quantum meruit not viable where claim actionable as breach of contract

law-quantum-meruit-and-breach-of-contract-claims-mutually-exclusive, incompatible with each other | must
be pleaded in the alternative, can only recover on one, depending on whether contract governs the
disputed | other quantum meruit caselaw | quantum meruit - element of reasonable expectation to be paid

QUANTUM MERUIT

Quantum meruit is an equitable remedy that does not arise out of a contract, but is independent of it. Vortt
Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party may recover
under quantum meruit only when there is no valid express contract covering the services or materials
furnished. Id.; see also Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675 (Tex. 1964) (“Where there
exists a valid express contract covering the subject matter, there can be no implied contract.”).

The equitable theory of quantum meruit is premised on a promise implied by law to pay for beneficial
services rendered and knowingly accepted. See Beverick v. Koch Power, Inc., 186 S.W.3d 145, 154 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied); Shannon v. S. Co. Energy Mktg., L.P., No. , 2002 WL
1733243, at *2 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (not designated for publication). Generally,
a party may recover under a quantum meruit theory only when there is no express contract covering the
services for which compensation is sought. In re Kellogg Brown & root, Inc., 166 S.W.3d 732, 740 (Tex.
2005) (orig. proceeding); Hester v. Friedkin Cos., Inc., 132 S.W.3d 100, 106 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied).

As a general rule, a party seeking to recover the equivalent value of services and materials provided to
another can recover in quantum meruit only if there is no express contract for those services and
materials.         Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex. 1995); Truly v. Austin, 744 S.W.
2d 934, 936 (Tex. 1988). An exception exists in construction cases, however, which permits a breaching
plaintiff to recover in quantum meruit for the value of services and materials rendered, less any damage
suffered by the defendant. Murray, 900 S.W.2d at 345; Truly, 744 S.W.2d at 937; Chilton Ins. Co. v. Pate
& Pate Enters., Inc., 930 S.W.2d 877, 889 (Tex. App.—San Antonio 1996, writ denied). The key to the
right to recover in such cases is the acceptance, use, and enjoyment of the benefits conferred. Truly, 744
S.W.2d at 937; Chilton, 930 S.W.2d at 889.

Attorney’s fees are recoverable in a cause of action for quantum meruit. TEX. CIV. PRAC. & REM. CODE
ANN. § 38.001 (Vernon 2008).

BREACH OF CONTRACT VS. QUANTUM MERUIT THEORY
A party may equitably recover in quantum meruit for goods or services
provided absent a written contract. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d
942, 944 (Tex. 1990); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502 (Tex. App.--Houston
[1st Dist.] 2006, pet. denied). Generally, a party may recover under quantum meruit only when there is no
express contract covering the services or materials furnished. Vortt, 787 S.W.2d at 944; Tricon,
226 S.W.3d at 502; see Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) ("Generally
speaking, when a valid, express contract covers the subject matter of the parties' dispute, there can be no
recovery under a quasi-contract theory . . . ."). Here, the jury found that Grant breached the written
employment agreement made the basis of his claim. We have concluded that his breach was material.
Because an enforceable written contract existed between the parties that covered Grant's compensation,
the trial court did not err in entering a take-nothing judgment on Grant's quantum meruit claim.
Grant v. Laughlin Environmental, Inc. (Tex.App.- Houston [1st Dist.] Dec. 18, 2008)(Jennings)
(summary judgment evidence, conclusory affidavit, breach of contract, quantum meruit, fraud, negligent
misrepresentation)

Borrell v. Vital Weight Control, Inc. (Tex.App.- Houston [14th Dist.] Mar. 26, 2009)(Frost)
(no quantum meruit claim where express contract covers claim)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Guzman
14-07-00390-CV Leo Borrell v. Vital Weight Control, Inc., d/b/a Neweigh
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman

Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)
(credit card suit by assignee of card issuer against consumer, deemed admissions, sufficiency of summary
judgment proof, breach of contract and quantum meruit claim exclusive of each other, incompatible)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Because the deemed admissions conclusively prove the existence of a contract, quantum meruit is not
available as a theory of recovery. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000)
(holding that because party to contract bound by express agreement, quantum meruit not available
where express contract proven).

RIGHTS DERIVING FROM EXPRESS CONTRACT VS. EQUITABLE RELIEF / REMEDY

Farragut’s live pleading states only a claim for breach of contract, and an equitable
right to subrogation cannot exist where a contract governs the parties’ relationship.
See Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 (Tex. 2007) (holding that
equitable subrogation right may arise only in absence of express agreement).
Bennett Truck Transport, LLC v. William Brothers Construction (Tex.App. - Houston [14th Dist.] May 22,
2008)(Yates) (common carrier liability, equitable subrogation, sj reversed)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00923-CV Bennett Truck Transport, LLC v. William Brothers Construction
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle Quantum Meruit

QUANTUM MERUIT JURY QUESTION
In his fourth and fifth issues, which concern the jury’s affirmative answer to question number four, Long
asserts that the evidence is legally and factually insufficient to establish that Long “accepted and used” the
services rendered or materials furnished and that the jury’s answer is immaterial and cannot support a
judgment based upon the jury’s affirmative answer to it. Jury question number four asks,

Did United Welding Supplies, Inc. perform compensable work for Robert R. Long? One party performs
compensable work if valuable services are rendered or materials furnished for another party who
knowingly accepts and uses them and if the party accepting them should know that the performing party
expects to be paid for the work.

The jury answered “yes.” Footnote Because we hold that the evidence is legally and factually sufficient to
establish that Long breached the contract with United, we need not address whether the evidence is
legally and factually sufficient to establish that United was entitled to recover under the alternate theory of
quantum meruit. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)
(stating “A party may recover under quantum meruit only when there is no express contract). 01-03-
00034-CV

A claim for quantum meruit and a contract claim are juxtaposed in the same way: they are mutually
exclusive. Richter, 90 S.W.3d at 894 (“A party may recover under quantum meruit only when there is no
express contract . . . .”) (citing Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.
1990)).
14-04-00079-CV

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