                            NUMBER 13-07-00708-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MANUEL CHAVEZ AND WIFE, ELODIA CHAVEZ,                                     Appellants,

                                           v.

VIRGINIA Q. BRAVO AND MARTIN CANTU,                                         Appellees.


                  On appeal from the 93rd District Court of
                          Hidalgo County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez

      Appellants, Manuel Chavez and wife, Elodia Chavez, sought a declaratory judgment

that they had an enforceable contract with appellees, Virginia Bravo and Martin Cantu, for

the sale of a house and that Bravo and Cantu breached the contract. Bravo and Cantu

filed a traditional motion for summary judgment asserting, among other defenses, the

statute of frauds and that no issues of material fact existed. Without specifying the

grounds for its decision, the trial court granted Bravo and Cantu’s motion for summary
judgment. In three issues, the Chavezes challenge the summary judgment. We affirm.

                                               I. BACKGROUND

A.      The Dispute

        The Chavezes allege that on or about May 25, 1998, they entered into a verbal

agreement with Bravo’s late husband, Erasmo Bravo, to purchase a home located in

Alamo, Texas. According to the Chavezes, they agreed to a purchase price of $65,000,

comprised of a $2,000 “down payment” and monthly installments of $500. It is undisputed

that the Chavezes moved into the home and made monthly payments to Bravo from June

1998 to December 20, 2005.

        After Erasmo’s death, Virginia Bravo sold the Alamo home to Cantu via a warranty

deed executed on November 7, 2005. Cantu asserts that, after obtaining ownership of the

home, he provided the Chavezes with verbal and written notice to vacate the premises.

Both Cantu and Bravo claim that the monthly payments from the Chavezes represent

rental payments and that no contract for sale between Erasmo and the Chavezes was ever

consummated.

        On January 26, 2006, Cantu filed a verified original petition for forcible entry and

detainer against Manuel Chavez with the Justice Court, Precinct 2, Place 1 of Hidalgo

County. The Chavezes were subsequently ordered to vacate the Alamo home.

        On July 3, 2006, the Chavezes filed suit in the 93rd District Court of Hidalgo County

seeking a determination that they had an enforceable contract with Bravo that had been

breached by Bravo and Cantu’s refusal to receive payments for the house after December

20, 2005, and in evicting them from the property.1 Bravo and Cantu answered with a

        1
          A forcible detainer action is not exclusive, and a party is entitled to bring a separate suit in district
court to determ ine the issue of title. See Lopez v. Sulak, 76 S.W .3d 597, 605 (Tex. App.–Corpus Christi 2002,
no pet.).
                                                        2
general denial and asserted the statute of frauds, among others, as an affirmative defense.

On September 14, 2007, Bravo and Cantu filed a traditional motion for summary judgment

asserting that: (1) the action was barred by res judicata and collateral estoppel; (2) the

action was barred by the statute of frauds; and (3) there were no genuine issues of

material fact that prevented granting a summary judgment. The Chavezes responded that

the doctrine of partial performance applied to avoid the statute of frauds. The trial court

granted Bravo and Cantu’s motion for summary judgment on unspecified grounds. This

appeal ensued.

                                       II. ANALYSIS

A.     Standard of Review

       Summary judgment is proper when there are no disputed issues of material fact and

the movant is entitled to judgment as a matter of law. TEX . R. CIV. P. 166a(c). A defendant

is entitled to summary judgment if it conclusively negates at least one of the essential

elements of a plaintiff’s cause of action or conclusively establishes all necessary elements

of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Only when

the defendant establishes its right to summary judgment, does the burden shift to the

plaintiff to come forward with competent controverting evidence raising a genuine issue of

material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

       We review the trial court’s summary judgment de novo and consider whether

reasonable and fair-minded jurors could differ in their conclusions in light of all of the

evidence presented. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005). We consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any doubts

against the movant. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756
                                             3
(Tex. 2007) (per curiam) (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per

curiam); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam)).

The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary-judgment evidence. See id. at 755.

Where, as here, a trial court does not specify the grounds upon which it relied in granting

a summary judgment, we will affirm if any ground is meritorious. See Harwell v. State Farm

Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).

