Reversed and Rendered and Majority and Dissenting Opinions filed
November 14, 2013.




                               In The

                Fourteenth Court of Appeals

                        NO. 14-12-00506-CV


     HOUSTON MEDICAL TESTING SERVICES, INC., Appellant
                                 V.

                     RAND MINTZER, Appellee


                        NO. 14-12-00524-CV


                     RAND MINTZER, Appellant

                                 V.
      HOUSTON MEDICAL TESTING SERVICES, INC., Appellee



        On Appeal from the County Civil Court at Law Number 4
                         Harris County, Texas
                     Trial Court Cause No. 943798
                                      OPINION

       Appellant/cross-appellee Houston Medical Testing Services, Inc. (the
Service) sued Rand Mintzer seeking recovery under theories of quantum meruit
and contract. The jury found that the parties had a contract and that Mintzer did
not ―fail to comply with [it],‖ but awarded the Service damages in quantum meruit.
The trial court signed a judgment on the verdict. Because the existence of a
contract bars recovery in quantum meruit, we reverse and render judgment that the
Service take nothing.1

                                        BACKGROUND

       Mintzer is an attorney. One of the cases Mintzer handled was the defense of
a man charged with sexually assaulting a minor. State forensic tests showed that
Mintzer‘s client fathered a child with the client‘s minor step-daughter.                    Both
Mintzer and his client believed a successful defense would require challenging
these test results. Mintzer‘s staff contacted the Service to arrange a review of the
State‘s tests. The Service arranged the review, which confirmed the State‘s results.
It later sent Mintzer multiple invoices requesting payment, but Mintzer did not pay
the Service. Instead, he forwarded these invoices to his incarcerated client, who
also did not pay.

       This appeal arises from the Service‘s suit seeking payment from Mintzer
under theories including breach of contract and, in the alternative, quantum meruit.
The trial focused upon whether Mintzer or his client was liable for the Service‘s

       1
         The Service has filed a cross-appeal seeking attorney‘s fees based on the judgment in its
favor. Because we reverse this judgment and render a judgment in favor of Mintzer, the Service
is not entitled to fees. See In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 172 (Tex.
2013) (―Civil Practice and Remedies Code chapter 38 . . . allows a prevailing party to ‗recover
reasonable attorney‘s fees . . . .‘‖ (emphasis added) (quoting Tex. Civ. Prac. & Rem. Code Ann.
§ 38.001 (West 2008)). We therefore overrule the Service‘s issues in its cross-appeal.

                                                2
work. Mintzer contended he was not liable because he acted as the agent of a
disclosed principal, his client, and ―an agent of a disclosed principal is not liable in
contract.‖ Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411, 423 (Tex. App.—Dallas
2001, pet. denied).

      The trial court‘s charge asked the jury to determine Mintzer‘s personal
liability for both breach of contract and quantum meruit. In response to Question
1, the jury found that Mintzer and the Service had a contract ―with regard to the
provision of DNA testing services,‖ but it answered ―No‖ when asked in Question
2 whether Mintzer failed to comply with the contract. In answer to Question 6
regarding quantum meruit, the jury found that the Service performed compensable
work for Mintzer—that is, in the words of the instruction, that ―valuable services
[we]re rendered or materials furnished for [Mintzer] who knowingly accept[ed]
and use[d] them and . . . should [have] know[n] that the [Service] expect[ed] to be
paid for the work.‖ The jury also found in Question 7 that the reasonable value of
the work was $2,200.

      Mintzer moved for judgment notwithstanding the verdict (JNOV), arguing
among other things that the Service was barred from recovering in quantum meruit
because the jury found an agreement between Mintzer and the Service with regard
to the testing services. The trial court denied the motion and signed a judgment on
the verdict. This appeal followed.

                                      ANALYSIS

      In two issues, Mintzer argues that the trial court erred by awarding the
Service damages in quantum meruit. First, he contends that the jury‘s findings
regarding the contract preclude quantum meruit liability. Second, he argues that
insufficient evidence supports the jury‘s quantum meruit findings. Because we
sustain Mintzer‘s first issue, we need not address his second.
                                           3
I.    Standard of review

      Mintzer challenged the jury‘s verdict in a motion for JNOV, which the trial
court denied. JNOV is proper when the evidence is conclusive and one party is
entitled to prevail as a matter of law, or when a legal principle precludes recovery.
Autry v. Dearman, 933 S.W.2d 182, 190 (Tex. App.—Houston [14th Dist.] 1996,
writ denied). The latter circumstance can occur when the record demonstrates that
a theory of liability found by the jury is barred as a matter of law. Id. at 191.

