performance doctrine in Texas

2013However, there are certain circumstances under which oral conveyances of real property are removed from the operation of the statute of frauds, and in those circumstances, an oral contract to convey real property is “enforceable in equity notwithstanding the statute.” Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921). 3 Under the doctrine of partial performance, as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser pays consideration, takes possession of the property, and makes permanent and valuable improvements on the prop

2012The partial summary judgment motion and the trial court‘s summary judgment focused on the claims for parol sale of land and adverse possession. ―Under the doctrine of partial performance as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) pays the 6 Other similar references were to ―page/line 24:7, and attached as Exhibit D.‖ If page 24 line 7 only was to be the offer it would read: Q. ―The same thing applies to the Jewell . . .‖ 9 consideration; (2) takes possession of the property; and (3) makes permanent and valuable i

2019In Boyer v. Tauber, 834 S.W.2d 60 (Tex.1992), the Texas Supreme Court set forth the elements of the doctrine of partial performance, opining that an oral contract for the purchase of real property is sufficiently corroborated and enforceable if the purchaser: (1) Pays consideration. (2) Takes possession of the property; and (3) Makes permanent and valuable improvements on the property with the consent of the seller.

2012The partial summary judgment motion and the trial court‘s summary judgment focused on the claims for parol sale of land and adverse possession. ―Under the doctrine of partial performance as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) pays the 6 Other similar references were to ―page/line 24:7, and attached as Exhibit D.‖ If page 24 line 7 only was to be the offer it would read: Q. ―The same thing applies to the Jewell . . .‖ 9 consideration; (2) takes possession of the property; and (3) makes permanent and valuable i

2022“In a substantial performance claim, the contractor must prove three elements to prevail: its substantial performance, the amount unpaid under the contract, and ‘the cost of remedying the defects due to his errors or omissions.’” Id., quoting Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 483 (Tex. 1984). 9 But for much the same reasons already noted, the record does not support Nelson’s claim of substantial performance.

2011In a substantial performance claim, the contractor must prove three elements to prevail: its substantial performance, the amount unpaid under the contract, and “the cost of remedying the defects due to his errors or omissions.” Vance , 677 S.W.2d at 483 ; see also Weitzul Constr., Inc. v. Outdoor Environs , 849 S.W.2d 359, 363 (Tex. App.—Dallas 1993, writ denied).

2006RAJ relies on the precept that, under the equitable doctrine of substantial performance, the recovery on the contract of a contractor who has not perfectly performed "is decreased by the cost of remedying those defects for which he is responsible." Vance , 677 S.W.2d at 482 ; Atkinson , 270 S.W. at 851 .

2006RAJ relies on the precept that, under the equitable doctrine of substantial performance, the recovery on the contract of a contractor who has not perfectly performed “is decreased by the cost of remedying those defects for which he is responsible.” Vance, 677 S.W.2d at 482 ; Atkinson, 270 S.W. at 851 .

2026“Under the partial performance exception to the statute of frauds, contracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would amount to a virtual fraud.” Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied).

2014“Under the partial performance exception to the statute of frauds, contracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would amount to a virtual fraud.” Exxon, 82 S.W.3d at 439 .

2021Co., 701 S.W.2d 37, 41 (Tex. App.— Dallas 1985, no writ) (“We limit our decision to the holding that under [the doctrine of partial performance] a written real-estate-commission agreement that fails to describe the property with precision may be enforced by the broker notwithstanding [RELA’s statute of frauds provision].”); Myer, 1994 WL 83429, at *3 (“When it has been held to apply to brokerage commission cases . . . , the doctrine [of partial performance] has been used to enforce commission agreements that lacked only a precise identification of the property.”).

2009Lathem relies on Carmack v. Beltway Development Co., 701 S.W.2d 37 (Tex.App.-Dallas 1985, no writ), in which this Court applied the partial performance doctrine in a RELA statute of frauds case.

2026The three elements required to satisfy this exception are “(1) payment of the consideration, whether it be in money or services; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor, or without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Elizondo, 957 S.W.2d at 864 ; Burrus, 516 S.W.3d at 181 .

2024See Burrus v. Reyes, 516 S.W.3d 170, 182 (Tex. App.—El Paso 2017, pet. denied); see also Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 158 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The question of whether an exception to the statute of frauds applies is generally a question of fact.”).

