Scott & Julieann Hanson and Nikki & Jeremy Steele v. Lennar Homes of Texas Land & Construction, Ltd. and D.R. Horton - Texas Ltd.

• Court: Court of Appeals of Texas
• Decided: February 9, 2012
• Docket: 02-11-00513-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00210-CV

JOSEPH LEON MADDOX, PATTI APPELLANTS LYNN MADDOX, AND LINDA FAYE WEBER

V.

VANTAGE ENERGY, LLC AND THE APPELLEES CAFFEY GROUP, LLC

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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

OPINION ----------

I. INTRODUCTION

Appellants Joseph Leon Maddox, Patti Lynn Maddox, and Linda Faye

Weber sued Appellees Vantage Energy, LLC and The Caffey Group, LLC,

pleading causes of action for breach of contract, promissory estoppel, and

negligent misrepresentation. The trial court granted summary judgment for

Appellees (collectively referred to as Vantage) on all of Appellants‘ claims. Appellants perfected this appeal, challenging the summary judgment in ten

issues.1 Because we hold that Appellants lack standing to sue for breach of

contract and promissory estoppel, we will dismiss Appellants‘ appeal of those

claims and will render judgment accordingly. Because we hold that no summary

judgment evidence exists that Vantage made any material misrepresentations of

existing fact, we will affirm the trial court‘s summary judgment for Vantage on

Appellants‘ negligent misrepresentation claim.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellants are homeowners in southwest Fort Worth. During the summer

of 2008, oil and gas companies began approaching individual homeowners in

southwest Fort Worth to attempt to obtain leases of the minerals under the

homeowners‘ properties. Some property owners in southwest Fort Worth formed

a nonprofit, unincorporated association2 named Southwest Fort Worth Alliance,

or SFWA, for the purpose of negotiating the best possible lease terms for the

largest possible group of lessors. Eventually, Vantage reached an agreement

with SFWA that included a ―uniform oil and gas lease form.‖

Appellants assert that a written contract exists between Vantage and

SFWA; Appellants claim the contract consists of a series of approximately eleven

1 Although the table of contents in Appellants‘ brief lists ten issues, they are not segregated in Appellants‘ analysis. For ease of reference, however, we refer to the ten issues as numbered in Appellants‘ table of contents. 2 See Tex. Bus. Orgs. Code Ann. §§ 252.001–.017 (West 2011). A nonprofit association is defined as ―an unincorporated organization . . . consisting of three or more members, joined by mutual consent for a common, nonprofit purpose.‖ Id. § 252.001(2).

2 emails––and the attachments to those emails, including the uniform oil and gas

lease form––that were exchanged between Vantage and an individual acting for

SFWA.3 Based on the emails and the uniform oil and gas lease form, SFWA

publicized that Vantage had ―won the bid for endorsement‖ of SFWA and was

SFWA‘s ―preferred and endorsed Natural Gas Developer.‖ Appellants concede

in their brief that SFWA did not possess authority to, and did not, negotiate

individual leases for Appellants or for anyone; instead, Appellants claim that the

contract between Vantage and SFWA was ―a contract for an endorsement of

Vantage and its offer.‖

The uniform oil and gas lease form is a template; it provides blanks for the

date of execution of the lease, the name of the lessor, and for the legal

description and address of the property covered by the lease.4 The uniform oil

and gas lease form also states that each individual lessor is not obligated to sign

the form lease but instead has the right to negotiate his or her own terms with

3 Appellants claim the eleven-emails-and-attachments contract was executed by Vantage and SFWA by virtue of the Texas Uniform Electronic Transactions Act, which provides that an electronic signature shall be given the same legal force as an ink signature. See Tex. Bus. & Com. Code Ann. § 322.007 (West 2009). We do not address this contention because, as set forth below, even assuming a contract existed between Vantage and SFWA, Appellants are not third-party beneficiaries of the contract and have no standing to sue to enforce it. See Tex. R. App. P. 47.1 (providing that appellate court must address only issues necessary to final disposition of appeal). 4 The uniform oil and gas lease form provides in part, ―This LEASE AGREEMENT (this ―Lease‖) is made as of the ___ day of _________, 2008, between the Lessor(s) whose legal description and address are set forth on Schedule-1 attached hereto, and Lessee _____________, whose address is _____________, Fort Worth, Texas _________.‖ The uniform oil and gas lease form is not executed by anyone.

