                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00216-CV

JOHN J. LOTITO, JR.,
                                                          Appellant
v.

KNIFE RIVER CORPORATION-SOUTH
AND KNIFE RIVER CORPORATION,
                                                          Appellees



                          From the 414th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-1417-5


                           CONCURRING OPINION


      I believe that promissory estoppel is well established in Texas law as an

affirmative cause of action, but because the trial court properly entered summary

judgment on Lotito’s promissory estoppel claim, I respectfully concur.

      The elements of promissory estoppel are: (1) a promise; (2) foreseeability of

reliance on the promise by the promisor; and (3) substantial detrimental reliance by the

promisee. Frost Crushed Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 44 (Tex.

App.—Waco 2002, no pet.); Leach v. Conoco, Inc., 892 S.W.2d 954, 959 n.2 (Tex. App.—
Houston [1st Dist.] 1995, writ dism’d w.o.j.) (citing English v. Fischer, 660 S.W.2d 521, 524

(Tex. 1983); and Collins v. Allied Pharmacy Mgmnt., Inc., 871 S.W.2d 929, 937 (Tex. App.—

Houston [14th Dist.] 1994, no writ)); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d

675, 686 n.25 (Tex. 2002); Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1966) (“We agree with

the reasoning announced in those jurisdictions that, in cases such as we have before us,

where there is actually no contract the promissory estoppel theory may be invoked,

thereby supplying a remedy which will enable the injured party to be compensated for

his foreseeable, definite and substantial reliance.”).

       In its traditional motion for summary judgment, Knife River sought summary

judgment as a matter of law on several grounds, including that (1) promissory estoppel,

in the employment context, is only applicable if there was a promise to execute a

presently existing written agreement, and (2) Lotito’s reliance on the alleged promise

was unreasonable.

       It is not disputed in this case that the statute of frauds would otherwise bar an

oral promise of employment for eight years. TEX. BUS. & COMM. CODE ANN. § 26.01(a),

(b)(6) (West 2009); see Collins, 871 S.W.2d at 933. “[I]n some circumstances, promissory

estoppel may be used to bar the application of the statute of frauds and allow

enforcement of an otherwise unenforceable oral promise.” Sonnichsen v. Baylor Univ., 47

S.W.3d 122, 125 (Tex. App.—Waco 2001, no pet.). But in the employment context,

promissory estoppel is only applicable if there was a promise to execute a presently

existing written agreement (or a misrepresentation that a writing complied with the

statute of frauds). Leach, 892 S.W.2d at 959; Collins, 871 S.W.2d at 937-38; Webber v. M.W.

Lotito v. Knife River Corporation-South                                                Page 2
Kellogg Co., 720 S.W.2d 124, 128 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.).

In his deposition, Lotito admitted that there was nothing in writing about the alleged

promise of eight years of employment. Accordingly, summary judgment was proper

on this ground.

        Reliance, as an element of promissory estoppel, must be reasonable and justified.

Frost Crushed Stone, 110 S.W.3d at 45. Knife River moved for summary judgment on the

ground that Lotito’s reliance on an alleged oral promise of eight years of employment,

without any limit on Knife River’s freedom to terminate Lotito’s employment, was

unreasonable and unjustified as a matter of law.1 We agree. See Collins, 871 S.W.2d at

938. Summary judgment was also proper on this ground.

        Because the trial court did not err in granting Knife River’s traditional motion for

summary judgment, I join the majority’s affirmance of the trial court’s judgment.




                                                          REX D. DAVIS
                                                          Justice

Opinion delivered and filed November 8, 2012




1 Lotito argues that Hernandez v. UPS Supply Chain Solutions, Inc., 496 F.Supp.2d 778 (W.D. Tex. 2007),
shows that his reliance was reasonable and justified, but the facts in Hernandez are substantially
distinguishable. There, the plaintiff, who was employed in Chicago, received a job offer to work for UPS
in El Paso. He quit his job, broke his lease, and moved his family to El Paso, and after a couple of days of
training, he was told that UPS would not honor the job offer. Id. at 780-81. The plaintiff sued for
promissory estoppel to recover his out-of-pocket expenses, and the federal district court ruled that the
plaintiff showed that his reliance on the job offer was reasonable. Id. at 785.

Lotito v. Knife River Corporation-South                                                              Page 3
