                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00026-CV


JOE PAT RICKETT                                                       APPELLANT

                                         V.

LYNN W. LESIKAR                                                         APPELLEE


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          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                        MEMORANDUM OPINION1
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                                  I. Introduction

      In four issues, Appellant Joe Pat Rickett complains that the trial court erred

by ruling against him on his quantum meruit claim. We affirm.

                      II. Factual and Procedural History

      In December      2005, after     a discussion about fees        and project

specifications, Appellee Lynn W. Lesikar hired Rickett to perform seismic data
      1
      See Tex. R. App. P. 47.4.
interpretation services for his oil and gas business. Lesikar testified that he had

asked Rickett to do the seismic interpretation and to give him a report on it.

      In March 2007, Lesikar gave Rickett the seismic data for analysis. The

following August, after performing a computer analysis and having phone

discussions with Lesikar, Rickett tried to meet with Lesikar to provide an oral

report of his findings. At that time, according to Rickett, Lesikar told him that he

would select a drilling site within ninety days. Unable to obtain a meeting with

Lesikar, Rickett delivered his final work product materials—twenty-seven contour

maps and six seismic lines, but no written report2—to Lesikar‘s secretary on July

18, 2008, and received a receipt confirming delivery. Lesikar testified that he

could not read a seismic map, was not an expert at seismic interpretation, and

depended on experts to interpret seismic data. He stated that he received no

benefit or use from the materials.

      Rickett sued Lesikar under two alternate theories—suit on open account

and quantum meruit—seeking $3,146.45 for services rendered.3 After a bench

trial, the trial court issued the following findings of fact pertinent to this appeal:

      6. [Rickett‘s] testimony was not credible as to the amount of time
      spent, the services rendered, or whether a complete written seismic
      report was required.

      2
        Rickett denied agreeing to a written report, indicating that his standard
practice was to provide an oral report, and he testified that he told Lesikar that
there would be an additional cost for a written report. Lesikar never received a
report, written or oral.
      3
       Rickett does not appeal on his open account claim.

                                            2
      7. The parties agreed in December 2005 that [Rickett] would
      provide a complete written seismic interpretation in a timely manner.

      8. [Rickett] did not complete the seismic interpretation until June of
      2007.

      9. [Rickett] did not deliver the complete written seismic interpretation
      until July 2008, a year after he completed [it] and two and a half
      years after the parties‘ initial meeting.

      10. Delivery of the complete written seismic interpretation was not
      timely.

      11. [Lesikar] did not accept or use the work of [Rickett].

The trial court issued the following conclusions of law pertinent to this appeal.

      4. In order to prove an action on quantum meruit, a party must
      prove that it provided valuable services or materials; that the
      services were provided for the defendant; that defendant accepted
      the services; and that the defendant had reasonable notice that the
      plaintiff expected compensation for the services or material.

      5. [Rickett] did not carry his burden under any theory and is not
      entitled to recover.

                               III. Legal Sufficiency

      In four issues, Rickett complains that the trial court erred by (1) ―failing to

find that Rickett provided valuable services to Lesikar,‖ (2) ―failing to find that the

services of Rickett were provided to Lesikar,‖ (3) ―failing to find that Lesikar

accepted the services from Rickett,‖ and (4) ―failing to find that Lesikar had

reasonable notice that Rickett expected compensation for the services rendered.‖

We construe his issues as challenges to the legal sufficiency of the evidence to




                                          3
support the findings upon which the trial court based its conclusion that Rickett

did not carry his burden on his quantum meruit challenge.

A. Standard of Review

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury‘s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court‘s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury‘s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

                                         4
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005). If a party is attacking the legal sufficiency of an adverse finding on

an issue on which the party had the burden of proof, and there is no evidence to

support the finding, we review all the evidence to determine whether the contrary

proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690

(Tex. 1989).

      ―In a bench trial, the trial court is the sole judge of the credibility of the

witnesses, assigns the weight to be given their testimony, may accept or reject all

or any part of their testimony, and resolves any conflicts or inconsistencies in the

testimony.‖ Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort

Worth 2009, no pet.) (quoting Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—

Dallas 2008, no pet.).     As a reviewing court, ―we may not pass upon the

credibility of the witnesses or substitute our judgment for that of the trier of fact,

even if a different answer could be reached upon review of the evidence.‖ Id.

