                           NUMBER 13-11-00196-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

TIM P. DITTMAN AND DEBBIE L. DITTMAN,                                  Appellants,

                                         v.

ANTHONY A. CERONE AND OOTZIE
PROPERTIES – HOU, LLC FORMERLY
NAMED OOTZIE OF TEXAS, LLC,                                             Appellees.


                   On appeal from the 80th District Court
                         of Harris County, Texas.


           MEMORANDUM OPINION ON REHEARING
         Before Justices Rodriguez, Garza and Benavides
      Memorandum Opinion On Rehearing by Justice Benavides
      We grant the appellants’ motion for rehearing, withdraw our opinion and judgment

dated March 7, 2013, and issue this memorandum opinion on rehearing.
        This case involves an option contract for the sale of property in Harris County.

Appellants Tim and Debbie L. Dittman contend the trial court erred when it ordered that

the Dittmans sell one of their properties to appellees Anthony Cerone and Ootzie

Properties—Hou, LLC, formerly named Ootzie of Texas, LLC. By eighteen issues, the

Dittmans argue that the trial court’s ruling violates basic tenets of contract law by

construing certain e-mail messages as one contract.     They also contend the trial court’s

ruling violates the statute of frauds, the Texas Family Code, and the statute of

conveyances.     Finally, the Dittmans argue that the trial court erred in finding fraud and

denying their affirmative defense. We affirm.

                                     I. BACKGROUND

        Tim and Debbie Dittman owned a piece of property totaling nearly 3.78 acres in

Seabrook, Harris County, Texas.     This property contained horse stables and is referred

to by all parties as the “Stable Property.” The Dittmans also owned an approximately

seventeen-acre piece of land adjacent to the Stable Property.      Immediately next to the

Dittmans’ seventeen-acre property existed another nearly seventeen-acre parcel owned

by Joe Baccus and Vicki Rihm.

        In 2006, the Dittmans, Baccus, and Rihm decided to market their respective

seventeen-acre properties as a single parcel totaling approximately thirty-four acres.

This thirty-four acre property is referred to as the “Pasture Property.” The Dittmans,

Baccus, and Rihm listed the Pasture Property with real estate broker David Lee in July

2007.    Lee was a real estate broker with Transwestern.       Cerone, who lives in New

Jersey and works in Pennsylvania but owns a transportation company in Houston,




                                             2
Texas, contacted Lee regarding the Pasture Property.        Cerone was looking for property

to expand his Houston company, Ootzie of Texas, LLC. Cerone and Lee exchanged

several e-mail messages and phone calls regarding the Pasture Property; in the midst of

these exchanges, Cerone learned about the Dittmans’ Stable Property, as well.         Cerone

expressed interest in the Stable Property, even though it was not for sale.

        Cerone visited the Pasture Property on October 11, 2007. The next day, Cerone

signed an earnest money contract to purchase the Pasture Property from the Dittmans,

Baccus, and Rihm. The earnest money contract set forth, among other things, that

Cerone would:     (1) pay $2.65 per square foot on the Pasture Property; (2) close within

60 days; and (3) pay $100,000 of non-refundable earnest money for the right to

terminate prior to the closing date.    After signing the earnest money contract, Cerone

asked Lee about the Stable Property again.        Lee responded by e-mail that the Dittmans

were not interested in selling the Stable Property at the time but could offer him a “right of

first refusal.” The parties, however, never signed a document granting Cerone a right of

first refusal.

        One week later, Stewart Title Company issued a title showing several recorded oil

and gas leases on the Pasture Property.       Cerone sought the advice of an oil and gas

attorney regarding these leases, and was informed that removing the oil and gas leases

would cost approximately $50,000 to $200,000 in payments to lease holders, not

including attorney’s fees.   Cerone asked the Dittmans, Baccus, and Rihm to lower their

asking price to cover these costs. The sellers refused.

        Later, the sellers agreed to lower the asking price of $2.65 per square foot to




                                              3
$2.50 per square foot on the Pasture Property, if Cerone agreed to close on the Pasture

Property within thirty days instead of sixty.       Cerone continued to ask for concessions

because of the possible expense to handle the oil and gas leases, and he asked for an

option contract to buy the Stable Property.     The following e-mails were exchanged:

E-mail # 1:

       From:                David Lee
       Sent:                Tuesday, October 30, 2007 4:32 PM
       To:                  Anthony Cerone
       Subject:             Stable Property
       Importance:          High

       Anthony, I was able to confirm with Tim and Debbie Dittman that they will
       agree to a 2 year option at $2.75 s.f. on the 3.78 acre tract. As-is. This
       is subject to you closing on the 35 acre tract tomorrow.

