PER = CURIAM
Baylor=20 University hired Tom Sonnichsen as its women=92s volleyball coach in = 1989. At that=20 time, Baylor did not have written contracts with Sonnichsen or most of = its=20 coaches. At a May 29, 1995 meeting, Baylor administrators informed its = coaching=20 staff, including Sonnichsen, that Baylor planned to provide written = contracts to=20 the coaches. The subsequent employment dispute between Baylor and = Sonnichsen is=20 the subject of this case.
Sonnichsen=20 pleads that in late May 1995, Baylor=92s general counsel announced that = Baylor=20 would enter into two-year written contracts with its head coaches and = one-year=20 written contracts with the assistant coaches beginning with the = 1995-1996 fiscal=20 year. The general counsel=92s office prepared a one-year written = contract for=20 Sonnichsen for the 1995-1996 year but never delivered the contract to=20 Sonnichsen. On December 29, 1995, Baylor advised Sonnichsen by letter = that he=20 would not be given a contract for the 1996-1997 year, but that he would = be paid=20 in full through May 31, 1996.
Sonnichsen=20 sued Baylor in December 1997 for breach of contract and fraud. He = alleged that=20 by terminating him in 1996, Baylor breached an oral promise to enter a = two-year=20 written employment contract with him for the years 1995-1997 and = committed fraud=20 by representing that it would issue a two-year written contract to him. = Baylor=20 filed a motion for summary judgment, claiming that the statute of frauds = barred=20 Sonnichsen=92s claims. Sonnichsen raised the counter-defense of = promissory=20 estoppel. The trial court granted summary judgment in favor of Baylor, = and=20 Sonnichsen appealed.
The = court of=20 appeals affirmed summary judgment on the breach of contract claim, = holding that=20 an alleged oral promise to enter a two-year contract is not enforceable = under=20 the statute of frauds. Sonnichsen v. Baylor Univ., 47 S.W.3d 122, = 126-27=20 (Tex. App.=97Waco 2001, no pet.). The court rejected Sonnichsen=92s = promissory=20 estoppel counter-defense to the statute of frauds, holding that it can = only=20 apply if the two-year written contract was actually in existence at the = time of=20 the oral promise. Id. The court of appeals also held that = the=20 statute of frauds barred Sonnichsen=92s fraud claim for = benefit-of-the-bargain=20 damages, making the fraud claim simply an alternate way to seek the same = breach=20 of contract damages. Id. at 127. But, the court of appeals held = that=20 Baylor had not established that Sonnichsen=92s damages were limited to = the=20 benefits of his alleged contract. The court severed the fraud claim and = remanded=20 it to the trial court. Id.
On =
remand,=20
Baylor again moved for summary judgment, this time asserting there was =
no=20
evidence to support the remaining fraud claim because there was no =
evidence of=20
damages other than benefit-of-the-bargain damages. See
On = appeal,=20 Sonnichsen argued that he presented sufficient evidence of his fraud = claim and=20 that the trial court abused its discretion by sustaining the special = exception=20 without giving him another opportunity to amend his pleadings. A divided = court=20 of appeals agreed and reversed both of the trial court=92s rulings. __ = S.W.3d __,=20 __. Baylor petitioned this Court for review.
First, Baylor=20 argues that the trial court did not abuse its discretion by granting = Baylor=92s=20 special exception and dismissing the contract claims without giving = Sonnichsen=20 an opportunity to amend because his pleading contains incurable defects. = We=20 agree. =
The = purpose=20 of a special exception is to compel clarification of pleadings when the=20 pleadings are not clear or sufficiently specific or fail to plead a = cause of=20 action. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). = Generally,=20 when the trial court sustains special exceptions, it must give the = pleader an=20 opportunity to amend the pleading, unless the pleading defect is of a = type that=20 amendment cannot cure. See id. A trial court has broad discretion = in=20 ruling on special exceptions. See, e.g., West = Orange-Cove=20 Consol. I.S.D. v. Alanis, 107 S.W.3d 558, 583 (Tex. 2003).
Contracts=20 require mutual assent to be enforceable. See T.O. Stanley Boot Co. v. = Bank of=20 El Paso, 847 S.W.2d 218, 221 (Tex. 1992). Evidence of mutual assent = in=20 written contracts generally consists of signatures of the parties and = delivery=20 with the intent to bind. See Angelou v. African Overseas Union, = 33 S.W.3d=20 269, 278 (Tex. App.=97Houston [14th Dist.] 2000, no pet.) (citing = Hallmark v.=20 Hand, 885 S.W.2d 471, 476 (Tex. App.=97El Paso 1994, writ denied), = for the=20 proposition that one of the elements generally required to create an = enforceable=20 contract is =93[e]xecution and delivery of the contract with an intent = that it=20 become mutual and binding on both parties=94). Here, although Sonnichsen = alleges=20 that Baylor prepared and signed a draft of a contract to employ him for = one=20 year, he acknowledges that =93Baylor never delivered the contract to = [him].=94=20 Baylor agrees. Taking Sonnichsen=92s pleadings as true, he has = established that=20 there was no delivery of a contract signed by Baylor, and thus no mutual = agreement. Without mutual assent, there was no binding written contract. = Because=20 Sonnichsen could not have corrected this problem by repleading, the = trial court=20 did not abuse its discretion by sustaining Baylor=92s special exceptions = and=20 dismissing this breach of contract claim.
