                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 11-0541
                                         444444444444


                                 DYNEGY, INC., PETITIONER,

                                                 v.

  TERRY W. YATES, INDIVIDUALLY, AND TERRY W. YATES, P.C., RESPONDENTS

           4444444444444444444444444444444444444444444444444444
                               ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444




        JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON ,
JUSTICE HECHT , JUSTICE JOHNSON , JUSTICE WILLETT , JUSTICE LEHRMANN , and JUSTICE BOYD
joined.

       JUSTICE DEVINE filed a dissenting opinion.

       JUSTICE GUZMAN did not participate in the decision.

       The statute of frauds’ suretyship provision provides that an oral promise “by one person to

answer for the debt, default, or miscarriage of another person” is generally unenforceable. See TEX .

BUS. & COM . CODE § 26.01(a), (b)(2). Dynegy, Inc. contends that this provision bars the current suit

because both the fraudulent inducement and breach of contract claims against it are based on an oral

promise to an attorney to pay the attorney’s fees incurred by one of Dynegy’s former officers. We

agree. Accordingly, we reverse the court of appeals’ judgment and render a take-nothing judgment

in favor of Dynegy.
                                           I. Background

       A grand jury indicted James Olis, a former officer of Dynegy, on multiple counts of securities

fraud, mail and wire fraud, and conspiracy arising out of work he performed while at Dynegy.

Dynegy’s board of directors passed a resolution authorizing the advancement of attorney’s fees for

Olis’s defense provided that Olis acted in good faith, in Dynegy’s best interests, and in compliance

with applicable law. The resolution provided that it “may be modified or revoked by this Board at

any time as a result of changes in circumstances or further analysis.”

       Olis hired Terry Yates, a criminal defense attorney, to defend him in the federal criminal

investigation and an ongoing civil investigation conducted by the Securities and Exchange

Commission. Olis told Yates and Mark Clark, Yates’s associate, that Dynegy would be paying his

legal fees. Clark called Cristin Cracraft, an attorney in Dynegy’s legal department, who orally

confirmed that Dynegy would pay Olis’s legal fees. Clark testified that Cracraft stated, “The Board

has passed a resolution, so, yes, we are paying Jamie Olis’s fees,” and instructed Clark that the bills

should be submitted to her. Cracraft’s trial testimony was similar to Clark’s version of the

conversation. Olis signed a written fee agreement with Yates under which Olis agreed that he was

responsible for payment of his legal fees. The contract stated that “all fees are due when billed

unless other specific arrangements have been made.” Yates testified that, despite the written fee

agreement, he had an oral agreement with Olis under which Yates would never look to Olis for

payment of fees, but instead would look to Dynegy for payment. Yates testified that he spoke to

Cracraft after faxing his fee agreement and hourly rate to Dynegy and that Cracraft told him Dynegy



                                                  2
would pay Olis’s legal fees through trial. Cracraft contradicted Yates’s testimony about the phone

call, however, stating that she had spoken only to Clark and never to Yates as of the date of the trial.

        Dynegy then hand-delivered a letter notifying Yates that it would pay him directly for Olis’s

legal fees through August 17, 2003, but the remaining fees incurred were to be paid into escrow

pursuant to a board resolution. Dynegy paid Yates’s initial invoice for $15,000. Yates submitted

his $105,176 July bill in August, but Dynegy did not pay it until after trial in November. Olis was

ultimately convicted of securities fraud, mail and wire fraud, and conspiracy. United States v. Olis,

429 F.3d 540, 549 (5th Cir. 2005) (affirming the conviction but remanding to the trial court to

reconsider the proper sentencing guidelines). Yates submitted a third and final invoice for $448,556,

representing all work performed from August 2003 through April 2004, including the November

2003 trial. Dynegy initially escrowed that amount pursuant to the board resolution, but later refused

to release the escrowed funds after concluding that Olis did not meet the “good faith” standard for

indemnification as required by the board’s resolution.

        Yates filed suit against Dynegy to recover the unpaid attorney’s fees, alleging that Dynegy

orally promised that it would pay Yates’s fees through Olis’s trial. Yates asserted claims for breach

of contract and fraudulent inducement and sought benefit-of-the-bargain damages for both claims.

