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Opinion filed June 11,
2009

In The

Eleventh Court
of Appeals

____________

No. 11-07-00317-CV

__________

ANNETTE MCCARTY,
Appellant,

V.

CLINTON T. MONTGOMERY, AS MANAGING TRUSTEE

OF THE TRIMONT IRREVOCABLE TRUSTS, AND ELTON

MONTGOMERY, Appellees

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C41088

O P I N I O N

This is a real estate contract dispute.
Clinton T. Montgomery, as managing trustee of the Trimont Irrevocable
Trusts (Trimont), sued Annette McCarty seeking specific performance.[1]
McCarty responded with a counterclaim against Trimont and a third-party
claim against Elton  Montgomery alleging breach of contract and tort
claims.  The trial court granted Trimont=s and Elton
Montgomery=s
motions for summary judgment and subsequently entered a final judgment in
their favor.  We affirm.

I.  Background Facts

McCarty agreed to sell to Elton Montgomery an undivided
one-half interest in a 950.3-acre tract in Palo Pinto County for
$200,000.  The parties utilized a Texas Real Estate Commission form,
TREC No. 25-4, to document their agreement.[2]
Montgomery deposited $2,500 in earnest money with Palo Pinto County
Abstract Company and assigned the contract to Trimont and Ray
Herring.  Herring subsequently assigned his interest to
Trimont.  For convenience, we will refer to Montgomery rather than
Trimont as the contracting party.

The contract required McCarty to furnish Montgomery with a
title policy.  That title policy was allowed certain enumerated
exceptions.[3]
McCarty was also required to furnish a commitment for title insurance,
legible copies of restrictive covenants, and documents evidencing
exceptions in the commitment.  While preparing a commitment, Palo
Pinto County Abstract discovered that a federal tax lien burdened the
property.  The lien arose because McCarty=s estranged husband
failed to pay income taxes after their separation in 1995.  McCarty
knew that the IRS had filed tax liens on their Brownwood home, but she did
not know that it had filed a lien on her Palo Pinto County property.
The lien was dated November 5, 1997.  As of that date, the unpaid
balance was $28,676.60, but the lien had grown to approximately $50,000
when discovered by Palo Pinto County Abstract.

McCarty=s real estate agent,
Blake Hortenstine, asked Palo Pinto County Abstract to wait on the title
commitment until McCarty determined what steps could be taken with regard
to the lien.  Hortenstine also informed Montgomery about the lien and
the need for additional time.  Montgomery filed an affidavit in the
real property records of Palo Pinto County.  The affidavit included a
copy of the contract and indicated Montgomery=s belief that he had
the right to insist upon specific performance and his intention to do
so.  McCarty asserted that she did not owe the underlying taxes and
that, because the land was her separate property, it was not subject to
the lien.  McCarty also lacked the funds to pay the taxes and would
not receive enough money from the sale of the property to pay them.
There were some discussions about renegotiating the contract so that
McCarty could pay the lien at closing, but she was adamant in her refusal
to do so.  During her deposition, McCarty testified that, even if
Montgomery had offered her one million dollars, she would not have paid
the lien.  Hortenstine informed Palo Pinto County Abstract that
McCarty would not pay the lien.  Palo Pinto County Abstract=s owner, Neal
Grantham, understood that it would not be paid for issuing a title
commitment and, therefore, one was not issued.

Hortenstine forwarded Montgomery a letter from McCarty in
which she stated: AI need to terminate
the contract because of the situation with the IRS lien that currently
clouds the title.@  Hortenstine
also furnished a signed release allowing Palo Pinto County Abstract to
return Montgomery=s earnest money
deposit.  Montgomery took issue with McCarty=s letter and advised
her that the refusal to discharge the tax lien was Aaltogether
unacceptable.@
He rejected the offer to return the escrow money and insisted upon
proceeding to closing.  McCarty offered to close with the lien in
place, but Montgomery refused.

McCarty subsequently executed an oil and gas lease with
R.M. Hill Operating, Inc.  This lease covered a portion of the
property that she had earlier contracted to sell to Montgomery.  When
Montgomery learned of this, he contacted her directly and accused her of
criminal misconduct.  McCarty alleges that she later met with
Montgomery and his attorney at a restaurant and that they lied to her to
obtain her signature on an affidavit.  McCarty alleges that
Montgomery and his counsel promised her that they would take the affidavit
to Hill Operating and try to convince it to pay the lien and that, if that
failed, they would hire someone to work on her behalf to see what could be
done.  McCarty signed the affidavit.  That affidavit states
that, prior to signing a lease with Hill Operating, she advised them
that Montgomery had the right to move forward with the purchase of the
land and minerals.  McCarty testified at her deposition that she
understood this meant that Montgomery had the right to move forward at the
time he signed the contract and that she did not realize she was being
asked to sign an affidavit stating that he still had the right to move
forward.

