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 fo under. We affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND In 1986, appellant/plaintiff John R. Fuller served as Vice President and Branch Manager of Nunn Electric Supply Company’s Houston location. Fuller had2

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 approximatel y 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 percen t o f 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 shoo k hand s, and Rutland told Fuller “my word is my bond.” They did not put the Two

- Percent A greement in writing. After the meeting , Rutland mentioned the agreement to Joe Jones, a Wholesale executive. Fuller told Woodward, his subordinate from N unn, that h e had r eached 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

o wnership of Wholes ale. 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 , as serting a c laim fo r 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

surroun ding ci rcumstance s 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 a nd 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, 19 86 “Rutland , Fulle r, 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 [Whol esale]. ”

“ 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 n ot going an ywhere 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 re ached t he Two

Percent Agreement, Fuller proposed involving lawyers and memorializing the agreement in writing, and Rutland assured Fuller “My word is my bond,” after4

which Rutland and Fuller shook hands. Fuller alleges that, after the parties entered in to 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 i n 2002 Whol esale p rivately 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 referenc e in a Dunn & Bradstr eet 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 “substa ntial performa nce.” F uller 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 Wholes ale filed a mo tion fo r 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 Wholes ale is entitled to judgment as a matter of law as to each of Fuller’s claims, including his breach

- of

- contract claim

. Wholesale argue d that the alleged Two

- Percent Agreement violates the statute of frauds because its material terms req uire performan ce beyo nd one year5

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 doct rines of subst antial 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 Full er’s claims fo r promi ssory estoppel, quantum meruit, fraud, and a purported claim for “substantial performance.”

Fuller’s Summary

- Judgment Response Fuller filed a r esponse in opposition to Wholesale’s summary

- judgment motion . In it Fuller relie d largely on the same evid ence pr esented 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 t ook a narrower view of the ora l contract’s t erms, i mplicitly discarding Fuller’s retirement as a material term. Fuller argue d that the oral agreement was performable in less than a year and therefore did not violate the statute of frauds. Fuller also argue d that even if his retiremen t were a t erm 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 retireme nt 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 t ook a contrary view of the case law upon which Wholesale relied . In his summary
judgment response , Fuller briefly set out the elements of a promissory

- estoppel6

claim and recite d facts that he contended would raise a fact issue. In t he response Fuller als o addr essed Wholesale’s att acks 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 t imely appealed. II. S TANDARD OF R EVIEW 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, mate rial 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 raisi ng a genuine is sue 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 t he light most f avorable to the nonmo vant, 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 ev idence raises a genuine issue of fac t 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 doe s not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary

- judgment7

grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 86 8, 872 (Tex. 20 00). III. A NALYSIS 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

- co ntract claim based on Wh olesale’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 promissory

estoppel claim ?

• Did the trial cou rt err by dismissing Ful ler’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 breac h
- 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

s ection 26. 01(b)(6) of th e Texas Business and Com merce Code , “ a n 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 a uthorized to s ign 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 con tract is a question of8

l aw. Id

. The statute of frauds in s ection 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. 198 2). 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 agre ement unenforceable

. Metromarketing Service s, 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 p romise was a materi al term, and if so, whet her 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 t hat payment upon retire ment 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 R einhardt v. Walker , No. 14

- 07

- 0 0304

- 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 F uller 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 he9

retired, Rutland agreed that Wholesale’s performance under the oral agreement would b e to pay Fuller “the equivalent of two percent (2%) of [Wholesale] when [Fuller] retired.” Fuller made statements in his deposition 1 and in his post

deposition declaration 2 substantially similar to the allegations in his petition. In all three

— the live pleading, Fuller’s de position, and his declaration

— p ayment 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 any where and p lanned on staying at Wholesale until he re tired.” So, based on t he 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 base s his breach

- of

- contract claim was that Wh olesale 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 pay me nt was not a material term of the Two

