Reversed and Remanded, and Opinion filed April 23, 2020.




                                             In The

                        Fourteenth Court of Appeals

                                    NO. 14-18-00569-CV

       GLYNN WALKER AND MELINDA DEA WALKER, Appellants

                                                V.
   WILLIAM RALPH LAYNE WALKER A/K/A LAYNE WALKER AND
              RONALD LINN WALKER, Appellees

                        On Appeal from the 10th District Court
                               Galveston County, Texas
                         Trial Court Cause No. 15-CV-0354-A


                                           OPINION

       This is the second appeal of summary judgments granted by the trial court in
this case. As we detailed in our previous opinion, Glynn and Melinda Walker sued
Glynn’s father and brother Ronald and Layne Walker regarding ownership of a
beach house.1 Walker v. Walker, No. 14-16-00357-CV, 2017 WL 1181359, at *1


       1
        Ronald passed away during the pendency of this appeal. We adjudicate the appeal as if
he were still alive. See Tex. R. App. P. 7.1(a)(1) (“If a party to a civil case dies after the trial
(Tex. App.—Houston [14th Dist.] Mar. 30, 2017, no pet.) (mem. op.). Glynn and
Melinda asserted claims, among others, for monetary damages based on
promissory estoppel and unjust enrichment and filed a notice of lis pendens against
the property. Id. The trial court granted summary judgment against them on all
claims. Id. We reversed the trial court’s judgment as to their claims for affirmative
promissory estoppel and unjust enrichment, concluding there were genuine issues
of material fact on these claims, and remanded the case.2 Id.

       On remand, Ronald and Layne again moved for summary judgment on the
promissory estoppel and unjust enrichment claims. They also moved for summary
judgment on their affirmative defense of res judicata to Glynn and Melinda’s
defensive use of promissory estoppel.3 Contrary to this court’s prior holding, the
trial court again granted summary judgment against Glynn and Melinda on their
promissory estoppel and unjust enrichment claims and granted summary judgment
in favor of Ronald and Layne on their res judicata affirmative defense. The trial
court also granted Ronald and Layne’s motion to expunge lis pendens.4 We reverse
and remand.

                                          Discussion

       We presented the facts in our previous opinion and need not do so again. See
court renders judgment but before the case has been finally disposed of on appeal, the appeal
may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties
were alive.”).
       2
          We noted that promissory estoppel “is generally used as a defensive theory” and held
that Glynn and Melinda waived any error regarding the defensive use of promissory estoppel by
failing to address it on appeal. Walker, 2017 WL 1181359, at *7.
       3
         As stated in their response to the motion, Glynn and Melinda do not assert a claim for
defensive promissory estoppel.
       4
          The trial court granted motions to dismiss all other pending claims against all parties,
and thus the matter became final and appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205 (Tex. 2001) (noting order that “actually disposes of every pending claim and party” is
final for purposes of appeal).

                                                2
id. at *1-2. We turn to the issues in this case. In two issues, Glynn and Melinda
challenge the trial court’s (1) second summary judgment on promissory estoppel
and unjust enrichment, (2) summary judgment on Ronald and Layne’s res judicata
affirmative defense, and (3) expunction of the lis pendens.

      I.     Summary Judgment

      We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the
evidence presented in the motion and response in the light most favorable to the
party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Id.

      When a party seeks summary judgment on no-evidence and traditional
grounds, we generally review the no-evidence grounds first. See PAS, Inc. v.
Engel, 350 S.W.3d 602, 607 (Tex. App.—Houston [14th Dist.] 2011, no pet.). To
prevail on a no-evidence summary judgment, the movant must allege that no
evidence exists to support one or more essential elements of a claim for which the
non-movant bears the burden of proof at trial. Id. (citing Tex. R. Civ. P. 166a(i)).
The motion must specifically state the elements for which there is no evidence. Id.
The non-movant must then present evidence raising a genuine issue of material
fact on the challenged elements. Id. A fact issue exists when there is more than a
scintilla of probative evidence. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012)
(per curiam). More than a scintilla of evidence is present when evidence rises to a
level that would allow reasonable and fair-minded people to differ in their
conclusions as to the existence of a vital fact. Dworschak v. Transocean Offshore
Deepwater Drilling, Inc., 352 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

                                         3
2004)).

