Affirmed and Memorandum Opinion filed March 26,=20
2009.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00390-CV
____________
LEO=20
BORRELL, =
Appellant
V.
VITAL WEIGHT=20
CONTROL, INC., D/B/A NEWEIGH, =
Appellee
On Appeal from the =
129th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2002-13659
M E M O R=20
A N D U M O P I N I O N
A doctor=20
who engages in business activities in the healthcare field sued a =
company=20
seeking to recover a finder=3Ds fee or=20
commission allegedly owed for services rendered in connection with =
a=20
business transaction involving a third party. After =
receiving jury=20
findings in his favor, the doctor elected to seek judgment on his=20
quantum-meruit claim; however, the trial court granted a judgment=20
notwithstanding the verdict and ordered that the doctor take=20
nothing. Because the trial evidence conclusively proved that =
the=20
services for which the doctor sought compensation were covered by =
an=20
express contract, and thus were not recoverable in quantum meruit, =
we=20
affirm the trial court=3Ds=20
judgment.
=
; =
=20
I. Factual and =
Procedural=20
Background
Appellant=20
Dr. Leo Borrell is a physician who engages in business activities =
in the=20
healthcare field. Appellee Vital Weight Control, Inc., d/b/a =
NeWeigh=20
(hereinafter ANeWeigh@) is a=20
company that markets and manages bariatric surgery programs for =
hospitals=20
but is not itself a healthcare provider. Diane Crumley is =
the=20
founder, owner, and president of NeWeigh. Borrell and =
Crumley met in=20
the 1990s, and Borrell offered to have one of his companies merge =
with=20
NeWeigh or purchase NeWeigh. Crumley declined this =
offer. =20
Later, in=20
October of 2000, Borrell and one of his business partners, Irvin =
Gregory,=20
entered into a written contract with NeWeigh. Under this =
contract,=20
Borrell and Gregory promised, among other things, to provide =
NeWeigh with=20
an acceptable hospital in which NeWeigh could run a bariatric =
surgery=20
program (AOctober=20
Contract@). =20
The October Contract expired by its own terms within thirty =
days. =20
However, if during the term of the October Contract, a hospital =
accepted=20
by NeWeigh or the entity owning such a hospital acquired NeWeigh, =
then=20
Borrell and Gregory were entitled under the October Contract to =
receive a=20
sales commission of six percent of the purchase price (hereinafter =
ACommission@). =20
In addition, during the term of the October Contract, NeWeigh gave =
Borrell=20
and Gregory the right of first refusal to match the terms and =
conditions=20
of any offer to purchase all or any part of NeWeigh (hereinafter=20
ARefusal=20
Right@). =20
Ninety days after the termination of the October Contract, the =
Refusal=20
Right terminated. Under the October Contract, NeWeigh does =
not=20
promise to pay Borrell or Gregory any consideration for their =
services=20
other than the Commission and the Refusal =
Right.
During the=20
term of the October Contract, however, Borrell and Gregory did =
arrange a=20
meeting between NeWeigh and Dynacq International, Inc. f/k/a =
Dynacq=20
Healthcare, Inc. (hereinafter ADynacq@), the=20
owner of Vista Community Medical Center, L.L.C. (hereinafter =
AVista@) to=20
discuss the possibility of NeWeigh running a bariatric surgery =
program for=20
Vista. Dynacq submitted a draft agreement to NeWeigh, which =
NeWeigh=20
rejected. It is undisputed that the October Contract =
terminated by=20
its own terms in November 2000, without Borrell and Gregory having =
provided an acceptable hospital in which NeWeigh could run a =
bariatric=20
surgery program. Because no such hospital was provided =
during the=20
term of the October Contract, there was no hospital entity that =
could=20
acquire NeWeigh and no Commission that could accrue to Borrell and =
Gregory=20
based on such an acquisition. The parties also do not =
dispute that=20
no offer to purchase all or any part of NeWeigh was made that =
would be=20
subject to the Refusal Right under the October =
Contract.
Although=20
Borrell gave conflicting testimony at trial, he testified that, =
after the=20
expiration of the October Contract, he and NeWeigh, through =
Crumley,=20
entered into an oral agreement under which NeWeigh would pay =
Borrell five=20
percent of the gross revenue NeWeigh received from running a =
bariatric=20
surgery program for Vista in exchange for Borrell=3Ds=20
assistance to NeWeigh in obtaining a contract with Vista. =
Borrell=20
also testified that he had an oral agreement with Dynacq under =
which=20
Dynacq would pay Borrell five percent of Dynacq=3Ds gross=20
revenue from the bariatric surgery program that NeWeigh would run =
at=20
Vista. In May 2001, Vista and NeWeigh entered into a =
contract under=20
which NeWeigh was to manage Vista=3Ds=20
bariatric surgery program for three years. In November 2002, =
Vista=20
and NeWeigh canceled the May 2001 contract, and NeWeigh entered =
into a new=20
contract with another subsidiary of Dynacq. Borrell alleges =
that the=20
substance of the November 2002 contract is the same as the prior =
contract,=20
with NeWeigh managing the bariatric surgery program for=20
Vista.
