Affirmed and Opinion filed March 31, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00328-CV

JOHN R. FULLER, Appellant

V.

WHOLESALE ELECTRIC SUPPLY COMPANY OF HOUSTON, INC., 

Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2016-82422

O P I N I O N

A former employee appeals the trial court’s summary judgment dismissing 

his claims against his former employer, a supply company, based on an alleged 

decades-old oral promise made to him by the company’s founder. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1986, appellant/plaintiff John R. Fuller served as Vice President and 

Branch Manager of Nunn Electric Supply Company’s Houston location. Fuller had 
2

opened the company’s maintenance and repair order (“MRO”) branch in Deer 

Park, Texas, in 1981, and had run the department for four years. At the time, 

appellee/defendant Wholesale Electric Supply Company of Houston, Inc., also in 

the electric supply industry, was considering building an MRO operation in Deer 

Park. 

Clyde Rutland, the owner, founder, President, and Chairman of the Board of 

Directors of Wholesale, met with Fuller several times to discuss a potential MRO 

operation at Wholesale. Fuller said that he could bring with him a team of 

approximately 15 employees from Nunn along with Nunn’s major MRO 

customers. Fuller told Rutland he could modernize and computerize Wholesale’s 

MRO operations and then turn over the Deer Park branch to another employee, Jeff 

Woodward. Fuller asked Rutland for two percent of the stock of Wholesale. 

Rutland did not agree to give Fuller two percent of the stock. Instead, according to 

Fuller, Rutland orally promised to pay Fuller “the equivalent of 2% of [Wholesale] 

when [Fuller] retired” (the “Two-Percent Agreement”). The two men shook hands, 

and Rutland told Fuller “my word is my bond.” They did not put the Two-Percent 

Agreement in writing. 

After the meeting, Rutland mentioned the agreement to Joe Jones, a 

Wholesale executive. Fuller told Woodward, his subordinate from Nunn, that he 

had reached an agreement with Rutland. Fuller continued to work for Wholesale 

for the next 25 years. 

Following Rutland’s death in 2011, Rutland’s daughter, Pam McKellop 

became Chairman of Wholesale’s Board of Directors and consolidated the 

ownership of Wholesale. Fuller approached McKellop about the Two-Percent 

Agreement. Wholesale denied Rutland had ever made the Two-Percent Agreement 

and refused to pay the amount Fuller sought. 
3

Fuller’s Claims

Fuller filed a lawsuit against Wholesale, asserting a claim for breach of the 

Two-Percent Agreement, and in connection with that claim Fuller set out the 

communications between Rutland and Fuller leading up to the formation of the 

alleged contract. The timeline of the alleged acts, statements made, and 

surrounding circumstances leading to the formation of the deal, as alleged in 

Fuller’s live pleading, are as follows: 

August 29, 1986

“Fuller met with Rutland to propose to [Wholesale] his offer to build a 

successful MRO operation at [Wholesale] with the team and the 

customers he would bring from Nunn.”

“Fuller promised to bring members from his team, customers, and the 

technical knowledge necessary to sustain the operation in exchange 

for two percent (2%) of the stock of [Wholesale].” 

August 30, 1986

“Rutland, Fuller, and others met to discuss the proposed deal further” 

September 2, 1986

“Fuller and Rutland met to finalize their agreement. Fuller again 

mentioned he was willing to do what they had previously discussed in 

exchange for two percent (2%) of [Wholesale].”

“Rutland told Fuller he was not willing to issue Fuller stock 

certificates at that time because when he had done so in the past with 

other employees, some had left without fulfilling their obligations.”

“Fuller assured Rutland he was not going anywhere and planned on 

staying at [Wholesale] until he retired. Rutland then agreed and 

promised Fuller he would be paid the equivalent of two percent (2%) 

of [Wholesale] when he retired.”

In his petition Fuller alleges that immediately after the parties reached the TwoPercent Agreement, Fuller proposed involving lawyers and memorializing the 

agreement in writing, and Rutland assured Fuller “My word is my bond,” after 
4

which Rutland and Fuller shook hands. 