McCarty filed a motion for partial summary judgment
arguing that she had no liability to Trimont under the real estate
contract.  Trimont filed a motion for summary judgment seeking
specific performance, and Trimont and Montgomery filed a traditional and
no-evidence motion for summary judgment attacking McCarty=s affirmative
claims.  The trial court granted Trimont=s and Montgomery=s motions, including
Trimont=s
request for specific performance, and denied McCarty=s motion.  The
order provided that a separate hearing would be held to determine the
manner of specific performance.  McCarty filed for bankruptcy.
The bankruptcy court lifted the stay to allow the continuation of this
litigation.  The trial court held an evidentiary hearing and awarded
Trimont and Montgomery attorney=s fees of $85,520.50
and conditional attorney=s fees in the event
of an appeal.  The court ordered the sale to proceed B except that the
sales price of $200,000 would now be paid in cash (the original contract
included seller financing), and the court provided a mechanism for the
payment and release of the tax lien out of the sales proceeds.

II.  Issues

McCarty alleges that the trial court erred when it
granted Trimont=s motion for summary
judgment seeking specific performance, that it erred when it failed to
grant her motion for partial summary judgment, and that it erred when it
granted Trimont and Montgomery=s motion for summary
judgment on her affirmative claims.

III.  Analysis

A.  Standard of Review.

1.  Traditional Motions for Summary
Judgment.

The standard of review for traditional motions for summary
judgment is well settled. Questions of law are reviewed de novo.
St. Paul Ins. Co. v. Tex. Dep=t of Transp., 999
S.W.2d 881, 884 (Tex. App.CAustin 1999, pet.
denied). To determine if a fact question exists, we must consider whether
reasonable and fair‑minded jurors could differ in their conclusions in
light of all the evidence presented. Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755 (Tex. 2007).  We must consider all the
evidence in the light most favorable to the nonmovant, indulging all
reasonable inferences in favor of the nonmovant, and determine whether the
movant proved that there were no genuine issues of material fact and that
it was entitled to judgment as a matter of law. Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548‑49 (Tex. 1985).

2.  No-Evidence Motions for Summary
Judgment.

No‑evidence motions are reviewed under the same standard
as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
750‑51 (Tex. 2003).  Accordingly, we review the evidence in the light
most favorable to the nonmovant and disregard all contrary evidence and
inferences.  Id.  A trial court must grant a proper
no‑evidence motion for summary judgment unless the nonmovant produces more
than a scintilla of probative evidence to raise a genuine issue of
material fact on the challenged element of the claim. Tex. R. Civ. P. 166a(I).

B.  Was Trimont Entitled to Specific
Performance?

To determine the parties= respective rights
and obligations, we must interpret their contract.  Texas courts have
developed rules of interpretation to determine a contract=s meaning and canons
of construction to determine its legal effect. The rules of interpretation
may be utilized to determine if an agreement is ambiguous, but the canons
of construction do not apply absent a determination of ambiguity.
Moon Royalty, LLC v. Boldrick Partners, 244 S.W.3d 391, 394-95
(Tex. App.C
Eastland 2007, no pet.); see also Bruce M. Kramer, The Sisyphean
Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons
of Construction, 24 Tex. Tech
L. Rev. 1, 110‑11 (1993) (canons such as Aconstrue against the
grantor@ should
not replace rational thought when reading a written instrument or be used
if the document=s language is
clear).  Neither party contends that the contract is ambiguous or is
not fully integrated.  We will, therefore, apply the rules of
interpretation.

The rules of interpretation include:

1.
Construe the agreement as a whole;

2. Give each word and phrase its plain, grammatical
meaning unless it definitely appears that such meaning would defeat the
parties=
intent;

3. Construe the agreement, if possible, so as to give each
provision meaning and purpose so that no provision is rendered meaningless
or moot;

4. Express terms are favored over implied terms or
subsequent conduct; and

5. Surrounding circumstances may be considered B not to determine a
party=s
subjective intent B but to determine the
appropriate meaning to ascribe to the language chosen by the parties.

