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NO. 12-09-00359-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BRIAN SCOTT DOYLE and

NDEMAND, INC., § APPEAL FROM THE 273RD

APPELLANTS

V. § JUDICIAL DISTRICT COURT

JAY R. TESKE,

APPELLEE § SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Brian Scott Doyle and NDemand, Inc. appeal the trial court‟s judgment in favor of Jay R. 

Teske in Teske‟s suit for damages arising out of a business relationship between him and Doyle. 

Doyle and NDemand, Inc. raise fourteen issues on appeal. We affirm in part and reverse and 

render in part.

BACKGROUND

Doyle and Teske decided to start a computer business together. Doyle, who had 

previously worked on computers, agreed to provide the labor, and Teske, who had previously 

made money, agreed to provide the capital. They discussed several different names for the 

business before agreeing on NDemand Technologies, Inc.

In January 2000, after they had agreed on the name of the business, Teske wrote a check 

for $25,000.00 made payable to Doyle to fund NDemand Technologies. However, neither Doyle 

nor Teske ever incorporated NDemand Technologies. Instead, Doyle simply deposited Teske‟s 

check into Doyle‟s personal account. When he filed his personal tax return for the year, Doyle 

claimed the $25,000.00 as income. Teske also helped Doyle obtain a credit card for NDemand 
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Technologies by serving as guarantor for the card. Although the credit card was for the business, 

Doyle used the credit card to purchase items that were not business related.

After about two years, NDemand Technologies was failing. Doyle decided that he 

should start another business, one focused on bringing internet to rural areas. Doyle called the 

new business NDemand, Inc. He lobbied Teske to invest in the new business, but Teske 

declined. Thus, Doyle began NDemand, Inc. with new investors. Around the same time, 

NDemand Technologies ceased operations completely.

At the time NDemand Technologies failed, the business credit card had a sizeable 

balance. Doyle did not have the funds to pay the credit card debt so Teske, as guarantor, was 

required to make the payments. Teske learned of the credit card debt sometime in December 

2002, made his first payment on the debt in January 2003, and finally paid off the credit card in 

August 2004. After paying off the card, Teske asked for detailed billing. Approximately two

weeks after his request, the bank provided him with the past billing, and Teske learned that 

Doyle had used the credit card for personal purchases. Sometime later, Teske also learned that 

Doyle never set up a corporation for NDemand Technologies.

Believing that Doyle‟s actions were wrong and had cost him money, Teske sued Doyle 

and NDemand, Inc. in January 2007 for fraud, breach of fiduciary duty, Blue Sky violations, and 

fraud in stock transactions. After a bench trial, the trial court awarded Teske a judgment against 

Doyle and NDemand, Inc. This appeal followed. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their initial brief, Doyle and NDemand, Inc. stated that the trial court failed to provide 

findings of fact and conclusions of law even though two requests for findings and conclusions 

had been made. Doyle and NDemand, Inc. did not, in their initial brief, seek relief based on this 

inaction of the trial court. However, in their reply brief, without listing it as a separate issue, 

Doyle and NDemand, Inc. assert that the trial court committed reversible error by failing to 

provide findings of fact and conclusions of law.

Doyle and NDemand, Inc.‟s reply brief may address any matter in Teske‟s brief, but a 

reply brief is not intended to allow parties to raise new issues. See TEX. R. APP. P. 38.3; 

Campbell v. Stucki, 220 S.W.3d 562, 570 (Tex. App.–Tyler 2007, no pet.). Therefore, this 

argument is not properly before this court. See Campbell, 220 S.W.3d at 570. 
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Even if we consider Doyle and NDemand, Inc.‟s argument, the outcome does not change. 

Rule 296 authorizes any party in a nonjury trial to request written findings of fact and 

conclusions of law. TEX. R. CIV. P. 296. The request shall be filed within twenty days after the 

judgment is signed and served on all other parties in accordance with Rule 21a. Id. The trial 

court shall file its findings of fact and conclusions of law within twenty days of a timely filed 

request. TEX. R. CIV. P. 297. If the trial court fails to so file findings of fact and conclusions of 

law, “the party making the request shall, within thirty days after filing the original request, file 

with the clerk . . . a „Notice of Past Due Findings of Fact and Conclusions of Law‟ which shall 

be immediately called to the attention of the court by the clerk.” Id. If a party fails to file a Rule 

297 reminder, the party waives any complaint regarding the trial court‟s failure to file findings of 

fact and conclusions of law. Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 410 (Tex. 