B.     Applicable Law

       A contract for the sale of land must comply with the statute of frauds. TEX . BUS. &

COM . CODE ANN . § 26.01(b)(4) (Vernon 2009); Cohen v. McCutchin, 565 S.W.2d 230, 232

(Tex. 1978); Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759, 763 (Tex. App.–Corpus Christi

2004, no pet.). Section 26.01 of the business and commerce code requires that the

contract be in writing and signed by the party against whom enforcement is sought. TEX .

BUS . & COM . CODE ANN . § 26.01(a); Garrod Invs., Inc., 139 S.W.3d at 763. Further, the

statute of frauds is an affirmative defense. Garrod Invs., Inc., 139 S.W.3d at 763.

Whether a contract meets the requirements of the statute of frauds is a question of law.

Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex. 1961); Lathem v. Kruse, 290 S.W.3d 922,

926 (Tex. App.–Dallas 2009, no pet.).

       Because it is undisputed that the contract for the sale of the Alamo property, if any,

was oral, Bravo and Cantu have established their right to summary judgment on this claim

as a matter of law. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999);

LaCour v. Lankford Co., Inc., 287 S.W.3d 105, 110 (Tex. App.–Corpus Christi 2009, pet.

denied) (“[T]he defendant-movant must present summary judgment evidence that


                                             4
establishes each element of the affirmative defense as a matter of law.”). Once the

defendant-movant has presented sufficient summary judgment evidence, the non-movant

must produce summary judgment proof raising a fact issue in avoidance of the affirmative

defense. LaCour, 287 S.W.3d at 109-10.

       The Chavezes admit that the contract was not in writing; however, they assert that

their partial performance of the contract takes it out of the statute of frauds. Under the

partial performance exception to the statute of frauds, an oral contract for the purchase of

real property is enforceable if the purchaser: (1) “pays the consideration”; (2) “takes

possession of the property”; and (3) “makes permanent and valuable improvements on the

property with the consent of the seller, or without such improvements, other facts are

shown that would make the transaction a fraud on the purchaser if the oral contract was

not enforced.”    Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (citing Hooks v.

Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)); Pickett v. Keene, 47 S.W.3d 67,

76 (Tex. App.–Corpus Christi 2001, pet. dism’d). “These steps are seen as sufficient

evidence of the agreement because they provide affirmative corroboration of the

agreement by both parties to the agreement.” Boyert, 834 S.W.2d at 63.

C.     Analysis

       In their second and third issues, the Chavezes contend that the trial court erred in

granting summary judgment because they presented sufficient evidence to raise a genuine

issue of material fact on the partial performance exception to the statute of frauds. It is

undisputed that no written contract to sell the Alamo home existed; therefore, the burden

shifted to the Chavezes to show why summary judgment should not be granted. See id.

       The Chavezes’s summary judgment evidence consisted of receipts of various


                                             5
payments made to the Bravos from April 1998 to December 2005 and a notarized affidavit

bearing the signatures of both Manuel and Elodia Chavez. The Chavezes’ affidavit

provides:

              On or about May 25, 1998, Jose Manuel Chavez along with my wife[,]
       Elodia Chavez[,] entered into an agreement with Erasmo Bravo to purchase
       the property located at 1017 Frontage Road in Alamo, Texas. The purchase
       price of $65,000.00 was to be paid in monthly installments of $500.00 and
       we were also to pay taxes and insurance. There was no interest to be
       charged. We paid a downpayment [sic] of $2,000.00 . . . .

            We took possession of the house and began making monthly
       payments in June of 1998. . . .

              ....

             We are ready to continue to make payments on the contact [sic]. We
       have spent money fixing the house and making improvements to it and do
       not want to lose it. As of today, we have paid over $45,000.00 of the
       $65,000.00 sale price.

       In the present case, neither Bravo nor Cantu contend that the Chavezes were not

in possession of the Alamo house or that no consideration was paid. Therefore, we must

determine whether the Chavezes presented some evidence that they made permanent and

valuable improvements with Bravo or Cantu’s consent or that they would be defrauded if

the oral agreement is not enforced. See Boyert, 834 S.W.2d at 63. “In order to be

valuable, the improvements must be substantial and add materially to the value of the

property.” Fandey v. Lee, 880 S.W.2d 164, 170 (Tex. App.–El Paso 1994, writ denied).