Mark K. Glasser & Keith A. Rowley, On Parol: The
Construction and Interpretation of Written Agreements and the Role of
Extrinsic Evidence in Contract Litigation, 49 Baylor L. Rev. 657, 664‑82
(1997).

McCarty alleges initially that the contract terminated
pursuant to its own terms.  McCarty reasons that Montgomery
objected when he received a copy of the tax lien; that she then had
fifteen days to cure; and that, because she did not, his options were to
close with the lien in place or terminate the contract and receive a
refund of his earnest money deposit.  Because he refused to waive his
objection and she refused to clear the lien, McCarty contends that the
contract terminated.  McCarty=s position is based
upon the following contract provision:

[6.D.] OBJECTIONS: Within 10 days after Buyer receives the
Commitment, Exception Documents and the survey,[4] Buyer may
object in writing to (I) defects, exceptions, or encumbrances to title:
disclosed on the survey other than [the permitted exceptions]; disclosed
in the Commitment other than [the permitted exceptions]; (ii) any portion
of the Property lying in the 100 year flood plain as shown on the current
Federal Emergency Management Agency map; or (iii) any exceptions which
prohibit the following use or activity: [none listed].  Buyer=s failure to object
within the time allowed will constitute a waiver of Buyer=s right to object;
except that the requirements in Schedule C of the Commitment are not
waived.  Seller shall cure the timely objections of Buyer or any
third party lender within 15 days after Seller receives the objections and
the Closing Date will be extended as necessary.  If objections are
not cured within such 15 day period, this contract will terminate and the
earnest money will be refunded to Buyer unless Buyer waives the
objections.

Montgomery correctly points out that this provision was
not triggered because it requires the delivery of a commitment and
exception documents.  Montgomery never received a
commitment.

Nor was this provision otherwise triggered by
Montgomery=s
actions because he was not put to an election.  When Montgomery was
informed of the lien, he made clear his belief that McCarty was required
to clear it, and he insisted that she do so.  This is not an
objection as described in Paragraph 6.D.  Grantham testified that the
tax lien would have been identified on Schedule C as a lien to be paid at
closing.  Thus, with or without any action by Montgomery, the
commitment would have confirmed his position that the lien was
McCarty=s
responsibility to clear.  Because Montgomery was not put to an
election, the contract did not terminate.

Nor did McCarty have an option.  McCarty does not
dispute how the lien would have been identified on the commitment but
answers that Montgomery still could not force her to cure an
encumbrance.  McCarty=s obligation to
provide clear title and the provision she contends limits Montgomery=s remedies are found
in the following paragraph:

19.  REPRESENTATIONS: Seller represents that as of
the Closing Date (a) there will be no liens, assessments, or security
interests against the Property which will not be satisfied out of the
sales proceeds unless securing payment of any loans assumed by Buyer and
(b) assumed loans will not be in default.  If any representation of
Seller in this contract is untrue on the Closing Date, Buyer may terminate
this contract and the earnest money will be refunded to Buyer.

If the
parties had proceeded to closing, McCarty would have breached this
provision by not clearing the tax lien.  Montgomery, then, clearly
had the right to terminate the contract and receive a refund of his
earnest money.  However, the contract also contained a default
provision, which read:

15.  DEFAULT: If Buyer fails to comply with this
contract, Buyer will be in default, and Seller may (a) enforce specific
performance, seek such other relief as may be provided by law, or both, or
(b) terminate this contract and receive the earnest money as liquidated
damages, thereby releasing both parties from this contract.  If, due
to factors beyond Seller=s control, Seller
fails within the time allowed to make any non-casualty repairs or deliver
the Commitment, or survey, if required of Seller, Buyer may (a) extend the
time for performance up to 15 days and the Closing Date will be extended
as necessary or (b) terminate this contract as the sole remedy and receive
the earnest money.  If Seller fails to comply with this contract for
any other reason, Seller will be in default and buyer may (a) enforce
specific performance, seek such other relief as may be provided by law, or
both, or (b) terminate this contract and receive the earnest money,
thereby releasing both parties from this contract.

