Reversed in Part, Affirmed in Part, and Remanded. Opinion Filed July 7, 2016.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-01579-CV

DAVID BAGWELL, INDIVIDUALLY AND AS TRUSTEE OF THE DAVID
  S. BAGWELL TRUST, AND MARILYN D. GARNER, CHAPTER 7
 TRUSTEE OF THE ESTATE OF THE DAVID BAGWELL COMPANY
 AND TRUSTEE OF THE ESTATE OF EVERMORE COMMUNITIES,
                     LTD., Appellants
                                                 V.
                  BBVA COMPASS AND SAM MEADE, Appellees

                         On Appeal from the 101st Judicial District Court
                                     Dallas County, Texas
                              Trial Court Cause No. DC-14-00991

                               MEMORANDUM OPINION
                         Before Justices Bridges, Fillmore, and Stoddart
                                  Opinion by Justice Stoddart

       This is an appeal from a summary judgment in a fraud suit brought by guarantors against

the lender and its employee.      The lender moved for summary judgment on its affirmative

defenses of the statute of frauds, res judicata, collateral estoppel, estoppel, and the economic loss

rule. The trial court granted the motion without specifying the grounds for the ruling. We

conclude that the statute of frauds bars the fraud claim to the extent appellants seek to recover

benefit-of-the-bargain damages, but not to the extent they seek to recover out-of-pocket

damages. We also conclude the lender’s remaining affirmative defenses do not support the

summary judgment on the fraud claim. Accordingly, we reverse the summary judgment to the
extent appellants seek to recover out-of-pocket damages on their fraud claim and affirm the

summary judgment in all other respects. We remand this cause for further proceedings.

                                        BACKGROUND

       David Bagwell is a real estate developer and was the president of The David Bagwell

Company (DBC). In 2006, Bagwell formed three limited partnerships to develop real estate

projects. These partnerships collectively borrowed nearly $11 million from Texas State Bank

under three promissory notes (the Notes). The Notes were secured by the real estate owned by

the borrowers and were guaranteed by Bagwell, individually and as trustee of a trust, DBC, and

Evermore Communities, Ltd. (Evermore), under written guaranty agreements (the Guarantees).

Texas State Bank was later acquired by BBVA Compass (Compass) and Compass became the

owner and holder of the Notes and the Guarantees.

       The Notes matured in February 2008, but Compass entered into a written extension

agreement extending the maturity to May 1, 2008, and a second written extension agreement

extending the Notes to December 1, 2009. In August 2009, Sam Meade, an executive vice

president with Compass, became the loan officer for the Notes and took over negotiations with

Bagwell for another extension of the maturity date. According to Bagwell, Meade repeatedly

assured him that Compass would extend the Notes. (We refer to this as the Extension

Representation.) Bagwell alleged he “acted in reliance on these promises.” Bagwell also alleged

that Meade represented to him that Compass was not attempting to sell or assign the Notes to a

third party (the No-Assignment Representation).

       No written agreement to extend the Notes was executed and they matured by the terms of

the last extension on December 1, 2009.      In January 2010, Compass sold the Notes and

Guarantees to another developer, Toll Brothers, Inc., which then assigned them to The Ridge at

Alta Vista Investments I, LLC (RAV).        RAV made demand on the matured Notes and


                                             –2–
Guarantees in February 2010, and filed suit on the Guarantees in April 2010 (the RAV

Litigation). RAV foreclosed on the real property securing the Notes and sought to recover the

deficiency from the guarantors. The guarantors filed a counterclaim against RAV and a third-

party petition against Compass and Meade, but the guarantors never served Compass or Meade.

A final summary judgment against the guarantors in the RAV Litigation was rendered in April

2012. DBC and Evermore filed for bankruptcy protection after that judgment. This Court

affirmed the judgment in the RAV Litigation on appeal. See Bagwell v. Ridge at Alta Vista Invs.

I, LLC, 440 S.W.3d 287 (Tex. App.—Dallas 2014, pet. denied).

       In January 2014, Bagwell brought this lawsuit against Compass and Meade alleging

claims for fraud, fraud in a real estate transaction, and fraud by nondisclosure. Bagwell alleged

he relied on the Extension Representation and the No-Assignment Representation and suffered

“significant damages.” His live pleading stated he seeks monetary relief over $1,000,000.00.

Marilyn D. Garner, Chapter 7 Trustee for DBC and Evermore (the Trustee), intervened as a

plaintiff in this suit and raised a claim for promissory estoppel in addition to the fraud and fraud

by nondisclosure claims.

       Compass and Meade filed a traditional motion for summary judgment on the following

defenses: (1) statute of frauds; (2) res judicata and collateral estoppel; (3) estoppel; and (4) the

economic loss rule. The trial court granted the motion for summary judgment without specifying

the grounds for its ruling, and rendered a take-nothing judgment against Bagwell and the Trustee.

       Bagwell and the Trustee raise the following issues on appeal: (1) res judicata does not

apply because Compass and Meade were not parties to the prior litigation and not in privity with

a party; (2) collateral estoppel does not apply because the fraud claim was not litigated in the

prior lawsuit and was not essential to the judgment; (3) the statute of frauds does not bar the

fraud claim because appellants do not rely on an oral agreement and do not seek benefit-of-the-

                                                –3–
bargain damages; (4) the estoppel defense, based on a contractual merger clause, does not bar a

fraud claim arising out of future conduct; and (5) the economic loss rule does not bar a fraud

claim that does not seek to recover the economic loss arising from a contract. In addition, the

Trustee argues the promissory estoppel claim is not barred by the defenses raised in the motion

for summary judgment.1

         Except where necessary to distinguish the parties, we refer to appellants collectively as

Bagwell and appellees collectively as Compass.

