AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed November 13, 2015.




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                     No. 05-14-01150-CV

                UNITED STATES CATASTROPHIC RE-CONSTRUCTORS, INC.,
                            AND GARY CORBIN, Appellants
                                        V.
               DAVID SPENCER D/B/A CONTROL COLLECTIVE, LTD., Appellee

                               On Appeal from the 193rd Judicial District Court
                                            Dallas County, Texas
                                    Trial Court Cause No. DC-13-10135

                                        MEMORANDUM OPINION
                     Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart
                                        Opinion by Justice Fillmore

          In a single issue, appellants United States Catastrophic Re-Constructors, Inc. (USCR) and

Gary Corbin appeal the trial court’s order granting summary judgment in favor of appellee David

Spencer d/b/a Control Collective, Ltd. (Spencer) on USCR’s claims for breach of contract and

quantum meruit. We affirm the judgment in part and reverse the judgment in part.

                                                           Background

                                                     USCR’s Allegations 1

          In its lawsuit against Spencer, USCR seeks to enforce a mechanic’s and materialman’s

lien and “constitutional” lien against real property located at 2413 S. Shiloh Road, Garland,

     1
        The following factual allegations are taken from USCR’s live pleading at the time of summary judgment. Although pleadings are not
proof, they frame the issues for purposes of summary judgment. See Ely v. Gen. Motors Corp., 927 S.W.2d 774, 782 (Tex. App.—Texarkana
1996, writ denied).
Texas. USCR also asserts claims against Spencer for breach of contract, unjust enrichment,

quantum meruit, quantum valebant, 2 and for suit on a sworn account. According to USCR’s

pleading, it made, at the request of Spencer, “numerous repairs” to a commercial building on

property located at 2413 S. Shiloh Road (the Building) and is owed a balance of $113,600 for

that work, comprised of $24,800 for “extra painting” of approximately 40,000 square feet of the

interior of the Building, $28,400 of “overhead,” $28,400 of “profit,” and $32,000 for work

performed under a contract with Spencer for repair of the roof of the Building and for repair of

approximately 5,000 square feet of roof that was not included in the scope of that contract. 3

USCR also pleads for recovery of $28,124 of sales tax relating to the work which “became

[USCR’s] responsibility.” USCR asserts that of the $141,724 total of those amounts, work with

a value of $10,000 was “left undone,” and, therefore, the balance due USCR from Spencer is

$131,724. USCR also pleads for recovery of its attorney’s fees.

                                   Spencer’s Counterclaim and Third-Party Action

          Spencer counterclaimed against USCR asserting that, pursuant to written agreements

between them, USCR agreed to perform work on the Building at fixed prices, and USCR

breached the contracts by failing to perform some of the agreed work and failing to perform

other work in a good and workmanlike manner. Spencer also claimed USCR breached the

implied warranty of workmanship under the Texas Deceptive Trade Practices Act (DTPA), and

through Corbin, the president and owner of USCR, made false representations and failed to

disclose information concerning USCR’s goods and services in violation of the DTPA. Spencer

pleaded for recovery of damages and attorney’s fees. Spencer also filed a third-party claim

     2
        “Quantum valebant is a common law action of assumpsit for goods sold and delivered, founded on the implied promise to pay what the
goods are worth.” State Pipe & Supply, Inc. v. Trident Steel Corp., No. 14-99-00536-CV, 2000 WL 1591057, at *6 (Tex. App.—Houston [14th
Dist.] Oct. 26, 2000, pet. denied) (not designated for publication). “Similar to quantum meruit, it concerns an implied promise to pay for the
reasonable market value of goods delivered to the buyer.” Id.
     3
      USCR’s claim in the amount of $32,000 for repair of the roof of the Building is the net of an invoice USCR submitted to Spencer in the
amount of $62,000, less payment of $30,000 received from Spencer.



