                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-07-00080-CV
        ______________________________


       HOMER FEARS, LOUISE FEARS,
  TERRY FEARS AND TERESA FEARS, Appellants

                          V.

              TEXAS BANK, Appellee



    On Appeal from the 4th Judicial District Court
                Rusk County, Texas
             Trial Court No. 2001-295




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                             OPINION

       Tommy and Wanda Fears borrowed money from the Texas Bank and failed to make the

payments in a timely manner. Tommy's parents, Homer and Louise Fears, conveyed fifty acres of

their property to the Bank to avoid foreclosure or other legal consequences to Tommy. The Bank

gave Homer and Louise written assurance that it would return their property on payment of the note.

The note was never satisfied and the Bank was preparing to sell the fifty acres when Homer and

Louise, joined by their other son, Terry, and his wife, Teresa, sued the Bank alleging they had been

coerced and were under duress when they executed the deed; they requested the trial court to find

the conveyance void.

       Tommy also conveyed a twenty-acre tract to the Bank which Homer and Louise had

previously conveyed to him. Homer and Louise claim their deed to Tommy violated the statute of

frauds and was void.1 Ultimately, the Bank filed summary judgment motions which the trial court

granted finding the Bank was the owner of both tracts. The Fearses2 appeal from a summary

judgment taken in favor of the Bank, and Tommy and Wanda Fears.3


       1
         They sought 1) to have the first deed set aside, 2) declaration that the second deed was
invalid, 3) judgment declaring the boundaries of their realty, 4) permanent injunction to prevent the
Bank or codefendants, Tommy and Wanda, from conveying the property owned by them, and
5) attorney's fees.
       2
           Homer, Louise, Terry, and Teresa Fears will collectively be referred to as the Fearses.
       3
        In the original petition, it is alleged that Terry Fears and wife, Teresa Fears, owned the
twenty-acre tract. There is no support for that contention in the record. In the brief filed in this
Court, the Fearses argue that "legal and equitable title to the property is still in Homer and Louise

                                                   2
       In a pleading which the Bank entitles as a cross-action, but which appears to be a classic

counterclaim,4 the Bank claimed that the Fearses' lawsuit had clouded its title to the property and

requested a declaratory judgment establishing its title to the fifty- and twenty-acre tracts.

       The Bank filed its initial motion for summary judgment in June 2005. The motion is a

traditional one alleging there was no genuine issue of material fact. It contains a lengthy exposition

of the course of events leading up to the foreclosure and is supported by an affidavit by the president

of the Bank. The Fearses filed a response August 17, 2005.

       In February 2006, the Bank then filed a supplemental motion for summary judgment (a no-

evidence motion against the claims of duress) and the Fearses filed a supplemental response

February 6, 2006. A hearing on the motion was conducted February 23; the trial court advised the

attorneys by letter dated February 27 that the Bank's motions for summary judgment were granted.

       On February 28, the Fearses filed a supplemental complaint which, on March 2, the Bank

filed a motion to strike.5 The trial court granted summary judgment by order signed April 6, 2006.


Fears." It is unclear why Terry and Teresa are included as appellants.
       4
         A counterclaim is asserted against the opposing party. A cross-claim is a pleading asserted
against a coparty. TEX . R. CIV . P. 97(a), (b), (e).
       5
         Summary judgment may be granted on later-pleaded causes of action if the grounds actually
asserted show that the plaintiff could not recover on the later-pleaded cause of action. Ortiz v.
Collins, 203 S.W.3d 414, 423 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Espeche v. Ritzell,
123 S.W.3d 657, 664 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ("If a motion for
summary judgment is sufficiently broad to encompass later-filed claims, the movant need not amend
his motion."). In this case, the late-filed pleadings are essentially expansions of the original claims.
New causes of action were alleged that might not fall within the scope of the previously-filed

                                                   3
That summary judgment was not then final, as it did not dispose of the cross-action. The cross-

action was disposed of by a later judgment signed February 8, 2007, and this appeal followed in due

course.

I.        Contentions of the Fearses

          On appeal, the Fearses complain that the summary judgment regarding the property was

erroneous. First, the Fearses argue there was some evidence this was a sham transaction which

should be set aside; that the fifty-acre tract was a homestead and it could not be foreclosed on for a

non-purchase-money lien. The Fearses argue their deed to the Bank was nothing more than an artful

way to avoid the homestead provisions of the Texas Constitution—and they only agreed to this

procedure because the Bank threatened to have their son jailed should they refuse.

