C
O
N
S
T
R
U
C
T
I
O
N
L
A
W
J
O
U
R
N
A
L
B
Y:
W•
KYLE
GOOCH
AND
AUSTIN
MOORMAN'
Q
UANTUM
MERUIT:
THE
O
THER
CAUSE
OF
ACTION
Q
uantum
meruit
is
an
equitable
remedy
"based
upon
the
p
romise
implied
by
law
to
pay
for
services
rendered
and
k
nowingly
accepted."
2
Quantum
meruit
is
designed
to
p
revent
a
party
from
accepting
the
benefits
of
another's
w
ork
without
providing
anything
in
exchange
for
such
b
enefits.
3
Texas
courts
have
struggled
to
consistently
i
dentify
quantum
meruit
claims
as
either
implied
in
law
or
i
mplied
in
fact
contracts
and
oftentimes
have
blurred
the
l
ines
between
unjust
enrichment
and
quantum
meruit.
F
or
example,
in
Ramirez
Co.
v.
Housing
Auth.
of
City
of
H
ouston,
the
Houston
Court
of
Appeals
appears
to
have
d
ifferentiated
between
implied
in
fact
and
implied
in
law
(
also
referred
to
as
quasi
-contract)
contracts,
by
referring
t
o
implied
in
fact
contracts
as
synonymous
with
quantum
m
eruit.
4
The
Houston
Court
of
Appeals
later
revisited
its
o
pinion
in
Ramirez
and
stated
"Ramirez
Co.'s
description
o
f
quantum
meruit
as
a
species
of
implied
-in
-fact
contract
c
ontradicts
language
in
several
supreme
court
opinions."'
S
ome
of
this
confusion
may
be
attributable
to
the
differing
t
erminology
courts
have
utilized
when
addressing
q
uantum
meruit,
restitution,
and
unjust
enrichment,
i
ncluding
the
arguable
overlap
between
the
three.'
Q
uantum
meruit
is
not
typically
available
when
an
e
xpress
contract
covers
the
subject
matter
of
the
lawsuit.
A
s
discussed
later,
quantum
meruit
is
available,
however,
i
n
limited
situations
even
when
a
contract
exists
between
t
he
parties.
A.
ELEMENTS
OF
QUANTUM
MERUIT
Q
uantum
meruit
has
four
elements:
(1)
the
provision
of
v
aluable
services
or
materials;
(2)
the
services
or
materials
w
ere
provided
to
the
defendant;
(3)
the
defendant
a
ccepted
the
goods
or
services;
and
(4)
the
defendant
h
ad
reasonable
notice
that
the
plaintiff
would
perform
t
he
services
or
furnish
the
materials
and
would
expect
c
ompensation
from
the
defendant.'
B
.
CAN
A
CLAIMANT
RECOVER
IN
QUANTUM
M
ERUIT
IF
AN
EXPRESS
CONTRACT
COVERS
THE
W
ORK
AT
ISSUE?
T
he
Texas
Supreme
Court
has
established
the
general
r
ule
that
there
can
be
no
recovery
in
quantum
meruit
w
hen
a
valid
express
contract
covers
the
subject
matter
o
f
the
quantum
meruit
suit.'
The
existence
of
a
contract,
h
owever,
will
not
bar
a
quantum
meruit
claim
if
the
m
aterials/services
are
outside
the
scope
of
the
contract.'
W
hether
a
quantum
meruit
claim
exists
initially
depends
u
pon
(1)
whether
the
work
was
in
fact
extra;
and
(2)
w
hether
the
contract
made
provision
for
the
type
of
extra
w
ork
performed.
1
°
C
.
A
CLAIMS
PROCEDURE
IN
A
CONTRACT
MAY
B
AR
A
QUANTUM
MERUIT
CLAIM
I
n
the
case
of
Kittyhawk
LandingApartments
III
v.
Anglin
C
onst.
Co.,"
the
construction
contract
included
the
f
ollowing
change
—
claim
procedure:
T
he
Contractor
may
order
changes
in
the
w
ork,
the
contract
sum
being
increased
o
r
decreased
accordingly.
All
orders
and
a
djustments
for
any
extra
work
of
any
1
.
W.
Kyle
Gooch
is
an
attorney
with
Canterbury,
PC
with
over
forty
years
of
experience
in
the
construction
industry.
He
is
Board
Certified
in
construction
l
aw
by
the
Texas
Board
of
Legal
Specialization
and
is
a
past
Chair
of
the
Texas
Construction
Law
Section
and
a
Fellow
of
the
American
College
of
C
onstruction
Lawyers.
Austin
H.
Moorman
is
an
associate
at
Canterbury,
PC
and
edits
the
Texas
Construction
Law
Manual.
2
.
Hill
v.
Shamoun
&
Norman,
LLP,
544
S.W.3d
724,
732
(Tex.
2018).
3
.
Id.
4
.
777
S.W.2d
167, 173,
n.12
(Tex.
App.—Houston
[14th
Dist.]
1989,
no
writ)
("At
common
law,
there
are
three
recognizable
contractual
arrangements:
F
irst,
there
is
the
express
contract,
written
or
oral,
wherein
the
parties
expressly
agree
regarding
a
transaction.
Second,
there
is
the
implied
in
fact
c
ontract,
called
quantum
meruit,
wherein
there
is
no
express
agreement,
but
the
conduct
of
the
parties
implies
an
agreement
to
contract
from
which
a
n
obligation
in
contract
exists.
The
third
category
is
called
an
implied
in
law
contract,
or
quasi
contract.
Such
contract
is
not
a
contract
at
all,
but
an
o
bligation
imposed
by
law
for
the
purpose
of
bringing
about
justice
and
equity
without
reference
to
the
intent
or
the
agreement
of
the
parties").
5
.
Houston
Med.
Testing
Servs.,
Inc.
v.
Mintzer,
417
S.W.3d
691,
704,
n.4
(Tex.
App.—Houston
[14th
Dist.]
2013,
no
pet.).
6
.
For
a
further
discussion
of
the
differences
between
quantum
meruit
and
unjust
enrichment
and,
consequently,
implied
in
fact
and
implied
in
law
c
ontracts,
please
see
PHILIP
L.
BRUNER
&
PATRICK
J.
O'CONNOR,
JR.,
BRUNER
AND
O'CONNOR
ON
CONSTRUCTION
LAW
§
19:36
(2021);
see
also
P
affhausen
v.
Balano,
708
A.2d
269,
271
(Me.
1998).
7
.
Hill,
544
S.W.3d
at
732-33;
Tex.
PJC
§
101.42
(2020).
8
.
Vortt
Expl.
Co
v.
Chevron
U.S.A.,
Inc.,
787
S.W.2d
942,
944
(Tex.
1990).
Quantum
meruit
may
also
be
available
when
there
is
a
contract,
but
that
c
ontract
has
been
rendered
unenforceable,
such
as
a
contract
that
has
been
rescinded,
is
void,
or
abandoned.