                                                                    –2–
against Corbin, alleging Corbin violated the DTPA by making false representations and failing to

disclose information regarding USCR’s goods and services, for which Spencer sought damages

and attorney’s fees.

                                      Spencer’s Motion for Summary Judgment

          As pertinent to this appeal, Spencer moved for a traditional summary judgment on the

grounds that he is not liable to USCR under a breach of contract or quantum meruit cause of

action for the alleged cost of “extra painting” of the interior of the Building, the alleged cost of

repair of extra square footage on the roof of the Building, or USCR’s overhead, profit, or sales

tax obligation relating to the work, see TEX. R. CIV. P. 166a(c), and for a no-evidence summary

judgment on the grounds that there is no evidence of each element of USCR’s claims of breach

of contract or quantum meruit. See TEX. R. CIV. P. 166a(i). 4 Spencer also asserted in his motion

for summary judgment that, because he is not liable to USCR for breach of contract or in

quantum meruit, the mechanic’s and materialman’s lien filed by USCR is invalid.

                                      Summary Judgment in Favor of Spencer

          Without stating the bases for its ruling, the trial court granted summary judgment to

Spencer as to USCR’s claims for affirmative relief and ordered USCR’s claims dismissed with

prejudice. Corbin and USCR filed this appeal.

                                                      Corbin’s Appeal

          Contrary to USCR’s assertion in its brief that USCR and Corbin filed suit against Spencer

and that USCR and Corbin filed a response to Spencer’s motion for traditional and no-evidence

summary judgment, only USCR asserted claims for affirmative relief against Spencer and


     4
        Spencer moved for summary judgment on his counterclaim and third-party claim, asserting summary judgment evidence proves that
USCR’s breach of the written agreements caused him damage. Spencer also asserted summary judgment evidence proves Corbin and USCR
violated the DTPA by committing false, misleading, and deceptive acts and USCR violated the DTPA by breaching an implied warranty of
workmanship. Spencer asserted summary judgment evidence proves Corbin and USCR jointly and severally caused Spencer damage in an
amount of “at least” $498,217.99. The trial court denied summary judgment on these claims, and Spencer nonsuited the claims.



                                                               –3–
responded to Spencer’s summary judgment motion. On August 11, 2014, Spencer filed a notice

of non-suit of his counter-claims against USCR and third-party action against Corbin, and the

trial court signed an order of non-suit of the counter-claims and third-party action on August 18,

2014. On September 5, 2014, USCR and Corbin filed a notice of appeal of the trial court’s order

granting Spencer’s motion for summary judgment and dismissing USCR’s claims for affirmative

relief with prejudice.

       Corbin did not plead for affirmative relief in the trial court, and Spencer non-suited his

third-party action seeking affirmative relief from Corbin. See Greenberg v. Brookshire, 640

S.W.2d 870, 872 (Tex. 1982) (trial court has no discretion to deny nonsuit unless prior to notice

of nonsuit, defendant has filed pleadings seeking affirmative relief); Life Forms, Inc. v.

Woodlands Operating Co., 304 S.W.3d 591, 602–03 (Tex. App.—Beaumont 2010, pet. denied)

(party has absolute right to non-suit, provided the dismissal cannot prejudice the right of an

adverse party “to be heard on a pending claim for affirmative relief. . . .” (quoting TEX. R. CIV.

P. 162); pleading that does nothing more than resist plaintiff’s right to recover is not a claim for

affirmative relief). Further, Corbin does not seek any affirmative relief on appeal. See In re

West End API, Ltd. v. Rothpletz, 732 S.W.2d 371, 374 (Tex. App. —Dallas 1987, writ ref’d

n.r.e.) (appellate court cannot grant relief appellant does not pray for). Therefore, to the extent

Corbin challenges the trial court’s judgment on appeal, we resolve Corbin’s appeal against him.

                     Summary Judgment as to USCR’s Causes of Action

       In a single issue on appeal, USCR contends the trial court erred in granting summary

judgment in Spencer’s favor on its breach of contract and quantum meruit causes of action.