Fuller alleges that, after the parties entered into the Two-Percent Agreement, 

Fuller began working for Wholesale and brought approximately 15 employees 

from Nunn to work for Wholesale. Fuller claims that his team retained key 

customers from Nunn as Fuller had promised. 

Fuller alleges that in 2002 Wholesale privately acknowledged Fuller’s full 

performance. Fuller alleges that he talked with Rutland about their agreement and 

requested that they reduce it to writing, but that Rutland did not want to do any 

paperwork related to ownership at that time. Fuller claims that Rutland told him 

that Fuller had “done everything he had asked him to do and had earned his two 

(2%) of the company.” Fuller alleges that in 2002 Wholesale publicly identified 

Fuller as an owner of the company based on a reference in a Dunn & Bradstreet 

report in which Fuller contends he was “identified as an owner of the company.” 

In addition to his breach-of-contract claim, Fuller asserted claims for

promissory estoppel, quantum meruit, fraud, and a purported claim for “substantial 

performance.” Fuller also sought to avoid the application of the statute of frauds to 

the Two-Percent Agreement based on the doctrines of full performance, partial 

performance, and promissory estoppel. 

Wholesale’s Motion for Summary Judgment

Wholesale filed a motion for summary judgment, challenging all of Fuller’s 

claims. In its motion, Wholesale asserted that the statute of frauds contained in 

section 26.01(b)(6) of the Texas Business and Commerce Code bars enforcement 

of the Two-Percent Agreement and therefore Wholesale is entitled to judgment as 

a matter of law as to each of Fuller’s claims, including his breach-of-contract 

claim. Wholesale argued that the alleged Two-Percent Agreement violates the 

statute of frauds because its material terms require performance beyond one year 
5

from the date Fuller and Wholesale allegedly shook hands. In connection with 

Wholesale’s statute-of-frauds argument Wholesale asserted various traditional 

summary-judgment grounds in support of the proposition that the doctrines of 

substantial performance, partial performance, and promissory estoppel do not 

allow the Two-Percent Agreement to escape the application of the statute of frauds. 

Wholesale also asserted various traditional summary-judgment grounds 

challenging Fuller’s claims for promissory estoppel, quantum meruit, fraud, and a 

purported claim for “substantial performance.”

Fuller’s Summary-Judgment Response

Fuller filed a response in opposition to Wholesale’s summary-judgment 

motion. In it Fuller relied largely on the same evidence presented in Wholesale’s

motion, but Fuller also submitted the verified errata-sheet from his deposition and 

Fuller’s post-deposition declaration. 

Though most facts are undisputed, in his response Fuller took a narrower 

view of the oral contract’s terms, implicitly discarding Fuller’s retirement as a 

material term. Fuller argued that the oral agreement was performable in less than a 

year and therefore did not violate the statute of frauds. Fuller also argued that even 

if his retirement were a term of the agreement, Wholesale’s statute-of-frauds 

argument still would fail because payment upon retirement could have occurred 

within a year of the handshake deal. Fuller contended that because the parties 

never agreed to a particular retirement date, the duration of the contract remained 

indefinite such that Fuller was free to retire at any time. 

Fuller responded to the legal grounds Wholesale asserted concerning 

substantial performance, partial performance, and promissory estoppel and took a

contrary view of the case law upon which Wholesale relied. In his summaryjudgment response, Fuller briefly set out the elements of a promissory-estoppel 
6

claim and recited facts that he contended would raise a fact issue. In the response 

Fuller also addressed Wholesale’s attacks on his fraud claim and quantum-meruit 

claim. 

Summary Judgment

The trial court issued an order granting summary judgment, dismissing all of 

Fuller’s claims, without specifying any summary-judgment ground. Fuller timely 

appealed.

II. STANDARD OF REVIEW

In a traditional motion for summary judgment, if the movant’s motion and 

summary-judgment evidence facially establish its right to judgment as a matter of 

law, the burden shifts to the nonmovant to raise a genuine, material fact issue

sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. 

Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary 

judgment, we ascertain whether the nonmovant pointed out summary-judgment 

evidence raising a genuine issue of fact as to the essential elements attacked in the 

no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08 

(Tex. 2002). In our de novo review of a trial court’s summary judgment, we 

consider all the evidence in the light most favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if reasonable jurors could, and disregarding 

contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 

206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if 

reasonable and fair-minded jurors could differ in their conclusions in light of all of 

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary 

judgment does not specify the grounds upon which the trial court relied, we must 

affirm the summary judgment if any of the independent summary-judgment 
7

grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 

868, 872 (Tex. 2000). 

III. ANALYSIS

Fuller presents a single issue on appeal in which he asserts that the trial court 

erred in granting summary judgment. Under this issue Fuller raises the following 

questions: 

• Did the trial court err in dismissing Fuller’s breach-of-contract 

claim based on Wholesale’s affirmative defense of statute of 

frauds?

• Did the trial court err by dismissing Fuller’s purported 

substantial-performance claim?

• Did the trial court err by dismissing Fuller’s promissoryestoppel claim?

• Did the trial court err by dismissing Fuller’s fraud claim?

• Did the trial court err by dismissing Fuller’s quantum-meruit 

claim?

We address these questions and associated points in our discussion below. 

A. Did the trial court err in dismissing Fuller’s breach-of-contract claim 

based on Wholesale’s affirmative defense of statute of frauds?

Fuller first argues that the trial court erred in granting summary judgment on 

his breach-of-contract claim based on Wholesale’s statute-of-frauds defense. Under 

section 26.01(b)(6) of the Texas Business and Commerce Code, “an agreement 

which is not to be performed within one year from the making of the agreement” is 

not enforceable unless it is in writing and signed by the person to be charged with 

the agreement or someone authorized to sign for that person. Tex. Bus. & Com. 

Code Ann. § 26.01(a), (b)(6) (West 2005); Metromarketing Services, Inc. v. HTT 

Headwear, Ltd., 15 S.W.3d 190, 195 (Tex. App.—Houston [14th Dist.] 2000, no 

pet.). The application of the statute of frauds to a given contract is a question of 
8

law. Id. 

The statute of frauds in section 26.01(b)(6) does not apply when “the parties 

do not fix the time of performance and the agreement itself does not indicate that it 

cannot be performed within one year.” Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 

1982). Conversely, when, either because of the agreement’s terms or the nature of 

the required acts, the agreement cannot be performed within one year, the statute of 

frauds applies and renders any non-complying agreement unenforceable. 

Metromarketing Services, Inc., 15 S.W.3d at 195. 

We presume for the sake of argument that Fuller’s promised performance 

under the Two-Percent Agreement could have been performed within a year, and 

consider whether Rutland’s alleged promise was a material term, and if so, whether 

that term could have been performed within a year. Fuller contends that under the 

oral agreement, there was no requirement that Wholesale pay Fuller upon his 

retirement; in the alternative, Fuller argues that payment upon retirement was not a 

material term of the oral agreement. In ascertaining the terms of the oral 

agreement, we look to the communications between the parties and to the acts and 

circumstances surrounding these communications. See Reinhardt v. Walker, No. 

14-07-00304-CV, 2008 WL 2390482, at *2 (Tex. App.—Houston [14th Dist.] June 

12, 2008, pet. denied) (mem. op.); Wiley v. Bertelsen, 770 S.W.2d 878, 882–83 

(Tex. App.—Texarkana 1989, no writ).

