OPINION
Opinion By
In а single-issue bench trial, the trial court determined that the property description contained in a letter agreement between appellant Randall Clayton May and appellee William “Bill” Buck did not satisfy the requirements of the statute of frauds. We affirm the trial court’s judgment.
BACKGROUND
On January 20, 2005, May, Buck, and appellee Petrox Energy Corporation (Pe-trox) entered into a letter agreement regarding the acquisition of mineral rights in Leon County, Texas. The letter agreement recited that May and Buck desired “to enter into an agreement to acquire mineral rights on acreage in Leon County, Texas from Norman Powell and Mary Bor-mann (Formerly Mary Powell).” The agreement provided that May would provide the capital to lease the acreage, and Buck would lease the acreage to acquire the mineral rights.
The following are the relevant terms and conditions from the letter agreement:
RM [May] will provide the capital to lease the acreage.
BB [Buck] will lease the acreage.
BB will assign to RM or any entity designated by RM all the mineral rights and a 100 acre spacing centered around the David Morris Gas Unit # 1 in Leon County, Texas.
BB will retain the mineral rights to the South of the unit.
RM will retain the rights to the North of the center of the unit, if any. The boundary will be from an East-West line on the David Morris Gas Unit and then all mineral acreage covered by the lease to the North, if any.
The acreage referred to within this agreement is better described in the Exhibit A attached to this agreement and made a part of this agreement.
Exhibit A attached to the agreement describes “563.465 acres, more or less as describеd in the following four tracts,” and includes specific references to the deed records of Leon County for each tract.
Pursuant to the letter agreement, May provided the capital and Buck entered into leases with Mary M. Powell Borman and Norman Powell. Later, when Buck did not assign the mineral rights to May, May filed suit against Buck and Petrox. May also asserted claims against the other ap-pellees, including claims for tortious interference with May’s contract with Buck. Appellants Union Energy, Inc. and Lane McNamara intervened in the suit.
The parties agreed to a bench trial on the limited issue of appellees’ affirmative defense that the statute of frauds barred May’s claims. As appellees’ counsel argued at the trial, “the problem is where’s the hundred acres [?]” described in the letter agreement. Both appellees and appellants offered expert testimony. Appel-lees’ expert, Daniel Elbert, testified that he could not determine, from the letter agreement or from any other document, a metes and bounds description of only one tract to be conveyed under the letter agreement, but rather that several different configurations were reasonable. Appellant’s expert, Alan Morgan, testified he could determine with reasonable certainty that the hundred acres conveyed in the letter agreement was in the shape of a rectangular “halo,” (also referred to at trial as a “dоnut,” or “picture frame”) immediately outside the boundary of the David Morris Gas Unit. Over appellants’ objec
After the trial, the court entered findings of fact and conclusions of law, and entered judgment for appellees.
Applicable Standards of Review
The trial court concluded the description of the property in the letter agreement did not satisfy the statute of frauds. The parties agree we review this conclusion de novo. See Dixon v. Amoco Prod. Co.,
Appellants also 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. Biasdel,
In addressing a legal sufficiency challenge, we view the evidence in a light most favorable to the finding, consider оnly the evidence and inferences that support the finding, and disregard all evidence and inferences to the contrary. Catalina,
We do not review a trial court’s conclusions of law for factual sufficiency. See Dallas Morning News Co. v. Board of Trustees,
Appellants also challenge the trial court’s admission of certain evidence. The decision whether to admit or еxclude evidence is committed to the sound discretion of the trial court. City of Brownsville v.
Analysis
A. Requirements of the statute of frauds
The parties agree that the letter agreement, as an instrument conveying an interest in real property, is subject to the statute of frauds. Tex. 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) (conveyance of land must be in writing and “subscribed and delivered by the convey- or”).
In addition, the statute of frauds requires that the writing furnish the data to identify the property with reasonable certainty. Texas Builders v. Keller,
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. [Citations omitted.]
Id.
While the sufficiency of the writing under the statute of frauds is a question of law, we have also explained, “[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,
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,
B. The language of the letter agreement
In five issues, appellants argue the trial court erred in concluding the Letter Agreement did not satisfy the statute of frauds. Central to all of appellants’ issues is the contention that the letter agreement is sufficient to identify the property with reasonable certainty. We begin our review with an examination of the terms of the letter agreement.
The letter agreement itself contains several references to “acreage” in Leon County, Texas. The first reference, in the recitals, is to the parties’ desire to enter into an agreement “to acquire mineral rights on acreage in Leon County, Texas from Norman Powell and Mary Bormann (Formerly Mary Powell).” Next, the letter agreement purports to assign “all the mineral rights and a 100 acre spacing centered around the David Morris Gas Unit # 1 in Leon County, Texas.” The letter agreement also provides, “[t]he acreage referred to within this agreement is better described in the Exhibit A attached to this agreement and made a part of this agreement.”