McCarty
contends that this provision is inapplicable because an untrue
representation is not defined as a default.  McCarty directs our
attention to a subsequent version of the TREC Farm and Ranch contract
(TREC No. 25-5) to support her argument.  Because this is extrinsic
evidence and because the parties do not contend that their agreement is
ambiguous or not fully integrated, we may not consider or draw any
inference from it.  McCarty also argues that, because the
representation paragraph is a specific provision and the default paragraph
is a general one, we should give preference to the specific
provision.  That, however, is a canon of construction applicable only
when two or more reasonable readings of a contract remain in
irreconcilable conflict after applying the rules of interpretation.
See Glasser, 49 Baylor L.
Rev. at 683, 686.

The representation paragraph=s language does not
indicate that the parties intended termination to be Montgomery=s exclusive remedy if
McCarty failed to deliver clear title.  For example, it does not
contain language such as Aexclusive@ or Asole@ remedy.
Instead, termination is described permissively, ABuyer may terminate
this contract.@  We recognize
that the mere presence of the word Amay@ is not
determinative.  For example, if the paragraph had provided that buyer
may choose one of three options in the event of a false representation,
this would indicate that Montgomery=s remedies were
limited to those three options.  However, the representation
paragraph contains no such list.  We appreciate McCarty=s argument that
implicit within the paragraph=s language is the
choice of accepting the title offered or terminating the contract, but
this interpretation is inconsistent with the construction of the remainder
of the contract.

There are three contractual provisions to consider and, if
possible, to harmonize.  Paragraph 6 provides a mechanism for
determining and insuring title,[5] Paragraph
15 lists the remedies for defaults by either party, and Paragraph 19
defines McCarty=s representations at
closing and provides at least a partial description of Montgomery=s remedies for a
misrepresentation.  We have previously noted that McCarty was
required to deliver title free and clear of the tax lien without any
predicate action by Montgomery.  The significance of this is that, if
the lien were a title-related issue Montgomery was required to object to
and if his objection were not cured, the contract provides:  A[T]his contract will
terminate and the earnest money will be refunded to Buyer unless Buyer
waives the objections.@

By specifying a mandatory remedy for title-related matters
requiring an objection, the import is that matters not requiring an
objection will be treated differently.  This is not an illogical
distinction.  McCarty made limited representations concerning her
title.  The contract provided a process to clarify what McCarty owned
and was conveying.  If that process revealed title-related issues and
if the parties were unable to reach an agreement on their resolution,
termination is consistent with the notion that there was not a meeting of
the minds in the first instance.  However, delivery of title free and
clear of any third-party lien is substantively different because McCarty
specifically represented that any such lien would be cleared at
closing.  The parties identified a remedy for breach of this
representation, but unlike the objection provision, (Paragraph 6.D.), they
did not describe it as exclusive.  And unlike the default provision,
(Paragraph 15), the representation paragraph does not enumerate a list of
options and require a choice amongst them.

Montgomery could have terminated the contract, but because
this was not his exclusive remedy, he was also entitled to the default
paragraph remedies, including specific performance.  This
interpretation gives meaning to each of the contract=s provisions, is
consistent with the intent of the parties as expressed in the agreement as
a whole, and is consistent with the surrounding circumstances.
First, McCarty may not have had actual knowledge of the IRS lien on her
property when she signed the contract and represented that clear title
would be delivered at closing, but she did have constructive knowledge
since that lien was part of her chain of title.  Second, the contract
provided a place to list exception documents.  Any listed document
would be a permitted exception in the title policy and would not be a
basis for objection to title.  McCarty could, therefore, have
conditioned the purchase upon Montgomery=s assumption of the
tax lien.  Third, if we accept McCarty=s construction, then
any seller who has a change of heart after signing a contract need only
pledge their property as collateral for some other obligation prior to
closing.  The buyer would then be forced to assume this new debt or
terminate the contract, and the seller would have no fear of recourse.

The trial court did not err by finding that specific
performance was a permissible remedy.

C.  Was the Contract
Unenforceable?

McCarty argues that, regardless of what remedy might be
available, the contract is unenforceable because of a lack of mutuality
and because it is an option contract.  The contract allowed
Montgomery to cancel the agreement if McCarty was Adetermined to own
less than an undivided one half (2) of the oil, gas,
and other minerals in, on, and under the land above described.@  McCarty
contends that Montgomery knew Trimont had acquired a portion of the
property by adverse possession and, therefore, that McCarty did not own
one-half of the minerals.  Because Montgomery had the unilateral
right to cancel the agreement, his obligations were illusory.
Alternatively, his unilateral right to cancel made the agreement an
unenforceable option agreement.