In his live petition Fuller alleges that he had first offered to bring to 

Wholesale the members of his team, customers from Nunn, and the technical 

knowledge necessary to sustain the operation in exchange for two percent of the 

stock of Wholesale. In his live pleading Fuller alleges that Rutland refused to issue

Fuller stock certificates at that time. But, Fuller claims that after he assured 

Rutland that he was not going anywhere and planned to stay at Wholesale until he 
9

retired, Rutland agreed that Wholesale’s performance under the oral agreement 

would be to pay Fuller “the equivalent of two percent (2%) of [Wholesale] when 

[Fuller] retired.” Fuller made statements in his deposition1and in his postdeposition declaration2

substantially similar to the allegations in his petition. In all 

three — the live pleading, Fuller’s deposition, and his declaration — payment of

two percent of Wholesale when Fuller retired is the last term of the oral agreement,

and, in each instance, Fuller says the parties agreed to this term after “Fuller 

assured Rutland he was not going anywhere and planned on staying at Wholesale 

until he retired.” So, based on the communications between Fuller and Rutland as 

well as the acts and circumstances surrounding these communications, we 

conclude that a term of the alleged oral agreement on which Fuller bases his 

breach-of-contract claim was that Wholesale would pay Fuller two percent of 

Wholesale upon his retirement. 

Fuller argues that even if the parties agreed that Wholesale would pay Fuller 

upon his retirement, the agreement as to the timing of the payment was not a 

material term of the Two-Percent Agreement. We disagree. Implicit in the term 

that Wholesale would pay two percent of the company upon Fuller’s retirement, 

was that Fuller would have to work at Wholesale until he retired. Under the 

circumstances of this case, we conclude that the “retirement” term addresses an 

important feature of the agreement — the timing of the payment — and that this 

term was a material and essential term. See T.O. Stanley Boot Co. v. Bank of El 

Paso, 847 S.W.2d 218, 221 (Tex. 1992) (stating that contracts should be examined 

on a case-by-case basis to determine which terms are material or essential); Parker 

1

“He promised to pay me the equivalent of 2% of the company upon retirement.”

2

“I assured Rutland I was not going anywhere and planned on staying at Wholesale until I 

retired. Rutland then said Wholesale would pay me the equivalent of two percent (2%) of 

Wholesale when I retired.” 
10

Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 74 (Tex. App.—Houston [14th 

Dist.] 2010, pet. denied). Accordingly, if Fuller could not retire after working for 

Wholesale within a year, the statute of frauds would render the contract 

unenforceable. 

Fuller argues in the alternative that even if payment upon his retirement was 

an essential term, this term could have been performed in less than a year. Fuller 

asserts that he could have “retired” early, immediately, or shortly after satisfying 

his required performance under the Two-Percent Agreement and that he could have 

“taken his two percent (2%) payment and moved to the Bahamas.” Conversely, 

Wholesale advocates for an interpretation of the alleged contract’s retirement term 

as meaning “normal retirement age.” In discussing the meaning of the retirement 

term, the parties refer to Fuller’s testimony about what Fuller thought at the time of 

the oral agreement, what Fuller thought Rutland meant, and various occurrences 

after the contract was formed. But we need not resort to extrinsic evidence, and

instead must give the retirement term its plain and ordinary meaning unless the 

contract indicates that the parties intended a different meaning. See Dynegy 

Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). 

Neither party contends that Fuller and Rutledge settled upon an agreed 

definition for the word “retire” or “retirement”. To “retire” means to “leave one’s 

job and cease to work, typically upon reaching the normal age for leaving 

employment.” New Oxford American Dictionary 1491 (3d ed. 2010). The term 

“early retirement” is defined separately, rather than as a subordinate definition of 

the words “retire” or “retirement” and means “[t]he practice of leaving 

employment before the statutory age, esp. on favorable financial terms.” New 

Oxford American Dictionary 545 (3d ed. 2010). If the parties had intended to use

the word “retire” as inclusive of “early retirement,” which has a particular 
11

meaning, they could have done so. See Tenneco Inc. v. Enter. Prods. Co., 925 

S.W.2d 640, 646 (Tex. 1996) (“We have long held that courts will not rewrite 

agreements to insert provisions parties could have included.”). They did not.

Giving the word “retire” its ordinary and plain meaning, we conclude that 

under the Two-Percent Agreement, the parties intended that Wholesale would pay 

Fuller when he left employment in the typical manner, at “normal retirement age,”

not early. See Laurent v. PricewaterhouseCoopers LLP, 794 F.3d 272, 281 (2d Cir. 