                                            STANDARD OF REVIEW

         We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A party moving for traditional summary

judgment has the burden to prove that there is no genuine issue of material fact and it is entitled

to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “When reviewing a summary judgment, we

take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).

         For a defendant to prevail on a traditional motion for summary judgment, he must either

disprove at least one element of the plaintiff’s claim as a matter of law, or conclusively establish

all elements of an affirmative defense. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d

280, 282 (Tex. 1996); Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—

Dallas 2007, pet. denied). “When a movant meets that burden of establishing each element of


         1
           The Trustee’s issues are: (1) res judicata and collateral estoppel do not apply because the fraud claim was
neither actually litigated in the prior suit nor essential to the judgment; (2) appellants are not estopped by the
disclaimer in the loan documents; (3) the economic loss rule does not apply; (4) the statute of frauds does not bar a
fraud claim seeking reliance damages; and (5) the Trustee’s promissory estoppel claim is not barred by the defenses.


                                                        –4–
the claim or defense on which it seeks summary judgment, the burden then shifts to the non-

movant to disprove or raise an issue of fact as to at least one of those elements.” Amedisys, Inc.

v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); see also AN Collision

Ctr. of Addison, Inc. v. Town of Addison, 310 S.W.3d 191, 193 (Tex. App.—Dallas 2010, no

pet.).

         In this case, Compass did not seek to disprove the elements of appellants’ claims and did

not file a no-evidence motion for summary judgment. As the movant on a traditional motion for

summary judgment on its affirmative defenses, Compass had the burden to conclusively prove

all the elements of those defenses.

                                            ANALYSIS

         On appeal, Bagwell addresses only his fraud claim. The Trustee addresses the fraud

claim and the promissory estoppel claim.

         The elements of fraud are:

         (1) that a material representation was made; (2) the representation was false; (3)
         when the representation was made, the speaker knew it was false or made it
         recklessly without any knowledge of the truth and as a positive assertion; (4) the
         speaker made the representation with the intent that the other party should act
         upon it; (5) the party acted in reliance on the representation; and (6) the party
         thereby suffered injury.

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011)

(quoting Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per

curiam)).

         The elements of a promissory estoppel claim are (1) a promise, (2) foreseeability of

reliance thereon by the promisor, and (3) substantial detrimental reliance by the promisee. See

English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Fretz Constr. Co. v. S. Nat’l Bank of

Houston, 626 S.W.2d 478, 480 (Tex. 1981). To show detrimental reliance, the plaintiff must

demonstrate that he materially changed his position in reliance on the promise. See English, 660

                                                –5–
S.W.2d at 524; Trevino & Assocs. Mech., L.P. v. Frost Nat’l Bank, 400 S.W.3d 139, 146–47

(Tex. App.—Dallas 2013, no pet.) (continuing to deposit money in operating account was not

material detrimental change in plaintiff’s position as result of alleged oral promise to renew and

extend loan agreement). Promissory estoppel is also recognized as an equitable exception to the

traditional statute of frauds. It applies where an oral agreement is barred by the statute, but there

is an additional promise to sign an existing writing containing the terms of the oral agreement

and that writing would satisfy the statute of frauds. See Nagle v. Nagle, 633 S.W.2d 796, 800

(Tex. 1982); “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972).

    A. Statute of Frauds

         Bagwell’s third issue and the Trustee’s fourth issue challenge the summary judgment on

the statute of frauds affirmative defense.

         Compass relies on the statute of frauds applicable to loan agreements involving financial

institutions. See TEX. BUS. & COM. CODE ANN. § 26.02. Under this statute, any loan agreement

involving an amount in excess of $50,000, “is not enforceable unless the agreement is in writing

and signed by the party to be bound or by that party’s authorized representative.” Id. § 26.02(b).2

“Loan agreement” is broadly defined to include

         one or more promises, promissory notes, agreements, undertakings, security
         agreements, deeds of trust or other documents, or commitments, or any
         combination of those actions or documents, pursuant to which a financial
         institution loans or delays repayment of or agrees to loan or delay repayment of
         money, goods, or another thing of value or to otherwise extend credit or make a
         financial accommodation. . . .

Id. § 26.02(a)(2). Financial institutions are state and federally charted banks and similar entities.




         2
          The loan documents in this case contain a conspicuous notice provision substantially in the form required
by section 26.02(e). See id. § 26.02(e); id. § 26.02(f) (providing that if the subsection (e) notice is not given this
section does not apply to the loan agreement). We discuss this notice provision in detail in the estoppel section
below.


                                                        –6–
Id. § 26.02(a)(1).3          The parties do not belabor the issue, but we agree the Extension

Representation and the No-Assignment Representation, considered as promises, fall within the

broad definition of “loan agreement” in section 26.02(a)(2). Id. § 26.02(a)(2) (one or more

promises by which a “financial institution loans or delays repayment of or agrees to loan or delay

repayment of money . . . or to otherwise extend credit or make a financial accommodation”).

