IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TORSHARE LTD., § 

 § 

Plaintiff, § 

 § 

v. § Civil Action No. 4:22-cv-00482-BP

 § 

IGLO, LLC, et al., §

§

Defendants. § 

MEMORANDUM OPINION AND ORDER

Before the Court are the Motion for Partial Summary Judgment with Brief and Appendix 

in Support (ECF Nos. 28-30, respectively) filed by Defendants iGlo, LLC (“iGlo”) and Suneel 

Menon (“Menon”) (collectively “Defendants”), Response with Brief and Appendix in Support 

(ECF No. 38-40, respectively) filed by Plaintiff Torshare LTD (“Torshare”), and Defendants’ 

Reply to the Motion with Appendix in Support (ECF Nos. 53-54). After reviewing the pleadings, 

summary judgment evidence, and applicable legal authorities, the Court GRANTS the Motion and 

DISMISSES Torshare’s claims against iGlo and Menon with prejudice. 

I. BACKGROUND 

Torshare is a Chinese corporation that sells various lighting products to companies in the 

United States. ECF No. 39 at 5. Defendant iGlo is an importer and wholesaler of LED products 

based in Fort Worth, Texas. ECF No. 29 at 6. On June 2, 2022, Torshare filed suit against iGlo 

and Menon for breach of contract and on an account stated. ECF No. 1. On September 16, 2022, 

Torshare filed an Amended Complaint against the Defendants. ECF No. 19. 

In its Amended Complaint, Torshare alleges that it sold 6500 pieces of LED panel (“LED”) 

lights and approximately 2300 UFO Highbay (“UFO”) lights to iGlo in an amount totaling 

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$381,875. ECF No. 19 at 4-5. Torshare claims that iGlo refused to pay for or return the lights, and 

it sued iGlo for breach of contract and on an account stated. Id. at 5-7. Additionally, Torshare sued

Menon, the owner and manager of iGlo, in his individual capacity for breach of contract and 

account stated. ECF No. 19 at 2.

Defendants answered the Amended Complaint, denying the allegations and asserting

affirmative defenses of limitations and release. See ECF No. 20. Defendant iGlo also countersued 

Torshare for breach of contract and to recover its attorney’s fees. Id. Defendants then moved for 

partial summary judgment, stating that iGlo had paid for the LED lights, which turned out to be 

defective. ECF No. 29 at 6-7. Defendants say that as compensation for these defective lights,

Torshare agreed to send the UFO lights free of charge, and the parties agreed that iGlo did not 

need to return the defective LED lights or pay any additional consideration for the replacement 

product. Id. Additionally, Defendants argue that even if iGlo had not paid for the lights, the 

applicable statute of limitations barred Torshare’s claims. ECF No. 29 at 9. Moreover, iGlo argues 

that, regardless of the statute of limitations, it reached a settlement with Torshare on this issue in 

2018 that released it from any obligations related to the lights, including Torshare’s claims here.

In its response to iGlo’s Motion, Torshare admits that iGlo paid for the LED lights. ECF 

No. 39 at 5. Torshare also admits that it delivered the 2300 pieces of UFO lights free of charge to 

replace the 4000 unopened, defective LED lights. Id. However, Torshare asserts that the parties 

entered an oral agreement in 2017 that required iGlo to return the unopened LED lights (the 

“modification agreement”), but iGlo never returned the lights and instead liquidated them for a 

profit, in breach of the modification agreement. Id. at 11. Consequently, Torshare now asserts that 

it also is entitled to recover some of the profit from the liquidation. Id. 

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II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when “the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56; Slaughter v. S. Talc. Co., 949 F.2d 167, 170 (5th Cir. 1991). 

Disputes concerning material facts are genuine “if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). “An issue is ‘material’ if it involves a fact that might affect the outcome of the suit under 

the governing law.” Burgos v. Sw. Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). “The movant 

bears the burden of identifying those portions of the record it believes demonstrate the absence of 

a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 

2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)).

When a movant carries its initial burden, the burden then shifts to the nonmovant to show 

that the entry of summary judgment would be improper. Duckett v. City of Cedar Park, 950 F.2d 

272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering 

depositions, affidavits, and other competent evidence, “conclusory allegations, speculation, and 

unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.” Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Merely colorable evidence or 

evidence not significantly probative will not defeat a properly supported motion. Anderson, 477 

U.S. at 249-50. Furthermore, a mere scintilla of evidence will not defeat a motion for summary 

judgment. Id. at 252; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).