A contract must be based upon valid consideration.
Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 645 (Tex.
1994), modified by Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson,
209 S.W.3d 644 (Tex. 2006).  An illusory promise of performance
invalidates a bilateral contract.  Light, 883 S.W.2d at
645.  A promise is illusory when if fails to bind the promisor who
retains the option of discontinuing performance.  Id.  In
fact, an illusory promise is no promise at all.  See 1 Arthur Linton Corbin, Corbin
on Contracts ' 1.17 (rev.
1993).

Montgomery=s promises were not
illusory.  Trimont owns property contiguous to McCarty=s.  Prior to
Trimont or McCarty acquiring their interests, a fence was installed
between their tracts, but it was not located on the boundary line.
Instead, the fence cut diagonally across the boundary line.
Montgomery testified that Trimont may have acquired a portion of
McCarty=s
property through adverse possession and, conversely, that McCarty may have
acquired a portion of Trimont=s property through
adverse possession.

The contract=s use of the word
Adetermined@ suggests more
definitive or official action than Montgomery=s own personal
thought process; nonetheless, he merely recognized this as a
possibility.  By proceeding with the sale, he and McCarty were
resolving a potential title dispute and were both waiving the right to
claim title by adverse possession to any portion of the other=s property.  The
agreement, therefore, was supported by adequate consideration.  The
trial court did not err when it granted Trimont=s motion for summary
judgment on specific performance and when it denied McCarty=s motion for summary
judgment.

D.  Did the Trial Court Erroneously Describe the
Property to be Conveyed?

The contract described the property as follows:

Undivided half (50%) interest in both the surface and the
mineral estates in the following described land:  950.3 Acres
consisting of 170.3 Acres in Abstract 2057 TR 1-1 C Melton, 140 Acres in
Abstract 2073 TR 2-1 BL Caudill, and 640 Acres in Abstract 1057 TR 1-1
Poitevent.

The trial court ordered
McCarty to convey the following property:

Annette McCarty=s undivided one-half
(50%) interest in the surface and mineral estates in and to 950.3 acres
located in Palo Pinto County, Texas, consisting of 170.3 Acres in Abstract
2057 TR 1-1 C Melton, 140 Acres in Abstract 2073 TR 2-1 BL Caudill (which
140 acres includes all of the J.M. Morton & R.H. Morton Survey,
A-2187, containing 41.5 acres, more or less), and 640 Acres in Abstract
1057 TR 1-1 Poitevent.

The
difference between the two descriptions is the parenthetical in the
judgment referencing 41.5 acres in the Morton Survey.  McCarty argues
that the trial court=s judgment requires
the conveyance of an additional forty-one acres.  Strictly speaking,
McCarty cannot be correct.  The contract conveys an undivided 50%
interest in 950.3 acres, and the judgment requires McCarty to convey an
undivided 50% interest in 950.3 acres.  The question is whether the
140 acres in Abstract 2073 described in the contract is the same 140 acres
in Abstract 2073 described in the judgment.

There is no evidence that McCarty owns more than 140 acres
in Abstract 2073.  In her deposition, she was asked:

Q.        Okay.
After inheriting the -- well, let me ask, is that -- is this the only
property you own in Palo Pinto County, or do you own any other property in
Palo Pinto County?

A.        That=s the -- that=s all.

Q.        Okay.
And as you understand it, it=s approximately 950
acres?

A.        Yes.

McCarty
accuses Montgomery of misrepresenting to this court that the contract
covered all of the real property she owns in Palo Pinto County, and she
contends that her testimony was only a general discussion that did not
inquire into the property described in the contract.  We agree that
McCarty=s
testimony was part of a general discussion but disagree with her
conclusion.  Her testimony is clear that the 950 acres she inherited
from her grandmother is the only property she owns in Palo Pinto
County.  Because she agreed to sell 950.3 acres, it follows that the
contract conveyed all of her Palo Pinto County real property.

McCarty correctly points out that, subsequent to the
contract=s
execution, Montgomery attempted to amend the contract=s property
description.  Montgomery sent Hortenstine a letter and offered to
amend the contract by increasing the down payment from $55,000 to $70,000
in exchange for lengthening the term of the note from 12 to 15
years.  Montgomery also wrote:

In the contract there was an irregularity in the
description of the Caudill Survey area which resulted from a vacancy on
the East that was patented to the Morton Bros. AND from some of the survey
on the North having been sold off to H.C. Moore et ux, the parents of Mrs.
Edna Crumpton.  These matters have been discussed with Neal Grantham,
and I see no need to meet Thursday A.M. (tomorrow) after all.

