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Kam v. Karedia

Court of Appeals of Texas, Third District, Austin

December 13, 2019

Thomas Kam, Appellant
v.
Badruddin Karedia, Appellee

          FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-16-007167, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

         ON MOTION FOR REHEARING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          Melissa Goodwin, Justice

         Thomas Kam, acting pro se, appeals from the county court's judgment that granted directed verdict in favor of Badruddin Karedia. 1 For the following reasons, we affirm.

         Background

         In May 2014, Tony Hardt, who was the general contractor on a construction project in Liberty Hill, Texas (the property), entered into an oral contract with Kam, in which Hardt agreed to pay Kam to perform engineering services for the roof system on the project. Kam completed the engineering services, providing drawings for the roof to Hardt in May 2014, and sent an invoice in November 2014 to Hardt and Karedia, the owner of the property, in the amount of $2, 500. Pursuant to a written contract between Karedia and Hardt, [2] however, Karedia already had paid Hardt the full amount owed to him for the project in May 2014, but Hardt had not completed the project, and, at some point in the summer of 2014, Karedia did not have further contact with Hardt.[3]

         After Kam did not receive payment for the invoiced amount from Karedia or Hardt, Kam filed suit in justice court against them. He sought payment of $2, 500 for "unpaid invoice for engineering services." Kam did not obtain service of process on Hardt, and Hardt did not enter an appearance in the case.[4] After the justice court ruled in favor of Karedia, Kam appealed to the county court, and the case was tried to a jury. The two witnesses to testify at trial were Kam and Karedia. The exhibits included the written contract between Karedia and Hardt; proof of payments from Karedia to Hardt;[5] Kam's drawings; and emails exchanged among Karedia, Hardt, and Kam. After Kam rested, Karedia moved for directed verdict on the grounds that there was no privity of contract between Kam and Karedia and that quantum meruit did not apply. The county court granted directed verdict for Karedia, and this appeal followed.

         Analysis

         In the section of his brief titled "Issues for Review," Kam argues that "[t]his is a case of unjust enrichment and quantum meruit" and that Karedia "failed to pay 'any one' for revised roof design services which he requested, used, and received great benefit from."[6] Kam argues that Karedia did not pay Hardt or Kam for the "revised roof design" that Kam provided and requests that this Court render judgment awarding him $2, 500 for his services and reimbursement of his court costs.[7]

         Standard of Review

         A directed verdict for a defendant may be proper "when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery" or "if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action." Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

         We review a trial court's directed verdict de novo. John v. Marshall Health Servs., Inc., 91 S.W.3d 446, 450 (Tex. App.-Texarkana 2002, pet. denied). When reviewing a directed verdict based on insufficiency of the evidence, we apply the legal sufficiency standard of review. Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994); see also Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011) (describing standard of review of directed verdicts); City of Keller v. Wilson, 168 S.W.3d 802, 807, 823, 827-28 (Tex. 2005) (stating standard of review for legal sufficiency and explaining that test is same for directed verdicts, summary judgments, and appellate no-evidence review). While we view the evidence in the light most favorable to Kam, it was Kam's burden at trial as the plaintiff to plead the basis of his claims for relief and then submit evidence to create a fact issue on each element of those claims. See Exxon Corp., 348 S.W.3d at 220 (explaining that appellant court views evidence in light most favorable to person appealing from directed verdict and decides whether "there is any evidence of probative value to raise an issue of material fact on the question presented"); see also Tex. R. Civ. P. 47 (stating pleading requirements for claims for relief).

         With these well-established standards of review in mind, we turn to Kam's arguments that are premised on quantum meruit and unjust enrichment.

         Quantum Meruit

         "Quantum meruit is an equitable theory of recovery based on an implied agreement to pay for benefits received." Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 402 (Tex. App.-Dallas 2006, no pet.) (citing Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)); see Truly v. Austin, 744 S.W.2d 934, 936-37 (Tex. 1988) (discussing when plaintiff is permitted to recover in quantum meruit). The elements of a quantum meruit claim require proof that:

1) valuable services were rendered or materials furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.