Because=20
Neweigh refused to pay Borrell any commission based on a =
percentage of=20
NeWeigh=3Ds gross=20
revenue from running the bariatric surgery program for Vista, =
Borrell sued=20
NeWeigh asserting claims for breach of contract, promissory =
estoppel, and=20
quantum meruit. In his live petition, Borrell alleges that=20
A[p]rior to=20
conclusion of the [May 2001] agreement between [NeWeigh] and =
Vista,=20
[NeWeigh] and Borrell reached an oral agreement that [NeWeigh] =
would pay=20
Borrell, on a monthly basis for three years, a commission of $400 =
per=20
patient or 5% of the gross fees paid by patients managed by =
[NeWeigh],=20
whichever amount was greater.@ =20
Borrell decided to proceed to trial only on his =
promissory-estoppel and=20
quantum-meruit claims. Following trial, the jury answered =
questions=20
on these two claims in Borrell=3Ds=20
favor. NeWeigh filed a motion for judgment notwithstanding =
the=20
verdict asserting that (1) the trial evidence conclusively proved =
that an=20
express contract covers Borrell=3Ds=20
services, thus precluding recovery on his quantum-meruit claim, =
and (2)=20
there was no evidence of any damages that may be recovered under a =
promissory-estoppel claim.
After the=20
trial court granted NeWeigh=3Ds motion=20
for judgment notwithstanding the verdict as to Borrell=3Ds=20
quantum-meruit claim, NeWeigh sought judgment notwithstanding the =
verdict,=20
asserting that (1) the trial evidence conclusively proved that an =
express=20
contract covers Borrell=3Ds=20
services, thus precluding recovery on his promissory-estoppel =
claim, and=20
(2) there was no trial evidence of any damages that may be =
recovered under=20
a promissory-estoppel claim. However, Borrell continued to =
elect=20
recovery under his quantum-meruit claim and did not seek to =
recover under=20
his promissory-estoppel claim. Therefore, the trial court =
did not=20
rule on the motion for judgment notwithstanding the verdict as to =
the=20
promissory-estoppel claim. Instead, the trial court rendered =
judgment that Borrell take nothing against NeWeigh based on the=20
court=3Ds granting=20
of the motion for judgment notwithstanding the verdict as to the=20
quantum-meruit claim.
=
; =
&=
nbsp; =20
II. Issues=20
Presented
On appeal,=20
Borrell presents the following issues:
(1) =20
The trial court erred by finding that a prior written agreement =
between=20
the parties precluded Borrell=3Ds recovery under =
quantum=20
meruit.
(2) =20
The trial court erred by granting judgment notwithstanding the =
verdict=20
because there is evidence to support the jury=3Ds=20
verdict.
III. =20
Standard of Review
Judgment=20
without or against a jury verdict is proper at any course of the=20
proceedings only when the law does not allow reasonable jurors to =
decide=20
otherwise. City of Keller v. Wilson, 168 S.W.3d 802, =
823=20
(Tex. 2005). Accordingly, the test for legal sufficiency is =
the same=20
for summary judgments, directed verdicts, judgments =
notwithstanding the=20
verdict, and appellate no-evidence review. Id. =
When=20
reviewing the legal sufficiency of the evidence, we consider the =
evidence=20
in the light most favorable to Borrell and indulge every =
reasonable=20
inference that would support it. Id. We must =
credit=20
favorable evidence if a reasonable factfinder could and disregard =
contrary=20
evidence unless a reasonable factfinder could not. See =
id. at=20
827. We must determine whether the evidence at trial would =
enable=20
reasonable and fair-minded people to find the facts at =
issue. See=20
id. The factfinder is the only judge of witness =
credibility and=20
the weight to give to testimony. See id. at =
819.
=
; =
&=
nbsp; &n=
bsp; =20
IV. =20
Analysis
Under=20
Texas law, the general rule is that a plaintiff who seeks to =
recover the=20
reasonable value of services rendered or materials supplied under =
a=20
quantum-meruit claim may do so only when there is no express =
contract=20
covering those services or materials. See Truly v. =
Austin,=20
744 S.W.2d 934, 936 (Tex. 1988). This rule applies whether =
the=20
express contract is a written contract or an oral contract. =20
See R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 703 =
(Tex.=20
App.CWaco 2008,=20
pet. denied); Ramirez Co. v. Housing Auth. of City of =
Houston, 777=20
S.W.2d 167, 173 & n.12 (Tex. App.CHouston=20
[14th Dist.] 1989, no writ). There were numerous conflicts =
in=20
Borrell=3Ds=20
testimony. Among other things, Borrell testified as=20
follows:
! =20
After the expiration of the October Contract, NeWeigh and Borrell =
entered=20
into an oral agreement under which NeWeigh would pay Borrell five =
percent=20
of the gross revenue NeWeigh received from running a bariatric =
surgery=20
program for Vista in exchange for Borrell=3Ds assistance to =
NeWeigh in=20
obtaining a contract with Vista.
