Opinion
05-22-01100-CV
07-06-2023
KELVIN DALE WASCOM, Appellant v. DAN BRUCE LEVERETT, STACY LEVERETT, AND PLACE, LLC, Appellees
On Appeal from the 272nd District Court Brazos County, Texas Trial Court Cause No. 20-000951-CV-272
Before Nowell, Goldstein, and Breedlove Justices.
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE.
Kelvin Dale Wascom appeals the trial court's adverse summary judgment order. In four issues, Wascom argues the trial court erred by granting summary judgment in favor of Dan Leverett, Stacy Leverett, and Place, LLC. We affirm in part and reverse in part; we remand this cause to the trial court for further proceedings.
This appeal originally was filed in the Tenth Court of Appeals. The appeal was transferred to this Court pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001. Because this is a transferred case, we apply precedent of the Tenth Court of Appeals to the extent it differs from our own. See Tex. R. App. P. 41.3; Smith v. Yellowfin Loan Servicing Corp, No. 05-21-00306-CV, 2023 WL 2596070, at *1 (Tex. App.-Dallas Mar. 22, 2023, no pet.) (mem. op.).
The record and briefs include references to Place, LLC and place llc. For consistency, we refer to the entity as Place.
Standard of Review
We review a trial court's grant of summary judgment de novo. Helix Energy Sols. Group, Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017). To prevail on a traditional motion for summary judgment, "a movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." Id. The movant bears the burden of proof in a traditional motion for summary judgment, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When a movant conclusively negates an essential element of a cause of action, the movant is entitled to summary judgment on that claim. Id. In a traditional summary-judgment motion, the movant must state specific grounds, and if the movant conclusively negates at least one essential element of a cause of action or conclusively establishes all the elements of an affirmative defense, the movant is entitled to summary judgment. Tex.R.Civ.P. 166a(c); see KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Gold, 522 S.W.3d at 431.
Factual Background
In November 2014, Wascom and Stacy began discussing a real estate development company that she and Dan were forming. When Stacy asked Wascom if he would be interested in joining them, they "began brainstorming what it was each one of us wanted in our general partnership." Ideas included retail developments, apartment complexes, master planned communities, office buildings, medical office buildings, hotels, government facilities, and industrial properties.
Because Dan and Stacy share a surname, we refer to them by their first names.
They agreed Wascom's contribution to the partnership would be to "go to the capital markets, bring financing for the projects we were going to be developing"; he would not be required to make any financial contribution. Stacy's contribution was the "ability to conceptualize ideas to a development stage, to supervise the construction of these projects and to supervise the startup and operations and occupancy of these projects" and networking. Dan was going to bring the same skill set as Stacy did, but Stacy and Dan would work on separate projects. In early 2015, both Dan and Stacy had full-time employment while Wascom was unemployed and looking for a new position. Wascom's declaration states that once the parties agreed to form the partnership, he ceased looking for other employment. In September 2015, Dan left his employment and "joined our venture. At that time, there were three equal partners" who agreed to divide the partnership's profits in thirds.
Wascom testified that he and Stacy agreed in November 2014 to form a general partnership "that it would be one-third, one-third, one-third on everything, and that we would get started." In February 2015, Wascom met with Dan and "shook hands on forming our three-person general partnership. We - - the two of us, Dan and I, then went up to Stacy's office apartment and met with her, and we both together informed Stacy that the three of - - that we all agreed that the three of us would form a general partnership, and we were all very happy on that day." After the February 2015 meeting, the next step to bring their plans to fruition was to start a project. Between February 2015 and November 2016, Wascom provided financing advice for at least five potential projects the partners considered.
Although they agreed the partnership should be properly documented, they decided to wait to do so until they secured their first project. Wascom's interrogatory responses state the parties agreed to create a business name "in time for the written partnership agreement." The partnership was never documented.
On December 7, 2015, Dan filed a certificate of formation with the Texas Secretary of State and created Place, LLC. Dan is the sole member and managing member of Place and has been since its inception. Dan averred Wascom never had an ownership interest in Place, was not an employee of Place, did not make any capital contributions to Place, and did not receive an IRS Form K-1 from Place. However, Wascom provided services to Place as an independent consultant, and Place issued IRS Form 1099s to record his consulting income. Dan further averred that Place had no income through 2019 and he did not receive any profit from Place before 2020.