The
letter included a proposed contract amendment.  That document
contained a property description.  Rather than organized by abstract,
the description was organized by tract.  Tract One was the 640 acres
in Abstract 1057, and Tract Two was the 170.3 acres in Abstract
2057.  Tracts Three and Four were described as:

THIRD TRACT:  All of the J.M. Morton &
R.H. Morton Survey, A-2187, containing 41.5 acres, more or less.

FOURTH TRACT:  99.5 acres, more or less, out
of the B.L. Caudill Survey (sometimes called W.L. Ainsworth Survey),
A-2073, and being all of said survey, SAVE AND EXCEPT the portion
heretofore sold off to H.C. Moore and wife, Mary Moore, by E.B. Pickard et
al.

If the
correctness of the property description were decided by summary judgment,
this would be sufficient evidence to create a fact question.  The
contract references 140 acres in Abstract 2073, but the proposed amendment
refers to only 99.5 acres, the third tract is described by a survey and
abstract not contained in the contract, and the third and fourth tracts
constitute 141 acres B one more than
described in the contract.  However, Montgomery=s letter does not
establish that McCarty owned additional, unconveyed property; the trial
court did not use this property description; and McCarty=s position does not
account for the trial court=s hearing to enter
judgment.

After the trial court granted Trimont=s motion for summary
judgment seeking specific performance, it held an evidentiary hearing to
determine attorney=s fees and the manner
in which the contract should be performed.  The property description
was not discussed during that hearing.  The trial court ruled on
attorney=s fees,
discussed the closing process, and asked the parties to work on an agreed
judgment.  The parties were unable to reach an agreement.
Montgomery prepared a proposed judgment, and McCarty objected, contending
that the judgment=s property
description was inconsistent with the contract=s property
description.  McCarty also asserted that she had not contracted to
sell all of her property in Palo Pinto County, and she objected to any
order requiring her to do so.  The trial court held another hearing
and then entered a final judgment.  That hearing was not transcribed,
but the trial court made findings of fact and conclusions of law.
The trial court found that Trimont presented the court with copies of
maps, field notes, and ad valorem tax records reflecting that the 140
acres in Abstract 2073 includes all of the 41.5-acre Morton Survey.
Accordingly, the trial court found that these 41.5 acres were included in
the contract=s
property description.

McCarty disputes whether a subsequent hearing was held,
contending that there is no record of one.  There is no transcript
from that hearing, but the record confirms that the trial court did hold a
hearing in chambers on June 28.  On June 5, McCarty=s counsel wrote
Montgomery=s
counsel and advised him that the hearing on entry of judgment had been
moved from June 8 to June 28.  On June 28, McCarty=s counsel sent
Montgomery=s
counsel another letter and said: AI received your
proposed Final Judgment by fax.  I reviewed it in light of the
Judge=s
statements today in chambers.@  Finally, the
trial court=s
findings of fact reflect that a hearing was held in chambers on June
28.

The trial court did not err when it described the property
to be conveyed.  The record adequately supports the conclusion that
the property conveyed in the contract and the property described in the
judgment are the same and that the additional language referencing the
Morton Survey merely clarified the property=s description.

E.  Findings of Fact.

McCarty next complains that the trial court=s findings of fact
are not supported by the evidence.  After the trial court entered its
final judgment, McCarty requested findings of fact and conclusions of law
regarding the trial court=s hearing to
determine attorney=s fees and the
equitable manner for specific performance.  The trial court entered
findings of fact and conclusions of law, but most of those dealt with
matters covered in the subsequent hearing to enter judgment.  McCarty
complains that these additional findings have no support in the record
because the docket sheet and final judgment contain no reference to a
hearing or decision made at the conclusion of that hearing.

The trial court was not required to contemporaneously
document any conclusions reached at the June 28 hearing.  The
judgment and findings of fact indicate that the court considered evidence
on the appropriate property description at this hearing.  We cannot
review the sufficiency of this evidence because no record was made.
Tex. R. App. P. 13.1
requires the court reporter to make a full record of all proceedings and
to take all exhibits offered in evidence, unless excused by agreement of
the parties.  The trial court=s findings indicate
that both parties waived a record.  If that is correct, McCarty may
not complain now about the adequacy of the evidence offered during that
hearing.  See Long v. Long, 144 S.W.3d 64, 69 (Tex. App.CEl Paso 2004, no
pet.).  If that is incorrect, McCarty was required to object to the
lack of a court reporter by filing a motion or other written
objection.  Reyes v. Credit Based Asset Servicing &
Securitization, 190 S.W.3d 736, 740 (Tex. App.CSan Antonio 2005, no
pet.).  Because no objection was made, any error was waived.

