Wendy Yee v. Anji Technologies, LLC ( 2019 )

AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed May 15, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00662-CV
WENDY YEE, Appellant
V.
ANJI TECHNOLOGIES, LLC, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-03706-2017
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Molberg
Wendy Yee was employed by Anji Technologies, LLC (Anji) as a senior vice president.
After Anji terminated her employment, Yee sued, claiming she was entitled to (1) fifty percent of
Anji’s profits from 2012 through 2015 under an oral partnership agreement (the partnership
agreement) and (2) fifty percent of Anji’s profits from a specific contract under an oral agreement
made when her employment was terminated (the Alcara agreement). Yee asserted claims for
breach of contract, promissory estoppel, breach of fiduciary duty, and quantum meruit.
Anji moved for summary judgment on all of Yee’s claims on the ground the partnership
agreement did not comply with the statute of frauds. The trial court granted summary judgment
on all of Yee’s claims.
In her first two issues, Yee argues the trial court erred by granting summary judgment in
favor of Anji because Anji failed to conclusively establish the statute of frauds applies to the oral
agreements and there was a genuine issue of material fact regarding the applicability of the partial
performance exception to the statute of frauds. In a third issue, Yee contends the trial court erred
by granting summary judgment on her quantum meruit claim because the statute of frauds is not a
defense to that claim.
We conclude Anji conclusively established the statute of frauds bars Yee’s claims based
on the partnership agreement and that Yee failed to raise a genuine issue of material fact on the
applicability of the partial performance exception to the statute of frauds. Accordingly, we affirm
the trial court’s summary judgment on Yee’s claims for breach of fiduciary duty and breach of
contract to the extent that claim is based on breach of the partnership agreement.
However, because the statute of frauds does not bar either Yee’s quantum meruit or
promissory estoppel claims and Anji did not conclusively establish the Alcara agreement is subject
to the statute of frauds, we reverse the trial court’s summary judgment on Yee’s quantum meruit
and promissory claims and on Yee’s breach of contract claim to the extent that claim is based on
breach of the Alcara agreement.
Background
Anji was formed in 2007 by Rajesh Tiwari and his wife, Madhu Tiwari. Madhu owns sixty
percent of Anji and Rajesh owns the remaining forty percent of the company. Anji is a
management and technology consulting firm and provides information technology solutions,
application development, and total project management consulting services to its clients.
Yee is a senior information technology management professional with extensive
experience in the telecommunications, logistic-warehousing, and financial industries. According
to Yee, Rajesh approached her in January 2012 about forming a partnership with Anji to provide
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technology consulting services in software development and testing. Pursuant to the partnership
agreement, Yee and Rajesh would split the responsibilities of the partnership “50/50.”
Specifically, Yee would manage the daily operations, provide onsite client software testing
services, and present Anji’s services to potential clients, while Rajesh would handle all aspects of
software development and technical support. Both Anji and Yee would receive fifty percent of
the partnership’s profits
The partnership agreement was not in writing and, according to Yee, did not set an end
date. In Yee’s opinion, the partnership agreement “could have been performed and terminated
within the first year.”
In March 2012, Rajesh, Yee, and Yee’s husband, Evon Mattison, had at least two meetings
to discuss a potential partnership between Anji and Epsilon Service Delivery (Epsilon), a company
owned by Mattison. Yee prepared notes from the meetings which indicated she was responsible
for developing business strategies for the proposed partnership. Yee emailed the meeting notes to
both Rajesh and Mattison. Rajesh did not request that Yee make any changes to the notes.
Anji and Epsilon did not reach an agreement on the proposed partnership, and Mattison
“disengaged from all discussion” with Anji. Yee and Mattison then “made the decision for [Yee]
to move forward with the partnership with Anji.” According to Yee, beginning in March 2012,
she “began working 100% on developing” Anji’s business.