                                       Standard of Review

       We review the grant of summary judgment de novo. Masterson v. Diocese of Nw. Tex.,

422 S.W.3d 594, 607 (Tex. 2013), cert. denied, 135 S. Ct. 435 (2014). The standards of review

                                                –4–
for traditional and no-evidence summary judgments are well known. See Timpte Indus., Inc. v.

Gish, 286 S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548

(Tex. 1985). With respect to a traditional motion for summary judgment, the movant has the

burden to demonstrate that no genuine issue of material fact exists and judgment should be

rendered as a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548–49. We review

a no-evidence summary judgment under the same legal sufficiency standard used to review a

directed verdict. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. To defeat a no-evidence

summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of

material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also TEX. R.

CIV. P. 166a(i).

       In reviewing both traditional and no-evidence summary judgments, we consider the

evidence in the light most favorable to the nonmovant. Smith v. O’Donnell, 288 S.W.3d 417,

424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We credit evidence

favorable to the nonmovant if a reasonable fact-finder could, and we disregard evidence contrary

to the nonmovant unless a reasonable fact-finder could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Gish, 286 S.W.3d at 310. If the

trial court’s order does not state the grounds on which summary judgment was granted, we will

affirm if any of the theories advanced by the summary judgment movant are meritorious. State

Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). When a party has moved for

summary judgment on both traditional and no-evidence grounds, we typically first review the

propriety of the summary judgment under the no-evidence standard. See TEX. R. CIV. P. 166a(i);

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Rico v. L-3 Commc’ns Corp.,

420 S.W.3d 431, 438–39 (Tex. App.—Dallas 2014, no pet.).




                                              –5–
                      Foreclosure of a Lien, Enforcement of Mechanic’s and
               Materialman’s Lien, Quantum Valebant, and Suit on a Sworn Account

         USCR states in its appellate brief that it “raised fact issues on every element of the cause

[sic] of action asserted in its pleadings.” However, on appeal, USCR has not argued error by the

trial court in granting summary judgment except with regard to its breach of contract and

quantum meruit causes of action. “When a summary judgment ground goes unaddressed, its

validity is presumed.” Cuidado Casero Home Health of El Paso, Inc. v. Ayuda Home Health

Care Services, LLC, 404 S.W.3d 737, 743 (Tex. App.—El Paso 2013, no pet.). USCR has not

challenged the trial court’s summary judgment on its claims for foreclosure of a lien,

enforcement of a mechanic’s and materialman’s lien, quantum valebant, or suit on a sworn

account. Therefore, we affirm the trial court’s summary judgment in favor of Spencer on

USCR’s claims for foreclosure of a lien, enforcement of a mechanic’s and materialman’s lien,

quantum valebant, and suit on a sworn account. See Jarvis v. Rocanville Corp., 298 S.W.3d 305,

313–14 (Tex. App.—Dallas 2009, pet. denied) (affirming summary judgment with respect to

trespass claim because appellant failed to challenge the grounds on which summary judgment

could have been granted as to that cause of action); Cuidado Casero Home Health, 404 S.W.3d

at 743–44 (because appellant did not challenge summary judgment as to its tortious interference

claim on appeal, court will presume the grounds raised to defeat the claim are valid).

                              Breach of Contract and Quantum Meruit

         It is undisputed that USCR and Spencer entered into written contracts for repair of the

roof of the Building (the Roof Contract) and for remodeling of the interior of the Building (the

Remodel Contract). Under the Roof Contract and Remodel Contract, USCR agreed to provide

