Simulis, L.L.C. v. General Electric Capital Corporation

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed April 17, 2008 Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed April 17, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-00701-CV ____________ SIMULIS, L.L.C., Appellant V. GENERAL ELECTRIC CAPITAL CORPORATION, Appellee On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2005-37556 M E M O R A N D U M   O P I N I O N Appellant Simulis, L.L.C. appeals from the trial court=s grant of summary judgment in favor of appellee General Electric Capital Corporation (AGE@) on Simulis=s counterclaims in GE=s suit to enforce a promissory note. In three issues, Simulis claims a fact issue exists on its promissory estoppel and quantum meruit claims and asserts that GE=s summary judgment motion was procedurally flawed on the promissory estoppel claim. We affirm as to the promissory estoppel claim and reverse and remand as to the quantum meruit claim. Background GE provides commercial financial services for clients in forty-seven countries. Simulis is a software simulation company that provides virtual simulations for purposes such as industrial training. In the summer of 2000, GE approached Simulis about forming a strategic alliance. Several months later, after GE investigated Simulis and other similar companies, GE invested $5 million in Simulis in exchange for an ownership interest in the company. According to Simulis, GE had assured Simulis that its software could be used across GE=s industrial divisions and that this strategic alliance would be a Acompany maker@ for Simulis. Simulis then began marketing itself to GE=s divisions. Simulis claims that various GE officials promised that it would Areceive business@ from these industrial divisions, and Simulis continued to develop software models, hire new employees, and expand its office space Ain anticipation of the large volume of work that was promised.@ In late 2002, GE provided Simulis with a $100,000 promissory note as bridge financing, and the note required Simulis to start making interest payments in January 2003. GE never provided any business to Simulis, and Simulis stopped making its interest payments in April 2005. GE sued Simulis to recover on the note. GE moved for summary judgment on the note, and in response, Simulis did not deny liability but asserted an offset defense and counterclaims for breach of contract, promissory estoppel, and quantum meruit. The trial court granted interlocutory summary judgment on the note, and GE moved for summary judgment on Simulis=s counterclaims and defenses. The trial court granted this motion, and Simulis now appeals. Simulis does not appeal the summary judgment on the note, its offset defense, or its breach of contract claim. This appeal focuses only on Simulis=s promissory estoppel and quantum meruit claims. Analysis GE=s motion for summary judgment contained language suggesting both traditional and no evidence grounds. See Tex. R. Civ. P. 166a(c), (i). If a motion does not clearly delineate or segregate its no evidence versus traditional grounds but is sets forth its grounds and otherwise meets Rule 166a=s requirements, it is sufficient to raise both traditional and no evidence grounds. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Sipes v. City of Grapevine, 146 S.W.3d 273, 278 (Tex. App.CFort Worth 2004), rev=d on other grounds, 195 S.W.3d 689 (Tex. 2006). When a party moves for both traditional and no evidence summary judgment, we will first review the trial court=s judgment under the standards for no evidence motions. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor. See id. We review a no evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.C Houston [14th Dist.] 2000, no pet.). A. Promissory Estoppel 1. GE=s summary judgment motion was adequate. In its first issue, Simulis argues that summary judgment was improper on its promissory estoppel claim under a no evidence theory because GE did not state the elements of a promissory estoppel claim or state which element(s) it challenged. See Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (stating requirements of no evidence summary judgment motion). We disagree. The elements of a promissory estoppel claim are a promise, the promisor foreseeing that the promisee will rely on it, and detrimental reliance by the promisee. See English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Sandel v. ATP Oil & Gas Corp., 243 S.W.3d 749, 753 (Tex. App.CHouston [14th Dist.] 2007, no pet.). GE identified these elements in the parenthetical to its citation to English, and it then challenged the first two elements, stating, AA promise to receive business in the future is not a promise at all. No promisor would foresee that the promisee would rely on such a vague promise.@ Though not a model of summary judgment briefing, GE=s motion is adequate to qualify as a no evidence summary judgment motion. See Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 279 (Tex. App.CEl Paso 2004, no pet.) (A[The motion] must only >state the elements as to which there is no evidence.=@ (quoting Tex. R. Civ. P. 166a(i))). We overrule Simulis=s first issue. 2. Summary judgment was proper on Simulis=s promissory estoppel claim. In its second issue, Simulis asserts that the trial court erred in granting summary judgment on its promissory estoppel claim. GE moved for summary judgment on the theory that a promise to supply future business is too indefinite to support a promissory estoppel claim. Simulis argues that a promise of future business is enforceable. While a specific, detailed promise might support a promissory estoppel claim,[1] relying on a vague, indefinite promise of future business is unreasonable as a matter of law. See Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141B42 (Tex. App.CHouston [14th Dist.] 1999, pet. denied); Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 558B59 (Tex. App.CSan Antonio 1998, no pet.); Gillum v. Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.CDallas 1989, no pet.); cf. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 503 (Tex. 1998) (AOnly when the promises are definite and, thus, of the sort which may be reasonably or justifiably relied on by the employee, will a contract claim be viable, not when the employee relies on only vague assurances that no reasonable person would justifiably rely on.@). Here, Simulis presented evidence that GE promised that Simulis would Areceive business@ and that the volume of business would be a Acompany maker@ for Simulis. The parties never discussed or negotiated the specific pieces of business, the price, when and for how long such transactions would occur, or any other terms. Relying on such promises is unreasonable as a matter of law and cannot be the basis for a promissory estoppel claim. See Allied Vista, 987 S.W.2d at 140, 142 (holding that promise to supply Awhatever equipment@ was needed to start a plant with no definite promise of specific items of equipment would not support promissory estoppel claim); Gillum, 778 S.W.2d at 569B70 (finding that promises to upgrade hospital equipment, hospital facilities, and level of patient care were too vague and indefinite to support promissory estoppel claim). Thus, the trial court did not err in granting summary judgment on this claim, and we overrule Simulis=s second issue. B. The trial court erred in granting summary judgment on Simulis=s quantum meruit claim. In its third issue, Simulis claims the trial court erred in granting summary judgment on its quantum meruit claim. A quantum meruit claim requires, at a minimum, that the claimant have furnished valuable materials or services to the party from whom it is seeking recovery. See Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 148 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). GE moved for summary judgment solely on the ground that Simulis had no evidence that GE had received any valuable services from Simulis. GE points to an affidavit from Simulis=s chairman of the board stating that ASimulis never received any business@ from GE and to an affidavit from a GE assistant vice president stating that GE never received any benefit from any of Simulis=s sales efforts. Simulis argues that its evidence that it spent many years and at least a million dollars developing software for GE that GE used internally without compensating Simulis creates a fact issue. We agree. Though GE claims it gained no benefit from any of Simulis=s Asales pitches,@ Simulis=s evidence describes at least two pieces of software that it developed for GE and how GE used that software internally without compensating Simulis. We hold that this evidence is sufficient to create a fact issue as to whether Simulis provided valuable materials or services to GE. Simulis relies on the affidavit of Mark Winter, which it filed in support of its response to GE=s second summary judgment motion. GE claims this affidavit is untimely because it was filed and served after 5:00 p.m. on the day the response was due. Thus, argues GE, since the affidavit was untimely and Simulis did not seek leave to file it, it should not be considered. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Brown v. Shores, 77 S.W.3d 884, 886 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Simulis served the affidavit by fax at 8:34 p.m. and filed it after hours with the court at 9:29 p.m. GE is correct that service by fax after 5:00 p.m. is deemed served the next day. See Tex. R. Civ. P. 21a. However, this rule applies only to service, not to filing with the court. Harris County provides an after-hours filing box, and documents may be filed there until midnight on their due date. It is only if summary judgment evidence is untimely filed that we presume the trial court disregarded it. See Benchmark Bank, 919 S.W.2d at 663; Brown, 77 S.W.3d at 886. GE cites no authority showing that we should disregard timely filed summary judgment evidence that was served on opposing counsel by fax a few hours after 5:00 p.m. We conclude the affidavit of Mark Winter is proper summary judgment evidence and creates a fact issue as to Simulis=s quantum meruit claim. We sustain Simulis=s third issue. Conclusion The trial court did not err in granting summary judgment as to Simulis=s promissory estoppel claim, and we affirm that portion of the trial court=s judgment. However, the trial court erred in granting summary judgment as to Simulis=s quantum meruit claim, and we reverse that portion of the trial court=s judgment and remand for further proceedings consistent with this opinion. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed April 17, 2008. Panel consists of Justices Yates, Fowler, and Guzman. [1] The cases Simulis cites all involve much more definite promises than GE made here. See, e.g., Preload Tech., Inc. v. A.B.&J. Constr. Co., 696 F.2d 1080, 1082B83, 1085 (5th Cir. 1983) (specific bid proposal); CWTM Corp. v. AM Gen. LLC, No. Civ.A. H-04-2857, 2005 WL 1923605, at *1, 5 (S.D. Tex. Aug. 10, 2005) (promise to renew existing contract); >Moore= Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937B38 (Tex. 1972) (fully negotiated lease agreement); Wheeler v. White, 398 S.W.2d 93, 94B95 (Tex. 1965) (promise to make or secure loan for improvements on specific property); Frost Crushed Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 45 (Tex. App.CWaco 2002, no pet.) (promise to supply specific quantity of rock confirmed with written quote).