texas
                                         Trial Court No. 27559
                              Honorable Robert Cadena, Judge Presiding 1

Opinion by:        Karen Angelini, Justice

Sitting:           Sandee Bryan Marion, Chief Justice
                   Karen Angelini, Justice
                   Marialyn Barnard, Justice

Delivered and Filed: April 29, 2015

AFFIRMED

           Herman Dwayne Everett filed the underlying lawsuit seeking a declaratory judgment that

he owned certain real property. The property was the home of Dyna Graciela Arreola. Everett

alleged Arreola conveyed the property to him through a deed or a real estate sales contract. After

a bench trial, the trial court entered a judgment declaring the deed to be void and concluding the

contract did not ratify the void deed. On appeal, Everett contends the trial court erred in denying




1
    The Honorable Carl Pendergrass presided over the bench trial. The Honorable Robert Cadena signed the judgment.
                                                                                      04-14-00259-CV


his requested relief because he established his ownership of the property based on the real estate

sales contract. We affirm the trial court’s judgment.

                                           BACKGROUND

       Everett is a bail bondsman. After Arreola’s daughter was arrested, Arreola sought Everett’s

services on April 19, 2008, to bail her daughter out of jail. The bond was set at $50,000, and

Everett required a $5,000 payment from Arreola. Arreola was only able to pay Everett $1,000,

but Everett agreed to take her home as collateral until she paid the $4,000 balance. Although the

home was only to be pledged as collateral for the balance owing on the bond, Everett had a general

warranty deed prepared for Arreola to execute which conveyed the title to the property to Everett.

       A few days later, Everett discovered a number of liens existed against the property and, as

a result, informed Arreola that she needed to provide additional collateral or her daughter would

have to return to jail. When Arreola was unable to locate additional collateral, Everett and Arreola

discussed the possible sale of Arreola’s home to Everett. The evidence at trial was conflicting

regarding the nature of those discussions, including whether Arreola understood the nature of the

transaction and whether Arreola agreed to the price at which Everett was willing to purchase the

property. Arreola eventually signed an undated real estate sales contract. Everett admitted at trial

that he summoned a police officer to Arreola’s house to witness her signing the contract. In

addition, both the prior deed and the contract were in English, and the evidence is undisputed that

Arreola did not speak or read English. After Arreola signed the contract, Everett surrendered the

bond and returned Arreola’s daughter to jail.

       Prior to the execution of the real estate sales contract, Everett began paying the creditors

who held the liens against the property. Everett testified at trial that he paid a total of $43,640.96

as the purchase price for the property, which amount included the liens Everett paid, the $4,000

Arreola owed Everett for the balance due on her daughter’s bond, and $17,000 paid directly to
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Arreola. The real estate sales contract states the purchase price for the property as $43,640.96.

The 2008 tax statements for the property reflect an appraised value of $80,580.00.

       Asserting his ownership of the property, Everett first filed two forcible entry and detainer

actions against Arreola which were dismissed for lack of jurisdiction because the ownership of the

property was in dispute. On February 26, 2009, Everett filed a petition for a declaratory judgment,

requesting the trial court to enter a judgment declaring his ownership of the property. On March

16, 2009, Arreola filed a general denial. On April 24, 2009, a final hearing on the case was set for

June 18, 2009. On June 16, 2009, Arreola filed an amended answer asserting fraud, duress,

deception, coercion, and fraudulent inducement. Everett objected to the amended answer being

untimely filed, and the trial court struck the amended answer.

