The Fourteenth Court of Appeals in Houston recently released an opinion in the case Bluenix Corp. v. Texas Construction Systems, Inc. Texas Construction Systems (TCS), a construction contractor, was hired by Bluenix to design and build a storage shed at a Bluenix facility in Houston. TCS spent 49.5 hours attempting to obtain a permit from the City of Houston, but was fired by Bluenix. TCS sued Bluenix for breach of contract and quantum meruit requesting foreclosure on a mechanic’s and materialman’s lien it placed on Bluenix’s property. Bluenix countersued for breach of contract. At trial, the jury found that neither party breached the contract but that Bluenix owed TCS $10,046.20 under quatum meruit. On appeal, Bluenix argues the trial court erred in submitting a quantum meruit question to the jury.

The Fourteenth Court of Appeals performed the following analysis of quantum meruit:

“Quantum meruit is an equitable remedy based on an implied promise to pay for benefits received. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Wohlfahrt v. Holloway, 172 S.W.3d 630, 634 (Tex. App.—Houston [14th Dist.] 2005, pets. denied). To prove quantum meruit, a party must show a) valuable services were rendered or materials furnished, b) for the person sought to be charged, c) the services or materials were accepted and used by the person sought to be charged, d) under such circumstances to reasonably notify the person to be charged that the party seeking recovery was expecting to be paid by the person sought to be charged. See Vortt Exploration, 787 S.W.2d at 944; Wohlfahrt, 172 S.W.3d at 634.”

“TCS plead[] quantum meruit, but Bluelinx contend[ed] it should not have been submitted as a matter of law because an express contract exists between the parties. [The Court] disagree[d]. A party may recover in quantum meruit when there is no express contract covering the services or materials furnished. See Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 86 (Tex. 1976); Coastal Chem, Inc. v. Brown, 35 S.W.3d 90, 101 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The existence of an express contract does not preclude quantum meruit recovery for services or materials that are not covered by the contract. Black Lake, 538 S.W.2d at 86; Beverick v. Koch Power, Inc., 186 S.W.3d 145, 154 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Coastal Chem, 35 S.W.3d at 101.”

“Bluelinx argue[d] in its brief that the hours [TCS] spent working on the permit process are not compensable via quantum meruit because obtaining a permit is within the scope of work covered by the contract. [The Court] agree[d] with Bluelinx that the plain language of the contract includes [TCS]’s work to procure the permit. The contract requires TCS “to obtain all licenses and permits” and to “furnish all labor, materials, services, [and] supervision” necessary to perform its duties under the contract. This language unambiguously requires TCS to furnish all labor and supervision necessary to obtain the permit. [A representative of TCS] testified about his expectation to be paid for the hours he spent obtaining the permit and his opinion of the industry practice, but such parol evidence cannot be used to create an ambiguity in an otherwise unambiguous contract. In re Polyamerica, LLC, 296 S.W.3d 74, 77 (Tex. 2009) (orig. proceeding) (stating that party’s beliefs regarding contract did not alter unambiguous language of the contract); Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325 S.W.3d 692, 696 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“An unambiguous contract will be enforced as written and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.”). Thus, the jury’s award cannot be sustained based on the hours [TCS] spent obtaining the permit.”

See Bluenix Corp. v. Texas Construction Systems, Inc., Fourteenth Court of Appeals-Houston, January 27, 2011 (Cause No. 14-09-00237-CV). 

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