3 any oil and gas company and individually bears the responsibility of investigating

the lease and its terms.5

Vantage began obtaining leases from mineral owners in the SFWA

neighborhoods. Between 4,000 and 7,500 leases were obtained; the record

does not reflect if these lessors negotiated to modify the uniform oil and gas

lease terms or not. Approximately one month later, however, as the price of

natural gas fell, Vantage suspended its urban leasing activities. Appellants filed

the instant suit, seeking to compel Vantage to offer them an oil and gas lease in

accordance with the terms set forth in the uniform oil and gas lease form.

Appellants‘ petition prayed that the court ―award Plaintiffs specific performance

and give Plaintiffs the opportunity to accept or reject the negotiated lease, as

described herein . . . .‖

5 The uniform oil and gas lease form specifically states on page 11:

(c) Lessor Acknowledgement . . . By signing this Lease, Lessor [i.e., Appellants] acknowledges and stipulates that Lessor was not obligated to sign this lease based upon the terms negotiated by [SFWA] with Lessee and that Lessor had the right to negotiate its own terms with any company prior to signing this lease. Additionally, Lessor acknowledges that it is the Lessor‘s obligation to investigate the Lease, all negotiated terms, to take such action as necessary to make an informed decision prior to signing this Lease, and that the decision made by Lessor in signing this lease is made after fully researching the matter independent of any other information provided by [SFWA]. It is ultimately the responsibility of Lessor to (a) determine if Lessor wants to negotiate with the Lessee, (b) fully investigate the issues and facts related to signing an oil and gas lease, and (c) determine what terms are acceptable to Lessor to be included in this lease.

4 III. GROUNDS FOR SUMMARY JUDGMENT

The trial court‘s summary judgment expressly stated that it was granted on

several grounds, including that Appellants ―do not qualify as third-party

beneficiaries to the alleged contract‖ between Vantage and SFWA.6 Concerning

Appellants‘ negligent misrepresentation claim, the trial court ruled that no

evidence existed that Vantage had made any material misrepresentations of

existing fact to Appellants. Concerning Appellants‘ promissory estoppel

pleading, the trial court ruled that no evidence existed that Vantage had promised

to sign an already existing written agreement.

IV. APPELLANTS LACK STANDING TO ASSERT BREACH OF CONTRACT CLAIM

A. The Law Concerning Standing to Sue as a Third-Party Beneficiary

In Texas, ―standing‖ denotes the presence of a real controversy between

the parties that will actually be determined by the judicial declaration sought.

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005); Pagosa Oil

& Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 209–10 (Tex. App.—El

Paso 2010, pet. denied). Standing is a necessary component of subject-matter

jurisdiction, without which a court lacks authority to hear a case. See Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993). Because

6 The trial court also granted summary judgment on the grounds that ―[n]o legally valid contract was made or exists between [Vantage] and SFWA‖ and that ―the alleged contract [between Vantage and SFWA] is otherwise unenforceable because it does not comply with the statute of frauds.‖ Appellants challenge these grounds for summary judgment in their first, third, fourth, fifth, sixth, and seventh issues. Because we affirm the trial court‘s summary judgment on other grounds, we need not address these grounds. See Warren v. Am. Nat’l Fire Ins. Co., 826 S.W.2d 185, 189 (Tex. App.—Fort Worth 1994, writ denied) (explaining that because appellate court determined independent ground existed for summary judgment, it need not address appellant‘s remaining challenges to summary judgment); see also Tex. R. App. P. 47.1.

5 standing is a component of subject-matter jurisdiction, it may be raised for the

first time on appeal by the parties or by the court. Id. at 445–46.

To establish standing to assert a breach of contract cause of action, a

party must prove its privity to the agreement or that it is a third-party beneficiary.

OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 738

(Tex. App.—Dallas 2007, pet. denied); see also Merrimack Mut. Fire Ins. Co. v.

Allied Fairbanks Bank, 678 S.W.2d 574, 577 (Tex. App.—Houston [14th Dist.]

1984, writ ref‘d n.r.e.). A third party may enforce as a third-party beneficiary a

contract it did not sign when the parties to the contract entered the agreement

with the clear and express intention of directly benefitting the third party. Tawes

v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); MCI Telecomms. Corp. v. Tex. Util.

Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). When the contract confers only an

indirect, incidental benefit, a third party cannot enforce the contract. Tawes, 340

S.W.3d at 425 (citing Restatement (Second) of Contracts § 315 (1981); 13

Williston on Contracts § 37:19, at 124–25 (4th ed. 2000) (―An incidental

beneficiary acquires no right either against the promisor or the promisee by virtue

of the promise.‖)).

