Date: 05-17-2022

Case Style:

Sydney Raym f/k/a Sydney Dethloff v. Tupelo Management, LLC

Case Number: . 02-21-00071-CV

Judge: Wade Birdwell

Court:

Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from The 355th District Court Hood County, Texas

Plaintiff's Attorney:

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Defendant's Attorney: George A. (Tony) Mallers
Julia F. Pendery

Description:

Fort Worth, Texas - Real Estate lawyer represented Appellant with appealing from a summary judgment from a joint venture to flip a house.

In late 2018, Raym and Tupelo entered a joint venture to flip a house. Tupelo
would provide the funds to acquire and renovate the property, and Raym promised to
reimburse Tupelo for the costs. In exchange, they would split the net proceeds of the
sale 50/50.
Tupelo wired Raym $21,530.78, and Raym used the funds to purchase the
property. Tupelo then hired a company called DNA Construction as contractor to
perform the renovations. Raym accepted DNA’s estimate of costs. Tupelo incurred
$51,535 in bills to DNA as the renovations progressed.
But disagreements arose over cost increases and the quality of DNA’s work.
Raym ultimately refused to reimburse Tupelo for any of its expenses on the property.
3
Tupelo took legal action. It recorded an affidavit establishing a constitutional
lien on the property and sent Raym notice of the lien. Tupelo then filed this suit,
pleading claims for declaratory judgment and a purchase money resulting trust or a
constructive trust, among others.
Tupelo obtained a summary judgment on these claims. As amended, the final
order awarded Tupelo a declaratory judgment that imposed a purchase money resulting
trust, and it directed Raym to convey title to the property to Tupelo. The order awarded
Tupelo $81,415.78 in damages, plus attorney’s fees.
Raym appealed. In response to her various challenges, we held that Tupelo had
standing to sue, and we upheld the declaratory judgment imposing a purchase money
resulting trust and the award of $21,530.78 to compensate Tupelo for the property’s
acquisition cost. See Raym v. Tupelo Mgmt., LLC, No. 02-19-00477-CV, 2020 WL
3865273, at *4, *8 (Tex. App.—Fort Worth July 9, 2020, no pet.) (mem. op.). However,
we held that the declaratory judgment claim for imposition of a trust could not support
any of the other relief that the trial court awarded. Id. at *8. So, we affirmed the
judgment to the extent that it imposed a trust in the amount of $21,530.78, and we
reversed the remainder of the judgment. Id.
On remand, Tupelo amended its petition to add claims for promissory estoppel,
quantum meruit, trespass to try title, and foreclosure of its constitutional mechanic’s
lien, among others. Tupelo then moved for summary judgment on these new claims.
4
Raym filed a response, but the trial court granted Tupelo’s motion to strike her
evidence.
The trial court granted a partial summary judgment, awarding Tupelo $59,535
each on the quantum meruit and promissory estoppel claims, granting foreclosure on
its constitutional mechanic’s lien claim, and awarding $70,907.50 in attorney’s fees along
with conditional appellate attorney’s fees. The $59,535 was intended to compensate
Tupelo for sums it incurred to renovate the property ($51,535) and for its efforts in
managing the renovation project ($8,000).
Tupelo nonsuited its remaining claims without prejudice, and the trial court
rendered a final judgment with the same relief as the partial summary judgment plus the
$21,530.78 trust. Raym appeals.
II. INADEQUATE BRIEFING
Raym’s issues have little or no correspondence with what is argued in the body
of her brief. Some issues are posed as multifarious clusters of questions.1
Other issues
1
For instance, she states her second issue as follows:
Was it proper for the trial court to grant relief upon the Quantum Meruit
claim? There were multiple genuine issues of material fact regarding this
claim. Where was the agreement? Where did the management fees come
into play? Where is the proof of the renovations as compared to the scope
of the bid presented in Tupelo’s evidence? Did Tupelo furnish materials
and labor or did DNA [C]onstruction? It also contradicts a Promissory
Estoppel claim.
“An issue is multifarious when it generally attacks the trial court’s order with numerous
