## In the Court of Appeals Second Appellate District of Tex as at Fort Worth

___________________________ No. 02

- 23

- 00268

- CV

___________________________

On Appeal from the 481st District Court Denton County, Texas Tri al Court No. 23

- 1137

- 481

Before Bir d well, Womack, and Wallach, JJ

. Memorandum Opinion by Justice Birdwell 

### G ABRIEL 

### G ALINDO AND 

### P ATIOS BY 

### D ESIGN 

### , LLC , Appellants

V


### . J EFF 

### P ETERSON AND 

### M ICHELLE 

### P ETERSON 

### , Appel lees2 MEMORANDUM OPINION Appellant s Gabriel Galindo and Patios by Design, LLC (collectively Galindo) appe al from the trial court ’ s order granting Appellee s Jeff and Michelle Peterson ’ s amende d motion to dismiss pursuant to Rule 91a of the Texas Rules of C i vil Procedure

. We affirm. Background Galindo, as the representative of Patios by Design, entered into a contr act with the Petersons in March 2021 to install a patio cover at the Pet e rson s ’ r esidence. Galindo completed the wo rk described in the contract , and the Petersons paid the agreed price of $10,000. H o wever, t he Petersons were unhappy with the work done, specifically with how the patio cover was tied into the ro of. The Petersons asked Ga lindo to fix the problem , and he did work to that end, but the parties dispute whether he did that additional work properly. The Petersons hired a third party to repair Galindo ’ s o riginal and additional work. The Petersons sued Galindo in justice

court to recover the money they had to pay to the third party. Th at suit was abated under the Residential C onstruction Liability Act because the Petersons did not give prope r notice of the claim. On Feb ruary 9 , 2023, Gali ndo filed this suit against the Petersons i n district

court alleging cause s of action for breach of contract and unjust enrichment. In his claim for breach of contract, Galindo all e ged that t he Petersons “ failed to perform their obligations under the contract because they are [now] requesting payme nt for3 work already complete d by [Galindo]. ” Galindo furth er alleged in his cause of action for unjust enric hment th at th e Petersons committe d fraud or duress and unduly to ok adv antage of him. On March 3, 2023, the Petersons filed special exceptio ns and an original

answer to the petition

. They stated that Galind o ’ s petition failed to adequ ately provide notice of the claims , fa iled to meet the m inimum legal basis for a cause of acti on for breach of contract , and failed to articulate a cause of action for u njust enrichment. They dem anded that Galindo dismiss the clai ms or amend his pleadings to correct

su bstantive defe cts
. After Gal indo d id not amend his pleading s , th e Petersons filed a motion to dismiss Galindo ’ s allegedly baseless c auses of action

. See Tex . R. Civ. P. 91a. The Rule 91 a motion to dismiss was set for a hearing on June 1, 2023. On May 24, 2023, Galindo file d a re sponse to the Peter sons ’ motion to dismiss stating tha t his pleadings sati s fied the fai r notice requirement

. Galindo also filed an amended pe tition on that same day

. In the amended petitio n, Galindo stated that the Petersons breac hed th e contract by requi ring Galindo “ to perform other work [that]

was not contracted for [] and [that] was outside the scope of the original contract
. ” Gali ndo further alleged that the Peter sons had filed suit against him in j ustice c ourt to extort money from h i m and defraud h im. In his cause of action for unjust enrichment, Galindo alleged th at the Peter sons ha d been un justly enriched as a result of Galin do ’ s

“ taking losses and ma king no profit under this contr act [] b ut yet still rea ping the benefits of [Galindo ’ s] labor, time, and services. ” Galindo further added a cause of4 action for violation of the Prompt Pay Act set out in C hapter 28 of the Texas Propert y Code. See Tex. Prop. Code Ann. §§ 28.001

– .0 10. The Pet ersons then amended th ei r motion to dismiss and continued to alleg e that each cause of action was baseless or without merit

. After a hearing on July 7, 2023, the trial court granted the Pet e rsons ’ m otion to dismiss and awarded the P ete rsons atto rney ’ s fees

. Thi s appeal followed. Galindo argues in three issues that his pet ition had a basis in law and in fact and that the trial cou rt erred by rel ying on evidence and argument outside the plea dings

. Stan dard of Review and Applica ble Law Dismi ssal of a suit is appr op riate under Rule 91 a “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought .

. . [or if ] no reasonable person could believe the facts p leaded.” City of Dallas v. Sanchez , 4 94 S.W.3d 722, 724 (Tex. 2016) (citing Tex. R. Civ. P. 91a). We review a Rule 91a motion ’ s merits de novo because the availability of a remedy under the facts alleged is a question of law and b ecause the rule ’ s f actual

plausibility standard is akin to a le gal

- sufficiency rev iew. Id. If a claimant ’ s factual allegations in his pleadings, taken as true, and the reasonable inferences to be drawn from those allegations do not entitle the claimant

to the relief sought, then the claim has n o basis i n law. Fiamma S tatler, LP v. Chall is

, No. 02

- 18

- 00374

- CV, 2020 WL 6334470, at *8 (Tex. App.

— Fort Worth Oct. 29, 2020, pet. denied) (mem. op.). Rule 91a limits a court ’ s factual inquiry to the plaintiff ’ s5 pleadings, but it does not so limit the cou rt ’ s legal inquiry. Be th el v. Quilling, Sel ander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 656 (Tex. 2020). Analysis
In his first two issues, Galindo argues that his pleadings on the causes of action for breac h of contract, unjust enri chment, and v iolation of the Prompt Pay Act each had a b asis in law and in fact. Breach of C o ntract To prevail on a bre ach of contract claim, the plaintiff must establish (1 ) a valid

contract with the defendant, (2) that the plain tiff performed, (3) that t he defendant breached, and (4) that t he plaintiff suffer ed damages as a result of that breach

. Lloyd Walterscheid & Walterscheid Farms, LLC v. Walterscheid , 557 S.W.3d 245, 258 (Tex. App.

— Fort Worth 2018, no pet.). Galindo alleged that he and the Pete rsons entered in to a contract for Galindo to install a patio co ver at the Pet ersons ’ residence in exchange for paym ent of $10,000. Galindo also alleged that he perform ed the work described in the contract and that the Peterson s paid hi m for his servi ces. He did not claim t ha t the Petersons bre ached the contract by refusing to pay the agreed upon amount for the services provided , nor did he allege that the parties entered into a new contract that the Petersons failed to perform

. Galindo con tends that th e Petersons breached the contract when they required him to “ perform other work [that] was not contracted fo r [] and [that] was outside the

sco pe of the original contrac t. ” Galindo states that a suit for breach of contract m ay6 include wrongf ull y requiring a party to perform work o utside the scope of the

contract , citing as authority Vast Construction , LLC v. CTC C o ntractors, LLC , 526 S.W.3d 709, 724 (Tex. App.

— Houston [14 th Dist. ] 2017 , no pet.) , Hejin H ong v. Nations Renovatio ns, LLC , No. 05

- 15

- 01036

- CV, 2016 WL 7473900 , at *1 (Te x. App.

— Dallas Dec. 29, 2016, pet. d en ie d) (mem. op.) , and Tribble & Stephens Co. v. RGM Co nstructors, L.P. , 154 S.W.3d 639, 667 (T e x. A pp.

— Houston [14 th Dist.] 2004, pet. den ie d) . However, none of those cases hold t hat a claim for breach of contract may i nclude wrongfully requiring a party to perform work outside the sco pe of the

contract after the party has already fully p erformed

. Tribble was an appeal from a summary judgment in a construction

- contract suit

to rec ove r amounts still due under the contrac t after constructio n completion

. Tribble , 154 S.W .3d at 646. The issue before the court was whether a sub cont ractor had complied with a condition precedent to litigation, specifically whether the

s ubcontractor was fi rst required to sub mit claims for work o utside the scope of the

contract to the general contractor before suing to recover compensation for that extra work. Id . at 666

– 67

. In Vast Construction , a dispute between a general contractor and a subcontractor

re qui r ed t he general contractor to hire an other subcontractor to complete the project , and the general contractor sued the subcontractor for the difference

