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Metroplexcore, L.L.C v Parsons Transportation, Incorporated

Case No. 12-20466 (C.A. 5, Feb. 28, 2014)

This appeal arises from a contracting dispute between Plaintiff-Appellant MetroplexCore LLC, a Texas environmental engineering firm, and Defendant- Appellee Parsons Transportation Group, Inc., an Illinois general contracting firm, which contracted with the Harris County, Texas Metropolitan Transit Authority (“METRO”) to design, build, and operate a Houston-area transit system. Parsons had prepared an initial bid to be the lead contractor for the passenger rail line, and the bid had included, among other companies, MetroplexCore as a “team member” responsible for various supervisory and environmental projects. Parsons did not win the bid, and another company began work on the project. Several years later, the initial contractor was unable to proceed with the project, and METRO awarded Parsons the contract for the remainder of the project, along with a new set of Parsons subcontractors. After several months had elapsed, MetroplexCore notified Parsons that it believed it was entitled to a share of the profits. Parsons denied it had an agreement with MetroplexCore, and MetroplexCore filed suit.

The district court granted summary judgment upon determining that no enforceable joint venture agreement existed, and that MetroplexCore could not recover on its alternative claims of fraudulent misrepresentation, promissory estoppel, and quantum meruit. We agree that the summary judgment evidence did not present any genuine issue of material fact as to MetroplexCore’s joint venture and quantum meruit claims, and MetroplexCore does not challenge the dismissal of its fraudulent misrepresentation claim on appeal. However, because the district court impermissibly resolved certain disputed questions of fact at the summary judgment stage, and because those facts, taken in a light most favorable to MetroplexCore, would give rise to a claim to relief for promissory estoppel, we AFFIRM in part and REVERSE in part.

I.



Parsons Transportation Group, Inc., is an engineering and construction corporation incorporated in Illinois, with offices located in Houston, Texas. MetroplexCore, LLC, is a Texas minority-owned environmental engineering company. In 2006, the Metropolitan Transit Authority of Harris County, Texas (“METRO”) solicited bids to build a passenger-rail line in Houston. Parsons assembled subcontractors to join it in a venture called the Houston Transit Solutions Team (“HTS Team”) with it in bidding. MetroplexCore and Parsons agreed that if the bid were accepted, MetroplexCore would be hired to “manage” the geotechnical and hazardous-material work for the design and development phases and supervision on the project and, according to Parsons, would “participate in that contract to a minimum 10% level.”
 

 

Judge(s): Per Curiam
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Construction , Contracts , Damages
 
Circuit Court Judge(s)
Harold DeMoss
James Dennis
Edward Prado

 

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the washington group commenced “phase i” of the project and worked on washington group’s project, at parsons’ behest, forfeiting a subcontract it court held that the jury was justified in finding that the plaintiff suffered never made any such promises. applicability of the statute of frauds. see tex. bus. & comm. code § 26.01(a). “claim for relief” under a theory of promissory estoppel). in its promissory was no similar language under the header “phase ii” of the request; and in any or “joint venture,” metroplexcore alleged that parsons invited metroplexcore to “join as a part 2002) (listing promissory estoppel as separate “cause of action”); fretz, 626 in texas, claims of promissory estoppel and detrimental reliance based in contract are case: 12-20466 document: 00512547486 page: 14 date filed: 02/28/2014 exxon corp. v. breezevale ltd., 82 s.w.3d 429, 438 (tex. app.—dallas 2002, pet. “agent or employee” of parsons, a party to this action, and the parties do not that “chevron knew that vortt furnished the information with the expectation truly, where the plaintiff was acting to benefit both partners, as opposed to only of evidence that would support the existence of an enforceable joint venture 5 cancelled contract. id. after completing work on the project, however, aqua-con case: 12-20466 document: 00512547486 page: 18 date filed: 02/28/2014 the bank to expect that fretz would rely because the bank had been informed that section further provides that “[a]n agreement by the owners of a business metroplexcore, llc, is a texas minority-owned environmental engineering to find that metroplexcore actually relied on perrin’s promises to it and its we decided to retain extra staff that would have been laid off in anticipation of by ash v. hack branch distrib. co., 54 s.w.3d 401, 414 (tex. app.—waco 2001, pet. denied). of texas. parsons filed a motion for summary judgment, which the district court agreement with respect to phase ii of the project. statements to metroplexcore’s officers on her company’s behalf, promised to arguably in phase ii, because the parties had a mutual interest and “commonly 14 29, 2008. in rebuttal, metroplexcore cites the rules in metro’s request for providing that the bid would expire on may 27, 2007. thus, the record is devoid retained extra personnel for several years in anticipation of working on the f i l e d reliance damages seek to put the relied on a partnership and joint venture theory in its opposition to parsons’ motion for no. 12-20466 “we review the district court’s grant of summary judgment de novo, end by 2013. texas supreme court in truly would likely consider to be “services for the joint at 483 (concluding the plaintiff’s reliance was reasonable because the bank had metroplexcore’s intended role was to work on the team’s environmental and appeal unless the findings are clearly erroneous,’” pederson v. la. state univ., 213 f.3d 858, or joint venture; more indicia are required. see tex. bus. org. code on phase ii. based on an implied agreement to pay for benefits received.” heldenfels bros., 6 “unfair surprise,” and the district court had an opportunity to rule on the joint venture theory. agreement to contribute or contributing money or property to the business. and metroplexcore from that date on. on december 23, 2009, metroplexcore capacities; it does not show that metroplexcore expected or hoped to join the both of them—i.e., to help the team secure the metro bid—even though the hasslocher v. heger, 670 s.w.2d 689, 693 (tex. app.—san antonio 1984, writ whether it was intended as a general contractor-subcontractor relationship); notified the recipient that the plaintiff, in performing, expected to be paid by the 846 s.w.2d 110, 120 (tex. app.—tyler 1993, writ denied) (“the principal foreseeable. 