Cobb v. West Texas Microwave Co., 14423

• Citation: 700 S.W.2d 615
• Decision Date: 09 October 1985
• Docket Number: No. 14423,14423
• Parties: James H. COBB, Appellant, v. WEST TEXAS MICROWAVE COMPANY, et al., Appellees.
• Court: Court of Appeals of Texas

Page 615

700 S.W.2d 615

James H. COBB, Appellant, v. WEST TEXAS MICROWAVE COMPANY, et al., Appellees.

No. 14423.

Court of Appeals of Texas,

Austin.

Oct. 9, 1985.

Rehearing Denied Dec. 18, 1985.

Don W. Griffis, Griffis, Griffis, Whiteside & Woodward, San Angelo, for appellant.

Thomas W. George, George & George, Austin, for West Texas Microwave Co.

Roy B. Longacre, Wagstaff, Alvis, Stubbeman, Seamster & Longacre, Abilene, for Western Union Telegraph Co.

Before SHANNON, C.J., and GAMMAGE and CARROLL, JJ.

SHANNON, Chief Justice.

Appellant James H. Cobb sued appellees West Texas Microwave Company and Western Union Telegraph Company in the district court of Tom Green County for breach of an oral lease agreement. The district court rendered summary judgment that Cobb take nothing. This Court will reverse the judgment.

Cobb claimed that in August 1983, appellees orally agreed to lease a floor of the Twohig Building in San Angelo. The lease was for a term of years. Cobb asserted that he renovated the office space for appellees' use at a cost of $312,237.00. Appellees finally chose to locate quarters in the Cactus Hotel rather than in the Twohig Building.

Appellees filed motions for summary judgment predicated upon the Statute of Frauds, contending that if there were a lease agreement, it was oral and unenforceable. Cobb asserted the plea of promissory estoppel in an effort to avoid the Statute of Frauds. The district court rendered summary judgment that Cobb take nothing.

Cobb claims that the district court erred in rendering summary judgment because there is a genuine issue of material fact regarding whether the doctrine of promissory estoppel removes the contract from the Statute of Frauds. This Court agrees.

Appellees' summary judgment proof establishes, as a matter of law, that Cobb's suit is barred by the Statute of Frauds. This is so since the agreement was oral and was one to lease real estate for a number of years. Accordingly, the burden was on Cobb, if he wished to avoid summary judgment, to come forward with summary judgment proof raising a fact issue concerning his promissory estoppel defense to the Statute of Frauds. "Moore" Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1973); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974).

The doctrine of promissory estoppel in suits involving realty has been recognized and enforced in this state. An oral promise to sign an instrument complying with the Statute of Frauds will be enforced provided the promisor should have expected that his promise would lead the promisee to some definite and substantial injury, provided such an injury occurred, and provided the promise must be enforced to avoid injustice. Nagle v. Nagle, 633 S.W.2d 796 (Tex.1982); "Moore" Burger, Inc. v. Phillips Petroleum Company, supra.

The parties join issue on the element of promissory estoppel that requires a promise to sign an instrument complying with the Statute of Frauds. Cobb insists that he produced some summary judgment proof of appellees' promise to sign such an instrument. Appellees urge the contrary.

Viewing the summary judgment "evidence" in the light most favorable to the party opposing the motion, Valley Stockyards v. Kinsel, 369 S.W.2d 19 (Tex.1963), this Court concludes that Cobb adduced some summary judgment proof raising a fact issue that appellees...