There is no dispute that Exhibit A provides an adequate description of four tracts totaling 563.475 acres in Leon County, Texas, or that the four tracts are the Powell/Bormann acreage referenced in the recitals. It is also undisputed, however, that the interest cоnveyed in the letter agreement does not follow the boundaries of the four tracts.
Nor is it disputed that the four tracts have boundaries different from the “David Morris Gas Unit.” The parties agree that the unit is adequately described, but dispute whether the reference in the letter agreement to the “David Morris Gas Unit # 1” is a reference to the unit itself, or to a well bore located within the boundaries of the unit. The evidence introduced at trial showed that there was a designation of a “David Morris Gаs Unit” recorded in the county records of Leon County, describing a tract of land in a rectangular shape of 216.42 acres. The evidence also showed there is a “Well No. 1” associated with the David Morris Gas Unit. In finding of fact 13, unchallenged by appellants, the trial court found, “There is no reference to a ‘David Morris Gas Unit # 1’ in the Records of Leon County, Texas. Texas Railroad Commission records refer to a ‘David Morris Gas Unit,’ ‘Well No. 1.’ ”
Appellees argue that the letter agreement’s rеference to the “David Morris Gas Unit # 1” is a reference to the well rather than the unit. The letter agreement uses the term “unit” four times, twice referring to “the unit,” once referring to “the David Morris Gas Unit,” and once referring to “the David Morris Gas Unit # 1.” Appellants, on the other hand, contend that every reference in the letter agreement is to the unit, not to the well. The trial court also found, and appellants do not challenge, that the David Morris Gas Unit’s 216.42-acre area is not contained entirely
It is also undisputed that there is no document further identifying “a 100 acre spacing centered around the David Morris Gas Unit # 1” as described in the letter agreement. There is no information in any document about the shape or boundaries of the 100 acres. Appellants contend it is a rectangle surrounding the David Morris Gas Unit on all four sides, as a “picture frame,” and offered Morgan’s expert testimony to that effect. The trial court noted Morgan’s admission that either a square or a rectangular halo would be properly “centered around” the unit. The trial court further found that neither of Morgan’s configurations would convey the one hundred acres specified in the letter agreement:
In addition, according to the Letter Agreement’s terms, both of these 100 acre shapes centered around the Unit include mineral interests other than those 563.465 acres from which some hundred acre spacing was purportedly to be conveyed. As demonstrated by Plaintiffs Exhibit 8, any attempt to convey mineral rights that were both (i) within either of the shapes in paragraphs 18-19 above that are centered around the Unit and (ii) within the 563.465 acres identified in the Letter Agreement could not possibly result in a conveyance of a 100 acre spacing. (Finding of Fact 19).
Appellants counter with the well-settled proposition that a conveyance can pass no greater interest than that owned by the grantor, citing Cockrell v. Texas Gulf Sulphur Co.,
Under the rules stated in Momw, Rei-land, and Butler, we conclude the description of the property in the letter agreement does not meet the requirements of the statute of frauds. The terms of the letter agreement give rise to several possible configurations of tracts that may be said to be “identified” by the letter agreement, existing writings referenced therein, or both. As a result, we conclude that the tract of land to be conveyed under the letter agreement cannot be identified with reasonable certainty. See Morrow,
In their first issue, appellants argue the trial cоurt applied an erroneous legal standard by considering extrinsic evidence in addition to the language of the letter agreement itself. In their fourth issue, appellants contend the trial court erred by considering May’s deposition testimony about the letter agreement. We consider these issues together.
May testified that his 100 acres would be determined from the well bore. Over appellants’ objection, May’s deposition testimony was read into the record by appel-lees at trial:
Q. All right. Tell me, how would you determine where the hundred acres are?
A. Well, it says — in the contract.
Q. Yeah. Okay.
A. It’s pretty specific.
Q. Okay. Tell me what it—
A. It says 100 acres centered around, which means right in the center, right in the middle. Here’s the wellbore. We know where the well-bore is.
