### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00310- CV

Sonn y Ellen an d Lyn n C. Ell en, Appellan ts

v. F . H. P artner s, LLC an d Cud e P lace, LLC, Appellees

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT

NO. 32,6 63, H ONO RAB LE ED MAGRE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellants S onny Ellen and L y nn C. Ellen sued appellee s F.H. Partners, L L C and Cude Place, L L C (collec tively “F .H. Partners” ) for decla ratory relief

, promissory estoppel, and
wrong ful fore closure afte r F.H. Partners fore closed on the E llens’ rea l proper ty in Milam and Robertson Counties. The trial c ourt g rante d summary judgme nt in favor of F.H. Partners on eac h of the Ellens’ claims. I n a single issue on appea l, the Ellens challeng e the trial court’ s g rant of
summary judgme nt as to their claim for promissory

estoppel. We will affirm.

BACK GR OUND Sonny Ellen borrowe d $588,758.29 from First Victoria National Ba nk (the “B ank”) in J anuar y 2007. As part of the loan transac tion, Sonny Ellen signe d a written loan ag ree ment, both Ellens executed deeds of trust cover ing, as secur ity for the loan, rea l proper ty located in Milam andRobertson Counties, and both Ellens signe d a “Notice of I nvalidity of Ora l Ag ree ments” (her einaf ter “notice of invalidity ”) prohibiting oral modifications to the loan ag ree ment (collec tively “L oan Agr eeme nt”). Almost a y ear later, the Ba nk assig ned its interest in the L oan Agr eeme nt to F.H. Par tners. By J uly 2008, the Ellens had defa ulted on their loan by failing to make pay ments as require d by the L oan Ag ree ment, so F.H. Partners sent notices of defa ult, demand for pay

ment, and intent to acc eler ate maturity to the Ellens in J uly

and Aug ust 2008. I n mid-September 2008, afte r
t h e E llens failed to cure their defa ult, F.H. Partners notified the Ellens that F.H. Partn er s h ad

acc eler ated the note’s maturity and would fore close on the secur ed re al p ro p er t y by selling it at a trustee’ s sale on October 7, 2008, if the Ellens failed to pa y the note in f

ull by that date. When the Ellens failed to pa

y the note in full as demande d, F.H. Partners sold the rea l property at a trustee ’s sale to F .H. Properties, L P, which later sold the pr operty to appellee Cude Place. Shortly afte r the fore closure, the Ellens filed this suit, claiming that F.H. Partners had fa i l ed t o p roperly notify them of the impending fore closure. They soug ht a decla ration that the fore closure sa le and the subse quent sale to Cude Place wer e void bec ause of the improper notice

. F.H. Partners filed a motion for summary judgme nt, asser ting that notice was proper and attaching the notices as summary -judg ment proof. The trial court g rante d F.H. Partners’ motion, but beca use the Ellens had amende d their petition immediately prior to the hear ing to a dd a ca use of a ction for promissary

estoppel, the judg ment was only partial. The Ellens’ claim fo r p ro m issory estoppel was based on their alleg ation that F.H. Partners’ loan office r, Fr an Dorton, had promised Sonny Ellen that F.H. Partners would not decla re

2the L oan Ag ree ment in defa ult or fore close on the secur ed proper ty until J anuar

y 2009 to allow the Ellens time to re fi nance or sell the proper ty

. Specifica lly , Sonny Ellen claimed that he met with Dorton at the Milam County p ro p er t y s ometime during the summer of 2008 to discuss the L oan Agr ee m ent. Dorton alleg edly told him during this meeting that F.H. Partners was no l o n ger interested in servicing the L oan Ag ree ment and simply wanted the loan paid. Sonny Ellen say s that he then asked Dorton if F.H. Partners would be will ing to del ay d ec l aring the L oan Agr eeme nt in defa ult and fore closing on the proper ty until J anuar

y 2, 2009, which was when the next note pay ment

was due, to g ive him time to resolve the debt. Acc ording to Sonny , Dorton responde d by say ing that Sonny Ellen’s “off

er was ‘doable .’” The Ell en s co n t end that they relied on Dorton’s promise by delay ing r efina ncing or selling the prope rty