4 party would have suffered had the contract been performed.” hart v. moore, 952 metroplexcore’s joint venture theory of the case and therefore cannot claim prejudice or vortt is unavailing to metroplexcore in the face of truly, as well as activities were not something for which metroplexcore could have reasonably clerk if the washington group does not finalize the contract with metro. team. metroplexcore was asked to provide a matrix of work and services to be interest in team express in 2009, and that it did not actually lose other contract and that [he] expected parsons to live up to the deal they made with activity—lobbying to improve a bid’s chances of success—is precisely what the negotiations when, as discussed above, there was no such agreement. perrin’s repeated assurances that metroplexcore would be a part of the phase jackson states that, after “the washington group failed to approve a final 23 parsons did not submit a separate bid to perform the phase ii work, but the 2007 letter that metroplexcore “will participate in the contract to a minimum 7 here, as in fretz, there is evidence in the record that would allow a jury concord oil co. v. alco oil & gas corp., 387 s.w.2d 635, 639 (tex. 1965). “in venture and quantum meruit claims, and metroplexcore does not challenge the meruit will be had when non payment for the services rendered would ‘result in case: 12-20466 document: 00512547486 page: 19 date filed: 02/28/2014 in establishing the existence of a partnership.” westside wrecker serv., inc. v. appellee parsons transportation group, inc., an illinois general contracting perrin’s statements in her affidavit. qureshi averred that perrin repeatedly handle this business at a moment’s notice. as such, we held off on and/or could of frauds. see, e.g., henry schein, inc. v. stromboe, 102 s.w.3d 675, 693 (tex. “assurances” to fretz. id. at 479-80, 481. willard, please stay on our team because we can still get the metro contract s.w.2d at 937. therefore, there is no unjust enrichment to parsons for promise to sign an agreement, . . . the agreement that is the subject of the co-joint venturers”; therefore, he could not recover in quantum meruit. id. 16 tex.bus.org.code § 152.052(b), (b)(3). more evidence of a partnership or joint not produce a similar joint venture agreement or written document regarding its 13 given the plainly conflicting accounts of what transpired, the question of with parsons about taking over the contract for phase ii, which was slated to was entitled to a share of the profits. parsons denied it had an agreement with in state court in harris county, metroplexcore was part of the phase ii process. promise was work that was related to the work that he had been called upon to between the parties as to the progress and goals of the joint venturers.’” ballard, case: 12-20466 document: 00512547486 page: 1 date filed: 02/28/2014 an unjust enrichment to the party benefited by the work.’” vortt, 787 s.w.2d at recipient.” vortt, 787 s.w.2d at 944 (citations omitted). accordingly, small business not merely as a subcontractor, but actually as a principal or to approve the contract with parsons.” receive not less than ten percent . . . of the value of any metro facility metro’s request for qualifications provided that, for “phase i,” although metroplexcore alleges it would not have undertaken any of these actions but for no. 12-20466 c. case: 12-20466 document: 00512547486 page: 20 date filed: 02/28/2014 s. real estate, inc., 933 f.2d 1300, 1312 (5th cir. 1991) (“if parties to the 10% level.” jackson attested that “sallye perrin assured [him] verbally that if case: 12-20466 document: 00512547486 page: 24 date filed: 02/28/2014 as a party and metroplexcore abandoned its claims against metro. parsons is the only not accept additional work that would conflict with our capacity to handle the 1. getting this project kick[ed] off. it has been a long time coming.” likewise, it for approximately a year, from may 2007 to april 2008. metroplexcore fretz.” id. case: 12-20466 document: 00512547486 page: 15 date filed: 02/28/2014 many subconsultants, including metroplex[c]ore, regarding the procurement profits, (3) an agreement to share losses, and (4) a mutual right of control or [him] and metroplexcore representatives by sallye perrin even after the metroplexcore because she was no longer under any contractual duty to include 2 “quantum meruit is an equitable remedy which does not arise out of a contract, the promisor, and (3) substantial reliance by the promisee to his detriment.” because a joint venturer does not “render[ ] services for [another joint venturer] only when there is no express contract covering the services or materials the metro contract if the washington group does not finalize the contract with willard, we are going to live up to our commitment to you. requirement of complete diversity is met and subject-matter jurisdiction is proper. parsons/metroplexcore commitment was made within hours of the board voting or venture generally cannot recover in quantum meruit against another partner began work on the project. several years later, the initial contractor was unable phases and supervision on the project and, according to parsons, would for the fifth circuit the parties.”). we may properly consider perrin’s alleged statements in manage certain aspects of the project; the record does not contain evidence that further proceedings. usually limited to one particular enterprise. as a general rule, a joint venture and substantially” relied on perrin’s promises. in fretz, the texas supreme there was an agreement to share 10% of the profits. but even if there were a alleges that parsons vice-president sallye perrin represented, both orally and case: 12-20466 document: 00512547486 page: 2 date filed: 02/28/2014 summary judgment. metroplexcore also emphasized in other district court filings that it was in the phase ii project in this claim, but rather to recapture the damages it metroplexcore “demonstrated a commitment to actually involve a reputable [jackson] to confirm that in fact the prior representations about metroplexcore code § 152.052(a)(3). it pointed to evidence that it had a “management role” in 19 fed. r. civ. p. 56(c)). “in determining whether a case presents triable issues of we therefore conclude that the district court erred in granting summary derived,” “by itself, does not indicate that a person is a partner in the business.” management of the enterprise.” smith, 285 s.w.3d at 913; see tex. bus. org. entered its original notice of appeal on july 5, 2012, which contained sufficient the geotechnical and hazardous-material work for the design and development given the public and repeated nature of perrin’s alleged statements, and did not present any genuine issue of material fact as to metroplexcore’s joint authority (“metro”) to design, build, and operate a houston-area transit (1) receipt or right to receive a share of profits of the business; (2) expression of performed pursuant to the oral agreements was work which was called for under no. 12-20466 micrographics v. leal, 908 s.w.2d 292, 298 (tex. app.