. Vast Constr

. , 526 S.W.3d at 7 16

– 17

. The court held that the evidence was sufficient to s upport the jury’s finding that the sub contract or fai led to comply with the contract. Id . at 721. The7 court th en con sidered th e general contractor ’ s damages, which included the difference between the contract with the original subcontractor and the replacement subcontr a ct or. Id . at 723. The original subcontr actor argued that t he general contractor could not recover charges in the replacement contract for additional work not included in the original su bcontractor ’ s contract. Id

. In He jin Hong , a contractor sued its cust o mer for breach of contract, quantum

mer uit, a nd other the ories. Hejin Hong , 2016 WL 74 73900 , at *1 . The jury found that the customer breached the contract by failing to fully pay for the contracted work and that the contractor had performed additi onal wor k outside the s cope of the

contract

— to which the par ties had agreed

— for which it was not paid. Id

. The court analyzed the sufficiency of the evidence to support the jury ’ s findings and whether the trial court properly submitted the theory of quantum meruit as a basis for recovery fo r the extra work to the j ury but did not dis cuss whet her a request for services outside the scope of the contract formed the basis for a breach of contract claim. Id . at * 4, * 9. The three c ases cited by Galindo thus do not suppo r t his ar gument that a claim for breach of contract may include wrongfu lly requiring a party to perform work outside the sco pe of the contract. Galindo furt her argues that the Petersons failed to perform under the contract because they had “ request [ed] pa y ment for work already completed by [ Galindo ].” With this clear reference to the remedial damages sought by the Petersons in justice court for Galindo ’ s failure to perform under the original contr act, he attempts to8 allege they breached the contract, in eff ect, by seeking damages for his alleg ed breach of contra ct. N o t only does he fail to provide any authority that seeking remedial damages for breach of contract in such a manner constitutes a breach of the same contract, his pleadings do no t allege any fact s to show that the Petersons actually breached the contr act ; as pleade d, the contract required them solely to pay $10,000 to Galindo for his services, defective or otherwise, which they d id

. No ne of Galindo ’ s al legations , taken as true, s how a val id basis in law or fact for a claim f or breach of contra ct. W e conclude that Galindo ’ s claim for breach of contract had no basis in law or fact and therefore failed to give fair notice to the Petersons. See Tex. R. Civ. P . 91a. Unjust Enr ichment In his a mended p etition, Galindo allege d a cause of action for u njust enrichment stating that the Petersons had retained the benefit of Galindo ’ s additional materials and labor without making full payment
. This court has repeatedly held th at unjust enrichm ent is not an in dependent cause of ac tion. Landers v. La nders, No. 02

- 19

- 00303

- CV, 2021 WL 1570011 , at *8 (Tex. App. —Fo rt Worth Apr

. 22, 2021, no pet.) (mem. op.) ; Davis v. OneWest Bank N.A. , No. 02

- 14

- 00264

- CV, 2015 W L 1623541, at *1 (Tex . App.

— Fort Worth Apr. 9, 2015, p et. denied) (mem. op. ) ; see a lso Lawry v. Pecan Plantation Owners Ass ’ n, No. 02

- 15

- 00079

- CV, 2016 WL 4395777, at *6 (Tex. App.

— Fort Worth Aug. 18, 2016, no pet.) (mem. op. ); Hulen v. Hamilton , No. 2

- 06

- 288

- CV, 2008 WL 5538 12, at *4 (Tex. A pp.

— Fort Worth Fe b. 28, 2008, no pet. )9 (mem. op.); Fribe rg
– Cooper Water Supply Corp. v. Elledge , 197 S.W.3d 826, 832 (Tex. App.

— Fort Worth 2006), rev ’d on other grounds , 240 S.W.3d 869 (Tex. 2007) . U nju st enrichment “characterizes the resu lt of a failure t o make restitutio n of benefits either wrongfully or pass ively received under circumstances that give rise to an implied or quasi

- contractual obligation to repay. ” Davis , 2015 WL 1623541, a t *1 (quoting Argyle Indep. Sch

. Dist. ex rel. Bd. of Tr s. v. Wolf , 234 S.W.3d 229, 2 46 ( Tex. App. —Fo rt Wo rth 2007, no pet. ))

