Speck v. First Evangelical Lutheran Church of Houston
(Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Bland) (construction law, nonpayment claim for services,
quantum meruit, unjust enrichment, sworn account, JNOV)(insufficient record for appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00605-CV Pat K. Speck v. First Evangelical Luthern Church of Houston and Dry Bones
Coffee House Inc. and Dry Bones Coffee House
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Jacqueline Lucci-Smith
After a jury returned a favorable verdict on Speck’s unjust enrichment claim against Dry Bones Coffee
House, Inc. (Dry Bones), the trial court granted Dry Bones’ motion for judgment notwithstanding the
verdict. On appeal, Speck contends that although Dry Bones moved for JNOV solely on the grounds of
legally insufficient evidence of unjust enrichment, the trial court instead granted JNOV based on Speck’
s inability to recover on the theory of quantum meruit. Speck also applies for a writ of mandamus to
compel the entry of judgment on the verdict, arguing that the trial court abused its discretion in granting
Dry Bones’ motion for JNOV. We hold that Speck failed to challenge Dry Bones’ assertion of legally
insufficient evidence of unjust enrichment, an independent ground that supports the judgment, and
therefore affirm the judgment of the trial court. We hold that an adequate remedy by appeal exists, and
therefore deny Speck’s application for a writ of mandamus.
Throughout 2004 and 2005, Speck performed repairs and renovations on property owned by First
Evangelical Lutheran Church of Houston (FELC) and Dry Bones, a corporation wholly owned by FELC.
In 2005, after FELC and Dry Bones failed to pay Speck for his efforts, Speck sued for breach of
contract, sworn account, and quantum meruit. FELC and Dry Bones moved for summary judgment only
on Speck’s quantum meruit claim, but the trial court granted summary judgment on all three claims. We
affirmed the summary judgment on the quantum meruit claim, but reversed and remanded the breach
of contract and sworn account claims. See Speck v. FELC, 235 S.W.3d 811, 819 (Tex. App.—Houston
[1st Dist.] 2007, no pet.). On remand, Speck amended his petition to drop the claim for quantum meruit
and to add a claim for unjust enrichment.
At trial, the jury found that (1) an agreement existed between Speck and FELC, (2) Speck suffered
economic loss of $19,401.65, (3) Dry Bones was unjustly enriched, and (4) damages for unjust
enrichment equaled $8,833.23. Both FELC and Dry Bones moved for JNOV, with Dry Bones solely
arguing that Speck failed to produce legally sufficient evidence to support the jury’s verdict on the
unjust enrichment claim. The trial court granted Dry Bones’ motion for JNOV and entered a take-
nothing judgment against Speck. Although the trial court denied FELC’s motion, the court also found
that FELC was entitled to an offset equal to the amount of the jury verdict, and therefore ordered Speck
to take nothing from either defendant. Speck only appeals the grant of Dry Bones’ JNOV, and thus Dry
Bones is the only appellee properly before this court. See Kagan-Edelman Enters. v. Bond, 20 S.W.3d
706, 707 (Tex. 2000) (per curiam) (holding that failure to raise issue regarding appellee waives ability
to obtain relief from that appellee).
According to Speck, at the time the trial court granted Dry Bones’ motion for JNOV, the court stated that
Speck “was not entitled to recover under the legal theory of quantum meruit.” The trial court, in its final
judgment, noted that the jury found unjust enrichment on the part of Dry Bones and stated that “the
Court was of the opinion that . . . the [JNOV] motion of Dry Bones [should be] granted.” The final
judgment includes no mention of quantum meruit. Speck did not request a reporter’s record of the trial,
nor did he present any documentation or record of what occurred at the hearing on the motions for
Speck’s only argument on appeal is that the trial court erroneously granted Dry Bones’ motion for JNOV
on the grounds that Speck was not entitled to recover under quantum meruit, a cause of action Speck
did not plead. Speck does not argue that, contrary to Dry Bones’ assertions in its motion for JNOV, he
presented legally sufficient evidence of unjust enrichment. Therefore, we need not perform the usual
sufficiency of evidence analysis for judgments notwithstanding the verdict. See, e.g., Tanner v.
Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (stating sufficiency of evidence
standard for appellate review of JNOV).
We have previously held that the appellant bears the burden of bringing forward a sufficient record
on appeal to show the error committed by the trial court. See Nicholson v. Fifth Third Bank, 226 S.W.
3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Christiansen v. Prezelski, 782 S.W.
2d 842, 843 (Tex. 1990) (“The burden is on the appellant to see that a sufficient record is presented to
show error requiring reversal.”); Guillot v. Guillot, No. 01-06-01039-CV, 2008 Tex. App. LEXIS 4831, at
*11 (Tex. App.—Houston [1st Dist.] June 26, 2008, no pet.) (mem. op.) (“An appellant waives an issue
by failing to present an adequate record to the appellate court to demonstrate the trial court’s
reversible error.”). Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to 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) (emphasis added).
Dry Bones’ motion for JNOV contained the following sole ground:
Because the admissible evidence was legally insufficient to support the jury’s answer to either question
[on unjust enrichment], Defendants are entitled to judgment notwithstanding that verdict. First, as to
the liability question, there was absolutely no evidence . . . that Dry Bones wrongfully secured a benefit
through fraud, duress or taking undue advantage of Speck, or passively received a benefit which it
would be unconscionable to retain.
In its final judgment, the trial court stated the following:
The jury further found that Dry Bones, Inc. was unjustly enriched. Subsequent to the jury’s verdict both
First Evangelical Church of Houston and Dry Bones Coffee House moved for Judgment not
withstanding the jury’s verdict and the Court was of the opinion that . . . the motion of Dry Bones Coffee
House [should be] granted.
