Affirmed and Memorandum Opinion filed May 16, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00435-CV

LONE STAR AIR SYSTEMS, LTD., Appellant

V.

DAVID POWERS, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2008-74625

O P I N I O N

In this contract dispute, appellant Lone Star Air Systems, Ltd. challenges the 

trial court’s grant of summary judgment in favor of appellee David Powers, 

individually. Lone Star contends in four issues that the trial court erred in 

disposing of its claims for breach of contract, promissory estoppel, and fraud. We 

affirm. 
2

Background

Lone Star operated a heating and air conditioning business in Houston. In 

2000, Lone Star entered into a ―Master Purchase Order Agreement‖ (Agreement), 

providing for the sale and purchase of goods, with David Powers Homes. In 2008, 

Lone Star sued David Powers Homes, Inc. (DPH, Inc.) and Powers to collect a

$206,300.65 balance on unpaid invoices1from approximately 50 completed jobs

involving the sale of air conditioning equipment and labor.

2

 David Powers Homes

and its affiliated business entities ceased operations in 2009.

In May 2010, DPH, Inc. filed a sworn petition to confess judgment,3stating 

it was ―not contesting liability, ha[d] no money for legal fees, and [sought] to avoid 

litigation.‖ Lone Star subsequently sought an order nonsuiting DPH, Inc., which 

the trial court granted. Lone Star’s latest petition expressly included claims against 

Powers for breach of contract, fraud, and alter ego. Lone Star contends the petition 

also implicitly included a promissory estoppel claim. Powers filed a traditional 

partial summary judgment motion on the breach of contract claim and a hybrid noevidence and traditional summary judgment motion on Lone Star’s ―veil piercing 

claims,‖ including fraud and alter ego. The trial court granted both motions and 

included in its order the following language, ―This is a final judgment and is 

intended to dispose of all claims and counterclaims at issue in this case.‖

 

1

This amount later was amended to $196,701.00.

2 As set forth below, David Powers Homes is an assumed name of DJPH, LLC. Several 

business entities are affiliated with David Powers Homes, including DPH, Inc. It is undisputed 

that between 2000 and 2009, DPH, Inc. paid Lone Star for hundreds of jobs. Three payments, 

however, appear to have been made by David Powers Homes, BL Ltd. All purchase orders were 

issued by David Powers Homes S.T., Ltd., David Powers Homes BL, Ltd., or David Powers 

Homes W.O., Ltd.

3

Texas Rule of Civil Procedure 314 allows a defendant to ―appear in person or by 

attorney, and confess judgment therefor in open court.‖
3

Discussion

In four issues, Lone Star challenges the trial court’s grant of final summary 

judgment, contending (1) the contract was not subject to the statute of frauds; 

(2) Powers did not seek summary judgment on Lone Star’s promissory estoppel 

claim and, alternatively, the claim was not subject to the statute of frauds; and 

(3) Powers did not seek summary judgment on Lone Star’s individual fraud claims.

We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). In reviewing either a no-evidence or a 

traditional summary judgment motion, all evidence favorable to the nonmovant is 

taken as true, and we draw every reasonable inference and resolve all doubts in 

favor of the nonmovant. Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex. 

App.—Houston [14th Dist.] 2008, pet. denied). When a party seeks summary 

judgment on both no-evidence and traditional grounds, we first review the trial 

court’s summary judgment under the no-evidence standard of Texas Rule of Civil 

Procedure 166a(i). PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex. App.—Houston

[14th Dist.] 2011, no pet.). If the nonmovant fails to produce more than a scintilla 

of evidence raising a genuine fact issue on the challenged elements of his claims, 

then there is no need to analyze whether the movant’s summary-judgment proof on 

the same claim satisfied the traditional summary-judgment burden of proof under 

Texas Rule of Civil Procedure 166a(c). Id.

In a no-evidence summary judgment motion, a party may move for 

judgment on the ground that there is no evidence of one or more essential elements 

of a claim or defense on which an adverse party would have the burden of proof at 

trial. Tex. R. Civ. P. 166a(i); Mendoza, 276 S.W.3d at 655. A no-evidence 

summary judgment motion should be denied if the nonmovant presents more than 

a scintilla of probative evidence to raise a genuine issue of material fact on the 
4

challenged element or elements. Forbes, Inc. v. Granada Biosciences, Inc., 124 

S.W.3d 167, 172 (Tex. 2003); Mendoza, 276 S.W.3d at 655. More than a scintilla 

of evidence exists when reasonable and fair-minded individuals could differ in 

their conclusions. Forbes, 124 S.W.3d at 172; Mendoza, 276 S.W.3d at 655. Less 

than a scintilla of probative evidence exists if the evidence creates no more than a 

mere surmise or suspicion of fact regarding a challenged element. Forbes, 124 

S.W.3d at 172; Mendoza, 276 S.W.3d at 655.