         The supreme court recognizes that allegations of fraud do not preclude application of the

statute of frauds. The court has

         rejected attempts to “use a fraud claim essentially to enforce a contract the Statute
         makes unenforceable” as an improper circumvention of the statute’s purpose.
         Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001); see also Nagle v. Nagle, 633
         S.W.2d 796, 801 (Tex. 1982). Thus, we have held that “the Statute of Frauds bars
         a fraud claim to the extent the plaintiff seeks to recover as damages the benefit of
         a bargain that cannot otherwise be enforced because it fails to comply with the
         Statute of Frauds.” Haase, 62 S.W.3d at 799.

Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 769 (Tex. 2007) (per curiam); accord Lam v.

Phuong Nguyen, 335 S.W.3d 786, 790 (Tex. App.—Dallas 2011, pet. denied) (“The Statute of

Frauds bars a fraud claim to the extent the plaintiff seeks to recover as damages the benefit of a

bargain that cannot otherwise be enforced because it fails to comply with the Statute of

Frauds.”).

         Compass contends that in order to prove the elements of his fraud claim, Bagwell must

rely upon an alleged oral agreement that is barred by the statute of frauds for loan agreements.

Compass asserts that the fraud claim arises from the alleged oral agreement to extend the Notes,

and is barred by the statute of frauds because it depends on an oral agreement involving a loan

agreement for more than $50,000.

         In contrast, Bagwell argues that his “fraud claims do not rely on the existence of an oral


         3
              Bagwell does not argue on appeal that Compass is not a financial institution within the meaning of this
definition.


                                                          –7–
agreement of any kind—or seek damages for enforcement of any such non-existent

agreement[.]”   He contends his fraud claim centers on the Extension and No-Assignment

Representations, “representations that never amounted to any full-fledged ‘agreement’ relating to

those notes.” His brief states he never claimed he reached an agreement with Compass “that

would prevent a sale or transfer of the notes” or that Compass “actually agreed to grant an

extension” of the Notes.

       Despite these arguments, Bagwell’s affidavit and live pleading indicate he relied on

alleged oral promises. In his affidavit, Bagwell testified that Compass and Meade repeatedly

assured him the Notes would be extended and he “acted in reliance on these promises.” He

stated that “Meade promised that the Notes would be extended for at least 60 days, upon the

same terms as the Second Modification[.]” Bagwell also testified that Compass and Meade

denied they were in the process of selling the Notes, but then sold them to RAV, “rather than

extending the terms of the Notes, as Meade promised.” “BBVA Compass and Meade caused

sufficient delay so that [Bagwell and his companies] would believe the Notes were in the

renewal and extension process, consistent with Defendants’ promises and past course of action.”

Bagwell stated he inquired about a rumored sale of the Notes in January 2010, and Compass

“denied that the bank intended to sell or transfer the Notes, rather than renew the loans, as

promised.” Bagwell and the Trustee’s live pleadings mirror these statements.

       Bagwell also described Meade’s statements as representations. He testified he relied on

the Extension and No-Assignment Representations: “During this process, I refrained from

arranging for other financing to retire the Notes, which I certainly would not have done . . . had I

known that BBVA Compass was secretly selling the Notes to a competitor.” Bagwell was

concerned about the passage of time in renewing the Notes, but “relied upon Meade’s repeated

assurances of extension of the Notes.” He testified that although they “could have re-financed or

                                                –8–
retired the Notes with another lender or capital source, we relied upon Meade’s and BBVA

Compass’ representations and inducements in not pursuing such alternate capital.”

        Bagwell’s pleading and evidence of damages is not specific. He testified that based on

Compass’s misrepresentations, “The David Bagwell Company, Evermore Communities, Ltd. and

I suffered significant damages.” His petition prayed for actual and special damages in an amount

within the jurisdictional limits of the trial court.

        Thus, Bagwell’s pleading indicates an attempt to enforce an oral promise to extend the

Notes or a promise not to assign the Notes. To that extent, the fraud claim is barred by the

statute of frauds contained in section 26.02:

        If in the face of the Statute of Frauds we permit Glazner’s fraud claim to the
        extent he seeks to recover the benefit of the unenforceable bargain, we deprive the
        Statute of any effect. The Statute exists to prevent fraud and perjury in certain
        kinds of transactions by requiring agreements to be set out in a writing signed by
        the parties. But that purpose is frustrated and the Statute easily circumvented if a
        party can use a fraud claim essentially to enforce a contract the Statute makes
        unenforceable. We therefore hold that the Statute of Frauds bars a fraud claim to
        the extent the plaintiff seeks to recover as damages the benefit of a bargain that
        cannot otherwise be enforced because it fails to comply with the Statute of
        Frauds.

Haase, 62 S.W.3d at 799 (footnote omitted).