         The party moving for traditional summary judgment bears the burden of
showing no genuine issue of material fact exists and it is entitled to judgment as a
matter of law. Fielding, 289 S.W.3d at 848 (citing Tex. R. Civ. P. 166a(c)). 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.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Summary judgment for a defendant is proper only when the defendant negates at
least one element of each of the plaintiff’s theories of recovery or pleads and
conclusively establishes each element of an affirmative defense. Hilburn v. Storage
Tr. Props., LP, 586 S.W.3d 501, 506 (Tex. App.—Houston [14th Dist.] 2019, no
pet.).

              A. Promissory Estoppel

         Ronald moved for no evidence and traditional summary judgment on the
promissory estoppel claim. He argued that (1) promissory estoppel is not a valid
affirmative claim; (2) his promise to convey the property to Glynn was not
sufficiently definite to be enforced; and (3) Glynn’s purported reliance on Ronald’s
promise was not reasonable. The promissory estoppel claim is against Ronald only.

         Affirmative Claim. We have already held in this case that promissory
estoppel can be asserted as an affirmative claim for damages, so the first argument
is without merit. Walker, 2017 WL 1181359, at *7 (citing Boales v. Brighton
Builders, Inc., 29 S.W.3d 159, 166 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied)). The elements of an affirmative claim for promissory estoppel are (1) a
promise, (2) foreseeability by the promisor of reliance on the promise, and
(3) substantial reliance by the promisee to his detriment. Id. (citing Boales, 29
S.W.3d at 166, and Collins. v. Walker, 341 S.W.3d 570, 573–74 (Tex. App.—
                                         4
Houston [14th Dist.] 2011, no pet.) (holding claim applies when enforcing the
promise is necessary to avoid injustice)). Ronald also moved for no evidence
summary judgment on each element of promissory estoppel as an affirmative
claim.

         Fact Issues on Elements. We have already held that there are genuine
issues of material fact as to each element of the affirmative claim of promissory
estoppel based on the following evidence: (1) a promise—Ronald promised he
would transfer the deed to Glynn “whenever Glynn was ready”; (2) foreseeability
of reliance on the promise—Ronald encouraged Glynn and Melinda to design and
build a home on the property, and Ronald knew Glynn and Melinda took out a
home equity loan to use toward building the house; and (3) substantial reliance by
Glynn and Melinda to their detriment—Glynn and Melinda took out a home equity
loan and built a beach house in reliance on Ronald’s promise.5 See id. at *8. We
are bound by our prior holding. See Taylor v. First Cmty. Credit Union, 316
S.W.3d 863, 869 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Absent a
decision from a higher court or this court sitting en banc that is on point and
contrary to the prior panel decision or an intervening and material change in the
statutory law, this court is bound by the prior holding of another panel of this
court.”). Glynn and Melinda, moreover, presented additional evidence supporting
each element of promissory estoppel: Ronald (1) told Glynn and Layne “he was
purchasing beach lots for” them (promise); (2) paid for the lots and gave Glynn
over $100,000 “to assist . . . with building . . . the beach home[]” (foreseeability of
         5
         Ronald and Layne point out that they did not originally move for no evidence summary
judgment on the promissory estoppel claim. But we analyzed the issue under traditional
summary judgment principles and held that there were genuine issues of material fact on each
element. Walker, 2017 WL 1181359, at *7-8. Since Glynn and Melinda presented evidence on
each element, the outcome is the same. See PAS, Inc., 350 S.W.3d at 607 (noting for no evidence
summary judgment motions, nonmovant is required to produce evidence that raises a genuine
issue of material fact as to each challenged element).

                                              5
reliance and substantial reliance); (3) referred to the house as Glynn’s (promise and
foreseeability of reliance); (4) never took possession of the home (foreseeability of
reliance); and (5) amended his will at Glynn’s office and told Glynn that he was
devising the property to Glynn temporarily until a quiet title suit involving the
property was resolved (promise and foreseeability of reliance).

      Promise Sufficiently Definite. Ronald argued that his promise was too
indefinite to be enforced because (1) Glynn and Layne originally were supposed to
get three lots each, but ultimately Glynn and Layne agreed that Layne would take
four lots, and (2) Ronald initially owned a 75% interest in the lots that changed to
100% after the title dispute was resolved. See Walker, 2017 WL 1181359, at *6.
To support a finding of promissory estoppel, the asserted “promise” must be
sufficiently specific and definite that it would be reasonable and justified for the
promisee to rely upon it as a commitment to future action. Comiskey v. FH
Partners, LLC, 373 S.W.3d 620, 635 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied). The promise also must be more than mere speculation concerning future
events, a statement of hope, or an expression of opinion, expectation, or
assumption. Id.

