TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-18-00526-CV

Thomas Kam, Appellant

v.

Badruddin Karedia, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. C-1-CV-16-007167, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Thomas Kam, acting pro se, appeals from the county court’s judgment that

granted directed verdict in favor of Badruddin Karedia.1 For the following reasons, we affirm. 

Background

In May 2014, Tony Hardt, who was the general contractor on a construction 

project in Liberty Hill, Texas (the property), entered into an oral contract with Kam, in which 

Hardt agreed to pay Kam to perform engineering services for the roof system on the project. 

 

1 We hold Kam to the same standards as licensed attorneys and require him to comply 

with the applicable laws and rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 

2005) (per curiam). To do otherwise would give pro se litigants an unfair advantage over 

litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 

1978). We do, however, construe the issues raised in Kam’s brief liberally. See Tex. R. App. P. 

38.9; Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.).
2

Kam completed the engineering services, providing drawings for the roof to Hardt in May 2014, 

and sent an invoice in November 2014 to Hardt and Karedia, the owner of the property, in the 

amount of $2,500. Pursuant to a written contract between Karedia and Hardt,

2 however, Karedia 

already had paid Hardt the full amount owed to him for the project in May 2014, but Hardt had

not completed the project, and, at some point in the summer of 2014, Karedia did not have

further contact with Hardt.

3

After Kam did not receive payment for the invoiced amount from Karedia or 

Hardt, Kam filed suit in justice court against them. He sought payment of $2,500 for “unpaid 

invoice for engineering services.” Kam did not obtain service of process on Hardt, and Hardt did 

not enter an appearance in the case.

4 After the justice court ruled in favor of Karedia, Kam 

appealed to the county court, and the case was tried to a jury. The two witnesses to testify at trial 

were Kam and Karedia. The exhibits included the written contract between Karedia and Hardt;

proof of payments from Karedia to Hardt;

5 Kam’s drawings; and emails exchanged among

Karedia, Hardt, and Kam. After Kam rested, Karedia moved for directed verdict on the grounds

 

2 Tony Hardt entered into a written contract with Karedia in June 2013, in which Karedia 

agreed to pay a sum certain to Hardt, and Hardt agreed to act as the general contractor on the

construction project. Karedia owned the property and gave the “whole project, including all the 

design and everything” to Hardt.

3

 Karedia testified that he did not remember the “exact date but maybe August or July or 

something [of 2014]” in response to the question “when was the last time that [he] actually had 

contact with [Hardt].” Evidence at trial showed that Karedia paid Hardt around $350,000, and 

Karedia testified that he paid “100 percent” of Hardt’s bill.

4 Hardt is not a party on appeal.

5 The payor of the checks was Nakiba Enterprises, Inc. In his answer and verified denial, 

Karedia alleged that he was acting as the agent of Nakiba Enterprises when he contracted

with Hardt.
3

that there was no privity of contract between Kam and Karedia and that quantum meruit did not 

apply. The county court granted directed verdict for Karedia, and this appeal followed.

Analysis

In the section of his brief titled “Issues for Review,” Kam argues that “[t]his is a 

case of unjust enrichment and quantum meruit” and that Karedia “failed to pay ‘any one’ for 

revised roof design services which he requested, used, and received great benefit from.”

6

 Kam 

argues that Karedia did not pay Hardt or Kam for the “revised roof design” that Kam provided

and requests that this Court render judgment awarding him $2,500 for his services and 

reimbursement of his court costs.

7

Standard of Review

A directed verdict for a defendant may be proper “when a plaintiff fails to present 

evidence raising a fact issue essential to the plaintiff’s right of recovery” or “if the plaintiff 

admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action.”

Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). 

 

6 Karedia testified at trial that Hardt provided the “wrong trusses”—metal ones and not 

steel ones—which required further design work; that Hardt did not ask for additional money for 

the redesign; and that Karedia had “already paid [Hardt] for the professional fee.” Kam testified 

that Karedia “wanted to have a new roof system, a new bar joist system with bar joist and steel 

beams and not the light gauge steel trusses that [Hardt] had actually bought, purchased, and

delivered to the site.”

