Roark v. Stallworth Oil and Gas, Inc.
Decision Date | 19 June 1991 |
Docket Number | No. D-0333,D-0333 |
Citation | 813 S.W.2d 492 |
Court | Texas Supreme Court |
Parties | Gordon L. ROARK, Jr., Petitioner, v. STALLWORTH OIL AND GAS, INC., Melissa Swinton Melville, Administrator with Will Annexed of Robert B. Stallworth, Jr. and Fossil Fuels, Inc., Respondents. |
Gordon Roark brought this action for specific performance of an alleged contract among Robert B. Stallworth, Jr., 1 Stallworth Oil & Gas, Inc. (Respondents), and himself. The trial court rendered summary judgment for Respondents on the ground that they had conclusively established that there was no consideration for the alleged contract. The court of appeals affirmed the trial court's judgment. 811 S.W.2d 630. We reverse the judgment of the court of appeals and remand this cause to the trial court for a trial on the merits.
The alleged contract consists of a letter agreement written on Stallworth Oil & Gas, Inc. stationery dated May 14, 1979. It provides:
It is my intention that for and in consideration of your originating my interest in, and subsequent activity in, the Bird-Baker Prospect (Reference "A" attached), Parker County, Texas, for the exploration and production of oil, gas, and other minerals, I hereby grant unto you, your heirs and assigns, administrators and/or executors, an undivided five per cent (5%) interest in whatever interest I acquire out of production or any other activity in the Bird-Baker Prospect and within a twenty (20) mile radius of the Bird-Baker Prospect (Reference "A" attached).
I also agree to compensate you at the rate of One Hundred Fifty and No/100 Dollars ($150.00) per day, plus expenses incurred, for any day work you perform for me.
The letter is signed by both Robert Stallworth and Roark. Attachment "A" to the letter is a map of Parker County, shaded to indicate tracts of land belonging to E.L. Baker, Ben Bird, H.W. Kuteman, and Hendrick. Before and after the execution of this letter, Roark performed landman services on an at-will basis for Stallworth Oil & Gas, Inc. Roark claims that, although he originated Respondents' interest in the oil and gas leases indicated in the letter agreement, they have refused to convey to him the five percent interest to which the parties agreed.
The trial court granted Respondents' motion for summary judgment on the basis that the affirmative defense of no consideration bars Roark's cause of action. The limited summary judgment evidence offered to establish that Roark gave no consideration for Respondents' promise of the five percent interest consisted of the letter agreement itself and five deemed admissions. The trial court determined the following matters to have been admitted by Roark because of a failure to answer timely Respondents' request for admissions:
1. Prior to May 14, 1979, Roark's agreement with Stallworth was that, in consideration for Roark's services as a landman, Stallworth agreed to pay Roark $150.00 per day plus expenses.
2. Any and all consideration which Roark has received from Stallworth or Roark thinks he is entitled to receive from Stallworth under the May 14, 1979 Agreement was and is gratuitous.
3. During the time that Roark worked for Stallworth, the type of work which Roark performed for Stallworth, and the hours worked for Stallworth were substantially the same before and after May 14, 1979.
4. Roark did nothing different from or in addition to his pre-May 14, 1979 responsibilities as Stallworth's landman to earn any additional consideration after May 14, 1979, than he had earned prior to May 14, 1979.
5. Roark was not induced by Stallworth to perform any additional work after May 14, 1979 for Stallworth in reliance on any consideration received from Stallworth or to be received from Stallworth because of the May 14, 1979 Agreement.
Respondents assert that these deemed admissions conclusively negate the existence of consideration necessary to support the letter agreement.
Roark's written response to Respondents' motion denied that the deemed admissions conclusively established a lack of consideration. Although Respondents had not pleaded the affirmative defense of no consideration as required by Texas Rule of Civil Procedure 94, Roark did not raise any objections on this ground.
After considering Respondents' motion, Roark's response, and argument of counsel, the trial court rendered summary judgment for Respondents. Roark then filed a motion for new trial, wherein he asserted for the first time that Respondents failed to plead the affirmative defense of no consideration. The trial court overruled Roark's motion.
The court of appeals affirmed the trial court's judgment, holding that Roark waived any complaint attacking the lack of proper pleading because he failed to raise the issue in his written response to Respondents' motion for summary judgment. We will first address whether, under these facts, the failure to plead an affirmative defense necessitates reversal of the court of appeals' judgment, and if not, whether Respondents have discharged their burden to conclusively prove that there was no consideration for the agreement.
A party relying on an affirmative defense must specifically plead the defense and, when the defense is based on a claim enumerated in rule 93, must verify the pleading by affidavit. Tex.R.Civ.P. 93, 94. A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for a summary judgment. See, e.g., Nichols v. Smith, 507 S.W.2d 518 (Tex.1974) ( ). We hold today that an unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition of judgment. 2
Under rule 166a(c) of our Rules of Civil Procedure, issues that are not expressly presented to the trial court by written motion, answer or response will not serve as grounds for reversal of a summary judgment on appeal. The failure to plead an affirmative defense under rule 94 is an issue that must be raised in the trial court, or it may not be urged on appeal. Cf. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979) ( ).
Moreover, under our rules, unpleaded claims or defenses that are tried by express or implied consent of the parties are treated as if they had been raised by the pleadings. See, e.g., Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1944); Watts v. St. Mary's Hall, Inc., 662 S.W.2d 55, 58 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.); Tex.R.Civ.P. 67, 90, 274. The party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal. See Harrington v. Aetna Casualty & Sur. Co., 489 S.W.2d 171, 178 (Tex.Civ.App.--Waco 1972, writ ref'd n.r.e.); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818, 822 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.); Tex.R.Civ.P. 67, 90, 274. There is no valid reason why these rules should not apply to issues raised in the motion for summary judgment. If the non-movant does not object to a variance between the motion for summary judgment and the movant's pleadings, it would advance no compelling interest of the parties or of our legal system to reverse a summary judgment simply because of a pleading defect.
In this case, Respondents moved for summary judgment based on the affirmative defense of no consideration. Although Respondents did not plead the affirmative defense upon which their motion for summary judgment relies, they did expressly rely on this affirmative defense in their motion for summary judgment. Because Roark failed to direct the trial court's attention to the absence of the pleading in his written response or before the court rendered judgment, this complaint may not be raised on appeal.
Respondents, however, must still demonstrate that they conclusively proved all essential elements of their affirmative defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). In reviewing Respondents' summary judgment proof, every reasonable inference must be indulged in favor of Roark, the non-movant, and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). To be entitled to summary judgment based on the affirmative defense of no consideration, Respondents had the burden of conclusively negating at least one of the elements of consideration as a matter of law.
Consideration is a present exchange bargained for in return for a promise. Connell v. Provident Life & Accident Ins. Co., 148 Tex. 311, 314-15, 224 S.W.2d 194, 196 (1949). It consists of either a benefit to the promisor or a detriment to the promisee. See, e.g., Tripp Village Joint Venture v. MBank Lincoln Centre, 774 S.W.2d 746, 749 (Tex.App.--Dallas 1989, writ denied). The detriment must induce the making of the promise, and the promise must induce the incurring of the detriment. See Broadnax v. Ledbetter, 100 Tex. 375, 378, 99 S.W. 1111, 1112 (1907).
Respondents assert that their summary judgment proof conclusively establishes that the agreement in issue was not supported by consideration for two reasons. First, they contend that deemed admission number two establishes that Respondents' promise to Roark in the letter agreement was a mere promise of a gift, which is diametrically opposed to the theory of consideration. Respondents assert...
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