                                          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


                                               OPINION


           John J. Lotito, Jr. sued Knife River Corporation-South and Knife River

Corporation1 after his employment with Knife River Corporation-South was

terminated. Lotito alleged, as an independent cause of action, promissory estoppel: that

Knife River promised to employ him in Texas for four years and then relocate him to

California to employ him for four more years. He also alleged breach of an alleged

contract to pay to him a bonus and for unused vacation days that had accrued.


1   Collectively referred to as Knife River.
          Knife River presented a no-evidence motion for summary judgment and a

traditional motion for summary judgment on both causes of action. Not specifying the

reason, the trial court granted both motions on the promissory estoppel cause of action

and denied both motions as to the breach of contract cause of action. Lotito then non-

suited all claims other than his promissory estoppel claim, and the trial court signed a

final judgment that Lotito take nothing against Knife River. Lotito appeals, and we

affirm.

          Under the traditional summary judgment standard, the movant has the burden

to show that no genuine issues of material fact exist and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d

546, 548 (Tex. 1985). If the order granting the summary judgment does not specify the

grounds upon which judgment was rendered, we must affirm the summary judgment if

any of the grounds in the summary judgment motion is meritorious. FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

          In its traditional motion, Knife River argued that promissory estoppel is not an

independent cause of action in Texas in an employment context. We agree. Promissory

estoppel is an equitable exception used to avoid a statute of frauds defense. "Moore"

Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1973). It is a defensive

plea that does not create a contract where none existed before, but rather prevents a

party from insisting upon its strict legal rights under the statute of frauds when


Lotito v. Knife River Corporation-South                                               Page 2
enforcing a non-compliant agreement would be necessary to avoid an injustice. See

Hruska v. First State Bank, 747 S.W.2d 783, 785 (Tex. 1988); Id.

        Lotito sought to use the doctrine of promissory estoppel as an affirmative basis

for relief and cites cases which permit this.               Although this Court has held that

promissory estoppel is a viable cause of action in bid construction cases, see Frost

Crushed Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 44 (Tex. App.—Waco 2002, no

pet.), we have not held that it is an independent cause of action in employment cases.

In fact, in the employment arena, we have stated that promissory estoppel is a shield,

not a sword. Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 125 (Tex. App.—Waco 2001, no

pet.). Consequently, in the employment context, we agree with the Beaumont and

Amarillo courts of appeals and hold that promissory estoppel is defensive only, and

cannot constitute a basis for affirmative relief. See Stanley v. Citifinancial Mortg. Co., 121

S.W.3d 811, 820 (Tex. App.—Beaumont 2003, pet. denied); Robbins v. Payne, 55 S.W.3d

740, 746-747 (Tex. App.—Amarillo 2001, pet denied). Accordingly, the trial court did

not err in granting Knife River’s traditional motion for summary judgment on this

ground.2



2 Lotito’s first issue attacks the judgment based on Knife River’s traditional motion for summary
judgment. Lotito’s second issue attacks the judgment based on Knife River’s no-evidence motion for
summary judgment. The no-evidence motion for summary judgment is based on the premise that
promissory estoppel is a cause of action in the employment context and attacks specific elements of such
a claim. The traditional motion for summary judgment addresses, in addition to other issues, the legal
question of whether promissory estoppel is a proper legal claim in the employment context. Because the
no-evidence motion for summary judgment is premised on a determination that the traditional motion
sought to defeat as a matter of law, we believe that it is proper to address the merits of the traditional

Lotito v. Knife River Corporation-South                                                            Page 3
        The trial court’s judgment is affirmed.




                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurring)
Affirmed
Opinion delivered and filed November 8, 2012
[CV06]




motion for summary judgment first. We recognize that if a no-evidence motion for summary judgment
and a traditional motion for summary judgment are filed which respectively asserts the plaintiff has no
evidence of an element of its claim and alternatively asserts that the movant has conclusively negated that
same element of the claim, that we address the no-evidence motion for summary judgment first. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We have concluded, however, that if the traditional
motion is based on the legal question of whether the plaintiff is asserting a recognized legal claim, we
must first address that issue before proceeding to review a judgment based on a no-evidence motion for
summary judgment which purports to attack elements of the alleged claim. Further, because we have
concluded that Lotito does not have a promissory estoppel claim in the employment context, we need not
address Lotito’s second issue in which he contends there was support for what would be elements of that
claim in opposition to Knife River’s no-evidence motion for summary judgment.

Lotito v. Knife River Corporation-South                                                             Page 4