        Bagwell contends, however, that he seeks to recover only damages he incurred in reliance

on the representations. In Haase, the supreme court recognized that the statute of frauds does not

bar fraud claims for out-of-pocket damages incurred in reliance on oral representations:

        But Glazner’s fraud claim may not contravene the Statute of Frauds to the extent
        that he seeks out-of-pocket damages incurred in relying upon Haase’s alleged
        misrepresentations. With respect to such damages, Glazner is not attempting to
        enforce the otherwise unenforceable contract. Relying on Glazner’s deposition
        testimony, Haase argues that Glazner’s only alleged damages are the lost profits
        from the franchise he never secured. But Glazner’s petition is not so limited.
        Rather, Glazner’s petition alleges that he made “efforts concerning demographics,
        decor, potential profits, and location.” And the summary judgment record reveals
        that Glazner hired a surveyor and entered into an earnest-money contract for a site
        on which he proposed to build his restaurant. These kinds of damages are not part
        of the benefit of any alleged bargain between the parties.
                                                   –9–
Haase, 62 S.W.3d at 799–800 (footnote omitted).

       In these types of cases, the viability of the fraud claim depends on the nature of the

damages sought:

       Thus, if the measure of damages Sonnichsen seeks for fraud are the benefit-of-
       the-bargain damages he sought to recover for breach of contract, his fraud claim
       also fails. The viability of Sonnichsen’s fraud claim depends upon the nature of
       the damages he seeks to recover. This analysis is consistent with our holdings
       that focus the legal treatment of claims on the true nature of disputes rather than
       allow artful pleading to morph contract claims into fraud causes of action to gain
       favorable redress under the law.

Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007) (per curiam).

       Bagwell admits in his brief that his petition “does not specify the precise measure of

damages he seeks to recover.” We agree. The allegations are minimal and conclusory and

provide no factual detail explaining what out-of-pocket damages he suffered by relying on the

Extension and No-Assignment Representations. Nor does his affidavit provide any detail of

potential damages he may have incurred.        Bagwell alleged merely that he relied on the

representations by refraining from refinancing the Notes or obtaining additional capital to repay

them. He asserts on appeal that he suffered damages because the Notes and Guarantees were

assigned to RAV when Compass represented that it was not trying to sell the Notes. Bagwell

appears to argue he was injured when RAV foreclosed on the properties and sued to collect on

the Guarantees, but does not explain how that injury would be any different if, as he contends,

there was no agreement to extend the Notes and Compass foreclosed on the properties and

collected on the Guarantees.

       Compass, as the summary judgment movement on its statute of frauds affirmative

defense, had the burden of establishing that the only damages appellants sought and could

recover were benefit-of-the-bargain damages. Compass did not submit any summary judgment

evidence establishing that the damages sought were only benefit-of-the-bargain damages. See


                                              –10–
Lam, 335 S.W.3d at 791–92; Case Corp. v. Hi–Class Bus. Sys. of Am., Inc., 184 S.W.3d 760,

778–79 (Tex. App.—Dallas 2005, pet. denied). Compass did not file special exceptions to

appellants’ pleadings seeking more specificity in the damage allegations. See TEX. R. CIV. P. 47,

91. Nor did Compass file a no-evidence motion for summary judgment asserting there is no

evidence of out-of-pocket damages. See Sonnichsen, 221 S.W.3d at 634; Haase, 62 S.W.3d at

800; Transcon. Realty Inv’rs, Inc. v. John T. Lupton Trust, 286 S.W.3d 635, 646-47 (Tex.

App.—Dallas 2009, no pet.); Biko v. Siemens Corp., 246 S.W.3d 148, 162–63 (Tex. App.—

Dallas 2007, pet. denied); James L. Gang & Assoc., Inc. v. Abbott Labs., Inc., 198 S.W.3d 434,

442–43 (Tex. App.—Dallas 2006, no pet.).

       The same situation arose in the Haase decision:

       Haase did not move for summary judgment on the grounds that there was no
       evidence of damages aside from lost profits. Nor did he move for summary
       judgment on the grounds that there was no evidence of reasonable reliance.
       Consequently, under the circumstances presented here, Glazner’s fraud claim may
       survive Haase’s motion for summary judgment to the extent that he seeks to
       recover these kinds of out-of-pocket damages.

Haase, 62 S.W.3d at 800 (footnote omitted). As a result, the court rendered a take nothing

judgment on the fraud claim for benefit-of-the-bargain damages, but affirmed a remand of the

fraud claim for out-of-pocket damages. Id.

       Although there is no summary judgment evidence here of any actual expenditures, like

hiring a surveyor in Haase, made by appellants in reliance on the alleged misrepresentations,

Compass did not attempt to prove there were no such out-of-pocket damages. Because of the

lack of specificity in the live pleadings regarding the nature of the damages claimed and the

possibility that Bagwell and the Trustee may be able to allege out-of-pocket damages incurred in

reliance on the alleged misrepresentations, we cannot conclude Compass conclusively

established its statute of frauds affirmative defense as to those damages. However, to the extent

that appellants seek to recover the benefit of an unenforceable oral contract to extend the
                                              –11–
maturity of the Notes or to preclude assignment of the Notes and Guarantees, Compass met its

burden and the trial court correctly granted summary judgment.

       We overrule Bagwell’s third and the Trustee’s fourth issues to the extent they seek to

recover benefit-of-the-bargain damages. We sustain those issues to the extent appellants seek to

recover out-of-pocket damages for reliance on the alleged misrepresentations.

   B. Res Judicata and Collateral Estoppel

       Bagwell’s first and second issues and the Trustee’s first issue challenge the summary

judgment on the res judicata and collateral estoppel defenses. Compass asserted in its motion for

summary judgment that the final judgment in the RAV Litigation barred the claims in this suit.

