In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00493-CV ___________________________
BRYAN RIGG, Appellant
V.
JOSHUA HICKSON AND MACY HOLLIS, Appellees
On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141-342494-23
Before Sudderth, C.J., and Kerr and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
This case involves personal property to be conveyed along with residential real
estate by means of language that—prefaced by one struck-through word—was typed
into the “Special Provisions” paragraph 11 of Texas’ standard residential-real-estate
form contract. More pointedly, this case highlights the perils of not retyping contract
provisions anew without strike-throughs or interlineations when their terms change
before a final bargain is reached.
Bryan Rigg, the buyer–appellant, sued Joshua Hickson and Macy Hollis, the
sellers–appellees, claiming they had removed personal property that the contract
unambiguously required them to leave and seeking to recover that property’s value. At
trial, the sellers countered that because the word ALL was struck through in
paragraph 11 ahead of the phrase “Personal property to remain at home
including . . . ,” the contract meant that “not all” personal property was to convey, a
position the trial court agreed with. The trial court also agreed with the sellers that
they were contractually obliged to leave only the specific items listed after the word
including and that they had done so, thereby complying with the contract.
After a short bench trial, the trial court entered judgment in the sellers’ favor
and awarded them attorney’s fees and costs. Because the trial court erred in
construing the contract and holding that the sellers had complied with it, we will
reverse.
2 I. Background
Siblings Joshua and Macy are the adult children of Gary Hickson, who passed
away in December 2022. At the time of his death, Gary owned a home at
2702 Marquis Circle West in Arlington. Because mortgage, insurance, and other
payments were ongoing, Joshua and Macy (who was the independent executor)
wanted to sell the property quickly and engaged Callie Farr as their real-estate agent.
Rigg’s parents had designed and built the house in 1975, and it had been his
childhood home. When he learned that Gary had died and the house was to be sold,
Rigg contacted Macy and met with her and Joshua at the property to discuss his
interest in buying it. According to Rigg, they informed him that they were already in
discussions with a Peter Vo, who had offered $1.04 million, but that if Rigg matched
that amount, the house could be his.
Rigg quickly arranged for financing and submitted a contract within days, only
to learn that Joshua and Macy had accepted Vo’s offer in the meantime. After
discussions with Vo’s realtor, Mike Farah, Rigg paid Vo for an assignment of the
contract and began using Farah as his agent. 1 Rigg’s lender later required him to make
his own contract directly with the sellers.
1 Rigg’s initial agent, Jerry Boswell, lived next door to the house, and Rigg had known him since childhood. Boswell had arranged for a quick showing to Rigg and submitted Rigg’s initial offer. Farah is both a real-estate agent and a lawyer, but he disclaimed having worked on this transaction in a legal capacity.
3 The parties used the standard “One to Four Family Residential Contract
(Resale)” form promulgated by the Texas Real Estate Commission (TREC). The bold-
face and underlined addition to paragraph 11, “Special Provisions”—the parenthetical
portion of the paragraph is preprinted—reads as follows2:
When Rigg took possession of the house, he discovered that multiple items of
personal property were missing. Unable to work anything out with the sellers, he sued
to recover as damages the missing items’ value under theories of breach of contract,
conversion, and violations of the Texas Theft Liability Act, see Tex. Civ. Prac. & Rem.
Code Ann. §§ 134.001–.005. In response, the sellers raised the statute of frauds as an
affirmative defense. See Tex. Bus. & Com. Code Ann. § 2.201(a) (“[A] contract for the
sale of goods for the price of $500 or more is not enforceable by way of action or
defense unless there is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom enforcement is
sought . . . .”).
At the ensuing bench trial, Rigg testified to damages and put into evidence an
itemized list, with values totaling over $68,000, of personal property he claimed had
Rigg does not contend that the strike-through occurred after he signed the 2
contract.
4 been wrongly removed.3 Despite the parties’ contending on appeal that the contract
was unambiguous, albeit in diametrically opposed ways, the trial consisted of parol
and extrinsic evidence about what each side had in mind concerning the special-
provisions paragraph, about earlier iterations of that paragraph in both Vo’s and
Rigg’s written offers, and about the sellers’ and their realtor’s belief4 that the only
personal property they had to leave (although they left a great deal more) were the
specific items appearing after the word including in paragraph 11.
