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Mitchell v. Mitchell

Court of Appeals of Texas, Third District, Austin

February 16, 2018

Brian Mitchell and Clark Mitchell, Appellants
Kirk Mitchell, Appellee


          Before Justices Puryear, Field, and Bourland


          Scott K. Field, Justice

         This is an appeal from the trial court's judgment ordering specific performance of an alleged agreement among Brian Mitchell, Clark Mitchell, and Kirk Mitchell regarding disposition of certain real property and other assets in which they each have ownership interests. The trial court concluded that the parties' agreement was enforceable under the statute of frauds and that any failure to comply with the agreement could not be adequately remedied by monetary damages. Brian and Clark[1] assert on appeal that the trial court erred in concluding that the alleged agreement met the requirements of the statute of frauds and was enforceable. They also argue that the trial court erred by ordering specific performance of the agreement. We will reverse and render judgment that Kirk take nothing.


         Kirk, Brian, and Clark are the sons of Issac Newton Mitchell and June Gass Mitchell. The family lived on a ranch in Comal County ("the Newton Ranch") until Newton and June divorced in the mid-1980s at which time June moved with her sons to Gass family ranch property. June relinquished any interest she had in the Newton Ranch. June's parents had created various trusts as estate planning vehicles during their lifetimes, and the real property interests June and her sons inherited from June's parents were ultimately transferred into a limited partnership called Gass Ranch, Ltd. After living on Gass family ranch property and being actively involved in the affairs of Gass Ranch, Ltd. for a number of years, Kirk had a falling out with June in 2006 and, as a result, he and his family began living at the Newton Ranch. In the years that followed Kirk had very little contact with Brian and Clark. In 2011, Newton's health began to deteriorate and he died in October of that year. Prior to Newton's death, Kirk and his wife Kellie had assisted Newton with transportation to medical appointments, grocery shopping, and meal preparation. They also served as his primary caretakers and provided him financial assistance.

         During the period before Newton's death, Kirk, Brian, and Clark's relationship had improved and, on the day their father died, the brothers met to discuss their father's passing and the funeral arrangements. Kirk testified that during that meeting he proposed that if Brian and Clark would give him their interests in the Newton Ranch, he would pay for Newton's medical and funeral expenses and give Brian and Clark his interest in (1) Gass Ranch, Ltd.; (2) mineral rights in Jackson County owned by Newton; and (3) Guadalupe Valley Telephone Cooperative capital credit accounts and Pedernales Electric Cooperative capital credit accounts owned by Newton. In addition, Brian and Clark could have any tools from Newton's shop at the Newton Ranch that they wanted. Kirk suggested that Brian and Clark think about it and let him know whether they would agree to the proposed exchange of property interests.

         Over the next few months Kirk handled the funeral arrangements for Newton and was appointed administrator of his estate. Kirk was in regular communication with Brian and Clark about various matters, including the proposed exchange of property interests discussed in October. On November 17, 2011, Kirk sent the following email to Brian and Clark:

         Good morning, Gentlemen

Mr. Zipp[3] would like to meet with us to talk about him completing an "Administration" for Daddy's estate. As I understand from reading on the Internet, an "Administration" is used when there is not a will available. They have checked their records in the office and didn't find anything either-only the draft they completed this past spring.
In a previous email I told him what we have tentatively agreed on regarding the trade of partnership interest.
I just talked to his assistant who gave me the following open appointment times for next week. My calendar is open Tuesday and Wednesday so I can be flexible for your needs. Just a suggestion: The last appointment of the day would burn less vacation time.

         Brian responded to this email stating "sounds good to me" after which Kirk informed Brian and Clark that he had scheduled the appointment with Mr. Zipp for Wednesday, November 23. On November 18, Kirk forwarded an email he had previously sent to Mr. Zipp that included the following:

I worked out a deal with Brian and Clark assuming there is no will, or if there is a will, my dad wanted everything divided equally three ways. I told them I would continue paying for his medical bills, pay for all of the funeral expenses, they could have whatever tools they need from my dad's shop, and I would transfer to each of them my interest in the Gass Ranch Family partnership if they would let me keep all of my dad's ranch. They both agreed.

         On February 20, 2012, Kirk sent an email to Mr. Zipp titled "Tentative Settlement Agreement." Kirk wrote: "I drafted an agreement as we discussed for my brother's [sic] and I to sign. Please review and provide any feedback you may have." The attachment, which was titled "Memorandum for Record, " recited the following:

Re: Tentative Settlement Agreement between heirs of the Isaac N. Mitchell V Estate
On October 25, 2011, after the death of our dad, Isaac N. Mitchell V, my brothers, Brian & Clark, and I met to discuss funeral arrangements at my house. I informed them that our dad didn't have any extra money and that I had been paying for various living expenses, such as groceries, clothing, medical & prescription co-pays, and utilities. I also told them there was not a will to my knowledge. I proposed the following to my brothers:
1. I told them that the following proposal may not be fair if they looked at it only from the perspective of our dad's estate but, it would be more than fair if you look at it from the perspective of both of our parents' estates.
2. I offered them the following:
a. I would pay for remaining medical bills and co-pays for our dad (which we are still receiving).
b. I would pay for the funeral expenses (which I did and, included my brothers in all decisions).
c. I would relinquish my 1/3 interest and let them divide the capital credits from Guadalupe Valley Telephone Cooperative and Pedernales Electric Cooperative. (Pending estate administration).
d. I would relinquish my 1/3 interest and let them divide mineral rights with oil lease royalties from Jackson County, TX. (Pending estate administration).
e. I would relinquish to them my 10% interest of Gass Ranch, LTD family partnership from our mother's side of the family. (Pending estate administration and settlement of grandparents' estate on mother's side).
f. They could have any tools they might need from our dad's shop.
3. In return for my offer under bullet #2 above, they would let me keep the entirety of our dad's ranch.
Both Brian and Clark agreed to my proposal and verbally reaffirmed this agreement at our first meeting with Mr. ...

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