In support, Compass submitted Bagwell’s counterclaim and third-party petition and the final

summary judgment in the RAV Litigation. The final judgment recites that the court previously

granted a partial summary judgment for RAV on Bagwell’s counterclaim. It is undisputed that

Compass and Meade were never served with citation and did not appear in the RAV Litigation,

although they were named in Bagwell’s counterclaim and third-party petition filed in that

lawsuit.

       Res judicata bars relitigation of claims that have been finally adjudicated in a prior action

between the parties and any other claims arising out of the same subject matter that could have

been litigated in the prior action. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449

(Tex. 2007); Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). A party relying

on the defense must prove: (1) a prior final judgment on the merits by a court of competent

jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on

the same claims as were raised or could have been raised in the first action. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652

(Tex. 1996). The doctrine seeks to bring an end to litigation, prevent vexatious litigation,


                                               –12–
maintain stability of court decisions, promote judicial economy, and prevent double recovery.

Barr, 837 S.W.2d at 629.

        The second requirement of res judicata, that the defendant was a party or in privity with a

party to the prior judgment, is dispositive of the defense in this case. Citing only Lehman v. Har-

Con Corp., 39 S.W.3d 191, 205 (Tex. 2001),4 Compass argues on appeal that Compass and

Meade were parties to the RAV Litigation because in order for Bagwell to appeal the judgment

in the RAV Litigation, “all claims and all parties to the RAV Lawsuit, including unserved parties

and claims against unserved parties, had to have been finally disposed of in the trial court.” We

disagree.    When summary judgment is granted without disposing of a person named in a

pleading, but that person was never served, did not appear in the case, and nothing indicates

service was not expected, “the case stands as if there had been a discontinuance as to [the

unserved party], and the judgment is to be regarded as final for the purposes of appeal.” M.O.

Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) (per curiam) (quoting Youngstown Sheet

& Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)) (emphasis added). Furthermore, “This

holding in Penn was not overruled, expressly or otherwise, by Lehmann.” Id.

        Thus, the judgment in the RAV Litigation—in the absence of service on or an appearance

by Compass and Meade—operated as a discontinuance as to them and was not a judgment on the

merits. See Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011) (“When a case is nonsuited

without prejudice, res judicata does not bar relitigation of the same claims.”); Christensen v.

Chase Bank USA, N.A., 304 S.W.3d 548, 553 (Tex. App.—Dallas 2009, pet. denied) (dismissal

without prejudice is not a judgment on the merits for purposes of res judicata).

        Therefore, Compass may assert res judicata based on the judgment in the RAV Litigation


        4
            In Lehman, the court clarified the longstanding general rule that “[a] judgment is final for purposes of
appeal if it disposes of all pending parties and claims in the record.” 39 S.W.3d at 195.


                                                       –13–
only if it was in privity with RAV. In general, a person is not bound by a judgment in a suit to

which he was not a party. See Amstadt, 919 S.W.2d at 652. “The doctrine of res judicata creates

an exception to this rule by forbidding a second suit arising out of the same subject matter of an

earlier suit by those in privity with the parties to the original suit.” Id. People can be in privity

in at least three ways: (1) they can control an action even if they are not parties to it; (2) their

interests can be represented by a party to the action; or (3) they can be successors in interest,

deriving their claims through a party to the prior action. Id. at 653. Privity connotes those who

are in law so connected with a party to the judgment as to have an identity of interest such that

the party to the judgment represented the same legal right as the person claiming privity. Brown

v. Zimmerman, 160 S.W.3d 695, 703 (Tex. App.—Dallas 2005, no pet.).

       Compass argues that, as a predecessor in interest to RAV, it was in privity with a party to

the RAV Litigation. But Compass transferred its legal rights in the Notes and Guarantees to

RAV; it does not derive any rights through RAV. In general, privity-by-succession does not

apply to predecessors in interest. See RESTATEMENT (SECOND) OF JUDGMENTS § 43 cmt. e (Am.

Law Inst. 1982) (“When the owner of property transfers it to another, in general he ceases to be

burdened with the legal responsibilities that attend its ownership.”).

       Compass relies on the decision in Samuel v. Federal Home Loan Mortgage Corp., 434

S.W.3d 230 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In that case, a borrower filed the

first suit against the assignee (CMI) of the mortgage to stop foreclosure proceedings, arguing the

assignee did not have authority to foreclose. Id. at 232. The assignee obtained summary

judgment in that suit by producing a written assignment of the mortgage from the assignor

(MERS), which was the beneficiary named in the deed of trust. Id. The borrower then filed a

second suit against the assignee, the assignor, and the purchaser at foreclosure, again challenging

the authority to foreclose and claiming the assignment was fraudulent. Id. The court of appeals

                                               –14–
affirmed the trial court’s summary for the defendants in the second suit based on res judicata

grounds. Id. at 235. The court concluded that the assignee was required to defend the assignor’s

right to assign the mortgage in defending the first lawsuit. Id. Thus, the assignee “represented

the legal rights of MERS [the assignor] and Freddie Mac [the purchaser at foreclosure] on the

issues alleged against them in this suit[.]” Id. Privity was shown by the “identity of interest held

by CMI and MERS, as assignor to CMI, in the chain of title to the disputed property.” Id.

        In this case, however, Bagwell did not challenge the assignment in the RAV Litigation

and admits in this appeal that Compass’s assignment of the Notes and Guarantees was not a

breach of any agreement. As far as this record shows, the chain of title was not in dispute in the

RAV Litigation.