Wascom testified he did not receive any income from any source between February 2015 and December 2017. During that time, the parties were paying their own day-to-day expenses; the venture was funded "[o]ut of each of our pockets." In the future, they planned the partnership would start paying the expenses.
In December 2017, the bank loan for Place's first big project closed, and Place received a developer fee. Wascom testified that in December 2017, each partner received a distribution from the developer fee, and this was the first source of revenue for the partnership. Wascom recalled he received about $35,000 from the December 2017 distribution. However, Dan averred Wascom was paid $12,500 in consulting fees in 2017, $63,000 in 2018, and $12,000 in 2019. Wascom also was paid $6,250 on February 7, March 6, March 19, March 29, April 2, and May 8, 2018. Wascom called these payments his "monthly expense checks" although he did not submit receipts for the expenses; rather, he testified, he used the money to pay for "personal items" such as housing and property taxes. Wascom testified: "And on the other hand, I'm also paying out my expenses that I need for being a general partner of Place." During his deposition, Wascom was shown a QuickBooks print out of payments listing the payee as "Kelvin Wascom Fee" and the "Category" as "Office: Consulting Fee." Wascom did not dispute the payments were made by Place.
Wascom's declaration states that, in December 2017, Dan asked a lawyer to draft a company agreement for Place; "I had nothing to do with this. I did not tell [the attorney] to include me as a 1/3 member of Place LLC, so the only person who could have told her that would be" Dan or Stacy. The unsigned agreement states its effective date is December 7, 2015, and the agreement is between Dan, Stacy, and Wascom. Exhibit A to the unsigned agreement lists Dan, Stacy, and Wascom as the members and reflects their sharing ratios as 33 percent each. Wascom testified he signed this agreement in November 2018 in triplicate and gave copies to Dan and Stacy. In December 2017, May 2018, and November 2018, Dan and Stacy assured Wascom they would sign the agreement. They never signed the agreement.
On August 2, 2018, Dan sent an email to Wascom stating, in part: "I have never had anyone like you to work with . . . I have been depending on your experience to take us to the finish line on [a project] and have tried as much as possible to keep you off [another project] so you can focus. . . You are the best partner I have ever had." Wascom's declaration states Dan ordered business cards for him that identified him as the "Managing Partner" of Place. Dan's card lists him as the President and Stacy's cards show she is a Vice President of Place.
In March 2019, an employee suggested everyone take a personality assessment. Although Wascom did not want to particulate, he took the assessment. On April 8, 2019, a meeting was held at which Dan, Stacy, Wascom, and two other people were present. Dan and Wascom had a disagreement during the meeting, and Wascom alleges Dan then announced: "You were not honest on the personality test." Wascom left the building and never returned.
Wascom sued Dan, Stacy, and Place for breach of partnership agreement/redemption of partnership interest, breach of membership agreement, and, in the alternative, quantum meruit. He sued Dan for defamation per se. Dan, Stacy, and Place filed a traditional motion for summary judgment on all claims, which the trial court granted.
The trial court granted summary judgment on Wascom's claim for breach of membership agreement. Wascom alleged he was a member of Place and Dan and Stacy wrongfully expelled him from Place; he sought damages for the fair value of his membership interest in Place. On appeal, Wascom did not raise any issues related to the adverse summary judgment on this claim and, in his reply brief, Wascom states he does not contest the summary judgment on this claim.
Analysis
A. Breach of Partnership Agreement
In his first issue, Wascom seeks reversal of the order granting summary judgment on his claim for breach of the partnership agreement. Wascom's first amended petition alleges he was a member of a general partnership with Dan and Stacy, Dan and Stacy wrongfully expelled him from that partnership, and he did not receive the fair value of his partnership interest; his first amended petition does not name the alleged general partnership.
Wascom asserts the trial court's summary judgment order is erroneous because (1) the statute of limitations does not bar his claim; (2) the formation and operation of Place as a limited liability company with Dan as the sole manager does not disprove his allegation of a separate three-person partnership; (3) a fact issue exists concerning Wascom's partial performance as an exception to the statute of frauds; and (4) Place's failure to post annual profits does not conclusively prove that his partnership interest was valueless. In response, appellees argue (1) the statute of limitations bars Wascom's claim; (2) Place is not a partnership and does not have any partners; (3) Wascom's claim is barred by the statute of frauds; and (4) Wascom's partnership interest does not have value.