See,
e.g.,
Hill,
544
S.W.3d
at
731-736;
U
nited
States
ex
rel.
Wallace
v.
Flintco
Inc.,
143
F.3d
955,
965
(5th
Cir.
1998);
W&W
0i/
Co.
v.
Capps,
784
S.W.2d
536,
537-38
(Tex.
App.—Tyler
1990,
n
o
writ).
9
.
Black
Lake
Pipe
Line
Co.
v.
Union
Const.
Co.,
Inc.,
538
S.W.2d
80,
86
(Tex.
1976)
overruled
on
other
grounds
by
Sterner
v.
Marathon
Oil
Co.,
767
S.W.2d
6
86
(Tex.
1989).
1
0.
Id.
1
1.
737
S.W.2d
90
(Tex.
App.—Houston
[14th
Dist.]
1987,
writ
ref'd
n.r.e.).
6
C
O
N
S
T
R
U
C
T
I
O
N
L
A
W
3
O
U
R
N
A
L
J
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
k
ind
must
be
in
writing
and
signed
by
t
he
Contractor.
Sub
-Contractor
shall
h
ave
no
claim
for
extra
work
unless
an
o
rder
in
writing
is
secured
from
the
C
ontractor,
signed
by
their
authorized
a
gent
prior
to
commencement
of
the
w
ork
for
which
such
extra
charge
is
c
laimed,
setting
forth
the
exact
cost
o
r
basis
of
cost
to
be
allowed
for
extra
w
ork.
1
2
T
he
scope
of
the
work
included
providing
a
certain
a
mount
of
fi
ll
material
and
therefore
the
additional
fi
ll
m
aterial
qualified
as
"extra
work"
under
the
contract.
C
onsequently,
the
court
held
that
"[t]he
contract
made
p
rovision
for
the
type
of
extra
work
performed,
and
thus
a
ppellee
must
look
to
the
contract
for
compensation?"
1
3
T
herefore,
quantum
meruit
was
not
available.
D
.
TRULY
EXCEPTIONS
E
ven
in
circumstances
in
which
a
valid
express
contract
c
overs
the
subject
matter
of
the
quantum
meruit
claim,
t
he
Texas
Supreme
Court
has
provided
exceptions
to
the
g
eneral
rule
when:
(1)
a
claimant
has
partially
performed
a
n
express
contract
but,
because
of
the
defendant's
b
reach,
the
plaintiff
is
prevented
from
completing
the
c
ontract
or
(2)
a
plaintiff
partially
performs
an
express
c
ontract
that
is
unilateral
in
nature.
1
4
A
third
exception
w
as
seemingly
provided
by
the
Texas
Supreme
Court
in
T
ruly
when
it
stated
"
[t]
he
only
Texas
cases
that
have
p
ermitted
a
breaching
plaintiff
to
recover
in
quantum
m
eruit
have
involved
building
or
construction
contracts.
In
these
cases,
plaintiffs
have
been
allowed
to
recover
the
r
easonable
value
of
services
less
any
damages
suffered
by
t
he
defendant.
"
1
5
T
his
exception
would,
therefore,
allow
a
breaching
plaintiff
t
o
recover
in
quantum
meruit
despite
the
existence
of
a
b
uilding
or
construction
contract.
The
Truly
court
also
s
tated
"
[c]
entral
to
the
contractor's
right
to
recover
in
q
uantum
meruit
is
the
owner's
acceptance
and
retention
o
f
the
benefits
arising
as
a
direct
result
of
the
contractor's
p
artial
performance."
1
6
The
Court
further
noted
that
r
ecovery
in
quantum
meruit
is
based
in
equity
and
that
to
j
ustify
recovery
in
quantum
meruit,
the
plaintiff
must
not
o
nly
show
that
it
has
rendered
a
partial
performance
of
v
alue
but
must
also
show
that
defendant
has
been
unjustly
e
nriched
and
the
plaintiff
would
be
unjustly
penalized
if
t
he
defendant
were
permitted
to
retain
the
benefits
of
the
p
artial
performance
without
paying
anything
in
return.
1
7
I
n
Murray
v.
Crest
Construction,
the
Texas
Supreme
Court
a
ddressed
a
claim
by
contractor
for
compensation
when
t
he
contractor
had
failed
to
substantially
perform
its
w
ork.
1
8
The
Supreme
Court,
in
Murray,
reiterated
the
g
eneral
rule
that
a
party
may
not
recover
under
quantum
m
eruit
when
there
is
express
contract
concerning
the
s
ervices
or
materials
furnished
but
held
that
construction
c
ontracts
are
an
exception
to
the
rule.
Even
though
t
he
contractor
failed
to
substantially
perform
certain
p
rojects
(a
condition
precedent
to
recovery
under
express
c
ontracts),
the
contractor
was
allowed
to
sue
in
quantum
m
eruit
to
recover
the
reasonable
value
of
the
benefits
c
onferred
by
its
partial
performance.
1
9
1
2.
Id.
at
92.
1
3.
Id.;
see
also
Easy
Living
Inc.
v.
Cash,
617
S.W.2d
781,
785
(Tex.
App.—Fort
Worth
1981,
no
writ);
Union
Building
Corp.
v.
J&J
Building
and
Maintenance,
5
78
S.W.2d
519
(Tex.
App.—Houston
[14th
Dist.]
1979,
writ
ref'd
n.r.e.)
(plaintiff
could
not
recover
in
quantum
meruit
because
the
claimed
extras
was
c
ompensable
under
the
changes
clause
of
the
contract);
Rosick
v.
Equip.
Maintenance
and
Serv.,
Inc.,
632
A.2d
1134,
1141-42
(App.
Conn.
1993)
("the
e
xpress
contract
provided
a
procedure
for
the
plaintiff
to
make
a
claim
for
extras
and
the
road
patching
costs
fell
within
that
procedure;
thus,
because
t
here
was
an
express
provision
covering
road
patching,
a
quantum
meruit
claim
to
recover
for
this
work
is
barred.");
Summit
Global
Contractors,
Inc.
v.
E
nbridge
Energy,
LP,
594
S.W.3d
693,
705-706
(Tex.
App.—Houston
[14th
Dist.]
2019,
no
pet.)
(holding
that
since
the
contract
made
provision
for
t
he
type
of
extra
work
performed,
the
claimant
was
required
to
look
to
the
contract
for
compensation);
Pennsylvania
Electric
Coil
v.
City
of
Danville,
329
F
ed.
Appx.
399
(4th
Cir.
2009)
(quantum
meruit
relief
was
not
available
because
contract
contained
a
change
order
procedure);
JA
Moore
Construction
v.
S
ussex
Associates,
LP,
688
F.Supp.
982
(Del.
1988)
(quantum
meruit
could
not
be
a
basis
for
extras
or
modifications
since
a
procedure
for
compensation
f
or
work
was
provided
in
the
contracts);
Choate
Construction
v.