      Ronald has pointed to no authority supporting the argument that Glynn’s
agreement to let Layne have one of his lots or that resolution of the title dispute
made Ronald’s promise too indefinite to be enforced. We conclude there is more
than a scintilla of evidence that Ronald promised to give three lots to Glynn after
the title dispute was resolved. That the parties agreed later to Glynn’s receiving
only two lots and that the title dispute was resolved in Ronald’s favor simply do
not reflect Ronald made a promise that was not sufficiently specific and definite.

      Reasonable Reliance. As to whether Glynn’s purported reliance on
Ronald’s promise was reasonable, we have already noted that Glynn and Melinda

                                         6
presented evidence showing Ronald encouraged them to design and build a home
on the property. See Walker, 2017 WL 1181359, at *8. Ronald argues, however,
that his purported promise to give Glynn the property was illusory because Ronald
testified that he never intended to deed the property to Glynn and Layne but
instead intended to bequeath it to them. See Royston, Rayzor, Vickery, & Williams,
LLP v. Lopez, 467 S.W.3d 494, 505 (Tex. 2015) (quoting Restatement (Second) of
Contracts § 77 cmt. a (1981) (“Words of promise which by their terms make
performance entirely optional with the ‘promisor’ do not constitute a promise.”)).
Because Ronald could change his mind, according to him, the promise was
illusory, and thus it was not reasonable for Glynn to rely on it. See Comiskey, 373
S.W.3d at 635 (noting to support promissory estoppel finding, promisee’s reliance
on promise must be reasonable and justified). But Glynn presented evidence that
Ronald told Glynn the will devising the property to him was only temporary
pending resolution of a quiet title suit involving the property. Once the title issues
were resolved, Ronald said he would transfer the property to Glynn whenever he
was ready. Accordingly, there is a fact question as to whether Ronald intended to
give the property during his lifetime to Glynn and Layne once the title dispute was
resolved or intended to bequeath the property to them.6

       Viewing the evidence in the light most favorable to Glynn and Melinda, it
shows that Ronald purchased property for Glynn and Layne and intended to
transfer Glynn’s portion of the property to him once the pending title issues were
resolved and when Glynn was ready. Based on our prior holding and additional
analysis, we conclude the trial court again erred in granting summary judgment on

       6
          We noted before that the will could not conclusively negate a present intent to give the
property to Glynn because “[a] will speaks only ‘at the time of the testator’s death, and the
estate’s property cannot be assessed until that date. The will can only give things possessed by
the testator at his death.’” Walker, 2017 WL 1181359, at *5 n.5 (quoting Estate of Wright, 482
S.W.3d 650, 658 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)).

                                                7
Glynn and Melinda’s affirmative promissory estoppel claim. As noted, the trial
court’s second grant of summary judgment was contrary to our prior holding.

       Defensive Claim. Ronald and Layne also moved for summary judgment on
their affirmative defense of res judicata to Glynn and Melinda’s defensive claim of
promissory estoppel. Glynn and Melinda assert they do not have a defensive claim
of promissory estoppel but concede that if they did, it would be barred because of
this court’s earlier holding.7 See Walker, 2017 WL 1181359, at *7 (“As Glynn and
Melinda do not address the defensive use of a promissory estoppel cause of action
in their issues or briefing to this Court, we conclude they have waived any error on
appeal concerning the defensive use of promissory estoppel to preclude application
of the Statute of Frauds.”). Glynn and Melinda contend, however, that the trial
court erred to the extent that it granted the motion on their affirmative claim of
promissory estoppel on the basis of res judicata. The trial court’s order does not
reflect that the trial court granted summary judgment as to the affirmative
promissory estoppel claim on the basis of res judicata, as it does not specify the
reason. But if the court did so, it was error, as our previous opinion only concluded
that the defensive claim of promissory estoppel was barred. See id. For the above
reasons, we agree that the trial court erred in rendering summary judgment on
Glynn and Melinda’s affirmative claim of promissory estoppel, and we reverse the
summary judgment on that claim.

              B. Unjust Enrichment

       Ronald and Layne also moved for no evidence and traditional summary

       7
          Glynn and Melinda further argue that it was unclear whether Ronald and Layne also
moved for summary judgment on the basis of res judicata as to Glynn and Melinda’s prior claim
of an oral parol gift of property. Glynn and Melinda concede that they cannot revive this claim
because we have already held that the trial court did not err in granting summary judgment on
this claim. See Walker, 2017 WL 1181359, at *7.

