Appeal from the 10th District Court Galveston County, Texas
Trial Court Cause No. 15-CV-0354
consists of Justices Christopher, Jamison, and Donovan.
Glynn and Melinda Walker sued Glynn's father and brother
regarding the ownership of a beach house in Port Bolivar,
Texas. Glynn and Melinda claim that Glynn's father,
appellee Ronald Walker, orally gave them the property on
which they built a beach house, and then after a dispute
arose wrongfully conveyed the property and beach house to
Glynn's brother, appellee Layne Walker. Glynn and Melinda
brought suit to quiet title based on a claim of oral parol
gift of realty, and also asserted claims for damages based on
promissory estoppel, unjust enrichment, and breach of
fiduciary duty. The trial court granted summary judgment
against Glynn and Melinda on all claims.
conclude that the trial court properly granted summary
judgment on the claim for an oral parol gift of realty
because there is no evidence of an intent to make a gift
in praesenti, or present gift, of the property. The
trial court also properly granted summary judgment on the
claim for breach of fiduciary duty because there was no
evidence of a fiduciary duty owed to Glynn or Melinda. The
trial court erred, however, in granting summary judgment on
the claims for promissory estoppel and unjust enrichment. We
thus affirm in part, and reverse and remand in part, the
trial court's judgment.
Walker located six beach front lots in the Bolivar township
of Galveston County, Texas. Layne approached his father
Ronald about purchasing the lots. Ronald, who had owned a
beach cabin in Port Bolivar when he was a young man, wanted
to provide his sons Glynn and Layne with a beach experience
similar to his own and decided to purchase the six lots.
According to Glynn, Ronald told him that he, Ronald, would
purchase the six lots (known as lots 13, 14, 15, 16, 17, and
18) and would give them to the brothers, but the brothers
would "have the burden" of building houses on the
lots. In July 2013, Ronald purchased the lots for $15, 000
per lot in two closings. The deeds to the lots were put in
Ronald's name alone.
they initially planned to use three lots each in building
their respective homes, ultimately Glynn and Layne agreed
that Glynn would use lots 17 and 18, and Layne would use lots
13, 14, 15, and 16. Ronald told the boys "design your
own places and build them, " and he would "help
[them] as far as I can." Shortly after Ronald purchased
the lots, each of his sons set up a bank account for the
construction of the beach houses. Glynn's account was
named "Glynn Walker Construction Account." Ronald
was a co-owner and signer on the account. Glynn took out a
home equity loan on his current home in Port Neches in the
amount of $135, 000. All proceeds of that loan went directly
into the Glynn Walker Construction Account. Ronald knew of
the home equity loan and went to the bank with Glynn when he
obtained the loan. Though the record does not provide
details, it appears that Glynn's brother Layne also took
out a home equity loan to use in building a beach house on
the lots designated for his use.
September 2013, construction began on the side-by-side beach
homes and was largely completed by March of the following
year. Glynn and Melinda made all of the decisions regarding
the building of their beach home. For example, they chose the
flooring, granite, colors, door knobs, light fixtures, and
cabinets for the house. Glynn testified that he used the
funds in the Glynn Walker Construction Account to pay for
construction on his beach house and that he also did some of
the work himself. The funds in the Glynn Walker Construction
Account contained the money from the home equity loan Glynn
took on his Port Neches home, as well as funds from Ronald.
From the time construction began, Ronald had been making
monthly deposits into both Glynn's and Layne's
construction accounts. The amounts deposited each month
varied, but over the course of approximately eighteen months,
Ronald had deposited over $110, 000 into each of their
accounts. Glynn testified that the construction of his beach
house ultimately cost between $230, 000 and $240, 000.
March 2014, when the homes were completed, until March 2015,
the parties and their families appear to have used the beach
homes. Ronald would visit the beach homes when the families
were present and stated that he always stayed in Layne's
beach home when he was at the beach because Layne had built
an extra room for his use. Though he had visited the home built by
Glynn, he had never spent the night in Glynn's beach
house. Ronald paid the property taxes on the home and Glynn
paid the insurance and utilities.
March 2015, Ronald was visiting Layne's beach house with
Layne's family. An issue arose regarding the presence of
Glynn's high school aged son and the son's girlfriend
at Glynn's beach house without any adults present. Ronald
called Glynn and voiced his concerns regarding the use of
Glynn's house and Glynn's son then left. Shortly
thereafter, Glynn and Melinda went to the beach house and
began removing their personal property and furnishings from
the beach house. Ronald asked that the two families sit down
for a talk. Ronald, Layne, Layne's wife Cynthia, Glynn
and Melinda did so, but during the course of the meeting
things got heated and Ronald went back to Layne's house
next door. Layne and his wife Cynthia came over to Ronald and
told him of a statement made by Melinda after Ronald left.