II.   Because the jury found that a contract covered the testing services, as a
      matter of law, the Service cannot recover in quantum meruit.
      Quantum meruit is an equitable remedy based on an implied promise to pay
for benefits received. Bluelinx Corp. v. Texas Constr. Sys., Inc., 363 S.W.3d 623,
627 (Tex. App.—Houston [14th Dist.] 2011, no pet.). To recover in quantum
meruit, a claimant must prove that (1) valuable services were rendered or materials
furnished; (2) for the person sought to be charged; (3) and were accepted by the
person sought to be charged; (4) under circumstances that reasonably notified the
person sought to be charged that the plaintiff, in performing the services or
furnishing the materials, expected to be paid by the person sought to be charged.
Weaver v. Jamar, 383 S.W.3d 805, 811 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). The measure of recovery for quantum meruit is the reasonable value of the
services. Hudson v. Cooper, 162 S.W.3d 685, 688 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).

      Quantum meruit implies a contract in circumstances where the parties
neglected to form one, but equity nonetheless requires payment for beneficial
services rendered and knowingly accepted. In re Kellogg Brown & Root, Inc., 166
S.W.3d 732, 740 (Tex. 2005). As a result, ―[a] party generally cannot recover
under quantum meruit where there is a valid contract covering the services or

                                           4
materials furnished.‖ Id.; see also Truly v. Austin, 744 S.W.2d 934, 936 (Tex.
1988); Gen. Homes, Inc. v. Denison, 625 S.W.2d 794, 796 (Tex. App.—Houston
[14th Dist.] 1981, no writ) (describing the rule as ―well settled law‖).2 When the
parties themselves create a valid contract, there can be no recovery under a contract
implied by law. Union Bldg. Corp. v. J & J Bldg. & Maint. Contractors, Inc., 578
S.W.2d 519, 520 (Tex. Civ. App.—Houston [14th Dist.] 1979, writ ref‘d n.r.e.).
The jury must determine any contested fact issues that would bear on a quantum
meruit claim, but the ultimate question ―of how much, if any, equitable relief
should be awarded, must be determined by the trial court.‖ Hudson, 162 S.W.3d at
688.

       Here, the jury found in Question 1 that the parties had an agreement with
regard to the provision of testing services, and neither party challenges that finding
on appeal. Because a contract covered the services at issue, the Service cannot
recover in quantum meruit. Instead, the contract defines the Service‘s rights.

       Moreover, because the jury answered ―no‖ when asked whether Mintzer
failed to comply with the contract, and did not answer the damages question
regarding breach of contract, the Service cannot recover under a breach of contract
theory. The Service also has not challenged this finding on appeal. As a result, the
Service should take nothing. Cf. Christus Health v. Quality Infusion Care, Inc.,
359 S.W.3d 719, 725 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (where jury
implicitly found that express contract existed, trial court erred by awarding
quantum meruit damages); Kittyhawk Landing Apartments III v. Anglin Constr.
Co., 737 S.W.2d 90, 94 (Tex. App.—Houston [14th Dist.] 1987, writ ref‘d n.r.e.)
(where existence of contract barred quantum meruit and plaintiff failed to submit

       2
         There are exceptions to this general rule, see Bluelinx Corp., 363 S.W.3d at 629, but
neither party contends that they apply here.

                                              5
contract claim to jury, judgment was rendered that plaintiff take nothing).

      The Service disagrees with this analysis, arguing that the jury‘s response to
Question 1 does not necessarily represent a finding that an express contract
covered the subject of the parties‘ agreement. The jury answered ―Yes‖ to this
question, which asked: ―Did [the Service] and RAND MINTZER have an
agreement with regard to the provision of DNA testing services?‖ The Service
contends this does not amount to a finding that an ―express contract‖ existed
because: (1) whatever agreement the jury found was not a ―contract‖ as it did not
include a consideration term; and (2) the jury could have found that the parties had
an ―implied‖ contract, which the Service distinguishes from an ―express‖ contract
and which, the Service contends, would not bar its quantum meruit claim.

