Opinion
04-20-00134-CV
10-13-2021
H.L. ZUMWALT CONSTRUCTION, INC., Appellant v. ROAD REPAIR, LLC, Appellee
From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2015CVQ002791D2 Honorable Monica Z. Notzon, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Liza A. Rodriguez, Justice
This appeal arises from a contractual dispute between H.L. Zumwalt Construction, Inc. and Road Repair, LLC ("Road Repair") relating to a Texas Department of Transportation ("TxDOT") highway construction project. The jury found that Zumwalt and Road Repair had an oral contract for the performance of 85.25 stations of preparation of right-of-way ("prep row") work at $15,000.00 per station and that Zumwalt breached that oral contract. Zumwalt appeals from the over one-million-dollar judgment rendered against it, arguing that there is no evidence to support Road Repair's claim for breach of an oral contract. Because we agree there is no evidence to support Road Repair's claim, we reverse.
Background
The highway project at the center of the parties' dispute started in 2010 when TxDOT entered into a contract with Ballenger Construction Co. ("Ballenger") for the construction of the Loop 20 Highway Project ("the Project") in Webb County, Texas. Ballenger secured payment and performance bonds for its work, and its surety on those bonds was Liberty Mutual. Ballenger subsequently defaulted on the Project, and Liberty Mutual, as surety, was required to complete the Project for TxDOT.
Liberty Mutual approached Jeff DuBose, the owner of Road Repair, to bid for completion of the Project. However, Road Repair was a subcontractor and thus not capable of completing the entire Project. Because DuBose had a previous relationship with Henry Zumwalt, DuBose approached him and asked if H.L. Zumwalt Construction, Inc. ("Zumwalt") could submit a bid as the general contractor so that Road Repair could obtain work as a subcontractor. Zumwalt agreed. DuBose testified that he went to the bidding conference because he "was invited by Liberty [Mutual] personally" and "had the experience with these types of projects."
DuBose prepared the bid for Zumwalt and was the only person at the bidding conference representing Zumwalt and Road Repair. DuBose testified at trial that when a company bids on a "takeover" project, the bidding contractors are invited to the Project site because "there's a lot of exposure when it comes to interpretation of what is complete and what is not complete." DuBose testified that during this process, he learned that many items described as having already been completed by the previous contractor, Ballenger, were not in fact completed.
One such uncompleted item was preparation of right of way or "prep row" work. Prep row is clean-up work, including hauling off debris. DuBose testified that prep row is paid "by the station," which in this Project was "a 100-foot increment." According to DuBose, prep row is "paid by the length" and "it doesn't matter the width." DuBose testified that on the Project, there were "85.25 stations." DuBose testified prep row "can be something as little as trimming the trees along the fence line," or it can include removing old railroad track underneath the dirt and returning the ground to its natural state. DuBose walked the Project to identify what prep row work was necessary.
Zumwalt won the bid for completion of the Project and entered into a contract with Liberty Mutual. Zumwalt then entered into a written subcontract with Road Repair. The written subcontract between Zumwalt and Road Repair provided that "the items of work to be performed by the Subcontractor [Road Repair] as required under this Subcontract and the above general contract and the prices the Subcontractor is to receive and which prices shall constitute full and complete payment to Subcontractor, are as follows":
(emphasis added).