—san antonio 1995, no expenditures made in preparation for performance or in performance, less any justified in awarding fretz damages on his theory of promissory estoppel. id. to relief on a theory of quantum meruit. see, e.g., vortt, 787 s.w.2d 942. in business.” tex. bus. org. code § 152.052(b), (b)(3). “shared rights to profits tex. bus. org. code §§ 152.052(a)(4)(b), (a)(5). while “[t]he burden of persuasion for establishing diversity jurisdiction . . . [is] on the fifth circuit significant part of the management team, it is not likely that parsons would ever by waiting to sign the contract and to deliver the performance bonds to aqua- affirming only if the moving party has demonstrated that there is no genuine to create a genuine issue as to whether metroplexcore substantially relied to its process for work on the modified scope [i.e., phase ii]. during this meeting, by virtue of its financing agreement with aqua-con, id. at 479-81; fretz relied no. 12-20466 instead, metroplexcore alleges that metro board members relied on a jury could reasonably find that metroplexcore actually and substantially in the united states court of appeals no. 12-20466 2 ii. case: 12-20466 document: 00512547486 page: 16 date filed: 02/28/2014 partner now that the [phase ii] contract was in place.” she and other issue as to any material fact and that judgment as a matter of law is warranted.” indication that metroplexcore reasonably expected to be reimbursed for its a. moreover, given the parties’ prior relationship during the original bidding incurred in reliance on perrin’s promises. cf., e.g., ford, 44 s.w.3d at 139; plaintiff, fretz, was a general contractor who agreed to perform construction metroplexcore, and metroplexcore filed suit. be in writing at the time of the oral promise to sign it.”) (citation omitted) before demoss, dennis, and prado, circuit judges. metroplexcore personnel described in detail the assurances and meetings on the management team. case: 12-20466 document: 00512547486 page: 17 date filed: 02/28/2014 officer, zia qureshi, and sole shareholder, willard jackson, that contradicted 17 metroplexcore, it is difficult to say that a reasonable trier of fact could find that a “break” because she “overcommitted” on the contract, jackson immediately management or joint venture role in phase ii other than documents relating to furthermore, the summary judgment record could support a finding that perrin and six-figure amounts for other technical professionals. i have clear metroplexcore . . . retained approximately 10-15 workers on staff in our between $1-$3 million dollars in extra costs to our business. also, by giving up sought to be charged, 3) which were accepted by the party sought to be charged, include metroplexcore in the project if her company was awarded the contract. though the original bid—and therefore the metroplexcore-parsons agreement— under a theory of promissory estoppel. under texas law, “[t]he requisites of the record, we need not consider the parties’ alternative contentions regarding the producing well. id. vortt sued for quantum meruit, and the texas supreme parsons did not sign any contract with metroplexcore regarding work to be done the operation, but the evidence shows that for phase i, metroplexcore would writing; (2) that the defendants promised to sign that existing written management of the enterprise. generally, a joint venture is governed by the metroplexcore.” jackson states that parsons cut off communication with him distinction between a joint venture and a partnership is that a joint venture is if, as discussed above, there may have been only a contingent contracting 3 undisputed facts and “‘facts expressly or impliedly found by the district court are accepted on partner “rendered services for the joint venture in an effort to enhance the contract,” citing “metroplexcore’s prior good work history . . . and good february 28, 2014 estoppel claim, brought in the alternative to its joint venture claim, appeals from the united states district court to a promise above and beyond what the defendant was already obligated to do weigh the evidence and we must resolve all ambiguities and draw all permissible confirmed again to [dixon] that this was the case.” jackson further averred that parsons no. 12-20466 “impressed” with parsons’ proposal in part because its inclusion of firm, which contracted with the harris county, texas metropolitan transit undertaken in order to have enough people on hand to handle the its theory of promissory estoppel. no. 12-20466 metroplexcore had “high competence” as requested by perrin. similarly, after injured party in the position that he or she would have been in had he not relied enough to merely show that his efforts benefitted the defendant.” truly v. passenger rail line, and the bid had included, among other companies, dismissal of its fraudulent misrepresentation claim on appeal. however, because promissory estoppel are: (1) a promise, (2) foreseeability of reliance thereon by no. 12-20466 parsons transportation group, inc. is corporation with offices located in a result of the work that washington group did, and that the phase ii contract avoided only by enforcement of the promise.’” id. (quoting restatement of rules applicable to partnerships.” smith v. deneve, 285 s.w.3d 904, 913 (tex. when she made the alleged statements. fed. r. evid. 801(d)(2)(d). the according to jackson, “[a]ll of the above statements were repeatedly made to assurances. id. the texas supreme court held that the timing of these actions austin, 744 s.w.2d 934, 937 (tex. 1988) (citation omitted). in truly, the plaintiff tremendous personal, political and financial capital to win support for parsons’ in writing, that metroplexcore would be on the “management team” for phase and sitting with sallye and other parsons representatives in front of the metro id. at 943. the negotiations were ultimately unsuccessful, but in the course of proceed with discussions with the next highest ranked offeror.” however, there . . . thus act[ing] to benefit his own financial interests as well as those of his qualifications, which provided that, for “phase i,” metro would “have the right commitments throughout the process, had expended tremendous personal, in anticipation of handling the parsons work. retaining these workers was ii. corporation incorporated in illinois, with offices located in houston, texas. and expenses if he agreed to go forward with the project. id. at 479-80. fretz agreed during their first round of bidding. see id. at 484 (concluding the bank’s agreement for phase ii of the project; however, the record does suport that they app.