       In addition, he is prepared to lease the 35 acre tract for that same period
       for $300 per month plus he will carry necessary insurance.

       Anthony, in my professional opinion, the Dittmans just put over $200,000
       on the table that is available to you today should you decide to flip the
       property. They perceive this to be a big concession.

       Tim and Debbie were planning to list the property with me and I was
       attaching a $5.00 s.f. asking price hoping to achieve $4.00 s.f.

       David

E-mail # 2:

       From:         David Lee
       Sent:         Wednesday, October 31, 2007 9:56 AM
       To:           Anthony Cerone
       Subject:      Bayport Property

       Good Morning Anthony:

       Contrary to your instructions to Stewart Title Company to revise the
       paperwork to reflect a $125,000 price reduction (which had not even been
       presented to the sellers for consideration), throughout the late afternoon



                                                4
      and early evening my client’s [sic] debated and considered the totality of
      the deal on the table. They have decided they will not revise the price
      from the agreed $2.50 s.f. number.

      Each of them will be traveling to the title company later this morning to sign
      necessary documentation for the closing to take place today. Cynthia
      Haggard can e-mail you documentation for your signature today.
      Sufficient funds will need to be wired today.

      We can work immediately thereafter to prepare the necessary material to
      reflect the agreement reached in principal [sic] yesterday concerning the 2
      year option on the 3.7 +/- acre stable property at $2.75 s.f. plus the 2 year
      lease on the 34.59 acre property at $300 per month, including necessary
      insurance protection.

      If the closing does not take place today then the original contract remains
      in effect should you choose to keep it in effect.

      It would be helpful to have an understanding as to your intentions today.
      One or more of the sellers will be leaving town tomorrow and won’t be
      available for the next week.

      Sincerely,
      David

E-mail # 3:

      From:         1shasta2 [Debbie Dittman]
      Sent:         Wednesday, October 31, 2007 2:35 PM
      To:           David Lee
      Subject:      Seabrook

      Hi David,

      Tim and I wanted to let you know that we are working on getting the
      following agreements ready for Mr. Cerone’s review.

      The first will be the Lease Agreement for the 34.59 acres. The term is to
      be a twenty-four (24) month period at the rate of $300.00 per month.

      The second will be the twenty-four (24) month option to purchase the 3.78
      acre tract of ours in Seabrook at $2.75 p.s.f.




                                            5
        We will keep you posted on the progress of both items and please pass
        along to Mr. Cerone that we wish to get these executed as soon as
        possible.

        Thanks,
        Debbie

        Cerone accepted the Dittmans’ offer of a two-year option to purchase the Stable

Property for $2.75 per square foot and agreed not to terminate the Pasture Property

contract.   He closed on the Pasture Property on October 31, 2007, and wired the

appropriate funds that same day.

        At or near the same time as the closing, the City of Seabrook (where both the

Pasture Property and Stable Property were located) and the Port of Houston Authority

settled a long-standing lawsuit.   It was commonly believed that this settlement would

have a positive effect on the value of commercial properties in the Bayport Terminal

Area.

        In November 2007, Cerone attempted to exercise his option to purchase the

Stable Property.   The Dittmans, through an attorney, informed Cerone that they never

gave him an option contract.   Instead, they believed they had offered him a “right of first

refusal.”   Consequently, Cerone sued the Dittmans for specific performance on the

option contract upon which he believed the parties had agreed. After a bench trial, the

trial court issued a detailed order with fifty-three findings of fact and seventeen

conclusions of law, ultimately concluding that the three e-mails constituted a valid option

contract and ordering the Dittmans to convey their Stable Property to Cerone and Ootzie

of Texas, LLC. This appeal ensued.




                                            6
                           II. APPLICABLE STANDARDS OF REVIEW

       Appellants challenge several of the trial court’s findings of fact and conclusions of

law.   Findings of fact in a nonjury trial have the same force and dignity as a jury's

verdict.   Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a complete

reporter's record is filed, the trial court's fact findings may be reviewed for legal and

factual sufficiency under the same standards as jury verdicts.           Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996) (per curiam); Catalina, 881 S.W.2d at 297. We do not

substitute our judgment for that of the fact finder, even if we would have reached a

different conclusion when reviewing the evidence.       FDIC v. F & A Equip. Leasing, 854

S.W.2d 681, 684 (Tex. App.—Dallas 1993, no writ).