Dan and Stacy also assert the summary judgment should be affirmed because Wascom presented no evidence to establish he was expelled from the partnership and Wascom's declaration filed in his response to the motion for summary judgment undermines his claims of ownership. However, these arguments were not raised as grounds for summary judgment, and we cannot affirm a summary judgment on the basis of an un-asserted ground. See Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). Dan and Stacy also raise several arguments that the summary judgment should be affirmed based on the alleged membership agreement; however, Wascom did not appeal the summary judgment granted on that claim.
1. Statute of Limitations
Wascom's claim for breach of contract is subject to a four-year statute of limitations. See Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 707 (Tex. 2021); see also Tex. Civ. Prac. & Rem. Code § 16.051. A cause of action accrues and the limitations period begins to run "when facts come into existence that authorize a party to seek a judicial remedy." Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). Wascom filed suit in April 2020. Statute of limitations is an affirmative defense, see Tex. R. Civ. P. 94, which appellees bore the burden to conclusively establish, see KCM Fin. LLC, 457 S.W.3d at 79.
Appellees' motion for summary judgment asserts Wascom's breach of partnership claim accrued on December 7, 2015, when Dan filed the certificate of formation creating Place and listing Dan as its sole member, and Wascom failed to bring his claim within the four-year limitations period. Implicit in appellees' argument is that the partnership Wascom alleges he formed with Dan and Stacy could not exist contemporaneously with Place and the existence of Place forecloses the existence of the alleged partnership. We disagree.
It is undisputed the parties never signed a document containing the terms of the alleged partnership. However, Wascom testified he, Dan, and Stacy agreed to form a partnership in February 2015, and they agreed they would be equal partners with each owning a one-third share of the partnership. They agreed not to immediately document their agreement. Similar factual statements appear in Wascom's declaration. Wascom's testimony is some evidence the parties agreed to form a partnership with each person owning an equal share, and there is no evidence that partnership must be Place.
Appellees have not cited any authority to support their implicit argument that Dan's formation of Place breached the alleged oral agreement between Wascom, Dan, and Stacy to form a three-person partnership. Place and the alleged partnership could coexist; appellees cite no authority indicating the existence of Place forecloses the existence of the alleged partnership. Accordingly, we conclude appellees failed to meet their summary judgment burden to prove the filing of the certificate of formation for Place caused the accrual of Wascom's breach of partnership claim.
2. Statute of Frauds
Appellees moved for summary judgment on the ground that Wascom's breach of partnership claim is barred by the statute of frauds because the alleged partnership agreement is not in writing and the contract could not be completed within one year. In response, Wascom argued that, at the time of formation, the oral partnership agreement was performable within one year and, separately, his partial performance of the contact is an exception to the statute of frauds.
An "agreement which is not to be performed within one year from the making of the agreement" is not enforceable unless it is in writing and signed by the person to be charged with the agreement. Tex. Bus. & Com. Code § 26.01(a), (b)(6). The statute of frauds is an affirmative defense in a breach of contract suit and renders a contract that falls within its purview unenforceable. Yee v. Anji Techs., LLC, No. 05-18-00662-CV, 2019 WL 2120290, at *4 (Tex. App.-Dallas May 15, 2019, no pet.) (mem. op.) (citing Tex. Bus. & Com. Code § 26.01(a); S&I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 854 (Tex. App.-Dallas 2011, no pet.)); see also Tex. R. Civ. P. 94.
Once a 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); Yee 2019 WL 2120290, at *6. Whether an exception to the statute of frauds applies is generally a question of fact. Yee 2019 WL 2120290, at *6 (citing Hairston v. S. Methodist Univ., 441 S.W.3d 327, 334 (Tex. App.-Dallas 2013, pet. denied)).
"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." Id. at *7 (quoting Berryman's S. Fork, Inc. v. J. Baxter Brinkmann Int'l Corp., 418 S.W.3d 172, 192 (Tex. App.-Dallas 2013, pet. denied)). 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." Id. (quoting Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439-40 (Tex. App.-Dallas 2002, pet. denied)). 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." Id. (quoting Breezevale Ltd., 82 S.W.3d at 440). "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." Id. (quoting Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 426-27 (Tex. 2015) (per curiam)).
