Metropolitan Life v. Haden & Company

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________

No. 97-20490
_______________________

METROPOLITAN LIFE INSURANCE COMPANY,

Plaintiff-Counter Defendant-Appellee,

versus

HADEN & COMPANY; CHARLES M. HADEN, JR.,

Defendants-Counter Claimants-Appellants.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-1139)
_________________________________________________________________

September 9, 1998

Before POLITZ, Chief Judge, JONES, and DUHÉ, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

This case concerns a landlord-tenant dispute between

Metropolitan Life Insurance Company (“MetLife”), the landlord, and

Charles M. Haden, Jr. and Haden & Company (collectively “Haden”),

the tenant. MetLife sued Haden to recover unpaid rent, and Haden

counterclaimed on various grounds. The district court (i) granted

MetLife a stay of discovery pending the resolution of all

dispositive motions, (ii) granted MetLife’s motion for judgment as

a matter of law on its breach of contract claim, and (iii)

dismissed Haden’s counterclaims under Federal Rule of Civil

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Procedure 12(b)(6). Haden appeals all three rulings. We affirm in

part but vacate and remand the promissory estoppel claim.

I. FACTS

A. Background

In May 1989, Haden and MetLife entered into a commercial

lease agreement (“Lease”) for office space in the Post Oak Park

Building in Houston, Texas. The term of the Lease extended from

September 15, 1989, to January 15, 1995. The monthly rent was

$6773.97. The Lease gave Haden the option to renew the Lease for

an additional five years if notice was given by January 15, 1994.

Haden never gave MetLife such notice.

In early 1995, Haden and MetLife entered into a First

Amendment to the Lease. The First Amendment incorporated the terms

of the Lease, extended the Lease’s term to April 15, 1995, and

increased the monthly rent to $8,953.00. It also acknowledged that

MetLife was not in breach of the Lease. After April 15, 1995,

Haden become a holdover month-to-month tenant with MetLife’s

consent. However, from August 1995 until January 1996, when it

vacated the premises, Haden did not pay any rent to MetLife.

On October 13, 1995, MetLife notified Haden that it was

in default on the Lease and that MetLife had elected to terminate

the Lease as of November 15, 1995. On November 15, 1995, MetLife

notified Haden that (i) the Lease was terminated, (ii) Haden owed

$31,706.64, (iii) any holdover beyond this date was without

MetLife’s consent, and (iv) such a holdover would subject Haden to

2
liability for double rent pursuant to the Lease. On January 22,

1996, Haden vacated the premises without paying any of the

outstanding rent or other charges owed.

B. Haden’s Version of Events

Haden claims that it initially anticipated vacating the

premises when the Lease expired in January 1995. In this regard,

on September 12, 1994, it hired a commercial real estate broker,

Craig Beyer, to negotiate leasing new office space. Haden alleges

that a minimum of four months was necessary for it to locate and

acquire the amount and quality of office space it needed.

Coincidentally, on September 13, 1994, David Lakin, an

agent for PM Reality Group, sent a letter to Haden offering to

negotiate an extension of the Lease on MetLife’s behalf. Haden

alleges that because it had invested $30,000 in improving its

premises during the course of the lease, it authorized Beyer to

negotiate with Lakin. On October 7, 1994, Lakin sent Haden a

proposal for a new long-term lease, which explicitly stated that it

was not intended to be binding and could be withdrawn at any time.2

2
Specifically, the proposal stated:

This proposal is not intended to be a legally
binding agreement. Nothing contained herein shall be
used ore [sic] relied upon by either party hereto in any
evidentiary manner, or otherwise, to subsequently attempt
to demonstrate that the parties hereto have entered into
any binding agreement or for any other purpose. It is
the intent of parties that no such legally binding
agreement shall exist unless and until a formal and
definite lease agreement has been negotiated, drafted,
approved by the appropriate corporate officer . . . .
While the parties may commence or continue negotiations

3
Haden alleges that, based upon this proposal, it stopped its search

for new office space, anticipating entering into a new long-term

lease with MetLife. However, despite repeated attempts to close

the deal and continued promises from MetLife that a long-term lease

was forthcoming, MetLife allegedly avoided closing. Then, MetLife

allegedly insisted that the First Amendment be signed prior to the

execution of any long-term lease.