       After a bench trial, the trial court announced its ruling, stating:

                It is clear from the evidence that at the time the general warranty deed dated
       April 19, 2008 from Ms. Arreola to Mr. Everett was [sic] void ad [sic] initio for
       reason that the deed was given as security for payment of a bond, that bond being
       a bail bond. Such agreements are not accepted in law where the property concerned
       is homestead. While there is no direct evidence that the property is homestead, it
       is clear from the evidence that the property is occupied by the owner.
                The next question the Court has had to struggle with is whether or not that
       deed, although void ad [sic] initio, was affirmed or ratified by any subsequent
       instrument.
                The Court must rely, then, on that document which is marked as Plaintiff’s
       Exhibit No. 7 entitled “Real Estate Sales Contract.” This agreement is not dated.
       The testimony is conflicting. Some have it being prepared on the 25th of April,
       2008. The testimony of its preparer, Mr. Escamilla, is it could not have been
       prepared prior to April 29th and would have been executed sometime thereafter.
                Reading the plain language of the contract, it states that it is a contract to
       buy and sell real property and it is effective on the date of the last of the signatures
       of the seller and buyer, and as stated, there is no date.
                This contract in its form in no way ratifies any prior acts or dealings between
       the parties, and, quite frankly, the Court has struggled with this situation, because
       this is not the end of it. No matter what happens, you know, this man is out some
       money which he is entitled to receive and this lady has received the [sic] benefit
       that she is not entitled to, but the Court is forced to act on the law and on the
       evidence before it.
                Therefore, the petition for declaratory judgment is denied.


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       Everett’s attorney then informed the trial court that she intended to take further action and

requested a rehearing on the issue of ratification, after which the following exchange occurred:

       MS. LONDON [Everett’s attorney]: But what I’m thinking about is a ratification
       of the contract, because I do have statements that she’s given to the various police
       and sheriffs —
       THE COURT: That’s up to you.
       MS. LONDON: — and I’d ask for a rehearing
       THE COURT: I think you’re going to have to replead, counsel.
       MS. LONDON: I can did [sic] that.
       MR. HERNANDEZ [Arreola’s attorney]: Of course, I would object to that seeing
       as they had the opportunity to present evidence —-
       THE COURT: Now, this was a suit for declaratory judgment. Now, whether she
       files suit to enforce a contract or something else, that’s entirely a different matter.

       Although the trial court verbally announced its ruling at the conclusion of the bench trial

on June 18, 2009, the trial court did not sign a judgment until February 7, 2014. The judgment

declared the deed to be void because the property was Arreola’s homestead and could not be

pledged as security for a bail bond. The judgment also stated, “Any subsequent acts by the parties

do not ratify said invalid, unconstitutional and void ab inito [sic] General Warranty Deed.” The

trial court entered findings of fact and conclusions of law consistent with the judgment. The only

finding of fact referring to the real estate sales contract stated, “Plaintiff and Defendant

subsequently executed a ‘Real Estate Sales Contract’ on an unknown date, with no effective date

of performance found within the four corners and plain language of said instrument.” Everett

appeals the trial court’s judgment.

                                        ISSUES PRESENTED

       Everett presents six issues in his brief; however, several of the issues do not assail the

judgment entered by the trial court. For example, Everett’s second, third, and fourth issues

challenge whether the trial court could have found the real estate sales contract to be invalid or not

legally binding. The trial court, however, did not base its declaratory judgment on the real estate

sales contract being invalid or not legally binding. Instead, with regard to the real estate sales
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contract, the trial court’s judgment was based on its conclusion that the real estate sales contract

did not ratify the prior deed. This reading of the trial court’s judgment is consistent with its verbal

pronouncement noting that Everett may be able to replead his claim as a contractual claim as

opposed to a claim seeking declaratory relief.

         In addition, Everett’s fifth issue challenges the sufficiency of the evidence to support the

trial court’s finding that the property was Arreola’s homestead; however, Everett’s first issue

concedes that the deed was void. In arguing his fourth and fifth issues, Everett appears to be

contending the trial court erred in invalidating the real estate sales contract because the homestead

character of the property is an affirmative defense, and the affirmative defenses asserted by Arreola

in her amended answer were stricken. As previously noted, however, the trial court’s judgment is

based on its conclusion that the real estate sales contract did not ratify the deed, not that the contract

was invalid because of the homestead character of the property.

         In summary, Everett does not challenge the trial court’s conclusion that the deed executed

by Arreola was void. The issues and arguments raised in Everett’s brief also do not challenge the

trial court’s conclusion that the real estate sales contract did not ratify the void deed. Instead, the

crux of Everett’s arguments is that the trial court erred in failing to declare him the owner of the

property because the real estate sales contract was an independent transaction pursuant to which

the property was conveyed to him. 2 Accordingly, we focus our analysis on this issue.