       In addressing a legal sufficiency challenge, we view the evidence in a light most

favorable to the finding, consider only the evidence and inferences that support the

finding, and disregard all evidence and inferences to the contrary.            Catalina, 881

S.W.2d at 297; City of Keller v. Wilson, 86 S.W.3d 693, 710 (Tex. 2002). We uphold the

finding if more than a scintilla of evidence exists to support it.   City of Keller, 86 S.W.3d

at 710.    In reviewing a factual sufficiency challenge, we examine all of the evidence and

set aside a finding only if the evidence is so weak or the finding so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust.         Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

       We review a trial court's challenged conclusions of law as legal questions.      BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Accordingly, we

apply a de novo standard.      In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). An




                                              7
appellant may not challenge a trial court's conclusions of law for factual sufficiency.

BMC Software, 83 S.W.3d at 794.       However, we determine the correctness of the trial

court's legal conclusions drawn from the facts.   Id.    If we determine that a conclusion of

law is not correct, but the trial court rendered the proper judgment, the incorrect

conclusion of law does not require reversal.            Id.   In other words, in reviewing

challenges to a trial court's conclusions of law, we sustain the judgment on any legal

theory supported by the evidence.          In re A.M., 101 S.W.3d 480, 484 (Tex.

App.—Corpus Christi 2002, no pet.).

               III.   CONSTRUING THE E-MAIL MESSAGES AS ONE CONTRACT

       In issues one, two, and five, the Dittmans argue that the e-mails should not be

construed together to create an option contract. The Dittmans cite Halper v. University

of the Incarnate Word for the proposition that unsigned papers may be incorporated by

reference into another document only when they plainly refer to each other. 90 S.W.3d

842, 845 (Tex. App.—San Antonio 2002, no pet.) (citing Owen v. Hendricks, 433 S.W.2d

164, 166 (Tex. 1968); Castroville Airport, Inc. v. City of Castroville, 974 S.W.2d 207, 211

(Tex. App.—San Antonio 1998, no pet.)).     Because none of the e-mails “plainly” refer to

each other, the Dittmans aver that they cannot be construed together as one contract.

See Owen, 433 S.W.2d at 166.

       Texas law, however, allows us to construe these e-mail messages together to

comprise one instrument.     See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22

S.W.3d 831, 840 (Tex. 2000) (finding that "a court may determine, as a matter of law,

that multiple documents comprise a written contract”).        “It is well-established law that




                                            8
instruments pertaining to the same transaction may be read together to ascertain the

parties' intent."   City of Houston v. Williams, 353 S.W.3d 128, 137 (Tex. 2011) (citing

Fort Worth Indep. Sch. Dist., 22 S.W.3d at 840) (internal quotations omitted).       “This rule

is echoed in statute of frauds jurisprudence:      in order to satisfy a statute of frauds,

multiple documents can be read together.”         Id. at 137 n.9 (citing the RESTATEMENT

(SECOND) OF CONTRACTS § 132). “The multiple documents need not contain all of the

terms; instead, only the essential terms are required.”    Id. at 137.

       The essential terms of the option contract are found by analyzing the three

e-mails together.     The Dittmans offered to provide a two-year option to Cerone to

purchase their Stable Property.     The price of their offer was $2.75 per square foot of

their 3.78 acre parcel of property.    The consideration for this option contract was that

Cerone had to close on the Pasture Property by October 31, 2007, and not terminate the

Pasture Property deal. Based on the foregoing, we hold that the essential terms of the

option contract were evident.     See Advantage Physical Therapy, Inc. v. Cruse, 165

S.W.3d 21, 24 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (setting forth the basic

elements of a contract). We conclude that the trial court did not err when it construed

the three e-mails together to comprise the option contract, and we overrule issues one,

two, and five.

                                    IV. STATUTE OF FRAUDS

A.     Applicable Law

       By issues three, four, six, and seven, the Dittmans contend that the three e-mails,

interpreted together as an option contract, did not satisfy the statute of frauds.   See TEX.




                                              9
BUS. & COM. CODE ANN. § 26.01(b)(4) (West 2009).        The statute of frauds requires that

all contracts for the sale of real estate be in writing and signed by the person to be

charged.     Id.; see also TEX. PROP. CODE ANN. § 5.021 (West 2004) (setting forth that the

conveyance of land must be in writing and "subscribed and delivered by the conveyor").

The Dittmans argue that the e-mails did not meet the statute of frauds because:         they

used “futuristic language”; they did not identify the property with reasonable certainty;

they were signed with electronic signatures; and Lee did not have authority to bind the

Dittmans to an option contract.

