NO. 07-01-0296 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B MAY 10, 2002

______________________________

DAVID ANSLEY, Appellant
v. TANKCO S ERVICE S OF TEXA S, INC. and BARR

Y SEA BRANC H,

Appellees

_________________________________ FROM THE 165 TH DISTRICT COURT OF HARRIS COUNTY; NO. 2000-39,495 ; HON. ELIZABETH RAY, PRE SIDING

_______________________________ Memor andum Opi

nion

_______________________________ Before BOYD, C.J., QUINN and JOHNSON, J.J. David Ansley

(Ansley) appeals from a final summ ary judgm ent entered in favor of Tankco Services of Texas, Inc. (Ta nkco) and Barry Seabra nch ( Seabranch). The latter two parties had m oved for sum mary judgm ent. Via four issues, A nsley contends that the trial court erred in granting same. We reverse.2 Backgr ound For purposes of this appeal, we note that the dispute betw een the parties involves the enforcem ent of an oral agreem ent. The latter was m ade between Ansley and Seabranch and concerned the pu rch ase by Seabranch of Ansley’s interest in Tankco. According to the represent ations conta ined i n Ansley’s sum m ary judgm ent affidavit, Seabranch agreed to purchase theinte res t fo r $2 43, 000 payablein 72 sem i-m ont hly installments of $2750 a nd a final “balloon payment” of $45,000. In exch ange, Ansley
w ould transfer hi s interest i n the busine ss to Seabranch, resi gn from the company’s employ, and cease his involvemen t in its operation and managem ent. Upon entering the agreem ent, according to the attestations of Ans ley, he and Seabranch “to ld other em ployees of the business . . . tha t [A nsle y] .

. . sold [his ] ow ner ship interest to [S eabranch] a nd that [Seabranch] now ow ned 100% of the b usiness entity.” Furthermore, A nsle y “term inated [his] employm ent with Tankco” at “som etime betw

een March 1, 1999 and Ma rch 15 , 1999" and becam e “involved in, and employed by, a com panyin a diff erent ind ustry. ” Thereafter , on or about March 29, 199 9, Seabranch delivered to Ansley a check for $2750 w ith the notation “Pm t # 1" written in the lower lefthand corner of the instrum ent. Though the che ck was purported to be w ritten on the account of Tankco, it was signed by Seabranch in h is i ndividual capa city. M oreover, Seabranch and Tankco stated in their original petiti on that Tankco “paid Ansley $27501 Pleadings usual ly are not com pet ent sum m ary ju dgm ent ev id enc e; y et, adm issi ons of fact containe d

the rei n are. Elliott v. Methodi st Hosp ., 54 S.W.3d 789 , 797 ( Tex. App.–H ouston [1 stDist.] 200 1, no pet. ). To the exte nt t ha t Se ab ran ch a nd Tan kco averr ed in th eir

liv e pleading that t he $2750 check was paid to Ansley “toward the acquisiti on of his inte res t” in th e co mpan y, th at can becon sid ere d a n a dmis sio n b y th e co urt in determining whether s ummary j udgment was proper. 3 toward the acq uisit ion of his interest” in the com pany, though the parties had allegedly not agreed upon “the ultimate purchase price.” 1 Though Tankco was a corporation, Ansley had no stoc k to physically transfer to Seabranch. Thisis so because he had n ever been issued any after acquiring his interest. Additio nall y, neither Tankco nor Seabranch disputed t his. Nor did they dispute, for pur pos es of th is appeal, that Seabranch ente red the agreem ent as described by Ansley. Rather, Tankco and Seabranch simply contend ed, via their motion for su mm ary judgm ent and on appeal, that the agreem ent was unenforceable due to the Sta tute of Frauds and thatno except ion to the statute applied. Ans ley responded by asserting that the doctrines of com plete perf