        Nor is there any summary judgment evidence that RAV, in defending against Bagwell’s

counterclaim, held or asserted the same legal rights as Compass or represented Compass’s legal

rights on the issues alleged in this lawsuit. Compass did not allege and presented no evidence

that it retained any legal rights in the Notes and Guarantees after assigning them to RAV.

Bagwell’s counterclaim did not allege that RAV was a party to the misrepresentations alleged in

this case. The counterclaim did use the word conspiracy in one sentence in the background

section, but the pleading does not allege the elements of conspiracy or assert it in support of any

of the causes of action raised against RAV.5 Indeed, the common law fraud claim was not

asserted against RAV, and the statutory fraud claim states merely that “With [RAV], Compass

Bank and Meade committed fraud in a transaction involving real estate . . . .” Thus, Compass’s

argument that RAV represented its “legal rights” in the RAV Litigation is not supported by the
        5
           The causes of action alleged in the counterclaim and third-party petition were: (1) breach of contract
against Compass and Meade; (2) declaratory judgment encompassing the other claims raised in the pleading;
(3) common law fraud against Compass and Meade; (4) statutory fraud against Compass, Meade, and RAV; (5)
DTPA violations against Compass and Meade; (6) Misuse of private information against Compass, Meade, Toll
Brothers, and RAV; (7) tortious interference with contractual and future business relationships against Compass,
Meade, Toll Brothers, and RAV, and (8) an accounting of all credits on the debt.


                                                     –15–
record.

          On this record, we conclude Compass did not establish the elements of the defense of res

judicata. We next consider whether Compass met its summary judgment burden on the collateral

estoppel defense.

          Collateral estoppel prevents a party from relitigating an issue that it previously litigated

and lost. Quinney Elec., Inc. v. Kondos Entm’t, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per

curiam). In order to invoke the doctrine, a party must establish: “(1) the facts sought to be

litigated in the first action were fully and fairly litigated in the prior action; (2) those facts were

essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first

action.” Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (quoting

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984)).

          Compass had the burden to conclusively establish the collateral estoppel defense in its

motion for summary judgment. See Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 846

(Tex. App.—San Antonio 1997, pet. denied). Normally, this requires the party relying on the

defense to offer the pleadings and judgment from the prior suit into evidence. See Jones v. City

of Houston, 907 S.W.2d 871, 874 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Scurlock

Oil Co. v. Smithwick, 787 S.W.2d 560, 562 (Tex. App.—Corpus Christi 1990, no writ.). The

record must be sufficient to notify the trial court of the issues actually litigated and decided in the

prior case. See Tenet Health Sys. Hosps. Dallas, Inc. v. N. Tex. Hosp. Physicians Grp., P.A., 438

S.W.3d 190, 203 (Tex. App.—Dallas 2014, no pet.); Calabrian Corp. v. Alliance Specialty

Chems., Inc., 418 S.W.3d 154, 160 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

          Here, the only evidence submitted by Compass was Bagwell’s counterclaim and third-

party petition and the final summary judgment in the RAV Litigation. As indicated in our

discussion of the res judicata defense, the claims against RAV in the counterclaim were not

                                                 –16–
identical to claims asserted against Compass and Meade in that pleading. The final summary

judgment in the RAV Litigation merely recites that the court previously granted RAV’s motion

for summary judgment on Bagwell’s counterclaim. It does not indicate the basis for the trial

court’s ruling on that motion for summary judgment.

       Compass’s collateral estoppel defense is based upon the granting of RAV’s motion for

summary judgment on Bagwell’s counterclaim, but that motion is not in the record before us.

Without RAV’s motion for summary judgment and Bagwell’s response, if any, we have no way

of determining what issues were litigated in the prior case and how those issues relate to the

issues in this case. We conclude Compass failed to prove the elements of its collateral estoppel

defense as a matter of law.

       We sustain Bagwell’s first and second issues and the Trustee’s first issue to the extent

their fraud claim seeks out-of-pocket damages. We overrule the remainder of these issues.

   C. Estoppel

       Bagwell’s fourth and the Trustee’s second issues challenge the summary judgment on the

estoppel defense. Compass did not address the type of estoppel defense on which it relied in its

pleadings, its motion for summary judgment, or its appellate brief. Estoppel can take several

forms with varying elements and proof requirements. See 34 Tex. Jur. 3d Estoppel § 2. From

the nature of Compass’s arguments, it is relying on estoppel by contract, a form of quasi-

estoppel.

       Quasi-estoppel is a term applied to certain legal bars, such as ratification, election,

acquiescence, or acceptance of benefits. Steubner Realty 19, Ltd. v. Cravens Rd. 88, Ltd., 817

S.W.2d 160, 164 (Tex. App.—Houston [14th Dist.] 1991, no writ). It precludes a party from

asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Lopez

v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The doctrine applies when


                                              –17–
it would be unconscionable to allow a person to maintain a position inconsistent with one to

which he acquiesced, or from which he accepted a benefit. Id. Unlike equitable estoppel, quasi-

estoppel does not require a showing of a false representation or detrimental reliance. Forney 921

Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas

2011, pet. denied).