A traditional summary judgment is properly granted only when the movant 

establishes that there are no genuine issues of material fact and it is entitled to 

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident 

Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). To determine if the 

nonmovant raises a fact issue, we review the evidence in the light most favorable 

to the nonmovant, crediting favorable evidence if reasonable jurors could do so, 

and disregarding contrary evidence unless reasonable jurors could not. City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); PAS, 350 S.W.3d at 607-08. 

A defendant who conclusively negates a single essential element of a cause of 

action or conclusively establishes an affirmative defense is entitled to summary 

judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 

(Tex. 2010); PAS, 350 S.W.3d at 608. 

I. No Contract with Powers

In its first issue, Lone Star argues the trial court erred in granting Powers’ 

traditional summary judgment motion on Lone Star’s contract claim based on the 

statute of frauds.4 The only contract at issue is the Agreement executed between 

Lone Star and David Powers Homes. Lone Star argues that the true identity of 

David Powers Homes is Powers himself or, at least, there exists a question of fact, 

 

4

See Tex. Bus. & Com. Code § 2.201.
5

and that Lone Star presented competent evidence establishing exceptions to the 

statute of frauds. Powers argues he is not a party to the Agreement, and the actual 

party to the Agreement is DJPH, LLC, for which David Powers Homes is an 

assumed name. 

Both parties acknowledge that the Agreement is subject to the statute of 

frauds and not signed by Powers.5 Under the statute of frauds, a contract for the 

sale of goods over $500 is not enforceable unless the agreement is in writing and 

signed by the person against whom enforcement is sought or by his authorized 

agent or broker. Tex. Bus. & Com. Code § 2.201(a). The purpose of the statute of 

frauds is to prevent fraud and perjury in certain types of transactions by requiring 

certain agreements to be in writing and signed by the parties. Bank of Tex., N.A. v. 

Gaubert, 286 S.W.3d 546, 552–53 (Tex. App.—Dallas 2009, pet. dism’d w.o.j.)

(citing Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001)). The signature of the 

person against whom enforcement is sought authenticates the document as reliable 

evidence of that person’s agreement to the transaction. Sterrett v. Jacobs, 118 

S.W.3d 877, 880 (Tex. App.—Texarkana 2003, pet. denied). Lone Star argues that 

two exceptions to the statute of frauds apply here: that Powers admitted he had a 

contract with Lone Star6and partially performed under it.7 Powers argues these 

exceptions are not applicable to him because he did not have a contract with Lone 

Star.

 

5 David Powers Homes did not sign the Agreement either. However, Powers does not 

contend the Agreement was unenforceable against David Powers Homes.

6 A contract which fails to satisfy the writing requirement but which is valid in other 

respects is enforceable if the party against whom enforcement is sought admits in his pleading, 

testimony or otherwise in court that a contract for sale was made. Tex. Bus. & Com. Code 

§ 2.201(c)(2).

7 A contract which does not satisfy the writing requirement but which is valid in other 

respects is also enforceable with respect to goods for which payment has been made and 

accepted or which have been received and accepted. Id. § 2.201(c)(3).
6

Powers presented the following evidence in support of his contention that he 

was not a party to the Agreement: 

The Agreement, which was not signed by Powers and does not 

include Powers as a party;

Assumed name certificates showing that David Powers Homes is an 

assumed name of DJPH, LLC, see Tex. Bus. & Com. Code § 71.154 

(―A copy of a[n assumed name] certificate or statement is presumptive 

evidence in any court in this state of the facts contained in the copy.‖);

Trial court order deeming admission from Lone Star that David 

Powers Homes is an assumed name of DJPH, LLC8;

Purchase orders issued by business entities affiliated with David 

Powers Homes (David Powers Homes S.T., Ltd., David Powers 

Homes BL, Ltd., and David Powers Homes W.O., Ltd.); and

Payment register showing Lone Star was paid by business entities 

affiliated with David Powers Homes (DPH, Inc. and David Powers 

Homes BL, Ltd.).

