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Fischer v. Eagle Equity

Court of Appeals of Texas, Fifth District, Dallas
Mar 21, 2011
No. 05-09-01067-CV (Tex. App. Mar. 21, 2011)

Summary

holding even if contract not attached to summary-judgment motion, plaintiff's "own pleadings establish that the services sued upon were rendered pursuant to a contract" with defendant

Summary of this case from City of Mansfield v. Savering

Opinion

No. 05-09-01067-CV

Opinion Filed March 21, 2011.

On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-11152-L.

Before Justices MOSELEY, BRIDGES, and O'NEILL.


MEMORANDUM OPINION


Appellant Allen Fischer appeals a summary judgment granted in favor of Eagle Equity, Inc. on Fischer's suit for quantum meruit and unjust enrichment. In three issues, Fischer generally contends the trial court erred in granting Eagle's motion for summary judgment. For the following reasons, we affirm the trial court's judgment.

Eagle owns car dealerships in the DFW metroplex. Following a hail storm, Eagle submitted an insurance claim to its insurer, Travelers Lloyds Insurance Company. A dispute arose over the value of the loss and Eagle and Travelers invoked an appraisal process pursuant to the contract between them. The process allowed each party to select an appraiser of their choice at their own cost. Eagle retained Jackson Fulgham as its appraiser. Fulgham in turn retained Plaintiffs Fischer, Justin Fischer, and David Gregg to perform work necessary for the appraisal. When Fulgham did not pay plaintiffs for services rendered pursuant to the contract, plaintiffs sued Fulgham for breach of contract. They also sued Eagle and Travelers for quantum meruit asserting they accepted plaintiffs' services under circumstances that reasonably notified them that they expected to be paid. Plaintiffs also alleged an unjust enrichment claim against Eagle.

Eagle filed a traditional and no-evidence motion for summary judgment on plaintiffs' claims for quantum meruit. It also filed a traditional motion for summary judgment on plaintiffs' claim for unjust enrichment. The trial granted the motions and rendered judgment that plaintiffs take nothing against Eagle. Plaintiffs' claims against Fulgham and Travelers Lloyds remained. Eagle filed an unopposed motion for severance seeking to sever the claims against it from the underlying suit. The severance was granted. Only Fischer appeals.

Eagle moved for summary judgment on both Fischer's quantum meruit and unjust enrichment claims based on express contract. A party cannot recover under quantum meruit or unjust enrichment for services provided under a contract. In re Guardianship of Fortenberry, 261 S.W.3d 904, 915 (Tex. App.-Dallas 2008, no pet.). It is undisputed that Fischer provided the services pursuant to a contract between himself and Fulgham. Fischer nevertheless argues that Eagle failed to conclusively establish the contract covered "all the services and materials at issue." He suggests, but provides no evidence, that he may have provided services in addition to those covered by his contract with Fulgram. We have carefully reviewed Fischer's petition. The only services he claims to have performed were those that Fulgham retained him to perform. These are the same services for which he sued Fulgham for breach of contract. A defendant need not show the plaintiff cannot succeed on any theory conceivable in order to obtain summary judgment, but is only "required to meet the plaintiff's case as pleaded." SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995). By showing the services sued upon were the same services Fulgham retained him to perform, we conclude Eagle conclusively established the defense of express contract.

Fischer also contends summary judgment was improper on this ground because Eagle did not conclusively negate various exceptions to the express contract rule. Fischer asserts that a defendant who moves for summary judgment on the express contract rule must also exclude any possible exceptions to the express contract defense. According to Fischer's rationale, a defendant moving for summary judgment on an affirmative defense is required to guess as to any potential exceptions to that affirmative defense and then conclusively negate all of them. The only two cases he cites are Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) and Dolenz v. Boundy, 197 S.W.3d 416, 419 (Tex. App.-Dallas 2006, pet. denied). Both cases are limitations cases that discuss a defendant's burden to negate tolling when raised by the plaintiff; neither has anything to do with the express contract rule or exceptions to that rule. Tolling is not an exception to a limitations defense, but is a rule that determines when limitations runs in the first instance. See Weaver v. Witt, 561 S.W.2d 792, 794 (Tex. 1977). These cases are not applicable.

The general rule is that when a defendant moves for summary judgment on an affirmative defense and establishes that defense as a matter of law, the plaintiff/nonmovant must raise a fact issue on any matter injected by the plaintiff in confession and avoidance of the affirmative defense. Fiengo v. Gen. Motors Co., 225 S.W.3d 858, 861 (Tex. App.-Dallas 2007, no pet.); Prodigy Commn's Corp. v. Agric. Excess Surplus Ins. Co., 195 S.W.3d 764, 768 (Tex. App.-Dallas 2006), rev'd on other grounds, 288 S.W.3d 374 (Tex. 2009); see also, e.g., Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1973); Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.-Austin 2010, no writ). In the absence of some authority that a defendant must negate possible exceptions to the express contract affirmative defense, we conclude Fischer has not raised a fact issue defeating summary judgment.

Fischer also asserts the trial court erred in overruling his objection to Eagle's exhibit "C," a copy of the contract between him and Fulgham. He makes numerous complaints concerning authentication, failure to include attachments, and hearsay, but the only authority he cites is rule 1002 which concerns the requirement of an original. Appellant has not raised any complaint on appeal regarding Eagle's failure to produce the original or raised any question about the authenticity of the original contract. Fischer cites no pertinent authority to support its arguments under this issue. The Texas Rules of Appellate Procedure require an appellant's brief 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(h). The failure to adequately brief an issue waives that issue on appeal. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex.App.-Dallas 2006, no pet.) ("Failure to cite applicable authority or provide substantive analysis waives issue on appeal."); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994). We will not make appellant's arguments for him. Robertson v. SW Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.-Dallas 2006, no pet.). Moreover, even without a copy of the contract, Fischer's own pleadings establish that the services sued upon where rendered pursuant to a contract with Fulgram. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (assertions of fact in live pleadings of a party, not pleaded in alternative, are regarded as judicial admissions).

Appellant also complains the trial court erred in admitting other summary judgment evidence. However, the complained-of evidence was relevant to other grounds for summary judgment, not to Eagle's defense of express contract. Because the trial court properly granted summary judgment on Eagle's express contract ground and the complained-of evidence was not relevant to that ground, we need not consider whether the complained-of evidence was properly considered. We affirm the trial court's judgment.


Summaries of

Fischer v. Eagle Equity

Court of Appeals of Texas, Fifth District, Dallas
Mar 21, 2011
No. 05-09-01067-CV (Tex. App. Mar. 21, 2011)

holding even if contract not attached to summary-judgment motion, plaintiff's "own pleadings establish that the services sued upon were rendered pursuant to a contract" with defendant

Summary of this case from City of Mansfield v. Savering
Case details for

Fischer v. Eagle Equity

Case Details

Full title:ALLEN FISCHER, Appellant v. EAGLE EQUITY, INC., Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 21, 2011

Citations

No. 05-09-01067-CV (Tex. App. Mar. 21, 2011)

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