Traditionally, Texas courts have presumed that a party contracts only for

its own benefit and have therefore maintained a presumption against third-party

beneficiary agreements. Id.; Corpus Christi Bank & Trust v. Smith, 525 S.W.2d

501, 503–04 (Tex. 1975) (―[W]e must begin with the presumption that parties

contract for themselves . . . .‖); Standard Accident Ins. Co. v. Knox, 144 Tex. 296,

303–04, 184 S.W.2d 612, 615 (1945). Therefore, in the absence of a clear and

unequivocal expression of the contracting parties‘ intent to directly benefit a third

6 party, courts will not confer third-party beneficiary status by implication. Tawes,

340 S.W.3d at 425; MCI Telecomms., 995 S.W.2d at 651.

Consequently, a third-party beneficiary will not be recognized unless the

intent to make him or her so is clearly written or evidenced in the contract.

Tawes, 340 S.W.3d at 425; MCI Telecomms., 995 S.W.2d at 651. ―[T]he fact

that a person is directly affected by the parties‘ conduct, or that he ‗may have a

substantial interest‘ in a contract‘s enforcement, does not make him a third[-]

party beneficiary.‖ Loyd v. ECO Res., Inc., 956 S.W.2d 110, 134 (Tex. App.—

Houston [14th Dist.] 1997, no pet.), abrogated on other grounds by Clear Lake

City Water Auth. v. Friendswood Dev. Co., 256 S.W.3d 735 (Tex. App.—Houston

[14th Dist.] 2008, pet. dism‘d). The third-party beneficiary need not be

specifically named in the contract but must be otherwise sufficiently described or

designated. Knox v. Ball, 144 Tex. 402, 413, 191 S.W.2d 17, 23 (Tex. 1945).

To qualify as a third-party beneficiary, the party must show that he is either

a donee or creditor beneficiary of the contract, not one who is benefitted only

incidentally by the performance of the contract. MCI Telecomms., 995 S.W.2d at

651; Brunswick Corp. v. Bush, 829 S.W.2d 352, 354 (Tex. App.––Fort Worth

1992, no writ) (explaining that ―only donee and creditor beneficiaries have

enforceable rights‖). A donee beneficiary is a party to whom the performance

promised will, when rendered, come to him as a pure donation; a creditor

beneficiary is one to whom the performance promised will come in satisfaction of

a legal duty owed to him by the promisee. MCI Telecomms., 995 S.W.2d at 651.

This legal duty may include indebtedness, contractual obligations, or other legally

enforceable commitments owed to the third party. Id.; see also Stine v. Stewart,

80 S.W.3d 586, 588 (Tex. 2002) (holding mother qualified as third-party

7 beneficiary to daughter and son-in-law‘s agreement incident to divorce because it

provided for repayment to mother of a specific amount of money from the

proceeds of the sale of the couple‘s home).

B. Application of the Law to the Present Facts

The summary judgment evidence conclusively establishes that Appellants

are not parties to any contract that may exist between Vantage and SFWA.

Appellants instead contend in their second issue that they are third-party

beneficiaries of the alleged contract between Vantage and SFWA. To determine

whether any Vantage and SFWA contract expressed a clear intent to directly

benefit Appellants, we must interpret the alleged contract between Vantage and

SFWA. See Tawes, 340 S.W.3d at 425.

Viewing the summary judgment evidence in the light most favorable to

Appellants, the assorted emails and attachments that Appellants claim constitute

the contract between Vantage and SFWA nowhere identify Appellants by name

as intended beneficiaries. Compare Stine, 80 S.W.3d at 588 (holding decree‘s

identification of person by name was sufficiently specific for purposes of third-

party beneficiary status), with Brown v. Fullenweider, 52 S.W.3d 169, 170 (Tex.

2001) (holding decree‘s failure to identify attorney by name was insufficient to

confer third-party beneficiary status on him concerning decree‘s allocation of the

payment of his fees).

