Opinion issued November 21, 2012




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00566-CV
                           ———————————
    LOIS A. BENNETT, AS REPRESENTATIVE OF THE ESTATE OF
               NORMAN C. BENNETT, JR., Appellant
                                       V.
               SPECTRUM CONSTRUCTION, INC., Appellee



                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-70812



                         MEMORANDUM OPINION

      Lois Bennett, as representative of the estate of Norman C. Bennett, Jr.,

appeals from a take-nothing judgment in favor of Spectrum Construction following

a bench trial. In one issue, Lois argues that the trial court erred by rendering a
take-nothing judgment because, (1) her husband, Norman Bennett, had a personal

service contract with Spectrum Construction, which was terminated upon

Norman’s death, and (2) Norman was entitled to recover for work performed under

quantum meruit.

      We reverse and remand for a new trial.

                                    Background

      On June 6, 2003, Spectrum Construction and Norman Bennett signed a

subcontractor base agreement supplying terms for Norman to provide electrical

work on future jobs. Norman was a self-employed electrician doing business as

Bennett Electric Company.       The president of Spectrum Construction, Allen

Petrucciani, had hired Norman on many prior occasions.

      Around September 2006, Spectrum Construction had been hired to turn a

Schlozsky’s into a Vision Source. On September 28, 2006, Spectrum Construction

contracted with Norman to serve as the electrician on the Vision Source project.

At trial, Allen testified that part of the reason Spectrum Construction contracted

with Norman was on the basis of Norman’s skill and knowledge as an electrician.

He also said that Spectrum Construction tries “to hire the electrician who is best

suited for the project . . . and the project was most appropriate for Norman.”

      After he started work under his contract but before he completed the work,

Norman died of a heart attack. Lois was appointed as executor of Norman’s estate.


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Lois brought suit against Spectrum Construction, based on quantum meruit,

alleging that Spectrum Construction owed Norman for the time and services

provided before his untimely death.

      It is undisputed by the parties that Norman performed some work before his

death, though the parties did dispute the amount of work done and whether

Spectrum Construction could offset its costs for completing the electrical work

against Lois’s claim. Following a bench trial, the trial court rendered a take-

nothing judgment against Lois.

                                 Standard of Review

      When, as here, the trial court did not make findings of fact or conclusions of

law, we infer all facts necessary to support the judgment if they are supported by

the evidence. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574

(Tex. 2007). If a complete reporter’s record is part of the appellate record, the

legal and factual sufficiency of the trial court’s implied findings may be challenged

on appeal using the same standards of review applicable to a jury’s findings. Mays

v. Pierce, 203 S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.] 2006, pet.

denied).

      An appellant attacking the legal sufficiency of an adverse finding on an issue

on which she had the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.


                                         3
Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellant must show that there is

no evidence to support the fact finder’s finding and that the evidence conclusively

establishes the opposite of the finding.      See id.   The ultimate test for legal

sufficiency is whether the evidence would enable a reasonable and fair-minded fact

finder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005).

      When examining a legal sufficiency challenge, an appellate court reviews

the evidence in the light most favorable to the challenged finding and indulges

every reasonable inference that would support it. Id. at 822. We consider evidence

favorable to the finding if a reasonable fact finder could consider it, and disregard

evidence contrary to the finding unless a reasonable fact finder could not disregard

it. Id. at 827. In an appeal of a judgment rendered after a bench trial, we may “not

invade the fact-finding role of the trial court, who alone determines the credibility

of the witnesses, the weight to give their testimony, and whether to accept or reject

all or any part of that testimony.” Volume Millwork, Inc. v. W. Hous. Airport

Corp., 218 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

                                      Liability

      In the first part of her sole issue, Lois argues that the evidence establishes as

a matter of law that she can recover under quantum meruit against Spectrum

Construction. Specifically, she argues that (1) Norman had a personal service


                                          4
contract with Spectrum Construction, (2) the personal services contract was

terminated upon Norman’s death, and, accordingly, (3) she can recover under

quantum meruit.

      Lois sought to recover from Spectrum Construction under the theory of

quantum meruit. Quantum meruit is an equitable remedy based on the notion of an

implied contract preventing unjust enrichment. See City of Ingleside v. Stewart,

554 S.W.2d 939, 943 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e). To

recover under quantum meruit the

      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 [and] 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.

Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied).

      As a general rule, the presence of an express contract bars recovery under

quantum meruit. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex.

2005). It is undisputed that there was a contract between Norman and Spectrum

Construction concerning the work performed by Norman. The question, then, is

whether any exception applies to allow Lois to recover under quantum meruit.




                                          5
      The Supreme Court of Texas has recognized three exceptions to the general

rule that an express contract bars recovery under quantum meruit. “First, recovery

in quantum meruit is allowed when a plaintiff has partially performed an express

contract but, because of the defendant’s breach, the plaintiff is prevented from

completing the contract.” Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988).

There is no allegation or evidence in the record that Spectrum Construction

breached the contract first or in any way prevented Norman from completing the

contract. Accordingly, this exception does not apply.