The Court views summary judgment evidence in the light most favorable to the party 

opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); 

Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). Additionally, it resolves factual controversies 

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in favor of the nonmovant, but only when both parties have submitted evidence of contradictory 

facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 

1994) (en banc). In the absence of any proof, however, the Court does not assume that the 

nonmovant could or would prove the necessary facts. Id.

In considering the Motion, the Court looks at the full record including the pleadings, 

depositions, answers to interrogatories, admissions, and affidavits. Fed. R. Civ. P. 56(c); Williams 

v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, the Court’s function is not “to weigh the 

evidence and determine the truth of the matter but to determine whether there is a genuine issue 

for trial.” Anderson, 477 U.S. at 242-43. The Court grants the Motion only if the movant meets its 

burden and the nonmovant fails to make the requisite showing of a genuine issue of material fact. 

Fed. R. Civ. P. 56; Duckett, 950 F.2d at 276.

III. ANALYSIS 

A. Texas law governs this suit. 

A federal court sitting in a diversity case such as this one applies the forum state's choiceof-law rules to determine which substantive law will apply. Weber v. PACT XPP Techs., AG, 811 

F.3d 758, 770 (5th Cir. 2016) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97

(1941)). Torshare filed its case in this Court, so under Klaxon, Texas choice-of-law rules apply.

Texas follows the Restatement (Second) of Conflict of Laws. Maxus Exploration Co. v. Moran 

Bros., 817 S.W.2d 50, 53 (Tex. 1991). When parties do not contract for the application of the law 

of a particular forum, § 188 of the Restatement provides for application of the “law of the state 

which, with respect to that issue, has the most significant relationship to the transaction and the 

parties under the principles stated in § 6.” Restatement (Second) of Conflict of Laws § 188 (1971). 

Section 188 directs the court to pay particular attention to the place of contracting, the place of 

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negotiation of the contract, the place of performance, the location of the subject matter of the 

contract, and the domicile, residence, nationality, place of incorporation and place of business of 

the parties. Id.; Weber, 811 F.3d at 772. 

The parties have not provided the Court with the sales contract for the LED or UFO lights

at issue in this case. However, they have cited Texas cases and legal principles in their pleadings

as if they agreed that Texas law applies. See ECF Nos. 19-21, 28, 38, 53. Moreover, the sales 

contract governed the sale of lights to a company based in Fort Worth, Texas. Torshare delivered 

the lights to iGlo in Texas, and the dispute regarding the defective lights and the subsequent 

liquidation of those lights also arose in Texas. Texas has the most significant relationship to the 

facts at issue in the case. Accordingly, the Court applies Texas substantive law to this case. 

B. There is no question of material fact regarding iGlo’s payment for the LED 

lights.

In its Amended Complaint, Torshare alleges that “the parties, for valuable consideration, 

entered into two separate valid and enforceable contracts on August 2017 and February 2018, 

respectively, providing for the shipments of 6500 pieces of LED panel lights and 2355 pieces of 

UFO Highbay lights by [Torshare] in return for money payment by [iGlo].” ECF No 19 at 5-6. 

Torshare states that it performed its duties under the contract when it arranged for shipment of the 

lights from a third-party carrier, but iGlo neither paid for the lights nor returned them. Id. at 7. 

Torshare argues that as a result, iGlo breached the contract. Id. 

Additionally, Torshare argues that it is entitled to the payments for lights received by iGlo 

under account stated. Id. at 8. A common law cause of action for account stated arises when “(1) 

transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, 

express or implied, between the parties fixes an amount due, and (3) the one to be charged makes 

a promise, express or implied, to pay the indebtedness.” Marshall v. Crown Asset Mgmt., LLC, 

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No. 13-17-00115-cv, 2017 WL 6379830, at *1 (Tex. App.—Corpus Christi-Edinburg Dec. 14, 

2017, no pet.). Once again, Torshare alleges that it shipped the goods to iGlo in satisfaction of 

their agreement, but iGlo never paid for the lights it received. ECF No. 19 at 8. Accordingly, 

Torshare argues that iGlo owes it payment at the agreed upon price for the lights “delivered and 

received.” Id. 

However, in Torshare’s response to iGlo’s Motion, it admits that iGlo indeed paid Torshare 

for the LED lights. ECF Nos. 39 at 5, 40 at 4. Additionally, Torshare admits that it agreed to deliver 

2300 pieces of UFO lights free of charge to iGlo to replace the defective, unopened LED lights. 

Id. Thus, in its Response, Torshare concedes any fact question relating to iGlo’s alleged breach of 

contract and account stated claims regarding payment for the lights.