At the trial’s conclusion, the trial court announced that it would make its
decision and the winner could then submit attorney’s-fee evidence. Four days later,
the trial court entered a partial judgment that Rigg take nothing, so only Joshua and
Macy submitted evidence of their attorney’s fees. The resulting final judgment
awarded Joshua and Macy attorney’s fees of $10,075 and $1,420 in costs of court,
including voluntary mediation fees.5 Rigg timely appealed.
3 Rigg’s itemized exhibit included “curtains” missing from two bedrooms. Although neither side mentions it, from our reading of the TREC form’s standard paragraph 2, “Property” to be conveyed automatically includes such “Accessories” as “curtains and rods, blinds, window shades, [and] draperies and rods,” unless explicitly excluded by denominating them in paragraph 2(D). Paragraph 2(D) of the executed contract is blank, so it would appear that, at the very least, the sellers violated the contract by taking curtains, regardless of paragraph 11. 4 Farr agreed that paragraph 11 “allow[ed] the sellers to take whatever they want[ed] out, personal property out of the house besides the enumerated items” and “[could] leave behind whatever they want in addition to those enumerated items.” 5 Rigg complains that the court costs erroneously included $650 for a mediation fee because the mediation was not court-ordered and the trial court made no good-
5 II. Issues
Rigg presents us with four issues, which we quote:
1. The trial court’s construction of the unambiguous contract is
erroneous as a matter of law.
2. The trial court’s construction of the contract (if ambiguous) is
erroneous in light of the parol evidence.
3. The trial court erred in holding that Bryan Rigg’s claims were barred
by the UCC Statute of Frauds.
4. The trial court erred in charging court costs that included a mediation
fee.
III. Issues 1 & 2: What Does Paragraph 11 Even Mean?
A. Standard of review; legal principles
If we can give a contract a definite legal meaning or interpretation, then it is not
ambiguous, and we construe it as a matter of law according to its language. Universal
C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951). A contract is not
ambiguous simply because the parties disagree about what it means. Dynegy Midstream
Servs., L.P. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). Rather, “a contract is
ambiguous only if it is subject to more than one reasonable interpretation after the
pertinent rules of construction have been applied.” Finley Res., Inc. v. Headington Royalty,
cause finding to support that fee on the record. Our disposition means that we need not tackle this particular complaint. See Tex. R. App. P. 47.1.
6 Inc., 672 S.W.3d 332, 340 (Tex. 2023) (citing Italian Cowboy Partners, Ltd. v. Prudential
Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)); see also Coker v. Coker, 650 S.W.2d
391, 393 (Tex. 1983); RPC, Inc. v. CTMI, LLC, 606 S.W.3d 469, 483–84 (Tex. App.—
Fort Worth 2020, pet. denied) (quoting Heritage Res., Inc. v. NationsBank, 939 S.W.2d
118, 121 (Tex. 1996)); Interest of H.W., No. 02-24-00275-CV, 2025 WL 1271925, at
*4 (Tex. App.—Fort Worth May 1, 2025, pet. filed) (mem. op.).
And “[o]bjective manifestations of intent control, not ‘what one side or the
other alleges they intended to say but did not.’” URI, Inc. v. Kleberg Cnty., 543 S.W.3d
755, 763–64 (Tex. 2018) (quoting Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s
London, 327 S.W.3d 118, 127 (Tex. 2010); see also Fiess v. State Farm Lloyds, 202 S.W.3d
744, 746 (Tex. 2006) (“[T]he parties’ intent is governed by what they said, not by what
they intended to say but did not.”).
Our supreme court also holds that “a primary determinant of meaning” is
“context” and that “language that might evoke multiple meanings if read in isolation
will often be made more precise by its contextual use.” Finley Res., 672 S.W.3d at 339–
40. Here, because paragraph 11 provides parties to a real-estate sale the option to
address such nonessential tag-along matters as personal property to be left behind, we
do not think that exploring the context of this real-property sales contract—whose
foundational purpose was to convey residential real estate—adds anything to how we
construe paragraph 11. The preprinted part of paragraph 11 states on its face, after all,
that it is “intended to be used only for additional informational items.”