      To address these arguments, which we ultimately reject, we must review the
jury‘s findings. When reviewing jury findings, we must try to interpret them in a
manner that supports the judgment. W & F Transp., Inc. v. Wilhelm, 208 S.W.3d
32, 44 (Tex. App.—Houston [14th Dist.] 2006, no pet.). To do so, we may
examine the record in order to ascertain the jury‘s intent. Id. We may not,
however, speculate about what the jury intended in reaching a particular verdict or
create certainty out of jury findings that are ambiguous. Id.

      A.     The Service failed to preserve its argument that the agreement
             found by the jury was unsupported by consideration.
      In its first argument, the Service contends that the agreement found by the
jury could not have been supported by consideration. Its argument is as follows:
The jury found that there was an agreement and failed to find a breach even though
undisputed evidence established that Mintzer did not pay for the Service‘s work;
thus, whatever the agreement‘s substance, it could not have required the payment
of consideration and therefore is not a contract barring recovery in quantum meruit.

                                          6
      As an initial matter, it was unnecessary for the jury to find that consideration
supported the parties‘ agreement because the question of consideration, while
sometimes based upon ultimate facts found by the jury, is generally a question of
law. Schepps Grocery Co. v. Burroughs Corp., 635 S.W.2d 606, 608 (Tex. App.—
Houston [14th Dist.] 1982, no writ). Moreover, to the extent the Service contends
there was legally insufficient evidence of consideration, it failed to preserve this
issue in the trial court. Following the jury‘s verdict, Mintzer filed his JNOV
motion arguing that the jury‘s finding of a contract precluded recovery in quantum
meruit. If the Service wanted to eliminate the legal effect of the contract finding to
clear the way for a quantum meruit recovery, the preferable course would have
been to file a motion to disregard the contract finding as unsupported by legally
sufficient evidence because consideration was lacking. But the Service never
argued below that the contract found by the jury was unsupported by consideration.
Because the Service failed to raise this issue in the trial court, it is not preserved for
our review. See Tex. R. App. P. 33.1; Watts v. Oliver, 396 S.W.3d 124, 132 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (―As a general rule, an appellant must
first complain to the trial court by a timely request, objection, or motion and obtain
a ruling as a prerequisite for appellate review of that complaint.‖).

      Even if the Service had preserved this issue, however, we conclude that it
fails on the merits. The undisputed evidence at trial showed that if a contract
existed, it was supported by consideration. The parties both understood someone
would pay for the Service‘s work. The Service‘s theory was that Mintzer would
pay. Mintzer‘s theory was that only Mintzer‘s client—not Mintzer himself—was
obliged to pay. See Robert L. Crill, Inc., 76 S.W.3d at 423.




                                            7
         As part of the contract question, the jury was instructed:

         When an attorney contracts with a third party for the benefit of a
         client for goods or services to be used in connection with the
         attorney‘s representation of a particular client and the third party is
         aware of these facts, the attorney is not liable on the contract unless he
         expressly or impliedly assumes some type of liability.3

Based upon this instruction, the jury could have found that although Mintzer did
contract with the Service, he did so for his client‘s benefit without assuming
personal liability. Such a finding would be consistent with evidence offered at trial
and also explains the jury‘s answers to the contract questions: ―Yes,‖ the Service
and Mintzer had an agreement regarding the provision of testing services, and
―No,‖ Mintzer did not ―fail to comply with [it]‖ because the jury concluded that
only his client was liable. See id. Regardless of whether Mintzer or his client was
bound to pay under the contract, however, the existence of a contract covering the
services at issue bars recovery in quantum meruit. See Hester v. Friedkin Cos.,
132 S.W.3d 100, 107 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(holding existence of contract barred quantum meruit recovery against nonparty to
the contract).

         In sum, there was no evidence that the Service‘s agreement to provide
testing services was ―a mere promise of a gift.‖ See Roark v. Stallworth Oil &
Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). Rather, the undisputed evidence
established that if there was a contract, it was supported by consideration. We
therefore reject the Service‘s argument that the contract was unsupported by
consideration and does not bar recovery in quantum meruit.