7 As a preliminary matter, Karedia asks this Court to dismiss Kam’s appeal without 

considering his issues because Kam filed his appellant’s brief on January 18, 2019, and not on 

January 14, 2019. This Court granted Kam’s motion for extension of time and filed his brief. 

We decline to revisit this ruling. 
4

We review a trial court’s directed verdict de novo. John v. Marshall Health 

Servs., Inc., 91 S.W.3d 446, 450 (Tex. App.—Texarkana 2002, pet. denied). When reviewing a 

directed verdict based on insufficiency of the evidence, we apply the legal sufficiency standard 

of review. Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994); see also Exxon 

Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011) (describing standard of 

review of directed verdicts); City of Keller v. Wilson, 168 S.W.3d 802, 807, 823, 827–28 (Tex. 

2005) (stating standard of review for legal sufficiency and explaining that test is same for 

directed verdicts, summary judgments, and appellate no-evidence review). While we view the 

evidence in the light most favorable to Kam, it was Kam’s burden at trial as the plaintiff to plead 

the basis of his claims for relief and then submit evidence to create a fact issue on each element 

of those claims. See Exxon Corp., 348 S.W.3d at 220 (explaining that appellant court views

evidence in light most favorable to person appealing from directed verdict and decides whether 

“there is any evidence of probative value to raise an issue of material fact on the question 

presented”); see also Tex. R. Civ. P. 47 (stating pleading requirements for claims for relief). 

With these well-established standards of review in mind, we turn to Kam’s 

arguments that are premised on quantum meruit and unjust enrichment. 

Quantum Meruit

“Quantum meruit is an equitable theory of recovery based on an implied 

agreement to pay for benefits received.” Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 

402 (Tex. App.—Dallas 2006, no pet.) (citing Heldenfels Bros., Inc. v. City of Corpus Christi, 

832 S.W.2d 39, 41 (Tex. 1992)); see Truly v. Austin, 744 S.W.2d 934, 936–37 (Tex. 1988)
5

(discussing when plaintiff is permitted to recover in quantum meruit). The elements of a 

quantum meruit claim require proof 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, 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.

Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985) (internal quotation and 

citation omitted). To satisfy the second element, it is not enough that a plaintiff’s efforts benefit 

the person from whom he seeks damages; they must have been undertaken “for the person 

sought to be charged.” Truly, 744 S.W.2d at 937 (citing Bashara, 685 S.W.2d at 310).

If an express contract covers the services or materials at issue, recovery under 

quantum meruit generally is prohibited. Id.; Gentry, 188 S.W.3d at 402–03; see Pepi Corp. 

v. Galliford, 254 S.W.3d 457, 462–63 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)

(noting that general rule that “presence of an express contract bars recovery under quantum

meruit” “not only applies when a plaintiff is seeking to recover in quantum meruit from the party 

with whom he expressly contracted, but also when a plaintiff is seeking to recover ‘from a third 

party foreign to the original but who benefitted from its performance’” (quoting Hester 

v. Friedkin Cos., 132 S.W.3d 100, 106 (Tex. App.—Houston [14th Dist.] 2004, pet. denied))). 

A plaintiff, however, may recover the reasonable value of services rendered and accepted if “the

services rendered and accepted are not covered by the contract.” Gentry, 188 S.W.3d at 403

(citing Truly, 744 S.W.2d at 936–37); see Galliford, 254 S.W.3d at 462 (“A plaintiff seeking to 

recover the reasonable value of services rendered or materials supplied is precluded from 

recovering in quantum meruit if there is an express contract that covers those services or 
6

materials and no exception to the general rule applies.”).8 Kam appears to seek relief from this 

Court on this basis.