                                                   DISCUSSION

         In order for Everett to be entitled to a declaration that he owned the property in question as

requested in his petition, Everett was required to show that ownership of the property was




2
 In his brief, Everett asserts, “Ultimately however, the Court need only to concern itself with one inquiry: whether a
contract exists between the parties.”

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conveyed to him. 3 As previously noted, Everett does not dispute the trial court’s conclusion that

the general warranty deed was void and conveyed no title. Accordingly, Everett necessarily relies

on the real estate sales contract as the written document of conveyance. See TEX. BUS. & COM.

CODE ANN. § 26.01(b)(4) (West 2015) (requiring contract for sale of real estate to be in writing).

         An instrument effects a conveyance of real property only if it contains operative words or

words of grant showing a present intent to convey title to real property. See Gordon v. West

Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Masgas

v. Anderson, 310 S.W.3d 567, 570 (Tex. App.—Eastland 2010, pet. denied). “An instrument that

does not operate as a present conveyance of title to real property is a contract to convey rather than

a deed.” Smith v. Davis, No. 12-12-00169-CV, 2013 WL 2424266, at *4 (Tex. App.—Tyler June

5, 2013, no pet.) (mem. op.); see also Tukua Investments, LLC v. Spenst, 413 S.W.3d 786, 796-97

(Tex. App.—El Paso 2013, pet. denied) (distinguishing between contract for sale of real estate and

actual conveyance of real estate); Tex. Am. Bank/Levelland v. Resendez, 706 S.W.2d 343, 345

(Tex. App.—Amarillo 1986, no writ) (contract for sale is not an instrument that passes an interest

in realty). Stated differently, a contract for sale “is not effective as a conveyance, but is an

executory contract for the sale of land.” Tex. Am. Bank/Levelland, 706 S.W.2d at 345; see also

Fed. Life Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex. Civ. App.—Texarkana 1941, writ ref’d).

A contract for sale merely specifies the conditions for the future passing of the seller’s interest in

real property to the purchaser. Tex. Am. Bank/Levelland, 706 S.W.2d at 345; see also Gordon,

352 S.W.3d at 43 (“Language in an instrument that contemplates future action is not language that

contemplates a completed transaction in land.”).



3
 Although Everett pled his claim as one for declaratory relief, we note that a trespass to try title claim is “‘the method
for determining title’ to … real property.” Coinmatch Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 926 (Tex.
2013) (quoting Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004)).

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       In this case, the real estate sales contract does not contain words of grant showing a present

intent to convey title to Everett. Instead, under the terms of the contract, Arreola only “agrees to

sell and convey the property.” In addition, the contract refers to closing documents to be delivered

at closing and provides that Everett, as the buyer, “may enforce specific performance of Seller’s

obligations under this contract.”

       “Specific performance of a contract for the sale of realty is ordinarily granted where the

suit is based on a valid contract, but it is not a remedy which exists as a matter of right.” Kress v.

Soules, 261 S.W.2d 703, 704 (Tex. 1953); Pickard v. LJH Enters., Inc., No. 01-07-01105-CV,

2010 WL 1493105, at *3 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, no pet.) (noting breach

of contract to sell real property generally may be enforced by specific performance due to unique

nature of real property) (mem. op.); Scott v. Sebree, 986 S.W.2d 364, 370 (Tex. App.—Austin

1999, pet. denied) (stating specific performance often granted when valid contract to purchase real

property is breached by seller). The trial court recognized this legal principle in suggesting Everett

might want to replead his claim. Of course, the trial court’s statement does not address what effect,

if any, res judicata or other affirmative defenses would have on such a claim. Nor do we address

those issues. Because the real estate sales contract did not convey title to Everett, the trial court

did not err in denying Everett’s request for a declaration that he owned the property. See Gordon,

352 S.W.3d at 43; Masgas, 310 S.W.3d at 570.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                   Karen Angelini, Justice




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