       Estoppel by contract is a form of quasi-estoppel based on the idea that a party to a

contract will not be permitted to take a position inconsistent with the contract, to the prejudice of

another. Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 721–22 (Tex. App.—Dallas

2004, no pet.). Thus, the rule is not actually one of estoppel, but another way of saying a party is

bound by the terms of his contract, and cannot take a position inconsistent with the contracts’

provisions. Coffey v. Singer Asset Fin. Co., 223 S.W.3d 559, 570 (Tex. App.–Dallas 2007, no

pet.); Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 387–88 (Tex. App.—Houston [14th

Dist.] 2015, no pet.).

       Compass’s relies on a contractual merger clause in the loan documents and written

modification agreements. This clause states: (1) the loan documents are the final and entire

agreement and supersede any prior agreements or representations relating to the subject matter;

(2) the documents may not be contradicted or varied by prior, contemporaneous, or subsequent

oral agreements or discussions; (3) there are no oral agreements between the parties; and (4) the

provisions of the loan documents may be amended or waived only by an instrument in writing

signed by the parties.6 The merger clause is substantially in the form required by business and


       6
           The merger clause is in bold and all-capitals and states in full:
       THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL,
       ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND THERETO AND
       SUPERSEDE   ANY   AND    ALL   PRIOR  COMMITMENTS,   AGREEMENTS,
       REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
       RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
       CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR

                                                          –18–
commerce code section 26.02(e). TEX. BUS. & COM. CODE ANN. § 26.02(e). The Extension and

No-Assignment Representations alleged here were made after the last document containing this

merger clause was executed.

       The thrust of Compass’s argument is that the Extension and No-Assignment

Representations are subsequent oral agreements or discussions barred by the terms of the merger

clause. However, as Bagwell repeatedly states on appeal, he is not seeking to contradict or vary

the terms of the written loan documents. He seeks to recover only out-of-pocket damages he

allegedly incurred by relying on the Extension and No-Assignment Representations. To that

extent, the language in the merger clause does not estop his claim.

       Compass has not shown as a matter of law that Bagwell’s limited fraud claim is

inconsistent with terms of his contracts. Therefore, Compass failed to prove the elements of its

affirmative defense as a matter of law on the claim at issue here.

       We sustain Bagwell’s fourth and the Trustee’s second issues to the extent their fraud

claim seeks out-of-pocket damages. We overrule the remainder of these issues.

   D. Economic Loss Rule

       Bagwell’s fifth and the Trustee’s third issues challenge the summary judgment on the

economic loss rule argument. The economic loss rule arose in negligence and products liability

cases to limit recovery of purely economic damages. See LAN/STV v. Martin K. Eby Const. Co.,

Inc., 435 S.W.3d 234, 238–45 (Tex. 2014) (discussing history and development of rule);

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 415-18 (Tex. 2011) (noting

there is no single economic loss rule applicable to all torts, but several limited rules governing


       SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO OR
       THERETO. THERE ARE NO ORAL AGREEMENTS OF THE PARTIES HERETO OR
       THERETO. THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN
       DOCUMENTS MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN
       WRITING SIGNED BY THE RESPECTIVE PARTIES TO SUCH DOCUMENTS.


                                               –19–
selected areas of law). In general, “the rule precludes recovery in tort for economic losses

resulting from a party’s failure to perform under a contract when the harm consists only of the

economic loss of a contractual expectancy.” Chapman Custom Homes v. Dallas Plumbing, 445

S.W.3d 716, 718–19 (Tex. 2014) (per curiam) (citing LAN/STV, 435 S.W.3d at 243). But the

rule has never applied to tort causes of action that by their nature involve only the economic loss

flowing from a contract. See Chapman, 445 S.W.3d at 718 (“But [the rule] does not bar all tort

claims arising out of a contractual setting.”); LAN/STV, 435 S.W.3d at 235–36 (“the rule is not

generally applicable in every situation”). Specifically, the rule does not bar fraud causes of

action. Sharyland, 354 S.W.3d at 418–19 (listing several tort claims for which courts allow

recovery of economic damages, including fraud).

       Bagwell has limited his fraud claim to the reliance damages, if any, he suffered in relying

on the alleged representations. He does not seek to recover the economic loss from the failure to

perform a contract. Therefore, we conclude the economic loss rule does not bar the fraud claim

for reliance damages.

       We sustain Bagwell’s fifth and the Trustee’s third issues to the extent their fraud claim

seeks out-of-pocket damages. We overrule the remainder of these issues.

   E. Promissory Estoppel

       The Trustee’s fifth issue argues her promissory estoppel claim is not barred by

Compass’s defenses.

       The Trustee alleged that Compass represented it would renew and extend the Notes, and

that DBC and Evermore substantially relied on the promise to their detriment by continuing to do

business with Compass and choosing “not to refinance or retire the Notes with another lender or

capital source.” The Trustee further alleged that as a result of the promissory estoppel, DBC and

Evermore “have suffered and sustained substantial injury” including actual and special monetary


                                               –20–
damages. There is no allegation that Compass ever agreed to sign an existing written document

satisfying the statute of frauds. The Trustee bases the promissory estoppel claim on the same

representations Bagwell now says were never promises by Compass. There is no evidence or

allegation of any independent promises made to DBC and Evermore.