7 Although both parties’ top-line argument on appeal is that paragraph 11 is
unambiguous, neither side asked the trial court to construe it as a matter of law by, for
example, moving for summary judgment—or even making an opening or closing
statement asking for a matter-of-law interpretation. Instead, the trial consisted of
nothing but parol and extrinsic evidence from start to finish as though the factfinder
had to resolve an ambiguity, and the trial court entered findings of fact and
conclusions of law. Cf. Harris v. Howard, No. 01-22-00882-CV, 2024 WL 4885848, at
*1 (Tex. App.—Houston [1st Dist.] Nov. 26, 2024, no pet. h.) (mem. op.) (“On the
parties’ agreed position that their contract is unambiguous, the trial court and parties
halted a bench trial less than halfway through the first trial witness, and the trial court
interpreted the contract as a matter of law.”). 6 Nonetheless, the trial court’s findings
and conclusions are couched in terms of lack of ambiguity: Finding of Fact 1, for
example, recites that “Paragraph 11 . . . clearly demonstrates that the parties were aware
that not all personal property would convey because they struck through ‘All’ (i.e.,
ALL), meaning ‘not all’ personal property.” 7 [Emphasis added.] The first three
6 The en banc court later denied appellees’ ambiguity ground for en banc reconsideration, granted reconsideration on a different ground, and left the majority disposition unchanged. 2025 WL 1583520, at *1, *2 (Tex. App.—Houston [1st Dist.] June 5, 2025, order). 7 The trial court also introduced its findings and conclusions with comments that included, “Plaintiff also signed a subsequent version of the sales contract that also included the marked-through ‘All’ in Paragraph 11, clearly meaning that not all personal property would convey.” [Emphasis added.]
8 Conclusions of Law are that “[t]he contract language in Paragraph 11 ‘Special
Provisions’ did not require Defendants to convey all personal property”; “[b]y
crossing out the word ‘ALL’ in Paragraph 11, the parties entered into an agreement
that ‘not all’ personal property would convey at closing”; and “[b]y leaving the specific
items listed in Paragraph 11 of the contract, Defendants complied with the terms of
the contract.” Nothing in the findings and conclusions or in the final judgment
suggests that the trial court’s decision was based on anything other than its reading of
what it apparently considered an unambiguous contract.
So we will first ask: after applying the pertinent rules of construction, can we
assign an unambiguous meaning to paragraph 11?
B. Applicable rules of construction; analysis
1. “Including”
We start with the interpretive canon that applies to “Personal property to
remain at home including [certain items].” [Emphasis added.] Including signals
enlargement, not limitation; it is illustrative, not exclusive. Stonegate Fin. Corp. v.
Broughton Maint. Ass’n, Inc., No. 02-18-00091-CV, 2019 WL 3436616, at *5 (Tex.
App.—Fort Worth July 30, 2019, no pet.) (mem. op.) (“As a straightforward
definitional matter, including does not mean only or limited to—a fact self-evident from
lawyers’ ubiquitous use of the phrase including but not limited to when (for example)
propounding document requests.”); Waldrop v. Waldrop, 552 S.W.3d 396, 409–10 (Tex.
App.—Fort Worth 2018, no pet.) (“General rules of contract construction provide
9 that the terms ‘includes’ and ‘including’ are terms of enlargement and not of limitation
or exclusive enumeration, and the use of those terms does not create a presumption
that components not expressed are excluded.”); see Tex. Gov’t Code Ann.