Bashara v. Baptist Mem'l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985) (internal quotation and citation omitted). To satisfy the second element, it is not enough that a plaintiffs efforts benefit the person from whom he seeks damages; they must have been undertaken "for the person sought to be charged." Truly, 744 S.W.2d at 937 (citing Bashara, 685 S.W.2d at 310).

         If an express contract covers the services or materials at issue, recovery under quantum meruit generally is prohibited. Id; Gentry, 188 S.W.3d at 402-03; see Pepi Corp. v. Galliford, 254 S.W.3d 457, 462-63 (Tex. App-Houston [1st Dist] 2007, pet. denied) (noting that general rule that "presence of an express contract bars recovery under quantum meruit" "not only applies when a plaintiff is seeking to recover in quantum meruit from the party with whom he expressly contracted, but also when a plaintiff is seeking to recover 'from a third party foreign to the original but who benefitted from its performance'" (quoting Hester v. Friedkin Cos., 132 S.W.3d 100, 106 (Tex. App-Houston [14th Dist.] 2004, pet. denied))). A plaintiff, however, may recover the reasonable value of services rendered and accepted if "the services rendered and accepted are not covered by the contract." Gentry, 188 S.W.3d at 403 (citing Truly, 744 S.W.2d at 936-37); see Galliford, 254 S.W.3d at 462 ("A plaintiff seeking to recover the reasonable value of services rendered or materials supplied is precluded from recovering in quantum meruit if there is an express contract that covers those services or materials and no exception to the general rule applies.").[8] Kam appears to seek relief from this Court on this basis.

         Kam argues that the services he provided-"redesign" of the roof-were not covered by the contract between Karedia and Hardt and that Karedia did not pay Hardt or Kam for those services. As support for this position, Kam relies on Karedia's email to Kam in November 2014, asking him: "can you please check attach file and give advice." Kam also argues that, in his testimony, Karedia "confirmed he never paid Hardt for the roof redesign effort" and "asked Hardt to initiate the process to redesign the roof for steel beam and bar joists"; and that "[t]he only interpretation of the role of Hardt can be that he was acting as a 'agent' for [Karedia] to achieve the requested roof design." Further, Kam focuses on evidence that he provided his drawings after the last payment from Karedia to Hardt had been made in May 2014.

         We begin by observing that Kam's pleaded claim to the county court was a breach of contract claim-he sought to recover $2, 500 based on an "unpaid invoice for engineering services." Consistent with his pleaded claim, Kam's position to the county court was-and the evidence was undisputed-that Kam had an oral contract with Hardt to provide the drawings for the roof system in exchange for a quoted price. See Truly, 744 S.W.2d at 937; Galliford, 254 S.W.3d at 462-63; see also Lopez v. Bucholz, No. 03-15-00034-CV, 2017 Tex.App. LEXIS 3071, at *17 (Tex. App-Austin Apr. 7, 2017, no pet.) (mem. op.) (stating elements of valid oral contract). Kam testified about the agreement that he reached with Hardt to provide engineering services, and he conceded that he did not have a contract with Karedia and that the November 2014 email from Karedia to him was not a contract.[9] Further, although Karedia had a copy of Kam's drawings, Karedia testified that he obtained the drawings from Hardt, and Kam did not provide controverting evidence.

         Thus, the evidence-particularly Kam's testimony-conclusively proved that Kam's services were not undertaken "for the person sought to be charged"-Karedia-but for Hardt and that an express contract-the contract between Kam and Hardt-covered those services.[10]See Truly, 744 S.W.2d at 937; Galliford, 254 S.W.3d at 462; Gentry, 188 S.W.3d at 403; see also Lopez, 2017 Tex.App. LEXIS 3071, at *21-24 (explaining that evidence raised fact issue as to quantum meruit claim because there was evidence that subcontractor performed "extra work" at owner's direction without involvement of contractor, who averred that he "had 'no involvement in directing or agreeing to pay' for the ...


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