“all labor, licensing, permitting, general liability insurance and supervision to perform the work

described.” The Roof contract contains the following provisions relating to scope of work and

price:
                                                 –6–
       1)      Power wash entire roof structure
       2)      Power sweep entire roof structure
       3)      APPLY TACK PRIMER - LOW RISE FOAM ADHESIVE (BASF)
               approx. 35, 511 sqft.
       4)      Apply 2” spray polyurethane foam insulation SPRAYTITE 168 (BASF)
               approx. 35, 511 sqft.
       5)      Install elastomeric top coating @ 4 gallons per 100 sq ft – COATING
               ASTM D6947 (BASF) approx. 35,511 sqft.
       6)      RE-FASTEN ALL LOOSE METAL
                                                  Total $142,000.00

       1)      Remove and replace 256’ of 6” commercial guttering
       2)      Remove and replace 12 commercial downspouts
                                                 Total $ 2,600.00

       Total Price $144,600.00

The Remodel Contract sets out the following scope of work to be performed inside the Building:

remove and replace suspended ceiling tiles and remove and replace insulation in twenty-one

areas; clean, strip, and wax the floors in ten areas; seal and paint surface areas in eight areas;

clean surfaces in two areas; remove flooring or carpet and replace with ceramic tile in three

areas; clean and deodorize carpets in eight areas; and replace sheetrock, patch, and ready for

paint in six areas. The Remodel Contract indicates the total price for this scope of work is

$69,871.00.

       The Roof Contract and Remodel Contract provide:

       Any changes and/or deviations to Scope of Work (Proposal) or any addendum to
       the price will be addressed only in writing. The agreed negotiated (U.S.C.R.,
       Inc.) proposal will be the basis for the work to be performed.

                                              ***

       If in agreement with this proposal, by signing below sign below [sic] you agree
       this proposal will become a contract.

       Spencer and USCR also executed a document entitled “Contract” (the Insurance

Contract), which provides:




                                               –7–
       It is understood and agreed that in order to effect repairs to the property
       referenced hereinabove; [sic] that the Contractor will commence said repairs
       subject to the terms and conditions attached hereto as applicable.

       In consideration of agreement the Contractor agrees to charge the owner no more
       that [sic] the insurance company representative allows as well as payment of
       claim for damages.

The backside of the Insurance Contract contains the following terms and conditions:

       THE CONTRACT ON THE FACE HEREOF AND ANY AGREEMENT MADE
       PURSUANT THERETO BETWEEN [USCR] (“THE COMPANY”) AND THE
       CUSTOMER(S) WILL BE SUBJECT TO . . . THE FOLLOWING SPECIAL
       TERMS AND CONDITIONS.

                                             ***

       15.    This agreement constitutes the entire agreement between the parties. It
              may be changed only by written instrument signed by both parties.

                                             ***

       17.    Any representations, statements, or other communications not written in
              this contract are agreed to be immaterial, and not relied on by either part
              [sic], and do not survive the execution of this contract.

                                             ***

       19.    [USCR] will have the right to supplement the Insurance Co., in the event
              material and labor increases over five percent (5%) from the date of
              damage.

                                             ***

       21.    These conditions shall be considered a part of any contract entered into or
              authorized to proceed. [sic] The same as if they were included therein.

                     Elements of Breach of Contract and Quantum Meruit

       The elements of a claim for breach of contract are: (1) the existence of a valid contract;

(2) the plaintiff’s performance or tendered performance; (3) the defendant’s breach of the

contract; and (4) damages as a result of the breach. Paragon Gen. Contractors, Inc. v. Larco

Constr., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.).



                                              –8–
       The right to recover in quantum meruit is “based upon the promise implied by law to pay

for beneficial services rendered and knowingly accepted.” Campbell v. Nw. Nat’l Life Ins. Co.,

573 S.W.2d 496, 498 (Tex. 1978). To recover under the equitable doctrine of quantum meruit, a

plaintiff must establish: (1) valuable services were rendered or materials furnished, (2) to the

party sought to be charged, (3) which services or materials were accepted by the party sought to

be charged, and (4) under such circumstances as reasonably notified the recipient that the

plaintiff, in performing, expected to be paid by the recipient. Heldenfels Bros., Inc. v. City of

Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) (citing Vortt Exploration Co. v. Chevron U.S.A.,

Inc., 787 S.W.2d 942, 944 (Tex. 1990)).