                                              8
judgment on the basis that there is no evidence of “fraud, duress, or ‘the taking of
undue advantage.’”8 We have already held that fraud, duress or the taking of an
undue advantage is not an element of unjust enrichment, even though the doctrine
“is typically found to apply” under one of these scenarios. Walker, 2017 WL
1181359, at *8. As we stated, “[t]he right to recover under an unjust enrichment
theory does not depend on the existence of a wrong” and “[t]o obtain restitution on
a theory of unjust enrichment, a wrongful act need not be shown.” Id. at *8-9.
Under the doctrine, as we noted, “one who receives benefits, even passively, which
would be unjust to retain ought to make restitution for those benefits.” Id. at *8
(emphasis added). Again, we are bound by our prior holding, see Taylor, 316
S.W.3d at 869, but even if we were not, we would not hold otherwise.9 We
conclude the trial court erred in granting summary judgment on this basis.

       We sustain Glynn and Melinda’s first issue.

       II.    Lis Pendens

       Glynn and Melinda also challenge in their second issue the trial court’s order
expunging the lis pendens filed against the property. A lis pendens is a notice of
litigation, placed in the real property records, asserting an interest in the property
and notifying third parties that ownership of the property is disputed. Jetall Cos. v.
Van Dyke, No. 14-19-00104-CV, 2019 WL 2097540, at *5 (Tex. App.—Houston

       8
          Ronald and Layne also imply that unjust enrichment is not an independent cause of
action. We noted that it is “an equitable doctrine that allows recovery in quasi-contract or
restitution if a contemplated agreement is ‘unenforceable, impossible, not fully performed,
thwarted by mutual mistake, or void for other legal reasons.’” Walker, 2017 WL 1181359, at *8.
We also held that Ronald’s purported oral gift of realty was unenforceable because there was no
evidence that Ronald intended an immediate divestiture of his rights of ownership. Id. at *6.
Ronald and Layne have pointed to no impediment to Glynn and Melinda’s bringing an unjust
enrichment claim.
       9
         Moreover, Glynn and Melinda presented evidence that they built a beach house on the
property and financed it. This is evidence of an undue advantage to Ronald and Layne.

                                              9
[14th Dist.] May 14, 2019, no pet.) (mem. op.).10

       Ronald and Layne contend that they were entitled to expunction of the lis
pendens because Glynn and Melinda no longer assert a real property claim. Ronald
and Layne moved to expunge the lis pendens on three grounds: (1) this court
previously held Glynn and Melinda have no claim on real property; (2) Glynn and
Melinda do not have the type of interest in real property “that is contemplated by
the Property Code”; and (3) the notice contained inaccurate information.11 Ronald
and Layne argue for the first time on appeal that Glynn and Melinda do not have a
real property claim because they seek only monetary damages.

       While an action “involving title to real property, the establishment of an
interest in real property, or the enforcement of an encumbrance against real
property” is pending, a party seeking affirmative relief may file with the county
clerk of the county where the property is located a notice stating that the action is
pending. Tex. Prop. Code § 12.007(a). A party to such an action may apply to the
court to expunge the notice. Id. § 12.0071(a)(1). Under the statute, in relevant part,
the trial court “shall order the notice of lis pendens expunged if the court
determines that . . . the pleading on which the notice is based does not contain a
real property claim.” 12 Id. § 12.0071(c)(1).

       10
           Glynn and Melinda filed a motion to stay the sale of the beach house pending
disposition of the appeal, which we denied. In their opposition to the motion, Ronald and Layne
contend that Glynn and Melinda filed another notice of lis pendens after this appeal was filed,
which the trial court apparently also expunged. That notice is not before this court.
       11
       We did not hold that Glynn and Melinda have no real property claim. See Walker, 2017
WL 1181359, at *1.
       12
           Under the statute, a trial court must expunge a lis pendens if the court determines
(1) the pleading does not contain a real property claim; (2) the claimant fails to establish by a
preponderance of the evidence the probable validity of a real property claim; or (3) the person
who filed the notice did not serve it on all the required parties. Tex. Prop. Code § 12.0071(c).
Two of Ronald and Layne ’s arguments in the motion to expunge and their argument on appeal
relate to subsection (c)(1)—whether the pleading contains a real property claim. The other
                                               10
         As an initial matter, we must determine what standard of review applies to
the trial court’s order expunging the lis pendens. We first look to the statute. See
Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). If a statute provides that the
trial court “shall enter an order,” the trial court has no discretion but to do so. See
In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Bocquet, 972 S.W.2d at 20 (“Statutes
providing that a party . . . ‘shall be awarded’ . . . attorney fees are not
discretionary.”). Because the language in the statute is mandatory, i.e., the trial
court “shall order the notice of lis pendens expunged if . . . ,” we must determine as
a matter of law whether the trial court erred in ordering expunction. See Tex. Prop.
Code § 12.0071(c)(1); see also In re Doe, 19 S.W.3d at 253; Bocquet, 972 S.W.2d
at 20.