§ 311.005(13) (same); see also Antonin Scalia & Bryan A. Garner, Reading Law 132–
33 (2012) (discussing semantic canon under which “[t]he verb to include introduces
examples, not an exhaustive list”); Bryan A. Garner, Garner’s Dictionary of Legal Usage
439 (3d ed. 2011) (instructing that including “should not be used to introduce an
exhaustive list, for it implies that the list is only partial. In the words of one federal
court, ‘It is hornbook law that the use of the word including indicates that the specified
list . . . is illustrative, not exclusive.’ Puerto Rico Maritime Shipping Auth. v. ICC, 645 F.2d
1102, 1112 n.26 (D.C. Cir. 1981)”).
Based on this established canon and reading the contract in light of it, we hold
that paragraph 11’s listing of certain personal property after the word including was
simply illustrative and did not limit the personal property conveying with the house to
only “Pool table, Dining set, Living and Master furniture, Outdoor furniture, stereo
systems and Hot Tub and all appliances.” If, then, we were dealing with a sentence
reading only “Personal property to remain at home including,” we could stop here
and hold that the sellers were obliged to leave everything in the way of personal
property, because that would be paragraph 11’s unambiguous meaning.
10 2. Struck-through wording
But we must consider what to make of the appearance of “ALL” (so struck)
that precedes “Personal property to remain” (so capitalized, as grammatical rules
require of a sentence’s beginning).8 In examining paragraph 11’s appearance alone—
without considering the parties’ testimony about what they intended or how they
subjectively interpreted it—we can turn to caselaw involving contracts with crossed-
out language and ponder whether to completely ignore it—as some courts have
counseled—or wonder what it might signify and thus declare an ambiguity.
Rigg cites us to two cases taking the former approach, which would simplify
matters considerably. Take the oldest of them, Mineral Investing Corp. v. Bishop Cattle
Co., 49 S.W.2d 532 (Tex. App.—San Antonio 1932), aff’d on other grounds, 78 S.W.2d
174 (Tex. Comm’n App. 1935). There, the parties disputed who had the right to
receive one-half of the delay rentals that might be paid to extend the term within
which a well had to be drilled under an oil-and-gas lease. Id. at 533. The parties to the
mineral deed that started it all had marked through preprinted form language dealing
with delay rentals, leading the court to observe and hold, “Certain words had been
deleted from the contract, and in that condition it was presented to the court. The
8 See, e.g., https://www.thesaurus.com/e/grammar/when-to-capitalize-words/ (“You should always capitalize the first letter of the first word in a sentence, no matter what the word is.”) (last accessed August 7, 2025).
11 parts [struck] out, presumably before it was signed, could not be considered in the
construction of the contract.” Id.9
But that seemingly straightforward principle is nuanced, with the supreme court
more recently surveying other Texas cases on the subject and concluding that, in
certain situations, language struck from a contract must be considered to determine
the meaning of a contract that otherwise seems unambiguous. Hous. Expl. Co. v.
Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469–71 (Tex. 2011); cf. G&G
Mech. Constructors, Inc. v. Jeff City Indus., Inc., 549 S.W.3d 492, 497 n.9 (Mo. Ct. App.
2018) (declining to adopt the Texas Supreme Court’s reasoning in Houston Exploration
and noting that “precedent in Missouri is clear that [struck] provisions are extrinsic to
the contract and not to be considered”). 10
Although we have not found a case in which parties later struck through
something they had themselves first manually added—probably because by far the
better practice is to start from scratch and retype the affected provision—we cannot
9 Rigg’s other case is from an Idaho federal district court. United States v. Fid. & Deposit Co. of Maryland, Case No. 2:19-cv-00293-RCT, 2022 WL 1538707, at *6 (D. Idaho May 16, 2022) (“[Struck] language is extrinsic and may not be resorted to in construing a contract”). 10 The dissent in Houston Exploration advocated unsuccessfully for the absolutist not-to-be-considered position, writing that “[t]o consider deleted language or other previous drafts or negotiations would destroy the parol[-]evidence rule without easing interpretation” and quoting Straub v. Screven, 19 S.C. 445, 449–50 (1883), for rule that “contracts must be construed by the words which they contain, and not with reference to words omitted or erased”). 352 S.W.3d at 475 (Jefferson, C.J., dissenting).
12 simply disregard “ALL.” We do agree with Rigg that in the normal circumstance the
meaning of “All Personal property to remain” and “Personal property to remain” is
the same, but the act of striking through “ALL” signifies something.