According to Haden, after the expiration of the First

Amendment, MetLife continued to promise a long-term renewal. On

June 15, 1995, Lakin and Beyer met and discussed the terms of a new

long-term lease. Haden alleges that at this meeting the parties

agreed on terms for a new seven-year lease. According to Haden,

Lakin also specifically promised that a written lease would be

signed in “a day or so.”3 No written lease was forthcoming.

Between March and July of 1995, Haden made what it terms

“substantial computer purchases” totaling approximately $24,890.93.

relating to the proposed transaction described in this
proposal, each party reserves the right to terminate such
negotiations at any time, with or without cause and for
any reason, without any liability to the other party.
3
In a post-oral argument letter to the court, MetLife now
apparently admits that Lakin promised that MetLife would enter into
a new lease with Haden based upon the terms Lakin and Beyer
discussed. MetLife argues, however, that Lakin did not have
authority to bind MetLife. Rather, MetLife contends, Lakin was its
agent to negotiate the terms of a new lease, but not to enter into
the lease. “At most, Mr. Lakin could merely represent that he
would take the discussed terms back to MetLife to see if the terms
were acceptable. Haden & Company’s allegations, therefore,
establish at most an agreement to agree that is unenforceable in
Texas without regard to the statute of frauds.”

4
Following the June 15 meeting, Haden also alleges that it incurred

labor expenses of $5,472.27 related to improving or repairing its

computer network system.

In September 1995, Haden learned that MetLife was

negotiating with Cray Computer Corporation to lease the office

space occupied by Haden. Haden contacted MetLife and was allegedly

informed that MetLife would not honor the terms of the lease

previously agreed to on June 15, 1995, but that MetLife would enter

into new negotiations with Haden. At some later date, a meeting

was scheduled for December 28, 1995, but it never took place. On

January 6, 1996, Haden was served with MetLife’s “Complaint in

Forcible Detainer,” giving it ten business days to vacate the

premises. Because Haden allegedly needed four months to find

suitable new lease space, it claims to have been forced by

MetLife’s actions (1) to rent premises that were considerably more

expensive than at the Post Oak Park Building, (2) to incur

significant renovation expenses because the new premises were ill-

suited to Haden’s needs, and (3) as a to result, to suffer lost

profits during the renovation period.

C. The Lawsuit

On April 9, 1996, MetLife filed the instant lawsuit

claiming breach of contract and seeking unpaid rent and other

contractual damages. Haden answered that it was, in fact, MetLife

that had breached the Lease by failing to renew the Lease. Haden

also counterclaimed for promissory estoppel, fraud, negligent

5
misrepresentation, Deceptive Trade Practices Act (DTPA) violations,

and civil conspiracy.

MetLife filed a motion for summary judgment on its breach

of contract claim and a motion to dismiss Haden’s counterclaims.

On November 7, 1996, the district court stayed the parties’

discovery pending the court’s ruling on all dispositive motions.

On January 8, 1997, the district court granted summary judgment to

MetLife on its contract claim and dismissed Haden’s counterclaims.

II. ANALYSIS

A. MetLife’s Claim: Breach of the Lease

The district court found that Haden breached its Lease

with MetLife by failing to pay rent, and it granted judgment as a

matter of law to MetLife on this claim. This court reviews a grant

of summary judgment de novo, viewing all facts in the light most

favorable to the nonmovant. See Houston v. Holder (In re Omni

Video, Inc.), 60 F.3d 230, 231 (5th Cir. 1995). Summary judgment

is appropriate when there is no genuine issue of material fact and

the movant is entitled to judgment as a matter of law. See id.

MetLife argues convincingly that Haden breached the Lease

as a matter of law. Under Texas law, the elements of a breach of

contract claim are: (1) the existence of a valid contract; (2) that

the plaintiff performed or tendered performance; (3) that the

defendant breached the contract; and (4) that the plaintiff was

damaged as a result of the breach. See Hussong v. Schwan’s Sales

Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.]

6
1995, no writ). No party disputes that Haden, while remaining a

tenant of the Post Oak Park Building, failed to pay rent from

August 1995 to January 1996, as well as other charges due and owing

for its holdover tenancy. Therefore, Haden breached the Lease as

a matter of law, and MetLife is entitled to damages unless Haden is

correct that MetLife breached the Lease first. See Hernandez v.

Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex. 1994) (holding that

when one party materially breaches a contract, the other is excused

from performance under the contract); Dallas Mkt. Ctr. v. The

Swing, Inc., 775 S.W.2d 838, 842 (Tex. App.—Dallas 1989, no writ)

(“[O]ne who has broken a contract himself cannot recover on it.”)

(citing Joseph v. PPG Indus., Inc., 674 S.W.2d 862, 867 (Tex.

App.—Austin 1984, writ ref’d n.r.e.)); cf. Bieganowski v. El Paso

Med. Ctr. Joint Venture, 848 S.W.2d 361, 362 (Tex. App.—El Paso

1993, writ denied) (“One who has breached a contract by failure to

pay rent . . . cannot recover for an alleged breach of the same

contract by the other party).

Haden argues that MetLife was required under the terms of

the Lease to renew the Lease for an additional five years. This is

true, but only if Haden gave MetLife notice of its intent to renew

by January 15, 1994. All parties agree that Haden did not give

such notice. Therefore, MetLife’s failure to renew the Lease can

in no way be interpreted as a breach of the terms of the Lease.

Cf. Hush Puppy, Inc. v. Cargill Interests, Ltd., 843 S.W.2d 120,

122 (Tex. App.—Texarkana 1992, no writ) (holding that options to

7
renew a lease for an additional term must be exercised strictly

according to the option provisions) (citing Zeidman v. Davis, 342

S.W.2d 555 (Tex. 1961)).

Haden responds that MetLife waived the notice requirement

by offering to negotiate an extension of the Lease in September

1994. A party waives a right when it intentionally relinquishes

that right or engages in intentional conduct inconsistent with

claiming the right. See Tenneco Inc. v. Enterprise Prods. Co., 925

S.W.2d 640, 643 (Tex. 1996). MetLife never acted inconsistently

with the Lease’s renewal terms and, therefore, did not waive its

right to notice. It was entirely consistent with the Lease’s terms

for MetLife to offer to negotiate a lease extension with Haden in

September 1994. The Lease’s renewal provisions did not state that

MetLife would not renew the Lease unless it received one year’s

notice; rather, it stated that MetLife was not required to renew

the Lease without one year’s notice. No interpretation of the

facts as pleaded supports a finding that MetLife waived the Lease’s

notice provision. Haden’s waiver argument is utterly meritless.

Therefore, the district court’s grant of judgment as a

matter of law to MetLife on its breach of contract claim is

affirmed.

B. Haden’s Counterclaims

The district court dismissed all of Haden’s counterclaims

on a Rule 12(b)(6) motion. This court reviews a dismissal on the

pleadings de novo, applying the same standard as the district

8
court. See Truman v. United States, 26 F.3d 592, 593 (5th Cir.

1994). “Accordingly, we accept the well-pleaded allegations in the

complaint as true, and we construe those allegations in the light

most favorable to the plaintiff.” Id. at 594. Dismissal is

appropriate “only if it appears that no relief could be granted

under any set of facts that could be proven consistent with the

allegations.” Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir.

1994). “A motion to dismiss under Rule 12(b)(6) ‘is viewed with

disfavor and is rarely granted.’” Lowrey v. Texas A&M Univ. Sys.,

117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem.

Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982)).

(1) Promissory Estoppel

Haden argues that on June 15, 1995, MetLife orally

promised to sign a new seven-year lease with Haden. The Texas

statute of frauds requires that “a lease of real estate for a term

longer than one year” must be in writing. TEX. BUS. & COM. CODE ANN.

§ 26.01(b)(5) (Vernon 1987). Obviously, a seven-year lease falls

within the statute of frauds.

Under Texas law, however, promissory estoppel excepts

certain contracts falling within the statute of frauds from being

unenforceable. See Nagle v. Nagle, 633 S.W.2d 796, 800 (Tex.