According to Ronald, they told him that Melinda said she
could rent her beach house to whoever she wanted and
"there is nothing you can do about it." Melinda
disputes using the words they attribute to her and contends
she said only that it was within her right to invite whoever
she wanted to the beach house. Ronald testified that, after
the meeting, he knew that "there would never be a
relationship between the two families that could in any way
be continued" and he had a concern that this would
"become the worst nightmare that two families could
endure." Ronald instructed Layne to prepare two deeds for
execution. Layne did so and on March 26, 2015, Ronald
executed two deeds that conveyed to Layne by "Special
Warranty Gift Deed, " all of the lots, including lots 17
and 18 containing Glynn's beach house.
learned of the conveyance a few days later. Layne and Glynn
communicated by phone and text, and Layne eventually told
Glynn not to return to the property. Glynn then hired a
moving company to remove the remainder of his personal
property from the house, including certain fixtures such as
appliances and built-ins. Glynn and Melinda state they
continue to make payments in the amount of $1, 015 per month
on the home equity loan used to construct the beach house
they are no longer able to use. Layne and Ronald both said
they "begged" Glynn to sit down with them and bring
receipts for costs spent on the house so that they could pay
Glynn for those costs, but that Glynn would not do so.
after they removed their property and fixtures, Glynn and
Melinda filed this lawsuit. In their live pleading, Glynn and
Melinda allege that they own equitable title to lots 17 and
18, along with the improvements to the property, through an
oral parol gift of realty from Ronald. They also seek to
enforce his promise and obtain monetary damages from Ronald
under a theory of promissory estoppel, and from Layne under
theories of unjust enrichment and breach of fiduciary duty.
The trial court initially granted a request for a temporary
restraining order against Ronald and Layne, but dissolved the
restraining order and denied a request for injunctive relief
against them after an evidentiary hearing.
and Layne filed a traditional and no-evidence motion for
summary judgment on all claims asserted by Glynn and Melinda.
In the motion, Ronald and Layne argued that Ronald had an
absolute right to dispose of the property, the statute of
frauds barred any oral promise to transfer real property, and
Glynn and Melinda had waived or were estopped to deny
Ronald's ownership of the property. Ronald and Layne also
asserted that neither attorneys' fees nor exemplary
damages were recoverable, and that they had not been unjustly
enriched at Glynn and Melinda's expense. Ronald and Layne
then included a paragraph under the heading "No
Evidence, " stating that "Plaintiffs have produced
no evidence, whatsoever, of an enforceable gift of real
property, or entitlement to monetary damages, including, but
not limited to, exemplary damages or attorney's fees. . .
. undue influence, fiduciary breach, or unjust
trial court granted summary judgment on all claims of Glynn
and Melinda without specifying the grounds for its decision,
or whether it was granting traditional or no-evidence summary
judgment. Glynn and Melinda filed a motion to modify,
correct, or reform the judgment, which was overruled by
operation of law. This appeal followed.
issue Glynn and Melinda challenge the trial court's order
granting summary judgment on all of their claims against
Ronald and Layne. For the reasons set forth below, we
overrule in part, and sustain in part, Glynn and
Standards of review.
summary judgment standards of review are well-known. We
review de novo the trial court's order granting summary
judgment. Ferguson v. Bldg. Materials Corp. of Am.,
295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Wyly v.
Integrity Ins. Solutions, 502 S.W.3d 901, 904 (Tex.
App.-Houston [14th Dist.] 2016, no pet.). We consider the
evidence in the light most favorable to the non-movant, and
indulge reasonable inferences and resolve all doubts in its
favor. See City of Keller v. Wilson, 168 S.W.3d 802,
824 (Tex. 2005); Wyly, 502 S.W.3d at 904. "We
credit evidence favorable to the non-movant if reasonable
fact finders could and disregard contrary evidence unless
reasonable fact finders could not." Wyly, 502
S.W.3d at 904.
both no-evidence and traditional grounds for summary judgment
are asserted, we first review the trial court's order
under the no-evidence standard. PAS, Inc. v. Engel,
350 S.W.3d 602, 607 (Tex. App.-Houston [14th Dist.] 2011, no
pet.). To prevail on a no-evidence summary judgment, the
movant must allege that no evidence exists to support one or
more essential elements of a claim for which the non-movant
bears the burden of proof at trial. Tex.R.Civ.P. 166a(i);
Kane v. Cameron Int'l Corp., 331 S.W.3d 145, 147
(Tex. App.-Houston [14th Dist.] 2011, no pet.). A no-evidence
motion may not be conclusory, but must instead give fair
notice to the non-movant as to the specific element of the
non-movant's claim that is being challenged. See
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11
(Tex. 2009). The non-movant must then present evidence
raising a genuine issue of material fact on the challenged
elements. Kane, 331 S.W.3d at 147. A fact issue
exists where there is more than a scintilla of probative
evidence. See Buck v. Palmer, 381 S.W.3d 525, 527
(Tex. 2012) (per curiam). More than a scintilla of evidence
exists if the evidence rises to a level that would allow
reasonable and fair-minded people to differ in their
conclusions as to the existence of a vital fact.