Ideal
Electrical
Contractors,
Inc.,
541
S.E.2d
435
(Ga.
Ct.
App.
2000
(quantum
meruit
n
ot
allowed
for
extra
work
when
contract
contemplated
changes
and
modifications
and
provided
method
of
carrying
out
changes).
1
4.
Truly
v.
Austin,
744
S.W.2d
934,
936-937
(Tex.
1998).
The
Texas
Supreme
Court
has
defined
a
unilateral
contract
as
one
"created
by
the
promisor
p
romising
a
benefit
if
the
promisee
performs."
Vanegas
v.
Am.
Energy
Servs.,
302
S.W.3d
299,
302
(Tex.
2009).
In
contrast,
a
bilateral
contract
exists
"
when
both
parties
make
mutual
promises."
City
of
Houston
v.
Williams,
353
S.W.3d
128,
135
(Tex.
2011).
As
the
Texas
Supreme
Court
stated,
"[t]
h
e
requirement
of
mutuality
is
not
met
by
an
exchange
of
promises;
rather,
the
valuable
consideration
contemplated
in
'exchange
for
the
promise
is
s
omething
other
than
a
promise,'
i.e.,
performance."
Id.
at
136.
A
unilateral
contract
becomes
enforceable
when
the
promise
performs
and
is
accepted
b
y
actual
performance
as
opposed
to
the
"usual
mutual
promises."
Id.
Although
it
is
highly
unlikely
that
an
agreement
would
be
classified
as
unilateral
c
ontract
in
the
modern
construction
industry,
the
Texas
Supreme
Court
provided
the
"classic
textbook
example
of
a
unilateral
contract"
when
a
person
s
tated:
"`I
will
pay
you
$50
if
you
paint
my
house.'
The
offer
to
pay
the
individual
to
paint
the
house
can
be
withdrawn
at
any
point
prior
to
performance.
B
ut
once
the
individual
accepts
the
offer
by
performing,
the
promise
to
pay
the
$50
becomes
binding."
Vanegas,
302
S.W.3d
at
303.
1
5.
Id.
at
937.
1
6.
Id.
at
938.
1
7.
Id.
1
8.
900
S.W.2d
342
(Tex.
1995).
1
9.
Id.
at
346.
7
C
O
N
S
T
R
U
C
I
I
O
N
L
A
W
J
O
U
R
N
A
L
Q
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
O
ther
courts
have
addressed
the
Truly
exceptions
in
d
ifferent
ways.
For
example,
the
Texarkana
Court
of
A
ppeals,
while
recognizing
Truly's
holding
as
to
the
a
vailability
of
quantum
meruit
in
a
construction
case
w
as
dicta,
nevertheless
allowed
recovery
under
quantum
m
eruit
to
a
breaching
contractor."
In
Walker,
a
contractor
w
as
hired
to
extend
a
horse
training
racetrack,
and
the
w
orkers
were
instructed
to
leave
the
project
after
a
dispute
a
rose
about
how
the
track
was
to
be
built.
2
'
At
trial,
the
jury
d
etermined
that
the
contractor
breached
the
agreement
a
nd
failed
to
substantially
perform,
but
that
the
owner
s
uffered
no
damages
due
to
the
breach.
22
The
jury
also
a
ssessed
a
monetary
value
to
the
services
the
contractor
p
rovided,
which
the
trial
court
found
was
recoverable
u
nder
quantum
meruit."
On
appeal
the
owner
argued
t
hat
quantum
meruit
should
not
be
available
when
the
c
ontractor
breaches
the
contract
and
does
not
substantially
p
erform.'
Consequently,
the
owner
urged
the
appellate
c
ourt
to
follow
the
general
rule
that
quantum
meruit
is
n
ot
available
when
an
express
contract
exists.
2
5
I
n
rejecting
this
argument,
the
Texarkana
Court
of
Appeals
w
as
careful
to
note
that
Truly
established
"two
exceptions
t
o
the
general
rule"
and
that
the
third
exception
was
d
icta.
2
6
The
court
then
turned
to
Murray,
however,
stating
t
hat
"another
Texas
Supreme
Court
decision
reiterates
t
he
dicta
in
Truly
in
holding
that
a
breaching
contractor
c
an
recover
under
quantum
meruit
even
where
there
was
n
o
substantial
performance
under
contract."
2
7
Thus,
the
c
ontractor
could
recover
under
quantum
meruit
because
i
t
showed
that
it
(
1
)
provided
valuable
services;
(2)
for
the
o
wner;
(3)
the
owner
accepted
the
services;
and
(4)
the
s
ervices
were
provided
under
circumstances
that
would
r
easonably
notify
the
owner
that
the
contractor
expected
t
o
be
paid.
2
8
I
n
Bennett
v.
Spectrum
Construction,
the
court
stated
t
hat
the
exceptions
in
Truly
were
not
the
only
available
e
xceptions
allowing
recovery
under
quantum
meruit
where
a
contract
exists."
The
court
held
that
there
may
a
lso
be
recovery
in
quantum
meruit
if
there
has
been
m
utual
abandonment,
or
where
further
performance
is
p
revented
by
a
cause
for
which
neither
party
is
responsible
a
nd
by
reason
of
which
further
performance
is
excused."
I
n
Balfour
Beatty
Rail,
Inc.
v.
Kansas
City
S.
Ry.
Co.,
the
c
ourt
held
that
simply
because
a
case
involves
a
building
o
r
construction
contract
is
insufficient,
by
itself,
to
allow
f
or
a
quantum
meruit
claim
and
the
exceptions
in
Truly
d
id
not
apply.
3
'
In
so
doing,
the
Northern
District
of
Texas
a
ppeared
to
discount
the
existence
of
a
third
exception
u
nder
Truly,
stating:
[
A]
plaintiff
may
not
recover
under
the
g
eneral
rule
of
quantum
meruit
when
t
he
claim
pleaded
fi
ts
within
the
subject
m
atter
of
a
contract
between
the
parties,
u
nless
the
claim
falls
within
one
of
the
t
wo
exceptions
recognized
by
Truly:
(1)
r
ecovery
in
quantum
meruit
is
allowed
w
hen
a
plaintiff
has
partially
performed
a
n
express
contract
but,
because
of
t
he
defendant's
breach,
the
plaintiff
is
p
revented
from
completing
the
contract;
a
nd
(2)
quantum
meruit
recovery
is
s
ometimes
allowed
when
a
plaintiff
p
artially
performs
an
express
contract
t
hat
also
happens
to
be
unilateral
in
n
ature.
3
2
T
he
court
noted
that
the
plaintiff
did
not
allege
that
it
had
p
artially
performed
an
express
contract."
The
court
held
t
hat
"neither
of
the
Truly
exceptions
applies?"
3
4
E
.
