### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

O N MOTION FOR REHEARING

NO. 03
- 18
- 00526
- CV

Thomas Kam, Appellant

v. Badruddin Karedia , Appellee

FROM THE COUNTY COUR T AT LAW NO. 1 OF TR AVIS COUNTY NO. C
- 1
- CV
- 16
- 007167 , THE HONORABLE TODD T. WONG , JUDGE PR ESIDING

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
grant ed directed verdict in favor of Bad ruddin Karedia. 1 For the following rea sons, we affirm

.
Background In May 2014, To ny Hardt , who was th e 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 K am to perform engineering services for the roo f system on the pro ject

.

1 We hold Kam to the same s t andards as licensed attorneys and require him to comply with the appli cable laws an d rules of procedur e. Wheeler v . Green , 157 S.W. 3d 439, 44 4 (Tex. 2005) (per curia m). To do othe rwise wou ld give pro se litigants an unfair advantage over litigants repre s ented b y counsel. Mansfield State Bank v. Cohn , 573 S.W.2d 181, 184

– 8 5 (Tex

. 1978)

. We do, howev er, construe the issues raised in K am ’s brie f liberally. See Tex. R . App. P. 38.9; Washingt on v. Bank of N.Y. , 362 S.W.3d 853, 854 (Tex. App.

— Dallas 2012, n o pet.).2

Kam comp let ed the engineerin g se r vic es , provid in g draw ings for the roof to Hardt in May 2014 , and sent an invoice in Nove mber 2014 to Hardt and Karedia , the owner of the property, in the amount of $2, 500. Pursuant to a written contract between Karedia and Hard t , 2 however, Ka redia already had pa id Hardt the full amount owed to him for the project in May 2014 , but Hardt had

no t c o mplete d the p ro

ject , and , at som e point in the summer of 2014, Karedia did not have
f urther contact with Hardt

. 3

After Kam did not recei ve pa yment f or the i n voice d am o un t from Karedia or
Hardt , Kam filed suit in justice court against them

. He sought payment of $2,500 for “ unpaid invoice for engi neering services. ” Kam did n ot o btain serv ice of process on Hardt , and Hardt did

not enter an appear ance i n the case

. 4 Aft er t he ju stice court rule d in favor of Karedia , Ka m

a ppealed to th e coun ty court , and the case was tried to a jury. The t wo witnesses to t estify at trial
were K am a nd Karedia. T he ex hibits included the w ritten contract betwee n Karedia an d Hard t ; proof of payments from Karedia to Ha rdt ; 5 Kam ’ s drawings ; and emails ex cha nge d among Karedia, Har dt, and Kam

. A fter Kam rested, Karedia mo v ed for directed verdi c t on the g rou nd s

2 Tony Hardt entered into a writte n contract with Karedia in June 20 13 , in which Kare d i a agre ed to pay a s um certain to Hard t , and Har dt agreed to act as the general contractor on the c onstruction pro

ject

. Karedia owned the property an d g ave the “ whole p r oject, incl udi n g all the design an d ever ything ” t o Hardt

.

3 Kare d i a testified that he did n ot remem ber t he “ exact date b ut maybe A u gust or July or someth ing [of 201 4] ” in re sponse to the question “ wh en was the last time that [ he ] actually had c on tact with [ Hardt ]

. ” Eviden ce at trial showed that Karedia paid Hardt aro und $35 0,000 , and Karedia te stified that he paid “ 100 pe rcent ” of Hardt ’ s bill

.

4 Hardt is not a party on appeal.

5 The p ay or of the checks was Naki ba Ent erprises, Inc. In his answer and verified de nial, Kar e dia alleged that he was acting as the agent o f Nakiba Ent erpr ises when he contracted with Hardt

.3

that there was no privity of contract betw een Kam and Ka redia and th at quantum me ru it did not apply

. The county court gr anted directed verdict f or K ar edia , and t his appeal f ollowed.

An a l ysis
In the sectio n o f his brief titled “ Issues f or Review, ” Kam ar gues that “ [ t ] his is a
case of unjust enrichment and qua nt um mer uit ” and that Ka redia “ failed to pay ‘ any one ’ for
revis ed roo f design service s which he requested, used , and received great benefit from. ” 6 K a m

a r gues that Karedia did not pay Hardt or Kam for the “ revised roof design ” that Kam pro vided
and re que sts that thi s Court re nd er judgment awarding him $ 2,500 for his ser vices and
reimburse me nt of his court c osts

. 7

S tandard of Re v iew

A directed verdi ct f

or a defendant may be proper “ when a plaintiff fails to present evidence raising a fact issue essential to the plai ntiff ’ s ri ght of recovery ” or “ if the plaintiff
admits or the evidence con clusively establi shes a de fense to the plaintiff ’ s cause of act ion

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

.

