Texas Business Court Decision – July 22, 2026
No. 25-BC11B-0088 Village Crossing, LLC v. West Creek Investments, LLC (Eleventh Division, Judge Stagner)
Contracts.
Background. Village Crossing agreed to sell, and West Creek agreed to buy, 11.56 acres of commercial property in Rosenberg, Texas for a price of $11.75 per square foot. This was a blended price, representing the value of 1.1 acres of higher-value frontage along. U.S. Highway 59 and 10.46 acres of lower-value “interior” property. Exhibit A to the parties’ sales agreement labeled the frontage as “+/- 1.1 AC” but visually outlined a larger tract of 2.0644 acres. It also left the interior acreage’s northern boundary undefined, instead providing that a future survey by West Creek “shall become the legal description of the Property.” West Creek’s surveys ultimately claimed 13.5691 acres – the full 2.0644-acre frontage, plus 11.5047 acres of interior land, extending into adjoining property Village Crossing never intended to sell. When Village Crossing objected, West Creek insisted its surveyor’s depictions controlled by definition. After a notice of default and an unsuccessful cure period, Village Crossing terminated the agreement, and this suit ensued. West Creek later retreated to a fallback position, conceding some ambiguity as to the interior acreage but asking the Court to sever the frontage from the interior land and compel conveyance of the frontage parcel alone at the original blended price of $11.75 per square foot. The matter comes before the Court on Village Crossing’s Traditional Motion for Summary Judgment.
Issues.
- Whether the agreement created one indivisible sale of a single defined property or two severable conveyances capable of independent enforcement. Held: One sale.
- Whether the agreement’s failure to describe the property’s full boundaries rendered it unenforceable for indefiniteness and violative of the statute of frauds. Held: Yes; and
- Alternatively, whether West Creek’s delivery of nonconforming surveys and refusal to cure constituted a material breach excusing Village Crossing’s performance. Held: Yes.
Discussion. The Court grants summary judgment for Village Crossing on all grounds.
First, examining the agreement’s singular architecture – one defined “land,” one survey requirement, one price formula, one earnest-money deposit, and one deed – the transaction was an integrated, indivisible bargain. The court distinguishes Morrow v. Shotwell, 477 S.W.2d 538 (Tex. 1972), as the contract there expressly designated separate “First” and “Second” tracts for sale. Because this sale was unitary, West Creek’s proposed severance of the frontage parcel under the agreement’s boilerplate “savings clause” was unavailable, as severance cannot manufacture a stand-alone price the parties never negotiated. Because the defect here goes to the core description of the single asset under contract, any attempt at severance would leave the remaining tract without a negotiated price – an integral part of the sale. There is simply no independent bargain left for the savings clause to save. Further, it would be inequitable to allow West Creek to purchase the more valuable portion of the parcel at the blended price.
Second, the agreement is indefinite and independently void under the statute of frauds because it omitted the interior tract’s northern boundary and relied on a future survey to supply the legal description. Texas law categorically rejects this approach – see Morrow and Dayston, LLC v. Brooke, 630 S.W.3d 220 )Tex. App. – Eastland 2020). The parties’ agreement neither describes the full property to be conveyed nor furnishes a definite contractual method for identifying it. The statute of frauds does not allow a future survey operating outside the writing to become the bargain itself. West Creek’s argument that the another section of the agreement granted it an implied unilateral selection right failed under the test for selection outlined in Stekoll Petroleum Co. v. Hamilton, 255 S.W.2d 187, 191 (Tex. 1953), since the agreement never describe a specifically bounded parent tract from which the selection could occur.
Third, in the alternative, the Court holds that even if the agreement was enforceable, West Creek materially breached it by delivering surveys exceeding the contracted acreage by roughly 17%, refusing to cure after notice, and asserting that its surveyor’s work automatically defined “the Land.” This conduct discharged Village Crossing’s performance obligations.
As to Village Crossing’s request to recover the $55,000 earnest money as liquidated damages under a provision of the agreement, together with attorney’s fees and expenses under another provision of the agreement and Chapter 38 of the Texas Civil Practice and Remedies Code is denied, as those remedies depend on the existence of an enforceable contract, and the Court has concluded that none exists. Village Crossing may file an application for attorney’s fees under the Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Sec. 37.009.