Kam argues that the services he provided—“redesign” of the roof—were not

covered by the contract between Karedia and Hardt and that Karedia did not pay Hardt or Kam

for those services. As support for this position, Kam relies on Karedia’s email to Kam in 

November 2014, asking him: “can you please check attach file and give advice.” Kam also 

argues that, in his testimony, Karedia “confirmed he never paid Hardt for the roof redesign 

effort” and “asked Hardt to initiate the process to redesign the roof for steel beam and bar joists”; 

and that “[t]he only interpretation of the role of Hardt can be that he was acting as a ‘agent’ for 

[Karedia] to achieve the requested roof design.” Further, Kam focuses on evidence that he 

provided his drawings after the last payment from Karedia to Hardt had been made in May 2014.

We begin by observing that Kam’s pleaded claim to the county court was a breach 

of contract claim—he sought to recover $2,500 based on an “unpaid invoice for engineering

services.” Consistent with his pleaded claim, Kam’s position to the county court was—and the 

evidence was undisputed—that Kam had an oral contract with Hardt to provide the drawings for

the roof system in exchange for a quoted price. See Truly, 744 S.W.2d at 937; Galliford, 

254 S.W.3d at 462–63; see also Lopez v. Bucholz, No. 03-15-00034-CV, 2017 Tex. App. LEXIS 

3071, at *17 (Tex. App.—Austin Apr. 7, 2017, no pet.) (mem. op.) (stating elements of valid oral 

contract). Kam testified about the agreement that he reached with Hardt to provide engineering

services, and he conceded that he did not have a contract with Karedia and that the 

 

8

 Kam has not asserted that any of the exceptions to the general rule apply. See Truly

v. Austin, 744 S.W.2d 934, 936–37 (Tex. 1988) (discussing exceptions to general rule that 

express contract bars recovery under theory of quantum meruit).
7

November 2014 email from Karedia to him was not a contract.

9

 Further, although Karedia had a 

copy of Kam’s drawings, Karedia testified that he obtained the drawings from Hardt, and Kam 

did not provide controverting evidence.

 

9

 During direct examination, Kam testified:

In May of 2014 on or about May 14th, I got a call from Tony Hardt and he said he 

was a contractor for the Boomers in Liberty Hill. And he said that he had 

provided steel trusses for that project and delivered them to the site and the owner 

did not want the steel trusses that were delivered. There was, apparently, a 

miscommunication at the time of the contract and, apparently, there were no 

drawings. Just a written texted contract. And so Tony said that the owner wanted 

to have a new roof system, a new bar joist system with bar joist and steel beams 

and not the light gauge steel trusses that Tony had actually bought, purchased, and

delivered to the site.

And that was on May 14th. And then on May 22nd, I got another e-mail from 

Tony that gave me -- let me back up a second. On the May 14th, I did give Tony 

a quote for the design drawings for that new work. On May 22nd, Tony sent me

another e-mail that gave a layout of the Boomers that would assist me in the 

design. On May 23rd, Tony sent me an e-mail requesting what the owner had 

wanted a roof system. And I received that on May 23rd, and I told him that the

roof system that we had quoted would be comparable to this. And at that time, 

Tony said go ahead and just do the design. By May 29, 2014, we produced a set

of drawings.

Lopez v. Bucholz, No. 03-15-00034-CV, 2017 Tex. App. LEXIS 3071, at *17 (Tex. App.—

Austin Apr. 7, 2017, no pet.) (mem. op.) (“The elements of a valid oral contract are (1) an offer, 

(2) an acceptance in strict compliance with the terms of an offer, (3) a meeting of the minds, 

(4) a communication that each party consented to the terms of the contract, and 

(5) consideration.”).

Kam also testified that he had an oral contract with Hardt during cross examination:

Q. Now, Mr. Kam, you entered into an agreement with Mr. Hardt; is that correct?

A. He’s the one that made the initial call, yes.

Q. Did you ever enter into a written contract with Mr. Hardt?

A. No. 

 ***
8

Thus, the evidence—particularly Kam’s testimony—conclusively proved that 

Kam’s services were not undertaken “for the person sought to be charged”—Karedia—but for

Hardt and that an express contract—the contract between Kam and Hardt—covered those 

services.

