### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00031
- CV

Charles “ Chip ” Weersing , Appellant

v. OneTouchPoint Southwest Corp. d/b/a Ginny ’s , Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -19-004820 , THE HONORABLE KA RI N CRUMP, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N Ap pellant Charles “ Chip ” Weersing appeals the trial court ’ s grant of appelle e OneTouchPoint’s (OTP ’s ) traditional motion for summary judgment in five issues

. In his first issue , W eers ing con tends that the trial court erred by exclud ing emails between OTP employees and Weersing on hearsay grounds. In his second through fourth issues, he contends that the trial court erred by granting OTP ’s summary judgment motion because , as Weersi ng c ontends , there was a genuine issue of material fact for his three plead ed causes of action

— breach of contract , promissory estoppel, and quantum meruit. In his final issue, Weersing contend s that the trial
court er red by granting OTP ’ s motion for summa ry judgment beca use “ OTP mis s ta ted the law regarding reliance an d restitution damages recoverable under” his three pleaded causes of ac tion. Because we conclude that Weersing was not harmed by t he trial court sustain ing OTP ’ s hearsay objection and that th e trial cou rt did not err by granting OTP ’ s traditional summary jud gment motion, we affirm the tria l court ’ s judgment.2 BACKGROUND Weersing worked for OTP , a mark eting and supply chain management company, as an account executive in the sales department

. His e mpl o ymen t was termin a ted in December
2012. Weersing was r e hired by O TP in January 2014. In October 2014, Weersin g brought in the Condren account as a new account

. I n September 2015 , Weersing wa s informed that his commissio n s on the ac count woul d be reduced to 5. 5 percent d u e to low profitability of the
account

. Weersing alleged that the profitability issues were entirely the fault of OTP and out of his control . In May 2016 , the commission s w ere reduced to 3 percent

. I n August of 2019 , Weersing re signed f rom the c o mpany
. Weersing filed his breach of contract suit against OTP allegin g that he was promised 8 percent com mission s on all new ac counts for the first two years and then 5.5 percent commissions after that

. OTP filed a mo tion for tradition a l sum mary judgm ent. In support of its motion, it attache d copies of two docum ents that are both titled “ Payroll/Pe rson nel Statu s C hange Request

. ” The firs t payroll document is dated December 27, 2012 and documents Weersing ’ s termi nation from the company

. The second is dated January 29, 2014 and documents Weersin g ’ s rehire with th e company . The rehire document list s Weersing ’ s j ob title as an account executive . Under a section for “ other comments , ” the document states, “ earns 8%

com [mission] on everyth i n g un til we tra nsition com [mission] plan then he gets [standard] plan

. ” 1

1 The record i s unclear reg ar ding what the terms o f the “ standard plan ” referenced in the payroll form were
. OTP ’ s chief operati ng officer , Chris Greene, testified in his deposition that in Ja n uary 2014 the standard plan was 8 percent on new accounts for two years and then 5.5 per cen t aft er that, but tha t the company maintained discretion to reduce the percentage based on profitability factors

. However, W eersing testified in his depositio n tha t he was told at the time he was hired that he would start at an 8 p e r cent commission rate, which would change to the standard p lan “ once they came up with one. ”3 Both payroll d ocuments include an “ officer authorization ” signat ure but no t Weersing ’ s signature

. OTP also attached ex cerpts of Weersing ’ s deposition tra nscript , which as relevant
h ere inc lu d ed the follow ing highlighted p ortions of testimony: when asked to describe how commissions work at OTP, Wee rsing stated “ We ll, when I was hired back, I was hired at an 8 percent commission rate and was told that that would change to the standard p lan on ce they came
up with one ” ; when asked what the terms of his c ontract for commissions was, he stated that “ it

wa s 8 percent for two years on all new work and 5 and a half percent thereafter, ” bu t that there

“ was no t a timeline ” for when the transitio n to the s t andard plan w ould take place and that

“ nothing was ever s igned , ” and that in exchange for his promised comm ission rate he promised future work without a set ti meframe; and when asked if the contract was written or oral, Weersing testified that i t wa s wr it t en and that t he contract was his rehire document and adm itted that it did not include what he promised to do in exchange for a set commission rate.
OTP al so attached an unsworn declaration by Chris G re e n e , who was the chief operating officer of O TP a t the time of tr ial

. Green stated that “ OTP has al ways had a p olicy of adjusting comm issions on accounts when they are not sufficiently profitable, ” that this was “ a long

- standing policy that all OTP salespersons knew or should have known, ” and that t he
C o n dren account “ was never particularly profitable

. ” OTP also attached exhibits s howing that the C on dr en account had lower pro fitability than other accounts managed by OTP

