IN THE

TENTH COURT OF APPEALS

No. 10-08-00238-CV

TED BOOHER,

Appellant

v.

ZEIG ENTERPRISES, INC.,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court No. 08-03-17,939-CV-A

MEMORANDUM OPINION

Ted Booher entered a contract with Zeig Enterprises, Inc. to purchase certain

unimproved real property. Closing was scheduled for February 2007, but was delayed 

when the parties discovered environmental hazards on the property. Booher spent 

approximately $150,000 cleaning the property. On October 4, Zeig notified Booher of an 

October 12 closing date. Booher was unable to prepare for closing and sued Zeig. The 

trial court granted Zeig’s traditional and no-evidence motions for summary judgment. 

In two issues, Booher appeals the granting of these motions. We affirm.
Booher v. Zeig Enters., Inc. Page 2

ANALYSIS

In issue one, Booher maintains that he had good cause for filing late responses to 

Zeig’s request for admissions, on which Zeig relied in its summary judgment motion. 

The trial court granted Booher’s motion to withdraw the deemed admissions. In its 

brief, Zeig states that it did not object to the withdrawal and does not challenge the trial 

court’s decision. This issue presents nothing for our review.

In issue two, Booher asserts unjust enrichment and promissory estoppel 

arguments to support his contention that summary judgment was improperly granted. 

He cannot prevail on either theory.

First, as argued by Zeig, Booher cannot recover under an unjust enrichment 

theory because his written contract with Zeig addresses the issue in dispute. See Fortune 

Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (“Generally speaking, when a 

valid, express contract covers the subject matter of the parties’ dispute, there can be no 

recovery under a quasi-contract theory.”). Specifically, the contract provides that 

Booher is to purchase the property “in its present condition ‘as is, where is’” and 

contains an “environmental matters” provision:

Buyer is advised that the presence of wetlands, toxic substances, including 

asbestos and wastes or other environmental hazards, or the presence of a 

threatened or endangered species or its habitat may affect Buyer’s 

intended use of the Property. Buyer should inspect the Property for such 

matters. Upon closing Buyer assumes responsibility for all such matters. 

At a hearing on an unrelated motion, Booher testified that he believed this provision to 

mean that if an environmental problem arose, it was his responsibility.
Booher v. Zeig Enters., Inc. Page 3

The contract addresses the purchase of the property in its “present condition.” 

The unjust enrichment claim involves an environmental condition found on the 

property to be purchased under the contract. Booher agreed to purchase the property 

“as is” and, per the “environmental matters” provision in the contract, understood 

himself to be the party responsible for environmental conditions found on the property. 

Because the contract addresses the subject matter of the dispute, an unjust enrichment 

theory is not available to Booher. See Fortune, 52 S.W.3d at 684.

Second, Booher’s argument that he detrimentally relied on Zeig’s representations 

such that he spent $150,000 cleaning property that he believed he was purchasing, is 

couched in terms of a promissory estoppel argument that was never pleaded. Because 

this cause of action was not pleaded, we need not consider it.

1 See Foster v. Howeth, 112 

S.W.3d 773, 775 (Tex. App.—Beaumont 2003, no pet.); see also Pooser v. Cox Radio, Inc., 

No. 04-08-00270-CV, 2009 Tex. App. LEXIS 492, at *10 (Tex. App.—San Antonio Jan. 28, 

2009, no pet.) (mem. op.).

In summary, the trial court properly granted Zeig’s traditional and no-evidence 

motions for summary judgment. We overrule issues one and two. The trial court’s 

judgment is affirmed.

 

 

1 Even had promissory estoppel been pleaded, Booher does not argue that the contract was in any 

way unenforceable, a prerequisite for asserting promissory estoppel. See Frost Crushed Stone Co. v. Odell 

Geer Constr. Co., 110 S.W.3d 41, 44 (Tex. App.—Waco 2002, no pet.) (Although promissory estoppel is 

normally a defensive theory, it is an available cause of action to a promisee who relied to his detriment on 

an otherwise unenforceable promise.); see also Ondemir v. Ocwen Fed. Bank, No. 04-02-00721-CV, 2003 Tex. 

App. LEXIS 7890, at *6 (Tex. App.—San Antonio Sept. 10, 2003, pet. denied) (mem. op.).
Booher v. Zeig Enters., Inc. Page 4

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed 

Opinion delivered and filed July 8, 2009

[CV06]