—waco 1927, writ ref’d) (holding there existed a genuine issue of material metroplexcore was part and parcel with the finally-negotiated parsons facility allege or argue that it, along with parsons, had a “mutual right of control or no. 12-20466 the evidence does not demonstrate a genuine issue as to whether provider contract [i.e., phase ii]. . . . dixon, before casting his vote, asked metroplexcore and parsons were joint venturers in the project. however, 25 support a finding that parsons and metroplexcore had a formal joint venture effort was initially unsuccessful. this is more akin to the situation described in event metro’s rules did not purport to bind metro or the original bidders to joint venture agreement with respect to phase i of the project, the evidence does no. 12-20466 the district court rejected metroplexcore’s promissory estoppel claim in part no. 12-20466 truly, 744 s.w.2d at 937. the valuable services that metroplexcore alleges that hazardous material issues and to assume a management role in certain board when they voted on the contract. [he] also assured them that disputed in this appeal. metroplexcore argues that parsons represented that from denying the enforceability of the promise.” wheeler v. white, 398 s.w.2d total e & p usa inc. v. kerr-mcgee oil & gas corp., 719 f.3d 424, 434 (5th cir. granted on july 3, 2012. metroplexcore filed its notice of appeal on july 7, to him that this was the case. . . . this confirmation of the estoppel, and quantum meruit. we agree that the summary judgment evidence ultimately, parsons won the phase ii contract, and the metro board different” from that “contemplated” in the original bidding process. however, plaintiff, in performing, expected to be paid by the recipient.” id. communication with him and metroplexcore. meanwhile, perrin avers that she finally, parsons argues that metroplexcore’s promissory estoppel claim party asserting it,” hertz corp., 559 u.s. at 96, in resolving jurisdictional questions, defaulted on its obligation to pay fretz his agreed fee, and fretz filed suit in control of the business; (4) agreement to share or sharing: (a) losses of the the southern district of texas, and it is undisputed that texas law applies. see evidence of a community of interest in the venture at least in phase i, and assessing whether the summary judgment evidence creates a genuine issue of no. 12-20466 reasoning of truly is applicable to the case at bar because metroplexcore there is also enough evidence to create a genuine issue as to whether the assured her and other metroplexcore personnel that “parsons was going to court affirmed an award in its favor because the evidence supported a finding veolia) only relates to phase i of the project, and the written evidence does not remaining defendant and is the only appellee in the present appeal, and metroplexcore does beneficial services rendered and knowingly accepted.’ recovery in quantum contract with metro and was terminated,” he “was personally present and promise was sufficiently concrete to reasonably and foreseeably induce reliance, relied upon parsons’ commitments throughout the process, had expended project). in sum, a fact-finder could conclude that metroplexcore’s reliance was ‘a promise which the promisor should reasonably expect to induce action or english v. fischer, 660 s.w.2d 521, 524 (tex. 1983); see also, e.g., fretz constr. texas, seeking a declaratory judgment and damages for breach of contract, plaintiff - appellant judgment to parsons on metroplexcore’s promissory estoppel claim. dispute that perrin was acting within the scope of her duties as vice-president washington group received an initial award from the metro board and up to case: 12-20466 document: 00512547486 page: 26 date filed: 02/28/2014 judgment as to metroplexcore’s claims of breach of a joint venture agreement, for quantum merit. first, for the reasons stated above, the record does not operating officer of metroplexcore, attested: case: 12-20466 document: 00512547486 page: 8 date filed: 02/28/2014 inferences in favor of the non-moving party.” id. (citing anderson v. liberty opposed to acting for the participants’ joint benefit, the plaintiff may be entitled finally, metroplexcore asserts that it is entitled to recover from parsons promissory estoppel, and negligent or intentional misrepresentation.3 and 4) under such circumstances as reasonably notified the recipient that the estoppel, we affirm in part and reverse in part. services,” which metroplexcore submitted as evidence. no. 12-20466 on the other hand, jackson avers that after the june 1, 2009, meeting although, as noted above, this factor is not necessary to establish a partnership, klaxon co. v. stentor elec. mfg. co., 313 u.s. 487, 496 (1941); erie r.r. v. compensated. tompkins, 304 u.s. 64 (1938). a part of washington’s original bid. however, the washington group was case: 12-20466 document: 00512547486 page: 12 date filed: 02/28/2014 promise must comply with the statute of frauds. that is, the agreement must notice and was timely filed. see fed. r. app. p. 3(c)(1), 4(a)(1)(a). jurisdiction per curiam: a conversation with perrin on march 5, 2009, jackson followed up via email, work on an office building in houston. 626 s.w.2d at 479. fretz had previously venturers.’” ballard v. united states, 17 f.3d 116, 118 (5th cir. 1994) (quoting metro would negotiate with its highest-ranked bidder, “metro will have the group’s contract is terminated, we are still committed to metroplexcore being had technically expired. the question is whether the metroplexcore-parsons willard, if parsons gets the facility provider contract after the washington pursue the project, metroplexcore severed ties with team express, inc., the s.w.3d 121, 139 (tex. app.—corpus christi 2001, no pet.) (“when promissory agreement providing that its proposal would “remain valid until may 27, 2007.” at 122 (same). however, this factor alone is not sufficient to create a partnership was at least “based on” parsons’ original bid, even if the specifications and team conversely, simply showing “the right to share or sharing gross returns or parsons transportation group, inc., is an engineering and construction this action was removed from texas state court to the district court for concluded, perrin approached jackson and stated: “willard, i know we made “participate in that contract to a minimum 10% level.” would share in “liability for claims by third parties against the business” or that 5 the texas supreme court affirmed the jury’s verdict in favor of fretz, metroplexcore did not produce documents substantiating its alleged with the washington group and the final contract. perrin’s promises when it opted to keep on extra staff or to divest itself of its removed the case to the united states district court for the southern district metroplexcore is not seeking to enforce an alleged oral contract to participate loss that the party in breach can prove with reasonable certainty the injured metroplexcore also filed suit against perrin and metro, but perrin was dismissed 18 metroplexcore’s officers recalled things differently. in its opposition to westside wrecker, 361 s.w.3d at 166 (assessing whether construction project agreement rather than a joint venture as such. metroplexcore had with parsons. qureshi stated in her affidavit, “perrin made moving party, parsons. we conclude that there is enough evidence in the record inc. v. city of corpus christi, 832 s.w.2d 39, 41 (tex. 1992) (citing vortt lawsuit or agents of the parties made the statements [in question], the agreements was work which was called for under the original contract”). cnty. state bank, 407 s.w.2d 221, 224 (tex. 1966))). metroplexcore produced assuring [him] and other board members that metroplexcore would be a that metroplexcore did actually rely; at the summary judgment phase, the success and profitability of a project in which he held a 40% ownership interest[,] evidence, affidavits of metroplexcore’s president and former chief operating 483-84. in particular, the court noted, the plaintiff had not delivered a contract hertz corp. v. friend, 559 u.s. 77, 93 (2010).4 metroplexcore as a “team member” responsible for various supervisory and the parsons contract very well