      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00310-CV



                                  T. David Young, Appellant

                                                v.

                                 PlainsCapital Bank, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
      NO. D-1-GN-14-004656, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant T. David Young appeals from the district court’s summary judgment in

favor of appellee PlainsCapital Bank (the Bank). Young sued the Bank for breach of contract,

claiming that the Bank had agreed to sell him certain real property that it owned. On cross-motions

for summary judgment, the district court denied Young’s motion and granted summary judgment to

the Bank. Because the unsigned real-estate sales contract Young seeks to enforce is required by the

statute of frauds to be both signed and in writing, and because Young’s summary-judgment evidence

fails to raise a fact issue as to any exception to the statute of frauds, we affirm the district

court’s judgment.
                                          Background

              In September 2013, Young and his real-estate agent Tate Chiles (collectively,

“Young”) began negotiations with the Bank, through Bank employee Sean Denton, to purchase

property owned by the Bank. As part of these negotiations, Young and Denton met in person and

exchanged emails regarding the details of the proposed sale. The emails, which the Bank attached

as summary-judgment evidence, established the following sequence of events:

•      Sept. 17—Young agrees to meet with Denton at his office to discuss the deal.

•      Sept. 18—Young sends Denton a proposed contract to purchase the property.

•      Sept. 19—Denton emails Young’s proposal to Bank supervisors, asking how they would like
       to proceed.

•      Sept. 24—Denton tells Young that Denton “received a response this morning that all the
       terms appeared acceptable but that they would like for us to rework the addendum.”

•      Oct. 4—Young sends an email to Denton confirming “our conversation today and the
       attached addendum” and stating that Young “agrees to the addendum and all changes.” In
       the same email, Young asks Denton if he wants Young “to clean this up and send it to you
       Monday or do you want to take care of it? We will initial and sign all documents needed.”
       Denton replies, “It would be quicker if you cleaned it up and sent me an executable version.”

•      Oct. 7—Young sends Denton a copy of the purchase contract and a copy of the addendum
       incorporating the Bank’s requested changes, both of which were signed and initialed by
       Young only. Young asks Denton to “review Paragraph 10 of the addendum in which we
       clarified the undefined word ‘affiliate’ and to let him know if there were any questions.”

•      Oct. 7—Denton forwards to his supervisor the purchase contract and addendum signed by
       Young and a document titled “ORE Sale Approval Request,” explaining, “This should be
       clean copies of everything. Let me know if you need anything else from me.”

In addition to the foregoing emails, Young offered as summary-judgment evidence his own affidavit

and deposition testimony alleging that Denton assured him during an October 4 conversation that

the contract was complete and would be signed. The Bank offered as summary-judgment evidence

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the minutes of its Special Assets Committee from November 2013, showing that the committee

rejected the sale to Young.

               In his suit against the Bank for breach of contract, Young asserted that the Bank

promised to sign the purchase contract and that, because he relied on that promise to his detriment,

he is entitled to an order compelling the Bank to perform its obligation under the contract despite

the fact that the Bank had not signed the purchase contract. Both parties filed motions for summary

judgment on Young’s claim. Young argued, among other things, that a contract was formed when

Denton emailed Young that “all the terms appear acceptable” and Young agreed via email to the

proposed changes to the addendum. The Bank argued that it, and not Young, was entitled to

summary judgment because, among other assertions, there was no contract, the contract alleged by

Young would violate the statute of frauds, and the Bank did not make any promise to sign a contract.

The trial court granted the Bank’s motion for summary judgment and denied Young’s motion.


                                            Discussion

               On appeal, Young asks us to reverse the district court’s summary judgment and

remand the cause for further proceedings, arguing (1) the Bank accepted the terms of the contract

on at least three occasions; (2) the Bank made a promise to sign the agreement, making it enforceable

despite the statute of frauds; and (3) even if the written correspondence between the parties did not

constitute an acceptance, the substance of the October 4 phone conversation raised a genuine issue

of material fact that precluded summary judgment. We disagree. Summary judgment in favor of

the Bank was proper because (1) the summary-judgment evidence conclusively established that the

real-estate contract Young seeks to enforce was not signed, and is thus unenforceable under the

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statute of frauds, and (2) Young did not raise a fact issue on his argument for a promissory-estoppel

exception to the statute of frauds.