2010Under the partial performance exception to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) “pays the consideration”; (2) “takes possession of the property”; and (3) “makes permanent and valuable improvements on the property with the consent of the seller, or without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced.” Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (citing Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114, 1116 (1921)); see Picket

2010Under the partial performance exception to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) "pays the consideration"; (2) "takes possession of the property"; and (3) "makes permanent and valuable improvements on the property with the consent of the seller, or without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced." Boyert v. Tauber , 834 S.W.2d 60, 63 (Tex. 1992) (citing Hooks v. Bridgewater , 111 Tex. 122 , 229 S.W. 1114, 1116 (1921)); see Pick

2015“In light of these considerations and the deference we must afford strategic decisions made by trial counsel,” appellant has not demonstrated that the trial court abused its discretion in finding that counsel’s decisions in this regard did not fall “below an objective standard of reasonableness.” Melancon v. State, 66 S.W.3d 375, 381 (Tex.App.—Houston [14th Dist.] 2001, pet. ref'd); see also Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App.2010) (“For this performance inquiry we consider all of the circumstances, with ‘a strong presumption that counsel’s conduct [fell] within the wide range o

2014For this performance inquiry we consider all of the circumstances, with “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89 ; Perez, 310 S.W.3d at 893 .

2016Id. at 769 .

1999As far as the HGN test is concerned, Emerson holds only that an officer who “has received a practitioner certificate by the State of Texas to administer the HGN test” qualifies as an expert on the administration and technique of the test and may testify concerning a defendant’s performance on the test, “but may not correlate the defendant’s performance on the HGN test to a precise BAC.” Id. at 768-69 .

2025Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921); Cowden v. Bell, 300 S.W.2d 286 , 289–90 (Tex. 1957)).

2007Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc. , 48 S.W.3d 865, 882-83 (Tex. App.--Houston [14th Dist.] 2001, pet. denied); In re Marriage of Parker , 997 S.W.2d 833, 837 (Tex. App.--Texarkana 1999, pet. denied) (citing Boyert v. Tauber , 834 S.W.2d 60, 63 (Tex. 1992), citing Cowden v. Bell , 157 Tex. 44 , 300 S.W.2d 286, 289-90 (1957); Hooks v. Bridgewater , 111 Tex. 122 , 229 S.W. 1114, 1116 (1921)).

2015See Schultz, 457 S.W.3d at 103-05 (considering whether moving location of breath alcohol testing van required re-inspection of equipment in van before use).

2015See Schultz, 457 S.W.3d at 103–05 (considering whether moving location of breath alcohol testing van required re-inspection of equipment in van before use).

2006RAJ cites also the holding in Vance that "when a contractor seeks recovery on a substantial performance theory he has the burden to prove the reasonable cost of remedying the defects." 677 S.W.2d at 482 ; see also BPR Constr. & Engineering, Inc. v. Rivers , 608 S.W.2d 248, 250 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.).

2006RAJ cites also the holding in Vance that “when a contractor seeks recovery on a substantial performance theory he has the burden to prove the reasonable cost of remedying the defects.” 677 S.W.2d at 482 ; see also BPR Constr. & Engineering, Inc. v. Rivers , 608 S.W.2d 248, 250 (Tex.Civ.App.–Dallas 1980, writ ref’d n.r.e.).

2016The Strickland test has two prongs: (1) a performance standard and (2) a prejudice standard. 466 U.S. at 687 .

2015App. 2010) (“For this performance inquiry we consider all of the circumstances, with ‘a strong presumption that counsel’s conduct [fell] within the wide range of reasonable 34 professional assistance.’” (quoting Strickland, 466 U.S. at 688‒89, 104 S. Ct. at 2065 )). 2.

2022Holdings, L.P. v. Westergren, 453 S.W.3d 419, 426 (Tex. 2015) (per curiam).

2021“A party cannot rely upon oral representations to satisfy the partial performance exception.” Westergren, 453 S.W.3d at 427 .

2026The three elements required to satisfy this exception are “(1) payment of the consideration, whether it be in money or services; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor, or without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Elizondo, 957 S.W.2d at 864 ; Burrus, 516 S.W.3d at 181 .

2016The oral sale of real estate is not enforceable under the statute of frauds unless the partial performance exception is met .See Jenkins, 2007 WL 2682110 , at *4; Elizondo, 957 S.W.2d at 864 .

2021As a general rule, “a party to a contract who is himself in default cannot maintain a suit for its breach.” Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (per curiam).