B.     Discussion

     1. “Futuristic” Language

       In their third issue, the Dittmans argue that the option contract was “futuristic” and

thus unenforceable.      “Under Texas law, a writing that contemplates a contract or

promise to be made in the future does not satisfy the requirements of the statute of

frauds.”   Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 778 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (citing Martco, Inc. v. Doran Chevrolet, Inc.,

632 S.W.2d 927, 928–29 (Tex. App.—Dallas 1982, no writ)).             Writings that contain

"futuristic" language are insufficient to confirm that a contract or promise is already in

existence.    Id. (citing Martco, 632 S.W.2d at 928).        The Dittmans state that the

language in e-mail number 3, for example, “refers solely to the creation of a future

contract for Mr. Cerone’s review.”     E-mail number 3 also states that the Dittmans “will

keep [Cerone] posted on the progress” and that they wished to get the contract for the

Pasture Property and the alleged option contract “executed as soon as possible.”




                                             10
       Assuming arguendo that some of these statements could be considered

“futuristic,” we note that an agreement to make a future contract is enforceable “if it is

specific as to all essential terms, and no terms of the proposed agreement may be left to

future negotiations.” Fort Worth Indep. Sch. Dist., 22 S.W.3d at 146.       Here, as we held

in section III of our opinion, the three e-mails construed together revealed all of the

essential terms of the option contract.   See id. We overrule this issue.

   2. The Sufficiency of the Property Description

       In their fourth issue, the Dittmans argue the trial court erred in concluding that the

three e-mails satisfied the statute of frauds because they failed to identify the Stable

Property with reasonable certainty.       The statute of frauds requires that the writing

furnish the data to identify the property with reasonable certainty.        Tex. Builders v.

Keller, 928 S.W.2d 479, 481 (Tex. 1996) (citing Morrow v. Shotwell, 477 S.W.2d 538,

539 (Tex. 1972)).   In Morrow, the Texas Supreme Court set forth the applicable test for

sufficiency of property description:

       The rule by which to test the sufficiency of the description is so well settled
       at this point in our judicial history, and by such a long series of decisions by
       this court, as almost to compel repetition by rote: To be sufficient, the
       writing must furnish within itself, or by reference to some other existing
       writing, the means or data by which the land to be conveyed may be
       identified with reasonable certainty.

Morrow, 477 S.W.2d at 539.

       While the sufficiency of the writing under the statute of frauds is a question of law,

"[i]f 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."

Apex Fin. Corp. v. Garza, 155 S.W.3d 230, 237 (Tex. App.—Dallas 2004, pet. denied)



                                             11
(citing Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248–49 (1955)).         To determine

the sufficiency of the description, the trial court may consider evidence to determine

whether "a person familiar with the area can locate the premises with reasonable

certainty."   Id.   Parol evidence may be used to explain or clarify the written agreement,

but not to supply the essential terms.          Tex. Builders, 928 S.W.2d at 481.          A

description's validity under the statute is not affected by the knowledge or intent of the

parties.   See Morrow, 477 S.W.2d at 540.

       A writing need not contain a metes and bounds property description to be

enforceable, but it must furnish the data to identify the property with reasonable certainty.

Tex. Builders, 928 S.W.2d at 481 (citing Morrow, 477 S.W.2d at 539).             "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."       Reiland v. Patrick Thomas Props., Inc.,

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

       The Dittmans argue that there is no metes and bounds description for the Stable

Property, nor is there any mention of the county or state in which the Stable Property is

located. The trial court, however, in its conclusions of law, held that the terms “stable

property,” “3.78 Acre tract,” and the “3.78 acre tract of ours in Seabrook” used in the

three e-mails were sufficient to identify the land to be conveyed with reasonable

certainty. We agree.

       Like the trial court, we find the Texas Supreme Court’s opinion in Pickett v. Bishop

dispositive of this question.   223 S.W.2d 222, 223 (Tex. 1949). In Pickett, Bishop, the




                                             12
owner of the land in question, described the land he wanted to sell as “my property

described on the opposite side hereof.”     Id. On the reverse side of this writing was the

description, “20.709 acres out of John Stephens 60 acres survey in Tarrant County,

Texas.”   Id. The Texas Supreme Court held that “the words ‘my property’ in the body

of the instrument are not to be ignored.”    Id. The supreme court went on to elaborate:

       The settled rule in this state is that such a description, by reason of the use
       in the memorandum or contract of such words as “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 of property and only one tract of land answering the
       description in the memorandum. The stated ownership of the certain
       property is in itself a matter of description which leads to the certain
       identification of the property and brings the description within the terms of
       the rule that “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.

Id. (internal citations omitted) (emphasis in original).