C. The statute of limitations has run on Torshare’s breach of contract and 

account stated claims. 

Even if Torshare had not admitted that iGlo paid for the lights, iGlo still would prevail on 

its affirmative defense of limitations. A breach of contract claim accrues when the contract is 

breached. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). The contract is not breached until a 

wrongful act occurs. See Anderson v. Cocheu, 176 S.W.3d 685, 690 (Tex. App.—Dallas 2005, pet. 

denied). A cause of action generally accrues, and the statute of limitations begins to run, when 

facts come into existence that authorize a claimant to seek a judicial remedy. Johnson & Higgins 

of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998).

A four-year statute of limitations applies to breach of contract claims in Texas. Tex. Civ. 

Prac. & Rem. Code Ann. § 16.004 (West 2023). The issue of when a cause of action accrues is a 

question of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). In

moving for summary judgment on the affirmative defense of limitations, iGlo must establish as a 

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matter of law the date a cause of action accrues. KPMG Peat Marwick v. Harrison County Hous. 

Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

Similarly, an account stated claim accrues “on the day that the dealings in which the parties 

were interested together cease.” See Tex. Civ. Prac. & Rem. Code § 16.004(c) (West 2023). The 

statute of limitations for an account stated claim is also four years after the day the cause of action 

accrues. Id. at § 16.004(a); Marshall, 2017 WL 6379830, at *1; Hwang v. Cap. One Nat'l Ass'n, 

No. 02-22-00120-cv, 2023 WL 166434, at *12 (Tex. App.—Fort Worth Jan. 13, 2023, pet. denied).

The invoices for the shipment of lights at issue show that payment was due sixty days after 

the good were shipped. Therefore, iGlo was obligated to pay for the defective LED lights no later 

than November 24, 2017 and for the UFO lights on or before May 14, 2018. ECF Nos. 29 at 11, 

30 at 5, 11, 17, 27. If iGlo failed to pay by those dates, Torshare could have filed a suit for breach 

of contract or account stated suit for the LED lights no later than November 23, 2021, and for the 

UFO lights no later than May 13, 2022. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a) (West 

2023). However, Torshare filed this suit on June 2, 2022 (ECF No. 1), which was past the four 

years provided in the applicable statute of limitations. 

In its response to the Motion, Torshare alleges that iGlo never returned the defective lights 

and instead liquidated the lights on July 18, 2018, in breach of the modification agreement. ECF 

No. 39 at 11. IGlo argues that there never was a contractual provision requiring it to return the 

lights, but even if there were, limitations would bar Torshare’s claim. ECF No. 29 at 7, 53 at 5.

Whether an agreement constitutes a contract is generally a question of law. Musallam v. 

Ali, No. 02-16-00282-CV, 2019 WL 1950179, at *8 (Tex. App.—Fort Worth May 2, 2019, no 

pet.); Effel v. McGarry, 339 S.W.3d 789, 792 (Tex. App.—Dallas 2011, pet. denied). But when

the parties dispute whether there was a meeting of the minds, determination of the existence of a 

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contract is a question of fact. Musallam, 2019 WL 1950179 at *8. The parties disagree on whether 

they entered into a contract for the return of the lights, and both sides offer evidence that supports 

their respective position. ECF Nos. 40 at 4, 54 at 48. Accordingly, there is a fact question regarding 

the creation and contents of the modification agreement as it relates to iGlo’s duty to return the 

defective lights. However, the existence of this fact question is immaterial to the issues to be tried 

because the statute of limitations bars Torshare’s claim for breach. 

Torshare alleges that Menon agreed to return the defective lights upon receipt of the UFO 

lights, but failed to do so. ECF No. 54 at 15. In response, iGlo argues that any breach of this 

contract would have occurred in March or April 2018 when Torshare first learned that iGlo would 

not return the lights. ECF No. 53 at 6.

On March 14, 2018, David Chang, Torshare’s sales director, wrote to Menon that Torshare 

wanted iGlo to return the lights. ECF No. 54 at 21. Chang then spent the first half of 2018 “chasing 

Menon and asking him to return the lights,” but Menon refused to return the lights. Id. at 15.

Additionally, Chang’s deposition shows that Torshare was aware that iGlo began selling off the

defective lights in April 2018, an act contrary to the alleged modification agreement. Id. at 23.