Neither Dry Bones’ motion for JNOV nor the final judgment contains any mention of quantum meruit. In
his brief, Speck asserts that “[t]he trial court . . . stat[ed] from the bench that Appellant was not entitled
to recover under the legal theory of quantum meruit.” Speck does not cite to any portion of the record
to support this assertion. Speck did not request a reporter’s record from either the trial or the hearing
on Dry Bones’ motion for JNOV. All we have before us on this issue are the following: (1) Dry Bones’
motion for JNOV, which does not mention quantum meruit, (2) the trial court’s final judgment, which
likewise does not mention quantum meruit, and (3) Speck’s assertion on appeal that the trial court
orally stated that Speck could not recover for quantum meruit and thus granted Dry Bones’ motion for
JNOV on this ground, and not because Speck produced legally insufficient evidence of the unjust
enrichment claim. We hold that Speck did not meet his burden to bring forward a sufficient record to
show that the trial court committed reversible error. See also Labrador Oil Co. v. Norton Drilling Co., 1
S.W.3d 795, 803 (Tex. App.—Amarillo 1999, no pet.) (overruling issue when appellant failed to direct
appellate court to portions of record supporting its complaint).
Generally, an appellant must “attack all independent bases or grounds that fully support a
complained-of ruling or judgment.” Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.
—Houston [1st Dist.] 2002, no pet.); see also Tex. Dep’t of Transp. v. City of Sunset Valley, 92 S.W.3d
540, 546 (Tex. App.—Austin 2002) (“When a separate and independent ground that supports a
judgment is not challenged on appeal, the appellate court must affirm the lower court’s judgment.”), rev’
d on other grounds, 146 S.W.3d 637 (Tex. 2004). As the San Antonio Court of Appeals has observed:
“[a]ffirmance of the trial court’s judgment is proper if it is supported by any ground asserted in the
motion for judgment notwithstanding the verdict, even if the trial court’s assigned rationale for granting
the motion is erroneous.” Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d 300, 302 (Tex. App.—San
Antonio 1999, pet. denied); see also Guar. County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.
1986) (per curiam) (“We must uphold a correct lower court judgment on any legal theory before it, even
if the court gives an incorrect reason for its judgment.”). If the appellant does not attack all
independent grounds supporting the judgment, we must affirm. See Britton, 95 S.W.3d at 681. In
Britton, we reasoned that:
[I]f an independent ground fully supports the complained-of ruling or judgment, but the appellant
assigns no error to that independent ground, then (1) we must accept the validity of that unchallenged
independent ground, and thus (2) any error in the grounds challenged on appeal is harmless because
the unchallenged independent ground fully supports the complained-of ruling or judgment.
Id. The Britton trial court granted TDCJ’s plea to the jurisdiction without specifying the grounds for its
decision. Id. at 680. On appeal, Britton only attacked two out of six grounds raised by TDCJ in its plea,
and since the other four independent grounds presented by TDCJ all supported the judgment of the
trial court, we affirmed. See id. at 680, 682. Speck failed to challenge Dry Bones’ legal sufficiency
contention; thus, an independent ground fully supports the judgment of the trial court, and we must
affirm the grant of Dry Bones’ motion for JNOV.
Speck’s Application for a Writ of Mandamus
Speck also argues that the trial court abused its discretion by granting Dry Bones’ motion for JNOV
on quantum meruit grounds and requests a writ of mandamus ordering the trial court to enter judgment
on the verdict. We will grant mandamus relief only when “the trial court has clearly abused its discretion
and the relator lacks an adequate appellate remedy.” In re Team Rocket, L.P., 256 S.W.3d 257, 259
(Tex. 2008) (orig. proceeding). Mandamus is not appropriate when the relator’s grievance can be
addressed by remedies such as a normal appeal. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992). If an appellate court holds that the trial court erroneously granted a motion for JNOV, the
appropriate action is to reverse the judgment of the trial court and render judgment on the verdict. See
Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex. 1967); McDade v. Tex. Commerce Bank, N.A., 822 S.W.
2d 713, 720 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (“When an appellate court holds that a
trial court has erroneously entered a judgment n.o.v., the appellate court must reverse the trial court’s
judgment and enter judgment in accordance with the verdict.”). Because an appellate court can
provide an adequate remedy on direct appeal, mandamus relief is not available in a challenge to the
trial court’s grant of a motion for JNOV.
We hold that Speck failed to present a sufficient record on appeal to show that the trial court erred in
granting Dry Bones’ motion for JNOV. Speck also failed to challenge Dry Bones’ assertion in its motion
that Speck failed to present legally sufficient evidence to support the jury’s finding of unjust
Since an independent legal ground exists to support the grant of Dry Bones’ motion for JNOV, we affirm
the judgment of the trial court. We deny Speck’s application for a writ of mandamus.
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
 We note that without a reporter’s record of the trial, even if Speck challenged Dry Bones’ legal
sufficiency argument, we would be unable to perform a legal sufficiency review and analysis. See
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (“An appellant must either comply with [the
predecessor to Texas Rule of Appellate Procedure 34.6(c)] or file a complete statement of facts;
otherwise, it will be presumed that the omitted portions are relevant to the disposition of the appeal.”).
When an appellant appeals with neither a complete nor a partial reporter’s record, as allowed by Rule
34.6(c), we presume that the omitted portions of the record support the trial court’s judgment. See
Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.).