      Conclusions of law may not be challenged for factual sufficiency, but they

may be reviewed to determine their correctness based upon the facts. AMX

Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex. App.—Fort

Worth 2009, no pet.) (op. on reh‘g); Dominey v. Unknown Heirs & Legal

Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005,

no pet.).

B. Quantum Meruit

                                          5
      In his third issue, Rickett argues that the trial court erred by failing to find

that Lesikar accepted Rickett‘s services.       Rickett complains that there is no

evidence that Lesikar ―ever refused or questioned in any manner the services of

Rickett during the period these services were provided,‖ and that there is ―no

evidence to indicate a rejection of Rickett‘s services by Lesikar.‖

      This court has previously stated,

            Quantum meruit is an equitable remedy which does not arise
      out of a contract but is independent of it. Generally, a party may
      recover under quantum meruit only when no express contract
      covering the services or materials furnished exists. This remedy ―is
      based upon the promise implied by law to pay for beneficial services
      rendered and knowingly accepted.‖ Recovery in quantum meruit is
      available when nonpayment for the services rendered would ―result
      in an unjust enrichment to the party benefitted by the work.‖ To
      recover under quantum meruit a claimant must prove 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.

Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198–99 (Tex. App.—

Fort Worth 2006, no pet.) (internal citations omitted)).

      Rickett and Lesikar were the only witnesses at trial. Rickett testified that

Lesikar‘s secretary received the work from him but that he was never able to give

Lesikar his oral report.4 Lesikar stated that he depended on experts for seismic


      4
        Rickett testified that none of his clients had ever asked for a written report,
that in his ten years as a consultant he had always given his clients oral reports,
and that at the parties‘ initial meeting in December 2005, ―the word ‗written‘
report was never used.‖ He added that when he spoke with Lesikar on the
                                          6
information reading, that he did not know how to read Rickett‘s maps, that they

confused him, and that he did not get any benefit or use from them.

      In fact finding number 6, the trial court found that Rickett‘s testimony was

not credible as to the services rendered, as it was entitled to do. See Liberty

Mut. Ins. Co., 295 S.W.3d at 777. And in fact finding number 11, the trial court

found that Lesikar did not accept or use Rickett‘s work. Fact finding number 11

is supported by Lesikar‘s testimony set out above, as well as Rickett‘s admission

that Lesikar never designated a drilling location—the reason Lesikar sought

Rickett‘s services.

      As stated above, the requirement is that the ―services and materials were

accepted by the person sought to be charged, used and enjoyed by him.‖

Residential Dynamics, 186 S.W.3d at 198–99 (emphasis added). There was

sufficient evidence in the record for the trial court to find that Rickett‘s testimony

was less credible than Lesikar‘s with regard to the services Rickett rendered, and

for it to determine whether the services were valuable to Lesikar and whether

Lesikar accepted or used them.5 See id.; see also Carr v. Austin Forty, 744




phone, Lesikar ―mentioned something about a written report.‖ Rickett stated that
he told Lesikar, ―If you can agree to pay me, then I‘ll—the written report is really
no big deal. I‘ll just write you a report; I‘ll be glad to do that. It‘s no problem.‖
Lesikar never received any report, oral or written, from Rickett.

      5
       Rickett testified that the maps‘ color coding was arbitrary and there just to
help the reader visualize the highs and lows of the terrain. That is, on one map,
yellow could represent a certain contour that it might not represent on the next
                                          7
S.W.2d 267, 272–73 (Tex. App.—Austin 1987, writ denied) (―To prevail on a

quantum meruit claim, the plaintiff must establish that the services were valuable

from the perspective of the defendant.‖). Therefore, we overrule Rickett‘s third

issue and hold that the trial court did not err by determining that he failed to prove

his quantum meruit claim. Because of our disposition of this issue, we need not

address Rickett‘s remaining issues. See Tex. R. App. P. 47.1.

                                  IV. Conclusion

      Having overruled Rickett‘s dispositive issue, we affirm the trial court‘s

judgment.



                                                    BOB MCCOY
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DELIVERED: October 14, 2010




map. Rickett stated that he offered many times to meet with Lesikar and assist
him in interpreting the data but that Lesikar would not call him back.

                                          8