6 K aredia te stified at trial that Hardt provided the “ wrong trusses ”

— me tal ones a nd not steel one s

— wh ich requir ed further design w ork ; that Hardt did not ask for additi onal m oney for the red esign ; and t hat Karedia had “ already p aid [Hardt] f or the pr o f

ession a l fee. ” Kam tes tified that Karedia “ wanted to have a new roof system, a new bar joist system wit h ba r joist and steel beams and not the light gauge steel trusses t hat [H ardt] had actually bought, p urchased, and delivered to the site

. ”

7 As a preliminar y matter, K aredia a sks thi s Court to dismiss Ka m ’ s appe al wi thout considering his issues because Kam filed his appellant ’ s brief on January 1 8, 2019, and n ot on Jan ua ry 14, 2019

. This Court granted K am ’ s motion for extension of time and filed his brief

. W e decline to rev i s it this ruli ng
.4 We rev iew a trial court ’ s di rected verdict d e novo. John v. Marshall Health Servs., Inc

. , 9 1 S.W.3d 446, 450 (Tex. Ap p.

— Texarkana 2002, pet. denied). Whe n r e viewing a directed verdict based on insufficiency of the evidence, we apply the legal sufficiency stand ard
of revie w. Szcz ep anik v. First S. Tr

. Co. , 883 S.W.2d 648, 649 (Tex. 1 994); see a lso Exxon Corp. v. Emerald Oil & Gas Co., L. C. , 348 S.W.3d 194, 220 (Tex. 2011) (desc ribing sta n d ard of
review of directed ve r dicts); City of Kel ler v. Wi lson , 168 S.W.3d 802, 807, 8 23 , 827

– 28 (Tex.
20 0 5 ) ( stating standard of review for legal sufficiency and exp laining 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 Ka m, it was Ka m’s burden at trial as the plaintiff to plead
the basis of his claims for relief and then submit evidenc e to create a fact issue on each element
of those claim s. See Exxon Corp. , 348 S.W.3d at 220 (explaining that appellant c ourt view s
evidenc e in light m ost favora ble to person appealing from directed verdict and decid e s whether

“ t here is an y evidence of probative value to raise an issue of material fact on the question presented ” ) ; see also Tex. R. Civ. P. 47 (stating pl eading requirements for claims for relief)

.

With th ese well

- e st ablished s ta ndard s of review in min d , we turn to Kam ’ s

ar gume nts that are p r emised on quantum mer uit and unjust enrichme nt.

Quant um Mer u it

“ Quantum meruit is an equitable theory of recovery based on an implied
agreement to pay for benefits re ce ived. ” Gentry v. Squires Constr. , Inc. , 1 88 S.W.3d 396,
402 (Tex. App

. — Dallas 20 0 6 , no pe t. ) (citin g Heldenfe ls Bros., Inc. v. City of Corpus Christi , 832 S.W.2d 39, 41 (Tex. 1992)) ; see Truly v. Au stin , 744 S .W.2d 9 34, 9 3 6

– 3 7 (Tex. 1988)5

(d iscussing when plaintiff is perm itted to recover in quan tum mer uit)

. T he elements of a
quantum m eruit claim req uire proof that:

1) valuable services were rendered or materials furnished; 2) for the person sought to be cha rg ed; 3) which services an d materi als were accepted by the person sought to be cha rged, us ed and enjoyed by him; 4) under such ci r c umstances as re asonably notified the person sought to be charged that the plaintiff in performing such services was expecting t o be paid by the person sought t o be charged.
Bashara v. Baptist Mem ’ l Hosp. Sys

. , 685 S .W.2d 307, 310 (Tex. 1985) ( internal qu o t ation and
citation omitted)

. To satisfy the second element, it is not enough that a plaintiff ’ s efforts benefit the person f

ro m whom he se eks damages; they mu st have been undertaken “ for the person sought to be cha rged

. ” Truly , 744 S.W.2d at 937 (citin g Bashara , 685 S.W.2d at 310)

.

I f an express contract covers the services or materials at issue, recovery under
quantum meru i t generally is pr ohibited. Id. ; G entry , 188 S.W

. 3d at 402

– 03 ; see Pe pi Corp.

v. Ga lliford , 254 S.W.3d 457, 462

– 63 (Tex. App.