      Second, “[r]ecovery in quantum meruit is sometimes permitted when a

plaintiff partially performs an express contract that is unilateral in nature.” Id. at

937. It is undisputed that the contract between Norman and Spectrum Construction

was bilateral. Accordingly, this exception does not apply.

      Third, a breaching plaintiff in a construction contract can recover the

reasonable value of services less any damages suffered by the defendant if the

defendant accepts and retains “the benefits arising as a direct result of the

[plaintiff’s] partial performance.” Id. The parties dispute whether Norman’s death

constitutes a breach of the contract. Central to this dispute is whether Norman’s

contract was a contract for personal services.

      “Under the principles of contract law, contractual obligations generally

survive the death of a party and bind his estate if the contract is capable of being

                                          6
performed by the estate representative.” Cardwell v. Sicola-Cardwell, 978 S.W.2d

722, 726 (Tex. App.—Austin 1998, pet. denied). A personal services contract, in

contrast, is “terminated by death.” Gilliam v. Kouchoucos, 340 S.W.2d 27, 28

(Tex. 1960). A personal services contract is one that “depends on the existence of

a particular person, . . . on the skill or character of the other party, or . . . on a

personal confidence between the parties.” Cardwell, 978 S.W.2d at 726; see also

Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895–96 (Tex. 1962) (holding

personal service contract is done personally by a particular individual versus a

contract for services performed by a corporation).

      Though Spectrum Construction contracted with the Bennett Electric

Company, it is a sole proprietorship. “A sole proprietorship does not have a

separate legal existence distinct from the operator of the business.” Garcia v. Shell

Oil Co., 355 S.W.3d 768, 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Accordingly, Spectrum Construction contracted with Norman individually.

      During trial, Allen stated that part of the reason Spectrum Construction

contracted with Norman was on the basis of his skill and knowledge as an

electrician.   Allen also testified that Spectrum Construction tries “to hire the

electrician who is best suited for the project . . . and the project was most

appropriate for Norman.” In addition, the record shows that Allen and Norman

had an ongoing work relationship and that Spectrum Construction regularly relied

                                          7
on Norman. Based on the above testimony, we conclude that Norman was hired

for projects because of his personal knowledge and skill, and Spectrum

Construction had confidence and trust in Norman’s work.

       The record does indicate that Norman had two other electricians working

with him.    The record also indicates, however, that they were lower-skilled

electricians, that Norman was doing work under the contract, that they were

working under the direction of Norman, and that Norman was the party responsible

for the completion of the work. Accordingly, this fact does not undercut the claim

that the contract was a personal services contract.

       Similarly, Spectrum Construction argued at trial that, while they did award

the contract to Norman, they could have awarded the contract to any number of

electricians. No court has held that, in order for a contract to be classified as a

personal service contract, there must be a showing that the services provided could

only have been performed by that one person, and we decline to adopt such a

holding here. A party is only required to show that the contract depended on the

skill or character of the other party, not that it depended on the skill or character of

the other party to the exclusion of all other people. See Cardwell, 978 S.W.2d at

726.

       We hold Norman’s contract with Spectrum Construction was a personal

service contract. Because it was a personal service contract, it terminated upon

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Norman’s death and did not constitute a breach. See id. (holding survival of

certain person in a personal service contract is constructive condition to any further

obligation of either party of contract).

      If the three exceptions recognized in Truly are the only available exceptions

to recovering under quantum meruit when a contract exists, Lois is essentially

thrust into a situation in which she cannot recover at all for the work performed by

Norman. Substantial performance is a condition precedent to recovery under an

express contract. Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex. 1995).

While the parties dispute how much work Norman performed prior to his death, no

one argues that he substantially performed under the contract. Accordingly, breach

of contract would not have been a viable path for recovery. If the Truly exceptions

are the only exceptions to allow a party to recover under quantum meruit, then that

is also not a viable path for recovery. This would mean, then, that a plaintiff who

has breached a contract can recover under quantum meruit, while a plaintiff who

has not breached but also cannot complete the contract due to circumstances

beyond his control cannot recover at all. This would have the effect of forcing a

party who believes he may not be able to substantially complete the contract due to

factors beyond his control to either stop work and breach the contract or continue

working with the risk of being unable to recover at all. We do not see this as a

viable result.

                                           9
      We also do not find it to be supported by the law. In Truly, after the

supreme court determined that the three exceptions did not apply to the plaintiff, it

continued to determine whether the principles of quantum meruit applied to him in

general. 744 S.W.2d at 938. This would have been unnecessary if the three

exceptions the court had recognized were exclusive.

      Similarly, in Pepi Corp., we recognized a common theme to the Truly

exceptions: “an inability to recover under contract because of a failure of this

condition precedent [of substantial performance]—either because of a breach

preventing completion of the condition precedent or because of a lack of any legal

obligation that creates the condition precedent.” Pepi Corp. v. Galliford, 254

S.W.3d 457, 463 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).             After

holding that the Truly exceptions did not apply to the plaintiff, we went on to

analyze whether the plaintiff fell under the common theme of the exceptions and

concluded he did not. Id.