Bid Item
Description
Quantity/Unit of Measure
Unit Price
Total
1002002002
PREPARING ROW
85.25/STA
1, 173.00
99, 998.25
1042009
REMOVING CONC (RIPRAP)
303.32/SQYD
35.00
10, 616.20
1042017
REMOVING CONC (DRIVEWAYS)
743.89/SQYD
5.65
4, 202.98
1042022
REMOVING CONC (CURB AND GUTTER)
154.00/LNFT
3.50
539.00
1682001
VEGETATIVE WATERING
1245.00/MG
18.00
22, 410.00
4002005
CEM STABIL BKFL
2966.68/CUYD
69.00
204, 700.92
5002001005
MOBILIZATION AND PROJECT MANAGEMENT
1.00/LUMP
154, 406.93
154, 406.93
5062009012
ROCK FILTER DAMS (REMOVE)
195.00/LNFT
15.00
2, 925.00
5082016012
CONSTRUCTION EXITS (INSTALL) (TY1)
139.00/SQYD
10.00
1, 390.00
5062019012
CONSTRUCTION EXITS (REMOVE)
139.00/SQYD
110.00
15, 290.00
5062034012
TEMPORARY SEDIMENT CONTROL FENCE
2915.00/LNFT
4.00
11, 660.00
5122008002
PORT CTB (FUR & INST) (LOW PROF) (TY1)
120.00/LNFT
70.00
8, 400.00
5122009002
PORT CTB (FUR & INST) (LOW PROF) (TY2)
40.00/LNFT
50.35
2, 014.00
5122026002
PORT CTB (MOVE) (LOW PROF) (TY1)
7080.00/LNFT
5.00
35, 400.00
5122027002
PORT CTB (MOVE) (LOW PROF) (TY2)
40.00/LNFT
150.00
6, 000.00
5122035002
PORT CTB (STKPL) (LOW PROF) (TY1)
680.00/LNFT
13.00
8, 840.00
5122036002
PORT CTB (STKPL) (LOW PROF) (TY2)
60.00/SQYD
13.00
780.00
57472001
GEOGRID BASE REINFORCEMENT (TY1)
6400.44/SQYD
4.00
25, 601.76
2472060033
FL BS (CMP IN PLC) (TY E GR 4) (FNAL POS)
64.18/CUYD
45.00
2, 888.10
2472120033
FL BS (RDWY DEL) (TY E GR 4) (IN VEH)
1840.88/SQYD
45.00
82, 839.60
2602054002
LIME TRT (NEW BASE) (10”)
19731.53/SQYD
5.50
108, 523.42
96082007
UNIQUE CO ITEM 7 - MOBILIZATION
1.00/EA
5, 900.00
5, 900.00
L-3 2602002002
LIME HYDRATED (LIME SLURRY)
22.00/TON
700.00
15, 400.00
L-4
LIME TRT (EXISTING BASE) 12”
4500.00/SQYD
5.50
24, 750.00
L-6
SURVEY PROJECTION ACCORD[ANCE] WITH TXDOT SPECIFICATIONS GENERAL REQUIREMENTS AND CONVENANCE
1.00/LS
50, 000.00
50, 000.00
TOTAL
898, 476.16
Pursuant to the subcontract, Road Repair "agree[d] that [it] has full notice and knowledge of the provisions of such general contract, including all provisions affecting the work to be done by [Road Repair] hereunder." Further, the subcontract stated that
[a]ll work to be done by [Road Repair] shall be performed strictly in accordance with the terms of such general contract and the plans and specifications governing same; and the terms of such general contract and the appurtenant plans and specifications are made a part of this subcontract as fully as though written herein.
Under the subcontract, Road Repair
agree[d] that the method, mode and procedure to be followed in accomplishing and completing the work called for by this subcontract will be subject to the approval of the Contractor [Zumwalt] and that [Road Repair] will be subject to the approval of [Zumwalt] and that [Road Repair] will comply with all directions of [Zumwalt] in this regard, and all of such work shall be done to the satisfaction of [Zumwalt].
Finally, the subcontract explicitly stated that it was the sole and complete agreement between the parties:
It is understood and agreed that this subcontract is the sole and complete agreement, and that there are no other written or oral agreements between Contractor [Zumwalt] and Subcontractor [Road Repair] and that no modifications or change in this subcontract will be recognized unless it is in writing.
Pursuant to the subcontract, Road Repair agreed to perform 85.25 stations of prep row work on the Project at a price of $1,173.00 per station, for a total price of $99,998.25.