could have been based on the original bid, even the order as to metroplexcore’s promissory estoppel claim and remand for to you this morning. i’m looking forward to getting this project kick[ed] off. it moreover, parsons produced evidence that it had profit-sharing joint venture enforceable joint venture agreement existed, and that metroplexcore could not not create a genuine issue of fact with respect to phase ii of the project. see tex. bus. org. code § 152.052(c). importantly, metroplexcore also did not the negotiations, vortt furnished chevron with “confidential” seismic services, (“metro”) solicited bids to build a passenger-rail line in houston. parsons 3 mineral-rights contracts on different portions of a tract of land, and they entered no. 12-20466 the basis for the district court’s jurisdiction was diversity of citizenship. exploration co., inc. v. chevron u.s.a., inc., 787 s.w.2d 942, 944 (tex. 1990)). fraudulent misrepresentation, and quantum meruit claims, but we reverse last for years. the only evidence on point is parsons’ extension agreement responded that it “was her problem, that [he] had relied upon parsons’ metroplexcore has not met either of the two remaining common-law holding that all of the elements of promissory estoppel were met. id. at 479. the “first, texas defines a ‘community of interest’ as ‘a commonly shared to get the contract.” jackson responded that it “was her problem, that [he] had project at great expense. specifically, zia qureshi, president and former chief lobby, inc., 477 u.s. 242, 255 (1986); int’l shortstop, inc. v. rally’s, inc., 939 shared a “community of interest,” meaning “‘a commonly shared incentive “act[ed] to benefit [its] own financial interests as well as those of” parsons. 21 case: 12-20466 document: 00512547486 page: 13 date filed: 02/28/2014 venture in an effort to enhance the success” of the community of interest. 744 no. 12-20466 in sum, there is no genuine issue of material fact as to whether in reliance upon the commitments made by parsons and sallye perrin. 24 metroplexcore’s activities. case: 12-20466 document: 00512547486 page: 6 date filed: 02/28/2014 6 contracts § 90); see also, e.g., fretz, 626 s.w.2d at 480 (quoting and applying 11 essential elements of promissory estoppel is on the party asserting the doctrine. in lobbying activities during parsons’ discussions with metro for the phase ii 9 phase ii negotiations. willard jackson stated that he “was personally present support. perrin averred that “[t]hroughout 2008 and 2009, parsons met with refused n.r.e.) (in turn citing w.h. hodges & co. of alexandria, inc. v. donley is therefore proper. graphics, and maps that vortt had ordered and paid for. id. at 945. chevron metroplexcore relies on assertions in its witnesses’ affidavits that the original case: 12-20466 document: 00512547486 page: 23 date filed: 02/28/2014 genuine issue of material fact as to the profit-sharing element, texas law metroplexcore. i need you to give me a break. i overcommitted to a lot of people case: 12-20466 document: 00512547486 page: 3 date filed: 02/28/2014 metro terminated the contract april29, 2008. metro then began discussions members had changed somewhat. its negligent misrepresentation claim. the contract. metroplexcore in her company’s project since their joint bidding agreement had section 152.052(a) of the texas business organizations code sets out five case: 12-20466 document: 00512547486 page: 22 date filed: 02/28/2014 metroplexcore accepted parsons’ commitments, [metroplexcore] would . . . it below. we disagree. although metroplexcore asserted a cause of action for breach of e.g., s. sur. co. v. tex. emp’rs’ ins. ass’n, 2 s.w.2d 310, 312 (tex. civ. first, there is a genuine issue as to whether perrin made promises that reputation.” he averred that “but for parsons’ oral and written documents in fretz construction co. v. southern national bank of houston, the remain valid until may 27, 2007,” indicating that the agreement dissolved on or contract and did not mention in its complaint any allegation that it was part of a “partnership” endorsing the hts[ ] [team] proposal” to help parsons successfully obtain the e.g., allied chem. corp. v. mackay, 695 f.2d 854, 856 (5th cir. 1983). we therefore review agreement, here, metroplexcore and parsons did have a formal agreement that group’s contract is terminated, we are still committed to metroplexcore being case: 12-20466 document: 00512547486 page: 7 date filed: 02/28/2014 that, after his june 1, 2009 meeting with perrin when she asked him to give her fact, we, like the district court, may not make credibility determinations or parsons/metro business. average cost per support employee retained was approximately$60,000-$80,000 inc., but that contract was cancelled due to aqua-con’s inadequate funding. id. no. 12-20466 metro board members, this quality is not a “service” of a type for which a team commitment to you is still in play with metro and we can still get the whether services were rendered “under such circumstances as reasonably included in the bid because of its professional network or good reputation among however, the promise made on parsons’ own behalf (as opposed to on behalf of this period that metroplexcore engaged in its lobbying activities to benefit the . . . . instead, pursuant to the joint venture agreement, he perform[s] [ ] services upon parsons’ agreement to enter into a joint venture with metroplexcore to that a joint operating agreement would be reached” and that vortt expected to because nothing in the record suggests that parsons maintains its principal place of business environmental projects. parsons did not win the bid, and another company additional requirement that the promisor promised to sign a written document regardless of whether the persons sharing the gross returns or revenues have a underway. jackson recalled that, after the june 1, 2009, meeting concluded, forbearance of a definite and substantial character on the part of the promisee metroplexcore cannot recover in quantum meruit as a matter of law. signed a new contract with aqua-con that had similar specifications as the prior no. 12-20466 have been seriously considered for the project.” in addition, metroplexcore review the timely appealed final decisions of district courts. 28 u.s.c. § 1291. 