       Here, the trial court found that the Dittmans only owned three pieces of real

property—their residential home, the Pasture Property, and the Stable Property.          The

court’s finding of fact number 29 set forth that, “Debbie Dittman testified that the Stable

Property was the only piece of real property in the world owned by her and Tim Dittman

that was 3.78 acres in size.” Accordingly, we find that the description of the Stable

Property in the three e-mails satisfied the statute of frauds.     Although the description

contained neither metes and bounds information, nor the county and state where the

property was located, see Morrow, 477 S.W.2d at 539, the e-mails provided the means

by which the Stable Property could be identified.          See Pickett, 223 S.W.2d at 223.

Extrinsic evidence, such as Debbie Dittman’s testimony, allowed the Stable Property to




                                              13
be identified with reasonable certainty.   Id. We overrule the Dittmans’ fourth issue.

   3. Use of Electronic Signature

       By their sixth issue, the Dittmans contend that the e-mails do not satisfy the

statute of frauds because the parties did not agree to conduct transactions by electronic

means.      Under Texas law, “whether the parties agree to conduct a transaction by

electronic means is determined from the context and surrounding circumstances,

including the parties’ conduct.” TEX. BUS. & COM. CODE ANN. § 322.005(b) (West 2011).

The Dittmans argue that all of the e-mails were signed with electronic signatures only,

and this was never contemplated by the parties.      The first two e-mails were signed by

“David”, or David Lee, the Dittmans’ real estate agent, and the last e-mail was signed by

“Debbie.”

       We disagree with the Dittmans’ assessment that the parties did not intend to

conduct some of their transactions electronically.   The trial court’s findings of facts are

replete with instances where the parties exchanged communications regarding offers

and counteroffers about the Stable Property via e-mail messages.             The following

findings of fact demonstrate this conduct:

       14.    On October 30, 2007, David Lee sent an e-mail to Anthony Cerone
             (Plaintiff’s Exhibit 6, page 2) with the Dittmans’ offer. The Dittmans
             both testified that they had offered David Lee to send that e-mail.
             Debbie Dittman testified that that e-mail was copied to them
             contemporaneously, that they saw it the afternoon or early evening of
             October 30, 2007, that the statements in the first paragraph were
             accurate, and that neither she nor Tim Dittman communicated either
             to David Lee or to Anthony Cerone that anything in that e-mail was
             incorrect or that David Lee had not been authorized to send it.

       15. Within a few minutes after receipt of David Lee’s e-mail, Anthony
           Cerone responded by a reply e-mail (Plaintiff’s Exhibit 6, Page 1). In



                                             14
             that e-mail, Anthony Cerone stated that he accepted the Dittmans’
             offer of a two year option to purchase the Stable Property for $2.75
             per square foot to waive his right to terminate the Contract and close
             the next day. . . .

       We hold that the evidence is legally sufficient to support a finding that the parties

intended to conduct certain business electronically.     See City of Keller, 86 W.3d at 710.

We further hold that the evidence to support this finding is not so weak so as to go

against the great weight and preponderance of the evidence or to be clearly wrong and

unjust. See Cain, 709 S.W.2d at 176. We overrule the Dittmans’ sixth issue.

   4. Lee’s Authority to Act for the Dittmans

       The Dittmans’ seventh issue challenges Lee’s authority to bind the Dittmans to an

option contract. This issue is yet another factual question upon which the trial court

issued findings of fact.      See Catalina, 881 S.W.2d at 297. The trial court made the

following findings of fact:    that “Tim Dittman instructed David Lee to tell Anthony Cerone

that they would give him a two year option contract to purchase the Stable Property”

(finding of fact 14); that the “Dittmans both testified that they had authorized David Lee to

send” the October 30, 2007 e-mail regarding the option contract (finding of fact 15); and

that Lee’s e-mail to Cerone regarding the option contract “was sent with their knowledge

and consent, and that after they received a copy, they did not communicate either to

David Lee or to Anthony Cerone that anything contained in that e-mail was incorrect or

that David Lee was not authorized to send it” (finding of fact 19).

       Considering only the evidence and inferences that support this finding and

disregarding all the evidence and inferences to the contrary, we hold that these findings

are supported by legally sufficient evidence. See City of Keller, 86 S.W.3d at 710. We



                                              15
further conclude these findings are not against the great weight and preponderance of

the evidence, nor are they clearly wrong and unjust.       See Cain, 709 S.W.2d at 176.

We overrule the Dittmans’ seventh issue.

                                    V. CONTRACT LAW
A.     Applicable Law

       The Dittmans, in issues nine through fourteen and seventeen, challenge several

of the trial court’s findings of fact and conclusions of law concerning contract law.      We

determine the correctness of the trial court's legal conclusions—in this case, whether a

proper option contract existed—from the findings of fact.         See BMC Software, 83

S.W.3d at 794.      The elements of an enforceable contract are:           (1) an offer; (2)

acceptance that mirrors the terms of the offer; (3) consideration; (4) meeting of the

minds; (5) communication that each party has consented to the terms of the agreement;

and (6) execution or delivery of the contract with the intent that it be mutually binding.