Between March 2013 and May 23, 2013, Road Repair submitted invoices to Zumwalt for prep row work at the rate of $1,173.00 per station, the price provided for in the subcontract. DuBose testified that as of May 23, 2013, Road Repair had substantially completed the prep row work as provided in the subcontract. Thus, on May 23, 2013, Road Repair submitted an invoice stating that the 85.25 stations of prep row work was 100% complete. It is undisputed that Road Repair was paid for this invoice, the same amount as provided in the written subcontract.
DuBose testified that in June 2013, he became aware that TxDOT had issues with completion of work on the Project. Road Repair complained to TxDOT that it was not being "paid for work that [it] w[as] completing and that Liberty [Mutual] was not allowing [Road Repair] to bill for the items that were being completed." As the project general manager, DuBose met with Zumwalt's president (Henry Zumwalt) and Zumwalt's general manager (Lennie Turpin) to discuss the issues they were having with Liberty Mutual and TxDOT. Turpin stated during the meeting that because of the liquidated damages clause in the contract between Zumwalt and Liberty Mutual, they would have to finish the Project and fight for payment from Liberty Mutual later.
At trial, Turpin, Zumwalt's general manager, testified that Road Repair did perform additional work that was not within the scope of the contract. In June, July, and August 2013, Road Repair submitted invoices to Zumwalt for this additional work. None of these invoices, however, were for prep row work. In addition to the total price of $99,998.25 for work done pursuant to the original subcontract for prep row work, Zumwalt paid Road Repair an additional $459,252.98 for a total of $1,357,729.14.
On August 29, 2013, Road Repair submitted an invoice for prep row work. The invoice stated that 85.25 stations of prep row had been completed. Road Repair requested payment in the amount of $11,250.00 per station for 50 stations of prep row work. As the prep row work under the subcontract had already been paid to Road Repair at $1,173.00 per station, Turpin asked Road Repair to provide proof that it had performed additional work. Turpin testified that if Road Repair provided proof of the additional work, Zumwalt agreed to send the prep row work claim to Liberty Mutual for payment.
On December 15, 2013, Road Repair submitted another invoice for prep row work, requesting payment of $15,000.00 per station for 85.25 stations of prep row work, thus requesting a total amount of $1,278,750.00. Zumwalt told DuBose that if Road Repair did any extra work, it should file a legitimate change order and Zumwalt would attempt to pass the claim for payment through to Liberty Mutual. Road Repair, however, never provided any support for its claim of additional prep row work. Thus, Liberty Mutual never paid Zumwalt for Road Repair's claim.
Because Zumwalt was having payment disputes with Liberty Mutual regarding other claims, Zumwalt sued Liberty Mutual in federal court. As project manager, DuBose helped put together Zumwalt's claims against Liberty Mutual. In its petition against Liberty Mutual, Zumwalt included Road Repair's pass through claim for additional prep row work. Andrew Goldsmith, a retained expert for Zumwalt, prepared a preliminary report that included Road Repair's claim for additional prep row work. Goldsmith testified that he repeatedly asked DuBose to provide documentation to support Road Repair's claim of additional prep row work, but none was ever provided by Road Repair. Thus, Goldsmith did not include Road Repair's claim for additional prep row work in his final report.
On August 17, 2015, Road Repair filed the underlying suit against Zumwalt and Liberty Mutual, alleging that Zumwalt had not paid it because Liberty Mutual had not paid Zumwalt. Zumwalt then filed a cross claim against Liberty Mutual. In its first amended petition, Road Repair alleged that its claims were made subject to the pass-through provision in the parties' contracts, thus allowing Road Repair to directly sue Liberty Mutual.