Q. Right.
A. And 100 acres around that, whether it’s a circle or a square.
Q. I was going to say, can it be a circle or could it be a square—
A. It can be—
Q. I guess it could be an oblong?
A. Could be. But in general you would lease for land purposes. They usually draw it as a square.
Q. As a square?
A. Because you can describe it real simply.
Appellants contend that May’s understanding or intent regarding the meaning of the аgreement was irrelevant to whether the property description is sufficient under the statute of frauds. They further contend both Elbert (appellees’ expert) and the trial court impermissibly relied on May’s testimony in reaching their conclusions, citing to Elbert’s testimony that the 100 acres could be centered around the well bore, and the trial court’s finding of fact 8 that “Mr. May, testifying by deposition, testified consistently with Plaintiffs Second Amended Original Petition, stating that the 100 Acre Spacing was to be centerеd around the David Morris # 1 well-bore.”
The court in Morrow explained that “the knowledge and intent of the parties will not give validity to the contract” under the statute of frauds. Morrow, A77 S.W.2d at 540. The court further explained:
The correct rule relating to admissibility of parol evidence to aid descriptions in contracts for the conveyance of land is thus stated in Wilson v. Fisher,144 Tex. 53 ,188 S.W.2d 150 ,152 (1945):
“The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clаrify the essential terms appearing in the instrument may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. O’Herin v. Neal, Tex.Civ.App.,56 S.W.2d 1105 , writ refused.” (Emphasis ours.)
Id. at 540-41. In Morrow, the court noted that “[t]he record leaves little doubt that the parties knew and understood what
Even if the trial court’s admission of May’s testimony was in error, however, we conclude it did not cause the rendition of an improper judgment. See Owens-Coming Fiberglas Corp.,
D. Expert’s purported admissions
In them second issue, appellants contend the trial court erred in concluding as a matter of law that the letter agreement violated the statute of frauds when appellees’ own expert admitted that the property described in the letter agreement could be described with reasonable certainty. Appellees argue that appellants have taken a small portion of the expert’s testimony out of context. After reviewing the entire record, we conclude that Elbert testified to several possible configurations of the 100 acres, all of which he found to be reasonable based upon the language of the letter agreement, the relevant records, and his professional expertise. While he did agree Morgan’s opinion of the configuration was reasonable, he also testified without reservation that he could not determine from the letter agreement itself or from the property records of Leon County the metes and bounds desсription of only one tract constituting a 100-acre spacing around the David Morris Gas Unit. This testimony supports the trial court’s findings and conclusions that the 100-acre spacing could not be identified with reasonable certainty. We overrule appellants’ second issue.
E. Ambiguity
In their third issue, appellants contend the trial court erred by concluding as a matter of law that the letter agreement was ambiguous “when no party argued that the Letter Agreement was ambiguous in any way and Defendants’ expert acknowledged that he could read and understand the terms of the Letter Agreement.” Appellants argue that appellees “waived their ambiguity defense” by failing to plead ambiguity or offer evidence that the letter agreement was ambiguous. Appellants rely on the well-settled proposition that matters not raised in the trial court are not preserved for appellate consideration. See, e.g., Tex.R.App. P. 33.1 (as prerequisite to appellate review, rеcord must show complaint was made to trial court and ruled upon).
F. Admission in pleadings
In their fifth issue, appellants contend the trial court erred by finding that their second amended petition purported to limit the interest conveyed in the letter agreement to an area centered around the well bore rather than around the unit on which the well was drilled.
In paragraph 32 of their second amended original рetition, appellants alleged that because Buck did not perform under the Letter Agreement, they were unable to acquire an interest in “the mineral acreage associated with the David Morris Gas Unit # 1, as well as the lawful right to develop the valuable gas reserves associated with the Morris Reef by re-entering and re-completing the David Morris Gas Unit # 1 well bore.” In finding of fact 7, the trial court quoted a portion of this allegation, and found that “[paragraph 32 ... takes the position that the phrase the ‘David Morris Gas Unit # 1’ refers to the David Morris # 1 well.” In the same finding, the trial court further stated, “[w]ere the Letter Agreement’s 100 acre spacing located in some shape ‘around’ the David Morris Gas Unit, such a spacing would be at no point less than 1500 feet from the well bore.”
Appellants argue that nothing in paragraph 32 or any other part of their petition purports to limit the interest conveyed by Buck to May in the letter agreement to an area centered arоund the well bore of a particular well. As we noted in our consideration of appellants’ first and fourth issues, the trial court’s findings that the letter agreement’s property description is open to multiple interpretations is supported by the language of the letter agreement itself as well as the evidence offered by the parties. Even if appellants’ petition cannot be construed to refer to the well bore rather than the unit, the language of the letter agreement itself and the evidence presented at trial support the trial court’s conclusion that the property could not be identified with reasonable certainty. We overrule appellants’ fifth issue.
ConClusion
Because the Letter Agreement did not “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,
Notes
. The trial court severed May's claim for rescission of the letter agreement against Buck and Petrox.