App.–Houston [1st Dist.] 2005, pet. denied). The scheme is a sensible one in that, if the judge 

does not comply with the initial request, “the more rigorous procedure of Rule 297 will ensure 

that the court is in a timely fashion fully apprised of the request and the party‟s continuing 

interest in having it honored.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 

1989).

Here, the record contains four documents relevant to findings of fact and conclusions of 

law. The first is a letter from Doyle and NDemand, Inc.‟s counsel to the trial court judge stating 

that he “faxed herewith [his] proposed findings of fact and conclusions of law.” The letter is 

dated June 9, 2009, and bears a filemark of June 26, 2009. The proposed findings of fact and 

conclusions of law are not a part of the record at that point. The second is the trial court‟s 

judgment, with no findings of fact and conclusions of law, signed on July 16, 2009. The third is 

“Defendants Brian Doyle and NDemand, Inc.‟s Request for Findings of Fact and Conclusions of 

Law.” This document, filed on July 24, 2009, requests the trial court to make findings of fact 

and conclusions of law within twenty days after the judgment is signed. The only reference to 

Rule 297 in the document is the assertion that “Rule 297 of the Texas Rules of Civil Procedure 

provides that the „Court shall file its findings of fact and conclusions of law within twenty days 

after a timely request is filed.‟” The fourth document is “Defendants Brian Doyle and 

NDemand, Inc.‟s Findings of Fact and Conclusions of Law” filed on April 1, 2010. This 

document is unsigned. The certificate of service contains the date June 9, 2009, but again the 

signature block under the certificate of service is blank.
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Doyle and NDemand, Inc. complied with Rule 296, and properly requested findings of 

fact and conclusions of law. However, they did not take the extra necessary step of complying 

with Rule 297, and thus, never “ensure[d] that the court [was] in a timely fashion fully apprised 

of the request and the party‟s continu[ed] interest in having it honored.” See id. Therefore, any 

complaint related to the trial court‟s failure to file findings of fact and conclusions of law is 

waived.

Doyle and NDemand, Inc.‟s issue related to the trial court‟s failure to file findings of fact 

and conclusions of law, which was raised in their reply brief, is overruled.

STANDARD OF REVIEW

In a nonjury trial, when, as here, a trial court makes no separate findings of fact or 

conclusions of law, we must assume that the trial court made all findings in support of its 

judgment. Pharo v. Chambers Co., 922 S.W.2d 945, 948 (Tex. 1996). The trial court's 

judgment must be affirmed if it can be upheld on any legal theory that finds support in the 

evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam). When, as here, the 

appellate record includes the reporter's record, the trial court's implied fact findings are not 

conclusive. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). A trial 

court's implied findings of fact are reviewable for legal and factual sufficiency of the evidence by 

the same standards that are applied in reviewing evidence supporting a jury's verdict. See

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). 

A party who challenges the legal sufficiency of the evidence to support an issue on which 

it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence 

to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In 

reviewing for legal sufficiency of the evidence, we consider the evidence in the light most 

favorable to the verdict, indulging every reasonable inference in favor of the verdict. See 

Autozone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam); Associated Indem. 

Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998). To determine whether 

legally sufficient evidence supports a challenged finding of fact, the reviewing court must credit 

favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable 

jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The finder of 

fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their 
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testimony. Id. at 819. The finder of fact is free to believe one witness and disbelieve another, 

and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, 

reviewing courts must assume that the finder of fact decided all credibility questions in favor of 

the findings, and chose what testimony to disregard in a way that was in favor of the findings, if 

a reasonable person could do so. Id. at 819-20. A finder of fact “may disregard even 

uncontradicted and unimpeached testimony from disinterested witnesses” where reasonable. Id.

at 820.

In addition, it is within the finder of fact's province to resolve conflicts in the evidence. 