On October 28, 2016, Zumwalt filed a second amended complaint in its federal case against Liberty Mutual. Because Road Repair had not provided any documentation to support its prep row claim, Zumwalt did not include any allegations relating to Road Repair's claim. On December 4, 2017, Zumwalt informed Road Repair that it had a mediation with Liberty Mutual scheduled and invited Road Repair to attend. Zumwalt subsequently settled its claims against Liberty Mutual; the settlement did not include any amount for Road Repair's claim. Turpin testified that Zumwalt never received any money from Liberty Mutual for Road Repair's $1.2 million claim for additional prep row work.
In July 2017, Road Repair nonsuited its claims against Liberty Mutual. On January 15, 2019, Road Repair filed its third amended petition, asserting that Zumwalt owed it "a total of $1,278,750.00 in outstanding bills as established by [Road Repair]'s invoices dated July 22, 2013 in the amount of $644,523.50, August 29, 2013 in the amount of $562,500.00, and December 15, 2013, in the amount of $1,278,750.00." Road Repair alleged that "[t]hese invoices are cumulative and do not represent separate indistinct amounts of work." "In other words, the total amount owed is $1,278,750.00." Zumwalt then served Road Repair with discovery requests, asking it to identify the additional work underlying its claim. When Road Repair did not answer, the trial court ordered it to respond and pay sanctions. Road Repair then answered, denying the December 15, 2013 invoice was for any work other than prep row work.
The case proceeded to a jury trial. Question No. 1 asked the jury: "Did Road Repair and Zumwalt have an oral contract for the performance of 85.25 stations of preparation of right-of-way (Prep ROW) work at $15,000.00 per station?" The jury answered, "Yes." Question No. 2 asked the jury: "Did Zumwalt breach the oral contract with Road Repair by failing to pay $15,000.00 per station for 85.25 stations of preparation of right-of-way (Prep ROW) work?" The jury again answered, "Yes." Question 3 asked the jury how much money would fairly compensate Road Repair for its damages. The jury answered $1,278.750.00. The trial court then signed a final judgment awarding Road Repair actual damages in the amount of $1,278,750.00. The judgment further awarded Road Repair attorney's fees. Zumwalt appealed.
Discussion
On appeal, Zumwalt argues there is no evidence to support Road Repair's claim for breach of an oral contract. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, crediting favorable evidence that a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). Evidence is legally insufficient when (a) there is complete absence of evidence of a vital fact; (b) the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove that fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
To establish a breach of contract claim, a party must show (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from the breach. Borain Capital, LLC v. Hashmi, 533 S.W.3d 32, 36 (Tex. App.-San Antonio 2017, pet. denied). To establish the existence of a valid contract, a party must show (1) an offer; (2) an acceptance; (3) a meeting of the minds; (4) each party's consent to the terms; (5) execution and delivery of the contract with intent that it be mutual and binding; and (6) consideration. Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.-Houston [14th Dist.] 2000, no pet.). "The elements of written and oral contracts are the same and must be present for a contract to be binding." Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.-Tyler 2004, pet. denied).