      In Benson, the Fort Worth Court of Appeals recognized another exception to

the general rule that a party cannot recover under quantum meruit when a contract

exists. Benson v. Harrell, 324 S.W.2d 620, 623 (Tex. Civ. App.—Fort Worth

1959, writ ref’d n.r.e.). It held, “There may be recovery on quantum meruit for the

reasonable value of the part of the contract performed where there has been a

mutual abandonment, or where further performance is prevented by a cause for

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which neither party is responsible and by reason of which further performance is

excused.” Id. This exception is in line with the common theme to the Truly

exceptions. It would also allow recovery for a plaintiff who has not substantially

performed through no fault of his own. Accordingly, we adopt the holding of the

Fort Worth Court of Appeals.

      It is undisputable that Norman’s death prevented further performance and

that neither party is responsible for Norman’s death. Because we have held that

the contract is a personal service contract, death excuses further performance of the

contract. See Cardwell, 978 S.W.2d at 726 (holding survival of certain person in a

personal service contract is constructive condition to any further obligation of

either party of contract). Accordingly, the express contract was not a bar to Lois’s

recovery under quantum meruit.

      As stated above, to recover under quantum merui,t Lois must prove that

Norman rendered valuable services that were accepted and used by Spectrum

Construction under such circumstances that reasonably notified Spectrum

Construction that Norman was expecting to be compensated. See Thumann, 226

S.W.3d at 502; City of Ingleside, 554 S.W.2d at 943.

      During trial, Spectrum Construction’s representative conceded that Bennett

provided valuable services to and accepted by Spectrum Construction in which

Bennett expected to be paid.

                                         11
      Q:     You conceded that Norman provided services for two days on
             the job correct?

      A:     It appears to be.

      Q:     Okay. Do you concede that Spectrum accepted the benefit of
             those services?

      A:     Yes.

      Q:     Did you concede that at the time Spectrum accepted the benefit
             of those services, Spectrum expected to pay for those services?

      A:     Yes.

      Q:     Do you concede that Spectrum got the benefit of the permits?

      A:     Yes.

      Q:     And do you concede that Spectrum should pay for the cost of
             the benefit of those permits?

      A:     Yes.

      No contrary evidence was presented at trial. We hold that there is legally

sufficient evidence in the record to support Lois’s claim for quantum meruit. We

sustain the first portion of Lois’s sole issue.

                                       Damages

      In the remainder of her sole issue, Lois contends that the trial court erred in

granting a take-nothing judgment in favor of Spectrum Construction because there

was sufficient evidence in the record to support her claim for damages.

      Lois testified that Norman worked for eight days and completed both the “T-

Pole” phase and the demolition phase. In contrast, Allen testified that Norman

                                           12
worked two days and only completed the “T-Pole” phase. Though the amount of

work completed is in dispute, both parties concede that at least some work was

done. Nevertheless, the court rendered a take-nothing judgment.

      After the trial, the court indicated that it believed Spectrum Construction

could offset the costs incurred in completing the work that exceeded the amount of

contract price. The concept behind offset is to allow parties with mutual debts the

ability pay what is owed to one another. Sommers v. Concepcion, 20 S.W.3d 27,

35 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Pursuant to Texas law,

Spectrum Construction pleaded as an affirmative defense, “that the damages

claimed by [Norman] should be offset by the cost of the labor and materials

expended by [Spectrum Construction] in completing the work left unfinished by

Bennett Electric Company.” See Tex. R. Civ. P. 94; Brown v. Am. Transfer &

Storage Co., 601 S.W.2d 931, 936 (Tex. 1980) (acknowledging offset as an

affirmative defense, which must be pleaded).

      As we have held above, however, Norman did not breach his contract.

Instead, the contract merely terminated. While contractual obligations generally

survive the death of one of the parties, a personal service contract terminates at

death. Cardwell, 978, S.W.2d at 726. It is this termination that prevents a party

from recovering under a claim of breach of contract. See id. at 726, 728 (holding

contract was not for personal services and, therefore, plaintiff could recover for

                                        13
breach of contract). With no breach, Norman does not owe Spectrum Construction

for the costs incurred by Spectrum Construction to complete the Vision Source job

after Norman’s death. In other words, Spectrum Construction does not have a

conclusive claim against Norman. Therefore, Bennett does not owe a debt to

Spectrum Construction, making offset inappropriate.

      We sustain the remainder of Lois’ sole issue.

                                     Conclusion

      When the evidence is insufficient to support an award of zero damages, but a

fact issue remains as to the amount to be awarded, the proper remedy is to remand

for a new trial. See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 548–49

(Tex. 2009) (remanding for new trial when right to attorneys’ fees established as a

matter of law, when jury awarded zero dollars in attorneys’ fees, and when fact

issue remained about proper amount of attorneys’ fees to award).              Because

damages are unliquidated and liability is contested, we must remand for a new trial

on liability as well. See TEX. R. APP. P. 44.1(b) (prohibiting separate trial solely on

unliquidated damages if liability is contested).




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Sharp.
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