                                 NUMBER 13-11-00659-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


ELTON JAMES SENEGAL D/B/A ELTON’S
CONSTRUCTION,                                                                           Appellant,

                                                   v.

CLIFFORD D. HARDEMAN,                                                                    Appellee.


                        On appeal from the 60th District Court
                            of Jefferson County, Texas.


                                 MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Chief Justice Valdez
        By three issues, appellant, Elton James Senegal d/b/a Elton’s Construction,

appeals from a judgment entered in favor of appellee, Clifford D. Hardeman, on

appellee’s claim challenging the validity of a residential construction lien.1 We affirm.



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          This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
                                       I. BACKGROUND

       This case arises from a dispute concerning the performance of a residential

construction contract. Appellee commenced this suit after appellant filed a mechanic’s

and materialman’s lien encumbering appellee’s property.               According to the lien,

appellee owed appellant $44,353.39 for labor and materials. Appellee filed suit seeking

a declaratory judgment that the lien was invalid. Appellant counterclaimed for unjust

enrichment. A bench trial was held, after which the court returned a verdict for appellee.

No findings of fact or conclusions of law were requested by the parties or made by the

court. A judgment was entered in favor of appellee. This appeal ensued.

                                         II. ANALYSIS

       In three issues, appellant argues: (1) the trial court erred in preventing appellant

from presenting evidence of quantum meruit for construction services provided to

appellee; (2) the trial court erred in disregarding all evidence of appellant’s claim for

quantum meruit; and (3) the trial court erred because there was legally sufficient

evidence to support a finding that appellant was entitled to maintain his lien for monies

owed by appellee.

       A. Issue One

       In his first issue, appellant raises a complaint concerning what he describes as

the trial court’s rulings excluding evidence pertaining to his claim for quantum meruit.

Appellant’s brief fails to identify any specific ruling by the trial court that is the subject of

his complaint. See TEX. R. APP. P. 33.1(a)(2). Appellant’s brief fails to demonstrate that

he preserved any such ruling for appellate review.           See id. 33.1(a)(1).     Moreover,

appellant’s brief fails to provide a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record. See id. 38.1(i). Accordingly,
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we conclude that the issue has been inadequately briefed and presents nothing to

review. See Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873

(Tex. App.—Fort Worth 2011, no pet.) (“An inadequately briefed issue may be waived

on appeal.”); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,

284-85 (Tex. 1994) (discussing the “long-standing rule” that a point may be waived due

to inadequate briefing). Appellant’s first issue is overruled.

       B. Issue Two

       In his second issue, appellant complains that the trial court erred in disregarding

all evidence of his claim for quantum meruit. In his brief, appellant has combined his

three issues together. As noted above, appellant’s first issue is that the trial court erred

in excluding all evidence of his claim for quantum meruit. Appellant’s second issue is

that the trial court erred in disregarding all evidence of his claim for quantum meruit.

       Appellant’s brief fails to identify any specific evidentiary ruling by the trial court

that is the subject of his first issue. See TEX. R. APP. P. 33.1(a)(2). Appellant has also

failed to identify any specific ruling by the trial court that is the subject of his second

issue or demonstrate that the issue was preserved. See id. 33.1(a)(1)–(2). Moreover,

appellant’s brief fails to provide a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record. See id. 38.1(i). We conclude

that appellant’s second issue is inadequately briefed. Therefore, it is overruled.

       C. Issue Three

       In his third issue, appellant contends that the evidence was legally sufficient to

support a finding that appellant was entitled to maintain his lien for monies owed by

appellee.



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      1.     Standard of Review

      When an appellant challenges the legal sufficiency of an adverse finding on an

issue for which the appellant had the burden of proof, the appellant must demonstrate

that the evidence conclusively establishes all vital facts in support of the issue. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); TH Invs., Inc. v. Kirby Inland

Marine, L.P., 218 S.W.3d 173, 189 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

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 Dow, 46

S.W.3d at 241 (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989));

TH Invs., 218 S.W.3d at 189–90.