Advantage Physical Therapy, Inc., 165 S.W.3d at 24.

B.     Discussion

       1. Offer, Acceptance, and Consideration

       In issues nine through thirteen, the Dittmans contest that the “alleged option

contract” set forth a sufficient offer, acceptance, and consideration.   The trial court, in its

extensive findings of fact and conclusions of law, documented that all of these elements

had been found in its consideration of the evidence and the law:

       3.   The surrender by Anthony Cerone of his right to terminate the [Pasture
            Property] Contract in exchange for an option to purchase the Stable
            Property constituted sufficient and valid consideration for the option.

       ....


                                             16
       7.    Anthony Cerone’s October 30, 2007 e-mail (page 1 of Plaintiff’s Exhibit
            6) did not constitute a rejection of the offer contained in David Lee’s
            e-mail (page 2 of Plaintiff’s Exhibit 6). Even if Anthony Cerone’s
            e-mail were to be considered a rejection of the offer of an option, the
            option was offered again and accepted again the next day, October 31,
            2007.

       8. The three October 30 and 31, 2007 e-mails (page 2 of the Plaintiff’s
          Exhibit 6, Plaintiff’s Exhibit 7 and Plaintiff’s Exhibit 8) contained every
          term material to an enforceable option and every term required to be in
          writing.

       Viewing the trial court’s findings in a light favorable to the conclusion that an

enforceable contract existed, we hold that this finding is supported by legally sufficient

evidence.    See City of Keller, 86 S.W.3d at 710. We further conclude that the finding

that a valid option contract existed was not against the great weight and preponderance

of the evidence or clearly wrong and unjust.      Cain, 709 S.W.2d at 176. We overrule

the Dittmans’ ninth, tenth, eleventh, twelfth, and thirteenth issues.

       2. Meeting of the Minds

       In their fourteenth issue, the Dittmans challenge whether there was a “meeting of

the minds” because the Dittmans thought they were offering a right of first refusal, as

opposed to an option contract.     “A right of first refusal, also known as a preemptive or

preferential right, empowers its holder with a preferential right to purchase the subject

property on the same terms offered by or to a bona fide purchaser.” Tenneco, Inc. v.

Enterprise Prods. Co., 925 S.W.2d 640, 644 (Tex. 1996). An option contract, on the

other hand, is a “privilege or right which the owner of property gives another to buy

certain property at a fixed price within a certain time.”   State v. Clevenger, 384 S.W.2d

207, 210 (Tex. Civ. App.—Houston 1964, writ ref’d n.r.e.).



                                             17
      “Whether the parties reached an agreement is a question of fact.” Beal Bank,

S.S.B. v. Schleider, 124 S.W.3d 640, 653 n.8 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied).   Here, the trial court made the following factual findings:

      39. The term “option” as used in David Lee’s October 30, 2007 e-mail to
          Anthony Cerone (Plaintiff’s Exhibit 6, page 2), David Lee’s October
          31, 2007 e-mail to Anthony Cerone (Plaintiff’s Exhibit 7) and Debbie
          Dittman’s October 31, 2007 e-mail to David Lee (Plaintiff’s Exhibit 8)
          is not ambiguous and is susceptible to only one reasonable meaning.

      40. The Dittmans knew, by no later than the end of the day on October
          30, 2007, that by giving Anthony Cerone an option, they were giving
          him the right to buy the Stable Property for $2.75 a square foot at any
          time within two years.

      There was also evidence in the trial record that Baccus had explained what an

option contract was to Tim Dittman during these e-mail negotiations.         Further, the trial

court made the following conclusions of law on this issue:

      4.   The term “option” as used in David Lee’s e-mails to Anthony Cerone
           and Debbie Dittmans’s e-mail to David Lee to be passed on to Anthony
           Cerone is not ambiguous.

      5.    The determination of the meeting of the minds, and thus offer an[d]
           acceptance, is based on the objective standard of what the party said
           and did and not on their subjective state of mind. Since there is no
           dispute that the word “option” was used, the Dittmans’ construction of
           the meaning of that term is immaterial. There was a meeting of the
           minds—the Dittmans agreed that Anthony Cerone or his assignee had
           the right, for a period of two years, to buy the Stable Property for $2.75
           per square foot.

      Viewing the trial court’s findings that the term “option” was not ambiguous and that

the Dittmans understood what the term meant in a light favorable to the verdict, we hold

that these findings are supported by legally sufficient evidence.       See City of Keller, 86

S.W.3d at 710. We further conclude that the evidence to support these findings is not




                                             18
against the great weight and preponderance of the evidence or clearly wrong and unjust.