. Weersi ng provided the following evidence in opposition to OTP ’ s su mmary judgm e nt moti on : excer pts from his own depositio n with highlighted port ions that focused on Weersing ’ s testimony that he expected to receive 8 percent commission on the C ondren account and explaining hi s reasoning for his belief that the low pro f i t ability of th e account was the fault4 of others in OTP and not his own; ex cer pts from the depo sition of Greene that focused on discussion of the production issues that affected the Condren account ; a copy of the rehire
pa yroll form ; and a series o f emails sent fr om or t o Weersing regarding his commissio n s for the Condre n account

. OTP objected on hearsay grounds to the emails that Weersing included in his summary judgment evidence

. Weersing responded , arguing that the objections were too vague

an d arguing that v arious he arsay exceptions applie d. T he trial court sustained O TP ’ s hearsa y objection to the emails

. The trial court granted OTP ’ s tradit ional motion for summary judgment and dismissed Weersing ’ s three causes of action with prejudice. W e e r s ing appealed.

STAN DARD OF REVIEW A party moving for trad itional summary judgment must demonstrate tha t “there is
no gen uine issue as to any material fact” and that it is “entitled to judgment as a ma tt e r of law.” Tex. R. Civ. P. 166a(c ). “We review summary judgments de no vo, v iewing the evidence in the light m ost favorable t o the non

- movant, crediting evidence favorable t o the non

- movant if reasonable jurors could, and disregarding contrary evidence un l e ss reasonable jurors could not.” Zive v. Sandberg , 644 S.W.3d 169, 17 3 (Te x. 2022). W hen , as here, the trial court does not specify the grounds for granting the m otion, we must uphold the judgment if any of the grounds asserted in t he motion an d preserved for appellate review are meritorious. See Pr o v ident Life &
A ccident I ns. Co . v . K nott , 128 S.W.3d 211, 216 (Tex. 2003). A genuine issue of material fact exists if it “ rises to a level that would enable reason able and fair

- minded people to differ in their conclusions.” First United Pentecostal Ch ur c h of Beaumont v . Parke r , 51 4 S.W.3d 214, 220 (Tex. 2017) (citing Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997) ).5 Evidence does not create an issue of material fact if it is “so weak as to do no more than create a mere surmise or s us p i cion” that the fact e xists

. Id. (citing Kia Motors Corp. v. Ruiz , 432 S.W.3d 865, 875 (Tex. 2014) ). We review evi dentiary rulings , including those c onnect ed to a summary judgment motion , for an abuse of discretion

. See Starwood Management LLC v. Swai m , 5 30 S.W.3d 673, 678 (T ex. 2 017) (per curiam). We do so by considering whe ther the trial court act e d “without refer ence to any guiding rules and principles.” Id. Even if ev idence was erroneously excluded,

w e will not reverse unless appellant shows tha t t h e erro r was ha rmful. Tex a s Dep ’ t of Transp.

v. Able , 35 S.W.3d 608, 617 (Tex. 2000) ; Tex. R. App. P . 44.1(a)

.
ANALYSIS
The E xcluded E mails Weersing conte n ds that the tr ial court erred by excluding a set of emails discussing the reductions i n his commission rate based on hears ay. He contends that OTP ’ s hearsay objection was too vague and that the stateme nts in the emails were admissible because multip le hearsay exceptions applied. In contending that the e xclusion of the emails was harmful

e r r or , Weersing a lleges that “ each em ail , in itself, created a genuine issue of material fact that precluded summary judgment. ” Contained with in the emails sent by Weersing ar e the fol lowing
statements that we understand Wee rsing to allege would have cre at e d a genuine iss ue of materi al fact if not excluded : “ My deal made long ago was for 8% , ” and, “ My deal I m ade long a go was for 8% commission

. ” We also understand t he statemen t from the work email sent to Weersing that he co ntends would have creat ed a ge nu i n e issue of mat erial fact t o be, “ T his change does not have to be forever. ” W e further understa nd Weersing to cont end that his reference to a “ deal ”6 and his ma nag er ’ s acknowledgment tha t there had been a “ change ” to his commission rate to be evidence o f a contract b etwe en the p arti es for a n 8 percent commission rate

. Evidence of OTP ’ s acknowledgment that Weers ing ’ s commi ssion rate had been changed and Weersing ’ s asser tion that he had a “ deal ” for 8 percent commission also appeared in the summary jud gm e n t evidence con sidered by t he court. Sp ecifically, Greene testified that Weersing ’ s commission was set at 8 percent with a plan to transition to a standard plan and
Gre ene ’ s declaration stated that the company had a policy of adjusting commissions on a cc o u nts based on p rofitability