10

 See Truly, 744 S.W.2d at 937; Galliford, 254 S.W.3d at 462; Gentry, 188 S.W.3d at 

403; see also Lopez, 2017 Tex. App. LEXIS 3071, at *21–24 (explaining that evidence raised

fact issue as to quantum meruit claim because there was evidence that subcontractor performed 

“extra work” at owner’s direction without involvement of contractor, who averred that he “had 

‘no involvement in directing or agreeing to pay’ for the extra work”); see City of Keller, 

168 S.W.3d at 815 (observing that undisputed evidence may become “conclusive when a party 

admits it is true”).

Based on our review of the evidence, we conclude that Kam failed to present 

evidence to raise a fact issue essential to his right of recovery under quantum meruit—the 

 

Q. . . . So the only way that you could have a contract with Hardt is either in writing or 

verbally; is that correct?

A. Yes.

Q. And you chose the verbal way, right?

A. Yes.

***

Q. Okay. So what we got here then, in sum, Mr. Kam, is you went ahead and wound up 

doing an oral agreement with a person [Hardt] that you never worked with before that you now 

find out is a crook, right?

A. Well, I can’t prove the last part but the first part of your phrase is correct.

10 Consistent with his position to the trial court, Kam expressly states the terms of his

agreement with Hardt in his briefing to this Court. In his recitation of the facts, Kam states that 

he told Hardt “that [his] fee for structural drawings and shop drawing review would be $2,500 

for the redesigned roof system”; that Hardt “authorized [him] to produce the drawings”; and that 

he “completed the drawings for the roof redesign and provided them to Tony Hardt.”
9

evidence was undisputed that Kam undertook “‘redesign’ of the roof” for Hardt pursuant to an

express contract between Kam and Hardt. See Prudential Ins., 29 S.W.3d at 77 (observing that 

directed verdict is proper when “plaintiff fails to present evidence raising a fact issue essential to 

the plaintiff’s right of recovery” and when “plaintiff admits or the evidence conclusively 

establishes a defense to the plaintiff’s cause of action”); see also Galliford, 254 S.W.3d at 459, 

462–63 (concluding that exceptions did not apply to allow subcontractor to recover under theory 

of quantum meruit from owner who hired contractor to construct restaurant and that trial court 

erred by entering judgment premised on quantum meruit). Thus, Kam has not demonstrated 

based on a theory of quantum meruit that the county court erred when it granted directed verdict 

in favor of Karedia.

11

Unjust Enrichment

A party may recover under the cause of action of unjust enrichment when a

person “has obtained a benefit from another by fraud, duress, or the taking of an undue 

advantage.” Heldenfels Bros., 832 S.W.2d at 41; see Galliford, 254 S.W.3d at 460 (explaining 

that “[u]njust enrichment is an independent cause of action” (citing HECI Expl. Co. v. Neel, 

982 S.W.2d 881, 891 (Tex. 1998))). In this case, even if we assume that Kam preserved his 

 

11

 To the extent that Kam argues that Hardt was acting as the agent for Karedia, Kam did 

not present any evidence during trial of a principal-agent relationship between Karedia and Hardt

with respect to Kam’s contract with Hardt. See IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 

(Tex. 2007) (“Texas law does not presume agency, and the party who alleges it has the burden of 

proving it.”); Harding Co. v. Sendero Res., Inc., 365 S.W.3d 732, 742 (Tex. App.—Texarkana 

2012, pet. denied) (noting that “essential element of the principal-agent relationship is 

the alleged principal’s right to control the actions of the alleged agent” (quoting 

Townsend v. University Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App.—Texarkana 2002, 

pet. denied))).
10

argument for appellate review that “[t]his is a case of unjust enrichment,”

12 Kam’s express 

contract with Hardt forecloses this claim for the same reason that he does not have a quantum 

meruit claim. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683–84 (Tex. 2000) 

(explaining that unjust enrichment claims are based on quasi-contract and that there is no 

recovery under a quasi-contract theory “when a valid, express contract covers the subject matter 

of the parties’ dispute”); Freeman v. Harleton Oil & Gas, Inc., 528 S.W.3d 708, 740 (Tex. 