         3
             No party challenges the correctness of this instruction, so we express no opinion on that
issue.

                                                    8
       B.      Even if the jury found an “implied-in-fact” rather than an
               “express” contract, that finding bars recovery in quantum meruit.
       The Service also argues that the contract found by the jury in Question 1 was
likely an ―implied contract.‖           The Service contends that, unlike an ―express
contract,‖ an implied contract does not preclude the application of quantum meruit.

       The law recognizes different types of implied contracts. Quantum meruit is
one type of ―implied-in-law‖ or ―quasi-‖ contract.4                  Excess Underwriters at
Lloyd’s, London v. Frank’s Casing Crew & Rental Tools, Inc., 246 S.W.3d 42, 49
(Tex. 2008). These contracts, properly speaking, ―[are] not . . . contract[s] at all.‖
Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (quoting
Calamari et al., The Law of Contracts, § 1–12 (3d ed. 1987)). No agreement is
required, so the parties need not have a meeting of the minds. See id. Instead, the
law imposes obligations ―to do justice even though it is clear that no promise was
ever made or intended.‖ Id. Because the imposition of an implied-in-law contract
is ultimately a legal question for the court, see Hudson, 162 S.W.3d at 688, we do
not understand the Service to argue that the jury found an implied-in-law contract


       4
          In Ramirez Co. v. Housing Authority of City of Houston, we described the different
types of contracts, saying, ―[T]here is the implied[-]in[-]fact contract, called quantum meruit,
wherein there is no express agreement but the conduct of the parties implies an agreement to
contract from which an obligation in contract exists.‖ 777 S.W.2d 167, 173 n.12 (Tex. App.—
Houston [14th Dist.] 1989, no writ). Ramirez Co.‘s description of quantum meruit as a species
of implied-in-fact contract contradicts language in several supreme court opinions. See, e.g., In
re Kellogg Brown & Root, Inc., 166 S.W.3d at 740 (―Quantum meruit is an equitable remedy that
is based upon the promise implied by law to pay for beneficial services rendered and knowingly
accepted.‖ (quoting Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.
1990)) (internal quotation marks omitted)); Campbell v. Nw. Nat’l Life Ins. Co., 573 S.W.2d 496,
498 (Tex. 1978) (―[T]he right to recover in quantum meruit does not grow out of the contract,
but is independent of it. This right is based upon [a] promise implied by law . . . .‖); Davidson v.
Clearman, 391 S.W.2d 48, 50 (Tex. 1965) (same). We also note that the treatise Ramirez Co.
cited for support does not characterize quantum meruit as a type of implied-in-fact contract. See
17 C.J.S. Contracts §§ 2, 4, 6. Because Ramirez Co.‘s treatment of quantum meruit departs from
these authorities, we do not view it as controlling.

                                                 9
in this case.

       Instead, the Service appears to contend that the jury could have found an
―implied-in-fact‖ contract, which is really just a contract.             ―[T]he distinction
between an express and an implied[-in-fact] contract is of little importance, if it
can be said to exist at all.‖ Haws & Garrett Gen. Contractors, Inc. v. Gorbett
Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972). The only difference is that
an express contract ―arises when the contractual terms are stated by the parties,‖
and an implied-in-fact contract ―arises from the acts and conduct of the parties, it
being implied from the facts and circumstances that there was a mutual intention to
contract.‖ Id. In both cases, ―[the] contractual duty is imposed by reason of a
promissory expression.‖ Id.; see also Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009). Thus, ―[t]he legal effect of [express
and implied-in-fact] contracts are identical; the distinction is based on the way in
which mutual assent is manifested.‖           1 Williston, A Treatise on the Law of
Contracts § 1:5 (Richard Lord ed., 4th ed. 1990); see also Restatement (Second)
Contracts § 4 cmt. a (1981), quoted in Mann Frankfort Stein & Lipp Advisors, Inc.,
289 S.W.3d at 850.