. F.H. Partners filed a motion for summary judgme nt in response to the Ellens’ claim for promissory estoppel, arg uing that (1 ) “doable ” was not a promise, and (2) both the L oan Agre ement and business and commerc e code section 26.02, which cre ates a statute of fra uds for

cer tain loan ag ree ments, see Tex. Bus. & Com. Code Ann. § 26.02 (West 2009), prohibited subsequent oral modifications of the L oan Ag ree ment. The trial court gra n t ed F. H. 1 Partners’ motion, resulting in a final judgme nt. I t is this g rant of summary judgme nt that the Ellens
now appe al.

Although F.H. Partners’ motion for summary judgme nt purports to asser t both traditional 1 and no-evide nce g rounds, the motion does not state the elements of promissory estoppel for which F.H. Partners alleg es t here is no evidenc e. See Tex. R. C iv. P. 166a(i) (setting forth requirements for no-evide nce summary judgme nt). Thus, F.H. Partners’ no-evide nce motion is defe ctive and insufficient to support summary judgme nt. S ee T i mpte Indus., Inc. v. Gish , 286 S.W .3d 306, 310 (Tex. 2009). Acc ording ly , we will consider only its t ra d i t i o n al summary -judg ment motion on appea l. 3STANDARD OF REVIEW W e re v i ew summary judgme nts de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). Traditional summary judgme nt is proper only when the movant establishes that there is no g enuine issue of materia l fac t and that the movant is entitled to judgme nt

as a matter of law. Tex. R. Civ. P. 166a(c ). I n revie wing a traditional summary judgme nt, we must indulge ever

y rea sonable infere nce in favor of the nonmovant, take all evidenc e favor able to the
nonmovant as true, and resolve any doubts in fa v o r of the nonmovant. Valence Operating , 164 S.W .3d at 661. A defe nd an t wh o m oves for traditional summary judgme nt on the plaintiff’s claims must conclusively disprove at least one element of each of the plaintiff’s c auses of action. Litt le v. Texas Dep’ t of Criminal Justice , 148 S.W .3d 374, 381 (Tex. 2004). Where, as here , a trial court’s order g ranting summary judgme nt does not specify the g rounds relied on, the revie wing court
must aff irm summary judgme nt if any of the sum m ar y -j u dg ment g rounds are meritorious. FM Props. Ope rating Co. v. Ci ty of Austin , 22 S.W .3d 868, 872 (Tex. 2000).

DISCUSSIO N I n a single issue on appea l, the Ellens challeng e the trial court’s g rant of su m m ar y judgme nt on their promissory -estoppel claim. Specifica lly , the Ellens arg ue that the trial court err ed beca use (1) the summary -judg ment evidenc e cre ated a fac t issue for eac h element of promissory estoppel, (2) neither the L oan Ag ree ment nor section 26.02 of the business and commerc e code apply
to F.H. Partners’ oral “promis e” t o d el ay defa ult and fore closure, and (3) they wer e entitled to a continuance of the summary -judg ment hear ing to obtain Dor ton’s aff idavit a nd conduct discovery
reg arding the alleg ed fa

milial connections betwe en the a ppellees a nd their attorne y . 4Request for Continuan ce Be fore we addre ss the Ellens’ complaints reg arding the trial court ’ s g r ant of summary judgme nt, we firs t addre ss their contention that the t rial court err ed by not g ranting a continuance of the summary -judg ment hear ing. The Ellens contend that they asked the trial court for a continuance of the summary -judg ment hear ing to allow them time to obtain Dorton’s aff idavit and
to conduct disc o v er y reg arding their contention that there wer e familial connec tions among appellee s and their attorney

. The trial court did not issue a ruling , but the hear ing went forwa rd as orig inally schedule d. We revie w a trial court’s denial of a motion for continuance for an abuse of discretion. BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 800 (Tex. 2002). “A trial court ‘abuse s its discretion when it rea ches a decision so arbitra ry and unrea sonable as to amount to a clea r and preju d i ci al err or of law.’” Id. (quoting Johnson v. Fourth Court of Appeals , 700 S.W .2d 916, 917 (Tex. 1985)).

