       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING



                                     NO. 03-18-00526-CV


                                   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



                           MEMORANDUM OPINION


              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.


       1   We hold Kam to the same standards as licensed attorneys and require him to comply
with the applicable laws and rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.
2005) (per curiam). To do otherwise would give pro se litigants an unfair advantage over
litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.
1978). We do, however, construe the issues raised in Kam’s brief liberally. See Tex. R. App. P.
38.9; Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.).
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


       2  Tony Hardt entered into a written contract with Karedia in June 2013, in which Karedia
agreed to pay a sum certain to Hardt, and Hardt agreed to act as the general contractor on the
construction project. Karedia owned the property and gave the “whole project, including all the
design and everything” to Hardt.
       3 Karedia testified that he did not remember the “exact date but maybe August or July or
something [of 2014]” in response to the question “when was the last time that [he] actually had
contact with [Hardt].” Evidence at trial showed that Karedia paid Hardt around $350,000, and
Karedia testified that he paid “100 percent” of Hardt’s bill.
       4   Hardt is not a party on appeal.
       5 The payor of the checks was Nakiba Enterprises, Inc. In his answer and verified denial,
Karedia alleged that he was acting as the agent of Nakiba Enterprises when he contracted
with Hardt.


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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 plaintiff’s right of recovery” or “if the plaintiff

admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action.”

Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).




       6  Karedia testified at trial that Hardt provided the “wrong trusses”—metal ones and not
steel ones—which required further design work; that Hardt did not ask for additional money for
the redesign; and that Karedia had “already paid [Hardt] for the professional fee.” Kam testified
that Karedia “wanted to have a new roof system, a new bar joist system with bar joist and steel
beams and not the light gauge steel trusses that [Hardt] had actually bought, purchased, and
delivered to the site.”
       7  As a preliminary matter, Karedia asks this Court to dismiss Kam’s appeal without
considering his issues because Kam filed his appellant’s brief on January 18, 2019, and not on
January 14, 2019. This Court granted Kam’s motion for extension of time and filed his brief.
We decline to revisit this ruling.


                                                3
               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)




                                                 4
(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 plaintiff’s 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
                                                 5
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



       8
           Kam has not asserted that any of the exceptions to the general rule apply. See Truly
v. Austin, 744 S.W.2d 934, 936–37 (Tex. 1988) (discussing exceptions to general rule that
express contract bars recovery under theory of quantum meruit).
                                                 6
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.


       9   During direct examination, Kam testified:


       In May of 2014 on or about May 14th, I got a call from Tony Hardt and he said he
       was a contractor for the Boomers in Liberty Hill. And he said that he had
       provided steel trusses for that project and delivered them to the site and the owner
       did not want the steel trusses that were delivered. There was, apparently, a
       miscommunication at the time of the contract and, apparently, there were no
       drawings. Just a written texted contract. And so Tony said that the owner wanted
       to have a new roof system, a new bar joist system with bar joist and steel beams
       and not the light gauge steel trusses that Tony had actually bought, purchased, and
       delivered to the site.


       And that was on May 14th. And then on May 22nd, I got another e-mail from
       Tony that gave me -- let me back up a second. On the May 14th, I did give Tony
       a quote for the design drawings for that new work. On May 22nd, Tony sent me
       another e-mail that gave a layout of the Boomers that would assist me in the
       design. On May 23rd, Tony sent me an e-mail requesting what the owner had
       wanted a roof system. And I received that on May 23rd, and I told him that the
       roof system that we had quoted would be comparable to this. And at that time,
       Tony said go ahead and just do the design. By May 29, 2014, we produced a set
       of drawings.


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.) (“The elements of a valid oral contract are (1) an offer,
(2) an acceptance in strict compliance with the terms of an offer, (3) a meeting of the minds,
(4) a communication that each party consented to the terms of the contract, and
(5) consideration.”).

       Kam also testified that he had an oral contract with Hardt during cross examination:

       Q.   Now, Mr. Kam, you entered into an agreement with Mr. Hardt; is that correct?
       A.   He’s the one that made the initial call, yes.
       Q.   Did you ever enter into a written contract with Mr. Hardt?
       A.   No.

            ***
                                                7
                   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 extra work”); see City of Keller,

168 S.W.3d at 815 (observing that undisputed evidence may become “conclusive when a party

admits it is true”).

                   Based on our review of the evidence, we conclude that Kam failed to present

evidence to raise a fact issue essential to his right of recovery under quantum meruit—the




       Q. . . . So the only way that you could have a contract with Hardt is either in writing or
verbally; is that correct?
       A. Yes.
       Q. And you chose the verbal way, right?
       A. Yes.

             ***

       Q. Okay. So what we got here then, in sum, Mr. Kam, is you went ahead and wound up
doing an oral agreement with a person [Hardt] that you never worked with before that you now
find out is a crook, right?