! =20
On behalf of NeWeigh, Crumley verbally =
agreed to=20
indefinitely extend the October Contract.
! =20
Borrell had an oral agreement with Dynacq under which Dynacq would =
pay=20
Borrell five percent of Dynacq=3Ds gross revenue =
from the=20
bariatric surgery program that NeWeigh would run at Vista. =20
! =20
NeWeigh and Borrell entered into an oral agreement under which =
NeWeigh=20
would pay Borrell five percent of the gross revenue NeWeigh =
received from=20
running a bariatric surgery program for Vista or NeWeigh =
would pay=20
Borrell five percent of Dynacq=3Ds =
gross=20
revenue from the bariatric surgery program that NeWeigh would run =
at=20
Vista, after Dynacq had paid that amount to NeWeigh.
Despite=20
conflicts and inconsistencies in Borrell=3Ds trial=20
testimony as to the terms of his oral agreement with NeWeigh, =
Borrell=20
consistently testified that he had some sort of oral agreement =
governing=20
his compensation for services rendered to NeWeigh to help it =
obtain a=20
contract with Vista. Crumley consistently denied that she =
ever=20
agreed to pay Borrell any part of NeWeigh=3Ds gross=20
revenue. However, Crumley testified that she did not put the =
thirty-day termination provision in the October Contract and that, =
even=20
though the October Contract had terminated, she still would honor =
the=20
October Contract. Under the applicable standard of review, =
the trial=20
evidence conclusively proves an express contract that covers the =
services=20
whose reasonable value Borrell sought to recover in his =
quantum-meruit=20
claim. See Truly, 744 S.W.2d at 936B38. =20
Borrell=20
has not asserted in his issues nor has he presented this court =
with=20
argument that the facts of this case fall within one of the =
exceptions to=20
the general rule the Supreme Court of Texas set forth in=20
Truly. See id. (mentioning exceptions to =
general rule=20
if (1) plaintiff partially performs an express contract but, =
because of=20
defendant=3Ds breach,=20
is prevented from completing the contract, (2) plaintiff partially =
performs an express contract that is unilateral in nature, or (3)=20
plaintiff provides labor or materials under a construction =
contract and=20
satisfies certain requirements). Even if Borrell had argued =
that one=20
of these exceptions apply, under the applicable standard of =
review, there=20
is no evidence raising a fact issue as to the applicability of any =
of=20
these exceptions. No evidence raises a fact issue as to =
whether (1)=20
NeWeigh=3Ds alleged=20
breach of contract prevented Borrell from completing his contract; =
(2)=20
Borrell partially performed an express contract that is unilateral =
in=20
nature;=20
or (3) Borrell=3Ds services=20
were rendered under a construction contract. Therefore, the=20
Truly exceptions do not provide a basis for reversing the =
trial=20
court=3Ds=20
judgment.
Borrell=20
also asserts that there was some evidence supporting the =
jury=3Ds findings=20
that Borrell performed compensable work for NeWeigh and that =
$111,000 was the reasonable value of this compensable work for =
which=20
NeWeigh did not pay Borrell. However, even presuming that =
these=20
findings are supported by some evidence, Borrell may not recover =
under his=20
quantum-meruit claim if the evidence conclusively proves that =
recovery is=20
barred under the Truly rule. See id. =
=
; =
&=
nbsp; &n=
bsp;=20
V. =20
Conclusion
Under the=20
applicable standard of review, the trial court did not err in =
rendering=20
its judgment notwithstanding the verdict. Accordingly, we =
overrule=20
Borrell=3Ds two=20
appellate issues,=20
and affirm the trial court=3Ds=20
judgment.
/s/ =20
Kem Thompson Frost
Justice
Panel=20
consists of Justices Frost, Seymore, and Guzman.
For this reason, to the extent, =
Borrell=20
focuses only on the written October Contract in his first issue =
and in his=20
argument, he applies the wrong analysis.
To the extent Borrell testified =
that the=20
services were covered by the October Contract, that contract, =
under its=20
unambiguous language, is bilateral, not unilateral. As to =
other=20
purported oral agreements, no trial evidence raises a fact issue =
as to=20
whether Borrell partially performed these =
agreements.
In light of this =
disposition,=20
we need not and do not address NeWeigh=3Ds conditional=20
cross-points.=20
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