— H ou s t on [1 st Di st.] 2007, pet. denied) ( not ing that gen eral rule t hat “ presence of an ex press contr act bars recovery under quantum

m eruit ” “ not only applies when a plaintiff is seeking to recover in quantum meruit from the party with whom he expressly contrac t e d, but also when a plaintiff is seeking to recover ‘ from a third party foreign to the original but who benefitted from its pe rf ormance ’ ” (q uoting Heste r

v. F ri edkin Cos

. , 132 S.W.3d 100, 106 (Tex. App.

— H ouston [1 4 t h Di st.] 200 4 , pet. denied ) ))

. A p lain tiff , however, may re cove r the reasonable value of services rendered and accepted if “ the services rendered and accepted are no t covered by th e contract

. ” Gentr y , 188 S.W.3d at 403 (citing Tru ly , 744 S.W.2d at 936

– 37 ) ; see Ga lliford , 254 S.W.3d at 46 2 ( “ A plaintiff seeking to

recover the reasonable value o f serv ices rendered or material s supplied is precluded from recovering in q ua ntum meru it i f there is a n expre ss contract that c overs those se rvices or6

material s and no ex ception to the general rule a p plie s. ” ). 8 Kam appears to seek re lief from this
Court on this basis

.

Kam argues that the services he provided

— “ redesign ” of t he roo f

— were not

c overe d by th e co ntract between Karedia and Hardt and that Kared i a did not pay Hardt or Kam
for those services

. As s u p port for this position, Kam rel ies on Karedia ’ s email to Kam in
Nove mber 2014 , asking hi m: “ can yo u please check attach fi le and give ad v ice

. ” Kam a lso

a rgues that , in his testimon y, Karedia “ confirmed h e never paid Hardt for the roof re design
effort ” an d “ asked H ardt to initiate the process to redesign the roof for steel beam an d bar joists ” ;
and that “ [t]he only interpre ta tion of the ro l e of H ardt c an be that he was acting a s a ‘ agent ’ f or [ Kar edia ] t o achi eve the requested roo f design. ” Further, Kam f o cuses on evidence that he provided his draw ings after the l ast pay ment from Karedia to Hardt had been made in May 2014

.

We begi n by obs erving 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 en g ineering
services

. ” Consistent with his pleaded claim , Kam ’ s position to the county court wa s

— and t he
evid enc e was undi sp uted

— that Kam had an oral c ontract with Hard t to provide the drawing s for
the roo f system in exchange for a quoted price

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

– 63 ; see also Lopez v. Bucholz , No. 03

- 15

- 0003 4

- CV , 2017 Tex. A pp. LEXIS
30 71 , a t * 17 (Tex. App.

— Austin Apr. 7, 2017, no pet.) (mem. op.) (stating elem ent s of valid oral contract)

. Kam testified about the agreement that he reached w ith Hardt to provide engi neering

ser vices , and he conc eded that he di d not have a cont ract with Ka redia a n d that th e

8 Kam has not asser ted that any of the exceptions to the general rule apply. See Truly
v. Austin , 7 44 S.W. 2d 934, 93 6

– 37 ( Tex

. 1988) (discussing ex c eptions to ge ne ral rule that express c ontract bars recovery under th e o ry of qua ntum meruit).7

Nove mber 2014 email from Karedia to him was not a contract

. 9 Further, a lthough Karedia had a copy of Kam ’ s drawings , Karedia testi f ied th at h e obtained the drawings from Hardt , and Ka m did not provide contro ve rting eviden ce
.

9 Durin g direct examinatio n, Kam testified:
In May of 2014 on or about May 14th, I got a call from Tony Hardt and he said he was a contracto r for the Boomers in Liberty Hill. And he said that he had provided stee l trusses for th at project and delivered them to the site and the owner did not want the steel trusses that were delivered. T here was, apparently, a miscommunication at the time of t he contract and, apparently, there were no drawings. Just a written text ed contract. An d so Tony s aid that the owner wanted to have a new roof system, a new bar joist system with bar joist and steel b eams and not the light gauge steel trusses that Tony h ad actually bought, purchased, and delivered to the site.

An d that was on May 14th. And t hen 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 ne w work. On May 22nd, Tony sent me another e

- mail that gave a layout of t he Boomers that w ould assis t 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 hi m that t he roof system that we had quoted would be comparabl e to this. A nd at that time, T ony 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. A pp. LEXIS 3071, at * 17 (T ex. App.

— Austin Apr. 7, 2017, no p et.) (mem. op.) ( “ The elem ent s of a val id oral contract are (1) an offer, ( 2) an acc eptance in strict compliance with the terms of an offer, (3) a meeting of the minds, (4) a communication that each par ty c on sented to the terms of the contract, and (5) con sideration. ” )

. Kam also t estified that he had a n or al contract with Hardt during cro ss examination: Q. No w, M r. K am, you entered into an ag reement with Mr. Hardt; is t hat correct? A. He ’ s t he one that made the initia l call, yes. Q. Did you ever ente r into a wr itten co ntract wi th Mr. Hardt? A. No.

