A Texas state appeals court has affirmed a trial court’s ruling that the claim of a student and her father that Southern Methodist University (SMU) defrauded the student when it allegedly failed to follow through on a verbal offer of an athletic scholarship was barred by the statute of frauds, Tex. Bus. & Com. Code Ann. § 26.01.
The panel of judges reasoned that the agreement “was made in her sophomore year and could not be performed until she graduated from high school.”
Plaintiff Emily Hairston met Brent Erwin, who was the head coach of SMU’s women’s soccer team, in May of 2007. At the time, she was a sophomore at Highland Park High School, and her soccer coach told her she should contact Erwin because SMU was interested in recruiting her.
Hairston, along with her father James Hairston, and her godmother, made an unofficial visit to SMU to tour the campus in May 2007. They met with Erwin after the tour, and he informed Hairston and her family that he would like her to come to SMU. Hairston alleged that Erwin verbally offered her a “100 percent” scholarship during that meeting. “Whether Erwin made the verbal offer is a disputed issue in this case,” wrote the court. “What is not disputed, however, is that Hairston never received a written statement or agreement regarding a scholarship.”
After the May 2007 meeting, Hairston and Erwin continued to communicate throughout Hairston’s high school career, primarily through email, according to the plaintiff. “The emails included discussions of games, workouts, recruitment of other soccer players, and encouragement for Hairston to graduate early and enroll in SMU’s spring 2009 semester,” wrote the court. “None of those conversations mentioned financial or scholarship aid.”
Hairston graduated from high school early, enrolled in SMU’s spring 2009 semester, and joined the women’s soccer team. In February of that semester, she received a call from SMU’s business office informing her approximately $25,000 in tuition and fees were owing for that semester. Hairston testified she was devastated and immediately contacted Erwin, who advised her no scholarship or financial aid was available.
Hairston’s father immediately complained to Steve Orsini, SMU’s athletic director. Following a meeting with Orsini, Hairston and her father signed an April 11, 2009 agreement with SMU in which she received $17,585 in financial assistance for the spring 2009 academic semester. Pursuant to the agreement, Hairston acknowledged receipt of $17,585 and that “this scholarship is for the spring 2009 academic semester only.” The agreement contained the further notation that “for the 2009-2010 academic year, I understand I will not be receiving athletic aid.”
Just over a year later, Hairston brought the underlying lawsuit, alleging fraud in the inducement, “detrimental reliance,” breach of contract, and intentional infliction of emotional distress. She also alleged breach of duty of good faith and fair dealing against the school. SMU denied the allegations and asserted affirmative defenses under the aforementioned statute of frauds and for accord and satisfaction and also filed a counterclaim for past due fees and tuition.
SMU then moved for summary judgment motion on the following grounds: “(1) Hairston’s father was an improper party because he had no justiciable claim and Hairston was not a minor at the time suit was filed; (2) all of Hairston’s claims were precluded by the statute of frauds; (3) the April 11, 2009 agreement signed by Hairston and her father constituted an accord and satisfaction of the alleged oral agreement to provide financial assistance; and (4) Hairston’s claims for intentional infliction of emotion distress did not rise to the level of extreme and outrageous conduct and were based on the same alleged oral agreement as her other claims.”
The trial court granted summary judgment, leading to the appeal.
The appeals court considered “the propriety of summary judgment on Hairston’s claim for intentional infliction of emotional distress and SMU’s statute of frauds and accord and satisfaction defenses.”
To recover on an intentional infliction of emotional distress claim, the court wrote that Hairston must establish that: “(1) SMU acted intentionally or recklessly; (2) SMU’s conduct was extreme and outrageous; (3) SMU’s actions caused Hairston emotional distress; and (4) the resulting emotional distress was severe.” Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)
Hairston’s risk of emotional distress from this conduct is incidental to her other claims that are based on alleged breaches of legal duties. Additionally, the conduct does not meet the threshold of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Accepting Hairston’s evidence as true, she and her family were devastated. The evidence, however, does not meet the legal test for a claim of intentional infliction of emotional distress. Although Hairston argues this was not an isolated incident and Erwin displayed the same conduct toward other young women he recruited to play soccer for SMU, those incidents have no legal significance to Hairston’s claim.”
Turning to the argument involving the statute of frauds — which “exists to prevent fraud and perjury in certain kinds of transactions by requiring agreements to be in writing and signed by the parties” (Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001)) — the court noted that for the plaintiff to obtain relief she would have to show that the act was completed within one year.
In Hairston’s case, she “was a high-school sophomore when she claims she accepted the offer in May 2007; she did not enroll at SMU until the spring 2009 semester—approximately one and a half years later. Similarly, the agreement would not be capable of being performed within one year of May 2007 because Hairston could not enroll at SMU until she completed high school.”
The appeals court also embraced SMU’s argument on summary judgment of an “accord and satisfaction defense. Specifically, it argued the April 11, 2009 written agreement signed by Hairston and her father constitutes an accord and satisfaction of any oral promise to provide financial assistance, precluding Hairston from claiming any benefit under the oral promise. The accord and satisfaction defense rests upon a contract, express or implied, in which the parties agree to the discharge of an existing obligation by means of a lesser payment tendered and accepted.” Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000); Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969).
The agreement in question, read:
“I, Emily Hairston, understand and agree that I will be given an athletic scholarship of 17,585.00 for the spring 2009 academic semester. I also understand and agree that this scholarship is for the spring 2009 academic semester only. Also, for the 2009-2010 academic year, I understand I will not be receiving athletic aid.”
This evidence establishes “conclusively SMU’s affirmative defense of accord and satisfaction as to the 2009-2010 academic year. Thus, Hairston’s claim that she partially performed and was entitled to at least one year’s worth of financial aid is precluded by SMU’s accord and satisfaction defense.”
James Hairston et al. v. Southern Methodist University and D Brent Erwin; Ct. App.Tex., 5th Dist., Dallas; No. 05-11-00860-CV. 2013 Tex. App. LEXIS 5366; 4/30/13
Attorneys of Record: (for appellants) Michael Patrick Kelly, Law Office of Michael P. Kelly, Dallas, TX. (for appellees) John H. McElhaney, Locke Lord, LLP, Dallas, TX.