. Galindo has framed the failure to pay him for his additional work as a b reach of the original contract, not as additional work done subject to a new contract or an agreement that the Petersons the n breached. In s o framing the issue, Galindo concedes th at he was paid according to the terms of the original contract. We surmi se th at what Galindo seeks, but has not pleaded for, is a caus e of action for quantum meruit. A quantum merui t claim can suppor t an unjust enri chment claim. See Owe ns v. Curry, Tr. Of Milton C. Curry & Mamie W. Curry Revocable Living Tr. , No. 02

- 22

- 00182

- CV, 2023 WL 3017928, at *10 (Tex. App. —Fo rt Wo rth Apr. 20, 2023, pet. denied ) (me m. o p.). To recover under qua ntum meruit , Galin do had to prove that (1) valuable services or materials were furnished, (2) to t he parties sought to be charge d, (3) which were accepted by the parties sought to be charged, and (4) under circumstances that reasonably notified the recipie nt that the compla ining party , in performing, expected to be paid by the r ecipient. Kitchen v.10 Frusher , 181 S.W.3d 467, 477 n.6 (Tex. App. —Fo rt Worth 2005, no pet.) (op. on reh’ g). Quantum meruit is an equitable theory of recovery which is based on an imp lied agreement to pay for benefits received. Heldenfels Bros., Inc. v. Cit y of Corpus Christi , 832 S.W.2d 39, 41 (Tex. 1992). With regard to the fourth element, not only must the plaintiff expect to be paid fo r the services but also there must be proof tha t the recipient of the services ha d reasonable notice t hat the plaintiff, in performing the services, expected to be paid by the recipient. Collins & Aikman Floorcoverings, Inc. v. Thomason , 256 S.W.3d 402, 408 (Tex. App.

— San Antonio 2008, pet. denied). N ot only has Galind o not mentioned quantum meruit as a c ause of action, alt hough given ample opportunity to do so, his pleading that he performed additional work according to the original contract negates an y s uch cause of action. Without either a new contr act or quantum mer uit claim or all egation , Galindo is u nable to establish a claim for unjust enrichment. Galindo attempts to establish that the additional work he performed, for which he seeks compensation, was performed in addition to the work required un der the original c ontract ; h owever , the Petersons ’ suit in justice court m akes clear that the additional work performed by Galindo was to comply with his obligations under the original contract

. Gal indo has not pleaded any factua l basis for treating the ad ditional work as a nything other th an work perfo rmed und er the original con tract, which the Petersons paid in full

.11 We conclude that Galindo ’ s independent cause of action for unjust enrichment has no basis in law or in fact. C laims under Chapter 28 of the Texas Property Cod e Se ction 28.00 2 of the Property Code provides , If an owner or a person authorized to act on behalf of the owner receives a written payment request from a contractor for an amount that is allowed to the contrac tor under the contract for properly performe d work o r suitab ly stored or speciall y fabricated materi als, the owner shall pay the amount to the contractor, less any amount withheld as authorized by statute, not later than the 35 th day after the date the owner receives the request. Tex. Prop. Code An n. § 28.00 2(a). In his plea dings, Galindo all eged tha t the Petersons ’ “ failure to timely pay [ him ] for the materials and labor [ he ] provided violate [d] Chapter 28 of the Texas Property Code, other wis e known as t he ‘ Prompt Pay Statu te .’” Galindo st ated that he was entit led to re cover interest on the unp aid invoices. Galindo did not allege that he sent a written payment requ est to the Petersons or that they failed to pay any invoices. Nevertheless, even if the pleadings can be liberally construed to include such allegatio ns, Gal indo has no t allege d a cause of action under Chapter 28 of the Texas Property Code , which requires the existence of a contract

. Although Rule 91a is a procedural device that m ust be strictly constru ed and narrowly appl ied, we conclude th at none of Galindo ’ s claims against t he Petersons as12 pleaded have a basis in law or fact and that the trial court appropriately dismissed the claims . We over rule Galindo ’ s first and second issues. Outside Evidence
In his third issue, Gal indo argues that the trial cou rt erre d by c onsidering

ev idence outside the pleadings in determining the Rule 91a motion. In determining a Rule 91a motion, the trial court ’ s factual inquiry is limited to “the pleading of the cause of act ion” and any pleadin g exhibits permitted by Rule 5 9 of th e Texas R ules of Civ il P rocedure , which are those attached to or copied into the plaintiff ’ s pleadings. Tex. R . Civ. P. 59, 91a.6 ; see Bethel , 595 S.W.3d at 656 ; Fiamma Statler , 2020 WL 6334470, at *8 . But the trial co urt ’ s legal in quiry is not as l imited