See Cain, 709 S.W.2d at 176. We overrule the appellants’ fourteenth issue.

       3. “Not Brought Under or With Relation To” Language

       In issue seventeen, the Dittmans argue the trial court erred in holding that the

lawsuit over the option contract was “not brought under or with relation to” the earnest

money contract on the Pasture Property.       This was a conclusion of law made by the

trial court. In reviewing challenges to a trial court's conclusions of law, we sustain the

judgment on any legal theory supported by the evidence.         In re A.M., 101 S.W.3d at

484. Because this conclusion is amply supported by the trial court’s findings of fact on

the evidence, we overrule issue seventeen.

               VI. THE STATUTE OF CONVEYANCES AND TEXAS FAMILY CODE

       In their eighth issue, the Dittmans aver that the alleged option contract violates the

statute of conveyances and section 3.102 of the Texas Family Code.          See TEX. PROP.

CODE ANN. § 5.021 (West 2011) (providing that any conveyance of real property must be

in writing and delivered by the conveyor or by the conveyor’s agent authorized in writing);

TEX. FAM. CODE ANN. § 3.102 (West 2011) (prohibiting the conveyance of title to

community property unless it is signed to or agreed by both spouses).

       With regard to the statute of conveyances, as we held earlier, the trial court did

not err when it construed the three e-mails together to comprise the option contract.

Because the option contract is in writing, the statute of conveyances is met.      See TEX.

PROP. CODE ANN. § 5.021.       Further, and as previously observed, an option contract

“gives another [the option] to buy certain property at a fixed price within a certain time.”




                                             19
Clevenger, 384 S.W.2d at 210.         “The owner does not sell the property, but sells the

privilege to buy at the option of the other person . . . . It conveys no title to the thing sold.”

Knox v. Brown, 277 S.W. 91, 94 (Tex. Comm’n App. 1925, judgm’t adopted).

Consequently, as the trial court correctly noted in its conclusions of law, an option

contract conveys no title.     See Gasperson v. Madill Nat’l Bank, 455 S.W.2d 381, 391

(Tex. Civ. App.—Fort Worth 1970, writ ref’d n.r.e.) (holding that the statute of

conveyances does “not even enter into the picture” with an option contract).

       Because we conclude that no conveyance occurred, Texas Family Code section

3.102, which deals with the conveyance of title of community property, is not triggered.

See TEX. FAM. CODE ANN. § 3.102.         However, even if this statute was implicated, there

is no evidence in the record to show that it was violated.        Section 3.102 provides that

“community property is subject to the joint management, control, and disposition of the

spouses unless the spouses provide otherwise by power of attorney in writing or other

agreement.”      Id. The Dittmans argue that Debbie had no right to convey or encumber

the community property at issue without a written power of attorney from her husband

Tim.   See id.    It is uncontested that there was no written power of attorney between the

Dittmans.    However, the trial court made several findings of fact that there was some

“other agreement” between Debbie and Tim Dittman.                See id.     Here is one such

finding:

       36. Debbie Dittman’s October 31, 2007 e-mail to David Lee, Plaintiff’s
       Exhibit 8, was sent with the prior knowledge, consent and authorization of
       Tim Dittman, was sent with the intent that it be forwarded or others provide
       to Anthony Cerone, was intended by Tim Dittman to be from him as well as
       from Debbie Dittman, and was sent by the Dittmans to induce Anthony
       Cerone to waive his right to terminate the Contract and consummate the



                                               20
       purchase of the 34.59 Acre Tract with the outstanding oil, gas, and mineral
       leases.”

       The Dittmans cited Alamo Country Club Owners Association v. Shelton, No.

13-10-00300-CV, 2012 WL 3792753, at **23–24 (Tex. App.—Corpus Christi Aug. 31,

2012, no pet.) (mem. op.), and Vallone v. Miller, 663 S.W.2d 97, 99 (Tex. App.—Houston

[1st Dist.] 1983, writ ref’d n.r.e.), for the proposition that one spouse cannot encumber

another’s property without agreement.      In Alamo Country Club, a husband conveyed a

warranty deed to a home on a golf course without his wife’s signature.            See Alamo

Country Club, 2012 WL 3292753, at *24.          Similarly, Vallone dealt with a husband who

attempted to transfer property without his wife’s signature.      Vallone, 663 S.W.2d at 99.

