1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-02-0168 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E SEPTE MBE R 24, 2003

______________________________ RAUL RESENDEZ a/k /a RESENDEZ & ASSOCIAT ES a/k/a RES ENDEZ &

ASSO CIATES , INC.,

Appellant
v. PACE CONCER

TS, INC., S FX ENTER TAINME NT, INC., and PACECONCER

TS, LTD., Appellees

_________________________________ FROM THE 215 TH DISTRICT COURT OF HARRIS COUNTY; NO. 00-14235; HON. LEVI J. BENTON, PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 Appellant R a ul Resendez a/k/ a Resendez & Associates a/k/a Rese ndez & Associates, Inc. appeals from a sum mary judgm ent granted in favor of Pace Concerts, Inc., SFX Entertainm ent, Inc., and P ace Concerts, Ltd

. The dispute involved whether R esendez and Pa ce e nte red intoa te n-y ear par tne rsh ip to

pro m ote var iousm usical concer t s worldwide. Pace argued, am ong other thing s, that any agreem ent betwee n the parties2 The court d id not p revent recovery of “out-of-poc ket” da mages, how ever. Haase v. Glazner , 62 S.W .3d 79 5, 796(Tex. 2001 ). 2 wasunenforceabl e due to the Statute of Fr auds and so ught a declaratory judgm ent. In turn, Rese ndez sou ght dam ages under various theories of law. The only one pertinent here is fraudulent inducement. Upon hearing Pace’smo tion for sum mary judgm ent, the trial cou rt conc lu ded t hat the Statute of Frauds did indeed bar enforcem ent of the par tne rsh ip agreem ent described by Resendez for it w as not in writing. So to o did it aw ard Pace attorney’ s fees under the authority of the Uniform Declaratory Judgm ents Act. Resendeznow presen ts us w ith two issues. The first concerns th e Statute of Frauds and its effect upon a claim of fra udulent inducement. The second involves the
awa rd of attorney’s fees. For the reasons w hich follow , we ov errule issue one and its subparts, dism iss issue two as mo ot, and affirm the judgm ent of the trial court. Issue One — Stat

ute of Fra uds and Fr

aud in the I

nducement
a. Benefi

t of the Bargai

n Damages All

egedly Recoverabl

e Despi te Statute We firs t ad dre ss Res end ez’ con ten tio n t hat “ben efit of t he barga in dam ages are recove rab le for fraudulent inducem ent regardless of w hether the fraudulently induc e d agree ment

i s enforceable under the Stat ute of Frauds” and conclude that t hey are not. That conclusion is all but dictated by the recent Suprem e Court de cision in Haase v. Glaz ner, 62 S.W.3d 795 (Tex. 2001). There, the court ex pressly held that “the Statute of Frauds bars a fraud claim to the ex tent the plaintiff seeks to recover as damag es the ben efit of a bargain that cannot otherw ise be enforced because it fails to com ply with the Statute of Frauds.” 2 Id . at 799. It so held after reasoning that a plai ntiff’s receipt of3

damag es me asured by the benefit of the bargain was tantam ount to enforcing a contract rendered une nfo rce able by the Statute of Frauds. Id. And, to perm it the use of a particular
cause of action (in thi s case a fraud cla im) to, in effect, enfor ce a contract une nfo rce able due to the Statuteof Frauds would be to rend e r the Statute of Frauds m eaningless. Id. So, it held that the Stat ute barred the plaintiff from recovering the benefit of his bargain. The sam e reasoning is no less applicable when the cause of action being pursued is fraud occurring in the inducement of a contract and the damag es sought are m easured by the benefit of the bargain. Fraudulent inducement is a m ere sub-species of fraud, in general. Id. at 798-99. And, assum ing one can recover dam ages equal to the benefit of the bargain under both theorie s, no practical distinction exists between the effect of s eek ing tho se particular damag es under either theory. In other w ords, and like the claimant in Haase , Resendez is no less trying to do that w hich is barred by the Statute of Frauds; he is, for all practical purposes, try ing to en for ce t he a gre em ent

