      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00593-CV



      Appellant, Danny Davis // Cross-Appellant, Sysco Food Services of Austin, L.P.

                                                v.

       Appellee, Sysco Food Services of Austin, L.P. // Cross-Appellee, Danny Davis




                    FROM TRAVIS COUNTY COURT AT LAW NO. 1
        NO. C-1-CV-03-271634, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                              DISSENTING OPINION


               Because I would hold that the partial-performance exception to the statute of frauds

does not apply to this case, and therefore that Davis’s alleged oral agreement to assume the

Dam View equipment debt is unenforceable, I respectfully dissent.

               The partial-performance exception applies only when “failure to enforce the

contract would result in a ‘virtual fraud.’” Hill v. Heritage Res., Inc., 964 S.W.2d 89, 135

(Tex. App.—El Paso 1997, pet. denied). To qualify for the partial-performance exception, the acts

of performance by the party seeking to enforce the agreement “must be unequivocally referable to

the agreement and corroborative of the fact that a contract actually was made.” Wiley v. Bertelsen,

770 S.W.2d 878, 882 (Tex. App.—Texarkana 1989, no writ). Furthermore, the acts of performance

“must be such as could have been done with no other design than to fulfill the particular agreement

sought to be enforced; otherwise, they do not tend to prove the existence of the parol agreement
relied upon by the plaintiff.”     Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439-440

(Tex. App.—Dallas 2002, no pet.).

               Here, Sysco’s actions in declining to repossess the Dam View equipment are not

unequivocally referable to the agreement Sysco is seeking to enforce. Rather, they are equally

referable to the agreement alleged by Davis—an agreement that he would pay $1,000 per month

simply to prevent repossession of the equipment, as opposed to an agreement to assume the entire

amount of the debt.1 Therefore, Sysco’s actions are not such that they “could have been done with

no other design than to fulfill” an agreement with Davis that he would assume the entire amount

of the debt and, as a result, do not tend to prove the existence of such an agreement. Exxon,

82 S.W.3d at 439-440; see also Wiley, 770 S.W.2d at 882 (“What is done must itself supply the key

to what is promised.”).

               Similarly, Sysco’s actions are not unequivocally referable to an agreement that Davis

would purchase the equipment, as they can be fully explained in the context of an agreement with

Davis to simply postpone repossession of the equipment. See Wiley, 770 S.W.2d at 882 (holding that

rendition of services in return for monthly salary does not qualify as partial performance of ten-year

employment agreement “because the services were fully explained by the salary without supposing

any additional consideration”).




       1
         Sysco representative Jeff Maurer testified that during his conversation with Davis regarding
the equipment, Davis agreed to “be responsible for that equipment to not have it taken away.”
(Emphasis added.) Maurer further testified that he did not recall ever speaking with Davis again
about the equipment after that conversation.

                                                  2
               Based on the foregoing, I would hold that the partial-performance exception to the

statute of frauds is inapplicable and that the agreement is unenforceable. See Tex. Bus. & Com.

Code Ann. § 26.01 (West 2009). I would reverse that portion of the trial court’s judgment

awarding Sysco the amount of the Dam View equipment debt, and would remand the award of

attorney’s fees for a redetermination of the appropriate fee amount in light of that holding.




                                              ___________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Filed: December 4, 2009




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