. Weersin g t estified during his deposition that his “ deal was 8 p ercent. ” Thus, the complained of ex cluded statements are cumulative and any er ror was harmless

. See Able , 35 S.W.3d at 617

– 18 ( holding that even if exclusion of e vidence was er ror, it w as harmless

e rro r because excluded evidence was cumulative ). Assuming without deciding that the tr ial court erred by exclud ing the emails, we

conc lude th at any error was harmless. Tex. R. App. P . 44.1(a)

. W e overrule Weers in g ’ s first issue.
Breach of Contract
We ersing contends that the trial court erred by granting OTP ’ s traditi onal summary judgment motion and dismissing his breach of contract claim because , as he contends, the summary judgment evidence established a gen ui n e issue of mate rial fact. “ T he esse ntia l elem ents of a breach

- of

- contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained by th e plaintiff as a result of t he breach .” Valero Mktg. & Supply Co.

v. Kalama Int ’ l, L.L.C. , 51 S.W.3d 345, 351 (Tex. App.

— Houston [1st Dist.] 2001, no pet.).7 The first element , whether there was a valid contract , is dispositive here. Weersing conten ds t hat the payrol l form is ei ther a written unilat eral contract or is evidence of an

or al unilateral contract to pay Weersing 8 percent commission on all new accounts f or two years , and that the wr itten o r oral unilateral contract became binding when Weer si n g performed und er the contr ac t

. “ A unilat eral c ontract

. . . is created by the promisor promising a benefi t if the promisee performs. The contract becomes enforceable when the promisee performs.” Vanegas v. American Energy Services , 302 S.W. 3d 299, 3 02 ( Tex. 2009) (cl eaned up)

. OTP conten ds th at the re was no contract for a fixed commission rate . Specifically, O TP relie s on its summary judgment evid ence of the rehire payroll form that sta tes that the commi ssion rate may be changed at an indefinite time , it ’ s corporate officer ’ s t estimony that t he com pany had a long standing policy of adjusting commission rates to match profitability of accou nts, and the lack of
any s pecific terms in the rehire payroll form regarding what Weers ing was required to do for an
account before being enti tled to a commi ssion. The r ecord is silent regarding what performance Weersing had to complete on an
account for the commission to vest his 8 percent commission. Weersing contends tha t his required performance was to perform his job duties a s an account executiv e . In h is sum mary judgment response and reply filed in the trial court he al leged that h is commission had vested when he performed as required

. How ever, there is nothing in the summary judgment evidence of what was required of him fo r the commis sion s to vest , t h at he did that specific thing, or when it happened to cre ate a f act issue that would preclude summary judgment

. See Am erican Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830 (Tex. 1994) ( “ A mere pleading or a response to the summary judgment motion does not satisf y this burden of coming forw ar d with sufficient evi dence to prevent summary judgment. ”). Additionally, the record is silent regarding who Weersing made8 the alleged oral contract with and how that person had the authority to bind the company to s uch
an agr eement.
Because OT P’s evidence demonstrated that there is no t a gen uine issue of

m aterial fact regarding the existence of a contract and Weersing ’s e vidence does no more than create a mere surmise or s uspi cion that the fact exist s, we conclude that t he trial co urt did not err by dismissing Weersing ’ s breach of contract claim. We overrule Weersing ’ s second is su e.
Quantu m M eruit Weersing ’s third issue contend s that the trial court erred by dismissing his quantum meruit cause o f action. Quantum mer uit is an equitable remedy based on the promise implied by law to pay for beneficial services rendered and kno wi ngly accepted when th ere is no express contract for the services

. Vortt Explorati on Co., Inc. v. Chevron U.S.A., Inc ., 787 S.W.2d 942, 944 (Tex .1990)

. T o recover under the equitable theory of quantum meruit, the claimant must prove that :
(1) valuable se rvices were rendered or material s furnished; (2) for the person sought to be char ged; (3) which services and materials were accepted by the pers on sou ght to be charged , used and enjoyed by him; (4) under such circumstances as reasonably notified the perso n sought to be charged that the pl aintiff in performing such services was expecting to be paid by the person sought to be c harged. Id

. Recovery of da mages is proper when nonpayment would result in unjust enrichment to the party that benefited from the wo rk

. Id. Because it is dispositive , we address the fourth element of quantum m er uit. OTP provid ed uncontroverted evide nce that it was a long time p olicy of the company t o reduce commissions on an account based on profitability. Furthermore , t he pay roll form documentin g9 Weersing ’s rehire sta te d the compan y ’s intention to transition Weersing to a diffe rent plan wi th
an unsp ecified rate at an uns pecifi ed time. The record is silent regarding any reasonabl e notice
to the company at the time he was hired that Weersing expected a fixed comm is sion rate contrary
to company policy