However, those cases are distinguishable from this case because in both cases, there

was no evidence to show that that the wives knew what was occurring with regard to the

conveyance of the community property.          Here, the trial court made specific findings of

fact that both Tim and Debbie Dittman had an “agreement” to bind each other’s interests

regarding the sale of the Pasture Property.      See generally Muller v. Evans, 516 S.W.2d

923, 923–24 (Tex. 1974) (noting that section 3.102 was amended in 1973 to no longer

require that spousal agreements regarding the disposition of property had to be in

writing).

       We overrule this eighth issue.

                                        VII.    FRAUD

       In issues fifteen and sixteen, the Dittmans argue the trial court erred when it

determined that the Dittmans committed fraud.           A fraud cause of action requires a

material misrepresentation, which was false, which was either known to be false when



                                               21
made or was asserted without knowledge of its truth, which was intended to be acted

upon, which was relied upon, and which caused injury.       Formosa Plastics Corp. USA v.

Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 47–48 (Tex. 1998).

       The trial court found that despite numerous e-mail messages from the Dittmans

and their authorized agent Lee offering a two-year option contract for the Stable Property

to Cerone in exchange for closing on the Pasture Property sooner, “on November 15,

2007, the Dittmans’ attorney e-mailed Anthony Cerone’s attorney and advised him that

the Dittmans denied having given Anthony Cerone an option to purchase the Stable

Property.”    The trial court also found that, after considering testimonial and

documentary evidence, both Anthony Cerone’s and David Lee’s testimonies were

“consistent, credible and persuasive,” while “the Dittmans’ testimony was at times

inconsistent and in conflict with their actions and the other evidence.”      Critically, the

trial court also made the following finding of fact on the fraud issue:

       41. When the Dittmans told David Lee to tell Anthony Cerone that they
          would give him a two year option to purchase the Stable Property for
          $2.75 a square foot if he would close and consummate the purchase of
          the 34.59 Acre Tract on October 31, 2007, they had no intention of
          fulfilling that agreement. (Emphasis added).

       Here, considering only the evidence and inferences that support this finding of

fraud and disregarding all the evidence and inferences to the contrary, we hold that this

finding is supported by legally sufficient evidence.   See City of Keller, 86 S.W.3d at 710.

Further, we conclude that the fraud finding is not against the great weight and

preponderance of the evidence or clearly wrong and unjust.        See Cain, 709 S.W.2d at

176. We overrule the Dittmans’ fifteenth and sixteenth issues.




                                             22
                                   VIII.   AFFIRMATIVE DEFENSE

       By their eighteenth issue, the Dittmans contend the trial court erred in ignoring

their affirmative defense based on the Texas Occupations Code, which provides that

clients cannot be held liable for any damages caused by the misrepresentation or

concealment of material facts by their real estate broker.          See TEX. OCC. CODE ANN.

1101.805 (West 2004). The Dittmans argue that “Lee as the real estate license holder[]

made misrepresentations to the Dittmans” and “knew or had reason to know that the

Dittmans did not understand the difference between an option and a right of first refusal.”

       Here again, we rely on the trial court’s findings of fact:

       31.    David Lee’s testimony was consistent, credible and persuasive.

       32. The Dittmans’ testimony was at times inconsistent and in conflict with
           their actions and the other evidence.

       ....

       39. The term “option” as used in David Lee’s October 30, 2007 e-mail to
           Anthony Cerone (Plaintiff’s Exhibit 6, page 2), David Lee’s October
           31, 2007 e-mail to Anthony Cerone (Plaintiff’s Exhibit 7) and Debbie
           Dittman’s October 31, 2007 e-mail to David Lee (Plaintiff’s Exhibit 8)
           is not ambiguous and is susceptible to only one reasonable meaning.

       40. The Dittmans knew, by no later than the end of the day on October
           30, 2007, that by giving Anthony Cerone an option, they were giving
           him the right to buy the Stable Property for $2.75 a square foot at any
           time within two years.

       ....

       44.    Neither David Lee nor Transwestern had any knowledge[,] notice[,] or
              reason to suspect that Tim Dittman or Debbie Dittman believed an
              option was the same as, or a variation of, a right of first refusal, or
              understood it to mean anything other than the right to buy property at
              a fixed price within a certain time.




                                             23
      Considering only the evidence and inferences that support these factual findings,

we hold that they are supported by legally sufficient evidence.     See City of Keller, 86

S.W.3d at 710.      Further, we conclude that the evidence to support these findings is not

so weak so as to go against the great weight and preponderance of the evidence or to be

clearly wrong and unjust.     See Cain, 709 S.W.2d at 176. We overrule the Dittmans’

eighteenth issue.

                                     IX.    CONCLUSION

      Having overruled all of appellants’ issues on appeal, we affirm the trial court

judgment.


                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
31st day of October, 2013.




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