On October 15, 2012, Yee agreed to “be added to [Anji’s] payroll” as a senior vice
president with an annual salary of $90,000. It was Yee’s understanding that Rajesh and Madhu
were also being paid $90,000 a year by Anji. According to Yee, her salary at Anji was significantly
less than what she had been making as an independent consultant, but she agreed to a “below-
market salary” because Anji represented it would help the company if she was added to the payroll
register. Rajesh indicated to Yee that the difference between her “client billed amount” and her
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salary would be her “financial equity contribution” to the partnership. Based on the additional
compensation that she believed she would receive under the partnership agreement, Yee refused
offers to continue working as an independent contractor.
Yee understood that any profits of the partnership would initially be reinvested in order to
grow Anji’s business and to show a strong bank balance to potential new clients. She, therefore,
made an “initial 5-year commitment” to the business. She described this commitment as a
“unilateral personal guideline” and not part of the partnership terms. Based on this five-year
commitment, Yee did not request any distribution of the partnership’s profits, but relied on Anji’s
representation that she would be paid.
On February 23, 2016, Rajesh terminated Yee’s employment with Anji. Yee then
requested payment under the partnership agreement. Anji did not make the requested payment.
However, according to Yee, when Rajesh terminated her employment, he orally agreed to pay her
fifty percent of the profits on the Alcara project which had just “closed out.”
Yee sued Anji, asserting claims for breach of contract, promissory estoppel, breach of
fiduciary duty, and quantum meruit. Yee alleged that “in reliance on the partnership agreement,”
she had performed work for Anji for which she was not compensated and had used her personal
funds to pay for Anji’s office expenses and certain client non-billable client expenses. Yee sought
to recover approximately $3,500,000, consisting of fifty percent of Anji’s profits between 2012
and 2015 and fifty percent of Anji’s profits on the Alcara project, and approximately $41,000 in
unreimbursed expenses and costs.
Anji filed a motion for summary judgment based on the affirmative defense of the statute
of frauds. Anji specifically argued there was no written agreement and the partnership agreement
could not have been performed within one year. The trial court granted summary judgment for
Anji on all of Yee’s claims.
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Standard of Review
We review a trial court’s grant of summary judgment de novo. Lujan v. Navistar, Inc., 555
S.W.3d 79, 84 (Tex. 2018). To be entitled to a traditional summary judgment, the movant must
show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Lujan, 555 S.W.3d at 84.
A defendant moving for traditional summary judgment on an affirmative defense must
conclusively establish each essential element of the defense. Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995). If the defendant’s motion and summary judgment evidence establishes its right to judgment
as a matter of law, the burden shifts to the party opposing the motion to raise a genuine issue of
material fact or show the defendant’s legal position is unsound. G.C. Bldgs., Inc. v. RGS
Contractors, Inc., 188 S.W.3d 739, 741–42 (Tex. App.—Dallas 2006, no pet.).
In reviewing a traditional summary judgment, we consider the evidence in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against
the motion. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per curiam).
We credit evidence favorable to the nonmovant if a reasonable factfinder could, and disregard
contrary evidence unless a reasonable factfinder could not. Samson Expl., LLC v. T.S. Reed Props.,
Inc., 521 S.W.3d 766, 774 (Tex. 2017).
Quantum Meruit
In her third issue, Yee contends the trial court erred by granting summary judgment on her
quantum meruit claim because that claim is not subject to the statute of frauds. Anji concedes the
trial court improperly granted summary judgment on Yee’s quantum meruit claim based on the
statute of frauds.
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“Quantum meruit is an equitable remedy that is ‘based upon the promise implied by law to
pay for beneficial services rendered and knowingly accepted.’” Hill v. Shamoun & Norman, LLP,
544 S.W.3d 724, 732 (Tex. 2018) (quoting In re Kellogg Brown & Root, Inc., 166 S.W.3d 732,
740 (Tex. 2005) (orig. proceeding)). A claim for quantum meruit “does not arise out of a contract,
but is independent of it.” Vortt Expl. Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.