9

Lone Star responded with deposition testimony from its representative,

Darrel Teelucksingh, that he ―thought‖ he was working with Powers individually, 

always ―dealt with [Powers] personally,‖ had numerous conversations with 

Powers, settled on pricing with Powers, and did not know there were ―different 

entities.‖ Teelucksingh also submitted an affidavit in which he attested:

David Powers never disclosed to me that he was doing business with 

me as an agent for DJPH, LLC. I always believed that David Powers 

Homes was David Powers doing business as David Powers Homes. 

At my deposition, when opposing counsel asked me whether I 

 

8

Powers requested an admission from Lone Star that the assumed name certificates 

reflect that David Powers Homes is an assumed name of DJPH, LLC. Lone Star objected to the 

request, and the trial court granted Powers’ motion to order the admission deemed under Texas

Rule of Civil Procedure 215.4(a).

9

Lone Star argues Powers ―did business as multiple entities, including himself,‖ but, as 

set forth below, Lone Star presented no evidence to support this allegation.
7

contracted with David Powers individually, I thought he meant did I 

have another contract that was executed by David Powers.10

Teelucksingh’s belief that David Powers individually was doing business as David 

Powers Homes is not summary judgment proof of that fact. See Ryland Grp., Inc. 

v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Moreover, Telucksingh’s 

conversations and relationship with Powers are not inconsistent with the idea that 

the Agreement was between Lone Star and DJPH, LLC. Further, Lone Star’s 

deemed admission that David Powers Homes is an assumed name of DJPH, LLC 

conclusively established that fact. See Tex. R. Civ. P. 198.3 (―A matter admitted 

under this rule is conclusively established as to the party making the admission 

unless the court permits the party to withdraw or amend the admission.‖); see also

Goss v. Bobby D. Assocs., 94 S.W.3d 65, 71 (Tex. App.—Tyler 2002, no pet.) 

(―The trial court cannot consider affidavits offered by the non-movant to contradict 

deemed admissions in cases involving summary judgments.‖).

Lone Star argues Powers admitted he had a contract with Lone Star based on 

the following:

Powers’ first-filed motion for summary judgment stating, ―Lone Star 

installed air conditioning equipment in certain single family homes 

under contract with DJPH, LLC d/b/a David Powers Homes.‖

Powers’ ―Motion for Evaluation of Plaintiff’s Rule 198 Admission 

Responses‖ stating, ―This case involves approximately $162,611.56 in 

contract damages owed to Plaintiff Lone Star Air Systems, Inc. by 

DJPH, LCC d/b/a David Powers Homes and/or David Powers Homes, 

Inc. No one disputes that plaintiff performed the work.‖

Powers’ reply in support of his motion for summary judgment stating, 

―The parties in this case agree that Lone Star Air installed air 

conditioning equipment in certain single-family homes under a 

 

10 Teelucksingh previously had given a deposition in which he stated he did not have an 

individual contract with Powers.
8

contract with David Powers Homes.‖ 

Powers’ affidavit, stating ―Lone Star . . . installed air conditioning 

equipment for DJPH, LLC dba David Powers Homes.‖

None of these statements are admissions that Powers had a contract with Lone 

Star. In fact, these statements are evidence that the Agreement was between Lone 

Star and DJPH, LLC. Powers also attested, ―I was never an individual party to this 

contract.‖

Lone Star also argues that Powers performed under the Agreement. Lone 

Star bases this contention on the fact that neither party disputes Lone Star

performed under the Agreement. However, this does not establish that Powers was 

a party. Powers presented evidence that all of the subject properties were owned 

by a business entity, every service and product order was placed by a business

entity, and every payment to Lone Star was from a business entity.

11

 

In light of the above evidence, we conclude Powers established he was not a 

party to the Agreement, and thus Lone Star did not have a contract with Powers. 

Accordingly, Lone Star failed to establish either the admission or performance 

exceptions to the statute of frauds were applicable to Powers. The trial court did 

not err in granting summary judgment in favor of Powers on the breach of contract 

claim because, as a matter of law, no enforceable agreement existed between Lone 

Star and Powers. We overrule Lone Star’s first issue. 