2015) (explaining that a term defined by “normal retirement” does not, in its 

ordinary meaning, suggest anytime the employer wishes, or whenever an employee 

leaves a company after a few years on the job). Had Fuller and Rutland meant 

anything else, they could have said so. See Tenneco Inc., 925 S.W.2d at 646.

Implicit in the term requiring payment when Fuller retired was that Fuller 

would work at Wholesale until normal retirement age. Stiver v. Texas Instruments, 

Inc., 750 S.W.2d 843, 846 (Tex. App.—Houston [14th Dist.] 1988, no writ). As a 

38-year-old father of young children, embarking on a new career with Wholesale, 

Fuller’s normal retirement age remained decades away. A contract based on 

Fuller’s employment until retirement age could not possibly have been fulfilled in 

less than a year from the date Fuller and Rutland allegedly struck the deal. See id.

Because the Two-Percent Agreement was not in writing or signed by Wholesale, 

the statute of frauds precludes enforcement of it. See Tex. Bus. & Com. Code Ann. 

§ 26.01(a) & (b)(6); Stiver, 750 S.W.2d at 846; Kalmus v. Oliver, 390 S.W.3d 586, 

590 (Tex. App.—Dallas 2012, no pet.) (explaining that for purposes of the statute 

of frauds’s one-year provision, a contract’s duration term based employee’s 

working life or retirement date can be anticipated).

Fuller argues that the facts of this case trigger one or more recognized 

exceptions to the application of the statute of frauds. Under the “full performance” 
12

exception, when one party has fully performed under the contract and the only 

thing remaining is performance by the other party, the statute of frauds will not bar 

enforcement of the contract. See McElwee v. Estate of Joham, 15 S.W.3d 557, 559 

(Tex. App.—Waco 2000, no pet.). But, as Wholesale points out, Texas courts 

have held that the full-performance and partial-performance exceptions to the 

statute of frauds do not apply in cases in which the party seeking enforcement of 

the oral contract is an employee who received compensation in the form of wages 

for performing the actions allegedly performed under the oral contract. See 

Paschall v. Anderson, 91 S.W.2d 1050, 1051 (Tex. 1936) (full performance); 

Chevalier v. Lane’s, Inc., 213 S.W.2d 530, 533–34 (Tex. 1948) (partial 

performance); see also Mercer v. C. A. Roberts Co., 570 F.2d 1232, 1237 (5th Cir. 

1978) (discussing Texas cases applying this principle). Fuller admitted that he 

received a salary and bonuses during his employment with Wholesale and failed to 

provide competent summary-judgment evidence to aid the trial court in 

ascertaining a meaningful distinction between his regular work and the 

performance Fuller promised under the Two-Percent Agreement. We conclude that 

the trial court did not err in implicitly determining that that the full-performance 

exception did not apply to preclude application of the statute of frauds. See 

Paschall, 91 S.W.2d at 1051.

Fuller concedes in his reply brief that the partial-performance exception is 

not at issue, but he argues that a general equitable exception (irrespective of full 

performance or partial performance) barring the application of the statute of frauds 

is triggered when application of the statute of frauds would result in a fraud on the 

plaintiff. But the cases upon which Fuller relies for this proposition contradict its 

application to this case. See e.g., Meyer v. Texas Nat. Bank of Commerce of 

Houston, 424 S.W.2d 417, 426 (Tex. 1968) (“As heretofore pointed out and 
13

demonstrated by the Hooks v. Bridgewater opinion,3the mere breach of a contract 

does not amount to the species of fraud which will justify the disregarding of the 

statute [of frauds]”). Even presuming for the sake of argument that such a standalone equitable exception exists, its application in this case would be inconsistent 

with the opinions cited. In light of the undisputed facts that Fuller was paid a salary 

every year of his employment and received bonuses, and considering the length of 

time Fuller had available to memorialize the deal in writing, the number of 

instances Rutland refused to memorialize the alleged oral agreement in writing, 

and the time available to Fuller to pursue an alternative path, we will not disturb 

the trial court’s implied conclusion that as a matter of law the purposes of the oneyear provision were not so frustrated as to require courts to disregard the statute of 

frauds on equitable grounds. 