** *8 Th us, the e vi dence

—

particularly Kam ’ s testimony

— conclusively proved that
Kam ’ s serv ices were not undertaken “ for the person sought to be cha rged ”

— Kar ed ia

— but for
Hardt and t hat an ex press contract

— the contra ct betwe e n Kam and Hardt

— covered those
service s
. 10 See T

r u ly , 744 S.W.2d at 937 ; G alliford , 254 S.W.3d at 462; Gentry , 1 88 S.W.3d at
403 ; see also Lopez , 2017 Tex. A pp. LEXIS 3071, at * 21

– 24 (explaining that evidence raised
fact issue as to quantum meruit claim bec ause there was ev idence that subcontr actor perf o r me d

“ extra work ” at owner ’ s direction without invo lvement of contractor , who averred tha t he “ had

‘ no involvement in directing or agreeing to pay ’ for the extra work ” ) ; see City of Kel ler , 168 S.W.3d at 8 15 (observi ng that undisputed evidence m ay b ecome “ c on clusive when a party
admits it is true ” )

.

B ased on our review of the evidence, we conclude that Kam fail ed to present
evide n ce to raise a fact issue essential to his right of recovery under quantum m e rui t

— the

Q.

. . . So the only way that you could have a contract with Hardt is either in wri ting or verbally; is that correct? A. Yes

. Q. And you chose the verbal wa y, right? A. Yes

.

*** Q. Okay. So what we got here then, i n sum, Mr. K a m, is you went ahead and wound up doing an oral agreement with a person [Hardt] that you never worked wit h before that you now find out is a crook, right? A. Well, I can’t prove the last part but the first part o f your phrase is correct.

10 Consistent w ith his position to the trial court , Kam expressly stat es the terms of his agreement with Hardt in his brie fing to this Court . In his recitation of the facts , Kam states that he t old Hardt “that [his] fee for structural drawings an d shop draw ing review w o uld be $2,500 for the re designed roof system”; that Hardt “authorized [him] to produce the drawings”; and that he “complet ed the drawings for the roof redesign and provided them to Tony Hardt.”9

ev idence wa s undisputed that Ka m u ndertook “ ‘ redesign ’ of the roof ” for Har dt pursuant to an
express contract b etween Kam and Hardt

. See Prudential Ins. , 29 S.W.3d at 77 (observing that directed verdict is prop er when “ plaintiff fails to present evidence raising a fact issue essential t o the plaint iff ’ s right of re covery ” a nd when “ pl aintiff admits or the evidence conclusively establishes a defense to the plai ntiff ’ s ca use of action ” ) ; see also Gall i ford , 254 S.W.3d at 459,
4 6 2

– 6 3 (conc luding that exceptions did not apply to allow sub con t ractor to r e cover under theory of quantum meruit from owner wh o hired contractor to const ruct r estau rant and that trial court
erred by entering judgment prem ised on q uantum meruit)

. Thus, Kam ha s not de mon strated
based on a th eory of quant um meruit that the county c ourt err ed wh en i t grant e d directed verdict
in f avor of Karedi a
. 11

Unjust Enrichment

A party may recover under th e ca use of action of unjust enrichmen t when a
person “ has obt aine d a benefit from another by fraud, duress, or the taking of an un due
adva ntag e. ” Heldenfels Bros

. , 832 S.W.2d at 41 ; see Ga l liford , 254 S.W.3d at 46 0 ( explaining

t hat “ [ u ] njust enrichment i s an indepen dent cause of action ” (c it i ng HECI E xpl

. Co. v. Ne e l , 982 S.W.2d 881, 891 (Tex. 1998) ) )

. In this case, even if we as su me that Kam preserved his

11 To t he extent that Kam argues that Hard t was a cting as th e agen t for Karedia, Kam d id not present any evidence during t rial of a principal

- agent relations hip between Karedia and Har dt with respect to Kam ’ s con tract with Hardt

. S ee IRA Res

. , In c . v. Griego , 221 S.W.3d 592, 597 (Tex. 2007) ( “ Texas law does not pre s ume agency, and t he part y who alleges it has the burden of p rovin g it. ” ); Hardi ng Co. v. Sendero Res., Inc. , 365 S.W.3d 73 2, 742 (Tex. App.