In = the first=20 appeal of this case, Sonnichsen=92s pleadings contained descriptions of = meetings=20 and discussions with Baylor administrators that Sonnichsen contended led = him to=20 believe that he would receive a two-year contract to continue as the = head=20 volleyball coach. He claimed that these discussions, conduct, and=20 representations formed the basis of his claim for breach of a two-year = oral=20 contract and promissory estoppel counter-defense. The court of appeals = correctly=20 held that the statute of frauds barred Sonnichsen=92s claim for breach = of an oral=20 promise to enter into a two-year written contract. Sonnichsen, 47 = S.W.3d=20 at 126-27. Sonnichsen=92s second amended petition contained no new oral=20 representations or promises to Sonnichsen from Baylor to support his = =93new=94=20 breach of contract claim. Sonnichsen did add allegations that in 1989, = the=20 athletic director told him if he =93ran a clean program=94 he =93would = be able to=20 retire=94 at Baylor. The petition also referred to understandings = between coaches=20 and administrators about long-term employment security at Baylor. = Sonnichsen=20 alleged that other coaches eventually received one-year written = contracts for=20 1995-1996, and then separate one-year contracts for 1996-1997. He = explained that=20 he never received one, although at his deposition he discovered that = Baylor had=20 prepared one. None of these additional allegations support the existence = of an=20 oral promise to enter into a one-year written contract. His allegations = only=20 include facts to support his previous claim that Baylor made an oral = promise or=20 representation that it would provide him with a two-year written = contract. As=20 the court of appeals held in the first appeal, a breach of contract = claim based=20 on an oral promise to enter a contract that is not performable in one = year and=20 is not in writing is barred by the statute of frauds. See id. = at=20 126. Thus, the trial court did not abuse its discretion by sustaining = Baylor=92s=20 special exceptions and dismissing the breach of contract claim in its = entirety.=20
Sonnichsen=20
also sued Baylor for fraud, alleging that he suffered damages as a =
result of=20
Baylor administrators=92 false representations about Sonnichsen=92s =
continued=20
employment. =93At common law, actual damages are either =91direct=92 or=20
=91consequential.=92=94 Arthur Andersen & Co. v. Perry Equip. =
Corp., 945=20
S.W.2d 812, 816 (Tex. 1997) (citing Henry S. Miller Co. v. Bynum, =
836=20
S.W.2d 160, 163 (Tex. 1992) (Phillips, C.J., concurring)); see also =
=93Texas=20 recognizes two measures of direct damages for common-law fraud:=94 = out-of-pocket=20 and benefit-of-the-bargain. Formosa Plastics Corp. USA v. Presidio = Eng=92rs=20 & Contractors, Inc., 960 S.W.2d 41, 49-50 (Tex. 1998); W.O. = Bankston=20 Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex. 1988). = Out-of-pocket=20 damages, which derive from a restitutionary theory, measure the = difference=20 between the value of that which was parted with and the value of that = which was=20 received. Formosa Plastics, 960 S.W.2d at 49.=20 Benefit-of-the-bargain damages, which derive from an expectancy theory, = evaluate=20 the difference between the value that was represented and the value = actually=20 received. Id. In Haase v. Glazner, we held that the = statute of=20 frauds bars a fraud claim for benefit-of-the-bargain damages when the = claim=20 arises from a contract that has been held to be unenforceable. 62 S.W.3d = 795,=20 800 (Tex. 2001). The statute of frauds does not bar the recovery of=20 out-of-pocket damages for fraud. Id. Thus, if the measure of = damages=20 Sonnichsen seeks for fraud are the benefit-of-the-bargain damages he = sought to=20 recover for breach of contract, his fraud claim also fails. The = viability of=20 Sonnichsen=92s fraud claim depends upon the nature of the damages he = seeks to=20 recover. This analysis is consistent with our holdings that focus the = legal=20 treatment of claims on the true nature of disputes rather than allow = artful=20 pleading to morph contract claims into fraud causes of action to gain = favorable=20 redress under the law. See, e.g., Haase, 62 S.W.3d = at=20 798-99; Formosa Plastics, 960 S.W.2d at 48; Sw. Bell Tel. Co. = v.=20 DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991).
Sonnichsen=92s=20
alleged damages for both claims are: (1) the inability to obtain =
employment=20
during the 1996-1997 season, (2) the lost opportunity to advance career =
and=20
increase earning capacity, (3) the lost revenues from a 1996 summer =
volleyball=20
camp at Baylor University, and (4) loss of tuition benefits by which he =
could=20
have completed his master=92s degree at Baylor=92s expense.
We = hold that=20 the trial court did not abuse its discretion by sustaining Baylor=92s = special=20 exception on Sonnichsen=92s breach of contract claims and the trial = court=20 correctly granted summary judgment in favor of Baylor on Sonnichsen=92s = fraud=20 claim. Therefore, without granting oral argument, we grant the petition = for=20 review, reverse the judgment of the court of appeals, and render = judgment that=20 Sonnichsen take nothing. Tex. = R. App.=20 P. 59.1.
OPINION DELIVERED: = April 20,=20 2007