         We turn to “the pleading on which the notice is based” to determine whether
the trial court erred in finding that it did “not contain a real property claim.” See
Tex. Prop. Code § 12.0071(c)(1). The statute does not define “real property claim,”
but at the time the trial court granted the motion to expunge, Glynn and Melinda
were asserting claims only for promissory estoppel and unjust enrichment. We
must determine whether either of these is a real property claim under the statute.

         We have held that for the lis pendens statute to apply, an adequate nexus
must exist between the asserted claims and the subject property. Olbrich v. Touchy,
780 S.W.2d 6, 7 (Tex. App.—Houston [14th Dist.] 1989, no writ). Although
something less than title is enough to establish this nexus, a claimed interest in the
subject property must be direct and not collateral. See id. at 7-8; see also In re
Collins, 172 S.W.3d 287, 293 (Tex. App.—Fort Worth 2005, no pet.).

         The disposition of the subject property obviously forms the basis for Glynn
and Melinda’s claims. Glynn and Melinda allege in their live petition that Glynn

argument, involving accuracy of the notice, is not a basis for expunction under the statute.

                                                11
and Layne were each given three lots but the deeds would not be transferred until
after construction was completed. Construction commenced, and because Layne’s
three lots were not large enough to accommodate the size of his home, Glynn
agreed to give one of his lots to Layne. Glynn obtained a home equity construction
loan to build his beach house and contributed a significant amount of his own
money for the construction. Glynn also currently pays the mortgage and other
expenses associated with the property. After construction of the beach homes was
completed, Ronald told Glynn and Layne he would sign the deeds over to the
brothers. These allegations show that Glynn claims an interest in the property.

      Although in their live pleading, Glynn and Melinda seek only monetary
damages, they argue on appeal that they may be entitled to “pay the value of the
land before the improvements were placed and become the owner[s] of the land
and improvements” or ask the trial court to “order the land and improvements sold
and the money divided” appropriately among the parties. These are available
remedies for unjust enrichment. See Wasson Interests, Ltd. v. City of Jacksonville,
No. 12-13-00262-CV, 2019 WL 7373851, at *8 (Tex. App.—Tyler Dec. 31, 2019,
no pet.) (mem. op.) (listing available unjust enrichment remedies when good faith
improvement was made to property and “improvement cannot be removed without
great injury to the improvement or the land”). Glynn and Melinda further contend
they may be entitled to a lien against the property. Restitution involving restoring
property taken from the plaintiff may also be an appropriate measure of damages
for unjust enrichment. City of Harker Heights, Tex. v. Sun Meadows Land, Ltd.,
830 S.W.2d 313, 317 (Tex. App.—Austin 1992, no writ).

      We conclude that the claim for unjust enrichment is a real property claim.
Glynn and Melinda allege that they have an interest in the property even though it
was never legally transferred to them. Moreover, they did not have an opportunity

                                         12
to amend their petition in response to the motion to expunge to seek any other
damages available for unjust enrichment because Ronald and Layne did not raise
the issue below.13 We decline to hold that Glynn and Melinda failed to allege a real
property claim based solely on the fact that they did not seek all damages in their
pleading to which they may be entitled, particularly given the fact that they did not
have the benefit of this argument below. Ronald and Layne have cited no authority,
and we have found none, compelling us to hold otherwise. We conclude that the
trial court erred in expunging the lis pendens.

       We sustain Glynn and Melinda’s second issue.

                                          Conclusion

       Having again concluded that there are fact issues on Glynn and Melinda’s
affirmative promissory estoppel claim and unjust enrichment claim, we reverse the
trial court’s summary judgment on those claims, which is contrary to this court’s
prior holding. In addition, we reverse the trial court’s order expunging the lis
pendens. We remand for proceedings consistent with this opinion.




                                             /s/    Frances Bourliot
                                                    Justice



Panel consists of Justices Christopher, Bourliot, and Zimmerer.



       13
          We note that in the prayer in their live petition, Glynn and Melinda ask for “such other
and further relief both at law and in equity to which [they] may be entitled.”

                                               13
