Zaremba v. Cliburn - 949 S.W.2d 822 (Tex. App. 1997)

Rule:

Claims purportedly arising from an oral contract within the statute of fraud are fatally flawed.

Facts:

Appellant, Thomas E. Zaremba filed suit against appellee, Harvey Lavan Cliburn, Jr., aka Van Cliburn for claims arising from a purported oral partnership agreement and an intentional infliction of emotional distress claim based on allegations that appellee exposed appellant to HIV. Appellant alleged that on or about July 14, 1966, he and Cliburn became close friends and sexual partners and in 1977, Cliburn asked him to move in with him. He further alleged that at the same time he moved in with Cliburn, he, either orally or impliedly, agreed to provide services like shopping, doing the mail, paying the bills, drafting checks, co-managing the household, and dealing with accountants, creditors, and real estate agents in exchange for a share in Cliburn's income. Appellant contended that 17 years later, Cliburn dissolved their alleged partnership and he received no partnership assets or income. In his Answer, Cliburn generally denied the allegations and raised special exceptions. The trial court dismissed all of appellant's claims with prejudice. Appellant challenged that order. On appeal, the court affirmed in part, reversed in part, and remanded the case.

Issue:

1. Did the trial court err in dismissing appellant’s claim arising from oral or implied partnership agreement?

2. Did the trial court err in dismissing appellant’s claim for intentional infliction of emotional distress?

Answer:

1. No. 2. Yes.

Conclusion:

1. The Court affirmed the judgment of the trial court to extent that it dismissed those claims with prejudice. The Court held that the appellant’s claim, allegedly arising from the purported oral or implied partnership agreement was founded on the basis that appellant was entitled to recovery for any services rendered in consideration of nonmarital, conjugal cohabitation. But the Court held that those claims are barred by the statute of fraud and that defect could not be cured by any amendment to the pleadings. 

2. The Court reversed and remanded the trial court's judgment of dismissal. The Court held that the appellant should have been afforded an opportunity to amend his claim with respect to his claim for intentional infliction of emotional distress based on exposure to HIV.