by rec ove ring theben efit he w ould ha ve rece ived u nder the contract. It does not m atter that Resendez claims fraud in the inducement , a s opposed to fraud, because the result is the sam e; in each instance, the Statute of Fraud s is being d eprived of any ef fect. And, it was

that re su lt which the Su pr eme Court sought to prev ent from occurring in Haase . So, Haase not only guides our decision here butalso com pels us to conclude that Res endez cannot assert fraud in the inducement

to recover damages measured by the benefi t of the bargai n when the contract manifesting the bar gain i s unenforceabl e due to the Statute of Fr auds.4

b. Statute of Frauds Allegedly In applicable Next, we cons ide r Resendez ’ contention that “the S tatute of Frauds does not preclude enforcem ent of the partne rship agreemen t because the stat ute . . . cannot b e used a s an e ngine of fraud.” The extent and m eaning of this contention is som ewhat unclear. Nevertheless, we deri ve two potential aspects from it. The first involves whether the Statute of Frauds applies when the party seeking rec ove ry a ver s a claim sou ndin g in fraud. The second concerns whether partial perform ance of the agreem ent rendered the Statute inap plic able. Irrespective of w hich one Resendez actually intended to pursue, neither obligates us to reverse the sum mary judgm ent. As to the form er, we again look to Haase as con trolling. There, the S uprem e Court had before it one seeking dam ages purportedly arising from fraud and another attem pting to defeat the claim by invoking the St atute of Frauds. The latter w on. So, in effect, the Su pr eme Court perm its application of theSt atu te in tho se s itua tion s w her ein a party seeks damag es recom pensing a purported fraud. As to the m atter of

partial performance of an oral agreement, we ack nowledge that such ma y insulate the agreem ent against the Statuteof Frauds. See e.g., Hooks v. Bridgew ater , 111 Tex. 122, 229 S.W. 1114, 1116 (1921) (involving the conveyance of realty); Welch v. Coca-Cola Enterprises., Inc. , 36 S.W.3d 532, 539 (Tex. App.– Tyler 2000,
no pet.) (involving the placement of vending m achines on sch ool propert y for fiv e years ). Yet, before it can be so insulated, several criteria must be satisfied. For instance, 1) the partyattem pting to enforce the accord m ust have acted in reliance upon it and suffered a substantial detrim ent for which there is n o ad equ ate rem edy and 2) h is opponent m ust be5

in thepos ition of r

eap in g an une arned benefit if the Statute is applied. Exx on Corp. v. BreezevaleLtd. , 82 S.W.3 d 429, 439 (Tex. App.– Dallas 2002, pet. denied); Welch v. Coca- Cola Enterprises., Inc. , 36 S.W.3d at 539. So too m ust it be show n t hat th e complainant’s part ial performan ce wasunequivocally referable to the agreement and corroborat ive of the fact that the contr act was ac tually made. Chevalier v. Lane’s Inc. , 147 Te x. 106, 21 3 S.W.2d 530, 5 33-34 (19 48); Exx on Corp. v. Breezevale Ltd. , 82 S.W.3d at 439. Furtherm ore, since Resendez raised the s pectre of part perform ance in an effort to defeatPace’s dem and for sum mary judgm entbased on the Statute of Frauds, the burden lay s with him to present evidence sufficient to raise a quest ion of fact upon e ach of th e various criteria mentioned. See Bates v . Schneider Nat’l Carriers, Inc. , 95 S.W.3d 309, 312 (Tex. A pp.– Houston [1st Dist.] 2002, no pet.)(stating that if the sum mary judgm ent
movantest ab li sh es hi s af fi rmat iv e d ef en se as a matt er of la w, then the non-m ovantmust presentevidence tha t raises a fact issue to avoid the defense); Whittenburg v. Cessna Fin. Corp. , 536 S.W.2d 444, 445 (Tex. App.– Houston [14th Di st.] 1976, writ ref’d n.r.e.) (stating thatwhere the non-movant has alleged an affirmative defen se, he m ust off er proof that there is a m aterial fact issue on that affir mative defense ). Yet, he did not do s o. Thatis, he neither discussed the criteria me ntioned in Chevali er, Exx on , or Welch when as serting thatthe Statute of