The trial court concluded, as a legal matter, that it meant “not all personal
property,” but that is an unsatisfying—if not altogether incorrect—interpretation.
Disregarding the list of example items after including (because it is illustrative only)
leaves a riddle worthy of the Sphinx: if the sellers were to leave “not all personal
property,” what were they to leave? We hold that, as presented, paragraph 11 is of
uncertain meaning or is reasonably susceptible to more than one meaning, see Coker,
650 S.W.2d at 393, and is ambiguous.
C. Remedy for trial court’s misinterpretation
Because the trial court incorrectly interpreted paragraph 11 as not requiring the
sellers to leave personal property over and above the listed including items, the trial
court erred in holding that the sellers had complied with the contract; they did not.
But we cannot render judgment in Rigg’s favor because paragraph 11 was made
ambiguous by striking through ALL, leaving the trial court’s legal conclusion that the
sellers had contracted to leave “not all” personal property meaningless.11 A remand is
necessary for the trial court to reconsider its judgment.
11 The one thing the parties seemed to agree on was that the sellers could remove sentimental items before Rigg took possession. But those items were not identified at trial, nor did the sellers go through Rigg’s detailed exhibit of missing personal property at trial to explain what they thought was sentimental and thus
13 IV. Issue 3: The UCC Statute of Frauds Doesn’t Apply
To assist the trial court’s ultimate resolution of this dispute, we also address
Rigg’s third issue, which challenges the trial court’s holding that the statute of frauds
found in the Texas version of the Uniform Commercial Code bars his claims. Tex.
Bus. & Com. Code Ann. § 2.201(a) (“[A] contract for the sale of goods for the price
of $500 or more is not enforceable by way of action or defense unless there is some
writing sufficient to indicate that a contract for sale has been made between the
parties and signed by the party against whom enforcement is sought . . . .”).
The sellers raised the statute of frauds as an affirmative defense, but the lone,
oblique mention of it at trial was minimal: on cross-examination, Rigg agreed that the
missing personal property he was suing over had “a value well over $500.” Beyond
that, the statute of frauds’ only other appearance came in the trial court’s conclusion
of law that Rigg’s “claims for damages associated with the personal property, beyond
the items listed in the contract, are barred by the Statute of Frauds . . . .”
But as Rigg points out, this case does not involve a contract for goods but
rather for real property. Cf. Perkins v. Chase Manhattan Mortg. Corp., No. 03-04-00741-
CV, 2006 WL 1649006, at *7 (Tex. App.—Austin June 16, 2006, no pet.) (mem. op.)
(noting that “real[-]estate contracts are not governed by the UCC”). Nothing in the
record or on the face of the contract suggests that any portion of the $1.04 million
properly removed. That’s not surprising, though, considering the sellers’ crabbed reading of paragraph 11 as conveying only the “including” items.
14 purchase price was earmarked as compensation for personalty; indeed, the Third Party
Financing Addendum accompanying the sales contract expressly shows $1.04 million
as the property’s appraised value.
TREC actually provides a mechanism for dealing with personal property in
connection with a real-estate sale: its website offers a form “Non-Realty Items
Addendum” for exactly this situation, but the parties here did not use it. That
addendum begins, “A. For an additional sum of $____________ and other and good
valuable consideration, Seller shall convey to Buyer at closing the following personal
property (specify each item carefully, include description, model numbers, serial
numbers, location, and other information).”
https://www.trec.texas.gov/sites/default/files/pdf-forms/OP-M.pdf (last accessed
August 7, 2025). Using this form, even if the consideration was $1.00, could better
have focused the parties on what was staying and what was not.
We agree with Rigg that the trial court erred in concluding that the statute of
frauds barred his “claim for the value of any personal property beyond the items listed
in Paragraph 11 of the contract” and sustain his third issue.
V. Conclusion
Having found error in the trial court’s construction of the contract at issue, we
reverse the judgment of the trial court and remand for further proceedings consistent
with this opinion.
15 /s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered: August 14, 2025