                      Spencer’s No-Evidence Motion for Summary Judgment

       USCR pleads for damages for breach of contract and for equitable damages under the

doctrine of quantum meruit. USCR pleads Spencer is liable for $24,800 for “extra painting” of

approximately 40,000 square feet of the interior of the Building, $32,000 for work performed

under the Roof Contract and for repair of approximately 5,000 square feet of roof that was not

included in the scope of that contract, $28,400 of “overhead,” $28,400 of profit, and $28,124 of

sales tax obligation that it incurred relating to the work.

       Spencer moved for a no-evidence summary judgment, asserting there is no evidence of

any of the elements of a valid, enforceable oral or written contract calling for him to pay USCR

for the cost of “extra painting” of the interior of the Building, cost for repair of 5,000 square feet

of roof purportedly not included within the scope of the Roof Contract, or USCR’s overhead,

profit, or sales tax obligation. With regard to the $28,400 USCR seeks for “extra painting” of the

interior of the Building, Spencer asserted there is no evidence USCR painted 40,000 square feet

of the interior of the Building in addition to the painting specified to be performed in the

Remodel Contract or that the amount USCR claims for the additional painting is reasonable.

                                                 –9–
Further, Spencer asserted there is no evidence any additional painting of the interior of the

Building, changing the scope of work of the Remodel Contract, or increasing the fixed price of

the Remodel Contract were addressed in writing as required by the Remodel Contract. With

regard to USCR’s claim for quantum meruit damages for the “extra painting,” Spencer asserted

there is no evidence Spencer requested USCR to perform, or expected to be charged, for the

“extra painting” or that USCR expected to be paid by Spencer for the “extra painting.”

       Concerning USCR’s claims for breach of contract and quantum meruit damages relating

to repair of 5,000 square feet of roof not included in the scope of the Roof Contract, Spencer

asserted there is no evidence that: USCR performed any repair of the roof in addition to that

specified in the Roof Contract; additional repair work increasing the fixed price of the Roof

Contract was addressed in writing as required by that contract; Spencer requested USCR to

perform additional roof repairs not specified in the Roof Contract; Spencer was reasonably

notified USCR expected to be paid for roof repairs in an amount exceeding the fixed price of the

Roof Contract; or the amount claimed for any additional roof repair is reasonable.

       In response to Spencer’s no-evidence motion for summary judgment, USCR relied upon

excerpts of Corbin’s deposition. Corbin testified the Roof Contract encompassed repair of

35,511 square feet of roof surface, which was not the entire roof surface, but was the surface area

Spencer’s property insurer would pay to have repaired as a result of storm damage. Corbin

indicated Spencer was aware that the square footage to be repaired under the Roof Contract did

not encompass the entire roof surface. According to Corbin, Spencer inquired about the total

square footage of the roof, and Corbin provided him “an insurance program” that showed the

exact measurements of the Building’s roof totaling approximately 42,000 square feet. Corbin

testified Spencer wanted the entire roof repaired and intended to pay for the additional repairs

himself.   Further, Corbin testified USCR performed, at Spencer’s request, repairs and

                                              –10–
improvements, including painting, to the interior of the Building in addition to the scope of work

set out in the Remodel Contract. Corbin indicated Spencer agreed to pay for the additional work.

Relying on Corbin’s deposition testimony, USCR argues on appeal that the “extra painting” of

approximately 40,000 square feet of the interior of the Building and roof repairs on

approximately 5,000 square feet of roof that were not included in the scope of the Roof Contract

were performed by USCR pursuant to an oral agreement with Spencer entirely separate from the

obligations contained in the Roof Contract and Remodel Contract. According to USCR, the

scopes of work contained in the Roof Contract and Remodel Contract were the subject of

Spencer’s property insurance claim, while the scopes of work subject to the oral agreement were

not.