Frauds cannot be “an engine of fraud” nor c ited us to an y evidence purporting to illustrate the existence of each criteria at bar. More im portantly, it is not our dutyto search the record f or such unm entioned evidence. Casteel-Di ebolt v. Di

ebolt, 912 S.W.2d 302, 305 (Tex. App.– Houston [14 th Dist.] 1995, no pet.). Thus, Res endez failed6

to carry his bur den on appeal of ill ust rating how and why his claim of part perfor mance barred the trial court from rendering summ ary judgm ent. Issue Two — Attorney’s Fees
I n his second i ssue, Resendez contend s that the tria l court i mproperly a warde d attorney’s fees u nder theDeclaratory Jud gm ents A ct. Th is i s so, Resendez argues, because Pace requested a j udgm ent dec laring that t he partieswer e not currently and had
never been partners. Instead of so concluding, t he trial cour tpurporte dly assu m ed there
wasa part nershi p agreem ent but held it unenforceable since it violated the Statute of Frauds. Pace argues that this portion of the appeal should be dismissed b ec aus e Resendez voluntarily paid the judgm ent. We agree. General ly, when a j udgme nt deb tor vol untaril y pays and thereby sati sfies a judgm entrendered ag a inst him, the cause becom es m oot and m ust be dism issed. Continen tal

Cas. Co. v. Huiz

ar, 740 S.W.2 d 429, 430 (Tex. 1987); Highl and Church of Christ v. Powell , 640 S.W.2d 235, 236 (Tex. 1982); Tubb v. Vinson Exploration, Inc. , 892 S.W.2d 183, 184 -85 (Te x. Ap p.– El P aso199 4, w rit d enie d). Thisrule exists to prevent a litigant who “ freely

dec ided to pay a j udgme nt” from “mislead[ing] his opponent into believing that t he cont roversy is over . . . .” Highl

and Church of Chri

st v. Pow

ell , 6 40 S.W.2d at236 (em phasis added). Yet, if payment is invol untary, the rul e does not appl y. Riner v. Briargrove Park Property Owners, Inc. , 858 S.W.2d 370 (Tex. 1993) (stat ing that if a party does not voluntarily pay a judgm ent, his appeal is not m oot). Nor is it app licab le if con tinu atio n of

theapp eal w

ould not sim ply cause the court toventure into the realm of3 While Pace a bstr acted t he judg ment, it also claims that it n ever attempted to executeupon the lien created thereby. Cons equently, we have nothing bef ore us indicating t hat Res ende z paid th e judgmen t to avoid execution

. See Frank Silvestri Inv., Inc. v. Sullivan , 486 So .2d 20 , 21 (Fla D ist. Ct. Ap p. 5 th Dist. 1986) (noting that mos t courts hold th at paymen ts madeunde r threa t of execution a re involuntary)

. 7 advisory opin ions , th at is , if

so me other issue rem ains ripe for adjudication. See Hi ghland Church of

Christ v. Powell , 640 S.W.2d at 237 (refusing to hold the appeal mo ot because, among other thin gs, a “final decision in t his casem ay give g uidance re garding th e future tax liabil ity of Highland on this property”); Employees Fi n. Co. v. Lathram , 369 S.W.2d 927, 930 (Tex. 1963) (holding that paym entrendered the appeal m oot because there rem ained nothing to try if the j udgm ent were reverse d and th e causerem anded fo r new trial); 5 R OY W. M C D ONALD & E LAI NE A. C ARLSON , T EXAS C IVI L P RACTI CE §30.19 (1999) (stating that “[a]bsent som e rema ining controversy,” the appellate court m ust dism iss).
As illustrated by the appellate record and m aterial attached to the motion to dismiss previously filed by Pace, the trial court signed a j udgme nt against Resendez. The rein , it awarded Pace, against Res endez, attorney’s fees of $25,000 for thetrial of the declarato ry action it initiated, $15,000 if an appeal is perfected to an intermediate cou rt of appeals, and $5,000 if the Tex