Id. at 820. Consequently, we must assume that, where reasonable, the finder of fact resolved all 

conflicts in the evidence in a manner consistent with the findings. Id. Where conflicting 

inferences can be drawn from the evidence, it is within the province of the finder of fact to 

choose which inference to draw, so long as more than one inference can reasonably be drawn.

Id. at 821. Therefore, we must assume the finder of fact made all inferences in favor of the 

findings if a reasonable person could do so. Id. The final test for legal sufficiency must always 

be “whether the evidence at trial would enable reasonable and fair-minded people to reach the 

verdict under review.” Id. at 827. Anything more than a scintilla of evidence is legally 

sufficient to support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 

(Tex. 1996). 

If a party is attacking the factual sufficiency of the evidence to support an adverse finding 

on an issue on which the other party had the burden of proof, the attacking party must 

demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng’g, 

Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.–Austin 1992, no writ). 

In addressing a factual sufficiency of the evidence challenge, an appellate court must consider 

and weigh all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). 

The verdict should be set aside only if it is so contrary to the overwhelming weight of the 

evidence as to be clearly wrong and unjust. Id. However, this court is not a fact finder, and we 

may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier 

of fact. Durban v. Guajardo, 79 S.W.3d 198, 208 (Tex. App.–Dallas 2002, no pet.) The trial 

court may take into consideration all of the facts and surrounding circumstances in connection 

with the testimony of each witness and accept or reject all or any part of that testimony. Canal
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Ins. Co. v. Hopkins, 238 S.W.3d 549, 557-58 (Tex. App.–Tyler 2007, pet. denied) (op. on 

reh‟g). 

TESKE’S CLAIMS AGAINST NDEMAND, INC.

In their second issue, Doyle and NDemand, Inc. assert that judgment against NDemand, 

Inc. is improper because NDemand, Inc. was not in existence at the time of the acts sued upon

and NDemand, Inc. had no dealings with Teske other than providing him internet service. In his 

response, Teske asserts that Doyle acquired NDemand, Inc. by March 17, 2004. Teske further 

notes that NDemand, Inc. did not file a verified pleading asserting that it is not liable in the 

capacity in which it was sued. Thus, Teske asserts that there is “some evidence in the record 

sufficient to warrant the trial court, in the absence of appropriate pleadings, to find that 

NDemand, Inc. was the beneficiary of the funds advanced by Teske to Doyle.” Teske cites no 

authority to support this position.

After a thorough review of the record, we have found no evidence showing that 

NDemand, Inc. was the beneficiary of the funds advanced by Teske to Doyle. Doyle deposited 

the $25,000.00 check in his personal checking account. No evidence was presented that any of 

that money made its way to NDemand, Inc. Doyle used the NDemand Technologies‟ credit card 

for personal purchases and NDemand Technologies‟ purchases. Again, no evidence was 

presented that the credit card was used for NDemand, Inc.‟s purchases.

Further, NDemand, Inc.‟s argument is not about capacity. It argues that it is not liable to 

Teske because NDemand, Inc. had no interactions with Teske. Thus, NDemand, Inc.‟s argument 

“does not fall within the ambit of rule 93(2), and the lack of verification does not prevent [it] 

from asserting [its] argument.” See Toles v. Toles, 113 S.W.3d 899, 909 (Tex. App.–Dallas 

2003, pet. denied).

Finally, NDemand, Inc. cannot be liable under agency theory. The acts of a corporate 

agent on behalf of the corporation generally are deemed to be the corporation‟s acts. Latch v. 

Gratty, Inc., 107 S.W.3d 543, 545 (Tex. 2003) (per curiam). But here, there was no evidence 

that Doyle‟s acts were on behalf of NDemand, Inc. Instead, Doyle deposited Teske‟s $25,000.00

check into his personal checking account and used the credit card for personal purchases and 

purchases related to NDemand Technologies‟ business. Additionally, there was no evidence that 

Doyle was a corporate agent of NDemand, Inc. at the time of the allegedly tortious actions. 
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There is a complete absence of evidence that NDemand, Inc. committed any of the alleged 

wrongful acts against Teske. See City of Keller, 168 S.W.3d at 810. Accordingly, we sustain 

Doyle and NDemand, Inc.‟s second issue. Because this issue is dispositive as to NDemand, Inc., 

we need not address their fourth, sixth, eighth, tenth, and twelfth issues, all of which complain 

about the judgment against NDemand, Inc. See TEX. R. APP. P. 47.1.