— Texarkana 20 1 2, pet. denied) ( noting that “ ess ent ial e lement o f the principal

- agent relation ship is the alleged pri n cip al ’ s right to control the actions of the alleged agen t ” ( quoti ng Townsend v. Univ ersity Hosp.

- Univ. of Colo. , 83 S.W.3d 913, 921 (Tex. App.

— Texarkana 2002, pet. deni e d ) )).10

argument for appella te review that “ [t]his is a case of unjust enrichment , ” 12 Kam ’ s express
contract with Hardt forecloses this claim for t he same reason that he does not have a quantum

mer u it claim

. See Fo rtune Prod. Co. v. Conoc o, Inc. , 52 S.W.3d 671, 683

– 84 (Tex. 2000) ( explaining that unjust enr ichment claims are based on qua si

- co ntract and that there is no recovery under a quasi

- contra c t th eory “ when a valid, express contract covers the subject matter of the parties ’ dispute ” ) ; Freema n v. Harleton O i l & Gas, Inc

. , 528 S.W.3d 708 , 740 (Tex. App.

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

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

v. Zapata Gulf Mari ne Corp ., 986 S.W.2d 785, 788 (Tex. App.

— Houston [1st Dist.] 1999, no pet.) ( “ When , as here, th ere is no express contract control ling the circumst a nces, a party may
seek to recover u nder unjust enr ichment. ” )

.

Further, we observe that Kam did not pre s ent any evidence that Karedia obtaine d
a benefit from K am “ by fraud, dur ess, or the taking of an undu e a dvantage. ” See Heldenfels
Bros. , 832 S. W. 2d a t 41 ; see also Johnson v. Maund Auto. Grp ., No. 03

- 0 3

- 00730

- CV,
2004 Tex. App. LEXIS 7167, at *10

– 11 (Tex . App.

— Austin Aug. 12, 200 4 , pet

. denied) (mem. op.) (discussi ng eleme nts of unjust en richment and concluding that Johnson h ad not identified
actionable conduct by Maund that would support “ taking of ‘ unf air advantage ’ ” ) ; Villarreal

v. Grant Ge ophysical

, In c ., 136 S.W.3 d 265, 27 0 (Tex. App.

— San Antonio, 2004, pet. de nied) ( discussing “ taking of an undue advantage ” and explaining that unjust enr ichment is n ot proper

12 Ka m raised “ unjust enrichment ” for the first time in h is “ Reques t fo r Rehear i ng ” to the county court f

ollowing the directed verdict , and h is argument appears to have been directed t o a quant um meruit claim. See Pepi Cor p. v. Gallifo rd , 2 54 S.W.3 d 457, 460 (Tex. App.

— Houston [ 1st Dist.] 2007, pet. denied) (co ncluding t hat “ languag e u sed in the pleading ind icates [subcontractor] ’ s claim against [owner] is a quantum mer uit claim founded on unjust enrichm ent, rather than an ind epend ent cause of actio n for u nj ust enrichment ” ).11

remedy “ be cause it ‘ might appear expedien t or generally f air that some recompense be affor ded
for an unfo rtunate loss ’ to the claimant ” (quoting Heldenfels Bros. , 832 S.W.2d at 42)) . The
undi sp u ted evidence was that both Karedia and Kam were harmed w h en Hardt disappeared
without complet ing the project or paying Kam

. 13 Thus, Kam ’ s argu ment concerni ng unju st enrichment does not support his position that the trial court erred by granting directed verdict in
favor of Karedia

.

Conclusion

F or these reaso ns, we o verrule Kam ’ s issues and af firm the county

court ’ s jud gment.

13 For example, when Karedia sent Ka m an email in November 201 4 asking for hel p, the re was no evidence that Kare dia was awa re that H ardt had not paid Kam for the drawings that he had provided eight mo nths earlier . Kam provided the dra wings to Hardt in May 2014 , a nd he testified as follows a s to the a ssistance th a t 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 dr awings are drawings that fabricate or produces based on the stru ctural dra wings. And t hen the fabricator drawin gs will be used to actually go into the shop to make the elements for the building. So we did ini tial review for the shop drawings at Tony ’ s re quest in late June to early July. And then we heard nothing on the buildi ng.

And then in November 19th, 2014, M r. 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 1 9, 2014. An d Mr. Karedia ’ s instructi ons 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 nu mber. So we checked those shop drawings at the request of Mr. K aredia and returned th os e to h im so he could hav e his material fabricated for his building

.12 ________________ __________________________ Melissa Goodwin , Ju stice
Before Justices Goodwin , Baker, an d Triana Dis senting Opinion by Justice Triana
Affi rme d on M o tio n for Rehearing
Filed: December 13, 2019