arguments.” Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth
5
are general pleas for fairness without any legal grounds for relief.2
Most of the issues
are not supported by any argument or authority.
“Although we liberally construe pro se briefs, litigants who represent themselves
are held to the same standards as litigants represented by counsel.” In re P.S., 505
S.W.3d 106, 111 (Tex. App.—Fort Worth 2016, no pet.). “The Texas Rules of
Appellate Procedure require that a brief ‘contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.’” Id.
(quoting Tex. R. App. P. 38.1(i)). Adequate briefing is not achieved by merely uttering
brief conclusory statements, unsupported by legal citations. Id. When appellants
present a list of long, multifarious issues that do not match up with arguments raised in
the body of the brief so that we cannot tell which sections in the brief address which
issues, we need only address those arguments raised in the body of the appellant’s brief.
See Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 841 n.1 (Tex.
App.—Fort Worth 2003, pet. denied).
There are only three arguments in Raym’s brief that are supported by at least
some authority. We address those arguments now.
2009, pet. denied). We may disregard any issue that is multifarious, or we may consider
it if we can determine, with reasonable certainty, the error about which complaint is
made. Id.
2
For example, her seventh issue is couched in open terms that do not suggest
any legal grounds for relief: “Is it just to allow an entity such as Tupelo, and individuals
such as Claire and Kenneth Coggins to intimidate and harass in a legal way against a
USA citizen who was just trying to build something and provide for her children?”
6
III. STANDING
Raym’s first argument is that Tupelo lacked standing to sue. But Raym raised a
similar challenge to Tupelo’s standing in a prior appeal. See Raym, 2020 WL 3865273,
at *4. We determined that Tupelo had standing, see id., and that determination is now
the law of the case. Under the law-of-the-case doctrine, a decision rendered in a former
appeal of a case is generally binding in a later appeal of the same case. Paradigm Oil, Inc.
v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012). The doctrine’s purpose is to
bring an end to litigation by winnowing the issues in each successive appeal, fostering
efficiency and uniformity in the decision-making process. Id. “Having decided an issue
previously, a court of appeals is not obligated to reconsider the matter in subsequent
appeals.” Nw. Indep. Sch. Dist. v. Carroll Indep. Sch. Dist., 441 S.W.3d 684, 688 (Tex.
App.—Fort Worth 2014, pet. denied) (op. on reh’g en banc).
Raym offers no reason to revisit our determination that Tupelo had standing to
sue, and we decline to do so.
IV. PROMISSORY ESTOPPEL & QUANTUM MERUIT
Next, Raym argues that Tupelo did not prove as a matter of law that it was
entitled to judgment on its promissory estoppel and quantum meruit claims.
A. Summary Judgment Standard
We review an order granting summary judgment de novo, taking as true all
evidence favorable to the nonmovant and indulging every reasonable inference in the
nonmovant’s favor. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 293 (Tex. 2020).
7
As the party moving for traditional summary judgment, Tupelo had the burden to prove
that no genuine issue of material fact existed and that it was entitled to judgment as a
matter of law. Id. A plaintiff satisfies its initial summary judgment burden if it
conclusively proves all essential elements of its cause of action. Charles Glen Hyde, Nw.
Reg’l Airport, Inc. v. Nw. Reg’l Airport Prop. Owners Ass’n, Inc., 583 S.W.3d 644, 648 (Tex.
App.—Fort Worth 2018, pet. denied). “Testimony by an interested witness may
establish a fact as a matter of law only if the testimony could be readily contradicted if
untrue, and is clear, direct and positive, and there are no circumstances tending to
discredit or impeach it.” Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 207 (Tex. 2021). If the
movant carries its initial burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d
79, 84 (Tex. 2018).
B. Promissory Estoppel
When a promisor induces substantial action or forbearance by another,
