AFFIRM; and Opinion Filed April 30, 2013.




                                           Court of Appeals
                                                            S     In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-11-00860-CV

JAMES HAIRSTON, INDIVIDUALLY AND NEXT FRIEND OF EMILY HAIRSTON, A
                         MINOR, Appellants
                               V.
    SOUTHERN METHODIST UNIVERSITY AND BRENT ERWIN, Appellees

                                  On Appeal from the County Court at Law No. 3
                                              Dallas County, Texas
                                       Trial Court Cause No. 10-03253-C

                                                       OPINION
                                      Before Justices Bridges, O’Neill, and Murphy
                                               Opinion by Justice Murphy
          Emily Hairston and her father, James Hairston, 1 appeal the trial court’s summary

judgment in favor of Southern Methodist University and Brent Erwin on Hairston’s claims for

financial aid. In four general issues, Hairston contends fact issues exist precluding summary

judgment and SMU 2 failed to establish its affirmative defense of accord and satisfaction. We

affirm.

                                                          BACKGROUND

          Hairston’s allegations are based on claims SMU, which is a private university located in

Dallas, Texas, reneged on a promise to provide her scholarships. Hairston testified she first met

   1
       Hairston admits on appeal that her father has no independent claims for recovery. Accordingly, references to Hairston include Emily only.
   2
       No independent claims are asserted against Erwin; references to SMU as the party to this action include Erwin.
Erwin, who was the head coach of SMU’s women’s soccer team, in May of 2007. She was a

sophomore at Highland Park High School at the time, and her soccer coach told her she should

contact Erwin because SMU was interested in recruiting her.

       Hairston, along with her father and her godmother, made an unofficial visit to SMU to

tour the campus in May 2007. They met with Erwin after the tour, and he informed Hairston and

her family that he would like her to come to SMU. Hairston contends Erwin verbally offered her

a “100%” scholarship during that meeting. Whether Erwin made the verbal offer is a disputed

issue in this case. What is not disputed, however, is that Hairston never received a written

statement or agreement regarding a scholarship.

       After the May 2007 meeting, Hairston and Erwin continued to communicate throughout

Hairston’s high school career, primarily through email. The emails included discussions of

games, workouts, recruitment of other soccer players, and encouragement for Hairston to

graduate early and enroll in SMU’s spring 2009 semester.         None of those conversations

mentioned financial or scholarship aid.

       Hairston graduated from high school early, enrolled in SMU’s spring 2009 semester, and

joined the women’s soccer team. In February of that semester, she received a call from SMU’s

business office informing her approximately $25,000 in tuition and fees were owing for that

semester. Hairston testified she was devastated and immediately contacted Erwin, who advised

her no scholarship or financial aid was available.

       Hairston’s father immediately complained to Steve Orsini, SMU’s athletic director.

Following a meeting with Orsini, Hairston and her father signed an April 11, 2009 agreement

with SMU in which she received $17,585 in financial assistance for the spring 2009 academic

semester. Pursuant to the agreement, Hairston acknowledged receipt of $17,585 and that “this

scholarship is for the spring 2009 academic semester only.” The agreement contained the further

                                               –2–
notation that “for the 2009–2010 academic year, I understand I will not be receiving athletic

aid.”

        Just over a year later, Hairston brought the underlying lawsuit, alleging fraud in the

inducement, “detrimental reliance,” breach of contract, and intentional infliction of emotional

distress; she also alleged breach of duty of good faith and fair dealing against the school. SMU

denied the allegations and asserted affirmative defenses under the statute of frauds and for accord

and satisfaction and also filed a counterclaim for past due fees and tuition.

        SMU filed a traditional summary-judgment motion, which it later amended, on the

grounds: (1) Hairston’s father was an improper party because he had no justiciable claim and

Hairston was not a minor at the time suit was filed; (2) all of Hairston’s claims were precluded

by the statute of frauds; (3) the April 11, 2009 agreement signed by Hairston and her father

constituted an accord and satisfaction of the alleged oral agreement to provide financial

assistance; and (4) Hairston’s claims for intentional infliction of emotion distress did not rise to

the level of extreme and outrageous conduct and were based on the same alleged oral agreement

as her other claims. After allowing additional time for supplemental briefing regarding contract

interpretation issues, the trial court held a final hearing and granted SMU’s summary-judgment

motion in its entirety. SMU then dismissed its counterclaim, rendering the trial court’s order

final and appealable.

                                   STANDARD OF REVIEW

        We review summary judgments under an established de novo standard of review.

Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). SMU, as the movant

for traditional summary judgment, had the burden of showing that no genuine issues of material

fact exist and it was entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sysco Food

Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). Where, as here, SMU as the movant

                                                –3–
requested summary judgment on both its affirmative defenses and on Hairston’s claims, we

determine whether it conclusively disproved at least one element of Hairston’s claims or

conclusively proved every element of its affirmative defenses. Am. Tobacco Co. v. Grinnell, 951

S.W.2d 420, 425 (Tex. 1997). A matter is conclusively established if ordinary minds cannot

differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).

                                         DISCUSSION

       Hairston brings four general issues on appeal asserting she raised fact issues on her

claims and that SMU failed to establish its defense of accord and satisfaction. In those issues

and her argument, however, she makes no reference to her underlying claims for fraudulent

inducement or breach of duty of good faith and fair dealing; SMU does address those issues in its

briefing. Accordingly, to the extent the trial court’s summary judgment was based on those two

claims for relief, we will not disturb the trial court’s ruling. In doing so, we do not express an

opinion as to the merits of SMU’s motion regarding those claims. Additionally, Hairston has

acknowledged her father has no independent grounds for recovery. Accordingly, the issues

before us on appeal involve the propriety of summary judgment on Hairston’s claim for

intentional infliction of emotional distress and SMU’s statute of frauds and accord and

satisfaction defenses.

                          Intentional Infliction of Emotional Distress

       We first address Hairston’s claim for intentional infliction of emotional distress, which

SMU contends it legally negated.       Hairston alleged under this cause of action that SMU

intentionally, recklessly, and without basis harassed, ridiculed, and maliciously inflicted

emotional distress on her by causing her to lose her financial aid and athletic scholarship and

forego financial aid from others.

                                               –4–
       Intentional infliction of emotional distress is a “gap-filler tort,” judicially created to allow

recovery where emotional distress is inflicted in such an unusual manner there are no other

theories of redress. See Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.

2004). To recover on this claim, Hairston must establish that: (1) SMU acted intentionally or

recklessly; (2) SMU’s conduct was extreme and outrageous; (3) SMU’s actions caused Hairston

emotional distress; and (4) the resulting emotional distress was severe. See Zeltwanger, 144

S.W.3d at 445. Extreme and outrageous conduct is conduct “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Id. (quoting Twyman v. Twyman,

855 S.W.2d 619, 621 (Tex. 1993) (internal citations omitted)). Meritorious claims for intentional

infliction of emotional distress are rare because “most human conduct, even that which causes

injury to others, cannot be fairly characterized as extreme and outrageous.” Kroger Tex. Ltd.

P’ship v. Subaru, 216 S.W.3d 788, 796 (Tex. 2006).

       We must determine, in the first instance, whether SMU’s conduct was extreme and

outrageous. Zeltwanger, 144 S.W.3d at 445. Intent that is tortious, malicious, or even criminal,

is insufficient to meet the threshold if SMU’s conduct itself is not extreme and outrageous. See

Toles v. Toles, 113 S.W.3d 899, 921 (Tex. App.—Dallas 2003, no pet.). Additionally, Hairston

cannot recover on a claim for intentional infliction of emotional distress if her risk of emotional

distress is incidental to SMU’s commission of another tort. Standard Fruit & Vegetable Co. v.

Johnson, 985 S.W.2d 62, 68 (Tex. 1998). Whether Hairston is able to recover on her primary

theories is irrelevant to the analysis. Zeltwanger, 144 S.W.3d at 447–48.

       Viewing Hairston’s evidence and all inferences in her favor, Erwin verbally offered

Hairston a full scholarship to SMU. He actively recruited her and obtained her assistance in

recruiting other women soccer players. Erwin told her and her father in May 2007 that SMU was

                                                 –5–
going to provide athletic scholarship money and supplement that with academic and character

scholarships to make sure she was “totally covered.” Hairston never received any written

statement mentioning or detailing the scholarship, but Erwin continued to communicate with

Hairston throughout her high school career, primarily through emails. In reliance on Erwin’s

offer of financial assistance, Hairston graduated from high school early, enrolled in SMU, and

joined the women’s soccer team. She had other opportunities but decided to forego those in

favor of SMU. It was only after she enrolled and joined the women’s soccer team that she

learned she had no scholarship or financial aid and owed approximately $25,000 in tuition and

fees for the semester.

       Hairston’s risk of emotional distress from this conduct is incidental to her other claims

that are based on alleged breaches of legal duties. Additionally, the conduct does not meet the

threshold of being “so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” See Twyman, 855 S.W.2d at 621. Accepting Hairston’s evidence as true, she and

her family were devastated. The evidence, however, does not meet the legal test for a claim of

intentional infliction of emotional distress. Although Hairston argues this was not an isolated

incident and Erwin displayed the same conduct toward other young women he recruited to play

soccer for SMU, those incidents have no legal significance to Hairston’s claim. We therefore

overrule Hairston’s issue on this claim.

                                           Statute of Frauds

       Hairston’s primary theory of recovery against SMU is for breach of an oral agreement to

provide her scholarships to attend SMU and play on the women’s soccer team. SMU moved for

summary judgment on this claim based on its affirmative defense the oral agreement is barred by

the statute of frauds. Specifically, SMU contends (1) the parties could not perform the contract

                                                 –6–
within a year of its making, (2) the contract is not in writing and signed by SMU, and (3) no

exceptions to the statute of frauds apply here.

         The statute of frauds exists to prevent fraud and perjury in certain kinds of transactions

by requiring agreements to be in writing and signed by the parties. Haase v. Glazner, 62 S.W.3d

795, 799 (Tex. 2001); RESTATEMENT (SECOND)          OF   CONTRACTS § 131 cmt. c (1981). It is an

affirmative defense in a breach of contract suit and renders a contract that falls within its purview

unenforceable. See TEX. R. CIV. P. 94; TEX. BUS. & COM. CODE ANN. § 26.01(a) (West 2009);

see also S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 854 (Tex. App.—Dallas 2011, no

pet.).

         The statute of frauds applies to agreements that are “not to be performed within one year

from the date of making the agreement.” TEX. BUS. & COM. CODE ANN. § 26.01(b)(6). Thus,

when a promise or agreement, either by its terms or by the nature of the required acts, cannot be

completed within one year, it falls within the statute of frauds and is not enforceable unless it is

in writing and signed by the person to be charged. See id. § 26.01(a), (b)(6); Niday v. Niday, 643

S.W.2d 919, 920 (Tex. 1982) (per curiam). If the agreement is capable of being performed

within one year, it is not precluded by the statute of frauds. See Gerstacker v. Blum Consulting

Eng’rs, Inc., 884 S.W.2d 845, 849 (Tex. App.—Dallas 1994, writ denied).

         The question of whether an agreement falls within the statute of frauds is one of law. See

Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex. 1961); Biko v. Siemens Corp., 246 S.W.3d 148,

159 (Tex. App.—Dallas 2007, pet. denied). Yet the question of whether an exception to the

statute of frauds applies is generally a question of fact. See Adams v. Petrade Int’l, Inc., 754

S.W.2d 696, 705 (Tex. App.—Houston [1st Dist.] 1988, writ denied).

         Courts use two points of reference in determining whether an agreement is capable of

being performed within one year: (1) the time of making the contract and (2) the time when

                                                  –7–
performance is to be completed. See TEX. BUS. & COM. CODE ANN. § 26.01(b)(6); Young v.

Ward, 917 S.W.2d 506, 508 (Tex. App.—Waco 1996, no writ) (to measure contract duration for

statute-of-frauds purposes, the “court simply compares the date of the agreement to the date

when the performance under the agreement is to be completed”). If there is a year or more

between those two reference points, a writing is required to render the agreement enforceable.

Young, 917 S.W.2d at 508.

       Hairston alleged in her original petition she met with Erwin in May 2007 and he “stated

that SMU would offer [Hairston] a 100% scholarship and ‘full ride.’” A portion “would be

athletic and the balance would be academic and character scholarships.”            She asserts she

accepted Erwin’s offer on May 6, 2007.          Her breach of contract claim is based on these

allegations.

       Before examining the merits of SMU’s statute of frauds defense, we must address a

dispute between Hairston and SMU regarding how many years Hairston claims the scholarship

covered. That is, what were the terms of the oral agreement forming the basis of Hairston’s

breach of contract claim? SMU claims that Hairston alleged the financial aid would “completely

take care of [her] tuition and fees for four years of attendance at SMU.” It cites to the father’s

deposition testimony in which he states he would “like all four years of tuition” in damages and

Hairston’s testimony that she was offered a 100% scholarship. Hairston argues that SMU

“take[s] great liberty with the facts.” She claims she sued alleging that SMU breached a contract

but did not allege the contract was for all “‘four years’ of financial aid.” She argues that her

original petition does not refer to a four-year scholarship.

       Hairston alleges in her original petition that SMU would offer her a “100% scholarship”

and a “full ride”; she does not state explicitly the scholarship would be for four years. Hairston’s

appellate brief uses similar language and also does not specify a four-year scholarship. Hairston

                                                 –8–
did, however, state in her supplemental response to SMU’s summary-judgment motion that

Erwin misrepresented to Emily she would “receive a ‘full ride’ for all four years if she

committed to SMU to play women’s soccer.” Hairston does not otherwise clarify how many

years she contends the scholarship would cover.

       Resolution of the length of time covered by the scholarship claimed by Hairston does not

impact our final disposition of the statute of frauds issue. We therefore address Hairston’s

breach of contract claim under both scenarios. To the extent Hairston claims the scholarship was

for four years, the agreement could not be performed within a year of its acceptance and a signed

writing was required. To the extent, however, Hairston claims the scholarship was not intended

to be for four years, that agreement also could not be performed within a year. Specifically,

Hairston was a high-school sophomore when she claims she accepted the offer in May 2007; she

did not enroll at SMU until the spring 2009 semester—approximately one and a half years later.

Similarly, the agreement would not be capable of being performed within one year of May 2007

because Hairston could not enroll at SMU until she completed high school. She does not suggest

she could have graduated after her sophomore year. The statute of frauds thus applied to the

agreement regardless of whether it was for four years or less.

       Hairston also argues the statute of frauds does not bar her breach of contract claim

because the agreement was “reaffirmed” or “re-offered” on February 2, 2009, while she was

attending SMU. She reasons that the February 2 reaffirmation makes the agreement capable of

being performed within one year (assuming she is not relying an agreement for a full

scholarship). The sole basis for her argument is an article published in SMU’s school newspaper

on that date announcing the signing of twelve new participants on the women’s soccer team,

including Hairston. That article makes no mention of any scholarship, it does not constitute a

written agreement, and it does not raise a fact issue regarding SMU’s statute of frauds defense.

                                               –9–
     Promissory Estoppel and Partial Performance Exceptions to the Statute of Frauds

       Hairston also invokes two equitable exceptions to the statute of frauds—promissory

estoppel and partial performance—in an effort to save her breach of contract claim. In support

of her promissory estoppel argument, she relies on “Moore” Burger, Inc. v. Phillips Petroleum

Co., 492 S.W.2d 934 (Tex.1972) (op. on re’g). Under “Moore” Burger, the burden is on

Hairston to produce evidence raising a fact issue concerning her promissory estoppel defense to

application of the statute of frauds. Id. at 936–37. The elements of promissory estoppel that

would allow the enforcement of an otherwise unenforceable oral agreement are that (1) the

promisor should have expected its 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. Nagle v. Nagle, 633 S.W.2d 796, 800 (Tex. 1982); see also Exxon Corp. v.

Breezevale Ltd., 82 S.W.3d 429, 438 (Tex. App.—Dallas 2002, pet. denied).

       To invoke the application of promissory estoppel where there is an oral promise to sign

an agreement, as in this case, the agreement that is the subject of the promise must comply with

the statute of frauds. “Moore” Burger, 492 S.W.2d at 940; Breezevale, 82 S.W.3d at 438. That

is, the agreement must be in writing at the time of the oral promise to sign it. Breezevale, 82

S.W.3d at 438.

       Hairston offers no evidence suggesting a written scholarship agreement existed in May

2007 when Hairston claims Erwin orally promised her a scholarship. Instead, she states that

“Erwin represented that such agreement would be signed later.”           That oral representation,

however, would not satisfy the promissory estoppel requirement of a writing. Hairston also

asserts the February 2009 report in the school newspaper—that the SMU women’s soccer team

had announced “12 new signees,” which included Hairston—satisfies her burden of showing an

existing written agreement. Besides the article’s lack of reference to a scholarship and its failure

                                               –10–
as a written agreement, Hairston admits she had already enrolled and was attending class by the

time of this article. The article did not exist at the time of the May 2007 oral representation.

Accordingly, Hairston failed to raise a fact issue regarding the promissory estoppel exception to

the statute of frauds.

        Hairston also relies on partial performance as an equitable exception to the statute of

frauds, citing Carmack v. Beltway Dev. Co., 701 S.W.2d 37, 40 (Tex. App.—Dallas 1985, no

writ) (part performance is a “well-recognized exception” to the statute of frauds). She argues

under this exception she is entitled to “one full year’s worth of Financial Aid to cover her costs.”

        Under the partial performance exception to the statute of frauds, contracts that have been

partly performed, but do not meet the requirements of the statute of frauds, may be enforced in

equity if denial of enforcement would amount to a virtual fraud. Breezevale, 82 S.W.3d at 439.

The partial performance must be unequivocally referable to the agreement and corroborative of

the fact that a contract actually was made. Id.; Holloway v. Dekkers, 380 S.W.3d 315, 324 (Tex.

App.—Dallas 2012, no pet.). The performance a party relies on to remove a parol agreement

from the statute of frauds “must be such as could have been done with no other design than to

fulfill the particular agreement sought to be enforced.” Breezevale, 82 S.W.3d at 439–40.

Without such precision, the acts of performance do not tend to prove the existence of the parol

agreement sought to be enforced. Id. at 440. We need not reach the question of whether

Hairston satisfied the requirements for showing the partial performance exception to the statute

of frauds because her claim to enforce a one-year scholarship is barred by SMU’s accord and

satisfaction defense.

                                     Accord and Satisfaction

        SMU sought summary judgment on its accord and satisfaction defense. Specifically, it

argued the April 11, 2009 written agreement signed by Hairston and her father constitutes an

                                               –11–
accord and satisfaction of any oral promise to provide financial assistance, precluding Hairston

from claiming any benefit under the oral promise. The accord and satisfaction defense rests

upon a contract, express or implied, in which the parties agree to the discharge of an existing

obligation by means of a lesser payment tendered and accepted. Lopez v. Munoz, Hockema &

Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000); Jenkins v. Henry C. Beck Co., 449 S.W.2d 454,

455 (Tex. 1969).

       SMU, as the movant on this defense, was required to establish the existence of a dispute

and an unmistakable communication to Hairston that tender of a reduced sum was upon the

condition that acceptance would satisfy the underlying obligation. See Lopez, 22 S.W.3d at 863.

SMU and Hairston must have agreed, specifically and intentionally, to the discharge of an

existing obligation of SMU. Id. “In other words, to prevail on its defense, [SMU] was required

to present summary judgment evidence that [Hairston] disputed [the denial of a scholarship] and

specifically and intentionally agreed to relinquish any claims [she] might have had against

[SMU].” Id.

       SMU argues it met its burden based on the 2009 written agreement signed by Hairston

and her father. The agreement referenced the 2009–2010 academic year, providing:

       RE: Scholarship Agreement for Academic Semester Spring 2009

       I, Emily Hairston, understand and agree that I will be given an athletic scholarship of
       17,585.00 for the spring 2009 academic semester. I also understand and agree that this
       scholarship is for the spring 2009 academic semester only. Also, for the 2009-2010
       academic year, I understand I will not be receiving athletic aid.

This evidence establishes conclusively SMU’s affirmative defense of accord and satisfaction as

to the 2009–2010 academic year. Thus, Hairston’s claim that she partially performed and was

entitled to at least one year’s worth of financial aid is precluded by SMU’s accord and

satisfaction defense.



                                             –12–
        Hairston’s response to SMU’s accord and satisfaction defense is that there is no evidence

the amount paid was in full satisfaction of the entire claim. We agree the evidence does not

conclusively establish an accord and satisfaction of a four-year scholarship. Accordingly, to the

extent the trial court granted summary on that basis, the judgment would have been in error.

Based on our resolution of SMU’s statute of frauds defense, however, such error does not affect

our disposition of this appeal. We overrule Hairston’s issues regarding the statute of frauds and

accord and satisfaction, to the extent any dispute was resolved as to the 2009–2010 academic

year.

                                        CONCLUSION

        Regardless of whether Hairston is alleging her May 2007 oral agreement for a 100%

tuition scholarship was for four years or for the 2009–2010 academic year, that agreement is

precluded by the statute of frauds because it could not be performed within a year of May 2007.

To the extent Hairston claims her partial performance removes her claim for 2009–2010

financial aid from the statute of frauds, those claims are barred by the defense of accord and

satisfaction. She also has failed to show a writing existed that would satisfy the promissory

estoppel exception to the statute of frauds. Finally, she has not presented a fact issue on her

claim of intentional infliction of emotional distress because her risk of emotional distress is

based on the same conduct giving rise to her other claims and the conduct does not meet the

threshold legal test for extreme or outrageous conduct. We therefore affirm the trial court’s

judgment.


                                                   /Mary Murphy/
                                                   MARY MURPHY
                                                   JUSTICE

110860F.P05



                                              –13–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES HAIRSTON, INDIVIDUALLY                            On Appeal from the County Court at Law
AND NEXT FRIEND OF EMILY                                No. 3, Dallas County, Texas
HAIRSTON, A MINOR, Appellants                           Trial Court Cause No. 10-03253-C.
                                                        Opinion delivered by Justice Murphy.
No. 05-11-00860-CV         V.                           Justices Bridges and O’Neill participating.

SOUTHERN METHODIST UNIVERSITY
AND BRENT ERWIN, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
     It is ORDERED that appellees SOUTHERN METHODIST UNIVERSITY and BRENT
ERWIN recover their costs of this appeal from appellants JAMES HAIRSTON and EMILY
HAIRSTON.


Judgment entered this 30th day of April, 2013.




                                                    /Mary Murphy/
                                                    MARY MURPHY
                                                    JUSTICE




                                                 –14–