After a three-week trial, the jury found for Yates on both claims. Yates ultimately elected to recover

under his fraudulent inducement claim, and the trial court rendered judgment on that claim in favor

of Yates. Dynegy filed a motion for judgment notwithstanding the verdict on its affirmative defense

of statute of frauds, which the trial court denied. Dynegy appealed.



                                                   3
        The court of appeals initially reversed and rendered judgment for Dynegy based on its

affirmative defense of statute of frauds. No. 04-10-00041-CV, 2010 Tex. App. LEXIS 3556, at *1

(Tex. App.—San Antonio May 12, 2010). Thereafter, the court of appeals denied Yates’s motion

for rehearing while also issuing a revised opinion. No. 04-10-00041-CV, 2010 Tex. App. LEXIS

6915, at *1 (Tex. App.—San Antonio Aug. 25, 2010). Then the same panel, on its own motion,

reconsidered and granted Yates’s motion for rehearing. 345 S.W.3d 516, 519 (Tex. App.—San

Antonio 2011). In its third opinion, the court of appeals reversed itself based on the main purpose

doctrine, holding that Dynegy intended to bind itself to a primary obligation rather than a promise

to pay the debt of another, and the statute of frauds was therefore inapplicable. Id. at 520, 523–25.

The court of appeals also reversed the trial court’s judgment based on the jury’s fraud finding,

holding that the evidence was legally insufficient. Id. at 534. The court of appeals then rendered

judgment for Yates on his breach of contract claim. Id. at 536. Dynegy petitions this Court for

review, arguing that the court of appeals erred by considering an element of the main purpose

doctrine, which is an exception to the statute of frauds, as a part of Dynegy’s initial burden on its

statute of frauds affirmative defense. We agree.

                                            II. Analysis

       The statute of frauds generally renders a contract that falls within its purview unenforceable.

TEX . BUS. & COM . CODE § 26.01(a). The party pleading the statute of frauds bears the initial burden

of establishing its applicability. TEX . R. CIV . P. 94; cf. Woods v. William M. Mercer, Inc., 769

S.W.2d 515, 517 (Tex. 1988) (holding that the party pleading statute of limitations has the initial

burden of proof). Once that party meets its initial burden, the burden shifts to the opposing party to

                                                   4
establish an exception that would take the verbal contract out of the statute of frauds. See Cobb v.

Johnson, 108 S.W. 811, 812 (Tex. 1908). One recognized exception to the statute of frauds’

suretyship provision is the main purpose doctrine. See Cruz v. Andrews Restoration, Inc., 364

S.W.3d 817, 827–28 (Tex. 2012). The party seeking to avoid the statute of frauds must plead, prove,

and secure findings as to an exception or risk waiver under Rule 279 of the Texas Rules of Civil

Procedure. See, e.g., Crown Ranch Dev., Ltd. v. Cromwell, No. 09-10-00458-CV, 2012 Tex. App.

LEXIS 1345, at *14–15 (Tex. App.—Beaumont Feb. 23, 2012, pet. denied) (mem. op.) (“A party

who contends that an agreement falls within an exception to the statute of frauds must request and

obtain a jury finding on the exception.”); W.H. McCrory & Co. v. Contractors Equip. & Supply Co.,

691 S.W.2d 717, 720–21 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (placing the burden on the

plaintiff to plead and prove an exception to the statute of frauds); cf. Woods, 769 S.W.2d at 517–18

(holding that the discovery rule, as a defense to the statute of limitations, is a plea in confession and

avoidance that is waived if not pled).

    A. Dynegy Met its Initial Burden to Establish Applicability of the Statute of Frauds

        Here, Dynegy pled the statute of frauds as an affirmative defense and thus had the initial

burden to establish that the alleged promise fell within the statute of frauds. See TEX . BUS. & COM .

CODE § 26.01(a), (b)(2); TEX . R. CIV . P. 94. Whether a contract comes within the statute of frauds

is a question of law, which we review de novo. See Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex.

1961). The statute of frauds’ suretyship provision applies to “a promise by one person to answer for

the debt, default, or miscarriage of another person.” TEX . BUS. & COM . CODE § 26.01(b)(2). Yates

argues that the suretyship provision does not apply to the oral agreement in this case because there

                                                   5
is not a preexisting debt. On the contrary, the suretyship provision applies regardless of “whether

[the debt was] already incurred or to be incurred in the future.” See RESTATEMENT (SECOND ) OF

CONTRACTS § 112 cmt. b (1981).