4 washington group, “team express,” during this time, although it had not been promissory estoppel as a cause of action and as a defense to the application of of the contract, parsons is entitled to summary judgment on that claim.6 however, jackson explained, perrin did not follow through with those i. the long-term operations was in fact still in place. [jackson] and sallye perrin agreement; and (3) that [the plaintiff] relied on the defendants’ promise to sign see u.s. const. art. iii, § 2, cl. 7; 28 u.s.c. § 1332. the amount in controversy lyle w. cayce estimates to be worth $2 million; passed up on other business opportunities; and the same cause of action. e.g., univ. of tex. sys. v. courtney, 946 s.w.2d 464, 468 (tex. houston, texas, and incorporated in illinois. the record reflects that parsons because we conclude that there is no genuine issue of material fact regarding the the summary judgment record is replete with references to the specific no. 12-20466 b. 2012, and filed an amended notice of appeal on august 8, 2012. keep their “teams” together for the duration of the project, which was slated to ms. perrin and [another parsons agent] a 16-item matrix setting forth our against the bank for, inter alia, promissory estoppel arising from the bank’s the original contract,” id. at 484. accordingly, the court held that the jury was handling the parsons work. also, because we were handling other business as regardless of whether: (1) the persons intend to create a partnership; or (2) the that, even though the technical specifications had changed, it was not “totally governed the parties’ relationship leading up to the original bid. it was during 15 it would have the same role as provided in parsons’ original bid, and that after the washington contract was terminated: detriment on perrin’s promises and reassurances. honor its oral and written commitment that metroplexcore be a management on appeal, metroplexcore does not challenge the grant of summary judgment as to no. 12-20466 agreed that if the bid were accepted, metroplexcore would be hired to “manage” is barred by the statute of frauds, citing ford v. city state bank of palacios, 44 paid, and he did not deliver payment or performance until after it received those statements would therefore be admissible as nonhearsay. see id.; moss v. ole recollection of our retention of employees that likely would have been otherwise “reassurances” that perrin made to metroplexcore during and leading up to the and disadvantaged business committee for metro’s board, stated he was (approximately 4-6), we also understood that we had to keep open capacity to lobbying activities. for one thing, the summary judgment evidence shows that expectation that parsons would honor its promise to involve metroplexcore as for the project and that the work he had performed in reliance on the bank’s conducted lobbying activities at the time when its relationship with parsons was second-ranked status for phase i and, ultimately, the phase ii bid, “all in the solutions team (“hts team”) with it in bidding. metroplexcore and parsons officers. as metroplexcore’s summary judgment evidence reflected, in reliance fact as to whether a construction venture was intended as a partnership or metro’s request, the parsons team complied and executed an extension material fact. case: 12-20466 document: 00512547486 page: 4 date filed: 02/28/2014 vortt, where the plaintiff performed tangible work—producing seismic maps and regard, not only did we retain employees that may otherwise have been let go on the management team”; “[p]lease stay on our team because we can still get skafi, 361 s.w.3d 153, 166 (tex. app.—houston [1st dist.] 2011, pet. denied). has not argued or presented any evidence of the other factors listed in section ultimately declined to enter into a joint operating agreement with vortt, but 480 (tex. app.—corpus christi 1997, writ denied), modification on other grounds recognized distinguishable on its facts. here, unlike in vortt, there is no evidence or other confirmed again to him that this was the case.” jackson averred that perrin statute of frauds is no bar to metroplexcore’s claim for reliance damages under member is usually compensated. this is a basic difference between this case and phase ii. parsons produced a joint venture agreement it had with its phase ii 2013) (citing mcmurray v. procollect, inc., 687 f.3d 665, 669 (5th cir. 2012); parson’s motion for summary judgment, metroplexcore submitted, among other instead of 10% of, for instance, the workload or management responsibility. app. 2009) (citations omitted); accord, e.g., ben fitzgerald realty co. v. muller, aqua-con then obtained funding from the southern national bank of houston, recover on its alternative claims of fraudulent misrepresentation, promissory case: 12-20466 document: 00512547486 page: 25 date filed: 02/28/2014 metro awarded the contract to its first-ranked bidder, the washington in a community of interest. there is no similar evidence to show that metroplexcore, l.l.c., f.2d 1257, 1263 (5th cir. 1991)). in texas, we accept the district court’s implied finding to this effect and conclude that § 1332’s jackson attested to similar figures: and which does induce such action or forbearance is binding if injustice can be this court has jurisdiction to not challenge the dismissal of perrin on appeal. prime partner in the management of the performance under the metro sitting with sallye and other parsons representatives in front of the metro 20 exceeds $75,000; metroplexcore, llc is a texas limited liability company; and elements: (1) a community of interest in the venture, (2) an agreement to share then utilized the maps and seismic information vortt had provided to build a happen with the washington group and the final contract”; and “[w]e are going by contrast, when the plaintiff has provided a service or benefit to the shared incentive” in obtaining the metro contract. id. this factor is met. cf., the texas supreme court has held that a partner in a joint undertaking no. 12-20466 right to terminate unsuccessful discussions and to proceed with discussions with 26 after that date—well before washington group’s contract terminated on april participants formed a community of interest); ben fitzgerald realty, 846 s.w.2d of the doctrine of promissory estoppel is . . . defensive in that it estops a promisor case: 12-20466 document: 00512547486 page: 11 date filed: 02/28/2014 case: 12-20466 document: 00512547486 page: 10 date filed: 02/28/2014 parsons denied this allegation, and submitted an affidavit from perrin in and to control the business are generally considered the most important factors performed some subcontracting work for a group doing work under the willard, our commitment to you is still in play with metro and we can still get metroplexcore and parsons had a joint venture agreement, or that, if there was association is called a ‘partnership,’ ‘joint venture,’ or other name.”). and the actions themselves constituted “some evidence of reasonable reliance by suffered foreseeable, cognizable damages because he had expended funds in no. 12-20466 being a partner on the management team and participating in the long-term 17 f.3d at 118 (quoting hasslocher, 670 s.w.2d at 693). we conclude that the iii. elements, namely, “(1) that the parties’ oral agreement had been reduced to reliance was reasonable. metroplexcore presented evidence that its members § 152.052(b), (b)(3). 2792909, at *5 (s.d. tex. sept. 27, 2006) (unpublished) (differentiating between but is independent of it. generally, a party may recover under quantum meruit alleged joint venture agreement with consideration of both the written and parol evidence in case: 12-20466 document: 00512547486 page: 5 date filed: 02/28/2014 board when they voted on the contract. . . . [and that he] and sallye perrin board members and local congressmen and community leaders presenting and in texas, “[a] joint venture has four this appeal arises from a contracting dispute between plaintiff-appellant commitments to metroplexcore. i need you to give me a break. i overcommitted writing: “it was great talking to you this morning. i’m looking forward to statements are not within the definition of hearsay and are admissible against summary judgment stage, and because those facts, taken in a light most defendant - appellee into negotiations with an eye toward entering into a joint operating agreement. company. in 2006, the metropolitan transit authority of harris county, texas estoppel is raised to bar the application of the statute of frauds, there is an app.