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Walker v. Walker

Court of Appeals of Texas, Fourteenth District

March 30, 2017


         On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 15-CV-0354

          Panel consists of Justices Christopher, Jamison, and Donovan.


          John Donovan Justice

         Appellants 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.

         We 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.


         Layne 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.[1] The deeds to the lots were put in Ronald's name alone.

         Though 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.

         In 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.

         From 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.[2] 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.

         In 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[3] 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.

         Glynn 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.

         Shortly 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.

          Ronald 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 enrichment."

         The 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.


         In one 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 Melinda's issue.

         A. Standards of review.

         The 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.

         When 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)).

         To 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.

         B. Glynn and Melinda's claims for relief.

         Glynn 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 in turn.

         1. Oral parol gift of realty.

         The 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.").

         An 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 gifts).[4] '

         a. The motion for summary judgment.

         Ronald 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.").

         b. There is no evidence of a present gift.

         To 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.).

         Glynn 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 ...

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