       Viewing the evidence in the light most favorable to nonmovant USCR, as required by the

applicable standard of review, see O’Donnell, 286 S.W.3d at 424, there is summary judgment

evidence that raises a genuine issue of material fact as to whether Spencer and USCR entered

into an oral agreement for painting the interior of the Building that was in addition to the scope

of work contained in the Remodel Contract, for which USCR seeks breach of contract damages.

With regard to USCR’s claim for quantum meruit damages, there is, likewise, summary

judgment evidence that raises a genuine issue of material fact as to whether Spencer requested

USCR to perform, and expected to be charged for, additional painting of the interior of the

Building. There is also summary judgment evidence that raises a genuine issue of material fact

as to whether Spencer and USCR entered into an oral agreement for the repair of approximately

5,000 square feet of the roof of the Building that was in addition to the scope of the work in the

Roof Contract for which USCR seeks breach of contract damages. With regard to USCR’s claim

for quantum meruit damages, there is, likewise, summary judgment evidence that raises a

genuine issue of material fact as to whether Spencer requested USCR to perform roof repairs not

                                              –11–
specified in the Roof Contract and was aware USCR expected to be paid for these repairs in

addition to the fixed price of the Roof Contract. Further, Spencer did not challenge in his no-

evidence motion for summary judgment USCR’s claim for damages relating to work, for which

it had not been compensated, that was within the scope of the Roof Contract. Nall v. Plunkett,

404 S.W.3d 552, 555 (Tex. 2013) (trial court cannot grant summary judgment on grounds that

were not presented). For these reasons, we conclude Spencer is not entitled to a no-evidence

summary judgment on USCR’s claims for breach of contract and quantum meruit damages in the

amount of $28,400 for “extra painting” of the interior of the Building and in the amount of

$32,000 for roof repair.

       With regard to USCR’s claims for damages in the amounts of $24,800 for overhead,

$24,800 for profit, and $28,124 for the sales tax obligation it incurred relating to the work,

Spencer asserted there is no evidence of any of the elements of a valid, enforceable oral or

written contract requiring payment to USCR for those items. Neither the Roof Contract nor the

Remodel Contract contain a provision explicitly permitting USCR to charge Spencer for USCR’s

overhead, profit, or sales tax obligation in addition to the fixed prices contained in those

contracts. The Insurance Contract does not address overhead, profit, or sales tax obligations.

Corbin testified Spencer is currently in possession of proceeds from a property insurance claim

relating to payment of USCR’s overhead and profit. Corbin testified he had both contractual and

verbal authority from Spencer to negotiate with Spencer’s property insurer regarding payment of

USCR’s overhead and profit; he forwarded an estimate to the insurance company that included

USCR’s overhead and profit; and the insurance company sent payment by check for these costs

directly to Spencer. Corbin testified USCR billed Spencer for overhead and profit, and that

USCR was entitled to the insurance proceeds paid to Spencer to compensate for USCR’s

overhead and profit because an insurer will not make payment to a property owner for overhead

                                             –12–
and profit unless a general contractor is involved in repairing damage that is the subject of a

covered claim. This testimony is no evidence of a valid and enforceable oral or written contract

between USCR and Spencer for Spencer’s payment of USCR’s overhead, profit, or sales tax

obligation. The Roof Contract and Remodel Contract provide that “any addendum to the price

will be addressed only in writing” and there is no addendum to either contract in the summary

judgment evidence entitling USCR to recovery from Spencer of its overhead, profit, or sales tax

obligation. Viewing the evidence in the light most favorable to nonmovant USCR, there is no

evidence supporting USCR’s claims for damages relating to overhead, profit, and its sales tax

obligation resulting from the work, and we conclude summary judgment in Spencer’s favor on

those claims is not erroneous.