To prese rve error reg arding a trial c ourt’s fa ilure to g rant a continuance , the re cord
must show that the movant made a timely reque st or motion for continuance that stated the g rounds for the continuance and that complied with the require ments of the rules of civil proce dure. Tex. R. App. P. 33.1(a) (1). I n t h e p re s en t case , there is no motion or reque st for continuance of the final
summary -judg ment hear ing in the rec ord. Although the Ellens filed an aff idavit from their attorney stating that the Ellens neede d additional time to obtain Dorton’s aff idavit and conduct discovery , that aff idavit was at t ac h ed as an ex hibit to the El lens’ response t o F.H. Partners’ motion for summ ary judgme nt. The aff

idavit does not contain a reque st for a continuance of any hear ing. Fur ther, there

5is nothing in the rec ord we have befor e us showing that the E l l en s ever asked the trial court for a

continuance of the final summary -judg ment h ea ri n g. Whil e applications for continuance of a summary -judg ment hear ing under rule 166a do not re q u i re strict compliance with rule 252’s require ments for motions for continuance , see Tex. R. Civ. P. 166a(g ) (continuanc e of s u m m ary judgme nt hear ing when aff idavits not available ); Tex. R. Civ. P. 252 (applica tion for continuance ),

a party must still ask the court for the relief it seeks befor e it can appea l the denial of that relief

. See Tex. R. App. P. 33.1(a) (1); Rylee v. McM orrough , 616 S.W .2d 649, 653 (Tex. Civ. App.—Houston [14t h Dist.] 1981, writ dism’d) (holding that party may not complain on appea l that trial court failed
to g rant continuance when party did not reque st a continuance ). Be cau se there was no reque st or motion, there can be no order or ruling from which the Ellens can now appea l. Acc ording ly , we hold that the Ellens waive d their complaint re g arding the trial cour t’s failure to gr ant a c ontinuance. Even if we assume that the Ellens proper ly prese rved err or, howeve r, their “re quest” fa i l s t o m ee t the require ments of rule 166a(g ), which provides that a trial court may order a continuance of a summary -judg ment hear ing if it “appe ar[s] from the aff idavits of a party opposing the motion that he cannot for rea sons stated p resent by aff idavit fac ts essential to justify his opposition” to summary judgme nt. Tex. R. Civ

. P

. 1 6 6 a( g). Although their attorney ’s aff idavit stated that the Ellens neede d additional time to obtain Dorton’s aff idavit, it does not sta

te a rea son why the El lens wer e unabl e t o o b t ain her aff idavit prior to the hearing —e.g ., she was unavailable

or they could not loc ate her. Fur ther, the aff

idavit doe s not e x plain how or why Dorton’s aff idavit would p re s en t any essential fac ts that Sonny Ellen’s aff idavit could not. Sonny Ellen was the

rec ipient of Dorton’s alleg ed promise, so he is presumably as knowledg eable about what Dorton said

6to him as she is. Thus, her aff idavit would, at best, dupl i ca t e his aff idavit. Acc ording ly , Sonny Ellen’s aff

idavit pr esente d the “fa cts essential to justify [t he Ellens’] opposition” to F .H. Partners’ motion for summary

judgme nt. See id. Simi larly , althoug h t h e aff idavit states that the Ellens neede d time to conduct discovery into the alleg ed familial rela tionships among appellees and their attorney , it does not explain how this evidenc e is essential to their opposition t o F. H. Partners’ motion for summary judgme nt. See id. We cer tainly fail to see how evidenc e of such a rela tionship here would rela te to

a claim for promissory estoppel. Acc ording ly , we cannot say that the trial court abused its discretion in deny ing a

continuance here

.