Appellants nonetheless claim that they are identified in the purported

Vantage/SFWA contract by geographic boundaries; that is, they live in one of the

neighborhoods in which the neighborhood homeowners‘ association elected to

participate in SFWA. The summary judgment evidence conclusively establishes,

however, that no map was attached to or included in the documents that

8 Appellants identify as the contract between Vantage and SFWA, and Appellants‘

respective properties and addresses are not described or mentioned in the

alleged contract.7 Moreover, each Appellant testified that he or she did not pay

any dues to SFWA or sign any document in order to be a member of SFWA, and

the summary judgment evidence establishes that some homeowners in the

neighborhoods participating in SFWA had signed mineral leases with other

energy companies. The mere fact that Appellants own minerals within the

geographical boundaries of one of the neighborhoods participating in SFWA

cannot make them part of an identified, discrete, limited group of individuals

specifically intended to be third-party beneficiaries of the purported

Vantage/SFWA contract because some individuals in this very group had already

signed mineral leases with other energy companies and thus were clearly not

intended third-party beneficiaries of any Vantage/SFWA contract. See Tawes,

340 S.W.3d at 428 (explaining that the joint operating agreement at issue did not

―identify a ‗specific, limited group of individuals‘ to which the consenting parties

owe an obligation‖). And to the extent that Appellants claim the purported

Vantage/SFWA contract was intended to benefit only mineral owners in the

neighborhoods electing to participate in SFWA who had not already signed a

mineral lease with another energy company, this subset of individuals is even

more unidentifiable and more nondiscrete because the group composition could

7 Appellants claim that they are identified in a ―leasing priority spreadsheet‖ prepared by Vantage. This spreadsheet is not attached to the emails that Appellants contend constitute the contract between Vantage and SFWA, and it does not identify Appellants by name, address, or property description. The spreadsheet simply lists the neighborhoods participating in SFWA and proposes a sequential order for prioritization of the signing of leases.

9 change on a daily or hourly basis as mineral owners in neighborhoods

participating in SFWA executed leases with other companies; in fact, the uniform

oil and gas lease form expressly acknowledges that Appellants had the ―right to

negotiate [their] own terms with any company.‖ Thus, even assuming a contract

existed between Vantage and SFWA, no intent to directly benefit Appellants as

third-party beneficiaries is clearly written or evidenced in such contract because

Appellants are not indentified individually by name, by address, or by property

description and are not sufficiently specifically identified as a group by

membership in SFWA, by geographic location, or by any other discrete criteria.

See, e.g., Tawes, 340 S.W.3d at 428 (addressing sufficiency of identification of

individual as a member of a group in joint operating agreement in order to qualify

for third-party beneficiary status); Brown, 52 S.W.3d at 170 (addressing

sufficiency of identification of individual in decree in order to qualify for third-party

beneficiary status).

We have not located, and Appellants have not cited, any case supporting

the proposition that persons who in a contract are unnamed, unidentified by

address or by property description, and are unidentifiable by membership in a

specifically defined, discrete, limited group can be intended by the contracting

parties to be beneficiaries of that contract. Compare Stine, 80 S.W.3d at 588

(holding decree‘s identification of person by name was sufficiently specific for

purposes of third-party beneficiary status), with Brown, 52 S.W.3d at 170 (holding

decree‘s failure to identify attorney by name was insufficient to confer third-party

beneficiary status on him concerning decree‘s allocation of the payment of his

fees). To the contrary, in such a situation, we must presume that the contracting

10 parties, here Vantage and SFWA, contracted for themselves. See Tawes, 340

S.W.3d at 425; MCI Telecomms., 995 S.W.2d at 651.

Finally, to date, the law recognizes only two types of third-party

beneficiaries: donee beneficiaries and creditor beneficiaries. See MCI

Telecomms., 995 S.W.2d at 651. The summary judgment evidence conclusively

establishes that, concerning the alleged contract between Vantage and SFWA,

Appellants are neither. Appellants are not donee beneficiaries because the

performance allegedly promised by Vantage that Appellants seek specific

performance of—the offer and execution of a lease in accordance with the terms

of the uniform oil and gas lease form—will, when rendered, not come as a pure

donation but will be made in exchange for the lease of Appellants‘ mineral rights.

See id. Likewise, Appellants are not creditor beneficiaries because Vantage

owed Appellants no legal duty, indebtedness, or contractual obligation. See id.

The alleged contract between Vantage and SFWA did not express an intent to

confer a benefit on Appellants or an intent that Appellants possess the right to

enforce the alleged contract between Vantage and SFWA. See MJR Corp. v. B

& B Vending Co., 760 S.W.2d 4, 16 (Tex. App.—Dallas 1988, writ denied).