1982); “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d

934 (Tex. 1972). “[C]ourts will enforce an oral promise to sign an

instrument complying with the Statute of Frauds if: (1) the

promisor should have expected that his promise would lead the

9
promisee to some definite and substantial injury; (2) such an

injury occurred; and (3) the court must enforce the promise to

avoid injustice.” Nagle, 663 S.W.2d at 800 (citing “Moore”

Burger, 492 S.W.2d at 937); see also Collins v. Allied Pharmacy

Management, Inc., 871 S.W.2d 929, 936 (Tex. App.—Houston [14th

Dist.] 1994, no writ).4 Specifically, the elements of promissory

estoppel are: (1) a promise; (2) foreseeability of reliance on the

promise by the promisor; and (3) substantial detrimental reliance

by the promisee. See English v. Fischer, 660 S.W.2d 521, 524 (Tex.

1983); Collins, 871 S.W.2d at 937. The burden of establishing

promissory estoppel rests upon its proponent, not on the party who

has established a statute of frauds bar to enforcing a contract as

a matter of law. See “Moore” Burger, 492 S.W.2d at 936-37;

Collins, 871 S.W.2d at 936.

Haden alleges that on June 15, 1995, Beyer and Lakin

agreed to the terms of a seven-year renewal lease and that Lakin

specifically promised that a new lease would be signed within “a

day or two.” Haden also contends that it substantially and

detrimentally relied on this promise. For purposes of reviewing a

12(b)(6) dismissal, Haden has clearly alleged the basic elements of

a promissory estoppel claim. Therefore, the issue before this

court is whether, accepting all of Haden’s well-pleaded allegations

4
The promissory estoppel exception to the statute of frauds
is specifically limited, however, to cases where the promise was
“to sign a written agreement which itself complies with the Statute
of Frauds.” Nagle, 663 S.W.2d at 800 (quoting “Moore” Burger, 492
S.W.2d at 940).

10
as true, any relief could be granted to Haden under any set of

facts that could be proven consistent with its allegations. Haden

argues that it reasonably relied on MetLife’s promise to its

substantial detriment when it (1) purchased approximately $30,000

in new computer equipment and wiring from March to July of 1995,

expecting to remain a tenant of the Post Oak Park Building; and (2)

was evicted from its premises in January 1996, without the needed

four months to find appropriate new office space. This hurried

departure forced Haden to pay higher rent, expend funds to

refurbish the new office space, and suffer lost profits. The

district court found that Haden’s alleged losses neither were made

in reasonable reliance on MetLife’s promise nor constituted action

or forbearance of a definite and substantial character.

Regarding Haden’s relocation expenses, we agree with the

district court. MetLife’s alleged promise to sign a new lease was

made on June 15, 1995. On October 13, 1995, MetLife informed Haden

that it had elected to terminate the lease as of November 15, 1995,

because Haden was in default for failure to pay rent. This was a

clear signal to Haden that MetLife was renouncing its alleged

promise, and yet Haden took no steps within the next three months

to locate new office space. Even after MetLife informed Haden on

November 15, 1995, that the Lease was terminated, Haden still took

no steps to locate new office space. No reasonable trier of fact

could conclude that Haden’s actions in this regard were in

11
reasonable reliance on MetLife’s alleged –– and subsequently

renounced –– promise of June 15.

Regarding Haden’s computer expenses, we disagree with the

district court. Haden contends that between March and June 8 of

1995, it spent approximately $17,669.11 on computer equipment for

its office space in the Post Oak Park Building. Because Haden

specifically alleges that its reliance is based upon MetLife’s June

15 promise, these expenses cannot have been incurred in reliance on

that promise. However, Haden also contends that after the June 15

meeting it expended an additional $7,222.32 on computer equipment

as well as $5,472.27 on labor expenses related to “the network

system.” These two sums together ($12,694.59) come close to

equaling Haden’s rent payments for one and a half months.

It is also possible that Haden can prove it was required

to pay higher rent after relocation than it would have paid under

a lease consistent with the June 15 terms, even after discounting

for Haden’s failure timely to begin seeking other business space.

Without any discovery or evidentiary development, we

cannot say that Haden has not alleged facts sufficient to overcome

a 12(b)(6) motion to dismiss. With further factual development, it

is not beyond all doubt that no relief could be granted to Haden

under any set of facts that could be proven consistent with its

allegations. The losses to a small, independent business that

Haden asserts are not necessarily insubstantial, and Haden’s

12
alleged reliance is not necessarily unreasonable based only upon

Haden’s notice pleadings.