       As a result, although many Texas cases speak of an ―express‖ contract
barring recovery in quantum meruit,5 courts have recognized that contracts in
which some or all of the terms are implied-in-fact will also bar recovery in
quantum meruit.6 As Williston explains, ―in situations involving true contracts‖—


       5
         E.g., Fortune Prod. Co., 52 S.W.3d at 684; Truly, 744 S.W.2d at 936. These cases did
not address whether an implied-in-fact contract will bar quantum meruit.
       6
         See, e.g., Pepi Corp. v. Galliford, 254 S.W.3d 457, 462 & n.4 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied) (where party denied existence of a contract, but contended he had
agreed to do work and expected recompense, contract barring quantum meruit existed); Double
Diamond, Inc. v. Hilco Elec. Coop., Inc., 127 S.W.3d 260, 267, 268 (Tex. App.—Waco 2003, no
pet.) (where summary judgment established that either an express or implied contract existed,
                                             10
those created by ―promise or mutual assent of the parties, express or implied‖—
―the parties‘ rights are determined by law and by the terms of the contract; by
contrast, when quasi-contract [i.e. quantum meruit] is involved, liability is
determined by principles of equity and justice and the intent of the parties is
immaterial.‖ Williston, supra § 1:6; see Ferrous Prods. Co. v. Gulf States Trading
Co., 323 S.W.2d 292, 296–97 (Tex. Civ. App.—Houston, 1959), aff’d, 332 S.W.2d
310, 312 (Tex. 1960).7 Thus, ―[a] court properly resorts to quasi-contract only in
the absence of an express contract or contract implied-in-fact.‖ Williston, supra §
1:6.8

        This rule makes jurisprudential sense because ―mutual assent‖ is present in a
contract ―[r]egardless of whether [it] is based on express or implied promises,‖ 9
and courts will not override this mutual assent by imposing a different bargain on
the parties in quantum meruit.             Excess Underwriters at Lloyd’s, London, 246
S.W.3d at 50; Dallas Elec. Supply Co. v. Branum Co., 185 S.W.2d 427, 429 (Tex.
1945). Moreover, a contrary rule that only express contracts in which every single
term is stated by the parties can bar recovery in quantum meruit would be
extremely difficult to administer. Under that rule, parties seeking an alternative


quantum meruit was barred); see also WPS, Inc. v. Expro Americas, LLC, 369 S.W.3d 384, 410–
11 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (H. Brown, J., dissenting) (agreeing with
majority that conduct of parties demonstrated a contract, and noting that quantum meruit would
therefore generally be precluded); Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex. Civ. App.—
Tyler 1973, writ ref‘d n.r.e.) (in case where evidence would have supported, but did not
conclusively establish, existence of a contract, court noted in dicta that, had the jury returned a
finding that a contract existed, quantum meruit claim would have been barred).
        7
         See also New Econ. Capital, LLC v. New Mkts. Capital Grp., 881 A.2d 1087, 1095
(D.C. 2005); Weichert Co. Realtors v. Ryan, 608 A.2d 280, 285 (N.J. 1992).
        8
        See also David Dittfurth, Restitution in Texas: Civil Liability for Unjust Enrichment, 54
S. Tex. L. Rev. 225, 246 (2012) (―[T]he quantum meruit cause of action allows recovery only
when no valid, express or implied-in-fact agreement exists between the parties.‖).
        9
            Mann, Frankfort, Stein & Lipp Advisors, Inc., 289 S.W.3d at 850.

                                                 11
recovery in quantum meruit would have an incentive to contend that at least one
term of the contract—however minor or inconsequential to the dispute—was
supplied by the parties‘ conduct rather than by an oral or written statement. We
see no reason to force courts or juries to engage in such murky and burdensome
line-drawing exercises.10

       In this case, the Service contends the jury‘s finding that a contract existed
does not bar recovery in quantum meruit because the jury likely found an implied-
in-fact contract. We agree it was possible for the jury to answer ―Yes‖ to Question
1 if it found either an express or an implied-in-fact contract.11 This possibility does
not affect our analysis, however. For the reasons just discussed, even if the jury
did find a contract based in whole or part upon the ―acts and conduct of the
parties‖ rather than ―contractual terms . . . stated by the parties,‖ Haws & Garrett
Gen. Contractors, 480 S.W.2d at 609, the terms of the contract would still govern
the parties‘ remedies and quantum meruit would still be barred. We therefore
reject the Service‘s argument that it could recover quantum meruit damages
notwithstanding an implied-in-fact contract.