The parties agree there is no written partnership agreement between them. Wascom's testimony shows the purpose of the partnership was to develop commercial real estate. While appellees provided evidence that the real estate development projects could not be completed within one year and, therefore, any unwritten agreement violates the statute of frauds, Wascom provided evidence to the contrary. Wascom's declaration states the partnership "would prospect any suitable commercial real estate development projects, including those that could be completed in under one year." He also stated that, over the course of his career, he has arranged financing for many real estate development projects that were completed in under one year. He listed more than twenty projects that he worked on during his career that went "from conception to completion in less than a year." Wascom's statements are some evidence that the purpose of the partnership, to develop commercial real estate, could have been performed within one year. Accordingly, appellees did not meet their burden to conclusively establish their statute of frauds affirmative defense.
However, even if appellees had met their burden to prove the statute of frauds applies to the alleged oral partnership agreement, Wascom presented evidence to raise a fact issue about whether he partially performed the agreement. When Wascom met with Stacy in November 2014, he was seeking an employment opportunity. In February 2015, he entered into a handshake deal with Stacy and Dan to form a real estate development partnership with each person owning a one-third interest. Once the parties agreed to form the partnership, Wascom stopped looking for other employment and began working full time to launch the new venture. Wascom's declaration states:
When I began working with Stacy and Dan in September 2015, all parties agreed to pay their own expenses - such as mileage, cell phone, things like that - and not take a draw or other compensation for as long as possible. I worked for free until 2018, when I had exhausted my liquid savings and needed a monthly draw to pay my bills. Dan Leverett and Stacy Gray Leverett agreed to pay me a monthly stipend of $2,000 per month. My total compensation in 2019 was $63,000 and from January through April 2019 was $12,000, both well below market value for a person of my experience in real estate finance. Had I know that Dan Leverett and Stacy Gray Leverett would take the position that I was merely a consultant and not an equal partner, I would not have worked for free in 2015, 2016, and 2017, nor would I have worked at below market rate in 2018 and 2019. I only did this because it was necessary to keep the partnership going.
Wascom testified that between February 2015 and November 2016, he provided financing advice for a half dozen projects they worked on. Wascom explained the partnership did not receive any significant revenue until December 2017, the venture was funded "[o]ut of each of our pockets," and he did not receive any income from this business or another venture from February 2015 until December 2017.
The evidence Wascom presented raises a fact issue regarding whether he partially performed the partnership agreement and whether the work he did between 2015 and 2019 was unequivocally referable to the partnership agreement. Wascom's evidence shows he worked on behalf of the partnership for several years either without compensation or at below-market compensation in order to fulfill the purposes of and his obligations under the parties' alleged partnership agreement. We conclude Wascom raised a fact issue as to the applicability of the partial performance exception to the statute of frauds, and, therefore, the statute of frauds cannot be the basis upon which to affirm the trial court's summary judgment.
3. Redemption Value
Appellees' motion for summary judgment asserts Wascom's partnership interest is worthless because, in the years Wascom worked for Place, the company operated at a loss. Presumably, through this argument, appellees seek to show their entitlement to summary judgment by negating the damages element of Wascom's claim.
Appellees contend Place had no income through 2019 and operated at a loss until 2020, and they provided evidence to support this proposition. However, appellees provided no evidence that the alleged three-person partnership operated at a loss. Assuming their argument that an ownership interest is worthless if the entity operated at a loss is meritorious, their argument and evidence do not address whether the alleged partnership operated at a loss. Accordingly, they presented no evidence that the alleged partnership operated at a loss at all relevant times and, accordingly, was worthless. Additionally, appellees point to no authority supporting their implicit argument that ownership in an entity that posts losses for several years is "worthless" and, accordingly, there can be no damages when the partnership agreement is breached. We also have found none. Because the premise of appellees' argument is without legal authority and they presented no evidence to support their argument, we conclude appellees did not meet their summary judgment burden to negate the damages element of Wascom's claim.
Having considered and rejected each of appellees' summary judgment arguments, we conclude the trial court erred by granting summary judgment on Wascom's claim for breach of the alleged partnership agreement. We sustain Wascom's first issue.
B. Quantum Meruit
In his third issue, Wascom seeks reversal of the summary judgment on his quantum meruit claim. Wascom alleges he provided valuable real estate financial analytical services to appellees from February 2015 through April 2019, and appellees accepted those services with reasonable notice that Wascom expected compensation. By expelling him from the partnership and Place without tendering the fair value of his partnership and membership interests, appellees repudiated those agreements, and, through his claim, he seeks compensation for the value of services he provided from 2015 through 2019.
