Court of Appeals of Texas, Third District, Austin
THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO.
C-1-CV-16-007167, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
MOTION FOR REHEARING
Justices Goodwin, Baker, and Triana
Melissa Goodwin, Justice
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.
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,
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
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. 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; 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.
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." 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.
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).
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).
these well-established standards of review in mind, we turn
to Kam's arguments that are premised on quantum meruit
and unjust enrichment.
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).
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."). Kam appears to seek relief from this
Court on this basis.
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.
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. 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.
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.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 ...