QUANTUM
MERUIT
AND
UNJUST
ENRICHMENT
C
onfusion
also
exists
around
unjust
enrichment
in
T
exas
caselaw—including
whether
such
a
cause
of
action
e
ven
exists
and
its
relation
to
a
quantum
meruit
claim.
T
he
Texas
Pattern
Jury
Charges
describe
both
quantum
2
0.
Walker
&
Assocs.
Surveying,
Inc.
v.
Roberts,
306
S.W.3d
839,
858
(Tex.
App.—Texarkana
2010,
no
pet.).
2
1.
Id.at
843.
2
2.
Id.
2
3.
Id.
2
4.
Id.
2
5.
Id.
at
858.
2
6.
Id.
2
7.
Id.
2
8.
Id.;
see
also
STR
Constructors,
Ltd.
v.
Newman
Tile,
Inc.,
395
S.W.3d
383,
391-92
(Tex.
App.—El
Paso
2013,
no
pet.);
Rasa
Floors
v.
Spring
Village
P
artners,
No.
01
-08
-00918
-CV,
210
WL
4676978,
at
*1,
*6
(Tex.
App.—Houston
[1qt
Dist.]
Nov.
18,
2010,
no
pet.)
(mem.
op.)
(noting
that
an
e
xception
to
general
rule
exists
in
construction
cases
which
permits
a
breaching
plaintiff
to
recover
in
quantum
meruit).
2
9.
No.
01-11-00566—CV,
2012
WL
5877948
(Tex.
App.—Houston
[1st
Dist.]
Nov.
21,
2012,
no
pet.)
(mem.
op.).
3
0.
Id.
at
*5
(citing
Benson
v.
Harrell,
324
S.W2d
620
(Tex.
App.—Fort
Worth
1959,
writ
ref'd).
3
1.
No.
3:10
-CV
-1629-L,
2012
WL
3100833,
at
*1,
*12
-*13
(N.D.
Tex.
Jul.
31,
2012)
(mem.
op.).
3
2.
Id.
at
*12
(internal
quotations
omitted)
(emphasis
added).
3
3.
Id.
3
4.
Id.
(emphasis
added).
8
C
O
N
S
T
R
U
C
T
I
O
N
Q
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
L
A
W
J
O
U
R
N
A
L
m
eruit
and
unjust
enrichment
separately,
although
unjust
e
nrichment
is
merely
included
as
a
comment.
3
5
Some
c
ourts
have
stated
that
unjust
enrichment
is
a
cause
of
a
ction.
3
6
In
Pepi,
the
Houston
Court
of
Appeals
explicitly
s
tated
"
[u]
njust
enrichment
is
an
independent
cause
of
a
ction.”
3
7
Other
courts,
however,
have
held
that
unjust
e
nrichment
is
not
an
independent
cause
of
action.
3
8
Texas
c
ourts
remain
conflicted
on
whether
to
classify
unjust
e
nrichment
as
a
cause
of
action
or
as
a
component
of
o
ther
claims.
3
9
Further
compounding
the
confusion,
as
s
ome
courts
have
held,
is
the
close
relationship
between
q
uantum
meruit
and
unjust
enrichment.
4
0
I
n
Truly,
the
Texas
Supreme
Court
stated
that
unjust
e
nrichment
was
an
essential
component
of
a
quantum
m
eruit
claim
asserted
by
a
breaching
contractor
stating:
T
o
justify
a
recovery
in
quantum
meruit,
t
he
plaintiff
must
not
only
show
that
h
e
has
rendered
a
partial
performance
o
f
value,
but
must
also
show
that
the
d
efendant
has
been
unjustly
enriched
and
t
he
plaintiff
would
be
unjustly
penalized
i
f
the
defendant
were
permitted
to
retain
t
he
benefits
of
the
partial
performance.
4
'
Subsequent
decisions
appear
to
suggest
unjust
enrichment
i
s
a
component
of
the
Truly
partial
performance
e
xception.
In
Knight
Renovations,
LLC
v.
Thomas,
the
c
ourt
stated
that
under
the
Truly
exception
for
recovery
a
s
a
breaching
contractor,
which
partially
performed
its
w
ork,
the
plaintiff
could
recover
in
quantum
meruit
for
t
he
materials
and
services
provided,
offset
by
the
damages
t
o
the
defendant
from
the
plaintiff's
breach.
4
2
The
court
f
urther
ruled
that
"
[t]
he
plaintiff
must
prove
that
the
d
efendant
is
unjustly
enriched
as
a
result
of
this
partial
p
erformance,
and
that
permitting
the
defendant
to
retain
t
he
benefits
of
the
partial
performance
would
unjustly
p
enalize
the
plaintiff."
I
n
Walker,
however,
the
court
refused
to
require
any
further
fi
nding
of
unjust
enrichment
to
support
a
quantum
m
eruit
claim.
44
On
appeal,
the
defendant
argued
that
u
njust
enrichment
was
required
to
prevail
on
a
quantum
m
eruit
claim.
4
5
The
Texarkana
Court
of
Appeals
noted
that
"
[i]
n
Truly,
the
Texas
Supreme
Court
held
that
the
general
r
ule
applied—a
party
may
not
recover
under
quantum
m
eruit
when
there
is
an
express
contract
on
the
matter.
T
he
further
discussion
concerning
the
exception
to
the
g
eneral
rule
for
construction
cases,
including
the
above
q
uote,
was
dicta."
4
6
In
addressing
unjust
enrichment,
the
3
5.
See
Tex.
PJC
§
101.42,
101.44
(2020)
(noting
the
conflict
in
Texas
regarding
unjust
enrichment's
existence
as
a
cause
of
action).
3
6.
See
Pepi
Corp.
v.
Gallifird,
254
S.W.3d
457,
460
(Tex.
App.—Houston
[1st
Dist.]
2007,
pet.
denied)
(citing
HECI
Exploration
Co.
v.
Neel,
982
S.W.2d
8
81,
891
(Tex.1998)).
3
7.
254
S.W.3d
at
460.
3
8.
See
Casstevens
v.
Smith,
269
S.W.3d
222,
229
(Tex.
App.—Texarkana
2008,
pet.
denied)
("Unjust
enrichment,
itself,
is
not
an
independent
cause
of
a
ction,
but
rather
'characterizes
the
result
of
a
failure
to
make
restitution
of
benefits
either
wrongfully
or
passively
received
under
circumstances
that
give
r
ise
to
an
implied
or
quasi
-contractual
obligation
to
repay.'");
Mowbray
v.
Avery,
76
S.W.3d
663,
679
(Tex.
App.—Corpus
Christi
2002,
pet.
denied)
(
"[U]njust
enrichment
is
not
a
distinct
independent
cause
of
action
but
simply
a
theory
of
recovery.
It
can
be
applied
where
there
is
a
failure
to
make
r
estitution
of
benefits
received
under
circumstances
which
give
rise
to
an
implied
or
quasi
-contractual
obligation
to
repay,
that
is,
where
a
benefit
was
w
rongfully
secured
or
passively
received
which
would
be
unconscionable
for
the
receiving
party
to
retain.");
see
also
Landers
v.