On appeal, Wascom argues summary judgment was not appropriate because appellees did not conclusively prove he was paid for the same services on which he bases his compensation claim. Additionally, he argues, appellees' affirmative defense of laches cannot support the summary judgment. In response, appellees argue (1) Wascom's claim for wages from 2015 and January through March 2016 is time barred; (2) Wascom's claim for wages after April 7, 2016, fails because he was paid for his services; and (3) Wascom's quantum meruit claim is barred by laches.
1. Statute of Limitations
Appellees moved for summary judgment on Wascom's quantum meruit claim for services he allegedly provided before April 7, 2016, or four years before he filed suit, based on the statute of limitations. The statute of limitations for an action in quantum meruit is four years. Albert Lee Giddens, APLC v. Cuevas, No. 14-16-00772-CV, 2017 WL 4159263, at *3 (Tex. App.-Houston [14th Dist.] Sept. 19, 2017, no pet.) (mem. op.) (citing Williams v. Khalaf, 802 S.W.2d 651, 657 (Tex. 1990) (op. on reh'g)). On appeal, Wascom concurs that he "filed suit on April 7, 2020. So, limitations would not bar any claim to compensation for services performed after April 7, 2016." We agree with the parties. The four-year statute of limitations bars Wascom's quantum meruit claim for services provided before April 7, 2016.
2. Payment for Services
In their motion for summary judgment, appellees argued the remaining portion of Wascom's quantum meruit claim fails because he was paid for his services. In response, Wascom asserts the small stipends he received do not bar his claim. Quantum meruit is an equitable theory of recovery which is based on an implied agreement to pay for benefits received. Martin v. Cottonwood Creek Constr., LLC, 560 S.W.3d 759, 764 (Tex. App.-Waco 2018, no pet.); see also Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018) (quantum meruit is an equitable remedy based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted"). The purpose of this common law doctrine is to prevent a party from being "unjustly enriched" by "retain[ing] the benefits of the ... performance without paying anything in return." Hill, 544 S.W.3d. at 732 (quoting Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988)).
To recover under a quantum-meruit claim, a claimant must prove: (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) those services and materials were accepted by the person sought to be charged, and were used and enjoyed by him; and (4) the person sought to be charged was reasonably notified that the plaintiff performing such services or furnishing such materials was expecting to be paid by the person sought to be charged. Id. 732-33. A party generally cannot recover under a quantum-meruit claim when there is a valid contract covering the services or materials furnished. Id. at 733. The measure of damages for recovery under a quantum-meruit theory is the reasonable value of the work performed and the materials furnished. Id.
Appellees maintain Wascom was paid for the services he rendered. In his affidavit, Dan stated Wascom was paid $12,500 for his consulting services in 2017, $63,000 for his consulting services in 2018, and $12,000 for his consulting services through April 2019. Wascom was issued an IRS Form 1099 for each of these years and was reimbursed for his business expenses. Wascom did not dispute the payments were made by Place. Therefore, according to appellees, because Place paid Wascom for his services, his quantum meruit claim fails.
As discussed above, Wascom has asserted a claim for breach of an oral partnership agreement that is separate from any alleged breach of the Place membership agreement. Accordingly, if Wascom performed valuable services for the alleged partnership, but he was paid for consulting services provided to Place, those payments are separate from any payment he may be owed for services provided to the alleged partnership. Additionally, Wascom's affidavit stated he began working for the alleged partnership in 2015; however, Dan's affidavit only discusses payments made to Wascom beginning in 2017. While limitations bars any claim Wascom has for compensation for services performed before April 7, 2016, there is no indication in the summary judgment record that Wascom was paid for any services rendered from April 7, 2016 through December 31, 2016.
We conclude appellees failed to conclusively negate a single essential element of a Wascom's cause of action for quantum meruit, and appellees are not entitled to summary judgment on this ground.