Thus, iGlo argues that any breach of the modification agreement occurred in March or April when 

Torshare first learned that iGlo was not returning the defective LED lights

Torshare counters that the breach occurred on July 18, 2018. ECF No. 39 at 7, 12. Torshare 

offers evidence that it exchanged several text and email messages with iGlo regarding the return 

of the lights starting in March 2018 and ending in July 2018. ECF Nos. 39 at 7, 40 at 5. Finally, 

on July 16, 2018, Torshare sent an email to iGlo demanding that it return 2000 defective lights in 

two days or Torshare would take action. ECF No. 40 at 5, 92. However, iGlo refused to return the 

2,000 lights, and Torshare asserts that this refusal on July 18, 2018 was the date of breach because 

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on that date it became “clear to [it] that [iGlo] would never return the 4000 plus unopened LED 

panel lights as agreed.” Id. at 5.

What constitutes a breach of contract is a question of law. Matter of Dallas Roadster, Ltd., 

846 F.3d 112, 127 (5th Cir. 2017); E.P. Towne Ctr. Partners, L.P. v. Chopsticks, Inc., 242 S.W.3d 

117, 123–24 (Tex. App.—El Paso 2007, no pet.). “A breach of contract occurs when a party fails 

or refuses to do something he has promised to do.” Zieche v. Burlington Res. Inc. Emp. Change In 

Control Severance Plan, 506 F. App'x 320, 324 (5th Cir. 2013) (quoting Capstone Healthcare 

Equip. Servs., Inc. ex rel. Health Sys. Grp., L.L.C. v. Quality Home Health Care, Inc., 295 S.W.3d 

696, 699 (Tex. App.—Dallas 2009, pet. denied). Moreover, an action for breach of contract accrues 

immediately upon breach. Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). Thus, Torshare’s 

breach of contract and account stated claims accrued either immediately after iGlo failed to return 

the defective lights upon arrival of the replacement lights on March 14, 2018, or in April 2018 

when iGlo acted contrary to the alleged modification agreement and sold some of the lights instead 

of returning them to Torshare. Either way, Torshare knew of facts that authorized it to seek a 

judicial remedy by the end of April 2018. Johnson, 962 S.W.2d at 514.

Torshare claims that it tried for months to get iGlo to return the defective lights and 

negotiate a possible solution to the dispute. However, the subsequent failed negotiations to try and 

find a solution did not toll the statute of limitations because Torshare could have filed its suit well 

within the four years provided. See Fonseca v. USG Ins. Servs., Inc., 467 F. App'x 260, 261 (5th 

Cir. 2012) (holding that plaintiff should have filed suit within the applicable statute of limitations 

and then sought arbitration to resolve the issue). If it were otherwise, any party could attempt to 

negotiate a settlement with the breaching party indefinitely despite the running of the statute of 

limitations. The summary judgment shows, and the Court holds, that Torshare did not file suit 

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against Defendants until after the four-year statute of limitation had run, and any claim for breach 

is barred as a result. 

D. Torshare cannot recover proceeds of the liquidated LED lights. 

In its response to iGlo’s Motion, Torshare argues for the first time that it should recover 

the proceeds from iGlo’s liquidation of the LED lights. Defendants argue in their reply that this 

claim is not part of Torshare’s live pleading, which only raised a breach of contract and account 

stated claim based on its alleged failure to fully pay for two sets of lights. ECF No. 53 at 6. 

“A claim which is not raised in the complaint but, rather, is raised only in response to a 

motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Sup'rs of 

Louisiana State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v. Metropolitan Life Ins. 

Co., 895 F.2d 1073, 1078 (5th Cir.1990)). This rule means that a defendant is entitled from the 

pleadings stage onward to “fair notice of what the claim is and the grounds upon which it rests.” 

De Franceschi v. BAC Home Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012) (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 698-99 (2009)).

Torshare’s new claim for recovery rests on two statutory provisions. First, it asserts that 

under § 2.603(a) of the Texas Business & Commerce Code, iGlo had a duty after rejecting the 

LED lights to follow any reasonable instruction received from Torshare with respect to the lights.

ECF No. 39 at 9 (citing Tex. Bus. & Com. Code Ann. § 2.603(a) (West 2023)). According to 

Torshare, iGlo breached this duty by refusing Torshare’s request to help sell the lights or return 

the LED lights from its warehouse. Id. at 10. Second, Torshare claims that under § 2.603(b), the 

buyer is entitled to reimbursement from the seller or out of the proceeds for reasonable expenses 

of caring for or selling rejected goods. Id. at 11 (citing Tex. Bus. & Com. Code Ann. § 2.603(b)

(West 2023)). Torshare argues that this section, conversely, provides that it is entitled to recover

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the proceeds from the sale of the rejected LED lights in excess of any reimbursement owed to iGlo. 