- Percent Agree ment

. 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. Und er the circumstan ces of th is case, we conclude that the “retirement” term add resses 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 c ontracts should be examined

on a c ase
- by

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

1 “He promised to pay me the equival ent of 2% of the c ompany upon retirement.”
2 “I assure d Rutland I was not goin g 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. denie d). Accordingly, if Fuller could not retire after working for Wholesale with in 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 te rm could have bee n performed in less than a year. Fuller

as serts that he coul d 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%) paymen t and moved to th e Bahamas.” Conversely, Wholesale advocates for an interpre tation of the alleged contract’s retirement term

as meaning “normal retirement age.” In discussing the meaning of the retirement term, t he parties refer to Fuller’ s testimony about what Fuller tho ught at th e 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 D ynegy 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 wor d “retire” or “retirement”. To “retire” means to “leave on e’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, rat her than as a subordinate definition of the words “retire” o r “retirement” and means “[t]he practice of leaving employment before the statutory age, esp. on favorable financial terms.” New Oxford American Dictionary 54 5 (3d ed. 2010). If the parties had in tended to use the word “retire” as inclusive of “early retir ement,” which has a particular11

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 th at courts will not rewrite agreements to insert provisions parties could have included.”). They di d not. Giving the word “retire” its ordinary and plain meaning, we conclude that under the Two

- Percent Agreement, the parties intended that Wholesale would pa y Fuller when he left employment in th e typical manner, at “normal retirement age , ” not early. See Laurent v. PricewaterhouseCoopers LLP , 794 F.3d 272, 281 (2 d Cir. 2015) (explaining that a term defined by “normal retirement” does not, in its ordinary mea ning, suggest anytime the employer wish es, or whenever an employee leaves a company after a few yea rs on the job). Had Fuller and Rutland meant anything else , they c ould have said so. See Tenneco Inc. , 925 S.W.2d at 646.
I mplicit in the term requiring pa yment when Fuller retired was that Full er would work at Wholesale until normal retirement age. Sti ver 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 n ormal 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 i d

. Because the Two

- Percent A greement was not in writing or signed by Wholesale, th e 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.3 d 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 c ase 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 st atute of frauds will not bar enforcement of t he contract

. See M cElwee v. Estate of Joham , 15 S.W.3d 5 57, 559 (Tex. App.

—

Waco 2000, no pet.). But , as Wholesale points out, Texas courts have held that the full

- performance and partial

- performance exception s to the statute of frauds do not apply in case s in which the party seeking enforcement of the oral con tract is an employee who received compensation in the form of wages for performing the actions allegedly performed under the oral contract. See P aschall v . Anderson , 91 S.W.2d 1050, 1051 ( Tex. 1936) (full performance); Chevalier v. Lane ’ s, Inc. , 213 S.W.2 d 530, 533

– 34 ( Tex. 1948) (partial performance); s ee also Mercer v. C. A. Roberts Co. , 570 F.2d 1232, 1237 (5th Cir. 1978) (discussing Texas cases applying th is principle ). Fuller admitted that he

rec eived a salary and bonuses during his employment with Wh olesale 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 P aschall , 91 S.W.2d at 1051. Fuller concedes in his reply brief that the partial

- performance exception is

n ot at issue, but he argues that a general equitable exception ( irrespective of full performance or partial performance ) barring the application of th e statute of frauds is triggered when application o f the statute of frauds would result in a fraud on the p laintiff. But the cases upon which Fuller relies for this proposition contradict its application to this case. See e.g ., Meyer v. Texas Nat. Bank o f Commerce of Houston , 424 S.W.2d 417, 426 (Tex. 19 68) (“ As heretofore pointed out and13

demonstrated by the Hooks v. Bridgewater opinion, 3 the mere breach of a contract does not amount to the species of fraud which will justify the disregarding of the statu te [of frauds]”). Even presuming for the sake of ar gument that such a stand

alone equitable exception exist s, its application in this case would be inconsistent with the opinions cited. I n light of the undisputed facts that Fuller was paid a salary every y ear of his employment and received bonuses, and con sidering the length of time Fuller had available to memo rialize 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 d isturb the trial court’s implied conclusion that as a ma tter of law the purposes of the one

year provision were not so frustrated as to require courts to disregard the statute of frauds on equitable gr ounds

. The one

- year statute

- of

- fraud s provision encou rages parties contracting long term to put th eir agreeme nts in writing . Among the risks the statute of frauds serves to address is the possibility that a party obligated to perform under a long

ter m oral contract becomes ill, is injured, or dies before pe rformance is due. In the absence of a writing, a suc cessor, 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 unenf orceable 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

- contr act claim. B. Did the trial court err by dismissing Fuller’s purported substa ntial
performance claim? Fuller challenges the trial court’s summary judgment dismissing his

3 Hoo ks v. Bridgewater , 229 S.W. 1114, 1116

– 17 ( Tex. 1921)

.14

purported claim for substantial performance. For the substantial

- performance doctri ne to apply there must be an enforceable contract. Dave Boothe Const., Inc.

v. Johnson , 705 S.W.2d 204, 206 (Tex. App.

