Weakly v. East

• Decision Date: 02 March 1995
• Docket Number: No. 13-94-053-CV,13-94-053-CV
• Citation: 900 S.W.2d 755
• Parties: Peter S. WEAKLY and Linda Jane Weakly, Appellants, v. Robert EAST and Jeannette Holloway, Appellees.
• Court: Texas Court of Appeals

Page 755

900 S.W.2d 755

Peter S. WEAKLY and Linda Jane Weakly, Appellants, v. Robert EAST and Jeannette Holloway, Appellees.

No. 13-94-053-CV.

Court of Appeals of Texas Corpus Christi.

March 2, 1995.

Rehearing Overruled May 25, 1995.

William Robert Anderson, III, Sorrell, Anderson & Lehrman, Corpus Christi, Ward H. Thomas, Jr., Sorrell, Anderson, Lehrman & Wanner, Corpus Christi, for appellants.

Russell H. McMains, Corpus Christi, J. G. Adami, Jr., Robert J. McGuire, Warburton, Adami, McNeill, Paisley & McGuire, Alice, for appellees.

Before DORSEY, YANEZ, and RODRIGUEZ, JJ.

OPINION

DORSEY, Justice.

Peter and Jane Weakly appeal the granting of summary judgment in favor of Robert East and Jeanette Holloway in the Weaklys' suit alleging various torts arising out of a failed land sale. We affirm.

Background Facts

The Weaklys owned a ranch in Kleberg and Kennedy counties in 1989. At that time the Weaklys were deeply in debt, owing between $6.3 and $7.2 million to various creditors. Their ranch was to be posted for foreclosure the first Tuesday in April 1989 by the Federal Land Bank which held a mortgage in excess of $2 million. The Weaklys had obtained a postponement of an earlier foreclosure because of their negotiations with Lee Bass to buy the properties. Bass had requested the delay to allow the parties to complete their negotiations. He wrote a letter to the Federal Land Bank indicating that they were negotiating for the property to be purchased at a price between $5 and $6.3 million depending on the quantity of property, cattle, equipment, and the mineral interests to be conveyed.

On March 15, 1989, the Weaklys met East for the first time. East and his accountant, Holloway, came to the ranch at Jane Weakly's sister's invitation. The Weaklys contend that as a result of a several hour meeting that day, East agreed to buy their property for $6.3 million. East denies that there was an agreement on that date but that he was interested in the property and began making inquiries, through his accountant and attorney to determine whether to buy the property. At the end of the meeting, the Weaklys were to gather various title and lien documents and provide that information to Holloway. Paul Pearson, East's attorney, was to begin the title work. All were aware that the property was scheduled for foreclosure the first week of April, two weeks away. During those two weeks, Holloway met with the Weaklys several times. The final meeting occurred the afternoon of Friday March 31, 1989. East made an offer at that time and Pearson suggested that the best way to handle the sale was through bankruptcy proceedings to be filed by the Weaklys. East and his advisors were concerned that title could not be cleared other than through bankruptcy proceedings due to the number and complexity of the indebtedness involving the ranch, the mineral interests, the equipment, and the cattle. The Weaklys rejected East's offer. The following Monday they filed bankruptcy.

Appellants sued East and Holloway alleging breach of oral contract, fraud, civil conspiracy, tortious interference with business relations, and negligent misrepresentation. Appellees obtained summary judgment on all claims and this appeal resulted. By seventeen points of error, appellants claim that summary judgment should not have been granted.

Summary Judgment

The summary judgment was granted generally; if it can be upheld on any ground asserted in the motion, it will be sustained. Benavides v. Moore, 848 S.W.2d 190, 192 (Tex.App.--Corpus Christi 1992, writ denied). Summary judgment for the defendant, which disposes of a plaintiff's entire case, is proper only if the defendant establishes that the plaintiff could not succeed on any of the theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

In a summary judgment proceeding, the burden is on the movant to establish that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Evidence favorable to the non-movant will be taken as true; every reasonable inference from the summary judgment evidence will be indulged in favor of the non-movant and any doubts resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Appellees moved for summary judgment on several grounds, among which were the statute of frauds and whether the torts alleged are only a breach of contract action in disguise. First we address the statute of frauds issue.

Statute of Frauds

A contract for the sale of real estate is not enforceable unless it is in writing and signed by the party charged with the promise or agreement. TEX.BUS. & COM.CODE ANN. § 26.01 (Vernon 1987); Rittgers v. Rittgers, 802 S.W.2d 109, 113 (Tex.App.--Corpus Christi 1990, writ denied). Even if East made an oral contract to buy the Weakly property, that promise could not be enforced nor could the Weaklys recover damages for breach of that unenforceable agreement. Nagle v. Nagle, 633 S.W.2d 796, 799 (Tex.1982); Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921); Keriotis v. Lombardo Rental Trust, 607 S.W.2d 44, 46 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.).

A. Fraud

The Weaklys acknowledge that no writing memorializing the purported agreement exists and have abandoned their claims for breach of contract. They now contend that they are not seeking to enforce East's agreement to buy their property but instead are seeking damages resulting from his fraud on them which caused them to abandon other negotiations and resulted in their bankruptcy.

Appellants allege that East never intended to consummate the sale at the $6.3 million agreement, but instead intended to cause them to rely on that agreement until just before the foreclosure sale and then either attempt to buy the property at a significantly lower price, buy the property from the bankruptcy court, or at foreclosure. Under appellants' fraud theory, they seek damages for the difference between what they received for the property sold by the bankruptcy court and what they would have received had they struck a deal with another buyer such as East or Bass.

Appellants do not contend that East or Holloway fraudulently represented that no written agreement was necessary or that East refused to sign a written agreement. The statute of frauds bars fraud claims arising out of the unenforceable oral promise unless the fraud prevents the necessary writing. Nagle, 633 S.W.2d at 800; Keriotis, 607 S.W.2d at 46. That is not the case here.

Appellants claim fraud because East allegedly promised to purchase the ranch knowing at the time the promise was made that he was not going to fulfill it. Nevertheless, the essence of appellants' fraud claim is the oral promise to purchase realty. As such, the statute of frauds bars its enforcement. Summary judgment was proper on these claims.

B. Civil Conspiracy

Appellants allege that there was a civil conspiracy between East and Holloway to deprive them of full value for their property. A civil conspiracy requires two or more persons who agree upon an object, a meeting of minds on the object to be accomplished, and one or more overt, unlawful acts...