       Compass moved for summary judgment on the promissory estoppel claim arguing there

was no promise to sign an existing document that would satisfy the statute of frauds and the

claim was inconsistent with the merger clause in the loan agreements. Referring to that clause,

Compass argued “reliance on an oral representation that directly contradicts such a disclaimer is

not justified as a matter of law.” Compass presented evidence that no written document was

prepared to extend the maturity of the Notes beyond December 1, 2009 and Compass never

promised to sign such a document. The Trustee presented no evidence of a promise to sign an

existing document satisfying the statute of frauds in response to the motion for summary

judgment.

       Promissory estoppel is normally a counter-defensive pleading, but may be asserted to

recover damages incurred in reliance on a promise when the contract fails because of the

application of the statute of frauds or some other reason. See Trevino & Assocs., 400 S.W.3d at

146. If the alleged oral agreement is within the statute of frauds, it is unenforceable, even by

means of promissory estoppel, unless there is also a promise to sign an existing writing

incorporating all the terms of the agreement and which would satisfy the statute of frauds. See

“Moore” Burger, 492 S.W.2d at 940. Thus, “promissory estoppel will only avoid the statute of

frauds if the promise made was to execute a document in existence that itself complied with the

statute. The party asserting promissory estoppel must show that the writing that is the subject of

the promise demonstrates the parties have come to a final agreement as to all material terms.”

Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 504 (Tex. App.—Dallas 1997, pet. denied)

                                              –21–
(footnotes omitted); see also Nagle, 633 S.W.2d at 800; Gaubert, 286 S.W.3d at 553–54.7 A

promise to prepare a written document incorporating terms orally agreed upon is insufficient to

support application of promissory estoppel to defeat the statute of frauds. CRSS Inc. v. Runion,

992 S.W.2d 1, 7 (Tex. App.—Houston [1st Dist.] 1995, pet. denied).

         The oral promises alleged here were to extend the maturity of the Notes and Guarantees

and to refrain from assigning them to another. In light of the broad language of section 26.02,

which includes promises or agreements to delay repayment of money or make financial

accommodations within the definition of loan agreements, we conclude the oral promises

asserted by the Trustee are within the statute of frauds for loan agreements and are unenforceable

unless they are in writing and signed by the parties. See TEX. BUS. & COM. CODE ANN. §

26.02(a)(2), (b). Promissory estoppel will allow enforcement of those promises to the extent of

reliance damages only if there was also a promise to sign an existing document that itself would

satisfy the statute of frauds. Gaubert, 286 S.W.3d at 553; Birenbarm, 971 S.W.2d at 504.

Compass presented evidence there was no such writing nor a promise to sign it and Bagwell

presented no evidence to the contrary.

         Because there was no promise to sign an existing written document that would satisfy the

statute of frauds applicable here, summary judgment was proper on the promissory estoppel

claim.

         We overrule the Trustee’s fifth issue.

                                                   CONCLUSION

         We conclude that the statute of frauds bars the fraud claim to the extent appellants seek to


         7
            We assume without deciding that promissory estoppel as an equitable exception applies to the statute of
frauds for loan agreements. See Gaubert, 286 S.W.3d at 555 (noting differences between language of traditional
statute of frauds and statute of frauds for loan agreements, but assuming that if equitable exceptions apply to statute
regarding loan agreements, the exceptions were not shown).


                                                        –22–
recover benefit-of-the-bargain damages, but not to the extent appellants seek to recover out-of-

pocket damages. We also conclude the appellees’ remaining affirmative defenses do not support

the summary judgment as to the fraud claim for out-of-pocket damages.          We reverse the

summary judgment to the extent appellants seek to recover out-of-pocket damages for fraud and

affirm the summary judgment in all other respects. We remand this cause to the trial court for

further proceedings consistent with this opinion.




                                                    /Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE

141579F.P05




                                              –23–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

DAVID BAGWELL, INDIVIDUALLY                           On Appeal from the 101st Judicial District
AND AS TRUSTEE OF THE DAVID S.                        Court, Dallas County, Texas
BAGWELL TRUST, AND MARILYN D.                         Trial Court Cause No. DC-14-00991.
GARNER, CHAPTER 7 TRUSTEE OF                          Opinion delivered by Justice Stoddart.
THE ESTATE OF THE DAVID                               Justices Bridges and Fillmore participating.
BAGWELL COMPANY AND TRUSTEE
OF THE ESTATE OF EVERMORE
COMMUNITIES, LTD., Appellants

No. 05-14-01579-CV          V.

BBVA COMPASS AND SAM MEADE,
Appellees

        In accordance with this Court’s opinion of this date, the trial court’s September 19, 2014
orders granting Compass Bank and Sam Meade’s first amended motions for summary judgment
against plaintiff and against intervening plaintiff Trustee Marilyn D. Garner are AFFIRMED in
part and REVERSED in part. We REVERSE that portion of the trial court’s orders granting
summary judgment on the fraud claim seeking out-of-pocket damages. In all other respects, the
orders are AFFIRMED. We REMAND this cause to the trial court for further proceedings
consistent with our opinion.

       It is ORDERED that appellants David Bagwell, Individually and as Trustee of the David
S. Bagwell Trust, and Marilyn D. Garner, Chapter 7 Trustee of the Estate of the David Bagwell
Company and Trustee of the Estate Of Evermore Communities, LTD. recover their costs of this
appeal from appellees BBVA Compass and Sam Meade.


Judgment entered this 7th day of July, 2016.




                                               –24–