App.—Texarkana 2017, pet. denied) (discussing unjust enrichment theory of recovery, which is 

“predicated on the absence of an express contract controlling the circumstances”); Zapata Corp. 

v. Zapata Gulf Marine Corp., 986 S.W.2d 785, 788 (Tex. App.—Houston [1st Dist.] 1999, no 

pet.) (“When, as here, there is no express contract controlling the circumstances, a party may 

seek to recover under unjust enrichment.”).

Further, we observe that Kam did not present any evidence that Karedia obtained 

a benefit from Kam “by fraud, duress, or the taking of an undue advantage.” See Heldenfels 

Bros., 832 S.W.2d at 41; see also Johnson v. Maund Auto. Grp., No. 03-03-00730-CV, 

2004 Tex. App. LEXIS 7167, at *10–11 (Tex. App.—Austin Aug. 12, 2004, pet. denied) (mem. 

op.) (discussing elements of unjust enrichment and concluding that Johnson had not identified 

actionable conduct by Maund that would support “taking of ‘unfair advantage’”); Villarreal 

v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.—San Antonio, 2004, pet. denied) 

(discussing “taking of an undue advantage” and explaining that unjust enrichment is not proper 

 

12 Kam raised “unjust enrichment” for the first time in his “Request for Rehearing” to the 

county court following the directed verdict, and his argument appears to have been directed to a 

quantum meruit claim. See Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.—Houston 

[1st Dist.] 2007, pet. denied) (concluding that “language used in the pleading indicates 

[subcontractor]’s claim against [owner] is a quantum meruit claim founded on unjust enrichment, 

rather than an independent cause of action for unjust enrichment”).
11

remedy “because it ‘might appear expedient or generally fair that some recompense be afforded 

for an unfortunate loss’ to the claimant” (quoting Heldenfels Bros., 832 S.W.2d at 42)). The 

undisputed evidence was that both Karedia and Kam were harmed when Hardt disappeared 

without completing the project or paying Kam.

13

 Thus, Kam’s argument concerning unjust 

enrichment does not support his position that the trial court erred by granting directed verdict in 

favor of Karedia.

Conclusion

For these reasons, we overrule Kam’s issues and affirm the county 

court’s judgment.

 

13

 For example, when Karedia sent Kam an email in November 2014 asking for help, 

there was no evidence that Karedia was aware that Hardt had not paid Kam for the drawings that

he had provided eight months earlier. Kam provided the drawings to Hardt in May 2014, and he 

testified as follows as to the assistance that he provided to Karedia in November:

So on May 29th, we produced the drawings. And then from June 27th to July 3rd, 

2014, Tony sent us some shop drawings. And shop drawings are drawings that 

fabricate or produces based on the structural drawings. And then the fabricator 

drawings will be used to actually go into the shop to make the elements for the 

building. So we did initial review for the shop drawings at Tony’s request in late 

June to early July. And then we heard nothing on the building.

And then in November 19th, 2014, Mr. Karedia e-mailed me and had some more 

shop drawing information which included some of the stuff that Tony had sent 

earlier but also included more information. So it was a complete set of shop 

drawings in November 19, 2014. And Mr. Karedia’s instructions to us, Tom, can 

you help—Hi, Tom. Can you please check attached file and give advice. Thanks

for your help, Bud. And he leaves a phone number. So we checked those shop 

drawings at the request of Mr. Karedia and returned those to him so he could have 

his material fabricated for his building.
12

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

 Dissenting Opinion by Justice Triana

Affirmed on Motion for Rehearing

Filed: December 13, 2019