as Su prem e Court

granted a petition for discretionary review. S o too did thetria l court orde r t ha t R es en de z p ay co ur t c os ts an d t ha t t he ou ts ta nd i ng su ms accrue post-judgment interest at 10% per annum until pai d. Pace subsequently abstracted the judgm ent in Bexar County. 3 On June 18, 2002, Resendez paid the sum s outstanding under the jud gment

from the proceeds of several parcels of realty he sol d. In turn, Pace executed a docum ent releasing its abstract of j udgme nt. These circum stances, according8

to Pace, allegedly evinced the voluntary satisfaction of the j udgme nt from which Resen dez appealed.
In response, Resendez asserted that imm ediately prior to closing on the sale of the propertyallud ed to ab ove , he“did not hav e ad equ ate fun ds f or li ving expen ses [or] . . . to pay off accum ulated debt, including debt on t he property, or the funds necessary to operate any business . . . .” The “property being sold” was his “only im mediate sou rce of these funds,” and it “ was abs ol utely necessary for [him ] to m ake the sale to survive,” Resendezcontinued. Furtherm ore, the sales contract ex ecuted by Resendez

and the buyer purportedly required that any liens against the property be satisfie d from the sale’s proceeds. In short, Resendez argued that he paid the judgm entunder “implied duress.” Atfirst blush, one m ay deduce fromthese allegations thatResendez w as faced w ith the choice of either paying th e judgm ent or foregoing personal “surviv[al].” Yet, such a conclusion w ould not

nec ess arily

be a ccu rat e fo r hisaff

idav it als o ind icates t hat thesale of the land could have proceeded despite the Pace judgment and lien created thereby. One ma y infer this from Resendez’ com ment that upon discovery of t he judgm ent lien “the buyers. . . attem pted t o lower the purc hase pric e, w hich [he] refuse d to do. ” Now here does Resendez sugges t that the buyers refu sed to proceed unless the lien was paid. Nor did he insinuate that acceptance of the reduced offer of the buyer

would not have allowed him to “survive,” pay his debts, and satisfy his living exp en se s. Nor wer e we provided with
an item izat ion o f his

liabil ities

or a sse ts w ith w hich to a sse ss the ver acit y o f his representations about impoverishment and need. Rather, Resendez spoke in generalities and conclusions which, under thelaw, are of little probative value. See Aldri dge v. De Los9

Santos , 878 S.W.2d 288, 296 (Tex. App.– Corpus Christi 1994, writ dism’d w.o.j .) (holding thatconclusi ons co nta ined in an affidavit have no probative value). Thus, one ca n rea son ably

conclude that Resendez opted to pay the Pace judgm ent simply to maxim ize his recovery fromthe sale of the land and not to secure his pur ported survi val. Because of this and given theconclus orynature of the allegations in Resendez’ affidavit, w e cannot say that payment of the judgment w as invol untary. Furthermore, the obstacles which previously barred our dism issing the appeal, or atleast this portion of it, have gone. That is, w e have disposed of the issues unrelated to the question of attorney’s f ees adversely to Resendez . So, w e now dism iss, as m oot, that portion of the appeal which deals w ith the vali dity of t he trial cour t’s de cision to a ward Pace attorney’ s fees. Accordingl y, issue one, including its subparts, is overruled. Issue tw o is dismissed
as m oot. Finally, the judgm ent of the trial court is affirmed. Brian Quinn Justice