Appellants therefore are at most only incidental beneficiaries of any contract

between Vantage and SFWA, and ―an incidental beneficiary acquires no right

either against the promisor or the promisee by virtue of the promise.‖ See

Tawes, 340 S.W.3d at 425 (quoting 13 Williston on Contracts § 37:19, at 124–25

(4th ed. 2000)).

For all of these reasons, based on our review of the summary judgment

evidence, we hold that the trial court correctly determined as a matter of law that

Appellants were not third-party beneficiaries of any Vantage/SFWA contract.

11 Because Appellants are not third-party beneficiaries, they lack standing to sue to

enforce the purported Vantage/SFWA contract. See OAIC Commercial Assets,

L.L.C., 234 S.W.3d at 738. We overrule Appellants‘ second issue,8 dismiss

Appellants‘ appeal of the summary judgment on their breach of contract claim,

and render judgment dismissing Appellants‘ breach of contract claim. See Brown

v. Todd, 53 S.W.3d 297, 306 (Tex. 2001) (rendering judgment dismissing claims

following determination of lack of standing).

V. SUMMARY JUDGMENT PROPER ON NEGLIGENT MISREPRESENTATION CLAIM

The trial court granted summary judgment on Appellants‘ negligent

misrepresentation claim on two grounds, one of which was that no evidence

exists that Vantage ―made material misrepresentations of existing fact.‖9

Appellants claim that the material misrepresentation that Vantage made was ―to

SFWA that it would give all un-leased mineral owners in SFWA the opportunity to

8 Having determined that Appellants do not possess standing to sue for breach of any contract that may exist between Vantage and SFWA, we need not address Appellants‘ eighth issue alleging that a genuine issue of material fact exists as to their damages on their breach of contract claim. See Tex. R. App. P. 47.1 (stating that appellate court must address only issues necessary to final disposition of the appeal). 9 The elements of a negligent misrepresentation claim are that (1) the defendant, in the course of his business, profession, or employment, or in another transaction in which he had a pecuniary interest, supplied to the plaintiff false information for guidance in a business transaction; (2) the defendant failed to exercise reasonable care or competence in obtaining or communicating the information; (3) the plaintiff justifiably relied on the information; and (4) the defendant‘s negligent misrepresentation proximately caused the plaintiff to suffer pecuniary loss. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999). The absence of evidence on the first element was one ground on which the trial court granted summary judgment on this claim.

12 accept the SFWA Deal.‖ The summary judgment evidence conclusively

establishes that many homeowners in neighborhoods participating in SFWA

accepted leases with Vantage. Thus, Appellants‘ complaint is not that Vantage

misrepresented any of the terms of the uniform oil and gas form lease but is

essentially that Vantage misrepresented the length of time that its offer to lease

minerals pursuant to the terms set forth in the uniform oil and gas lease form

would remain open. No summary judgment evidence exists, however, that

Vantage made any representation to SFWA or to any Appellants concerning how

long its offer to lease minerals pursuant to the terms set forth in the uniform oil

and gas lease form would remain open.

Moreover, this alleged misrepresentation is insufficient as a matter of law

to support a negligent misrepresentation claim because it does not constitute a

representation of existing fact; a promise of future conduct will not support a

negligent misrepresentation claim. See, e.g., BCY Water Supply Corp. v.

Residential Inv., Inc., 170 S.W.3d 596, 602 (Tex. App.—Tyler 2005, pet. denied)

(explaining that the ―false information‖ contemplated in a negligent

misrepresentation case must be a misstatement of existing fact, not a promise of

future conduct); Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (same); Allied Vista, Inc. v. Holt,

987 S.W.2d 138, 141 (Tex. App.––Houston [14th Dist.] 1999, pet. denied)

(same); Airborne Freight Corp. v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 294

(Tex. App.––El Paso 1992, writ denied) (same). A promise to do or to refrain

from doing an act in the future is not actionable because it does not concern an

existing fact. BCY Water Supply Corp., 170 S.W.3d at 602.

13 For example, in BCY, the Tyler court held that the representation by a

water supply employee that it would be no problem getting water service for a

certain piece of property that the plaintiff was contemplating purchasing was ―no

more than a conditional promise of future performance‖ contingent on ownership

of the property. Id. at 603. The Tyler court reversed a judgment on a jury verdict

finding negligent misrepresentation. Likewise, in Airborne, the El Paso court held

that the promise ―as long as you do your job, you‘ll have a job‖ was ―a conditional

promise of future employment‖ that could not be characterized as a

misrepresentation of existing fact; the El Paso court reversed a judgment on a

jury verdict finding negligent misrepresentation. 847 S.W.2d at 298.

The promise that Appellants claim Vantage made to SFWA that it ―would

give all un-leased mineral owners in SFWA the opportunity to accept the SFWA

Deal‖ is not a misrepresentation of existing fact that will support a negligent

misrepresentation claim; instead, it is a promise to do an act in the future that is

not actionable as negligent misrepresentation. See, e.g., BCY, 170 S.W.3d at

602; Roof Sys., Inc., 130 S.W.3d at 439; Allied Vista, Inc., 987 S.W.2d at 141;

Airborne Freight Corp. 847 S.W.2d at 294. Hence, the trial court correctly

granted summary judgment for Vantage on Appellants‘ negligent

misrepresentation claim. We overrule Appellants‘ tenth issue.

VI. APPELLANTS LACK STANDING TO ASSERT PROMISSORY ESTOPPEL CLAIM

In their ninth issue, Appellants claim that they pleaded promissory estoppel

both as an independent cause of action and as a defense to the statute of frauds.

The trial court‘s summary judgment stated that it was granting summary

judgment on the ground that ―Plaintiffs‘ promissory estoppel claim fails because

there is no evidence that (1) Defendants made a promise to sign an already

14 existing written agreement that would itself satisfy the requirements of the statute

of frauds or (2) that Plaintiffs relied on such a promise.‖

Concerning Appellants‘ claim that they asserted promissory estoppel as an

independent cause of action, a cause of action for promissory estoppel does not

operate to create liability where it does not otherwise exist. Hruska v. First State

Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988); Ford v. City State Bank of

Palacios, 44 S.W.3d 121, 139 (Tex. App.––Corpus Christi 2001, no pet.).

Promissory estoppel does not create a contract where none existed before but

prevents a party only from insisting upon his strict legal rights when it would be

unjust to allow him to enforce them. ―Moore” Burger, Inc. v. Phillips Petroleum

Co., 492 S.W.2d 934, 937 (Tex. 1972). The requisites of promissory estoppel in

Texas are (1) a promise, (2) foreseeability of reliance thereon by the promisor,

and (3) substantial reliance by the promisee to his detriment. English v. Fischer,

660 S.W.2d 521, 524 (Tex. 1983).

For the same reasons Appellants lack standing to assert a breach of

contract cause of action, they likewise lack standing to assert a promissory

estoppel cause of action. The summary judgment evidence conclusively

establishes that Vantage did not make any promise to Appellants; Appellants do

not dispute this, but claim only that Vantage made a promise to SFWA. In short,

Appellants are not ―promisees‖ who can assert the independent claim of

promissory estoppel against Vantage. See, e.g., Wheeler v. White, 398 S.W.2d

93, 97 (Tex. 1965) (recognizing promissory estoppel theory may be invoked

when promisee obtains promise from promisor that is less than a legally sufficient

contract); see also O’Connor’s Texas Causes of Action ch. 5-D, § 1.1 (2011)

(listing first element of promissory estoppel as ―1. The defendant made a

15 promise to the plaintiff‖). Because Appellants do not qualify as third-party

beneficiaries of the purported Vantage/SFWA contract and do not qualify as

promisees to whom Vantage made any promise, they cannot create liability for

Vantage or create some promise between themselves and Vantage where none

exists as a matter of law. We hold that Appellants lack standing to assert a

promissory estoppel cause of action against Vantage. We dismiss Appellants‘

appeal of the summary judgment on their promissory estoppel claim and render

judgment dismissing Appellants‘ promissory estoppel claim. See Brown, 53

S.W.3d at 306.

Concerning Appellants‘ claim that they asserted promissory estoppel as a

defense to the application of the statute of limitations, we need not address this

contention because, for purposes of this opinion, we have assumed a valid,

written contract existed between Vantage and SFWA, and we have held that the

trial court nonetheless correctly granted summary judgment for Vantage on all of

Appellants‘ claims. We therefore overrule Appellants‘ ninth issue.

VII. CONCLUSION

Having overruled Appellants‘ second and ninth issues and having

determined that Appellants lack standing to assert a breach of contract claim and

an independent promissory estoppel claim, we render judgment dismissing those

claims against Vantage. Having overruled Appellants‘ tenth issue and having

determined that we need not address the remainder of Appellants‘ issues, we

affirm the trial court‘s summary judgment on Appellants‘ negligent

misrepresentation claim.

SUE WALKER JUSTICE

16 PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DELIVERED: February 9, 2012