Id. 

The Court may not consider Torshare’s newly asserted claims because it did not plead them 

in its Amended Complaint. See generally ECF No. 19. Torshare did not give iGlo fair notice of 

what the claim is and the grounds upon which it rests. DeFranceschi, 477 F.App’x. at 204. 

Accordingly, the Court cannot consider this claim as Torshare first raised in response to iGlo’s 

Motion. Id.

E. There is a fact issue on iGlo’s affirmative defense of release. 

Defendant iGlo states that in 2018, the parties entered into a valid release and agreed that 

iGlo would not have to return any of the defective LED lights or pay for the replacement UFO 

lights. ECF No. 29 at 13. Moreover, iGlo states that this release fully settled the parties’ dispute 

over the defective LED lights. Id. Torshare argues that the release was not valid because iGlo knew 

that Homer Hong (“Hong”), the Torshare employee who entered into the agreement, did not have 

apparent authority to execute the release based on his role in the company. ECF No. 39 at 14. 

Upon reviewing the summary judgment evidence provided by both parties on this issue, 

the Court sees a fact question regarding Hong’s authority to execute the release. However, the 

existence of this fact question is immaterial to the issues to be tried because, as stated above, the 

statute of limitations bars Torshare’s claim for breach, and the Court does not reach iGlo’s 

affirmative defense of release. 

F. Torshare may not bring a case against Menon in his individual capacity. 

“Due to the limited liability that corporations and [limited liability companies] offer to their 

[managers], a plaintiff seeking to impose individual liability on an owner must ‘pierce the 

corporate veil.’” Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 442-44 (5th Cir. 2013). Texas 

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law insulates members and managers of LLCs from the corporation’s contractual or contractually 

related obligations “on the basis that the holder . . . is or was the alter ego of the corporation or on 

the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory.” Id.; 

Tex. Bus. Orgs. Code Ann. § 21.223(a)(2) (West 2023); Id. at 101.002 (extending the provisions 

regulating and restricting veil piercing of corporations to an LLCs’ managers and members). 

Section 21.223(b), however, creates an exception to this limitation. Spring St., 730 F.3d at 442. A 

shareholder may be personally liable for a corporation's obligations “if the obligee demonstrates 

that the . . . beneficial owner . . . caused the corporation to be used for the purpose of perpetrating 

and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the . .

. beneficial owner.” Id.; Tex. Bus. Orgs. Code Ann. § 21.223(b). 

To hold Menon liable for the breach of contract or account stated claims, Torshare must 

show that Menon used the corporation to perpetuate an actual fraud against Torshare for his 

personal benefit. Actual fraud is defined as “involv[ing] dishonesty of purpose or intent to 

deceive.” Spring St., 730 F.3d at 442–43 (citing Tryco Enters., Inc. v. Robinson, 390 S.W.3d 497 

(Tex. App.—Houston [1st Dist.] 2012, pet dism'd)). However, Torshare has not offered any 

evidence or argument in its Amended Complaint or response to iGlo’s Motion to show that 

Menon’s actions involved dishonesty or a purpose or intent to deceive Torshare. See generally 

ECF Nos. 19, 39. Moreover, Torshare has not offered any evidence that the breach of contract or 

failure to pay the account directly benefited Menon. Id. Accordingly, Menon is entitled to summary 

judgment on the breach of contract and account stated claims brought against him as a matter of 

law as Torshare has not raised an issue for trial on whether the Court should pierce iGlo’s corporate 

veil and hold him liable. Spring St., 730 F.3d at 443.

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IV. CONCLUSION

The applicable statutes of limitation bar Torshare’s claims for breach of contract and 

account stated against iGlo and Menon. Moreover, Torshare did not timely raise its claim to the 

proceeds of the liquidated, defective LED lights in its Amended Complaint, but instead brought 

this claim forward in response to IGlo’s Motion for Partial Summary Judgment. This was 

procedurally improper, and the claim is not before the Court. Thus, after reviewing the pleadings, 

the summary judgment evidence, and applicable legal authorities, the Court GRANTS iGlo’s 

Motion for Partial Summary Judgment (ECF No. 28) and DISMISSES Torshare’s claims against 

iGlo and Menon with prejudice. 

It is so ORDERED on July 11, 2023. 

 ______________________________________ 

 Hal R. Ray, Jr. 

 UNITED STATES MAGISTRATE JUDGE

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