The one-year statute-of-frauds provision encourages parties contracting long

term to put their agreements in writing. Among the risks the statute of frauds 

serves to address is the possibility that a party obligated to perform under a longterm oral contract becomes ill, is injured, or dies before performance is due. In the 

absence of a writing, a successor, like Rutland’s successor McKellop, may have no 

reason to be aware of or make financial preparations for any liability incurred

under an oral contract. 

Because the Two-Percent Agreement is unenforceable under the statute of 

frauds and no exception to the doctrine applies, we conclude that the trial court did 

not err in granting summary judgment as to the breach-of-contract claim. 

B. Did the trial court err by dismissing Fuller’s purported substantialperformance claim?

Fuller challenges the trial court’s summary judgment dismissing his 

3 Hooks v. Bridgewater, 229 S.W. 1114, 1116–17 (Tex. 1921).
14

purported claim for substantial performance. For the substantial-performance 

doctrine to apply there must be an enforceable contract. Dave Boothe Const., Inc. 

v. Johnson, 705 S.W.2d 204, 206 (Tex. App.—Houston [14th Dist.] 1985, no writ)

(stating that the doctrine of substantial performance is an equitable doctrine that 

was adopted to allow a contractor who has substantially completed a construction 

contract to sue on the contract rather than being relegated to his claim for quantum 

meruit). In light of our determination that the statute of frauds precludes 

enforcement of the alleged oral contract, we conclude that the trial court did not err 

by dismissing Fuller’s purported substantial-performance claim. 

C. Did the trial court err by dismissing Fuller’s promissory-estoppel

claim or in disregarding promissory estoppel as a counter-defense as a 

matter of law?

Promissory estoppel sufficient to remove a contract from the statute of 

frauds requires that the promisor agreed to sign a document that already had been 

prepared, or upon whose wording the parties already had agreed, that would satisfy 

the statute of frauds. 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. 

Capital, 192 S.W.3d 20, 29 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). 

The evidence Wholesale submitted in support of its summary-judgment motion 

showed that Fuller is not claiming that Rutland agreed to sign a document that had 

been prepared or upon whose wording the parties had agreed. Fuller has not 

alleged such an agreement or submitted any summary-judgment evidence raising a 

genuine fact issue as to any such agreement. Thus, the trial court did not err by 

implicitly concluding that promissory estoppel did not provide a basis for not 

applying the statute of frauds to the Two-Percent Agreement. See id. For the same 

reason, Wholesale was entitled to summary judgment on Fuller’s affirmative claim 

for promissory estoppel. See Nagle v. Nagle, 633 S.W.2d 796, 799–800 (Tex. 

1982). 
15

D. Did the trial court err by dismissing Fuller’s fraud claim?

Fuller argues that the trial court erred in granting summary judgment on his

claim for common-law fraud. Wholesale challenged each essential element of 

Fuller’s common-law fraud claim and also argued that the claim was barred as a 

matter of law based on the statute of frauds. 

Fuller asserts that Rutland promised to pay him two percent of Wholesale 

when Fuller retired with no intent to perform that promise when Rutland made the 

promise. Though the determination of the intent element — that Rutland had no 

intent to perform the oral promise to pay Fuller at the time he allegedly made the 

promise — is generally an issue for the fact-finder, the fraud claim is not 

impervious to summary judgment if the evidence of intent is so weak that it creates 

only a mere surmise or suspicion of its existence and thus amounts to no evidence.

See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); 

Mays v. Pierce, 203 S.W.3d 564, 573–74 (Tex. App.—Houston [14th Dist.] 2006, 

pet. denied).