Here, in response to Question No. 1, the jury found that Road Repair and Zumwalt entered into an oral contract in which Zumwalt agreed to pay Road Repair $15,000.00 per station for 85.25 stations of prep row work. On appeal, Zumwalt argues there is no evidence of any consideration to support the formation of an oral contract for $15,000.00 per station for 85.25 stations of prep row work. "Consideration is a present exchange bargained for in return for a promise." Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). Consideration can be either a benefit to the promisor or a detriment to the promisee. Id. Consideration may consist of some right, interest, profit, or benefit that accrues to one party. Copeland v. Alsobrook, 3 S.W.3d 598, 606 (Tex. App.-San Antonio 1999, pet. denied). Alternatively, consideration may consist of some forbearance, loss, or responsibility that is undertaken or incurred by the other party. Id. "A promise to fulfill a pre-existing obligation cannot serve as new consideration." Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 319 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). In this case, Zumwalt argues that there is no evidence of any consideration to support an oral contract for $15,000 per station for 85.25 stations of prep work, as found by the jury, because pursuant to the written subcontract, Road Repair already had a pre-existing duty to perform 85.25 stations of prep work on the Project. We agree with Zumwalt. The evidence at trial showed that the written subcontract required Road Repair to perform 85.25 stations of prep row work for $1,173.00 per station, for a total of $99,998.25. Road Repair stipulated that the written subcontract was valid. The written subcontract further required Road Repair to furnish all labor, equipment, material, and other incidentals necessary to complete each of the items of work in the subcontract. At trial, DuBose testified that a station is a 100-foot increment of road, no matter the width, and includes all incidentals. It is undisputed that the prep row work on the Project was 85.25 stations. Sam Riojas, Road Repair's superintendent, testified that Road Repair never did more than 85.25 stations of prep row work, and the Project always constituted the same length of 1.6 miles on Loop 20 in Webb County. Riojas testified that he understood the prep row work required under the written subcontract to be "clean up" work, including hauling off debris. Nevertheless, Riojas testified that alleged additional prep row work performed by Road Repair from June through December 2013 was "a lot of cleanup, a lot of shoulder-up," "where we have to go back and do cleanup and get stuff ready to [do] other things." Expert witness Andrew Goldsmith also confirmed that prep row work includes clean-up work. There was no evidence presented at trial that Road Repair performed additional prep row work other than what was already required by the written subcontract.
In S.M. Wilson & Co. v. Urban Concrete Contractors, No. 04-06-00227-CV, 2007 WL 1423881, at * 1 (Tex. App.-San Antonio May 16, 2007, pet. denied), this court considered whether there was legally sufficient evidence of consideration to support an oral contract when the parties had already entered into a written contract covering the same scope of work. In Wilson, a general contractor entered into a written agreement with a subcontractor requiring the subcontractor to perform concrete work on a construction project. Id. After the subcontractor began performance of the work, it realized the written contract required it to perform concrete work that it did not believe was within the scope of work. Id. at *2. At trial, the subcontractor presented evidence that the general contractor had orally assured the subcontractor it would be paid additional compensation for performance of all of the required site work. Id. The subcontractor alleged it completed the requested site work based on this oral promise. Id. However, when the subcontractor submitted a claim for additional compensation, the general contractor refused to pay any additional sums not required by the written contract. Id. The subcontractor sued the general contractor under theories of breach of contract, quantum meruit, and violations of the Texas Construction Trust Funds Statute and the Texas Prompt Pay Act. Id. The general contractor denied any liability, arguing it owed no additional compensation to the subcontractor for the requested site work because the subcontractor "was obligated to complete all of the project's site work under the terms of the parties' original subcontract agreement." Id. A jury found in favor of the subcontractor. Id. On appeal, the general contractor argued there was "no evidence of consideration for [the general contractor]'s purported oral promise to pay [the subcontractor] additional compensation for the completion of the disputed site work." Id. This court agreed with the general contractor, explaining that when the general contractor "entered the alleged oral agreement with [the subcontractor] to complete the disputed site work, it promised to do what it was already bound to do under the terms of the parties' original subcontract agreement." Id. at *3. Because it was "clear from the express terms of the original subcontract agreement that [the subcontractor] was contractually obligated to perform all of the disputed site work at the time it entered the subsequent oral agreement with [the general contractor] to perform the same," the subcontractor's [promise to fulfill its pre-existing contractual obligation to [the general contractor] cannot constitute consideration for the oral agreement in question." Id. at *4. Having determined there was no evidence to support the element of consideration, this court concluded the evidence was legally insufficient to support the subcontractor's claim for breach of an oral contract. Id.