P rom issory Estopp el

The rema inder of the Ellens’ issue on appea l challeng es the trial cour t ’s gra n t of
summary judgme nt on their promissory -estopp e l c la im

. Promissory estoppel is an equitable doctrine that is ordinarily used defe nsively to “pre vent[] a p ar t y fr o m insisti ng upon his strict leg al rig hts when it would be unjust to allow him to enfor ce them.” W heele r v. W

hite , 398 S.W .2d 93, 96 (Tex. 1985); see also Sun Oil Co. ( Del.) v. Madele

y , 626 S.W .2d 726, 734 (Tex. 1 9 8 1 ). Texas courts, howeve r, have rec og nized promissory estoppel as an aff irm at ive claim in cer

tain limit ed circ umstances:

Where the promisee has failed to bind the promi sor to a leg ally sufficie nt contra ct, but wher e the promisee has acte d in re l i an ce upon a promise to his detriment, the promisee is to be allowed to rec over no more than relianc e damag es measure d by the detriment sustained.

7See W

heele r , 398 S.W

. 2 d at 97. Promissory estoppel, howeve r, may not be used to cre ate a
contra ct that does not otherwise exis t. Id. at 96; see also Rice v. Metro. Life Ins. Co. , __ S.W .3d __, No. 02-09-0248- CV, 2010 WL 3433058, at * 10 (Tex

. Ap p.—For t Worth Aug ust 31, 2010, no pet. h.) (mem. op.) (noting that brea ch o f co n t ra ct and promissory estoppel are mutually exclusive claims).

The elements of a promissory -estoppel claim are (1) a promise; (2) fore seea bility of relianc e by the promisor; (3) actua l, substantia l , an d re as onable relianc e by the promisee to its detriment; and (4) injusti ce that can be avoided only by enfor ceme nt of the promise. In re W eek ley Homes, L.P. , 180 S.W .3d 127, 133 (Tex. 2005). I n addition, when promissory estoppel is used to enfor ce a promise that would be unenfor cea ble beca use of the statute of fra

uds, the promise must be

a promise to sign an alre ady exis ting written ag ree ment that would itself satisfy the require ments of the statute of f

rauds. Nagle v. Nagle , 633 S.W .2d 796, 800 (Tex. 1982).
H e r e , F

. H

. Partners moved for summary judgme nt on the Ellens’ pro mi s s o r y - e s to p p e l cl ai m , as serting that (1) Dorton’s statement that Sonny Ellen’s reque st was “doable ” was not a promise to ref

rain from enfor cing the terms of the L oan Ag ree ment, and (2) the statute of fra uds, as codified in sec tion 26.02 of the bus iness and commerce code, a nd the notice of

invalidity

prohibit oral modifications of the L oan Ag ree ment. I n support of its motion, F.H. Partners attache d, among other documents, the L oan Ag ree ment, including the deeds of trust and notice of invalidity , and the assig nment of the loan f

rom the B ank. We will first addre ss F.H. Partners’ asser tion that section 26.02 of the business and

commerc e code prohibi ts oral modi fica tions of t he L oan Agr eeme nt. Section 26.02 provides that

8loans from financ ial instit utions in amounts g rea ter than $50,000 are not enfor cea ble unless the loan
ag ree ment is in writing and signe d by the parties to be bound

. Tex. Bus. & Com. Code Ann. § 26.02(a) -(b) (West 2009)

. The statute further provides that a loan ag ree ment that is subject to this section “may not be varie d by any oral ag ree ments or discussions that occur befor e or contempora

neously with the execution of the ag ree ment.” Id. § 26.02(d). Finally , section 26.02(e) require s that eac h loan ag ree ment that is subject to this section must notify the debtor or obligor , in a separate written d o cument, about section 26.02(d)’s prohibition ag ainst oral modi fica tions. See id. § 26.02(e)