promissory estoppel prevents any denial of that promise if injustice can be avoided only
by enforcement. In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex. 2005) (orig.
proceeding). Although primarily a defensive matter, promissory estoppel is also a cause
of action available to a promisee who has detrimentally relied on an otherwise
unenforceable promise. Severs v. Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 701
(Tex. App.—Fort Worth 2018, pet. denied). “If a promisee has reasonably and
detrimentally relied on an otherwise unenforceable promise, he may have a cause of
8
action for promissory estoppel.” Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 673 (Tex.
App.—Fort Worth 2010, no pet.). In a promissory estoppel action, a plaintiff’s
recovery is limited solely to reliance damages, which are the amounts necessary to
restore the plaintiff to the position in which she would have been had she not relied on
the promise. Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965); Lucas v. Ryan, No. 02-18-
00053-CV, 2019 WL 2635561, at *18 (Tex. App.—Fort Worth June 27, 2019, no pet.)
(mem. op.). “[T]he weight of authority in Texas is that attorney’s fees are recoverable
under Section 38.001(8) of the Texas Civil Practice[] & Remedies Code in a promissory
estoppel claim.” Turner v. NJN Cotton Co., 485 S.W.3d 513, 528 (Tex. App.—Eastland
2015, pet. denied). 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. Rice, 324 S.W.3d at 673.
Tupelo proved all three elements of promissory estoppel as a matter of law. In
her affidavit, Tupelo’s principal Claire Coggins described how Raym promised to
reimburse Tupelo for the cost of purchasing and renovating a house.3
Coggins testified
3
Tupelo’s promissory estoppel claim involves real estate, which would seem to
raise the issue of the statute of frauds. Under the statute of frauds, certain agreements,
including a contract for the sale of real estate, are not enforceable unless the promise
or agreement, or a memorandum of it, is in writing and signed by the person to be
charged with the promise or agreement or by someone legally authorized to sign for
him. Copano Energy, LLC v. Bujnoch, 593 S.W.3d 721, 727 (Tex. 2020) (quoting Tex. Bus.
& Com. Code Ann. § 26.01(a), (b)(4)). For promissory estoppel to act as an exception
to the statute of frauds, the promisor must have promised to sign a written document
complying with the statute of frauds. Bearden Investigative Agency, Inc. v. Melvin, No. 2-02-
9
that Raym reviewed and accepted an estimate of costs for the renovation project and
that she was periodically provided with invoices as the project progressed. However,
Raym never told Tupelo to stop work on the project or that she had changed her mind
until Tupelo had paid for the work to be completed or very nearly so. At that point,
Raym began to dispute the cost and quality of the renovations, and she demanded to
see records for the work performed. The disagreements continued, Coggins explained,
until it was clear that Raym was not willing to reimburse Tupelo as she had originally
agreed, “even though all the work was performed and expenditures paid in reliance
upon [Raym’s] prior agreement to reimburse [Tupelo] for those costs.” This evidence
was uncontradicted, clear, direct, positive, and free from any circumstances tending to
undermine it. See Aerotek, 624 S.W.3d at 207. Also submitted as summary judgment
evidence were business records and discovery responses documenting the $51,535 that
Tupelo incurred in renovation costs. This evidence is sufficient to carry Tupelo’s
summary judgment burden to show entitlement to summary judgment with respect to
078-CV, 2003 WL 194729, at *7 (Tex. App.—Fort Worth Jan. 30, 2003, no pet.) (mem.
op.).
But the statute of frauds does not apply where, as here, “a real estate transaction
is merely incidentally involved.” Bridewell v. Pritchett, 562 S.W.2d 956, 958 (Tex. App.—
Fort Worth 1978, writ ref’d n.r.e.). “[A]n agreement between two or more persons for
the joint acquisition of land is not a contract for the sale of land, and hence is not
required by our statute of frauds to be in writing.” Gardner v. Randell, 7 S.W. 781, 782
(Tex. 1888); Bradley v. Bradley, 540 S.W.2d 504, 510 (Tex. App.—Fort Worth 1976, no