In its brief, Road Repair points to the following evidence in support of its claim for breach of an oral agreement where the oral agreement provided for 85.25 stations of prep row work at a rate of $15,000 per station. First, Road Repair argues that DuBose testified "that Zumwalt told him to perform the additional work TxDOT was requiring and Zumwalt would pay for it." Second, Road Repair points to its own invoice as evidence regarding "the cost of the work" of $15,000 per station. Third, Road Repair also argues Road Repair's promise to perform "the additional work required by TxDOT" was consideration for the oral agreement. Finally, Road Repair points to Zumwalt's federal lawsuit against Liberty, arguing that a "reasonable and fair-minded juror could certainly conclude that a party such as Zumwalt would not file a lawsuit in federal court and assert a claim for damages that it did not agree was owed."
The problem with Road Repair's argument is there is no evidence to support additional prep row work (as found by the jury) that was outside of the scope of the prep row work already required by the written subcontract. First, in reviewing DuBose's testimony, we find Road Repair's characterization as an overstatement of DuBose's actual testimony. DuBose testified at trial that Zumwalt had taken over the Project from the previous contractor, Ballenger, and "in the discovery phase of the bidding there were many items on the Project that showed [as being] 100 percent complete on the pay application that actually were not complete." According to DuBose,
Liberty [took] the stance with us that if the State of Texas has already paid for it and if they've accepted it, then they don't have the liability of payment any longer. So, if we have to go out there and do the work and TxDOT already paid for it, then they don't feel like they're responsible for it either. So, we're left in a ground between TxDOT and Liberty of trying to get paid.
DuBose testified that by May 2013, Road Repair's obligations under the written subcontract were "substantially complete." Road Repair submitted the invoice to Zumwalt on May 23, 2013 for prep row work and it was paid by Zumwalt. DuBose testified he was then visited on the job site by representatives from Liberty [Mutual] and by TxDOT's area engineer and its chief inspector. DuBose was told that "whatever [Zumwalt and Road Repair's] agreement with Liberty is for payment is secondary to us completing the Project." DuBose testified that he later met with Henry Zumwalt and Lennie Turpin in Helotes, Texas, and Turpin said "[t]hat we can't pull out of the project because the liquidated judgments will eat us up and that we have no choice but to finish the project and to fight for the money afterwards." DuBose testified that they decided to schedule a meeting with TxDOT and Liberty in Laredo, Texas. According to DuBose, with regard to future payment, he "discussed with Henry [Zumwalt] the items that were-that we saw at the time that were not on the bid package that we were going to have to bid for, but not in great detail because in June they were not all apparent." When asked what "Henry" told him "regarding future payments," DuBose testified, "Henry told us to get the work done and that he would pay us." In looking at this testimony in the most favorable light, all the evidence shows is that Henry Zumwalt agreed to pay "for extra work" outside the scope of the written subcontract. DuBose's testimony, however, does not show that Zumwalt orally agreed to pay Road Repair for additional "prep row work" that was not already required by the subcontract.
DuBose then testified to the following:
So, in June we became very aware that the items that were represented to us by Liberty were 100 percent complete and paid by TxDOT were not complete. In June TxDOT informs us on the Project that they are the owners of the Project, and whatever deal we have with Liberty Mutual doesn't matter to them, that we're going to build this job to the plans and specifications as dictated in the Texas Department of Transportation Manual.However, Zumwalt objected to this testimony as hearsay, which the trial court sustained. Thus, this testimony about TxDOT's complaint that the Project had not been completed to its specifications was not admitted in evidence.
Second, Road Repair's invoice is not evidence of an oral agreement between Zumwalt and Road Repair; the invoice does not reflect that the prep row work was for different prep row work than that already required by the written subcontract.
Third, in its brief, Road Repair repeatedly refers to TxDOT's additional specifications. However, the written subcontract stated that "[a]ll work to be done by the Subcontractor shall be performed in accordance with the terms of such general contract and the plans and specifications governing same." The coverage page of the general contract identified the relevant plans and specifications for the Project:
the Plans and Specifications prepared by:
The Texas Department of Transportation
Thus, the subcontract required Road Repair to comply with TxDOT specifications and complying with those requirements is not outside the scope of the written subcontract.