2006Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex.1990); Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 481 (Tex.1984); Atkinson v. Jackson Bros., 270 S.W. 848, 850 (Tex. Comm’n App.1925, holding approved).

2016See Vance v. My Apartment Steak House, Inc., 677 S.W.2d 480 , 482 (Tex. 1984) ; Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160 , 164 (Tex. 1982) ; RAJ Partners, Ltd. v. Darco Constr.

2011See Vance v. My Apartment Steak House, Inc. , 677 S.W.2d 480, 482 (Tex. 1984); Turner, Collie & Braden, Inc. v. Brookhollow, Inc. , 642 S.W.2d 160, 164 (Tex. 1982); RAJ Partners, Ltd. v. Darco Constr.

2015See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713 (2011).

2012Our answer is in line with controlling precedent: As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. 131 S.Ct. at 2713 (internal citations omitted).

2025See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Healey v. Romero, No. 05-16-00598-CV, 2018 WL 2126903 , at *1 (Tex. App.—Dallas May 7, 2018, no pet.) (mem. op.) (discussing standard of review in the context of the partial performance exception).

2021See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Healey v. Romero, No. 05–16–00598–CV, 2018 WL 2126903 , at *1 (Tex. App.—Dallas May 7, 2018, no pet.) (mem. op.) (discussing standard of review in the context of the partial performance exception).

2024See Burrus v. Reyes, 516 S.W.3d 170, 182 (Tex. App.—El Paso 2017, pet. denied); see also Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 158 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The question of whether an exception to the statute of frauds applies is generally a question of fact.”).

2023Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 160 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

2021This is significant because, although Gober relied on the deed conveying 0- Gilmer to establish partial performance, “[a]ctions relied on to establish the partial performance exception to the statute of frauds 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 on by the plaintiff.” Bookout v. Bookout, 165 S.W.3d 904 , 907–08 (Tex. App.—Texarkana 2005, no pet.).

2016“Actions relied on to establish the partial performance exception to the statute of frauds 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 on by the plaintiff.” Bookout, 165 S.W.3d at 907-08 .

2006Better Cmty. Developers, Inc., 38 Md.App. 119 , 380 A.2d 627, 637-38 (1977) (concluding that the doctrine of substantial performance ordinarily applies to constructive conditions precedent and not to express conditions). 5 .

2006Better Cmty. Developers, Inc., 38 Md.App. 119 , 380 A.2d 627, 637-38 (1977) (concluding that the doctrine of substantial performance ordinarily applies to constructive conditions precedent and not to express conditions). 5 .

2023Accordingly, although the remainder of the notice facially complies with the contract, the notice did not increase Eagle Cairo’s delivery fee because 10% of zero is zero. 14 be used as a defense to a breach of contract claim.” Id. at 278-79 .

2005Smith v. Smith, 112 S.W.3d 275, 278-79 (Tex.App.-Corpus Christi 2003, pet. denied) (citing Vance v. My Apartment Steak House, Inc., 677 S.W.2d 480, 482-83 (Tex.1984)).

2016We thus construe both Finding of Fact No. 17 and Conclusion of Law No. 51— determining that the partial performance exception applied—as findings of fact, see Stovall, 409 S.W.3d at 798 , and apply a legal sufficiency standard of review, see Hightower, Russo, & Capellan v. Ireson, Weizel & Hightower, P.C., 420 S.W.3d 315 , 319–20 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (construing as findings of fact writing issued by trial court entitled “Findings of Fact and Conclusions of Law” that did not separate findings and conclusions and that related to factual bases for trial court’s ruling).5

2015Ctr., Ltd., 409 S.W.3d 790 , 798 9 (Tex. App.—Dallas 2013, no pet.); Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 775 (Tex. App.—Corpus Christi 2001, no pet.).1 As Appellant Austin Capital Collision acknowledges on page 13 of its brief discussing the standard of review, it is challenging the legal sufficiency of the court’s factual finding that the partial performance exception applies.

2024See Dynegy, 422 S.W.3d at 642 ; Wood, 650 S.W.3d at 554. 64 We hold that the statute of frauds renders any oral agreement between Marrick and Iomnis and its members unenforceable.

2023Thus, because Owens did not plead the partial performance exception, nor was it tried by consent, she has waived her argument relating to the exception.13 See Dynegy, Inc., 422 S.W.3d at 641 ; Wood, 650 S.W.3d at 553; Parks, 2004 WL 1351545 , at *5. 13 We also note that Owens failed to secure findings relating to the partial performance exception.