TESKE’S CLAIMS AGAINST DOYLE

In part of their first issue, Doyle and NDemand, Inc. assert that Teske‟s claim of breach 

of fiduciary duty is barred by the applicable statute of limitations. In his fifth issue, Doyle 

asserts that there is legally and factually insufficient evidence that he breached a fiduciary duty 

to Teske. Doyle‟s main contention, as it relates to this claim, is that he did not have a fiduciary 

relationship with Teske. 

Limitations

Statutes of limitations prevent the litigation of stale claims by

afford[ing] plaintiffs what the legislature deems a reasonable time to present their claims and 

protect[ing] defendants and the courts from having to deal with cases in which the search for truth 

may be seriously impaired by the loss of evidence, whether by death or disappearance of 

witnesses, fading memories, disappearance of documents or otherwise.

S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996). The applicable statute of limitations for breach of 

fiduciary duty is not later than four years after the day the cause of action accrues. TEX. CIV.

PRAC. & REM. CODE ANN. § 16.004(a)(5) (Vernon 2002). However, the discovery rule defers the 

accrual of certain causes of action until the plaintiff knew or through the exercise of reasonable 

diligence should have discovered the wrong. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918

S.W.2d 453, 455 (Tex. 1996). The discovery rule applies in “those cases where the nature of the 

injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” 

Id. at 456. To be inherently undiscoverable, an injury, by its nature, must be unlikely to be 

discovered within the limitations period despite the exercise of due diligence. G. Prop. Mgmt., 

Ltd. v. Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 48 (Tex. App.–San Antonio 2006, no 

pet.). When dealing with a fiduciary, the nature of the injury is presumed to be inherently 
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undiscoverable. Id. However, a plaintiff must still exercise diligence and has some 

responsibility to ascertain when an injury occurs. Id.

Here, Doyle took Teske‟s check for $25,000.00 and placed it in his personal checking 

account in January 2000. The business credit card was issued in January 2000 and Doyle used it 

for personal purchases. Teske filed his original petition on January 4, 2007. Doyle argues that

Teske knew of his legal injury in the summer of 2002. Doyle further asserts that Teske should 

have known by December 2002 at the latest because Teske then became aware that Doyle was 

not paying NDemand Technologies‟ credit card bill. However, Teske did not immediately 

realize that Doyle had taken advantage of the situation. Of course, Teske was aware that Doyle 

had not issued any stock to him or repaid the $25,000.00. Teske was never given a balance sheet 

or income and expense records showing the condition of the company. By the fall of 2002, 

Teske knew that the business was failing. Teske testified that he learned in January 2003 that 

Doyle had not been making payments on the credit card account. Teske also testified that he did 

not request the detailed billing for the credit card until around the time of his final payment, 

August 13, 2004. The bank provided him with the information approximately two weeks later. 

Thus, Teske determined in August 2004, after he received those statements, that Doyle had used 

the credit card for personal purchases. Teske did not know that Doyle had deposited the 

$25,000.00 check into Doyle‟s personal account until even later. Accordingly, the trial court‟s 

implied findings that Teske failed to learn of his legal injury until after January 2003, less than 

four years from the time that suit was filed, and that Teske exercised reasonable diligence in 

discovering Doyle‟s wrongful conduct are supported by the evidence. See Altai, Inc., 918

S.W.2d at 455-56. We overrule that portion of the first issue asserting that Teske‟s breach of 

fiduciary duty claim is barred by limitations.

In their fourteenth issue, Doyle and NDemand, Inc. assert that Teske waived his right to 

pursue his claims by not timely filing them. Assuming this issue refers to something other than 

the limitations argument asserted in issue one, we can locate no separate argument in their brief 

addressing their fourteenth issue. Thus, issue fourteen is waived for improper briefing. See TEX.

R. APP. P. 38.1(i). We overrule Doyle and NDemand, Inc.‟s fourteenth issue.

Breach of Fiduciary Duty
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Doyle argues there was no fiduciary relationship. Alternatively, he argues that “if anyone 

was the fiduciary it was [Teske]” because he was older and a more experienced businessman. 