. The sample l an gu age from 26.02(e) includes the following : “This written loan
ag ree ment repr esents the final ag ree ment betwee n the parti es an d m ay not be contra dicted by evidenc e of prior, contempora neous, or subsequent oral ag ree ments of the parties.” Id. The notice of invalidity

signe d by

the Ellens her e tra cks this lang uag e exactly

. T h e E ll e n s c o n te n d th a

t s e c ti o n 2 6

. 0 2(d)’ s prohibition ag ainst oral modifications doe s
not apply to F.H. Partners’ oral “promise” here beca use that “promise” was made after the execution of the L oan Ag ree ment. Whil e we ag ree that section 26.02(d) re fe rs only to prior or contempora

neous agr eeme nts or di scussions, we also note that section 26.02(e) requires t hat each loan ag ree ment subject to this section contain lang uag e prohibiting “prior, contempora neous, or subsequent oral ag ree ments.” See id. (empha sis added)

. Neve rtheless, we need not addre ss this
appar ent interna l statutory conflict a t this t ime for two r easons. First, the notice of invalidity of oral statements, which was signe d by the Ellens and incorpora ted by ref

ere nce into the L oan Ag ree ment, expressly prohibits subsequent oral modifications of the L oan Ag ree ment. Thus, the terms of the L oan Agre em en t itself prohibit enfor ceme nt of the “pr omise” her e eve n if section 26.02 does not.
9Second, “[p] arties to a written contra ct that is within the provisions of the statute of

fra uds

. . . ‘may not by mere oral ag ree ment alter one or more of the t er m s ’” of that contra ct. Dracopoulas v. Rachal , 411 S.W .2d 719 , 7 2 1 ( T e x. 1967) (quoting Robertson v. Melton , 115 S.W .2d 624, 627 (T ex. 1938)); see also Givens v. Dougherty, 671 S.W .2d 877, 878 (Tex. 1984) (“I t g oes without sa

ying that a contra ct require d to be in w riting cannot be orally modified except in limited circ umstances

. . . .”); SP Terrace, L.P. v. Meritage Homes of Tex., LLC , __ S.W .3d __, No. 01-09- 00155, 2010 WL 1840183, at *5 (Tex. App.—Houston [1st Dist.] May 6, 2010, no pet.) (“G ener ally , if a contra ct fa l l s wi thin the statute of fra uds, then a party cannot enfor ce any subsequent oral materia l modification to the contra ct.”)

. So viewing the evidenc e in the light most favor able to the Ellens, the summary -judg ment evidenc e establishes that the L oan Ag ree ment cover ed a loa n from

a financ ial instit ution—i.e., the Ba nk—for more than $50,000 and that F.H. Partners orally ag ree d
to modify the terms of the L oan Ag ree ment by promising to not defa ult or fore close befor e J anuar y 2009. Thus, reg ardle ss of whether section 26.01’s statute of fra uds applies to the “promise” in this

case , the Ellens cannot enfor ce that “promise” beca use it is an oral modification of a loan ag ree ment that was subject to the s tatute of fra uds. Acc ording ly , whether throug h application of the t erms of the L oan Ag ree ment itself or of longsta nding common-law principles, the Ellens cannot enfor ce an oral modifica tion to the L oan Ag ree ment. 2