When there is no evidence of valuable or permanent improvements, the third element of

a claim of partial performance may be met where “other facts are shown that would make

the transaction a fraud on the purchaser if the oral contract was not enforced.” Boyert, 834

S.W.2d at 63; Pickett, 47 S.W.3d at 76.

       The Chavezes attached a receipt to their affidavit indicating that a $2,000 payment
                                             6
was made on April 28, 1998; they also attached several receipts indicating that they made

numerous $500 payments between June 1998 and December 20, 2005. While the

statements in the affidavit and the copies of receipts serve as some evidence that the

Chavezes paid consideration for the house, there is no evidence that the Chavezes made

any “permanent” or “valuable” improvements to the house with either Bravo’s or Cantu’s

consent. The Chavezes provided no receipts of payments made on improvements towards

the house, nor made any indication that they spent a substantial amount of money fixing

the house and making improvements to it. Moreover, the Chavezes did not provide any

evidence of specific improvements made to the property, and thereby failed to provide the

trial court with evidence that permanent improvements were made. Accordingly, the

evidence before us is not sufficient to raise a fact issue as to whether the Chavezes made

valuable and permanent improvements to the house with either Bravo or Cantu’s consent.

See Hammonds v. Calhoun Distrib. Co., Inc., 584 S.W.2d 473, 475 (Tex. Civ.

App.–Texarkana 1979, writ ref’d n.r.e.).

       In Lovett v. Lovett, an alleged property buyer filed suit against a seller for fraudulent

inducement, alleging that the seller failed to transfer title to a piece of property that the

seller had orally contracted to sell. 283 S.W.3d 391, 392-93 (Tex. App.–Waco 2008, pet.

denied). The trial court granted the seller’s motion for summary judgment premised on a

statute of frauds defense. Id. at 392. On appeal, the Waco Court of Appeals determined

that because the buyer presented evidence that he suffered “‘a serious change of position

in reliance upon the oral contract,’” a genuine issue of material fact remained as to whether

failing to enforce the contract would cause the seller to be defrauded. Id. at 395 (quoting

Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, 290 (1957)). The court noted that a

“serious change” requires “something more than the mere payment of consideration such
                                               7
that the buyer ‘will suffer an additional and substantial out-of-pocket loss’ if the seller is

permitted to avoid the contract.” Id. at 395 (quoting Cowden, 300 S.W.2d at 290). The

court held that the buyer presented sufficient evidence of such a “serious change” because

he presented evidence that “his wife and he moved from Arizona to Texas in reliance on

the agreement and that he paid ad valorem taxes for ‘at least three years’ in reliance on

the agreement.” Id. at 395.

        Unlike the facts in Lovett, the Chavezes’ affidavit does not set forth evidence raising

a genuine issue of material fact with regard to whether the transaction would be a fraud on

them if the purported oral contract was not enforced. The present case is distinguishable

from Lovett because, although the Chavezes’ affidavit states that as a term of the contract

they “were . . . to pay taxes and insurance,” there is no evidence that they actually made

tax or insurance payments. See Boyert, 834 S.W.2d at 63; Lovett, 283 S.W.3d at 395.

No evidence presented by the Chavezes indicated that they would “suffer an additional and

out of pocket loss.” Based on the record before us, we find no evidence that raises a fact

issue as to whether the transaction would be a fraud on the Chavezes if the purported oral

contract was not enforced. See id.

        Based on the foregoing, we conclude that the Chavezes failed to bring forth

evidence raising a fact issue. Accordingly, the Chavezes’ second and third issues are

overruled.

                                               III. CONCLUSION

        Having overruled the Chavezes’ second and third issues, we conclude the trial court

did not err in granting Bravo and Cantu’s motion for summary judgment.2 The trial court’s
        2
           Having determ ined that sum m ary judgm ent was proper based on the statute of frauds, we need not
address the Chavezes’ first issue regarding res judicata and collateral estoppel because it is not dispositive
of this appeal. See T EX . R. A PP . P. 47.1; Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W .2d 170, 173 (Tex.
                                                        8
order granting summary judgment is affirmed.


                                               ROGELIO VALDEZ
                                               Chief Justice


Delivered and filed the
28th day of January, 2010.




1995).
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