. See Bethel , 595 S .W.3d at 656. In its legal inquiry, a trial court may additionally consider the sub stance of the motion to dismiss and any arguments presented at the hearing. S ee id. at 655. At t he hearing on the mo tion to dismiss, the Peterson s’ counsel stated that Pati os by Des ign had forfeited its char ter and did not have the right to prosecute a suit. Galindo ’ s counsel o bjected to the introduction of evidence or st atements about the fo rfeiture of the char te r stating that the trial cou rt coul d look only to the pleadin gs. The trial court overruled the objection and took judicial notice that Patio s by Design ’ s charter had been forfeited. T he trial court sta ted , I canno t fi nd any case law, at this time, that would indicate th at a 91a motion w ou ld be properly he ard when a charter has been forfeited. I do not believe that - - that the petitioner in this case is allowed to go13 forward on the 91a motion. H owever, the Court on a 91a motion may re view th e filings. I have read all of the filings in this ca se including the first amended petition. The Court understands the seriousness of a 91a motion to dismiss, and I understand that I must give the petitioner the benefit o f assump tions in this case. However, after reading the plaintiffs ’ first amended pet iti on, under brea ch of contract, unjust enrichment, and violation of a Prompt Pay Act, I also could not understand what the cause of action was. T h e trial court ’ s stat ements indicated tha t the r uling on the motion to dismiss was not based upon the forfeitur e of the charter, but rather on the pleadings themselves

. Galindo ’ s counsel argued to the trial court that the ruling on the Rule 91a motion could be made o nly by c onsidering the plead ings and that he did not have notice of the argument th a t the charter had been forfeited. The trial court responded that a Rule 91 a motion is “ rarely granted ” but explained, “ [ I ] n reading the causes of action, I don ’ t understa nd what they are. And so , if the Cou rt doesn ’ t understand, I ’ m not sure how [the Petersons ] are supp osed to understand. ” Galindo ’ s counsel again argued t hat the pleadings were sufficient to defeat the Rule 91a motion. The trial

court fur ther explained the rulin g by stating , Your

-- your argument, l ike, whether or not it ’ s included in the pleadings doesn ’ t matter to me. It ’ s whether someone is on notice and can understand what the issue is in the pleadings, and I cannot under stand what th e issue is. I have conside red all of the pleadings. I have read e verything that yo u ’ ve written. I ’ ve still listened to arguments today, and I still don ’ t understand what the issue is. I ’ m granting the 91a motion. R

u le 91a.6 does not allow a t rial court to consider evide nce in ruling on the motion. A party cannot rely on judi cial notice in a R u le 91a proce eding because14 j udicial notice is “ a matter of evidence. ” Re ynolds v. Quantlab Tradin g P artners U S, LP , 608 S.W.3d 549, 557 (Tex. A pp.

— Houston [14 th Dist.] 2020, no pet.)

. Although the trial court took judic ial notice that Pat io s by Des ign had forfeited its charter, it is clear that the trial court did not rely on the charter forfeiture in granting the Peterson s ’ R

u le 91a motion to dismiss. We o verrule Galindo ’ s third issu e. Attorney ’ s Fees Galindo argues in an unassigned issu e that because the trial court erred by granti ng the Petersons ’ R u le 91a m otion to dismiss, it also erred by awarding attorney ’ s fees to the Petersons and not aw arding him attorney ’ s fees. Be cause we ho ld that the trial court did not err by granting the Pe terson s ’ R u le 91a motion to dismiss, we hold t ha t the trial court did not err by awarding the Peterson s attorney ’ s fees and denying Galindo attorney ’ s fees. 1 See Tex. R. C i v. P. 91a.7. C onclusion Ha ving overruled all of Galindo ’ s issue s on appeal, w e aff irm the trial court ’ s judgment. /s/ Wade Bird well Wade Birdwe ll Justice Delivered: April 25 , 2024

1 Galindo does not challenge the amount of attorney ’ s fees awar ded to the Petersons.