      If evidence is so weak as to do no more than create a mere surmise or suspicion

that the fact exists, then it is no evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 601 (Tex. 2004). When examining the legal sufficiency of the evidence, we must

credit the favorable evidence if a reasonable juror could and disregard the contrary

evidence unless a reasonable juror could not. See City of Keller v. Wilson, 168 S.W.3d

802, 823 (Tex. 2005). “A reviewing court cannot substitute its judgment for that of the

trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.”

Id. at 822. 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. Wilson, 168

S.W.3d at 827.

      Because appellant did not request findings of fact and conclusions of law, we

imply all findings of fact necessary to support the judgment. See In re W.C.B., 337

S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.).



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      2.     Applicable Law

      As noted above, appellant pleaded a counterclaim for unjust enrichment;

however, on appeal, he has characterized that claim as a cause of action for quantum

meruit. Appellee has taken issue with appellant’s characterization of the claim and

argues that the pleadings do not support a cause of action for quantum meruit. As

appellee points out, it has been said that “unjust enrichment does not provide an

independent basis for a cause of action.” PIC Realty Corp. v. Southfield Farms, Inc.,

832 S.W.2d 610, 614 (Tex. App.—Corpus Christi 1992, no writ) (citing City of Corpus

Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App.—Corpus

Christi, 1987, writ denied); LaChance v. Hollenbeck, 695 S.W.2d 618, 620 (Tex. App.—

Austin 1985, writ ref’d n.r.e.)). However, we have also previously noted that “[u]njust

enrichment has also been considered [by] some [of] the courts to be synonymous with

quantum meruit recovery.” S.S. Smith & Sons Masonry, Inc., 736 S.W.2d at 250.

      Although it is unclear whether appellant’s live pleading, which used the term

“unjust enrichment,” actually intended to allege a cause of action for quantum meruit, it

is clear that the pleading alleged that appellee owed appellant a debt for construction

services that appellant had performed in connection with the parties’ residential

construction contract.   For purposes of addressing appellant’s third issue, we will

assume without deciding that the pleadings alleged a cause of action for quantum

meruit.

      The elements of quantum meruit are: “(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
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charged that the plaintiff in performing such services was expecting to be paid by the

person sought to be charged.”        PIC Realty Corp., 832 S.W.2d at 612 (citing Vortt

Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Bashara v.

Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985); City of Corpus Christi v.

Acme Mech. Contractors, Inc., 736 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1987,

writ denied)). Quantum meruit is applicable where no express contract exists between

the parties. Concept Gen. Contr., Inc. v. Asbestos Maint. Servs., 346 S.W.3d 172, 185

(Tex. App.—Amarillo 2011, pet. denied).

       In this case, appellee sued appellant for a declaratory judgment regarding the

parties’ respective rights and obligations under a written contract. Appellee sought a

declaration that the mechanic’s and materialman’s lien filed by appellant was void

because appellee had paid appellant all monies owed under the contract. Appellant

sought to defend the validity of the lien by alleging that certain changes and alterations

were made to the contract, which entitled appellant to receive additional sums of money

from appellee that appellee had refused to pay.

       At trial, appellee relied on evidence that included the parties’ written contract in

the amount of $225,000. Appellee testified that he had paid appellant the full amount of

the contract price. With regard to changes and alterations, the contract provided as

follows: “No alterations shall be made in the work shown or described by the drawings

and specifications, nor shall any extra work or materials be charged or paid for, unless a

separate estimate for such extra work is submitted in writing by contractor to owner and

agreed to in writing by them before the work is started.” Appellee testified that he never

agreed to any change orders and did not sign any agreement for any change orders, as

required by the parties’ contract.
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       Appellee testified that, even after receiving full payment, appellant “walked off the

job and would not finish it.” Appellee testified in relevant part as follows:

       Well, he came one day to ask for some more money. After I had paid all
       the money the contract called for plus some extra money, he asked for
       some more; and I told him that I wasn’t giving him any more. He cursed
       me out, called me some MF’s and other things out on my driveway. Told
       me he was going to put a lien on my house, was going to change the locks
       [so] that I couldn’t get in, and that he wasn’t doing another hmm-hmm
       thing. And he left and he never showed up again.

Appellee also testified that each of the specific items appellant characterized as

“changes and alterations” in his live pleading were, in fact, expressly provided for in the

parties’ written contract. According to appellee, appellant had failed to perform the

contract as agreed and was merely attempting to recoup his expenses in having to

correct his own errors and do the work properly. Appellee testified that this was not the

result of any changes to the original contract, but merely holding appellant accountable

for performing the work he agreed to do according to the specifications provided in the

contract.