        The record indicates that Olis hired Yates to represent him in the criminal proceedings. Olis

signed a fee agreement with Yates, in which Dynegy was not mentioned. Yates agreed to defend

Olis, and Olis agreed in exchange that fees were due when billed unless other arrangements were

made. Both Clark and Yates testified that Cracraft orally promised that Dynegy would be paying

Olis’s fees through trial, and it is undisputed that this agreement was never reduced to writing.

These facts establish one conclusion: Dynegy orally promised to pay attorney’s fees associated with

Olis’s defense that, under the fee agreement, were Olis’s obligation (i.e., Olis’s debt). The dissent,

like the court of appeals, believes that Dynegy’s promise to pay Olis’s legal fees was a primary

obligation and not a promise to pay another’s debts, and therefore the statute of frauds does not bar

Yates’s recovery on his breach of contract claim. But, as we have explained, a plaintiff relying on

a primary obligor theory under the main purpose doctrine must plead and establish facts to take a

verbal contract out of the statute of frauds. See Cruz, 364 S.W.3d at 828; Gulf Liquid Fertilizer Co.

v. Titus, 354 S.W.2d 378, 382–83 (Tex. 1962); Cobb, 108 S.W. at 812. We hold that Dynegy

established as a matter of law that the statute of frauds’ suretyship provision initially applied to bar

the claims against it. See TEX . BUS. & COM . CODE § 26.01(b)(2) (providing that “a promise by one

person to answer for the debt . . . of another person” falls within the statute of frauds). The court of

appeals erred when it held otherwise.



                                                   6
                                       B. The Burden Shifted to Yates

         At this point, the burden shifted to Yates to establish an exception that would take the verbal

contract out of the statute of frauds—namely, the main purpose doctrine. See Cobb, 108 S.W. at

812. The main purpose doctrine required Yates to prove: (1) Dynegy intended to create primary

responsibility in itself to pay the debt; (2) there was consideration for the promise; and (3) the

consideration given for the promise was primarily for Dynegy’s own use and benefit—that is, the

benefit it received was Dynegy’s main purpose for making the promise. See Cruz, 364 S.W.3d at

828. We have noted that the question of intent to be primarily responsible for the debt is a question

for the finder of fact, taking into account all the facts and circumstances of the case. See Haas

Drilling Co. v. First Nat’l Bank, 456 S.W.2d 886, 889 (Tex. 1970) (citing Gulf Liquid Fertilizer Co.,

354 S.W.2d at 384). Thus, the burden was on Yates to secure favorable findings on the main

purpose doctrine.1 Yates’s failure to do so constituted a waiver of the issue under Rule 279 of the

Texas Rules of Civil Procedure. See TEX . R. CIV . P. 279; W.H. McCrory & Co., 691 S.W.2d at

720–21; cf. Woods, 769 S.W.2d at 518 (holding the discovery rule waived when a party neither pled

nor obtained findings on the issue in response to the opposing party’s limitations defense).

Therefore, the court of appeals erred by considering the intent element of the main purpose doctrine




         1
           Dynegy even pointed out to the trial court and Yates the omission of any jury questions related to an exception
to the statute of frauds in its written charge objections.

                                                            7
in conjunction with determining whether Dynegy met its initial burden to show applicability of the

statute of frauds.2

                                                III. Conclusion

         Based on the preceding analysis, we hold that the statute of frauds renders the oral agreement

between Dynegy and Yates unenforceable. Consequently, Yates cannot recover under his breach of

contract claim. In addition, Yates’s claim for benefit-of-the-bargain damages pursuant to his

alternative fraudulent inducement action is barred. See Haase v. Glazner, 62 S.W.3d 795, 799 (Tex.

2001) (“[T]he 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.”). Accordingly, we grant Dynegy’s petition for review and, without hearing

oral argument, TEX . R. APP . P. 59.1, we reverse the court of appeals’ judgment and render judgment

that Yates take nothing on his claims.



                                                      ___________________________________
                                                      Paul W. Green
                                                      Justice

OPINION DELIVERED: August 30, 2013




        2
           The dissent also argues that the main purpose doctrine takes Dynegy’s promise out of the statute of frauds
based on Dynegy’s self-serving reasons for promising to pay Olis’s legal fees. But, as with the intent element, Yates
failed to plead and prove the consideration elements of the main purpose exception.

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