1990). The purpose of the doctrine is to prevent a party from being unjustly enriched by retaining
the benefit of a party’s performance without paying anything in return. Hill, 544 S.W.3d at 732.
Under a quantum meruit claim, a party may recover the reasonable value of the work performed
and the materials furnished. Id. at 733.
Here, Yee seeks to recover in quantum meruit only the reasonable value of the goods and
services she provided to Anji. The fact the partnership agreement may be unenforceable under the
statute of frauds does not preclude this claim. See id. at 735; Campbell v. Nw. Nat’l Life Ins. Co.,
573 S.W.2d 496, 498 (Tex. 1978) (concluding fact contract was enforceable because of the statute
of frauds did not preclude recovery in quantum meriut for value of goods and services provided
by plaintiff).
Because the statute of frauds does not preclude Yee’s quantum meruit claim, the trial court
erred by granting Anji’s motion for summary judgment on that claim. We resolve Yee’s third
issue in her favor.
Breach of Contract, Breach of Fiduciary Duty, and Promissory Estoppel
In her first two issues, Yee argues the trial court erred by granting summary judgment on
her breach of contract, breach of fiduciary duty, and promissory estoppel claims because Anji
failed to conclusively establish the statute of frauds applies to the oral agreements and, if the statute
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of frauds applies, there is a genuine issue of material fact regarding the applicability of an
exception to the statute.1
Statute of Frauds
The purpose of the statute of frauds is to “remove uncertainty, prevent fraudulent claims,
and reduce litigation” by requiring that certain agreements be in writing and signed by the parties.
Hill, 544 S.W.3d at 735; see also Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001). The statute
of frauds is an affirmative defense in a breach of contract suit and renders a contract that falls
within its purview unenforceable. TEX. BUS. & COM. CODE ANN. § 26.01(a); S&I Mgmt., Inc. v.
Choi, 331 S.W.3d 849, 854 (Tex. App.—Dallas 2011, no pet.). Whether an agreement falls within
the statute of frauds is a question of law that we review de novo. Hill, 544 S.W.3d at 733.
An agreement that cannot be completed within one year is not enforceable unless it is in
writing and signed by the person to be charged. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(6);
Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per curiam). “For the one-year provision to
apply, performance within one year must be impossible.” Abatement Inc. v. Williams, 324 S.W.3d
858, 860 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also Thunder Rose Enters., Inc.
v. Kirk, No. 13-15-00431-CV, 2017 WL 2172468, at *8 (Tex. App.—Corpus Christi-Edinburg
Apr. 20, 2017, pet. denied) (mem. op.) (“A contract that could possibly be performed within a year,
however improbable performance within one year may be, does not fall within the statute of
frauds.”). If the agreement is capable of being performed within one year, it is not precluded by
the statute of frauds. Hairston v. S. Methodist Univ., 441 S.W.3d 327, 334 (Tex. App.—Dallas
2013, pet. denied).
1
Yee also raised this argument as to her quantum meruit claim. Based on our resolution of Yee’s third issue, we
need not address her quantum meruit claim further. See TEX. R. APP. P. 47.1.
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In determining whether an agreement is capable of being performed in one year we
compare the date of the agreement to the date when the performance is to be completed. Id. This
analysis is complicated somewhat when the agreement does not state the time for performance and
does not indicate that it cannot be performed within a year. Gano v. Jamail, 678 S.W.2d 152, 153
(Tex. App.—Houston [14th Dist.] 1984, no writ). Although such agreements generally do not fall
within the statute of frauds, Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775–76 (Tex. 1974),
when the agreement cannot be performed within one year because of its terms or the nature of the
required acts, the statute of frauds applies and the agreement must be in writing. Niday, 643
S.W.2d at 920.