          Second, the Fearses assert that there was some evidence the deed was obtained by fraud and

extortion by the Bank and that there was some evidence no consideration was received for the

transfer.

          In their third point, the Fearses argue the trial court erred by refusing to grant their motion

for summary judgment asking the court to set aside the 1995 deed to Tommy because it did not meet

the requirements of the statute of frauds—because it did not adequately identify the property being

transferred.




motions for summary judgment.

                                                    4
       In a fourth point, the Fearses argue that the court erred by granting summary judgment on

attorney's fees because they contested the amount in their response to the summary judgment motion

and because the summary judgment against them was improperly rendered.

II.    The Bank's Response

       The Bank addresses the Fearses' first argument as complaining the court erred because there

was an issue about whether the property was a homestead, and submits that the issue was not

preserved because that matter was not alleged until the Fearses' first supplemental complaint, filed

after the summary judgment hearing.

       The Bank contends that "fraud and extortion," as now argued by the Fearses, was not before

the trial court—the only tort claims were duress and coercion, which were before the court and

properly subject to the Bank's no-evidence summary judgment motion. It also argues there was no

evidence to controvert its allegations that credit was given to the notes of Tommy and Wanda as

consideration for the transfer of the property.

       The Bank argues the deed of the twenty-acre tract sufficiently describes the property to meet

the requirements of the statute of frauds.

       Finally, the Bank argues there is no summary judgment evidence to controvert its claims for

attorney's fees—only legal conclusions that those fees were excessive.




                                                  5
III.   Discussion

       A.      Standard of Review

       When reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor.

Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc.

v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). On appeal, the movant must show that there is no

material fact issue and that the movant is entitled to judgment as a matter of law. McNamara, 71

S.W.3d at 311; Steel, 997 S.W.2d at 223.

       B.      Homestead

       The Bank correctly states that the homestead defense now advocated by the Fearses was not

presented to the trial court by pleading or by summary judgment response. No pleading raising the

homestead issue was filed until after the trial court had conducted a hearing on the motions for

summary judgment and advised the attorneys in writing of its decision. There is no showing that the

trial court was ever presented with or considered this argument. Having not timely presented the

issue to the trial court, it cannot now be considered.

       C.      Duress, Coercion, and Fraud

       The next series of complaints is generally directed at the portion of the summary judgment

in which the court found the Bank conclusively proved it had not engaged in a series of misdeeds




                                                  6
in order to obtain the rights to the Fearses' property—or, alternatively, that the Fearses had provided

no evidence to support those allegations.

       In the Fearses' original response to the first motion for summary judgment, they claimed that

an issue of fact existed on its document-related claims, and on their claims of lack of consideration,

fraud, duress, illegal coercion, and extortion—all of which were based on the appendices attached

to their response. The appendices consist of the depositions of Homer (forty-five pages of content),

Louise (eight pages of content), and Tommy (thirty-five pages of content).

       The Bank's sole defensive argument in this context is that the response is structurally

inadequate because the Fearses' counsel did not adequately direct the trial court's attention to any

particular portion of these depositions as support.

       Homer's deposition contains allegations that the Bank threatened to "send my son to prison,"

and to avoid that, Homer and his wife executed the fifty-acre deed to the Bank. Homer further stated

he and his wife received nothing for granting the deed to the Bank.

       Louise testified she had been upset about the possibility of conveying the fifty acres to the

Bank, but Tommy stated the Bank was to take everything he had and send him to prison and that he

had tried to shoot himself, but the gun misfired. She stated they only agreed to grant the Bank the

deed because the Bank officer told her that Tommy could go to prison.

       Tommy testified about the history of his notes with the Bank—and his subsequent

bankruptcy, and about a number of other matters, including the death of his son at about the time of



                                                  7
the Bank's activities. Tommy also stated there was a trailer confiscated by the Bank that was not part

of the collateral for any note—and which in fact did not belong to him.

        The Bank argues that none of this can be considered as evidence in response to its no-

evidence motion for summary judgment because it was filed in response to the Bank's first motion

for summary judgment, rather than the second (no-evidence) motion. The Bank directs our attention

to Saenz v. Southern Union Gas Co., 999 S.W.2d 490 (Tex. App.—El Paso 1999, pet. denied), as

support for its position.