3. Laches
Appellees also argued in their motion for summary judgment that Wascom's quantum meruit claim is barred by laches. Laches is an affirmative defense. Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 414 (Tex. App.-Waco 2010, pet. denied) (citing Ft. Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.1964); Tex. R. Civ. P. 94). The two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Id. As the summary judgment movants, appellees bore the burden to conclusively establish both elements of laches, but they established neither. See Tex. R. Civ. P. 166a(c); KCM Fin. LLC, 457 S.W.3d at 79. In their motion, appellees argued Wascom never told Dan he expected to be paid $200,000 per year for his services and, had he done so, Dan would not have hired Wascom, Wascom did not complain about the compensation he received, Place earned no income during the relevant years, there were no full-time employees of Place, and Wascom accepted his compensation for years without complaint. While appellees support their statements with evidence, these propositions do not conclusively establish Wascom unreasonably delayed asserting his rights and that appellees made a good faith change to their position to their detriment because of the delay. We conclude appellees failed to meet their summary judgment burden to conclusively establish the elements of laches and this affirmative defense could not form the basis for the trial court granting their motion.
4. Conclusion
We sustain Wascom's third issue in which he argues the trial court erred by granting summary judgment on his claim for recovery in quantum meruit.
C. Waiver & Estoppel
In his fourth issue, Wascom argues the trial court erred by granting summary judgment because appellees did not conclusively prove their affirmative defenses of waiver, estoppel, and quasi-estoppel as a matter of law. See Tex. R. Civ. P. 94 (affirmative defenses). Appellees bore the burden to conclusively establish the elements of these affirmative defenses. See Tex. R. Civ. P. 166a(c); KCM Fin. LLC, 457 S.W.3d at 79.
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Ustanik, 320 S.W.3d at 412-13 (citing Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex. App.-Fort Worth 2005, no pet.)). Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or clearly established, the question becomes one of law. Id. (citing Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434). Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Id. (citing Jernigan, 111 S.W.3d at 156). There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Id. (citing Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434).
Appellees argue Wascom waived his breach of partnership claim because he knew in 2015 that Place was formed as a limited liability company with Dan as its sole member, but he was silent about the formation of Place as a single-member limited liability company and "failed to pay a third of the capital contributions or account for a third of the losses." Appellants also argue Wascom waived his quantum meruit claim because he was compensated on a regular basis. None of appellees' arguments address Wascom's breach of partnership claim. Appellees' arguments assume the existence of Place and the alleged three-person partnership are mutually exclusive when no evidence supports this assumption. Dan's formation of Place does not show Wascom waived his claim for breach of the alleged partnership because the two entities may be separate. Likewise, payments from Place to Wascom do not show Wascom accepted payments for his work on behalf of the alleged partnership in a manner that would equate to waiver of his quantum meruit claim. Appellees failed to meet their burden to conclusively prove Wascom waived his breach of partnership or quantum meruit claim.
Equitable estoppel is established when "(1) a false representation or concealment of material facts; (2) is made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations." Saddle Brook W. Apartments v. Sung Joon Jang, No. 10-11-00450-CV, 2013 WL 3927756, at *1 (Tex. App.-Waco July 11, 2013, pet. dism'd) (mem. op.) (quoting Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998)).
Quasi-estoppel is a term applied to certain legal bars such as ratification, election, acquiescence, or acceptance of benefits. C3 Venture Flint, LLC v. Blue Dog Holdings, Inc., No. 05-21-00863-CV, 2022 WL 17335687, at *7 (Tex. App.-Dallas Nov. 30, 2022, no pet.) (mem. op.) (citing Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.-Dallas 2011, pet. denied)). The doctrine precludes a person from asserting, to another's disadvantage, a right inconsistent with a position previously taken. Id. (citing Forney 921 Lot Dev. Partners I, L.P., 349 S.W.3d at 268). It applies when it would be unconscionable to allow someone to maintain a position inconsistent with one in which he or she acquiesced. Id. (citing Forney 921 Lot Dev. Partners I, L.P., 349 S.W.3d at 268). Unlike equitable estoppel, quasi-estoppel does not require a showing of a false representation or detrimental reliance. Id. (citing Forney 921 Lot Dev. Partners I, L.P., 349 S.W.3d at 268).
As to estoppel and quasi-estoppel, appellees argue Wascom's failure to assert he was not compensated at a fair market value rate is inconsistent with his claim for unpaid wages; the evidence shows he was compensated at a rate agreed to by the parties and issued corresponding 1099s. Appellees' arguments do not address any of the elements of estoppel or quasi-estoppel. As previously explained, Wascom's acceptance of payments from Place do not show he is estopped from asserting his claim to be compensated for work done on behalf of the alleged partnership. Appellees failed to meet their burden to conclusively prove the affirmative defenses of estoppel or quasi-estoppel.
We sustain Wascom's fourth issue.