Therefore, the district court is reversed as to its

dismissal on the pleadings of Haden’s promissory estoppel

counterclaim. While it is far from obvious that Haden will prevail

on remand after discovery has occurred, Haden has alleged facts

sufficient to pass the 12(b)(6) hurdle.

(2) Fraud

Haden’s fraud claim is based on MetLife’s alleged

repeated deceitful promises to enter into a new long-term lease

with Haden. “A fraud cause of action requires ‘a material

misrepresentation, which was false, and which was either known to

be false when made or was asserted without knowledge of its truth,

which was intended to be acted upon, which was relied upon, and

which caused injury.’” Formosa Plastics Corp. v. Presidio Eng’rs

& Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). The district

court dismissed Haden’s fraud claim on three grounds: (1) Haden

failed to state a claim for fraud because it did not allege the

breach of a noncontractual duty; (2) absent a fiduciary or

confidential relationship, the failure to disclose information

(i.e., that MetLife was negotiating with Cray Computer Corp.) is

not actionable as fraud; and (3) Haden’s fraud claim was barred by

the statute of frauds. On appeal, Haden challenges the district

court’s ruling that its fraud claim was barred by the statute of

frauds because the claim sounded in contract rather than tort.

13
 As a general rule, plaintiffs cannot turn what are

essentially contract claims into tort claims by artfully pleading

their causes-of-action and damages. See Formosa, 960 S.W.2d at 44-

46; Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493

(Tex. 1991). Determining whether a claim lies in contract or tort

requires an examination of the nature of the alleged injury and the

source of the breached duty. See Formosa, 960 S.W.2d at 45.

Generally, if the only damages claimed are the economic losses

caused by the defendant’s failure to perform the contract, then the

action sounds in contract. See id.; DeLanney, 809 S.W.2d at 494-

95; Leach v. Conoco, Inc., 892 S.W.2d 954 (Tex. App.--Houston [1st

Dist.] 1995, writ dism’d w.o.j.).

Significantly, however, the Texas Supreme Court recently

examined a claim for fraudulent inducement to contract, holding

that tort damages can be recovered for a such a claim absent an

injury that is distinct from any permissible contractual damages.

See Formosa, 960 S.W.2d at 46-47. Although the holding was

expressly limited to a claim for fraudulent inducement, the court

stated in reaching its decision that

[t]his Court has also repeatedly recognized that a fraud
claim can be based on a promise made with no intention of
performing, irrespective of whether the promise is later
subsumed within a contract. For example, in Crim Truck
& Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d
591, 597 (Tex. 1992), we noted: “As a general rule, the
failure to perform the terms of a contract is a breach of
contract, not a tort. However, when one party enters
into a contract with no intention of performing, that
misrepresentation may give rise to an action in fraud.”
Similarly, in Spoljaric v. Percival Tours, Inc., 708
S.W.2d 432, 434 (Tex. 1986), we held that a fraud claim

14
 could be maintained, under the particular facts of that
case, for the breach of an oral agreement to pay a bonus
because a “promise to do an act in the future is
actionable fraud when made with the intention, design and
purpose of deceiving, and with no intention of performing
the act.” Accord T.O. Stanley Boot Co. v. Bank of El
Paso, 847 S.W.2d 218, 222 (Tex. 1992); Stanfield v.
O'Boyle, 462 S.W.2d 270, 272 (Tex. 1971).

Id. at 46-47. The court also stated that “[a] promise of future

performance constitutes an actionable misrepresentation if the

promise was made with no intention of performing at the time it was

made.” Id. at 48 (citing Schindler v. Austwell Farmers Coop., 841

S.W.2d 853, 854 (Tex. 1992)).

Numerous Texas courts of appeals had held prior to

Formosa that a fraud claim sounds in contract alone when the only

injury alleged is contractual economic loss. See, e.g., Leach, 892

S.W.2d at 960; Collins, 871 S.W.2d at 935-36. Formosa, however,

expressly rejected that aspect of these cases5 and, but for the

statute of frauds, would breathe new life into Haden’s fraud claim.

Haden has alleged that MetLife’s June 15 promise was both a

material misrepresentation known to be false when made and was

relied upon by Haden to its detriment.