In considering whether an oral agreement that does not explicitly mention a time for
performance falls within the statute of frauds, we must determine whether the parties intended to
complete the agreement within a year. Metromarketing Servs., Inc. v. HTT Headwear, Ltd., 15
S.W.3d 190, 195 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Hall v. Hall, 308 S.W.2d
12, 16 (Tex. 1957)). In conducting our analysis, we look to the intended performance, not the
defeat, of the agreement. Wewerka v. Lantron, 174 S.W.2d 630, 633–34 (Tex. App.—Amarillo
1943, writ ref’d w.o.m.); see also Metromarketing Servs., Inc., 15 S.W.3d at 196 (noting
“reasonable time” for performance is based on circumstances surrounding adoption of agreement,
the situation of the parties, and the subject matter of the contract).2
The duration of the agreement “may properly be implied from extrinsic evidence.” Niday,
643 S.W.2d at 920. If the evidence conclusively proves the alleged oral agreement cannot be
completed within one year, the agreement violates the statute as a matter of law. Id.
2
Termination of a contract may occur in the absence of completed performance, but that termination does not
affect the applicability of the statute of frauds to the contract. Westside Wrecker Serv., Inc. v. Skafi, 361 S.W.3d 153,
164 n.12 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (citing Gilliam v. Kouchoucos, 340 S.W.2d 27, 28–29
(Tex. 1960); Young v. Ward, 917 S.W.2d 506, 510–11 (Tex. App.—Waco 1996, no writ).
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Breach of Partnership Agreement
Anji moved for summary judgment on the ground the partnership agreement could not be
performed in one year and, therefore, was required to be in writing. Yee’s summary judgment
evidence established that, by at least March 2012, she and Anji had entered into an oral partnership
agreement pursuant to which (1) she would manage the day-to-day operations of Anji, provide
onsite client software testing services, and present Anji’s services to potential clients, (2) Rajesh
would be responsible for all aspects of software and technical support, and (3) she and Anji would
each receive fifty percent of the profits. At the time the agreement was made, Yee anticipated the
partnership would last longer than one year, knew any profits would be re-invested into the
partnership, and personally decided not to seek any distribution of profits for a period of five years.
Anji had been in business for five years at the time of the partnership agreement and the
purpose of the partnership was to increase Anji’s existing client base and workforce. There is no
evidence either Anji or Yee thought this purpose could be completed within one year, and all the
available evidence indicated they anticipated it would take much longer to perform the partnership
agreement. Accordingly, both the extrinsic evidence and the nature of the required acts establish
that full performance of the partnership agreement could not be completed within one year. See
Chapman v. Arfeen, No. 09-16-00272-CV, 2018 WL 4139001, at *11 (Tex. App.—Beaumont
Aug. 30, 2018, pet. denied) (mem. op.) (concluding, based on terms of agreement, that parties did
not contemplate undertaking would be completed within a year); Gano, 678 S.W.2d at 154
(concluding oral agreement between lawyers could not be performed in less than a year given the
nature of the business and based on testimony by the lawyer seeking to enforce the agreement).
Therefore, the partnership agreement falls within the statute of frauds and was required to be in
writing in order to be enforceable. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(6).
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We conclude Anji met its burden of establishing the statute of frauds applies to Yee’s
claims for breach of the partnership agreement and breach of fiduciary duties arising from that
agreement.3
Promissory Estoppel
Anji’s sole ground for summary judgment on Yee’s promissory estoppel claim was that
the statute of frauds bars the enforcement of the partnership agreement. However, “[w]hether the
statute of frauds bars recovery for a non-contract claim depends on the nature of the damages the
plaintiff seeks to recover.” Hill, 544 S.W.3d at 734.
Pursuant to her promissory estoppel claim, Yee sought to recover the out-of-pocket costs
she incurred in reliance on Anji’s promise of a partnership.4 By seeking to recover these costs,
Yee is not attempting to enforce the otherwise unenforceable partnership agreement. See Haase,
62 S.W.3d at 799. Accordingly, Yee’s promissory estoppel claim does not contravene the statute
of frauds. See id.; see also Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007) (per
curiam) (noting that statute of frauds does not bar recovery for out-of-pocket damages for fraud,
and if plaintiff had sought such restitution-based damages, his suit would have been viable).