. Because OTP ’ s evidence established that there is no gen uine issue as to a mate rial fact regarding reasonabl e notice to OTP of any expectation by Weersing of a fixed commission
rate contrary to company polic y , t he trial court did not err by dismissing Weersin g’ s quantum meruit cause of action. We overrule Weersing ’ s third issu e.
Promissory Estoppel
W ee rsing ’ s fourth issue contend s that the tri al court erred by dismissing his promissory estoppel cause of acti on. We understand Weersin g to contend that hi s initial and continuing work on the Condren account , including work done after his commission was

r educed, was done in rel iance that all commission s for two years would be at a fixed 8 percent
rate

. H e testified in his deposit ion that he would not have wor ked at O TP at all if he was not offered a fi x ed 8 percent commission rat e. W ee rsing testified in hi s depo sition t hat he “ was hired at an 8 percent com m ission
rate a nd was told that that would change to the standard plan once they came up with one

. ” H e also testified tha t “ in 2014, it was 8 percent until they transitioned to anoth er plan.· We really

n ev er got another plan, but it was told to us that it was 8 percent for two years on all new work and 5 and a half percent thereafter. ” Wh en asked w hat he u nderstood the timeline to be to transition t o the “standard plan” he test ified that “ [t]here was no timeline. ” Gre ene stat ed in his declaration that it had been a long- time company po licy t hat all empl o yees should know that the10 commission rate would be ad justed based on profitability

. Additi onally , Weer sing ’ s rehire
pa yroll f orm re ads , “earns 8 % on eve ry thing until we transi tion com[missi on] plan , then he gets [standard] plan. ”

“ The requisite s of promissory estoppel are: (1) a promise, (2) foreseeability of

r eliance thereon by the promisor, and ( 3) subst antial reliance by the promis ee to his detriment. ”
En gl ish v. Fischer , 660 S .W.2d 521, 524 (Tex. 1983)

. Weersing ’s testimony t hat he was hir ed a t 8 percent commission until that was changed to a standard plan and that no timeline was ever given c ombined with Gre ene ’s uncontrov erted testimony that the co mpan y had a long

- t ime polic y of adjusting commission s based on the profitabilit y of an accou n t , renders the alleged “promise ” “ too vague and indefinite to be en forced in a suit for promissory estopp el. ” Ellen

v. F.H. Partners, L LC , No . 03

- 09

- 00310

- CV, 2010 WL 4 909973, at *6 (Te x. A pp.

— Austin
Dec. 1, 2010, no pet.) (mem. op.) (citing Gilmartin v. KVTV

- Channe l 13 , 985 S.W.2d 553,
558

- 5 9 (Tex. App.

— San Antonio 1998 , no pet.)

. Fu rther, the “ [r] eliance on the promise must be reasonab le and justified

. ” Gilmartin , 98 5 S.W .2d at 558 . Her e, t he alleged pro mise came with

“ no specific length of time and with no clear limit on the employer ’ s freedom of action ” resulting
i n the reliance being based on “ subject ive expectations and was unju st ified

. ” Collins v. Allied Phar ma cy Mgmt., Inc. , 871 S .W.2 d 929, 938 (Te x. App.

— Houston [14th Dist.] 1994, no writ)

. Because OTP ’ s eviden ce established that there is no genui ne issue of material fact of a promise that was reasonably relied on , the trial court did not err in d ismissing Weersin g ’ s
prom issory estopp el claim. We overrule Weersing ’ s fourth claim.11 D amages Weersing ’ s final issue contends that the trial court erre d in granting s ummary judgment because O T P miss tated the law regarding damages f or all three cause s of action

. B ecause we have concluded that OTP is entitled to judgment as a matter of law because it demonstrated that there is no genuine issue of material fact regarding an element or element s for each cause of action other than damag es, we do not need to address his final issue. See Tex. R. App. P. 47 .1 ( “ The c ourt of appeals m ust han d down a w rit ten opin ion that is as brief as
pra ct icable bu t that addres ses every issue r aised a nd neces sar y to f inal d isp ositi on of
t he a ppea l

. ” )

.
CONC LUS ION
B ecause we overruled Weersing ’ s first four is su es and did not reach his fifth, we affirm the trial c ourt ’ s judgment dismissing his three causes of action on traditional
summary judgment

.

______ ______ ______ ____ ________ ____________ Darlene B yrne , Chief Justice Befor e Chief Justice Byrn e, Justices Triana and Smi th

Dissenting O pinion by Justice Triana
Af firmed Filed: January 31, 2024