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this opinion should not be published and is not precedent except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