F.  McCarty=s Affirmative Claims
for Relief.

McCarty contends that the trial court erred by granting
summary judgment on her affirmative claims for relief because she
presented sufficient evidence to create questions of fact.  McCarty
alleged that Montgomery intentionally caused her to suffer extreme
emotional distress when he accused her of criminal misconduct and when he
obtained an affidavit from her by misrepresentation.  McCarty
testified that, during a conversation, Montgomery Aasked me about the
oil and gas lease.  He asked me if I signed it, and I said, >Yes,= and he said, >That=s criminal.=@  She later met
with Montgomery and his attorney at Luby=s.  During this
meeting, she was given an affidavit.  She read it and signed it but
contended that Montgomery and his counsel misrepresented what the
affidavit said about Montgomery=s right to move
forward with the closing.  McCarty testified that she was led to
believe that she and Hill Operating had done something criminal by signing
the oil and gas lease.  She testified that this has caused her to
worry.  She described her situation as being Ain a constant
emotional turmoil about B or not constant, but
periodic turmoil about it.@

McCarty=s testimony is
insufficient to create a fact question on either liability or
damages.  The elements of an intentional infliction of emotional
distress claim are (1) the defendant acted intentionally and recklessly,
(2) the conduct was extreme and outrageous, (3) the defendant=s actions caused the
plaintiff emotional distress, and (4) the plaintiff=s emotional distress
was severe. Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.
1993).  It is for the court to determine in the first instance
whether conduct is extreme and outrageous.  Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814, 817-18 (Tex. 2005).  Extreme and
outrageous conduct is conduct so outrageous in character and so extreme in
degree as to go beyond all possible bounds of decency and to be regarded
as atrocious and utterly intolerable in a civilized community.
Id.  Generally, insensitive or rude behavior, insults,
indignities, threats, annoyances, and petty oppressions do not rise to the
level of extreme and outrageous conduct.  GTE Sw., Inc. v.
Bruce, 998 S.W.2d 605, 612 (Tex. 1999).  McCarty=s evidence, even when
viewed in her favor, does not rise to the level of extreme and outrageous
conduct required to constitute a cause of action.

The requirement that the emotional distress be severe
means that the distress is so severe that no reasonable person could be
expected to endure it without undergoing unreasonable suffering.
Id. at 618.  This requires proof of more than mere worry,
anxiety, vexation, embarrassment, or anger. Id.  Because
McCarty testified to no more than periodic turmoil, she also failed to
establish compensable damages.  The trial court did not err by
granting summary judgment on her intentional infliction of emotional
distress claim.

McCarty also asserted claims for misrepresentation and
tortious interference with contract.  McCarty claimed that the
affidavit Montgomery filed in the real property records of Palo Pinto
County concerning the purchase agreement misrepresented the status of
title, caused her to lose her tax exemption, and prevented her from
selling her property.  She also claimed that Montgomery executed an
agreement with Hill Operating that voided and released the lease agreement
between herself and Hill Operating.

McCarty cites no evidence that Montgomery made any
representation to the taxing authorities.  McCarty also cites no
evidence that Montgomery=s actions, as opposed
to the tax lien, prevented her from selling the property to any other
party.  Because we have found that Trimont was entitled to specific
performance, any representation about its ability to proceed to closing
was, in fact, true.  The trial court, therefore, did not err by
granting summary judgment on McCarty=s misrepresentation
cause of action.

McCarty=s tortious
interference claim is predicated upon a letter agreement between
Montgomery and Hill Operating.  They agreed that, when Montgomery
became entitled to McCarty=s interest, her
leases would become void, be released, and be replaced with a new
agreement.  McCarty argues that this constitutes tortious
interference with contract because it interferes with her leases with Hill
Operating.  We disagree because the letter agreement is predicated
upon Montgomery becoming entitled to McCarty=s interest.
Until then, it has no impact on her rights under the mineral leases. The
trial court did not err by granting summary judgment on McCarty=s tortious
interference cause of action.