        In Saenz, the plaintiff filed a summary judgment response to a traditional motion in 1995.

On November 25, 1997, the defendant filed a no-evidence motion, which was heard in December.

Although Saenz filed a response, it was untimely, and the El Paso court held that it would not

consider the 1995 response as providing evidence.6 The El Paso court stated that, even though a

nonmovant is not required to "needlessly duplicate evidence already found in the court's file," he or

she is required to make sure the evidence is properly before the trial court for its consideration in

ruling on the motion for summary judgment. Id. at 494.

        As in Saenz, here, the Fearses did not request the trial court take judicial notice of the

evidence presented in the answer to the previous motion for summary judgment, nor did they

incorporate that response or even refer to it. See Kalyanaram v. Burck, 225 S.W.3d 291, 301 (Tex.

        6
       Similarly, see Lee v. Palacios, No. 14-06-00428-CV, 2007 Tex. App. LEXIS 8193 (Tex.
App.—Houston [14th Dist.] Oct. 11, 2007, no pet. h.) (mem. op.) (ten months between first and
second motions, and first motion had been denied).


                                                  8
App.—El Paso 2006, no pet.) (affidavit dated July 28, 2004, not attached to or referenced in 2005

response to motion for summary judgment, thus not considered by the court); Steinkamp v.

Caremark, 3 S.W.3d 191, 195 (Tex. App.—El Paso 1999, pet. denied) (incorporation by reference

to previous answer found to properly present such evidence to the trial court); McMillan v. Hillman

Int'l Brands, Ltd., No. 14-03-01392-CV, 2004 Tex. App. LEXIS 6738 (Tex. App.—Houston [14th

Dist.] July 27, 2004, pet. denied) (mem. op.).

       The result is this: Even if we concluded that we should review the entirety of the

depositions—which is questionable, see Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex.

1989) (holding general references to voluminous record do not direct trial courts and parties to

evidence on which movant relies); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st

Dist.] 1996, no writ)—they were not filed in response to the no-evidence motion and were not

otherwise presented, by incorporation or reference, to the trial court. Further, over eight months

elapsed between the Bank's filing of its traditional motion and its no-evidence motion. The summary

judgment on those issues was thus properly rendered.

       D.      Failure or Lack of Consideration

       As part of their second point of error, the Fearses allege that, when they conveyed the fifty

acres to the Bank, they received no consideration and it is therefore voidable. However, it is

undisputed that, at the time of the conveyance, the Bank credited the note of Tommy and Wanda in

the amount of $36,000.00. A valuable and legal consideration may consist either of a benefit to the



                                                 9
promissor or a loss or detriment to the promissee. Minton v. Riverside State Bank, 399 S.W.2d 196,

198 (Tex. Civ. App.—Fort Worth 1966, no writ). We find the evidence shows conclusively that

consideration was given for the conveyance.

        E.      Statute of Frauds—Twenty-Acre Tract

        The Fearses contend the judgment was improper because the twenty-acre deed conveyed

from Homer and Louise to Tommy and Wanda did not comply with the statute of frauds and was

therefore void. Consequently, the twenty-acre deed Tommy executed in the Bank's favor conveyed

nothing. This complaint is based on the Fearses' position that the description of the property is

insufficient to allow it to be located from the instrument of conveyance.

        The Bank responds by complaining that the Fearses' expert testimony was inadequate. That

misapprehends the nature of this argument. The contention is that the document itself is legally

invalid. If so, that is shown on the face of the document—as a matter of law. That particular

question is not an issue susceptible to evidentiary proof.

        However, there is some purpose for having evidence from a surveyor—it provides some

indication the property could be identified on the ground—which is one of the matters that is

important in such a review.

        The statute of frauds requires that all conveyances of real property be in writing and signed

by the party to be charged. See TEX . BUS. & COM . CODE ANN . § 26.01(b)(4) (Vernon Supp. 2007).