But even if true, those facts prove only that Haden and

MetLife had an oral contract. Texas law appears clear that as the

very purpose of the statute of frauds is to prevent fraud in oral

transactions, common law fraud is barred by the statute. See

Nagle, 633 S.W.2d at 800–01; Collins, 871 S.W.2d at 935; Webber v.

5
The expressly rejected cases include, e.g., Barbouti v.
Munden, 866 S.W.2d 288, 293-94 (Tex. App.--Hou [14th Dist.] 1993).

15
M.W. Kellogg Co. 720 S.W.2d 124, 128 (Tex. Civ. App.--Hou. [14th

Dist.] 1986 writ ref’d n.r.e.). “Application of the statute of

frauds to a contract vitiates a fraud claim based on the same

facts.” Collins, 871 S.W.2d at 935; see also American Nat. Ins. v.

Intern. Bus. Mach., 933 S.W.2d 685, 689 (Tex. App.--San Antonio

1996, writ denied) (no recovery for fraud on contract barred by

statute of frauds). Formosa neither dealt with nor appears to cast

doubt on this proposition. We conclude that Haden’s fraud claim is

barred.

(3) Negligent Misrepresentation

In contrast to claims of fraud, the Texas Supreme Court

has clearly stated that a claim for negligent misrepresentation can

proceed only if there is an injury to the plaintiff independent of

his contractual damages. See D.S.A., Inc. v. Hillsboro Indep. Sch.

Dist., No. 97-0631, 1998 WL 531686, at *2 (Tex. Aug. 25, 1998).6

In addition, “[n]egligent misrepresentation may not be used to

circumvent the statute of frauds.” Collins, 871 S.W.2d at 936

(citing Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442

(Tex. 1991)).

Because Haden’s alleged damages all stem directly from

its economic losses under either the alleged renewal lease of June

15, 1995, or other alleged oral promises to contract, Haden’s

negligent misrepresentation claim sounds in contract alone. See

6
This opinion has not yet been released for publication by the
Texas Supreme Court and is, therefore, subject to change or
withdrawal.

16
D.S.A., Inc., supra. Because Haden’s negligent misrepresentation

claim sounds in contract, it is barred by the statute of frauds.

See Leach, 892 S.W.2d at 960; Collins, 871 S.W.2d at 935-36.

(4) DTPA

The Texas Supreme Court held in Crawford v. Ace Sign,

Inc., 917 S.W.2d 12 (Tex. 1996), that “an allegation of mere breach

of contract, without more, does not violate the DTPA.” Formosa,

960 S.W.2d at 46; see also Ashford Dev., Inc. v. USLife Real Estate

Servs. Corp., 661 S.W.2d 933, 935 (Tex. 1984) (“An allegation of a

mere breach of contract, without more, does not constitute a

‘false, misleading or deceptive act’ in violation of the DTPA.”).

Again, because Haden’s alleges no damages independent of its

contractual injuries, Haden’s DTPA claim is essentially a breach of

contract claim. In addition, representations that one will fulfill

a contractual duty which one later fails to perform does not

constitute misrepresentation, but rather the breach of a

contractual duty. See Formosa, 960 S.W.2d at 46. Therefore,

Haden’s DTPA claim is barred by the statute of frauds because it is

fundamentally based on an oral contract for a seven-year renewal

lease. See Keriotis v. Lombardo Rental Trust, 607 S.W.2d 44, 46

(Tex. App.—Beaumont 1980, writ ref’d n.r.e.) (“[B]oth the alleged

misrepresentation and the damages sought support the conclusion

that plaintiff is attempting to recover damages for failure to

perform an oral promise governed by the statute of frauds. No

collateral agreement whatever is alleged or proved and no attempt

17
is made to establish any acts other than the promise to convey and

the failure to do so.”).

(5) Civil Conspiracy

Haden does not appeal the district court’s dismissal of

its civil conspiracy claim and, therefore, this issue is not before

the court.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s

grant of judgment as a matter of law to MetLife and its dismissal

of Haden’s fraud, negligent misrepresentation and DTPA

counterclaims. We reverse the district court’s dismissal of

Haden’s promissory estoppel counterclaim. On remand, the district

court shall permit the parties discovery as necessary to proceed on

the claim remaining in this case.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

18