Dworschak v. Transocean Offshore Deepwater Drilling,
Inc., 352 S.W.3d 191, 196 (Tex. App.-Houston [14th
Dist.] 2011, no pet.) (citing Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
prevail on a traditional motion for summary judgment, a
movant must establish that no genuine issue of material fact
exists so that the movant is entitled to judgment as a matter
of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). Summary judgment is appropriate if the movant
conclusively negates at least one essential element of the
plaintiff's claim. Wyly, 502 S.W.3d at 905.
Glynn and Melinda's claims for relief.
and Melinda contend on appeal that the trial court erred in
granting summary judgment on their claims for an oral parol
gift of real property, promissory estoppel, unjust
enrichment, and breach of fiduciary duty. We address the
trial court's summary judgment with regard to each claim
Oral parol gift of realty.
well-settled general rule in Texas is that a conveyance of
real property must be in writing. See Dawson v.
Tumlinson, 242 S.W.2d 191, 192 (Tex. 1951) ("The
law in this state as to parol sales and parol gifts of real
property was fully and carefully stated in Hooks v.
Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), 15
A.L.R. 215, and the law as there stated has been consistently
followed."); see also Tex. Prop. Code §
5.021 (West 2004) ("A conveyance of an estate of
inheritance, a freehold, or an estate for more than one year,
in land and tenements, must be in writing and must be
subscribed and delivered by the conveyor or by the
conveyor's agent authorized in writing."); Tex. Bus.
& Com. Code § 26.01(a), (b)(4) (West 2009)
("Statute of Frauds.").
exception to the requirement of a written conveyance exists,
however, if a party establishes the elements of a parol gift
of real estate in equity. See Dawson, 242 S.W.2d at
192-93; Estate of Wright, 482 S.W.3d 650, 657 (Tex.
App.- Houston [14th Dist.] 2015, pet. denied). To establish a
valid parol gift of realty enforceable in equity, a party
must show: (1) a gift in praesenti, that is a
present gift; (2) possession of the realty by the donee with
the donor's consent; and (3) permanent and valuable
improvements to the realty by the donee with the donor's
consent, or other facts demonstrating that the donee would be
defrauded if the gift were not enforced. Estate of
Wright, 482 S.W.3d at 657; see also Flores v.
Flores, 225 S.W.3d 651, 655 (Tex. App.-El Paso 2006,
pet. denied). The requirements are strictly construed and, at
trial, are subject to a heightened burden of proof. See
Estate of McNutt, No. 04-14-0010-CV, 2016 WL 519732, at
*3 (Tex. App.-San Antonio Feb. 10, 2016, pet. pending);
see also Oadra v. Stegall, 871 S.W.2d 882, 892 (Tex.
App.-Houston [14th Dist.] 1994, no writ) (clear and
convincing evidence applies to claims involving inter vivos
The motion for summary judgment.
and Layne moved for a no-evidence summary judgment on the
ground that Glynn and Melinda have no evidence of "an
enforceable gift of real property." On appeal, Glynn and
Melinda contend that this fails to sufficiently specify the
elements of the oral parol gift claim for a no-evidence
summary judgment. We agree that the no-evidence portion of
the motion for summary judgment does not specify the three
elements outlined above regarding an oral gift of realty. We
conclude, however, that the motion was sufficiently specific
under the facts of this case with regard to the oral gift of
realty claim. Ronald and Layne argued that there was no gift
in praesenti and that there was no evidence of an
enforceable gift. Glynn and Melinda were able to respond
thoroughly and did so by pointing out the evidence they
contended raised genuine issues of material fact on each
element of the claim. See Timpte Indus., 286 S.W.3d
at 311 (fair notice given where record revealed no confusion
as to the assertions of no evidence and non-movant was able
to respond thoroughly as to elements challenged). And,
because both sides attached evidence in the context of the
motions, our task is simply to determine whether a fact issue
exists. See Buck, 381 S.W.3d at 527 n.2 (in hybrid
no-evidence and traditional motion for summary judgment where
both sides attach evidence, "[t]he ultimate question is
simply whether a fact issue exists.").
There is no evidence of a present gift.
establish a gift in praesenti, or present gift, the
purported donee must show that the donor, at the time he
makes the gift, intended an immediate divestiture of the
rights of ownership out of himself, and a consequent
immediate vesting of such rights in the donee. Estate of
Wright, 482 S.W.3d at 657; Thompson v. Dart,
746 S.W.2d 821, 825 (Tex. App.-San Antonio 1988, no writ)
("'In praesenti' means at the present time; it
is used in opposition to in futuro."). The
possession asserted by the donee must be in the nature of an
owner's right to control the property. Thompson,
746 S.W.2d at 825; Troxel v. Bishop, 201 S.W.3d 290,
297 (Tex. App.-Dallas 2006, no pet.). Statements to the
effect that a donor is "going to give, " or will
give the gift at some later date, do not show an intent to
make a present gift. See Flores, 225 S.W.3d at 657;
Thompson, 746 S.W.2d at 827; Massey v.
Lewis, 281 S.W.2d 471, 474 (Tex. App.-Texarkana 1955,
writ ref'd n.r.e.).
and Melinda attached to their response to the motion for
summary judgment various affidavits and the transcript from
the evidentiary hearing on their request for a temporary
injunction. That ...