Breach of Alcara Agreement
In her petition, Yee specifically alleged that, on February 23, 2016, Rajesh agreed to pay
her fifty percent of the profits on a project that had just “closed out.” In its motion for summary
judgment, Anji argued only that the partnership agreement was unenforceable due to the statute of
frauds and did not specifically address the Alcara agreement. Further, there is nothing about the
3
See Victory Park Mobile Home Park v. Booher, No. 05-12-01057-CV, 2014 WL 1017512, at *5 (Tex. App.—
Dallas Feb. 26, 2014, no pet.) (mem. op.) (affirming judgment that appellant take nothing on breach of fiduciary duty
claim in which alleged duty arose from partnership agreement that was unenforceable under the statute of frauds).
4
Promissory estoppel is an exception to the statute of frauds. Trammel Crow Co. No. 60 v. Harkinson, 944
S.W.2d 631, 636 (Tex. 1997); Branch Banking & Trust Co. v. Seideman, No. 05-17-00381-CV, 2018 WL 3062450,
at *15 (Tex. App.—Dallas June 21, 2018, pet. denied) (mem. op.). Yee, however, has argued only that promissory
estoppel is a substantive claim that allows her to recover her out-of-pocket costs and does not contend it removes the
partnership agreement from the statute of frauds.
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terms of the alleged oral agreement to pay Yee fifty percent of the profits from the Alcara project
that would suggest it could not be performed within one year. Accordingly, Anji failed to
conclusively establish that the statute of frauds applies to Yee’s breach of contract claim based on
the Alcara agreement.
Partial Performance Exception to Statute of Frauds
Yee also contends the partial performance exception to the statute of frauds applies to her
claims. Once the defendant conclusively establishes its statute of frauds defense, the burden shifts
to the plaintiff to establish an exception that would take the oral agreement out of the statute of
frauds. Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642 (Tex. 2013). Whether an exception to the
statute of frauds applies is generally a question of fact. Hairston, 441 S.W.3d at 334.
“Under the partial performance exception to the statute of frauds, contracts that have been
partly performed, but do not meet the requirements of the statute of frauds, may be enforced in
equity if denial of enforcement would amount to a virtual fraud.” Berryman’s S. Fork, Inc. v. J.
Baxter Brinkmann Int’l Corp., 418 S.W.3d 172, 192 (Tex. App.—Dallas 2013, pet. denied).
However, the partial performance must be unequivocally referable to the agreement and
corroborative of the fact that a contract actually was made. Id. at 193; Holloway v. Dekkers, 380
S.W.3d 315, 324 (Tex. App.—Dallas 2012, no pet.).
The performance a party relies on to remove an oral agreement from the statute of frauds
“must be such as could have been done with no other design than to fulfill the particular agreement
sought to be enforced.” Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439–40 (Tex. App.—
Dallas 2002, pet. denied); see also Hairston, 441 S.W.3d at 336. Otherwise, the acts of
performance relied upon to take an oral agreement out of the statute of frauds “do not tend to prove
the existence of the parol agreement relied upon by the plaintiff.” Breezevale Ltd., 82 S.W.3d at
440; see also Berryman’s S. Fork, Inc., 419 S.W.3d at 193 (“Without such precision, the acts of
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performance do not tend to prove the existence of the parol agreement sought to be enforced.”).
“If the evidence establishes that the party who performed the act that is alleged to be partial
performance could have done so for some reason other than to fulfill obligations under the oral
contract, the exception is unavailable.” Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d
419, 426–27 (Tex. 2015) (per curiam).