       Appellant testified to his version of events. According to appellant, the contract

price of $225,000 was based on an inaccurate blueprint for the house, which

understated the total square footage by “300-and-some feet.” This resulted in extra

costs to appellant in the amount of approximately $35,000. Appellant testified, “You

can’t build that house for no 225.” Appellant testified that he did not discover the error

until the house was roughly 80-90% completed. According to appellant, appellee was

lying when he testified that appellant had walked off the job and refused to complete the

work. The work was not completed, according to appellant, because appellee “had

done run out of money.” Appellant maintained that changes were made to the original



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contract at appellee’s request, which resulted in additional charges. Appellant testified

that those changes were never reduced to writing.

       On cross-examination, appellant testified that the original contract amount was

$295,000, not $225,000. According to appellant, this is the figure he and appellee had

“discussed” before he began work on the project. On re-direct examination, appellant

clarified that he had accepted a payment from appellee in the amount of $70,000 prior

to signing the written contract that specified the contract price of $225,000.   This was

done informally because, according to appellant, “[W]e kind of like family.”           It was

appellant’s understanding that the $225,000 to be paid by appellee under the parties’

written contract would be in addition to the $70,000 already paid, for a total of $295,000.

Appellant assured the court, “You know, I don’t get up in the morning saying I’m going

take some money from somebody. I don’t do that.”

       Appellant’s testimony continued as follows:

       I worked so hard to try to satisfy [appellee] to make sure the work gets
       done right and he took advantage of me. You understand? I’m just, I’m
       just telling you. He took advantage of me by adding more to the work and
       made the job more than what it [was] supposed to be. And we could have
       did [sic] this house for that amount if he wouldn’t have added all this extra
       work. That’s what hurts me.

       As noted above, “[W]hen a valid express contract covers the services or

materials upon which recovery is sought, recovery in quantum meruit will not be

permitted.” See Concept Gen. Contr., Inc., 346 S.W.3d at 185. “But, the existence of

an express contract does not preclude recovery in quantum meruit for the reasonable

value of services rendered and accepted which are not covered by the contract.” Id.

       In this case, there was conflicting testimony about whether any changes were

made to the parties’ written contract, which could arguably support recovery in quantum

                                            8
meruit. As noted above, appellee testified that what appellant has characterized as

changes and alterations were, in fact, the original specifications provided for in the

parties’ contract. Appellant gave testimony to the contrary. Appellant also testified that

the parties had discussed and agreed on a contract price that was greater than the

amount later specified in the parties’ written contract.       Appellant’s testimony also

included an assertion that the amount in dispute between the parties was the result of a

miscalculation of the contract price due to an erroneous blueprint for the house, which

understated its square footage.

       In performing its role as the finder of fact, the trial court was required to resolve

the foregoing conflicts in the testimony. See Wilson, 168 S.W.3d at 820 (“It is the

province of the [finder of fact] to resolve conflicts in the evidence”). In reviewing the

legal sufficiency of the evidence, we are required to assume that the trial court resolved

all conflicts in the evidence in accordance with its verdict. See id. (“[C]ourts reviewing

all the evidence in a light favorable to the verdict must assume that jurors resolved all

conflicts in accordance with that verdict.”).

       Thus, we must assume that the trial court accepted appellee’s testimony, which

supports its verdict, and assume that the court rejected those portions of appellant’s

testimony that were to the contrary. Together with other evidence, including the parties’

written contract and evidence of payments made to appellant, appellee’s testimony is

sufficient to establish that the parties’ written contract expressly covered the goods and

services for which appellant sought to secure compensation through the filing of his

mechanic’s and materialman’s lien. Furthermore, appellee’s evidence, if accepted as

true, is sufficient to establish that appellant has been paid all monies owed under the



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parties’ written contract and is not entitled to recover additional amounts in quantum

meruit. Accordingly, we overrule appellant’s third issue.

                                    III. CONCLUSION

      The judgment of the trial court is affirmed.

                                                       ____________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Delivered and filed the
1st day of November, 2012.




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