 

11 Lone Star cites MG Building Materials, Inc., v. Moses Lopez Custom Homes, Inc. for 

the proposition that a contract containing mutual obligations that has been reduced to writing and 

signed by one of the parties can be accepted by the non-signing party by his conduct, thus 

making it a binding agreement on both parties. 179 S.W.3d 51, 62 (Tex. App.—San Antonio 

2005, pet. denied). However, to enforce the Agreement against Powers, Lone Star was required 

to show that Powers performed under the Agreement in his individual capacity. Lone Star 

presented no evidence in support of this claim.
9

II. No Promissory Estoppel Claim

In its second and third issues, Lone Star asserts that the trial court erred by 

purporting to dispose of all of its claims because both the trial court and Powers 

failed to address Lone Star’s unstated claim for promissory estoppel.12 A pleading 

should contain ―a short statement of the cause of action sufficient to give fair 

notice of the claim involved.‖ Tex. R. Civ. P. 47(a). In the absence of special 

exceptions, a petition should be construed liberally in favor of the pleader. Boyles 

v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). A court should uphold the petition as to 

a cause of action that may be reasonably inferred from what is specifically stated, 

even if an element of the cause of action is not specifically alleged. Id. However, 

when a petition lists specific causes of action, appellate courts should not infer 

another cause of action unless the petition gives fair notice of that cause of action. 

See id. Fair notice is determined by whether an opposing party can ascertain from 

the pleading the nature and the basic issues of the controversy sufficient to prepare 

a defense. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 

2000); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982). 

Notwithstanding the fact that Lone Star’s petition contained a list of specific 

causes of action that did not include promissory estoppel, Lone Star argues the 

claim was encompassed in the catch-all phrase that Lone Star was ―su[ing] for all 

causes of action it is entitled to recover under Texas law including but not limited 

to . . . [b]reach of contract, [n]egligent representation, fraud, fraudulent 

conveyance, fraud in the inducement, and constructive fraud.‖13 This argument is 

without merit. See Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979) (holding 

 

12 The trial court’s summary judgment order was a final judgment expressly ―dispos[ing] 

of all claims and counterclaims at issue in this case.‖ See Lehmann v. Har-Con Corp., 39 

S.W.3d 191, 192-93 (Tex. 2001).

13 Lone Star did not use the words ―promissory estoppel‖ anywhere in its petition. 
10

phrase ―and for such other and further relief to which plaintiff . . . may show 

himself entitled‖ does not encompass cause of action for which fair notice does not 

exist). Lone Star further argues its petition supported a promissory estoppel claim

based on the following allegation: 

Powers held himself out to be David Powers Homes, and assured 

Plaintiff the delinquent debts would be paid from the sale of the 

homes. If the court or jury finds that David Powers Homes does not 

include David Powers individually, then Powers misrepresented the 

identity of David Powers Homes. Plaintiff relied on Powers’ 

representation and conducted business with David Powers during the 

years of 2006-2008, under the assumption David Powers was doing 

business as David Powers Homes. As a result of Powers’ 

representation, Plaintiff suffered injury.

This allegation is more consistent with Lone Star’s fraud claim than a promissory 

estoppel claim. See Formosa Plastics Corp. USA v. Presidio Eng’rs & 

Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998) (listing elements of fraud). Lone 

Star further failed to allege that it was reasonably foreseeable for Lone Star to rely 

on a promise made by Powers, an element of promissory estoppel. See English v. 

Fischer, 660 S.W.2d 521, 524 (Tex. 1983) (listing elements of promissory 

estoppel). Even construing the petition liberally, we cannot conclude that Lone 

Star’s petition fairly apprised Powers that Lone Star was pursuing a cause of action 

for promissory estoppel.

Lone Star also complains that the trial court erred in granting summary 

judgment on its promissory estoppel claim because the statute of frauds is not a 

legal bar to Lone Star’s promissory estoppel claim or, in the alternative, Lone Star 

proved exceptions to the statute of frauds.

14

 We need not reach this issue because 

we hold Lone Star did not sufficiently plead a promissory estoppel claim. We 

 

14 Lone Star listed this as his third issue in the ―Issues Presented‖ portion of its brief but 

did not separately brief the issue under its own heading.
11

overrule Lone Star’s second issue.

III. No Evidence of Fraud

In its fourth issue, Lone Star complains of the trial court’s entry of summary 

judgment on Lone Star’s fraud claim. Powers’ motion alleged that Lone Star had 

not pleaded or offered evidence that the fraud was perpetrated primarily for 

Powers’ direct, personal benefit, as required to pierce the corporate veil under 

current Texas law. Lone Star argues that it did not seek to pierce the corporate veil 

in pursuing a claim against Powers individually for common law fraud and thus 

was not required to plead or provide evidence that David Powers Homes and its 

affiliated entities were used to perpetrate a fraud primarily for Powers’ direct, 

personal benefit. However, by its minimal fraud pleading, Lone Star does seek to 

hold Powers individually liable for the alleged $196,701 obligation under a 

contract to which he is not a party. 