Finally, McCarty asserted a cause of action for slander of
title.  This cause of action is based upon the statement in
Montgomery=s
affidavit that he had the right to insist upon specific performance of the
contract.  Because that statement is true, no cause of action for
slander of title lies, and the trial court did not err by granting summary
judgment on it.

G.  Attorney=s Fees.

The trial court awarded Trimont attorney=s fees of $85,520.50
through trial and conditional awards in the event of an appeal.
McCarty argues that the trial court abused its discretion with this award
because the evidence provided no segregation of the fees between the
parties and provided no evidence or insufficient evidence as to the
segregation of the attorney=s fees between the
various claims.

Trimont=s counsel testified
that reasonable and necessary attorney=s fees through the
summary judgment process were $65,115, that reasonable and necessary
attorney=s fees
in bankruptcy court proceedings were $24,349.50, and that reasonable and
necessary attorney=s fees through his
testimony were $1,056, for a total of $90,520.50.  Counsel testified
that McCarty had filed several counterclaims after Trimont filed suit for
specific performance but that he viewed these as an effort to defeat
Trimont=s
ability to recover for specific performance and that the issues were
integrally related and intertwined.  Counsel testified that
approximately $5,000 of time was spent dealing with the issues for which
attorney=s fees
were not recoverable.  McCarty offered no evidence but asked the
court to take judicial notice from its experience as to reasonable and
necessary attorney=s fees.  The
trial court found that the claims were Aclose to being
inextricably intertwined. But in view of counsel=s efforts to
segregate, and in the exercise of caution, I=m going to diminish
the requested award by $5,000.@

A determination of reasonable attorney=s fees is a question
for the trier of fact.  Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1, 12 (Tex. 1991).  The amount of a fee award rests in the
sound discretion of the trial court, and its judgment will not be reversed
on appeal absent a clear abuse of discretion.  Cordova v. Sw. Bell
Yellow Pages, Inc., 148 S.W.3d 441, 446-47 (Tex. App.CEl Paso 2004, no
pet.).  Even though the appropriate standard of review is abuse of
discretion, we may nevertheless review a fee award for sufficiency of the
evidence.  Stewart Title, 822 S.W.2d at 11.

When legal services advance both recoverable and
unrecoverable claims, the associated fees need not be segregated.
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex.
2006).  The need to segregate fees is a question of law, while the
extent to which certain claims can or cannot be segregated is a mixed
question of law and fact.  Id. at 312-13.  The trial
court was well familiar with the issues, having presided over the
parties=
cross-motions for summary judgment.  From our work on this appeal, it
is apparent that McCarty=s affirmative claims
are intertwined with Trimont=s right to specific
performance.  The trial court did not abuse its discretion when it
found that all but $5,000 of Trimont=s fees and expenses
were recoverable.

IV.  Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

June 11,
2009

Panel consists of:
Wright, C.J.,

McCall, J., and Strange,
J.

[1]Palo Pinto
County Abstract Company was also named as a defendant, but it was
dismissed before filing an answer when it deposited the
contract=s earnest money into the registry of the
court.

[2]McCarty argues
that this was not a standard form and points to differences between it and
a TREC form she attached to her brief.  The parties utilized TREC No.
25-4 as their base document and customized it.  The form McCarty
attached to her brief is TREC No. 25-5, a subsequent version of this
form.  The Texas Real Estate Commission revised this form again on
June 30, 2008.  The current version is TREC 25-6 and is available at
http://www.trec.state.tx.us/formslawscontracts/forms/forms‑contracts.asp.

[3]The permitted
exceptions were:

1.  The standard printed exception for standby
fees, taxes and assessments.

2.  Liens created as part of the [seller
financing].

3.  Reservations or exceptions otherwise
permitted by this contract or as may be approved by Buyer in
writing.

4.  The standard printed exception as to
marital rights.

5.  The standard printed exception as to
waters, tidelands, beaches, streams, and related matters.

6.  The standard printed
exception as to discrepancies, conflicts, shortages in area or boundary
lines, encroachments or protrusions, or overlapping improvements.
Buyer, at Buyer=s expense, may have the exception amended to read,
Ashortages in area.@

[4]The contract
elsewhere provided that no survey was required.

[5]For an example
of this provision in practice, see Fawcett, Ltd. v. Idaho Northern
& Pacific Railroad Co., No. 11-07-00154-CV, 2009 WL 1349988 (Tex.
App.CEastland May 14, 2009,
n.p.h.).