Finally, he argues that, if there was a fiduciary relationship, Doyle did not breach it.

There are formal fiduciary relationships, which arise as a matter of law in certain formal 

relationships and includes relationships between attorneys and clients, partners, and joint 

venturers. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Additionally, there 

are informal fiduciary relationships. Courts impose fiduciary duties on some relationships 

because of their special nature or because a person “occupies a position of peculiar confidence 

towards another.” Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002). The 

term “fiduciary” refers to integrity and contemplates fair dealing and good faith as the basis of 

the transaction. Id. Thus, an informal fiduciary duty may arise from a moral, social, domestic,

or purely personal relationship of trust and confidence. Meyer v. Cathey, 167 S.W.3d 327, 331 

(Tex. 2005) (per curiam). To impose an informal fiduciary duty in a business transaction, the 

special relationship of trust and confidence must exist prior to, and apart from, the agreement 

made the basis of the suit. Id. The elements of breach of a fiduciary duty claim are (1) a 

fiduciary relationship exists between the plaintiff and defendant, (2) breach of the fiduciary duty 

by the defendant, and (3) the defendant‟s breach results in injury to the plaintiff or benefit to the 

defendant. Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 479 (Tex. App.–Dallas 2010, no 

pet.). 

Doyle and Teske agreed to form a corporation. However, no steps were ever taken to do 

so. Doyle ran the company as his sole proprietorship and treated Teske as an investor. However, 

even if we assume there was no formal relationship from which a formal fiduciary relationship 

would arise, the record supports a finding of an informal fiduciary relationship. 

Doyle was still a teenager in 1996 when he started helping Teske and his wife with their 

home computer problems. Initially, Doyle did the work as an employee of a computer company,

but by 1998 he did the work “on the side” and Teske paid him directly, in cash. Doyle testified 

that, after he moved to Houston, he would visit Teske once or twice a month from 1998 through 

2004 and work on Teske‟s computers. Teske would give him $50.00 or $100.00 each time. 

Doyle testified that “[t]here was never any expectation of, during that time, of payment for 

services rendered.” He did it because he “liked the guy” and he thought Teske was a “good 

guy.” 
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Teske, who was eighty years old at the time of trial in 2009, testified that every time 

Doyle came to his house, “he walked away with pockets full of money.” The last time Doyle 

was at Teske‟s house, Teske gave him $750.00. Teske and his wife thought of Doyle as their 

son. Teske said that Doyle was a good friend and he had trusted him. He was really 

disappointed and mad because they had taken Doyle in like a son. Teske explained that he did 

not “cover every step” because he thought of Doyle as a son whom he trusted as a close friend.

A special relationship of trust and confidence existed before January 2000. Thus, the 

nature of the relationship between the parties was that of fiduciaries. See Meyer, 167 S.W.3d at 

331. Doyle argues that only Teske could be the fiduciary because he was older and a more 

experienced businessman. However, both business associates can owe each other the duty of a 

fiduciary. Although Teske was older, he was not more experienced in the computer repair field,

which was the nature of the business. Also, according to Teske, he was to provide the money

and Doyle was to provide the expertise and work. While Doyle maintains that it was Teske‟s 

obligation to incorporate the business, Teske testified that it was Doyle‟s obligation. The trial 

court was free to believe Teske‟s testimony and disbelieve Doyle‟s. City of Keller, 168 S.W.3d 

at 819. Teske trusted Doyle to set up the corporation, to run the corporation, and to handle the 

start up money and credit card for the corporation. Doyle never incorporated NDemand 

Technologies, but instead ran the business as his sole proprietorship. He breached his fiduciary 

duty to Teske by running the business as his sole proprietorship to the exclusion of Teske, 

including using funds and a credit card that Teske designated for their business for his personal 

benefit. The trial court‟s implied findings that Doyle was a fiduciary of Teske and that Doyle 

breached his fiduciary duty to Teske are supported by the evidence. See id. at 827; Cain, 709 

S.W.2d at 176. Because the evidence is legally and factually sufficient to support the trial 

court‟s determination that Doyle breached his fiduciary duty to Teske, we overrule Doyle‟s fifth 

issue. 