For a land sales contract to meet the requirements of the statute of frauds, it must furnish within itself



                                                   10
or by reference to another existing writing the means or data to identify the particular land with

reasonable certainty. See Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983); Jones v. Kelley, 614

S.W.2d 95, 99 (Tex. 1981) (citing Morrow v. Shortwell, 477 S.W.2d 538, 539 (Tex. 1972); Wilson

v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945)). The purpose of a description in a written

conveyance is not to identify the land, but to afford a means of identification. Jones, 614 S.W.2d

at 99–100. A description's validity under the statute of frauds is not affected by the knowledge or

intent of the parties. See Morrow, 477 S.W.2d at 540. Further, a plat made from extrinsic evidence

cannot give validity to the description in the sales contract. See id.; Mayor v. Garcia, 104 S.W.3d

274, 276–77 (Tex. App.—Texarkana 2003, pet. dism'd w.o.j.).

       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. See Morrow, 477 S.W.2d at 539; Matney v. Odom, 147 Tex. 26, 210

S.W.2d 980, 982 (1948).7 If enough appears in the description so that a person familiar with the area

can locate the premises with reasonable certainty, it is sufficient to satisfy the statute of frauds.

Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248–49 (1955). Even when "[t]he 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



       7
         Cf. Stewart v. Collatt, 154 S.W.2d 891, 892 (Tex. Civ. App.—Dallas 1941, no writ) (finding
description adequate where general location specified, along with starting point and metes and
bounds description therefrom).

                                                  11
from extrinsic evidence." Morrow, 477 S.W.2d at 540 (citations omitted); Reiland v. Patrick

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

        If a conveyance of an interest in real property does not sufficiently describe the land to be

conveyed, it is void and unenforceable under the statute of frauds. See Republic Nat'l Bank of Dallas

v. Stetson, 390 S.W.2d 257, 261 (Tex. 1965). Such a contract, deed, or conveyance will not support

an action for specific performance or a suit for damages for a breach of contract. Wilson v. Fisher,

144 Tex. 53, 188 S.W.2d 150, 152 (1945); Reiland, 213 S.W.3d at 437.

        The specific twenty-acre deed complained of is attached as an exhibit to the Bank's first

motion for summary judgment. It purports to transfer property from Homer and Louise to Tommy

and Wanda, and is dated December 11, 1995. There is no metes and bounds description. The

description reads as follows:

                Being 20 acres off of the West end of the following described one-hundred
        acre tract, the boundaries of such 20 acres to be located so as not to include any of
        the waters of Shawnee Creek, said one-hundred acre tract described as follows:
                Being a tract of 100 acres, situated in the Daniel Reel Survey, Rusk County,
        Texas and being the same land described and conveyed in Deed from J. H. Turner to
        J. L. Fears, dated August 16, 1901, and recorded in Volume 47, Page 620, Deed
        Records of Rusk County, Texas.

        There is adequate description of the location of the 100 acres—by reference to the official

deed records of the county. The question is whether the description of the twenty-acre portion of that

100-acre tract is legally sufficient.




                                                 12
       The Bank attached a surveyor's plat made as the result of a survey conducted by a Texas

registered public surveyor to its first motion for summary judgment; this plat purports to describe

a seventy-acre tract comprised of the fifty-acre tract and the twenty-acre tract. This plat reflects the

twenty acres' south boundary to be common with the fifty acres' north boundary and for the two tracts

to possess a common west corner. There is, however, no evidence to explain how the surveyor

established the boundary lines of the twenty-acre tract shown on his plat. The Bank simply argues

the description is sufficient because a surveyor located the property and prepared the "plats and

metes and bounds descriptions as referenced."

       Texas courts use a fairly strict application of the statute of frauds and conveyances, yet, the

courts have also noted that the words of description are given a liberal construction in order that a

conveyance may be upheld. Although parol evidence may be admitted to explain the descriptive

words and to identify the land where the instrument contains a "nucleus" of description, Gates, 280

S.W.2d 247; Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Miller v. Hodges, 260 S.W. 168

(Tex. Comm'n App. 1924), none appears in this case. We also note that even language stating the

land is "my property," "my land," or "owned by me" "is sufficient when it is shown by extrinsic

evidence that the party to be charged and who has signed the contract or memorandum owns a tract

and only one tract of land answering the description in the memorandum." Kmiec v. Reagan, 556

S.W.2d 567, 569 (Tex. 1977) (quoting Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 223

(1949)).



                                                  13
        Nevertheless, to be sufficient, the deed must furnish within itself, or by reference to some

other writing, the means or data by which the land to be conveyed may be identified with reasonable

certainty. Id. at 569; Morrow, 477 S.W.2d at 539; Littlejohn v. Kariel, 568 S.W.2d 452, 454 (Tex.