orm ance, p artial perfor m ance, a nd equitab le estopp el pre vente d application of the Statute of Frauds. The t rial cou rt s ubs equ ent lygranted the m otion for sum m aryjudgm ent stating therein that “the agreem ent as alleged by[Ansley] is barred by the Statute of Frauds, T EX . B US . & C OMM . C ODE , §26.01, [sic] (a)(1) an d (2) and (b)(6).” Standard of Revi

ew The standards of review applicable to traditional and no-evidence m otions for sum m aryjudgm entare well-settled. Rather, than discuss them , we s imply cite the parties to Nix on v. Mr. Property Management Co. , 690 S.W.2d 546, 548 (Tex. 1985) and Kimber
v. Side ris , 8 S. W.3d 672, 675 (Tex. App. --Am arillo 1999, no pet.).4

Appli cati on of Standard Itis clear that the Statute of Frauds does no t a pply w her e on e pa rty

com pletely pe rf or ms his obligations under an oral agree ment and th e other know ingly accepts the benefits of

that perform ance and then partly perform s his obligations. Avi la v. Gonz

alez , 974 S.W.2d 237, 246 (Tex. App.--Sa n Antonio 1998, pet. den ie d); Carmack v. Beltway Dev. Co. , 701 S.W .2 d 3 7, 40 (T ex. App.- -Dallas 198 5, no pe t.). C onstruing the su m m ary j udg m ent

evid ence in alight

m ost favora ble to Ans le y ( as we mu st), we find evidence of 1) an agreem ent to sell, 2) verbal transfer of the int angible property right or chose-inaction, 3) disc los ure to ot hers th at Sea branch n ow owne d 100% of the business , 4) a directi ve by atto rneys for Seabran ch instructi ng Ansley to foreg o contact with Tankco employees, 5) the absence of any involvem ent in the operatio n or management of Tankco byAnsley

since th e agreem ent w

as ex ecuted , 6) An sley’s departur e from the business and employm entby another com pany, 7) a check f or $2750 given to Ans ley as th e first paym ent for his interest in the com pany, and 8) a similaritybetween the amount of each
m ont hly instal lment required under the purp orted agreement and the amount of the fi rst checkgiven in pa ym ent by Se abr

anc h an d Ta nkco. T his i s sufficient evidence to create a ma terial issue of fact regarding whether A ns ley fully pe rformed his promises ( i.e transferred his int er est in the business), w hether Seabranch reaped benefit from t hat performance ( i.e. the com plete ownership and control of T ankco), and whether Seabra nch par tially perform ed its promises under the agreem ent ( i.e. ma de part paym ent for the transfe r). In other words, there i s some evidence of record upo n which a ra tion al j ury cou ld5

rea son ably

infer the existence of

com plete pe rfo rm ance, a s th at d oct rineis e xp laine d in Avilaand Carmack

. ThatSeabranch m ay cite to contrad ictory evi dence matters not. Again, we must view the evidence in the light most favorable to the non-m ovant, i.e. Ansley. Nor does the evidence that the $2750 chec k m ay have been w ritten on the account of Tankco cause us to alter our conclusion. Again, both Tankco and Seabra nch adm itted in their origi nal petition tha t it

was given in par

tpay m ent

for An sley ’s inte res t. An d, m ore im por tan tly, it wassigned by Seabra nch in hi s indivi dual capaci ty ( i.e. without d esignat ion that it was signed on behalf of or as representative for anoth er); thus, paym ent of the instrum ent could be Seabr anch’s individual responsibi lity as well as that of Tankco. See T EX . B US . & C OMM . C ODE A NN . §3.402(b)(1) (Vernon Supp. 200 2) (stating when a repres entative of another ma y be personally liable for the payment of an ins trum ent). So , it can not be s aid wi th an y c er ta i nt y t ha t S ea br an ch di d n ot pa rt i al l y p er fo rm. Having found evidence sufficient to create a m aterial issue of fact regarding com plete performance, we conclude that neither Tankco nor Se abranch were e ntitled to sum m aryjudgm entas a m atter of law. Acco rdingly, thesum m aryjudgm ent is reversed and the cause remanded for furthe r proceedi ngs.
Brian Quinn Justice Do not publish.