                                 NO. 07-01-0296-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 MAY 10, 2002
                        ______________________________

                                   DAVID ANSLEY,

                                                     Appellant

                                           v.

                        TANKCO SERVICES OF TEXAS, INC.
                            and BARRY SEABRANCH,

                                               Appellees
                       _________________________________

             FROM THE 165TH DISTRICT COURT OF HARRIS COUNTY;

               NO. 2000-39,495; HON. ELIZABETH RAY, PRESIDING
                      _______________________________

                              Memorandum Opinion
                        _______________________________

Before BOYD, C.J., QUINN and JOHNSON, J.J.

      David Ansley (Ansley) appeals from a final summary judgment entered in favor of

Tankco Services of Texas, Inc. (Tankco) and Barry Seabranch (Seabranch). The latter

two parties had moved for summary judgment. Via four issues, Ansley contends that the

trial court erred in granting same. We reverse.
                                       Background

       For purposes of this appeal, we note that the dispute between the parties involves

the enforcement of an oral agreement.         The latter was made between Ansley and

Seabranch and concerned the purchase by Seabranch of Ansley’s interest in Tankco.

According to the representations contained in Ansley’s summary judgment affidavit,

Seabranch agreed to purchase the interest for $243,000 payable in 72 semi-monthly

installments of $2750 and a final “balloon payment” of $45,000. In exchange, Ansley

would transfer his interest in the business to Seabranch, resign from the company’s

employ, and cease his involvement in its operation and management.

       Upon entering the agreement, according to the attestations of Ansley, he and

Seabranch “told other employees of the business . . . that [Ansley] . . . sold [his] ownership

interest to [Seabranch] and that [Seabranch] now owned 100% of the business entity.”

Furthermore, Ansley “terminated [his] employment with Tankco” at “sometime between

March 1, 1999 and March 15, 1999" and became “involved in, and employed by, a

company in a different industry.” Thereafter, on or about March 29, 1999, Seabranch

delivered to Ansley a check for $2750 with the notation “Pmt # 1" written in the lower left-

hand corner of the instrument. Though the check was purported to be written on the

account of Tankco, it was signed by Seabranch in his individual capacity. Moreover,

Seabranch and Tankco stated in their original petition that Tankco “paid Ansley $2750




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toward the acquisition of his interest” in the company, though the parties had allegedly not

agreed upon “the ultimate purchase price.”1

        Though Tankco was a corporation, Ansley had no stock to physically transfer to

Seabranch. This is so because he had never been issued any after acquiring his interest.

Additionally, neither Tankco nor Seabranch disputed this. Nor did they dispute, for

purposes of this appeal, that Seabranch entered the agreement as described by Ansley.

Rather, Tankco and Seabranch simply contended, via their motion for summary judgment

and on appeal, that the agreement was unenforceable due to the Statute of Frauds and

that no exception to the statute applied. Ansley responded by asserting that the doctrines

of complete performance, partial performance, and equitable estoppel prevented

application of the Statute of Frauds. The trial court subsequently granted the motion for

summary judgment stating therein that “the agreement as alleged by [Ansley] is barred by

the Statute of Frauds, TEX . BUS . & COMM. CODE , §26.01, [sic] (a)(1) and (2) and (b)(6).”

        Standard of Review

        The standards of review applicable to traditional and no-evidence motions for

summary judgment are well-settled. Rather, than discuss them, we simply cite the parties

to Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) and Kimber

v. Sideris, 8 S. W.3d 672, 675 (Tex. App.--Amarillo 1999, no pet.).




        1
         Pleadings usually are not competent summary judgment evidence; yet, admissions of fact contained
therein are. Elliott v. Methodist Hosp., 54 S.W.3d 789, 797 (Tex. App.–Houston [1st Dist.] 2001, no pet.). To
the extent that Seabranch and Tankco averred in their live pleading that the $2750 check was paid to Ansley
“toward the acquisition of his interest” in the company, that can be considered an admission by the court in
determining whether summary judgment was proper.

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       Application of Standard

       It is clear that the Statute of Frauds does not apply where one party completely

performs his obligations under an oral agreement and the other knowingly accepts the

benefits of that performance and then partly performs his obligations. Avila v. Gonzalez,

974 S.W.2d 237, 246 (Tex. App.--San Antonio 1998, pet. denied); Carmack v. Beltway

Dev. Co., 701 S.W.2d 37, 40 (Tex. App.--Dallas 1985, no pet.). Construing the summary

judgment evidence in a light most favorable to Ansley (as we must), we find evidence of

1) an agreement to sell, 2) verbal transfer of the intangible property right or chose-in-

action, 3) disclosure to others that Seabranch now owned 100% of the business, 4) a

directive by attorneys for Seabranch instructing Ansley to forego contact with Tankco

employees, 5) the absence of any involvement in the operation or management of Tankco

by Ansley since the agreement was executed, 6) Ansley’s departure from the business and

employment by another company, 7) a check for $2750 given to Ansley as the first

payment for his interest in the company, and 8) a similarity between the amount of each

monthly installment required under the purported agreement and the amount of the first

check given in payment by Seabranch and Tankco. This is sufficient evidence to create

a material issue of fact regarding whether Ansley fully performed his promises (i.e

transferred his interest in the business), whether Seabranch reaped benefit from that

performance (i.e. the complete ownership and control of Tankco), and whether Seabranch

partially performed its promises under the agreement (i.e. made part payment for the

transfer). In other words, there is some evidence of record upon which a rational jury could




                                             4
reasonably infer the existence of complete performance, as that doctrine is explained in

Avila and Carmack.

      That Seabranch may cite to contradictory evidence matters not. Again, we must

view the evidence in the light most favorable to the non-movant, i.e. Ansley. Nor does the

evidence that the $2750 check may have been written on the account of Tankco cause us

to alter our conclusion. Again, both Tankco and Seabranch admitted in their original

petition that it was given in part payment for Ansley’s interest. And, more importantly, it

was signed by Seabranch in his individual capacity (i.e. without designation that it was

signed on behalf of or as representative for another); thus, payment of the instrument

could be Seabranch’s individual responsibility as well as that of Tankco. See TEX . BUS .

& COMM. CODE ANN . §3.402(b)(1) (Vernon Supp. 2002) (stating when a representative of

another may be personally liable for the payment of an instrument). So, it cannot be said

with any certainty that Seabranch did not partially perform.

       Having found evidence sufficient to create a material issue of fact regarding

complete performance, we conclude that neither Tankco nor Seabranch were entitled to

summary judgment as a matter of law. Accordingly, the summary judgment is reversed and

the cause remanded for further proceedings.



                                                               Brian Quinn
                                                                  Justice


Do not publish.




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