Civ. App.—Waco 1978, no writ) (finding description in deed insufficient when it referred to "50

acres . . . off the South end" of a specified tract).

        In this case, to simply describe property as "off of the west end," even when the main

property is adequately identified, is not sufficient, standing alone, to determine where, or at what

angle, or series of angles, the property was divided from the main part. See Matney, 210 S.W.2d at

982 ("If the shapes respectively of the two pieces of land had been stated and course and distances

of boundary lines called, and the four acres had been designated 'off of' instead of 'out of' the larger

piece, a less difficult question would be presented. However, under the established law of this state,

the descriptive language used in this lease is vitally lacking in definiteness."). Even though the

surveyor set boundaries, there is no evidence he was able to locate the twenty-acre tract in question

with reasonable certainty based on the data contained in the deed or any other writing. The survey

appears to place the twenty-acre tract in the northwest corner of the 100-acre tract. We find nothing

in the description of the property that would provide data to establish that the property was located

in the northwest corner. The difficulty with the description is that it refers only to "[b]eing 20 acres

off of the West end of the following described one-hundred acre tract." In order to establish the

precise location of the twenty acres, one must engage in inference and conjecture to determine its



                                                    14
boundaries. This description is somewhat like that in Williams v. Ellison, 493 S.W.2d 734, 735

(Tex. 1973), in which the property was described as: "a portion of the boundary line of the 10 acre

tract so purchased shall be contiguous to a portion of the boundary line of the 10 acres described

above in this contract . . . ." The Texas Supreme Court held the description did no more than provide

a site of origin for the option tract. Id. at 736. Likewise, here, the description merely provided that

the twenty-acre tract was "off of" the west end of the 100-acre tract. It did not provide any distance

that such tract was to be contiguous with the west end. Theoretically, a twenty-acre tract could have

been "off of the west end" of the 100-acre tract even if it had a mutual boundary for a very short

distance. Neither did the description provide any length, breadth, or shape of the referenced twenty-

acre tract. The writing did not supply sufficient information within itself or by reference to another

document to locate the twenty-acre tract. The only other reference was to the original 100-acre tract,

from which it was supposed to be carved, and that is not sufficient to assist in identifying and

locating this twenty-acre tract with reasonable certainty. Thus, the deed fails to satisfy the statute

of frauds and is void and unenforceable.

       F.      Attorney's Fees

       The trial court awarded the Bank attorney's fees on its "cross-action" for declaratory judgment

against the Fearses and established the Bank's ownership of both the fifty-acre tract and the twenty-

acre tract. The declaratory judgments statute allows the court to award reasonable and necessary

attorney's fees "as are equitable and just." TEX . CIV . PRAC. & REM . CODE ANN . § 37.009 (Vernon



                                                  15
1997). One of the considerations in determining a reasonable attorney's fee is "the amount involved

and the results obtained." Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.

1997). Further, under the Declaratory Judgments Act, the attorney's fee is also subject to the court's

determination that the fee is equitable and just. When the court awarded the attorney's fee, the Bank

had prevailed in all respects; we have determined the judgment is in error regarding twenty of the

seventy acres involved. Therefore, we cannot be reasonably certain the trial court was not

significantly influenced in awarding attorney's fees by an erroneous conclusion that the Bank should

recover the entire seventy acres. Consequently, we reverse the award of attorney's fees and remand

to the trial court for further consideration in light of our opinion. See Barker v. Eckman, 213 S.W.3d

306, 314 (Tex. 2006); Avco Corp. v. Interstate Sw., Ltd., No. 14-05-00860-CV, 2007 Tex. App.

LEXIS 8838, at *97 (Tex. App.—Houston [14th Dist.] Nov. 1, 2007, no pet. h.).8




       8
         No issue is presented to this Court as to whether the Bank's counterclaim asserts a cause of
action independent of the Fearses' suit. See BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex.
1990).

                                                 16
       We affirm the judgment as to the Fearses' claims concerning the fifty-acre tract. Having

found the conveyance of the twenty-acre tract void and unenforceable, we reverse and render

judgment on that issue. The attorney's fee issue is reversed and remanded for further proceedings

consistent with this opinion.



                                            Jack Carter
                                            Justice


Date Submitted:        December 10, 2007
Date Decided:          February 6, 2008




                                               17