Yee first contends that, based on the partnership agreement, she performed work for Anji
for which she received no compensation. Yee offers no evidence of when she performed any
specific work for Anji for which she was not compensated. However, Anji hired Yee on October
15, 2012, as a senior vice president and paid her an annual salary of $90,000. All work performed
by Yee for Anji after October 15, 2012, could have been referable to her duties as senior vice
president and not to the partnership agreement. Accordingly, Yee failed to raise a genuine issue
of material fact that any work she performed after October 15, 2012, was done with no design
other than to fulfill the partnership agreement.
We next consider whether any work Yee performed between March 2012, when she and
Mattison decided Yee would “move forward” with a partnership with Anji, and October 15, 2012,
when Yee was employed by Anji as a fulltime employee, was unequivocally referable to the
partnership agreement. In her affidavit, Yee first stated that, in March 2012 at the end of her
“existing contract,” she began working “100% on developing Anji” business. Pointing to the
minutes of the two meetings relating to the possible formation of an Anji–Epsilon partnership, Yee
argues she agreed to work on “business strategies” and Rajesh made no objection to her doing so.
However, there is no evidence these “business strategies” were unequivocally related to Yee’s
partnership with Anji, as opposed to the proposed partnership with Epsilon.
Without specifying a time period, Yee next claims she used her position “on the Frontier
Sterling CRM9 conversion project to on-board Anji resources onto [her] team that would not have
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been hired otherwise.” Yee’s interrogatory responses indicate that, as an independent consultant,
she was employed at Frontier Communications as a quality assurance manager from 2009 through
an unspecified point in 2012. In September 2012, Yee secured an “on-site client role” prior to
accepting employment with Anji. Yee worked as a quality assurance manager at Frontier from
2012 through 2013.
Yee did not provide any evidence that she was employed as a quality assurance manager
at Frontier between March 2012 and October 15, 2012. Further, even if Yee was employed at
Frontier during that time period, there is no evidence any work she performed was to fulfill the
partnership agreement rather than her responsibilities as a quality assurance manager at Frontier.
Finally, although Yee contends that, while working at Frontier, she performed some after-hours
work for Anji, there is no evidence Yee performed this work between March 2012 and October
15, 2012.
Yee also asserts she spent personal funds on Anji’s costs and expenses in reliance on the
partnership agreement. However, all the claimed expenses set out in Yee’s interrogatory
responses, other than one week of “living expenses” in October 2012, were incurred after Yee was
hired by Anji as a senior vice president. Those expenses, therefore, were incurred in relation to
her employment by Anji and were not unequivocally referable to the partnership agreement.
We conclude Yee failed to raise a genuine issue of material fact regarding whether any
work she performed or the expenses she incurred were unequivocally referable to the partnership
agreement. Accordingly, she failed to raise a genuine issue of the applicability of the partial
performance exception to the statute of frauds to her claims. We resolve Yee’s second issue
against her.
We sustain Yee’s first issue, in part, and reverse the trial court’s grant of summary
judgment on Yee’s breach of contract claim based on the Alcara agreement and on Yee’s
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promissory estoppel claim. We overrule Yee’s first issue to the extent it challenges the trial court’s
grant of summary judgment on Yee’s claims for breach of the partnership agreement and breach
of fiduciary duties arising from that agreement
Conclusion
We reverse the trial court’s summary judgment on Yee’s claims based on quantum meruit,
promissory estoppel, and breach of the Alcara agreement and remand those claims to the trial court
for further proceedings. In all other respects, the trial court’s summary judgment is affirmed.
/Ken Molberg/
KEN MOLBERG
JUSTICE
180662F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WENDY YEE, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas,
No. 05-18-00662-CV V. Trial Court Cause No. 401-03706-2017.
Opinion delivered by Justice Molberg,
ANJI TECHNOLOGIES, LLC, Appellee Justices Myers and Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part.
We REVERSE the trial court's summary judgment in favor of Anji Technologies, LLC on
appellant Wendy Yee’s claims for quantum meruit, promissory estoppel, and breach of contract
relating to the Alcara project. In all other respects, the trial court's judgment is AFFIRMED.
We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 15th day of May 2019.
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