partial-performance exception in Texas

2013“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 v. Bookout, 165 S.W.3d 904, 907-08 (Tex.App.-Texarkana 2005, no pet.) (citing Exxon, 82 S.W.3d at 439 ).

2013“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 v. Bookout, 165 S.W.3d 904 , 907– 08 (Tex. App.—Texarkana 2005, no pet.) (citing Exxon, 82 S.W.3d at 439 ).

2009To qualify for the partial-performance exception, the acts of performance by the party seeking to enforce the agreement "must be unequivocally referable to the agreement and corroborative of the fact that a contract actually was made." Wiley v. Bertelsen , 770 S.W.2d 878, 882 (Tex. App.--Texarkana 1989, no writ).

2009To qualify for the partial-performance exception, the acts of performance by the party seeking to enforce the agreement “must be unequivocally referable to the agreement and corroborative of the fact that a contract actually was made.” Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App.—Texarkana 1989, no writ).

2021Gober, 567 S.W.3d at 425 (citing Gnerer v. Johnson, 227 S.W.3d 385, 391 (Tex. App.— Texarkana 2007, no pet.) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921); Hammonds v. Calhoun Distrib.

2021There must be “the surrender of possession,” in addition to the other elements of the partial- performance exception to “create[] an estoppel against [the promisor].” Hooks, 229 S.W. at 1117 .

2009The partial-performance exception applies only when "failure to enforce the contract would result in a 'virtual fraud.'" Hill v. Heritage Res., Inc. , 964 S.W.2d 89, 135 (Tex. App.--El Paso 1997, pet. denied).

2009The partial-performance exception applies only when “failure to enforce the contract would result in a ‘virtual fraud.’” Hill v. Heritage Res., Inc., 964 S.W.2d 89, 135 (Tex. App.—El Paso 1997, pet. denied).

2009See Avila v. González , 974 S.W.2d 237, 246 (Tex. App.--San Antonio 1998, pet. denied).

2009See Avila v. González, 974 S.W.2d 237, 246 (Tex. App.—San Antonio 1998, 2 Sysco also sued to recover the amount owed by El Dorado for groceries, produce, and equipment purchased by El Dorado after it commenced operations.

2021Gober, 567 S.W.3d at 425 (citing Gnerer v. Johnson, 227 S.W.3d 385, 391 (Tex. App.— Texarkana 2007, no pet.) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921); Hammonds v. Calhoun Distrib.

2021See Natividad, 875 S.W.2d at 699 .8 7 Also, Gober’s brief does not explain how failure to enforce the oral agreements would effectuate a fraud on her. 8 Because the record shows that Gober had ample opportunity to amend her petition to allege sufficient facts related to the partial-performance exception, we overrule her due process argument suggesting that she should be given yet another chance to amend her petition. 10 (2) Gober Failed to Adequately Brief Her Second Point of Error In her second point of error, Gober argues that the trial court erred in striking her causes of action.

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See, e.g., Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114, 1116 (1921) (describing three indispensable elements "to relieve a parol sale of land from the operation of the statute of frauds”); Tijerina v. Gomez, No. 04-13-00785-CV, 2014 WL 7339362 , at *3 (Tex. App.-San Antonio Dec. 23, 2014, no pet,) (mem. op.); Lovett v. Lovett, 283 S.W.3d 391, 393-94 (Tex. App.-Waco 2008, pet. denied) (op. on reh’g); Chambers v. Pruitt, 241 S.W.3d 679, 687 (Tex. App.-Dallas 2007, no pet,); Watson v. Druid Hills Co., 355 S.W.2d 65, 69 (Tex. Civ.

2017Id. (citing Cowden v. Bell, 157 Tex. 44 , 300 S.W.2d 286, 290 (1957)).

2017Id. (citing Cowden v. Bell, 157 Tex. 44 , 300 S.W.2d 286, 290 (1957)).

2017See, e.g., Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114, 1116 (1921) (describing three indispensable elements "to relieve a parol sale of land from the operation of the statute of frauds”); Tijerina v. Gomez, No. 04-13-00785-CV, 2014 WL 7339362 , at *3 (Tex. App.-San Antonio Dec. 23, 2014, no pet,) (mem. op.); Lovett v. Lovett, 283 S.W.3d 391, 393-94 (Tex. App.-Waco 2008, pet. denied) (op. on reh’g); Chambers v. Pruitt, 241 S.W.3d 679, 687 (Tex. App.-Dallas 2007, no pet,); Watson v. Druid Hills Co., 355 S.W.2d 65, 69 (Tex. Civ.

2017See, e.g., Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114, 1116 (1921) (describing three indispensable elements "to relieve a parol sale of land from the operation of the statute of frauds”); Tijerina v. Gomez, No. 04-13-00785-CV, 2014 WL 7339362 , at *3 (Tex. App.-San Antonio Dec. 23, 2014, no pet,) (mem. op.); Lovett v. Lovett, 283 S.W.3d 391, 393-94 (Tex. App.-Waco 2008, pet. denied) (op. on reh’g); Chambers v. Pruitt, 241 S.W.3d 679, 687 (Tex. App.-Dallas 2007, no pet,); Watson v. Druid Hills Co., 355 S.W.2d 65, 69 (Tex. Civ.

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See, e.g., Zaragoza, 511 S.W.3d at 823 , 2016 WL 3194769, at *4 (evidence that purchaser replaced the air conditioner, retiled and recarpeted, and made various electrical and plumbing repairs was sufficient to establish that valuable improvements were made to the property that satisfied the partial-performance exception .to the statute of frauds); see also Eastland v. Basey, 196 S.W.2d 336, 338-39 (Tex.Civ.App.-Austin 1946, no writ) (evidence that purchaser built fences, conducted farming operations, moved and rebuilt a barn, installed a corral, enlarged a living room, added new doors and wind

2017See Blackstone Med., Inc., 470 S.W.3d at 647 (whether the circumstances of a particular case fall -within an exception to the statute of frauds is generally a question of fact for the jury to resolve).

2013In addition, in their JNOV motion, the Plank Parties only cited cases dealing with non-contract causes of action.13 While the Plank Parties cited Exxon Corp. v. Breezevale Ltd. in the brief in support of their motion for JNOV, they cited it for the propositions that the partial- performance exception to the statute of frauds was inapplicable and that, because the statute of frauds rendered the alleged oral partnership agreement unenforceable, the Plank Parties could not be liable for any damages resulting from breach of 13 See, e.g., Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007);

2013See Tanner, 289 S.W.3d at 830 .

2013In addition, in their JNOV motion, the Plank Parties only cited cases dealing with non-contract causes of action.13 While the Plank Parties cited Exxon Corp. v. Breezevale Ltd. in the brief in support of their motion for JNOV, they cited it for the propositions that the partial- performance exception to the statute of frauds was inapplicable and that, because the statute of frauds rendered the alleged oral partnership agreement unenforceable, the Plank Parties could not be liable for any damages resulting from breach of 13 See, e.g., Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007);

2013“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 v. Bookout, 165 S.W.3d 904, 907-08 (Tex.App.-Texarkana 2005, no pet.) (citing Exxon, 82 S.W.3d at 439 ).

2013“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 v. Bookout, 165 S.W.3d 904 , 907– 08 (Tex. App.—Texarkana 2005, no pet.) (citing Exxon, 82 S.W.3d at 439 ).