Fuller presented no direct evidence — no notes, no memoranda, and no 

other statements — indicating that when Rutland allegedly promised him two 

percent of Wholesale, Rutland had no intention that Wholesale would make good 

on its end of the deal. Fuller, at least, would have had to put forth circumstantial 

evidence showing such intent. Breach, or failure to perform as promised, is no 

evidence that Rutland had no intent to perform when he made the promise. See 

T.O. Stanley Boot Co., 847 S.W.2d at 222; Mays, 203 S.W.3d at 573–74. Some 

courts have found a party’s denial that it ever made a promise is a factor showing 

no intent to perform when the promisor made the promise. See Marek v. Lehrer, 

03-17-00509-CV, 2018 WL 6217566, at *6 (Tex. App.—Austin Nov. 29, 2018, no 

pet.). But Wholesale, with McKellop acting as its vice principal, denied that thirty 

years earlier Wholesale, with Rutland acting as its vice principal, made the 
16

promise. The facts are not particularly suggestive of intent because McKellop’s 

denial of the promise came only after she performed due diligence to uncover an 

institutional record of the alleged promise. More importantly, during Rutland’s

tenure as vice principal of Wholesale, when Fuller confronted him about the deal 

in 2002, Rutland reaffirmed the promise. Though good business practices would 

suggest that Rutland should have memorialized the promise at least before stepping 

down from the company, the lack of evidence that he did so does not show that he 

had no intent to perform when he allegedly made the promise in 1986. The 

evidence that Wholesale promised Fuller two percent of the company with no 

intent of performing is so weak that it creates only a mere surmise or suspicion of 

its existence and thus amounts to no evidence. See T.O. Stanley Boot Co., 847 

S.W.2d at 222; Mays, 203 S.W.3d at 573–74.

Under the applicable standard of review, because the summary-judgment 

evidence on the element of intent did not raise a genuine fact issue as to whether 

Rutland had no intent to perform the promise when he allegedly made it, the trial 

court did not err in granting summary judgment as to the fraud claim. See T.O. 

Stanley Boot Co., 847 S.W.2d at 222; Mays, 203 S.W.3d at 573–74.

E. Did the trial court err by dismissing Fuller’s quantum-meruit claim?

We next consider whether the trial court erred when it granted summary 

judgment as to Fuller’s quantum-meruit claim. To establish his claim, Fuller 

ultimately had to prove that he rendered valuable services for Wholesale and that 

Wholesale accepted those services under such circumstances as reasonably notified 

Wholesale that Fuller expected to be paid by Wholesale for the services. Weaver v.

Jamar, 383 S.W.3d 805, 811 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 

Wholesale challenged the last element, that Wholesale had reasonable notice that 

Fuller expected to be paid by Wholesale, specifically payment beyond what Fuller 

already was paid. Fuller admitted that he was paid a regular salary and bonuses for 
17

the duration of his employment, including during the years that he alleges that he 

performed under the Two-Percent Agreement. Even if his work benefitted 

Wholesale, and even if that benefit was significant, proof of that benefit does not 

also prove that the services were beyond the scope of his employment. See 

Richardson v. Stewart & Stevenson Services, Inc., 14-09-00559-CV, 2010 WL 

4817136, at *5 (Tex. App.—Houston [14th Dist.] Nov. 23, 2010, no pet.) (stating 

that fact that the plaintiff-employee had “over-achieved” and went “above and 

beyond the call of duty” in performing his job, for which he was compensated by a 

salary, does not entitle him to extra compensation); Beverick v. Koch Power, Inc., 

186 S.W.3d 145, 154 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Although the record contains significant testimony regarding the terms of the TwoPercent Agreement and the acts Fuller performed in accordance with its alleged 

terms, the record does not contain evidence of the reasonable value of Fuller’s 

work for Wholesale with duties coextensive of the acts allegedly required under 

the Two-Percent Agreement. See Beverick, 186 S.W.3d at 154. We conclude that

the trial court did not err by granting summary judgment on the quantum-meruit 

claim. See Richardson, 2010 WL 4817136, at *5; Beverick, 186 S.W.3d at 154.

IV. CONCLUSION

Because Fuller has not shown that the trial court erred in granting 

Wholesale’s summary-judgment motion, we overrule Fuller’s sole point of error 

and affirm the trial court’s judgment. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.