John B. Stevenson v. Shelton Coleman and Diamond X Properties, LLC

Austin, Texas – Real Estate lawyer represented Appellant appealing the dismissal his claims.

We review a trial court's ruling on a Rule 91a motion de novo because the availability of a

remedy under the facts alleged is a legal question. Id. (citing City of Dallas v. Sanchez,

494 S.W.3d 722, 724 (Tex. 2016) (per curiam)). In conducting our review, we construe the

pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the

factual allegations in the pleadings. McDill v. McDill, No. 03-19-00162-CV, 2020 WL 4726634,

at *7 (Tex. App.—Austin July 30, 2020, pet. denied) (mem. op.) (citing Koenig v. Blaylock,

497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied)).



Appellees moved for dismissal based on the affirmative defense of the statute of

frauds, among other grounds. See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C.,

595 S.W.3d 651, 656 (Tex. 2020) ("Rule 91a permits motions to dismiss based on affirmative

defenses[.]”). Under the statute of frauds, "a contract for the sale of real estate” is unenforceable

unless it is in writing and "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).

Stevenson does not dispute that the oral agreement is subject to the statute of frauds. However,

he argues that it is not a bar to his claim because promissory estoppel "is a generally recognized

exception to the statute of frauds.”



We disagree. Promissory estoppel "sufficient to remove a contract from the

statute of frauds requires that the promisor agreed to sign a document that already had been

prepared, or upon whose wording the parties already had agreed, that would satisfy the statute of

frauds.” Fuller v. Wholesale Elec. Supply Co. of Hous., Inc., 631 S.W.3d 177, 187 (Tex. App.—

Houston [14th Dist.] 2020, pet. denied). Stevenson has not alleged that Coleman agreed to sign

an existing contract reconveying the land or that they agreed upon the wording of one. Instead,

Stevenson alleged that Coleman promised to "work with” him to recover whatever land

remained for a "reasonable” amount. Stevenson essentially alleges that Coleman promised to

sign a contract that had not yet been drafted. We conclude that promissory estoppel does not

remove the alleged agreement from the statute of frauds. See Carpenter v. Phelps, 391 S.W.3d 143,

149–50 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding promissory estoppel did not bar

application of statute of frauds where parties agreed to sign lease contract but did not agree upon

its language); see also Hairston v. Southern Methodist Univ., 441 S.W.3d 327, 335–36 (Tex.

App.—Dallas 2013, pet. denied) (holding that coach's general promise to sign scholarship

contract at latter date failed to satisfy estoppel exception to statute of frauds).



To the extent Stevenson's claim is for fraudulent inducement, the statute of frauds

bars this recovery because he seeks to recover the benefits of an oral agreement. The supreme

court has held that "the statute of frauds bars a fraud claim to the extent the plaintiff seeks to

recover as damages the benefit of a bargain that cannot otherwise be enforced because it fails to

comply with the statute of frauds.”2 Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 734

(Tex. 2018) (citing Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001)). Stevenson asks the

district court to enter judgment awarding him "damages in the amount of $500,000” or, in the

alternative, compelling Coleman to reconvey the twenty-seven acres in return for "fair and just”

compensation to be determined by the court. He does not explicitly state what the $500,000 in 5

honor the alleged promise to reconvey the twenty-seven acres. Construed in that light, he is

essentially seeking the benefit of the oral agreement through money damages or specific

performance. See generally Tamuno Ifiesimama v. Haile, 522 S.W.3d 675, 685 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (explaining that specific performance is "an equitable

remedy” for breach of contract "that is used as a substitute for monetary damages when such

damages would not be adequate”). Because Stevenson cannot use a fraud claim to enforce a

promise that the statute of frauds renders unenforceable, the district court did not err by

dismissing his claim for fraudulent inducement. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632,

637 (Tex. 2007) (per curiam) ("Because these benefit-of-the-bargain damages are the same

damages Sonnichsen sought to recover under an unenforceable contract, his fraud claim fails.”);

Haase, 62 S.W.3d at 799.



We conclude that the pleadings establish as a matter of law that the statute of

frauds precludes Stevenson's claims, and we overrule his three issues.

We affirm the district court’s judgment dismissing Stevenson’s claims.