Landers,
No.
02-19-
00303,
at
*1,
*8
(Tex.
App.—Fort
Worth
Apr.
22,
2021,
no.
pet.)
(mem.
op.).
("Furthermore,
even
if
Marshall
had
pleaded
unjust
enrichment
or
tried
t
his
theory
by
consent,
his
appeal
would
still
fail
because
this
court
has
repeatedly
held
that
'[u]njust
enrichment,
itself,
is
not
an
independent
cause
of
a
ction.'").
3
9.
See
Baylor
Scott
&
White
v.
Project
Rose
MSO,
LLC,
633
S.W.3d
263,
(Tex.
App.—Tyler
2021,
pet.
filed
Nov.
15,
2021)
("The
Texas
Supreme
Court
h
as
suggested,
although
not
definitively
ruled,
that
unjust
enrichment
is
an
independent
cause
of
action");
see
also
Ajose
v.
Interline
Brands,
Inc.,
187
E
S
upp.3d
899,
916
(M.D.
Ten.
2016)
(mem.
op.)
("This
Court's
review
of
Texas
case
law
reveals
a
growing
conflict
in
how
Texas
courts
treat
complaints
t
hat
plead
unjust
enrichment
as
a
separate
cause
of
action.");
VocalSpace,
LLC
v.
Lorenso,
No.
4:09
-CV
-350,
2010
WL
11527374,
at
*1,
*7
(E.D.
Tex.
J
an.
29,
2010)
(mem.
op.)
("There
appears
to
be
some
confusion
as
to
whether
unjust
enrichment
can
be
asserted
as
an
independent
cause
of
action.
B
ased
on
the
cited
precedent
from
the
Texas
Supreme
Court,
the
Court
holds
that
Texas
law
does
allow
unjust
enrichment
as
an
independent
cause
of
a
ction.").
4
0.
Pepi
Corp.,
254
S.W.3d
at
460
("[A]
claim
that
the
opposing
party
is
unjustly
enriched
by
retaining
the
benefits
of
services
rendered
by
the
plaintiff
c
an
also
be
the
basis
for
a
quantum
meruit
cause
of
action,
rather
than
a
separate
claim
in
itself");
see
also
Timbercreek
Canyon
Prop.
Owners
Assoc.,
Inc.
v
.
Fowler,
No.
07
-14
-00043
-CV,
2015
WL
4776695,
at
*1,
*6
(Tex.
App.—Amarillo
Aug.
12,
2015,
no
pet.)
(mem.
op.)
("The
principle
of
unjust
e
nrichment
appears
closely
related
to
quantum
meruit").
4
1.
744
S.W.2d
at
938.
4
2.
525
S.W.3d
446,
454
(Tex.
App.—Tyler
2017,
no
pet.).
4
3.
Id.
(citing
Garcia
v.
Kastner
Farms,
Inc.,
789
S.W.2d
656,
661
(Tex.
App.—Corpus
Christi
1990,
no
writ));
see
also
STR
Constructors,
395
S.W.3d
at
392
(
citing
Truly
for
the
proposition
that
"[t]o
justify
a
recovery
in
quantum
meruit,
the
plaintiff
must
...
show
that
the
defendant
has
been
unjustly
enriched
a
nd
the
plaintiff
would
be
unjustly
penalized
if
the
defendant
were
permitted
to
retain
the
benefits
of
the
partial
performance
without
paying
anything
i
n
return");
Power
v.
GSE
Consulting,
LP,
No.
02
-16
-00175
-CV,
2017
WL
2686324,
at
*1,
*6
(Tex.
App.—Fort
Worth
Jun.
22,
2017,
no
pet.)
(mem.
o
p.)
("Because
GSE
was
not
unjustly
enriched...permitting
Power
to
recover
under
an
exception
to
the
express
-contract
rule
would
have
the
undesirable
e
ff
ect
of
working
an
inequity
upon
GSE,
as
it
would
be
paying
a
commission
on
funds
that
it
did
not
receive.
The
partial
-performance
exception
to
the
e
xpress
-contract
rule
cannot
apply.").
4
4.
Walker,
306
S.W.3d
at
858.
4
5.
Id.
4
6
.
I
d
.
9
E
J
O
U
R
N
A
L
C
O
N
S
T
R
U
C
T
I
O
N
Q
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
L
A
W
c
ourt
stated
".
.
.
importantly,
the
Texas
Supreme
Court
d
id
not
require
any
further
fi
nding
of
unjust
enrichment
i
n
Murray.
We
believe
Murray
provides
the
authority
f
or
recovering
quantum
meruit
in
this
case."
4
7
Thus,
the
a
ppellate
court
upheld
the
trial
court's
award
even
though
n
o
question
regarding unjust
enrichment
was
submitted
t
o
the
jury."
T
he
Dallas
Court
of
Appeals,
while
analyzing
the
e
xceptions
in
Truly
for
claims
by
contractors,
concluded
t
hat
the
exception
was
inapplicable
in
a
case
in
which
a
plaintiff
acted
for
its
own
benefit
and
retained
the
b
enefit
of
its
work.
4
9
Solar
Soccer
Club
("Solar")
agreed
t
o
construct
soccer
fi
elds
on
a
undeveloped
lot
owned
by
P
rince
of
Peace
Lutheran
Church
of
Carrollton,
Texas
(
"Prince.").
5
0
Solar
and
Prince
entered
into
a
ten-year
lease
i
n
which
Solar
agreed
to
construct
the
soccer
fi
elds
at
its
o
wn
expense
in
exchange
for
Prince
not
charging
it
rent
as
P
rince
would
own
the
fi
elds
after
their
completion."
Solar
a
ttempted
to
argue
on
appeal
that
the
Truly
exception
for
c
onstruction
contracts
allowed
for
recovery
in
quantum
m
eruit
despite
the
existence
of
the
written
lease.
5
2
The
a
ppellate
court,
however,
found
that
the
exception
was
i
napplicable."
In
reaching
this
decision,
the
court
noted
t
hat
the
Prince
had
not
been
unjustly
enriched
because
t
he
Solar
"undertook
the
obligations
of
the
lease
in
o
rder
to
provide
a
facility
for
its
own
use
and
benefit,
as
w
ell
as
for
the
use
and
benefit
of
Prince
of
Peace,
and
has
been
able
to
use
the
facility
since
its
completion
in
2
000."
5
4
The
lease
provided
for
remedies
in
the
event
of
a
default
and
addressed
the
services
that
formed
the
basis
o
f
Solar's
quantum
meruit
claim.
5 5
Therefore,
the
plaintiff
w
as
prohibited
from
looking
outside
the
bounds
of
the
a
greement
at
issue
for
relief.
5
6
F
.
DOES
SUBSTANTIAL
PERFORMANCE
PREVENT
T
HE
APPLICATION
OF
A
QUANTUM
MERUIT
CLAIM?
U
nder
Texas
law,
when
a
contractor
has
substantially
p
erformed
a
building
contract,
it
is
entitled
to
bring
a
c
ontract
cause
of
action
to
recover
the
full
contract
price
l
ess
the
cost
of
remedying
those
defects
that
are
remedial."
T
he
equitable
doctrine
of
substantial
performance
a
llows
recovery
for
a
contractor
who
has
breached,
but
s
ubstantially
performed,
its
contract."
Substantial
p
erformance
has
been
defined
as
meaning
"there
was
no
w
illful
departure
from
the
terms
of
the
contract
and
no
o
mission
of
essential
points
of
the
project."
5
9
This
doctrine
r
ecognizes
that
the
contractor
has
not
completed
its
work
a
nd
is
technically
in
breach
of
the
contract
but
prevents
t
he
owner
from
using
the
failure
to
fully
perform
as
an
e
xcuse
for
non-payment.
6
°
In
such
a
case,
the
contractor
h
as
a
claim
for
the
unpaid
balance
and
the
owner
has
a
c
laim
for
damages.
6
1
M
any
courts
have
held
that
quantum
meruit
is
not
a
vailable
if
the
plaintiff
has
fully
performed
its
work.
6
2
In
4
7.
Id.
at
859.
The
court
also
relied
on
the
Texas
Pattern
Jury
Charges
in
reaching
its
conclusion,
stating
"The
Texas
Pattern
Jury
Charges,
upon
which
the
t
rial
court's
charge
was
based,
indicate
that
the
measure
of
damages
for
quantum
meruit
is
not
different
in
construction
contracts
...
Well
-settled
pattern
j
ury
charges
should
not
be
embellished
with
addendum."
Id.
4
8.
Id.
at
858-59;
see
also
Lascano
v.
Huser Huser
Constr.Co.,
No.
04
-14
-00311
-CV,
2015
WL
3398360,
at
*1,
*7,
n.4
(Tex.
App.—San
Antonio
May
27,
2
015,
no
pet.)
(mem.
op.)
(While
not
addressing
Truly
specifically,
the
court
stated
"Huser's
traditional
motion
also
asserted
that
Lascano
was
required
t
o
show
that
Huser
was
'unjustly
enriched'
as
an
element
of
Lascano's
quantum
meruit
claim;
however,
'unjust
enrichment'
is
a
separate
theory
from
q
uantum
meruit.");
but
see
Laredo
Jet
Ctr.,
LLC
v.
City
of
Laredo,
No.
04
-17
-000316
-CV,
2018
WL
3551255,
at
*1,
*4
(Tex.
App.—San
Antonio
Jul.
2
5,
2018,
pet.
denied)
(listing
unjust
enrichment
as
an
element
of
a
quantum
meruit
claim
and
citing
Truly
as
authority).
4
9.
Solar
Soccer
Club
v.
Prince
of
Peace
Lutheran
Church
of
Carrollton,
234
S.W.3d
814,
830
(Tex.
App.—Dallas
2007,
pet.
denied).
5
0.
Id.
at
818.
5
1.
/d.
at
818-19.
5
2.
Id.
at
830.
5
3.
Id.
5
4.
Id.
5
5.
Id.
5
6.
Id.
at
830-31.
5
7.
Vance
v.
My
Apartment
Steakhouse
of
San
Antonio,
Inc.,
677
S.W.2d
480,
481
(Tex.
1984).
5
8.
Dobbins
v.
Redden,
785
S.W.2d
377,
377
(Tex.
1990);
Tips
v.
Hartland
Developers,
Inc.,
961
S.W.2d
618,
623
(Tex.
App.—San
Antonio
1998,
no
pet.).
5
9.
Uhlir
v.
Golden
Triangle
Dev.
Corp.,
763
S.W.2d
512,
514
(Tex.
App.—Fort
Worth
1988,
writ
denied).
6
0.
Vance,
677
S.W.2d
at
482.
6
1.
Id.
at
481-82.
6
2.
See
MMR
Constructors,
Inc.
v.
Dow
Chemical
Co.,
No.
01
-19
-00039
-CV,
2020
WL
7062325,
at
*1,
*11
(Tex.
App.—Houston
[1st
Dist.]
Dec.
3,
2
020,
no
pet.
h.)
(mem.
op.)
("MMR
did
not
plead
any
factual
alternative
that
it
had
not
fully
performed
its
contractual
obligations.
MMR's
judicial
a
dmission
that
it
had
performed
its
obligations
under
the
Contract,
coupled
with
its
judicial
admission
that
it
fully
completed
its
work,
which
was
t
he
subject
matter
of
the
Contract
and
the
task
for
which
MMR
seeks
compensation,
was
sufficient
to
conclusively
establish
that
the
exceptions
to
the
e
xpress
-contract
rule
did
not
apply
and
that
MMR
was
precluded
as
a
matter
of
law
from
recovering
under
quantum
meruit.");
Sys.
One
Holdings,
LLC
v
.
Campbell,
No.
B:18-cv-54,
2018
WL
4290459,
at
*1,
*4
(S.D.
Tex.
Aug.
21,
2020)
(mem.
op.)
("Generally,
if
a
subcontractor
fully
performs
its
end
o
f
a
written
contract,
it
cannot
pursue
relief
under
quantum
meruit,
because
its
recourse
lies
in
contract.").
1
0
C
O
N
S
T
R
U
C
I
I
O
N
Q
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
L
A
W
J
O
U
R
N
A
L
t
he
case
of
Pepi
Corp.
v.
Galliford,
a
subcontractor
brought
a
quantum
meruit
claim
against
a
property
owner
for
w
ork
performed
on
the
property."
The
court
recognized
t
he
general
rule
holding
that
an
existence
of
a
contract
p
recludes
claims
in
quantum
meruit
but
also
noted
the
t
hree
exceptions
in
Truly
that
the
Texas
Supreme
Court
r
ecognized."
In
Pepi,
the
claimant
had
fully
performed
its
d
uties
under
the
contract
and,
according
to
the
court,
the
T
ruly
exceptions
did
not
apply."
The
court
consequently
h
eld
that
the
trial
court
had
erred
in
entering
judgment
p
remised
on
quantum
meruit.
66
C
ourts
are
divided
on
if
the
same
prohibition
on
quantum
m
eruit
claims
applies
to
cases
where
the
plaintiff
has
s
ubstantially
performed.
The
Houston
Court
of
Appeals
d
etermined
that
a
plaintiff
could
not
recover
under
q
uantum
meruit
when
the
jury
determined
that
the
g
eneral
contractor
had
substantially
performed.
6
7
Central
t
o
this
ruling
was
that
the
contractor
could
recover
under
t
he
contract
because
of
its
substantial
performance."
T
herefore,
the
contractor
could
not
to
look
to
quantum
m
eruit
for
relief
and
should,
instead,
look
to
the
contract.
69
L
ogically,
it
would
follow
that
quantum
meruit
should
n
ot
be
available
when
a
party
has
substantially
performed
a
s
substantial
performance
allows
a
party
to
recover
on
the
c
ontract.
In
such
circumstances,
the
plaintiff
would
not
h
ave
to
resort
to
the
doctrine
of
quantum
meruit
in
order
t
o
recover
for
its
work.
Rather,
the
agreement,
which
t
he
parties
entered
into
and
drafted
to
conform
to
their
i
ntent,
should
control.
In
D2
Excavating,
Inc.
v.
Thompson
T
hrift
Construction,
the
Fifth
Circuit
discussed
the
reasons
w
hy
quantum
meruit
should
not
be
available
to
a
plaintiff
t
hat
substantially
performs
a
contract.
7
°
The
court
stated:
Q
uantum
meruit
is
an
equitable
theory
o
f
recovery
which
is
based
on
an
implied
agreement
to
pay
for
benefits
r
eceived
.
.
.
it
is
generally
unavailable
i
f
a
valid
contract
covers
the
goods
or
s
ervices
a
plaintiff
furnished
. .
.
If
the
p
arties
reached
an
expressed
agreement
a
llocating
payments,
services
and
r
isks,
that
is,
a
contract
—
then
a
court
s
hould
not
step
in
and
impose
its
view
o
f
what
would
constitute
an
equitable
a
rrangement.
Texas
recognizes
an
e
xception
to
this
general
rule
in
the
c
onstruction
context.
A
plaintiff
t
hat
does
not
substantially
perform
a
c
onstruction
contract,
and
thus
cannot
r
ecover
under
the
express
contract,
may
p
ursue
quantum
meruit
for
the
value
o
f
its
services
. . .
unlike
the
goods
or
s
ervices
provided
under
many
contracts,
p
artial
work
done
on
a
construction
p
roject
cannot
be
transferred
to
another
b
uyer.
So
it
would
be
unjust
to
allow
the
p
arty
receiving
the
partial
construction
t
o
not
pay
anything
for
it
. . .
if
there
i
s
no
free
lunch,
then
certainly
there
i
s
no
free
house.
As
a
result,
when
a
b
reaching
contractor
cannot
recover
the
c
ontract
price,
it
nevertheless
may
be
a
ble
to
recover
in
quantum
meruit.
7
'
B
ecause
the
contractor
in
D2
had
substantially
performed,
t
he
Fifth
Circuit
did
not
allow
recovery
under
quantum
m
eruit.
7
2
However,
a
Dallas
Court
of
Appeals
decision
n
oted
that
"
[t]
he
doctrine
of
substantial
performance
'will
n
ot
normally
prohibit
the
implementation
of
the
theory
o
f
quantum
meruit."'"
6
3.
254
S.W.3d
at
462-463.
6
4.
Id.
at
462.
6
5.
Id.
at
462-63.
6
6.
Id.
at
463.
6
7.
Gulf
Liquids
New
River
Project,
LLC
v.
Gulsby
Egn'g,
Inc.,
356
S.W.3d
54,
71
(Tex.
App—Houston
[1st
Dist.]
2011,
no
pet.).
6
8.
Id.
6
9.
Id.
7
0.
973
F.3d
430
(5th
Cir.
2020).
7
1.
Id.
at
436.
7
2.
Id.
("D2
seeks
a
quantum
meruit
recovery
despite
having
substantially
performed
its
contractual
duties
and,
therefore,
being
able
to
collect
on
the
c
ontract.
In
other
words,
D2
wants
quantum
meruit
plus
the
contract
price.
That
is
not
allowed.");
see
also
Graham
Constr.
Co.
v.
Walker
Process
Equip.,
I
nc.,
422
S.W.2d
478,
481
(Tex.
Civ.
App.—Corpus
Christi
1967,
writ
ref'd
n.r.e)
("The
rule
denying
recovery
under
a
contract
and
permitting
recovery
b
ased
on
quantum
meruit
does
not
apply
where
there
has
been
substantial
or
full
performance
of
the
contract");
Tex.
PJC
§
101.46
(2020)
("A
building
c
ontractor
who
has
not
substantially
performed
may
have
quantum
meruit
as
an
alternate
ground
of
recovery.").
7
3.
PMC
Chase,
LLP
v.
Branch
Structural
Solutions,
Inc.,
No.
05
-18
-01383
-CV,
2020
WL
467791,
at
*1,
*4
(Tex.
App.—Dallas
Jan.
28,
2020,
pet.
denied)
(
mem.
op.)
(citing
Montclair
Corp.
v.
Earl
N.
Lightfoot
Paving
Co.,
417
S.W.2d
820,
830
(Tex.
App.—Houston
1967,
writ
ref'd
n.r.e.)
for
the
proposition
t
hat
the
"court's
extensive
research
revealed
no
case
law
precluding
construction
contractor
who
substantially
performs
from
electing
to
recover
under
q
uantum
meruit
rather
than
on
contract.");
see
also
Gentry
v.
Squires
Constr.,
188
S.W.3d
396,
404
(Tex.
App.—Dallas
2006,
no
pet.).
11
C
O
N
S
T
R
U
C
T
I
O
N
Q
UANTUM
MERUIT:
THE
OTHER
CAUSE
OF
ACTION
L
A
W
J
O
U
R
N
A
L
G
.
QUANTUM
MERUIT
DAMAGES
I
n
order
to
recover
under
quantum
meruit,
"
[t]
he
plaintiff
i
s
required
to
produce
evidence
of
the
correct
measure
of
d
amages
in
order
to
recover
on
a
quantum
meruit
claim."
A
lthough
many
courts
do
not
specifically
address
the
issue,
t
he
measure
of
damages
for
quantum
meruit
may
differ
d
epending
on
whether
implied
in
fact
or
implied
in
law
(
quasi
-contract)
quantum
meruit
is
involved
and
whether
u
njust
enrichment
is
a
requirement
for
recovery!'
I
n
a
typical
quantum
meruit
claim,
where
there
is
not
a
c
ontract
covering
the
scope
of
the
work,
the
more
familiar
d
amages
will
be
available.
In
this
situation,
the
measure
o
f
recovery
for
quantum
meruit
claims
is
the
"reasonable
v
alue
of
the
work
performed
or
the
materials
furnished."
7
6
E
vidence
of
the
actual
costs
a
contractor
incurred
is
not
t
he
proper
measure
of
damages
for
quantum
meruit
under
t
his
scenario.
77
Likewise,
quantum
meruit
damages
cannot
b
e
based
solely
on
the
anticipated
benefits
of
a
contract
o
r
the
contract's
total
price.
7
8
Therefore,
if
a
contractor
w
ishes
to
recover
under
this
form
of
quantum
meruit
t
he
contractor
must
do
more
than
provide
testimony
r
egarding
the
costs
it
incurred
on
the
project
or
the
c
ontract
amount.
Instead,
the
contractor
must
put
forth
c
ompetent
evidence
regarding
the
reasonable
value
of
the
w
ork
or
materials
provided.
I
f
a
contract
covers
the
subject
matter
of
the
dispute
and
a
p
arty
has
partial
performed,
then
the
measure
of
quantum
m
eruit
damages
may
depend
on
whether
the
owner
or
the
contractor
is
the
breaching
party.
Thus,
if
the
contractor
i
s
unable
to
complete
the
work
due
to
the
owner's
breach,
"
the
contractor
is
entitled
to
recover
in
quantum
meruit
t
he
reasonable
value
of
the
labor
and
materials
he
has
put
i
nto
the
building
in
accordance
with
the
contract,
whether
t
he
result
has
any
value
to
the
owner
or
not."
7
9
On
the
o
ther
hand,
if
the
contractor
is
the
defaulting
party,
"the
n
et
benefit
received
by
the
owner,
rather
than
the
market
v
alue
of
the
labor
and
materials
supplied
by
the
contractor
i
s
a
proper
measure
of
the
defaulting
contractor's
recovery
f
or
part
performance?"
8
0
To
determine
the
owner's
net
b
enefit,
the
owner's
damages
must
be
offset
against
the
m
arket
value
of
the
building."
This
would
seem
to
be
c
onsistent
with
the
unjust
enrichment
component
of
T
ruly.
H
.
CONCLUSION
Q
uantum
meruit
remains
a
viable
cause
of
action
in
those
i
nstances
in
which
the
contract
does
not
address
the
work
i
n
question
and
does
not
have
a
claims
procedure
which
a
ddresses
extra
work
claims.
According
to
some
courts,
q
uantum
meruit
is
also
available
as
a
cause
of
action
e
ven
if
the
contract
addresses
the
work
in
question
(see
t
he
Truly
exceptions).
In
the
case
of
the
exception
for
a
breaching
plaintiff
on
construction
projects,
damages
a
re
likely
limited
to
the
value
to
the
owner
of
the
labor
a
nd
materials
furnished
and
the
practitioner
should
c
onsider
the
submission
of
damages
in
that
manner
and
a
n
instruction
-question
on
unjust
enrichment.
7
4.
Brandt
Co.,
LLC
v.
Beard
Process
Solutions,
Inc.,
No.
05-17-00780,
2018
WL
4103210,
at
*1,
*13
(Tex.
App.
-Dallas
Aug.
29,
2018,
pet.
grant'd,
jdgmt
v
act'd,
remand
by
agmt)
(mem.
op);
see
Knight
Renovations,
LLC
v.
Thomas,
525
S.W.3d
446,
454
(Tex.
App.
-Tyler
2017,
no
pet.);
M
.
J.
Sheridan
&
Son
C
o.,
Inc.
v.
Seminole
Pipeline
Co.,
731
S.W.2d
620,
624-25
(Tex.
App.
-Houston
[1st
Dist.]
1987,
no
writ).
7
5.
See
Beeman
v.
Worrell,
612
S.W.2d
953,
956-57
(Tex.
Civ.
App.
-Dallas
1981,
no
writ)
(noting,
however,
"that
not
all
Texas
opinions
recognize
this
d
istinction.").
7
6.
Hill,
544
S.W.3d
at
736;
Tex.
PJC
§
115.7
(2020).
7
7.
M.J.
Sheridan,
731
S.W.2d
at
625;
see
also
Brandt,
2018
WL
4103210,
at
*14.
7
8.
Brandt,
2018
WL
4103210,
at
*13
("Evidence
of
anticipated
benefits
of
a
contract,
without
more,
will
not
support
the
recovery
of
damages
for
a
quantum
m
eruit
claim.")
(citing
Marrocco
v.
Hill,
No.
14
-14
-00137
-CV,
2015
WL
9311521,
at
*1,
*3
(Tex.
App.
-Houston
[14th
Dist.]
Dec.
22,
2015,
no
pet.)
(
mem.
op.);
Green
Garden
Packaging
Co.,
Inc.
v.
Schoenmann
Produce
Co.,
Inc.,
No.
01
-09
-00924
-CV,
2010
WL
4395448,
at
*1,
*6-7
(Tex.
App.
-
Houston
[1st
Dist.]
Nov.
4,
2010,
no
pet.)
(mem.
op.)
(concluding
evidence
of
anticipated
profits
under
contract
was
not
proper
measure
of
damages
f
or
quantum
meruit
claim);
M.I.
Sheridan,
731
S.W.2d
at
625
(evidence
of
actual
costs
represents
breach
of
contract
damages,
not
quantum
meruit));
K
night,
525
S.W.3d
at
4545
("The
original
contract
price
cannot
constitute
the
value
of
the
work
Knight
performed
when
the
evidence
shows
that
Knight
d
id
not
complete
all
of
the
work
required
under
the
contract
and
its
work
was
subpar.");
San
Antonio
Aerospace,
L.P.
v.
Gore
Design
Completions,
Ltd.,
No.
0
7
-06
-0309
-CV,
2008
WL
2200035,
at
*1,
*2
(Tex.
App.
-Amarillo
May
28,
2008,
pet.
denied)
(mem.
op.).
7
9.
Beeman,
612
S.W.2d
at
957.
Note
that
a
plaintiff
may
in
some
circumstances
instead
elect
to
recover
under
the
contract
when
the
defendant
prevented
t
he
plaintiff
from
fully
performing.
McFarland
v.
Sanders,
932
S.W.2d
640,
644
(Tex.
App
-Tyler
1996,
no
pet.)
(citing
McCracken
Constr.
Co.,
Inc.
v.
U
rrutia,
518
S.W.2d
618,
621-22
(Tex.
App.
-El
Paso
1974,
no
writ)
("In
Texas
it
is
an
established
rule
of
law
that
where,
as
here
found
by
the
jury,
the
e
mployee
(builder)
is
prevented
by
the
employer
(owner)
from
completing
the
performance
of
his
contract,
he
is
entitled
to
recover
for
the
part
performed
a
nd
the
damages
he
has
sustained
by
reason
of
the
breach
of
contract
by
the
employer.
It
is
also
established
law
that
where
an
owner
wrongfully
interferes
w
ith
a
contractor
and
prevents
his
completion
of
the
contract,
the
proper
measure
of
damages
where
the
contractor
sues
on
the
contract
is
the
contract
p
rice
less
what
would
have
been
the
cost
to
the
contractor
of
completing
the
work,
but
that
this
is
not
the
sole
measure
of
damages
since
the
contractor
m
ay
treat
the
contract
as
rescinded
and
recover
under
quantum
meruit
the
full
value
of
the
work
done.").
8
0.
Id.
8
1.
Id.
at
956.
1
2