Finally, with regard to the federal lawsuit, the evidence at trial showed that Zumwalt agreed to assist Road Repair in making a pass-through claim to Liberty Mutual. The evidence also shows that Zumwalt demanded that Road Repair present proof to support its claim. When Road Repair failed to submit proof, Zumwalt dropped the allegations in an amended complaint. This is simply not evidence to support an oral contract for additional prep row work outside the scope of the original written subcontract.
The undisputed evidence in this case shows that the Project included 85.25 stations of prep row work and never increased in length. While Road Repair may have presented some evidence of "additional work," there is no evidence that it performed 85.25 additional stations of prep row work outside the scope of the written subcontract. Because all the evidence in this case shows that prep row work performed by Road Repair was within the scope of the written subcontract, we hold there is no evidence of consideration to support an oral agreement for additional prep row work outside the scope of the original written subcontract. See S.M. Wilson, 2007 WL 1423881, at *4 (promise to fulfill a pre-existing obligation cannot serve as new consideration). Accordingly, we hold there is legally insufficient evidence to support Road Repair's claim for breach of an oral contract.
Having held that there is no evidence to support Road Repair's claim for breach of an oral contract, we need to determine whether we should remand the cause to the trial court or render a take-nothing judgment. In addition to the breach of an oral contract claim, Road Repair submitted an alternative question to the jury on a claim for quantum meruit. "Quantum meruit is an equitable remedy that is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted." Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018) (citations omitted). "The purpose of this common law doctrine is to prevent a party from being 'unjustly enriched' by 'retain[ing] the benefits of the . . . performance without paying anything in return.'" Id. (quoting Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988)). To recover under a quantum-meruit claim, a claimant must prove the following: (1) "valuable services were rendered or materials furnished;" (2) "for the person sought to be charged;" (3) "those services and materials were accepted by the person sought to be charged, and were used and enjoyed by him;" and (4) "the person sought to be charged was reasonably notified that the plaintiff performing such services or furnishing such materials was expecting to be paid by the person sought to be charged." Id. at 732-33.
"A party generally cannot recover under a quantum-meruit claim when there is a valid contract covering the services or materials furnished." Id. We have determined that the evidence at trial showed that the prep row work performed by Road Repair on the Project was within the scope of the written subcontract. The evidence at trial further showed that Road Repair has already been paid by Zumwalt for that work pursuant to the written subcontract. Thus, we conclude Road Repair's claim for quantum meruit for the prep row work would be barred because of the written subcontract covering the work. See San Antonio Masonry & Tool Supply, Inc. v. Epstein & Sons Int'l, Inc., 281 S.W.3d 441, 446 (Tex. App.-San Antonio 2005, no pet.) (holding party's quantum meruit action barred because express contract governed "the masonry materials made the subject of [the party]'s quantum meruit cause of action"). There is no need to remand this cause for consideration of Road Repair's quantum meruit claim. See Tex. R. App. P. 43.2(c).
Finally, Zumwalt challenges the trial court's award of attorney's fees to Road Repair. Having held there is legally insufficient evidence to support Road Repair's breach of oral contract claim and that any quantum meruit claim would be barred, Road Repair has no claim upon which to support an award of attorney's fees. See Tex. Civ. Prac. & Rem. Code § 38.001; Boucher v. Thacker, 609 S.W.3d 206, 208 (Tex. App.-Texarkana 2020, no pet.) (explaining that to recover attorney's fees under section 38.001, a party must prevail on a cause of action for which attorney's fees are recoverable and recover damages); see also Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992) (holding attorney's fees may not be recovered unless provided for by statute or by contract between parties). Accordingly, Road Repair cannot recover the attorney's fees awarded in this case.
Conclusion
Because there is no evidence to support Road Repair's claim for breach of oral contract and because any quantum-meruit claim is barred, we reverse the judgment of the trial court and render judgment that Road Repair take nothing on its claims.