                      Spencer’s Traditional Motion for Summary Judgment

       Spencer moved for traditional summary judgment on the grounds that the summary

judgment evidence proves the Roof Contract and the Remodel Contract are valid written

contracts calling for Spencer to pay USCR a fixed price for a specific scope of work and that any

changes or deviations to the scope of work or any addendum to the price must be addressed in

writing. Spencer asserted summary judgment evidence establishes there is no valid contract

between Spencer and USCR requiring Spencer to pay for the alleged additional 5,000 square feet

of roof repair that was not included in the scope of the Roof Contract, and that Spencer did not

request and did not expect to be charged by USCR for performing any work on roof other than

that specified in the Roof Contract.      Spencer also asserted summary judgment evidence

establishes he did not request USCR to paint any of the interior of Building in addition to the

painting specified in the Remodel Contract, and he did not expect to be charged by USCR for

painting not included in Remodel Contract.




                                              –13–
          In response to Spencer’s traditional motion for summary judgment, USCR asserted

genuine issues of material fact exist regarding whether the Roof Contract called for repair of the

entire roof of the Building. USCR argued the Roof Contract called for spray of foam insulation

to approximately 35,511 square feet of the roof surface, which was not the entire roof surface but

was the surface area Spencer’s property insurer would pay to have repaired as a result of storm

damage, and Spencer was aware of this. USCR further responded that Spencer requested, and

agreed to pay for, work in addition to the scope of work described in the Remodel Contract,

including additional painting. 5

          Spencer relies on his affidavit as summary judgment evidence. With regard to USCR’s

claims for breach of contract and in quantum meruit in the amount of $32,000 relating to work

performed pursuant to the Roof Contract and repair of approximately 5,000 square feet of roof

that was not included in the scope of that contract, Spencer attested: USCR’s proposal for roof

repair encompassed the entire roof of the Building and the number of square feet included in the

contract consisted of the entire square footage of the Building roof; USCR contracted for repair

of the roof of the Building for a fixed price, and no additional cost to Spencer for repair of the

roof was addressed in writing as is required by the Roof Contract; and he never agreed to or

approved extra roof repair that would increase the fixed price of the Roof Contract.

          With regard to USCR’s claims for breach of contract and in quantum meruit for $24,800

relating to painting of the interior of the Building in addition to the scope of work set out in the

Remodel Contract, Spencer attested: no additional cost to Spencer for additional painting was

addressed in writing as required by the Remodel Contract; he never agreed to or approved


     5
       USCR responded to Spencer’s motion for summary judgment regarding USCR alleged misrepresentations and Corbin’s qualifications to
perform roofing and general contractor work. However, Spencer’s motion for summary judgment on his counterclaims for affirmative relief
against USCR were denied, and Spencer non-suited his claims for affirmative relief. Therefore, we need not address USCR’s response to
Spencer’s motion for summary judgment except to the extent it addresses USCR’s claims for affirmative relief based on breach of contract and
quantum meruit.



                                                                  –14–
painting in the interior of the Building that was not included in the scope of work as set out in the

Remodel Contract; and he did not expect to be charged by USCR for painting any of the interior

of the Building except the painting included in the Remodel Contract.

       Corbin testified in his deposition that the Roof Contract called for spray of foam

insulation to approximately 35,511 square feet of the roof, which was not the entire roof surface,

but was the surface area Spencer’s property insurer would pay to have repaired as a result of

storm damage, and Spencer was aware the scope of work did not encompass the entire roof

surface. As indicated previously in this opinion, Corbin testified Spencer asked him about the

total square footage of the roof, and Corbin provided him “an insurance program” that showed

the exact measurements of the Building’s roof, totaling approximately 42,000 square feet.

Corbin testified Spencer wanted the entire roof repaired and intended to pay USCR for the

additional repair footage. With regard to work USCR performed on the interior of the Building,

Corbin testified USCR performed repairs and improvements to the interior of the Building in

addition to the scope of work set out in the Remodel Contract, including additional painting,

which Spencer requested and for which he agreed to pay. Again, USCR argues the scopes of

work contained in the Roof Contract and Remodel Contract were the subject of Spencer’s

property insurance claim, while the additional work requested by Spencer and the subject of an

oral agreement between the parties was not.