The Ellens’ contention that F.H. Partners cannot enfor ce the invalidity of oral statements 2 beca use F.H. Partners “was not a si g natory ” to that document and beca use t hat document was not executed for F.H. Partners’ “bene fit” is without merit. The Ba nk assig ned to F.H. Partners “all [of the Ba nk’s] rig ht, title, and interest in the [L oan Ag ree ment], toge ther with, and all documents and instruments evidenc ing, secur ing, g overning and g uara nteeing the indebtedness eviden ce d b y the [L oan Ag ree ment].” Thus, beca use an assig nee stands in the shoes of his ass i gn o r, F.H. Partners obtained all the rig hts, title, and interest that the Ba nk had, including all rem ed i es t o en forc e the obliga tion. See J

ackson v . Thweatt , 883 S.W .2d 171, 174-77 (Te x . 1994). 10Our inquiry does not end here , howeve r, beca use promissory estoppel can be used to

en fo rce a promise that would be otherwise unenfor cea ble beca use of the statute of fra

u d s i f t h e promise is a promise to sign an alre ady prepa red written ag reem en t that would satisfy the require ments of the statute of f rauds. See Nagle , 633 S.W .2d at 800. I n the pre sent ca se, viewing the evidenc e in the light most favor ab l e t o t h e E llens and assuming their alleg ations are true, the
summary -judg ment evidenc e establishes that Dorton promised that F.H. Partners would not decla re the L oan Ag ree ment in defa ult or fore close on the secur ed proper ty until afte r the J anuar

y 2009 loan
pay ment was due. Dorton did not promise to sign an exis ting written ag ree ment. Thus, the evidenc e disproved, as a

matter of la

w, an e lement of the Ellens’ promissory -estoppel c laim. Acc ording ly , beca

use the summary -judg ment evidenc e established that (1) the terms

o f t h e L oan Ag ree ment prohibit subsequent oral modifications to the L oan Ag ree ment, (2) th e alleg ed promise here was an oral ag ree ment to chang e the terms of the L oan Ag ree ment, and (3) the
L oan Ag ree ment was sub j ect to section 26.02’s statute of fra uds, we hold that F.H. Partners was entitled to summary

judgme nt on the Ellens’ cla im for promissory estoppel. Finally , we note tha t, reg ardle ss of whethe r the statute of fr auds applies or whether there was a promise to put the “promise” in writing , Dorton’s statement to Ellen that his reque st was “d o ab l e” was too vag ue and indefinite to be enfor ced in a suit for promissory estoppel. S ee Gilmartin v. KVTV-Channel 13 , 985 S.W .2d 553, 558-59 (Tex. App.—San Antonio 1998, no pet.) (holdi n g t h at em ploy er’ s statement that “employ ment for more than one y ear was ‘doable ’” was insufficient to constitute a promise). Fur ther, even if F.H. Partners’ “promise” here was sufficie ntly definite, it was not rea sonable or justifiable for the Ellens to rely on the oral “promise” beca use the
L oan Ag ree ment addre ssed the substance of the ora l s tatement—i.e., when and under what
11circ umstances t h e h older of the note can decla re the note in defa

ult and fore close on the secur ed
proper ty —and specific ally prohibited oral modification of its terms. See Simpson v. W oodbridge Props., L.L.C

. , 153 S.W .3d 682, 684 (Tex. App.—Dallas 2004, no pet.) (holding that disclaimer of relianc e clause in contra ct neg ated relian ce on post-contra ct oral misrepre sentations); DRC Parts & Acc essories, L.L. C. v. VM Motori, S.P.A. , 112 S.W .3d 854, 858-59 (Tex. App.—Houston [14t h Dist.] 2003, pet. denied) (holdin g t h at re liance on both pre- and post-contra ctual oral
repr esenta tion s , d i rec tly contra dicted by express terms of contra ct, was not justified as matter of law). Finally , we note that the Ellens’ alleg ed relianc e on F.H. Partners’ “promis e” i s even more

unrea sonable considering that F.H. Partners, shortly afte r the alleg ed promise was made, sent notices of defa ult to the Ellens indi ca t i n g that the loan was in defa ult and that F.H. Partners intended to fore close on the pr operty

unless the loan wa s paid in full by October 8, 2009. We overrule the Ellens’ sing le issue on appe al.

CONCLUSION Having overr

uled the Ellens’ sole issue on appea l, w e aff irm the trial court’s order

.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and He nson Affir med Filed: De cembe r 1, 2010

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