writ). The statute of frauds therefore does not apply to Tupelo’s claims concerning its
joint venture with Raym to acquire and renovate real property.
10
$51,535 of the $59,535 that the trial court awarded on the promissory estoppel claim.
And Raym has not adequately briefed her challenge to the $70,907.50 in attorney’s fees
that were awarded under this theory. See Tex. R. App. P. 38.1; Lion Copolymer Holdings,
LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020).
C. Quantum Meruit
This leaves only the question of whether the trial court was justified in awarding
a further $8,000 to compensate Tupelo for the value of its project management services.
To answer that question, we ask whether Tupelo conclusively proved its entitlement to
that amount under its quantum meruit claim.
Quantum meruit is an equitable remedy based upon the promise implied by law
to pay for beneficial services rendered or materials furnished and knowingly accepted.
Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018). Recovery in quantum
meruit will be had when nonpayment for the services rendered or materials furnished
would result in an unjust enrichment to the party benefitted by the work. Id. at 741.
As a general rule, the trial court, not the jury, determines the expediency, necessity, or
propriety of equitable relief. Id. To recover under quantum meruit, a claimant must
prove that (1) valuable services were rendered or materials furnished; (2) for the person
sought to be charged; (3) which services and materials were accepted by the person
sought to be charged, used and enjoyed by him; (4) under such circumstances as
reasonably notified the person sought to be charged that the plaintiff in performing
11
such services was expecting to be paid by the person sought to be charged. Residential
Dynamics, LLC v. Loveless, 186 S.W.3d 192, 199 (Tex. App.—Fort Worth 2006, no pet.).
Tupelo did not prove these elements as a matter of law. Coggins vaguely averred
that she had contributed “time, resources[,] and work” to the project, for which the
reasonable and customary value in Hood County, Texas and the surrounding counties
was $8,000. However, left unaddressed was what that work might have consisted of or
how much time it might have taken. Conclusory statements are not proper summary
judgment proof. Atmos Energy Corp. v. Paul, 598 S.W.3d 431, 467 (Tex. App.—Fort
Worth 2020, no pet.).
Nor can we deduce from the record what those services might have been. The
record reflects only one task that Coggins actually performed to assist with the project:
hiring DNA Construction to renovate the property. While Tupelo may well have
rendered other services in connection with the renovations, those services are not
mentioned in the summary judgment record. We cannot say that this hiring decision,
standing alone, conclusively proves Tupelo’s entitlement to $8,000 on its quantum
meruit claim.4
4
Briefly, Raym also contends that allowing Tupelo to prevail on its quantum
meruit claim would contravene Texas Property Code Section 53.151, which provides in
relevant part that a creditor of an original contractor may not collect or enforce a
security interest against money that the owner owes to the original contractor. Tex.
Prop. Code Ann. § 53.151(a). However, Tupelo was not a creditor of the contractor
DNA Construction; DNA Construction owed no money to Tupelo. Instead, Tupelo
owed money to DNA Construction, making it the debtor of a contractor. Because
Tupelo was not the creditor of a contractor, this section does not apply.
12
“When contested fact issues must be resolved before equitable relief can be
determined, a party is entitled to have that resolution made by a jury.” Hill, 544 S.W.3d
at 741 (cleaned up). Because fact issues persist, we agree with Raym that Tupelo did
not conclusively prove its quantum meruit claim or its entitlement to the remaining
$8,000.

Outcome: We affirm the summary judgment to the extent that it awards $51,535 in
damages, $21,530.78 in a purchase money resulting trust, $70,907.50 in attorney’s fees, appellate attorney’s fees, and foreclosure of Tupelo’s mechanic’s lien to the extent of $51,535. We reverse the summary judgment as to the remaining $8,000 and remand for further proceedings.

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