       10
           Cf. Dallas Joint Stock Land Bank v. Colbert, 127 S.W.2d 1004, 1008 (Tex. Civ.
App.—Eastland 1939) (noting plaintiff‘s alternative liability theories based upon (1) an express
contract, (2) ―an express contract, except as to one provision relating to the rate of compensation
which was implied (in fact),‖ and (3) quantum meruit), rev’d, 150 S.W.2d 771 (Tex. 1941).
       11
           Our dissenting colleague attributes this possibility to an instruction accompanying
Question 1 that we quoted previously, which explains that an attorney may ―expressly or
impliedly‖ assume liability. But a standard instruction from the Texas Pattern Jury Charges also
accompanied Question 1, and it likewise provides for a ―Yes‖ answer if the jury finds an
implied-in-fact contract. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern
Jury Charges: Business, Consumer, Insurance, Employment PJC 101.3 (2012) (―In deciding
whether the parties reached an agreement, you may consider what they said and did in light of
the surrounding circumstances . . . .‖ (emphasis added)). If the Service were correct that an
implied-in-fact contract does not bar recovery in quantum meruit, then an affirmative finding in
response to the pattern question and instructions on contract formation would be insufficient to
trigger the bar—a result that would likely come as a surprise to courts and litigants across Texas.
As explained above, however, we conclude that such a finding does trigger the bar.

                                                12
       Our dissenting colleague contends that we are rejecting the Service‘s
argument based on error that Mintzer did not preserve in the trial court or argue on
appeal.     We respectfully disagree because our analysis relies on the jury‘s
unchallenged finding that a contract existed, just as Mintzer has throughout. In the
trial court, Mintzer‘s motion for JNOV asserted that the trial court should
―disregard the jury‘s answers to the quantum meruit questions because those
answers are inconsistent as a matter of law with the jury‘s answers to the contract
questions‖—particularly the jury‘s finding ―that there was an agreement‖ between
the parties. ―Based on the jury‘s answers,‖ Mintzer contended, ―the [Service] is
barred from recovery in this case under the theory of quantum meruit.‖                     See
Fortune Prod. Co., 52 S.W.3d at 683 (holding effect of contract on claim for unjust
enrichment is question of law).12

       Similarly, on appeal, Mintzer argues in his first issue that ―[t]he contract
found by the jury covers the same services alleged in the quantum meruit action‖
and thus bars the Service from recovering in quantum meruit. He also cites cases,
as he did in the trial court, holding that an express contract bars recovery in
quantum meruit. In its appellee‘s brief, the Service asserts in passing—and for the
first time in this litigation (as far as our record shows)—that the jury ―more likely‖
found an ―implied contract.‖13 Given the supreme court‘s consistent directive that
―appellate courts should reach the merits of an appeal whenever reasonably
possible,‖ Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008), we do not see how


       12
          We do not understand the dissent to contend that this argument could not be preserved
in a JNOV motion. The dissent points out that Mintzer included a footnote in his motion stating
that he did not concede the existence of a contract, but Mintzer did not move to disregard the
jury‘s finding of a contract. Rather, as the language quoted above shows, he sought to use that
finding to bar the Service from recovering in quantum meruit as a matter of law.
       13
        The Service cites no cases holding that the contract bar to quantum meruit does not
encompass implied-in-fact contracts, nor does it explain why that should be the rule.

                                              13
the Service‘s appellate characterization of the jury‘s finding can retroactively
―unpreserve‖ Mintzer‘s consistent position that this finding bars quantum meruit.
Accordingly, it is proper for this Court to consider Mintzer‘s position, and we
conclude that his position has merit as explained above.

                                   CONCLUSION

      Because the parties‘ contract bars recovery in quantum meruit, the trial court
erred in denying Mintzer‘s motion for JNOV. We therefore sustain Mintzer‘s first
issue, reverse the judgment, and render judgment that the Service take nothing.




                                      /s/    J. Brett Busby
                                             Justice


Panel consists of Chief Justice Frost and Justices Boyce and Busby (Frost, C.J.,
dissenting).




                                        14