       Viewing the evidence in the light most favorable to non-movant USCR, there is a

genuine issue of material fact as to whether Spencer and USCR entered into an oral agreement

for painting of the interior of the Building that was in addition to the scope of work contained in

the Remodel Contract, for which USCR seeks damages in the amount of $24,800 as invoiced to

Spencer. With regard to USCR’s claim for quantum meruit damages, there is, likewise, a

genuine issue of material fact as to whether Spencer requested USCR to perform, and expected

                                               –15–
to be charged for, additional painting of the interior of the Building. There are genuine issues of

material fact as to whether Spencer is liable to USCR for damages relating to work, for which it

had not been compensated, that was within the scope of the Roof Contract, and whether Spencer

and USCR entered into an oral agreement for the repair of approximately 5,000 square feet of the

roof of the Building in addition to the scope of the work contained in the Roof Contract, for

which USCR seeks breach of contract damages in the amount of $32,000. With regard to

USCR’s quantum meruit cause of action, there is a genuine issue of material fact as to whether

Spencer requested USCR to perform roof repairs not specified in the Roof Contract and was

aware USCR expected to be paid for these repairs in addition to the fixed price of the Roof

Contract. We conclude there are genuine issues of material fact with regard to USCR’s claims

for breach of contract and quantum meruit relating to “extra painting” of the interior of the

Building and for roof repair, and summary judgment on these claims was erroneous.

       Spencer additionally asserted summary judgment evidence establishes that the Insurance

Contract is not a valid and enforceable contract, and there is no valid contract between Spencer

and USCR requiring Spencer’s payment of USCR’s overhead, profit, and sales tax obligation

resulting from the work. Having concluded there was no error in granting a no-evidence motion

for summary judgment in Spencer’s favor as to those claims, we need not address Spencer’s

ground for traditional summary judgment on those claims.          See Rico, 420 S.W.3d 439 (if

summary judgment appropriate under no-evidence standard, appellate court need not address

issues related to traditional summary judgment motion).

                                           Conclusion

       We reverse the summary judgment in favor of Spencer on USCR’s breach of contract

claims for alleged extra painting of approximately 40,000 square feet of the interior of the

Building, work performed under the Roof Contract, and repair of approximately 5,000 square

                                              –16–
feet of roof not included in the scope of the Roof Contract. We reverse the summary judgment

in favor of Spencer on USCR’s quantum meruit claims for alleged extra painting of

approximately 40,000 square feet of the interior of the Building and repair of approximately

5,000 square feet of roof not included in the scope of the Roof Contract. We remand those

claims to the trial court for further proceedings. In all other respects, the trial court’s judgment is

affirmed.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE

141150F.P05




                                                –17–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

UNITED STATES CATASTROPHIC RE-                        On Appeal from the 193rd Judicial District
CONSTRUCTORS, INC. AND GARY                           Court, Dallas County, Texas,
CORBIN, Appellants                                    Trial Court Cause No. DC-13-10135.
                                                      Opinion delivered by Justice Fillmore, Chief
No. 05-14-01150-CV          V.                        Justice Wright and Justice Stoddart
                                                      participating.
DAVID SPENCER D/B/A CONTROL
COLLECTIVE, LTD., Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment granting judgment in favor of David Spencer d/b/a Control Collective, Ltd, on United
States Catastrophic Re-Constructors, Inc.’s breach of contract claims for alleged extra painting of
the interior of Spencer’s building, roof repair work on Spencer’s building performed under a
written contract between the parties, and roof repair work on Spencer’s building not included in
the scope of that written contract, and quantum meruit claims for alleged extra painting of the
interior of Spencer’s building and roof repair work on Spencer’s building not included in the
scope of the written contract between the parties. In all other respects, the trial court’s judgment
is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 13th day of November, 2015.




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