The trial court‟s judgment must be affirmed if it can be upheld on any legal theory 

supported by the evidence. In re W.E.R., 669 S.W.2d at 717. We have determined that the 

evidence supports a finding of breach of fiduciary duty, and the claim is not barred by 

limitations; thus, the judgment should stand. Accordingly, we need not address the remainder of 

Doyle and NDemand, Inc.‟s first issue, in which they assert that all other claims against them are 

barred by limitations, or the third, seventh, ninth, and eleventh issues in which Doyle contends
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the trial court erred in rendering judgment in favor of Teske on his remaining causes of action. 

See TEX. R. APP. P. 47.1.

QUANTUM MERUIT AND ACCORD AND SATISFACTION

In his thirteenth issue, Doyle asserts that the value of Doyle‟s services to Teske exceeded 

the amounts claimed to be owed to Teske and thus Doyle should not have to repay Teske. Doyle 

requests this court render a decision for him based on quantum meruit for the value of his 

services or, at a minimum, consider the value of his services as accord and satisfaction for the 

money invested by Teske. He asserts he is entitled to a full offset for Teske‟s claims.

The burden is on Doyle to establish the affirmative defense of accord and satisfaction. 

Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979). This defense rests on a new contract in 

which the parties agree to discharge an existing obligation in a manner otherwise than originally 

agreed. Id. The tender of the alternate satisfaction is upon the condition that the acceptance will 

constitute a discharge of the underlying obligation. Id. An “accord” is in essence a contract or 

agreement, and “accord and satisfaction” is founded on and dependent on, and results from a 

contract, express or implied, between the parties. Id.

Doyle asserts that he spent a total of $76,500.00 worth of uncompensated time working 

on Teske‟s personal computers. He argues that his “services arise to the level of accord and 

satisfaction.” He does not identify evidence of an “accord,” that is, a new agreement between 

him and Teske in which they agree to discharge the original obligations by application of 

Doyle‟s work on Teske‟s personal computers. Neither has our review of the record uncovered 

such an agreement. Doyle has not met his burden to establish the affirmative defense of accord 

and satisfaction. Id.

Quantum meruit is an equitable remedy “based upon the promise implied by law to pay 

for beneficial services rendered and knowingly accepted.” Vortt Exploration Co. v. Chevron 

U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party recovers under quantum 

meruit when no express contract covers the services rendered. Id. The elements of quantum 

meruit are (1) valuable services were rendered or materials furnished, (2) for the person sought to 

be charged, (3) the services or materials were accepted, used, and enjoyed by the person sought

to be charged, (4) under such circumstances that reasonably notified the person sought to be 

charged that the plaintiff expected to be paid. Id.
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Here, Doyle testified that he provided computer repair work for Teske without the 

expectation of payment for services rendered. He also testified that Teske gave him money when 

he worked on Teske‟s computers. Teske testified that he paid Doyle for the work performed. 

Thus, the evidence does not support Doyle‟s assertion that he is entitled to recover under the 

theory of quantum meruit. See id. We overrule Doyle‟s thirteenth issue.

AFFIRMATIVE RELIEF SOUGHT BY DOYLE AND NDEMAND, INC.

Although not listed as a separate issue, Doyle and NDemand, Inc., also assert that the 

trial court erred when it did not award them damages on their counterclaim alleging that Teske 

filed a frivolous lawsuit. A brief must contain a clear and concise argument for the contentions 

made, with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). Doyle 

and NDemand, Inc., failed to cite any authorities or any portion of the record in support of their 

claim for affirmative relief and have therefore waived this complaint. See Daniel v. Falcon 

Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.–Houston [1st Dist.] 2005, no pet.). 

Therefore, to the extent that they seek appellate review of the trial court‟s determination that 

Teske‟s lawsuit was not frivolous, we overrule Doyle and NDemand, Inc.‟s issue.

DISPOSITION

We affirm the trial court‟s judgment in favor of Teske against Doyle. We reverse the 

trial court‟s judgment in favor of Teske against NDemand, Inc., and render judgment that Teske

take nothing on his claims against NDemand, Inc.

BRIAN HOYLE

 Justice

Opinion delivered March 31, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)