        A. Well, I can’t prove the last part but the first part of your phrase is correct.
        10 Consistent with his position to the trial court, Kam expressly states the terms of his
agreement with Hardt in his briefing to this Court. In his recitation of the facts, Kam states that
he told Hardt “that [his] fee for structural drawings and shop drawing review would be $2,500
for the redesigned roof system”; that Hardt “authorized [him] to produce the drawings”; and that
he “completed the drawings for the roof redesign and provided them to Tony Hardt.”
                                                   8
evidence was undisputed that Kam undertook “‘redesign’ of the roof” for Hardt pursuant to an

express contract between Kam and Hardt. See Prudential Ins., 29 S.W.3d at 77 (observing that

directed verdict is proper when “plaintiff fails to present evidence raising a fact issue essential to

the plaintiff’s right of recovery” and when “plaintiff admits or the evidence conclusively

establishes a defense to the plaintiff’s cause of action”); see also Galliford, 254 S.W.3d at 459,

462–63 (concluding that exceptions did not apply to allow subcontractor to recover under theory

of quantum meruit from owner who hired contractor to construct restaurant and that trial court

erred by entering judgment premised on quantum meruit). Thus, Kam has not demonstrated

based on a theory of quantum meruit that the county court erred when it granted directed verdict

in favor of Karedia.11


Unjust Enrichment

               A party may recover under the cause of action of unjust enrichment when a

person “has obtained a benefit from another by fraud, duress, or the taking of an undue

advantage.” Heldenfels Bros., 832 S.W.2d at 41; see Galliford, 254 S.W.3d at 460 (explaining

that “[u]njust enrichment is an independent cause of action” (citing HECI Expl. Co. v. Neel,

982 S.W.2d 881, 891 (Tex. 1998))). In this case, even if we assume that Kam preserved his




       11  To the extent that Kam argues that Hardt was acting as the agent for Karedia, Kam did
not present any evidence during trial of a principal-agent relationship between Karedia and Hardt
with respect to Kam’s contract with Hardt. See IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597
(Tex. 2007) (“Texas law does not presume agency, and the party who alleges it has the burden of
proving it.”); Harding Co. v. Sendero Res., Inc., 365 S.W.3d 732, 742 (Tex. App.—Texarkana
2012, pet. denied) (noting that “essential element of the principal-agent relationship is
the alleged principal’s right to control the actions of the alleged agent” (quoting
Townsend v. University Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App.—Texarkana 2002,
pet. denied))).


                                                  9
argument for appellate review that “[t]his is a case of unjust enrichment,”12 Kam’s express

contract with Hardt forecloses this claim for the same reason that he does not have a quantum

meruit claim. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683–84 (Tex. 2000)

(explaining that unjust enrichment claims are based on quasi-contract and that there is no

recovery under a quasi-contract theory “when a valid, express contract covers the subject matter

of the parties’ dispute”); Freeman v. Harleton Oil & Gas, Inc., 528 S.W.3d 708, 740 (Tex.

App.—Texarkana 2017, pet. denied) (discussing unjust enrichment theory of recovery, which is

“predicated on the absence of an express contract controlling the circumstances”); Zapata Corp.

v. Zapata Gulf Marine Corp., 986 S.W.2d 785, 788 (Tex. App.—Houston [1st Dist.] 1999, no

pet.) (“When, as here, there is no express contract controlling the circumstances, a party may

seek to recover under unjust enrichment.”).

               Further, we observe that Kam did not present any evidence that Karedia obtained

a benefit from Kam “by fraud, duress, or the taking of an undue advantage.” See Heldenfels

Bros., 832 S.W.2d at 41; see also Johnson v. Maund Auto. Grp., No. 03-03-00730-CV,

2004 Tex. App. LEXIS 7167, at *10–11 (Tex. App.—Austin Aug. 12, 2004, pet. denied) (mem.

op.) (discussing elements of unjust enrichment and concluding that Johnson had not identified

actionable conduct by Maund that would support “taking of ‘unfair advantage’”); Villarreal

v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.—San Antonio, 2004, pet. denied)

(discussing “taking of an undue advantage” and explaining that unjust enrichment is not proper


       12  Kam raised “unjust enrichment” for the first time in his “Request for Rehearing” to the
county court following the directed verdict, and his argument appears to have been directed to a
quantum meruit claim. See Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (concluding that “language used in the pleading indicates
[subcontractor]’s claim against [owner] is a quantum meruit claim founded on unjust enrichment,
rather than an independent cause of action for unjust enrichment”).
                                               10
remedy “because it ‘might appear expedient or generally fair that some recompense be afforded

for an unfortunate loss’ to the claimant” (quoting Heldenfels Bros., 832 S.W.2d at 42)). The

undisputed evidence was that both Karedia and Kam were harmed when Hardt disappeared

without completing the project or paying Kam.13 Thus, Kam’s argument concerning unjust

enrichment does not support his position that the trial court erred by granting directed verdict in

favor of Karedia.


                                           Conclusion

               For these reasons, we overrule Kam’s issues and affirm the county

court’s judgment.



       13   For example, when Karedia sent Kam an email in November 2014 asking for help,
there was no evidence that Karedia was aware that Hardt had not paid Kam for the drawings that
he had provided eight months earlier. Kam provided the drawings to Hardt in May 2014, and he
testified as follows as to the assistance that he provided to Karedia in November:


       So on May 29th, we produced the drawings. And then from June 27th to July 3rd,
       2014, Tony sent us some shop drawings. And shop drawings are drawings that
       fabricate or produces based on the structural drawings. And then the fabricator
       drawings will be used to actually go into the shop to make the elements for the
       building. So we did initial review for the shop drawings at Tony’s request in late
       June to early July. And then we heard nothing on the building.


       And then in November 19th, 2014, Mr. Karedia e-mailed me and had some more
       shop drawing information which included some of the stuff that Tony had sent
       earlier but also included more information. So it was a complete set of shop
       drawings in November 19, 2014. And Mr. Karedia’s instructions to us, Tom, can
       you help—Hi, Tom. Can you please check attached file and give advice. Thanks
       for your help, Bud. And he leaves a phone number. So we checked those shop
       drawings at the request of Mr. Karedia and returned those to him so he could have
       his material fabricated for his building.



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                                             __________________________________________
                                             Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana
 Dissenting Opinion by Justice Triana

Affirmed on Motion for Rehearing

Filed: December 13, 2019




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