—fort worth 1997, writ denied); garner v. corpus christi nat’l bank, 944 s.w.2d 469, been expected to be reimbursed because metroplexcore and parsons were in the only evidence in the record on this point is the parties’ bid extension agreement, venture is required. has been a long time coming.” jackson states that he “was personally present parsons argues that metroplexcore forfeited its joint venture claim by failing to plead a 10% joint venturer in [the team’s] work on the project.” but that type of metroplexcore’s joint venture claim is premised entirely on its role in phase ii 2. was on notice that metroplexcore would rely on her promises. jackson averred con until he received the bank’s reassurances, id. at 483; it was reasonable for original bid. thus, the evidence demonstrates only that metroplexcore metroplexcore llc, a texas environmental engineering firm, and defendant- passed a resolution permitting it to proceed on the project on march 4, 2009. metroplexcore. a fact-finder could reasonably conclude that perrin was and observing, in support, that “the work performed pursuant to the oral moreover, the parties’ relationship is different from that in vortt. unlike perrin made the following specific statements, among others, to him and finally, the record does not contain evidence that metroplexcore engaged writ) (citing fretz, 626 s.w.2d at 483).7 (emphasis added); sullivan v. leor energy llc, no. h-05-3913, 2006 wl restatement test for promissory estoppel). the burden of proving all the jackson averred that when he met with perrin, she assured him that his metroplexcore was part and parcel with the finally-negotiated parsons facility common or joint interest in the property from which the returns or revenues are operations was in fact still in place. [jackson] and sallye perrin confirmed again metroplexcore after the washington contract was terminated: “[o]ur bid never dissolved and that the phase ii bid was “based on” the original bid and metroplexcore continued these activities during or leading up to the phase ii asked [jackson] to confirm that in fact the prior representations about conferring a benefit upon the defendant. under the circumstances, the lobbying the district court entered final judgment on july 3, 2012. metroplexcore agreement had expired or dissolved before the phase ii negotiations began. the metroplexcore explicitly disavows a theory of recovery based on breach of contract. same “community of interest” in that venture, smith, 285 s.w.3d at 913, even no. 12-20466 in vortt, where the parties never ultimately formed a joint operations furnished. this remedy ‘is based upon the promise implied by law to pay for defendant for which the plaintiff would reasonably expect to be reimbursed, as co. v. so. nat’l bank of hous., 626 s.w.2d 478, 483 (tex. 1981). “the function header “phase ii” of the request. to a lot of people to get the contract,” and that parsons subsequently cut off contract”; “[i]f parsons gets the facility provider contract after the washington as regards profit-sharing, metroplexcore argues that there was an 7 as in fretz, those promises went above and beyond any duty that perrin owed be paid for the services rendered. id. that fretz needed its reassurance before he would proceed, id.; and fretz omitted)); see also tex. bus. org. code § 152.051(b) (“[a]n association of two or engineering department during the time between april 2007 and march 2009 that his efforts were undertaken for the person sought to be charged; it is not metroplexcore’s reliance must be resolved by a trier of fact. parsons’ principal place of business or “nerve center” is a state other than texas. because of the promise and commitment by parsons/perrin to metroplexcore, let’s keep our team together because we don’t know what’s going to happen to live up to our commitment to you.” perrin, in allegedly making those board when they voted on the contract. [he] also assured them that similar documents—of a type for which a company would normally expect to be rather than the community of interest that included metroplexcore; nor as to 10 for the joint venture. to recover in quantum meruit, the plaintiff must show no. 12-20466 finally, even if the evidence could support a finding of the existence of a v. of [parsons’] proposal” and that metroplexcore would be part of the “team,” and explicitly role, if any, in phase ii.1 because it concluded perrin’s statements were hearsay. however, perrin was an metro”; “let’s keep our team together because we don’t know what’s going to it had “agreed to contribute or contributing money or property to the business.” which assured fretz that he would be reimbursed for his contracting services his share of the project’s proceeds was sufficiently concrete because it amounted promissory estoppel as a separate cause of action, not as a defense to the statute specifically provides that “the right to share . . . gross returns or revenues, perform under the parties’ original written contract, which had expired. id. at disappointed party may have a substantial and compelling claim for relief. . . . case: 12-20466 document: 00512547486 page: 9 date filed: 02/28/2014 district court impermissibly resolved disputed questions of fact in favor of the were conducted to improve the hts team’s chances of success leading up to the the time that the washington group was terminated and parsons selected[.]” no. 12-20466 944 (citations omitted). to recover in quantum meruit, a plaintiff must establish provider contract awarded to parsons . . . [and] ten percent . . . of the value from to its client until after he received assurances from the bank that he would be first, metroplexcore argues that the district court erred in concluding case: 12-20466 document: 00512547486 page: 21 date filed: 02/28/2014 elements of a joint venture. metroplexcore did not attempt to argue that it had our interests in team express, we forfeited an additional $2 million in profits metroplexcore furnished valuable services for the benefit of parsons alone, the next highest ranked offeror.” there was no similar language under the [she] communicated the process metroplex[c]ore would have to go through if it process, and the specific nature of perrin’s alleged repeated reassurances, a vortt, both the plaintiff, vortt exploration, and the defendant, chevron, had provided or managed under the parsons/metro agreement. within one . . . metroplexcore’s joint venture argument under the usual standard. unable to maintain its metro-required qualifications to complete phase ii, and opportunities by waiting for marching orders from parson. a trier of fact might that: “1) valuable services and/or materials were furnished, 2) to the party the district court granted summary judgment upon determining that no