                             COURT OF APPEALS FOR THE
                        FIRST DISTRICT OF TEXAS AT HOUSTON

                                            ORDER

Appellate case name:     Alzo Preyear, Sr. v. Kumar Kandasamy and Advanced Platinum
                         Solutions, Inc.

Appellate case no.:      01-11-01093-CV

Trial court case no.:    2008-48663

Trial court:             281st District Court of Harris County

       On September 20, 2013, Kumar Kandasamy and Advanced Platinum Solutions,
Inc. (“APS”) filed a motion for rehearing. In the motion, APS asserts that this Court
erred in concluding that it had not challenged the fourth element of quantum meruit (i.e.,
that the plaintiff had rendered services under circumstances as would reasonably notify
the defendant that he expected to be paid) as a ground for summary judgment.1 APS
contends that although its argument in its summary judgment motion addressing
Preyear’s quantum meruit claim was brief, it was “pregnant with meaning” and
“explicitly referenced” the fourth element.
       APS’s entire summary judgment argument related to Preyear’s quantum meruit
claim is as follows:




1
       On August 22, 2013, we issued our opinion in the above case reversing the trial court’s
       order granting summary judgment in favor of appellees on appellant Alzo Preyear’s
       quantum meruit claim. In our opinion, we held that Preyear had produced sufficient
       summary judgment evidence raising a genuine issue of material fact regarding the first
       element of his quantum meruit claim (i.e., that he had rendered valuable services to APS).
       We also concluded that APS had not challenged the fourth element in its hybrid no-
       evidence and traditional summary judgment motion.
       Quantum meruit is an equitable theory of recovery based on an implied
       agreement to pay for benefits received. Vortt Exploration Co. v. Chevron
       U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990).
       Plaintiff Alzo claims that APS received the ‘benefits of the Plaintiff Alzo’s
       services, time and equipment for the Plaintiff Alzos’s role in the start-up
       and operation of APS.’ . . . Plaintiff Alzo’s claim is nonsensical. . . . He
       was not around during the start up and admits to knowing nothing about the
       start up. Plaintiff Alzo did not even know the “start-up” date of APS. . . .
       Clearly, then, Plaintiff Alzo has no claim to be compensated for “start-up.”
       There is no evidence that supports Plaintiff Alzo’s claim that he provided
       services, time or equipment for the start-up and operations of APS.
       APS argues that its reference to Vortt Exploration above demonstrates that it was
challenging the fourth element. However, the first sentence merely states a general
proposition of law regarding quantum meruit and cites to Vortt Exploration as legal
authority.
        APS also argues that Preyear’s summary judgment response shows that Preyear
recognized that APS had raised the fourth element in its motion. Whether Preyear
addressed the fourth element in his response does not absolve APS of its burden to “state
the specific grounds” entitling it to summary judgment relief under Rule 166a(c) and to
“state the elements as to which there is no evidence” under Rule 166a(i). See TEX. R.
CIV. P. 166(c), (i). Further, Preyear addressed all four elements of a quantum meruit
claim in his summary judgment response, arguing that there existed material issues of
fact on each element.
        As such, APS failed to challenge the fourth element of Preyear’s quantum meruit
claim and, therefore, we did not need to consider it on appeal. See McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Klentzman v. Brady, 312
S.W.3d 886, 908 (Tex. App.—Houston [1st Dist.] 2009, no pet.). APS is not entitled to
relief on this basis. Having so concluded, we need not address its additional argument
that there is no evidence of the fourth element.
       Accordingly, APS’s motion for rehearing is denied.

Judge’s signature: /s/ Jim Sharp
                    Acting for the Court

Panel consists of: Chief Justice Radack and Justices Sharp and Massengale

Date: November 26, 2013