— Houston [14t h Dist.] 1985, no writ) ( stating that the doctrine of substantial performance is an equitable doctrine that was adopted to al low a contractor who has substantially completed a construction contract to su e on the contract rather than being relegated to his c laim 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 th e trial court err by dismissing Fuller’s promissory
- estoppel claim or in disregarding promissory estoppel as a counter - defen se as a matter of law ? Promissory estoppel sufficient to remove a contract from the statute of frauds requires that the promisor agr ee d to sign a document that already had been prepared , or up on whose wording the parties already had agreed , th at would satisfy the statute of frauds. 1001 McKinney Ltd. v. Credit Suisse First Boston Mor tg. Capital , 192 S.W.3d 20, 29 (Tex. App.

— Houston [14t h 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 up on whose wording the parties had agreed

. Fuller h as not alleged such an agreement or submitted any summary

- judgment evidence raisin g a genuine fact issue as to any such agreement. Thus, the trial court did not err by impli cit ly concluding that promiss ory estoppel did not provide a basis for not applying the statute of frauds to the Two

- Percent Agreement. See id . For the same reason, W holesale was entitled to summary judgment on Fuller’s affirmative claim for promissory estoppel. See Nagle v. Nagle , 63 3 S.W.2d 796, 799

– 800 (Tex. 1982).15

D. Did the trial court err by dismissing Fuller’s fraud claim ? F uller argues that the trial court erred in granting summary judgment on his claim for common

- law fraud. Wholesale challenged each essential element of Fu ller’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 asse rts 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. Th ough th e determination of the intent element

— that Rutland had no intent to perform the oral promise to pay Fu ller 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 an d 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 , Rutl and had no intention that Wholesale would make good on its end of the dea l

. Fuller , at least , would have had to put forth circumstant ial 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 Wholesa le, with McKellop acting as its vice principal, denied that thirty years earlier Wholesale, with Rutland acting as its vice principal, made t he16

promise. The facts are not particularly suggestive of intent be cause 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 vi ce principal of Wholesale , when Fuller confronted him about the deal in 2002, Rutland reaffirmed the p romise. Though good business practices would suggest that Rutland should have memorialize d 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 in ten t to perform when he allegedly made the promise in 1986. T he 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 t o no evidenc e
. 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 inten t did not raise a genuine fact issue as to whether Rutland had n o 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 , 2 03 S.W.3d at 573

– 74. E. Did the trial court err by dismissing Fu ller’s quant um - 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. W eaver v. Jamar , 383 S.W.3d 8 05, 811 (Tex. App.

— Houston [14th Dist.] 2012, no pet.)

. Wholesale c hallenged the last element , that Wholesale had reasonable notice that Fuller expected to be paid by Wh olesale , specifically payment beyond what Fuller already was paid. Fuller admitted tha t he was paid a regular salary and bonus es for17

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, p roof of that benefit does not also prove that the services were beyond the sco pe of his employment. See R ichardson 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 t hat fact that the plaintiff

- employee had “over

- achieved” and went “abov e 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, In c. , 186 S.W.3d 145 , 154 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied)

. Alt hough the record contains significant testimony regarding the terms of the Two

Percent Agreement and the acts Fuller performed in accordance with its alleged terms, the record do es not contain evi dence 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 granti ng summary judgmen t on the quantum

- meruit claim. See R ic hardson , 2010 WL 48171 36, at *5 ; Beverick , 186 S.W.3d at 154

. IV. C ONCLUSION Because Fuller has not shown that the trial court erred in granting Wholesale’s summary

-

judgment motion, we overrule Fulle r’s sole point of error and affirm the trial court’s jud gment.

/s/ Kem Thompson Frost Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot

.