D. Defamation Per Se
Wascom requests we reverse the trial court's order granting summary judgment on his claim for defamation per se because (1) Dan's statement that Wascom lied on his personality test is a matter of fact rather than opinion and (2) Dan made this statement after telling employees how important the test was for business, which raises a fact issue as to whether the statement damaged Wascom in his profession by leading fellow employees to question his commitment to the business. In response, appellees assert the statement about which Wascom complains is one of opinion, is not actionable, and is not defamatory per se.
A defamatory statement is one that tends to injure a person's reputation; such a statement is defamatory per se if it injures a person in the person's office, profession, or occupation. Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013). To maintain a defamation claim, the plaintiff must prove (1) the defendant published a false statement of fact, (2) the statement defamed the plaintiff, (3) the defendant acted negligently if the plaintiff is a private individual, and (4) the statement proximately caused damages. See Anderson v. Durant, 550 S.W.3d 605, 617-18 (Tex. 2018). For a defamation per se claim, a plaintiff is not required to prove the fourth element because the common law deems such statements so obviously hurtful that a jury may presume general damages. Anderson, 550 S.W.3d at 618. Whether a communication is defamatory is in the first instance a legal question for the court. Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020).
If a statement is not verifiable as false, it is not defamatory. Mazaheri v. Tola, No. 05-18-01367-CV, 2019 WL 3451188, at *2 (Tex. App.-Dallas July 31, 2019, pet. denied) (mem. op.) (citing Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013)). Even if a statement is verifiable as false, it does not give rise to liability if the "entire context in which it was made" discloses that it is merely an opinion masquerading as a fact. Id. (citing Backes v. Misko, 486 S.W.3d 7, 24 (Tex. App.-Dallas 2015, pet. denied)); see Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002) (whether to classify a statement as fact or opinion is based on statement's verifiability and entire context in which statement is made).
One statement is at issue: Dan's alleged representation that Wascom was not honest on a personality assessment. Dan allegedly made the statement after Wascom disagreed with Dan about whether the Place team members worked well together. Three other people were in a conference room with them when Dan allegedly made the statement.
The facts before us are similar to those in Hancock where the supreme court considered statements in a letter that a physician had a "reputation for lack of veracity" and "deals in half truths, which legally is the same as a lie" in the context of the physician allegedly violating a departmental policy on transferring patients from one physician to another. See Hancock, 400 S.W.3d at 63. The physician sued for defamation, the trial court granted a directed verdict that the letter was defamatory per se, and the court of appeals affirmed, "reasoning that accusations that someone is a liar are 'so obviously hurtful to the person aggrieved that no proof of [their] injurious character is required to make [them] actionable.'" Id. The supreme court reversed and explained the statements that the physician lacked veracity and dealt in half truths in the context they were made were not defamatory per se because "they do not injure [the physician] in his profession as a physician." Id. at 67. Further, the court stated, "[t]he specific trait of truthfulness is not peculiar or unique to being a physician," and the allegations the physician lacked veracity and dealt in half truths did not adversely affect his fitness for proper conduct as a physician. Id. The court found that the proper inquiry is whether "a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession." Id.
Wascom's declaration states he has "worked as a frontline analyst in commercial real estate development and acquisition, placing debt and equity financing in office, retail, industrial, hospitality, multi-family apartments, and self-storage properties." The specific trait of truthfulness is not peculiar or unique to Wascom's profession as he describes it. Dan's alleged statement did not accuse Wascom of lacking a peculiar or unique skill necessary for conduct in Wascom's profession, does not affect his fitness for proper conduct in that role, and does not injure Wascom in that profession. Finally, the statement does not reflect on Wascom's fitness to perform his profession. See Lipsky, 460 S.W.3d at 596 (remarks that adversely reflect on a person's fitness to conduct his business or trade are deemed defamatory per se).
We conclude the trial court did not err by granting summary judgment on Wascom's defamation per se claim. We overrule appellant's second issue.
Conclusion
We affirm the portion of the trial court's judgment granting summary judgment in favor of appellees on Wascom's defamation per se claim. In all other respects, we reverse the trial court's judgment granting summary judgment. We remand this cause to the trial court for further proceedings.
JUDGMENT
Justices Goldstein and Breedlove 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 AFFIRM that portion of the trial court's judgment granting summary judgment in favor of appellees on appellant's defamation per se claim. In all other respects, we REVERSE the trial court's judgment. We REMAND this cause to the trial court for further proceedings.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered.