                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-16-00420-CV
                              _________________


                              IN RE PAULA COOK

________________________________________________________________________

                              Original Proceeding
                 356th District Court of Hardin County, Texas
                             Trial Cause No. 57,454
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                          MEMORANDUM OPINION

      In this mandamus proceeding, Paula Cook contends that the trial court

abused its discretion when it expunged her lis pendens from the public record. See

generally Tex. Prop. Code Ann. § 12.0071 (West 2014). We stayed the trial court’s

order and requested a response from the real party in interest, Charles M. Kibler Jr.

Kibler contends that Cook failed to establish by a preponderance of the evidence

the probable validity of her claim, as required to avoid his motion to expunge. See

generally id. § 12.0071(c)(2). We must decide whether Cook’s allegations of

breach of contract and breach of implied contract, which Kibler concedes assert

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claims for an interest in real property, will support a lis pendens since Cook

submitted uncontroverted proof of an exception to the statute of frauds. After

reviewing the petition, the response, and the mandamus record, we conditionally

grant Cook’s petition for writ of mandamus.

      Cook sued Kibler, a lawyer, alleging in part that in the course of the lawyer-

client relationship, Cook took possession of and made substantial improvements to

a house owned by Kibler and allowed Kibler to move into a home owned by Cook

in reliance upon Kibler’s representations that he would prepare the documents and

quickly close the transactions. Cook alleged that Kibler committed fraud regarding

both real estate transactions, living rent free on Cook’s property while

misrepresenting to Cook that he would purchase Cook’s house and sell her his

house. Cook requested imposition of a constructive trust and specific performance

of the sale of the house to her at the alleged agreed price, and she filed a lis

pendens in the Hardin County real property records. Kibler moved to expunge the

lis pendens on the ground that the alleged transaction was subject to the affirmative

defense of the statute of frauds. See generally Tex. Bus. & Com. Code Ann. §

26.01(a), (b)(4) (West 2015); see also Tex. R. Civ. P. 94. In response, Cook

produced her affidavit, in which she stated, in part:

      Mr. Kibler owns the Skinner House. In late 2012, he offered to sell it
      to me for an amount equal to his mortgage payoff plus $15,000. He
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      offered to sell [it] to me at this price because he could not afford to
      make the substantial necessary repairs and he wanted to move into
      town. At that time, Mr. Kibler represented that the mortgage payoff on
      the Skinner House was between $150,000 and $160,000.

      I agreed to purchase the Skinner House from Mr. Kibler for $15,000
      plus the mortgage payoff. Mr. Kibler, who also served as my lawyer
      on this transaction, further promised to reduce our agreement to
      writing, prepare the appropriate closing documents, and complete the
      transaction as soon as possible.

In her affidavit, Cook stated that (1) she made repairs to the house, (2) Kibler was

aware that she intended to resell the house for a profit after she purchased the

property, and (3) she relied on Kibler’s promise to reduce their agreement to

writing and close the transaction. Cook’s affidavit also claims that Kibler now

seeks to profit from the extensive repairs Cook made to the property by requiring

her to pay $250,000 for the property, despite her repeated requests and his promise

to prepare the transaction documents.

      The doctrine of promissory estoppel will apply to avoid the application of

the statute of frauds if application of the statute would plainly amount to a fraud

and the promise is to sign a written agreement which itself complies with the

statute of frauds. See “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d

934, 938 (Tex. 1972). The doctrine applies to contracts for the sale of land. See id.

An oral promise to sign an instrument complying with the statute of frauds is

enforceable if: “(1) the promisor should have expected that his promise would lead
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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). A separate equitable doctrine, the constructive trust

exception, also applies to the rule that land titles may not rest in parol. Ginther v.

Taub, 675 S.W.2d 724, 728 (Tex. 1984). The constructive trust exception is based

on a prior confidential relationship and unfair conduct or unjust enrichment. Id.

Cook’s pleadings invoke these exceptions to the statute of frauds. Kibler argues

that equitable estoppel does not apply to the sale or transfer of real property, but

the Texas Supreme Court has held that these doctrines can be applied in disputes

concerning real property. Id.; “Moore” Burger, Inc., 492 S.W.2d at 938.

      Kibler argues that Cook’s affidavit fails to establish the probable validity of

her claim by a preponderance of evidence, as required to overcome a motion to

expunge. See Tex. Prop. Code Ann. § 12.0071(c)(2). Kibler claims that in the

hearing on his motion to expunge, he provided live testimony that there was no

agreement. Kibler stated in open court, as follows:

      Couple items in rebuttal, your Honor. There’s more to this, and I
      won[’]t dispute that we had some negotiations about trying to sell the
      Plaintiff my house. But the terms of those agreements go far beyond
      the scope of just the sale of the house. It required the purchase of
      another house. It required the payment of some other debts that I had.
      There were lots of other pieces and moving parts to this deal. Okay.
      It’s more than just, oh, I’ll give you so much money for your house.
      It’s a much bigger deal than that. And that’s why we don’t have an
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      agreement because we never agreed on all the side issues, okay, most
      of which are in Plaintiff’s petition claiming that I owe for certain
      things. You see what I’m saying.

      “Unsworn factual statements and representations by an attorney can

constitute evidence supporting the trial court’s ruling, where the opponent to the

testimony waives the oath by failing to object ‘in circumstances that clearly

indicated each was tendering evidence on the record based on personal knowledge’

on the contested issues.” In re Estate of Arndt, 187 S.W.3d 84, 87 (Tex. App.—

Beaumont 2005, no pet.) (quoting Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.

2005)). In this case, however, Cook did not allow Kibler to state facts to the court

without objection. Her counsel stated,

      Let me just rebut that one second, your Honor, in terms of facts. We
      have evidence on file, there is an affidavit of Ms. Cook attached
      verifying everything that we have said in our response, a lot of which
      is also in the complaint. He has no evidence. He’s just been arguing as
      a lawyer.

Kibler did not make unsworn factual statements and representations without

objection; to the contrary, Cook brought the fact that Kibler was merely presenting

argument to the attention of the trial court. Kibler could have asked to be sworn as

a witness or to have the trial court accept his statement as an officer of the court as

evidence, but he did not do so. Because Cook’s uncontroverted affidavit

established the probable validity of her claim, the trial court lacked the discretion

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to grant Kibler’s motion to expunge the lis pendens. See Tex. Prop. Code Ann. §

12.0071(c)(2).

       Mandamus is an appropriate remedy when interlocutory issues have arisen

concerning the issuance of notices of lis pendens. In re Collins, 172 S.W.3d 287,

297 (Tex. App.—Fort Worth 2005, orig. proceeding). We are confident that the

trial court will vacate its order of November 1, 2016, which granted Kibler’s

motion to expunge the lis pendens. The writ of mandamus shall issue only if the

trial court fails to do so.

       PETITION CONDITIONALLY GRANTED.



                                                        PER CURIAM


Submitted on November 17, 2016
Opinion Delivered December 29, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.




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