Court of Appeals of Texas, Third District, Austin
COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY NO. 2011PCA0414,
HONORABLE RANDAL C. GRAY, JUDGE PRESIDING
Justices Puryear, Field, and Bourland
K. Field, Justice
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 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.
AND PROCEDURAL BACKGROUND 
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.
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
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:
Mr. Zipp 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
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.
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
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
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
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.