                Texas’s statute of frauds requires that certain transactions—including a contract for

the sale of real estate—be in writing and signed for the contract to be enforceable:


        A promise or agreement [for the sale of real estate] is not enforceable unless the
        promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the
        person to be charged with the promise or agreement or by someone lawfully
        authorized to sign for him.


Tex. Bus. & Com. Code § 26.01(a), (b)(4). Young agrees, and the summary-judgment evidence

establishes, that the contract at issue here is an unsigned contract for the sale of real estate. Thus, the

contract is subject to the statute of frauds and unenforceable unless Young can prove an exception.

                Young has pleaded the promissory-estoppel exception to the statute of frauds, which

allows a party in certain circumstances to enforce a contract otherwise barred by the statute of frauds

where the other party to the contract made a promise to sign a written agreement. See Nagle v.

Nagle, 633 S.W.2d 796, 799–800 (Tex. 1982) (“[C]ourts will enforce an oral promise to sign an

instrument complying with the Statute of Frauds if: (1) the promisor should have expected that his

promise would lead the promisee to some definite and substantial injury; (2) such an injury occurred;

and (3) the court must enforce the promise to avoid injustice.”) (citing “Moore” Burger, Inc. v.

Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972)); see also Hooks v. Bridgewater,

229 S.W. 1114, 1116 (Tex. 1921) (recognizing promissory-estoppel exception to statute of frauds).

Here, because the summary-judgment evidence conclusively establishes that the unsigned contract

is subject to the statute of frauds, Young had the burden to adduce evidence raising a fact issue

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concerning his promissory-estoppel defense to avoid summary judgment. See “Moore” Burger,

492 S.W.2d at 936–37.

               Pointing to his affidavit, deposition testimony, and the emails offered by the Bank,

Young asserts that the Bank made a promise to sign the agreement when he and Denton spoke on

the phone, and Denton requested in an email a clean, “executable version” of the contract without

explaining that the committee still had to approve it. But even taking as true all evidence favorable

to Young, indulging every reasonable inference and resolving all doubts in his favor, Young has not

met his burden of raising a question of fact concerning a promise to sign the agreement. See, e.g.,

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985) (explaining summary-judgment

standard of review). Even if the Bank, through its agent, orally approved the terms of the addendum

and requested an “executable version” of the contract, this merely establishes that the Bank wanted

an agreement that was capable of being signed, not that the Bank promised to sign it.1

               Young relies on Fretz Construction Co. v. Southern National Bank, 626 S.W.2d 478

(Tex. 1981), to support his contention that the Bank’s actions here constitute a promise to sign the

purchase contract. Young asserts that the court in Fretz held that, despite the lack of a signed

agreement, the defendant bank was obligated to fulfill its promise to supply funds because it had

communicated to the plaintiff that a binding agreement existed. But the existence or nonexistence

of a signed contract was never raised in Fretz, and the underlying agreement there concerned




       1
          See Webster’s Third New Int’l Dictionary of the English Language Unabridged (2002)
(defining, relevant here, “execute” as “perform what is required to give validity to (as by signing and
perhaps sealing and delivering)” and the suffix “-able” as “capable of, fit for, or worthy of (being so
acted upon or toward”).

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payment of funds for a construction loan, not the sale of property or any other contract subject to the

statute of frauds. See id. at 483. Fretz does not support Young’s claim that the promissory-estoppel

exception to the statute of frauds applies here.


                                             Conclusion

               Because the summary-judgment evidence establishes that the real estate contract

Young seeks to enforce was unsigned, and Young’s summary-judgment evidence has not raised a

genuine issue of material fact on his defense based on the promissory-estoppel exception to the

statute of frauds, we affirm. Having determined that the contract is unenforceable as a matter of law,

we need not address Young’s remaining issues. See Tex. R. App. P. 47.1.



                                               __________________________________________
                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Puryear and Bourland

Affirmed

Filed: July 14, 2017




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