assembled subcontractors to join it in a venture called the houston transit political and financial capital to win support for parsons’ contract and that [he] 869 (5th cir. 2000) (quoting complaint of tom–mac, inc., 76 f.3d 678, 682 (5th cir. 1996)). and sitting with sallye and other parsons representatives in front of the metro entered into a construction contract with the builder, aqua-con of south texas, group transit management company (“washington group”). however, on revenues” is insufficient “by itself” to show that “a person is a partner in the to proceed with the project, and metro awarded parsons the contract for the s.w.2d at 479, 484 (same); wheeler, 398 s.w.2d at 96 (setting out elements of a “principal in the management team handling the contract.” as such, parsons was aware of the statute of frauds and explaining that the latter has a different set of a claim for promissory estoppel, only reliance damages are allowed.” cent. tex. the agreement to his detriment”), aff’d, 600 f.3d 542 (5th cir. 2010). the promises once parsons obtained the metro contract and the project was which states that “the offer represented by [the parsons team] proposal . . . will agreements with its other collaborators, and there is not evidence that on perrin’s request, qureshi prepared a detailed list of services in which repeated assurances . . . regarding metroplexcore’s work on the management to share losses is not necessary to create a partnership.” id. § 152.052(c). ii “team.” based on the foregoing summary judgment evidence, we conclude that she could have reasonably foreseen would induce reliance. as an initial matter, the operations of the rail system by and through parsons’ partner, veolia.” parsons/metro work. this retention of workers resulted in a loss to us of 12 to terminate unsuccessful discussions” with the first-ranked bidder “and to no. 12-20466 court held that the bank’s “assurances” to the plaintiff that fretz would be paid the district court impermissibly resolved certain disputed questions of fact at the an intent to be partners in the business; (3) participation or right to participate team to perform professional lobbying services. even if metroplexcore was contract. the lobbying activities discussed in the summary judgment evidence 2009, jackson followed up with perrin via email, writing: “it was great talking phase i and an email chain discussing metroplexcore’s role or possible role in metroplexcore filed suit against parsons2 unequivocally establish that metroplexcore was entitled to 10% of the profits on the promise. see fretz, 626 s.w.2d at 478. such damages “includ[e] for the foregoing reasons, we affirm the order granting summary denied) (“to invoke the application of promissory estoppel where there is an oral foreseeable, cognizable damages because he had expended funds in preparation factors for determining whether a partnership has been created: company was part of parsons’ phase ii team. after a conversation on march 5, next, there is a genuine issue as to whether metroplexcore “reasonably perrin approached him and stated: “willard, i know we made commitments to reasonable reliance upon an otherwise unenforceable promise, . . . the several months had elapsed, metroplexcore notified parsons that it believed it that there was no genuine issue as to the formation and existence of an favorable to metroplexcore, would give rise to a claim to relief for promissory made the following specific statements, among others, to him and metroplexcore is governed by the same rules as a partnership, and vice versa.” (citations relied on perrin’s promises. for the southern district of texas day & zimmerman, inc. v. challoner, 423 u.s. 3, 4-5 (1975) (per curiam); laid off [who] were retained in anticipation of the parsons[ ] work. in this wrote to parsons to inquire as to its share of the profits. perrin denied that 93, 96 (tex. 1965). in sum, “[w]here a promisee acts to his detriment in metroplexcore would have a coequal or “mutual” right to control and manage 8 to award parsons the phase ii contract. james dixon, a member of the small more persons to carry on a business for profit as owners creates a partnership, provider contract” i.e., phase ii. he stated that “dixon, before casting his vote, quantum meruit. “quantum meruit is an equitable theory of recovery which is metroplexcore had a similar contract. even taken in a light most favorable to s.w.2d 90, 97 (tex. app.—amarillo 1997, pet. denied). not alleging that it had a subcontractor agreement with parsons, but rather that it was a enforceable joint venture agreement.5 agreement to share the profits in respective 90% and 10% shares, citing perrin’s notice that fretz needed its reassurance before he would proceed with the metroplexcore alternatively contends that it is entitled to recover in expected her promises to induce substantial reliance on the part of parsons transportation, incorporated, 1 the enterprise. e.g., smith, 285 s.w.3d at 913. furthermore, metroplexcore expected parsons to live up to the deal they made with metroplexcore.” see id. well, we began to plan for staffing needs to handle the increased parsons work. governed by a contingent contracting agreement and the parties were engaged promising to abide by the same terms to which metroplexcore and parsons had complying with the statute of frauds.”). however, metroplexcore is asserting parties generally agree that the scope of the project had changed in phase ii as metroplexcore being a partner on the management team and participating in remainder of the project, along with a new set of parsons subcontractors. after united states court of appeals preparation for the project, id. at 483-84, in particular because “the work it performed were “expend[ing] valuable time and effort meeting with metro’s an agreement to share losses with parsons, see smith, 285 s.w.3d at 913, very well conclude that from the evidence, but a trier of fact could also conclude under the foregoing authorities, metroplexcore has not made out a case collaborators, which did not list or mention metroplexcore. metroplexcore did metroplexcore having a continued role in the contract when the members voted conclusion the district court concluded that metroplexcore did not actually rely on 152.052(a) for determining whether a partnership has been created, viz., that it hour of leaving the june 1, 2009 meeting, [qureshi] prepared and faxed back to it is metroplexcore’s role, or lack of a role, in the phase ii work that is iv. one, that it remained effective into the parties’ phase ii negotiations. because expired. see fretz, 626 s.w.2d at 479. no. 12-20466 22 incentive between the parties as to the progress and goals of the joint business; or (b) liability for claims by third parties against the business; and (5) sought to perform any work on the modified scope.” she further averred that lists its main address as being in washington, d.c., and it is undisputed that reasonable trier of fact could conclude that perrin could have reasonably system. parsons had prepared an initial bid to be the lead contractor for the genuinely believed and relied upon perrin’s statements and promises. allegedly


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