A holder of shares, an owner of any beneficial interest in 

shares, or a subscriber for shares whose subscription has been 

accepted, or any affiliate of such a holder, owner, or subscriber or of 

the corporation, may not be held liable to the corporation or its 

obligees with respect to: . . . any contractual obligation of the 

corporation or any matter relating to or arising from the obligation . . .

on the basis of actual or constructive fraud, a sham to perpetrate a 

fraud, or other similar theory. 

Tex. Bus. Orgs. Code § 21.223(a). The only exception to this rule applies when

the ―[share]holder, beneficial owner, subscriber, or affiliate cause[s] the 

corporation to be used for the purpose of perpetrating . . . an actual fraud . . .

primarily for the direct personal benefit of the [share]holder, beneficial owner, 

subscriber, or affiliate.‖ Id. § 21.223(b). Any such liability for an obligation on 

behalf of the corporation ―is exclusive and preempts any other liability imposed for 
12

that obligation under common law or otherwise.‖ Id. § 21.224.15

Lone Star argues that it does not seek to pierce the corporate veil to hold 

Powers liable but rather is suing Powers in his individual capacity for fraudulent 

acts.

16 Again, this contention is not supported by Lone Star’s pleadings, summary 

judgment response, or evidence. Lone Star pleaded Powers was individually liable 

under the Agreement and alleged ―in the alterative, David Powers is personally 

liable because he used the corporate fiction to commit fraud.‖ Lone Star alleged

Powers misrepresented the identity of David Powers Homes, assured payment of 

the debts, misrepresented owning the properties, and used an assumed name as a 

mechanism to escape debt. Lone Star further alleged that David Powers Homes

and Powers were inextricably tied together under an alter ego theory. All of these 

contentions are based on the premise that if Powers is not a party to the 

Agreement, then he used David Powers Homes and its affiliated entities in a 

fraudulent manner. Moreover, in light of section 21.224, the only theory of fraud 

available to Lone Star against Powers individually is one that requires proof that 

Power perpetrated the fraud for his direct, personal benefit. 

In support of its summary judgment response, Lone Star failed to offer 

evidence of any acts by Powers in his individual capacity distinct from David 

Powers Homes and its affiliated entities. Lone Star was required to present more 

than a scintilla of evidence showing that Powers abused the subject entities 

 

15 This rule applies equally to LLCs. Shook v. Walden, 368 S.W.3d 604, 621 (Tex. 

App.—Austin 2012, pet. denied) (holding same standards apply to LLCs as well as corporations 

and requiring plaintiff to show defendant used business entity to perpetrate a fraud for his direct 

personal benefit).

16 Lone Star expressly states it is not appealing ―summary judgment based on the veil 

piercing claims.‖ Although we conclude that the only theory of fraud available to Lone Star 

against Powers individually is one that some courts characterize as ―piercing the corporate veil,‖

we will analyze the issue as though not abandoned. See, e.g., Doyle v. Kontemporary Builders, 

Inc., 370 S.W.3d 448, 457 (Tex. App.—Dallas 2012, pet. denied).
13

primarily for his direct, personal benefit. See Tex. Bus. Orgs. Code § 21.223(b). It 

did not do so.17 Lone Star points to no evidence of acts by Powers to deceive or 

mislead—explicitly or implicitly. Similarly, Lone Star points to no evidence of 

acts by Powers to abuse the subject entities for his personal gain. In short, Lone 

Star relies solely upon evidence that the personnel of Lone Star worked directly 

with David Powers as a representative of David Powers Homes and Powers never 

volunteered that David Powers Homes, the entity with whom Lone Star knew it 

was doing business, was not the assumed name of David Powers individually. 

Even viewing this evidence in the light most favorable to Lone Star, it is not a 

scintilla of evidence. Accordingly, the trial court did not err in granting summary 

judgment on Lone Star’s fraud claim. We overrule appellant’s fourth issue.

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Christopher, Jamison, and McCally.

 

17 We need not analyze whether Powers’ evidence satisfied the traditional summaryjudgment burden of proof because Lone Star did not satisfy the no-evidence burden of proof. 

PAS, 350 S.W.3d at 607.