David Wells v. Michael J. Irvin ( 2003 )

   11th Court of Appeals

Eastland, Texas

  Memorandum Opinion

David Wells

Appellant

Vs.                   No. 11-02-00124-CV - Appeal from Dallas County

Michael J. Irvin

Appellee

David Wells sued Michael J. Irvin to recover $146,700 for personal services rendered pursuant to an alleged contract.  Wells alternatively sought recovery under a quantum meruit theory. In a bench trial, the trial court found that there was no contract between Wells and Irvin and that Wells did not provide any services to Irvin for which he reasonably expected to be compensated. The trial court entered a take-nothing judgment against Wells. We affirm.

In one issue on appeal, Wells asserts that the trial court=s finding that he did not provide services for which he reasonably expected payment is against the great weight and preponderance of the evidence.  We disagree.

There is no challenge to the legal sufficiency of the evidence.  In determining a great weight issue, we must consider and weigh all the evidence and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175 (Tex.1986); In re King=s Estate, 244 S.W.2d 660, 661 (Tex.1951). The standards that apply to a review of jury findings also apply to findings made by the trial court after a bench trial.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Where a case has been tried without a jury and there is ample evidence in the record to support the findings of the trial court, such findings have the same force and effect as a verdict of the jury and will not be disturbed on appeal absent other error. The trial court, as the trier of fact, may take into consideration all the facts and circumstances surrounding the testimony when considering whether it will accept or reject all or any part of the testimony.  Valencia v. Garcia, 765 S.W.2d 893 (Tex.App. B San Antonio 1989, no writ). As the trier of fact in a bench trial, it is the province of the trial court to determine the credibility of the witnesses and the weight to be given to their testimony and to resolve any conflict in the testimony. Robbins v. Roberts, 833 S.W.2d 619, 624 (Tex.App. B Amarillo 1992, no writ).

Wells and Irvin first met in 1996 during a criminal trial involving Irvin.  Irvin pleaded guilty, and the trial court placed him on community supervision for four years.  Royce West was Irvin=s attorney.  West hired Wells to assist in the investigation.  After the plea,  West told Wells that Irvin was going to need help in completing his community supervision.  Wells testified that he spoke with Irvin about drawing up a contract for these services during Irvin=s community supervision.  Wells also maintained that he told Irvin:  AIf I get you off probation successfully, which I know I will get you off probation successfully, then we=ll settle up at that point. That way I wouldn=t put no pressure on myself; wouldn=t put no pressure on Mr. Irvin.@  Wells said that he and Irvin made the deal on a Afriendship handshake.@ Wells sought compensation for scheduling community service, attending community supervision meetings, providing investigative services for Irvin when other incidents arose, and providing personal protection.

During the time that he was on community supervision, Irvin often went to the Cowboy Sports Cafe.  The cafe was owned by Alfredo Roberts who employed Wells as security at the cafe.  Roberts testified that, when Irvin was in the cafe, Wells would act as a Abuffer or security type@ to Irvin.  When Wells was working as security at the cafe, all players who came into the cafe received the same security.

Roberts also hired Mark Toliver as security in the cafe.  In addition to his security work at the Cowboy Sports Cafe, Toliver was a Dallas County Deputy Sheriff. As a deputy, Toliver was assigned to the trial court where Irvin entered his plea.  Deputy Toliver testified that he knew about an agreement between Wells and Irvin; Wells was to provide community supervision services as well as personal protection services for Irvin. Deputy Toliver saw Wells accompany Irvin to community supervision meetings at the courthouse.  Deputy Toliver said that, when Irvin was in the cafe, A[w]herever Mike was, David was.@

Nigel Reynolds was Irvin=s community supervision officer.  He testified that, when Irvin could not make his community supervision meetings or when there was a scheduling conflict, Irvin contacted him through Wells.  Wells was with Irvin at each of the community supervision meetings, and there were at least 92 meetings.

Irvin testified that Wells came to some of the community supervision meetings and that Wells coordinated some of his community service hours.  The first 300 hours of community service involved manual labor that Irvin performed at a hospital.  Wells did not schedule nor did he attend these community service hours.  Wells did not provide personal protection services to him.  Irvin agreed that, when he was at the cafe, Wells acted as a buffer between him and other patrons. Irvin considered Wells a friend who had helped him during a difficult time.  Other than for his services as a bail bondsman, Irvin never agreed to pay Wells any money.  Wells had a $1,500 check made to him from Irvin which he contended was one payment made to him for the services he provided to Irvin.  Irvin said that he loaned $1,500 to Wells and that it was not a payment for anything.

B. J. Davis, a private investigator and security specialist, testified that he was hired by the Dallas Cowboys to Aensure the well-being of Michael Irvin regarding his personal safety and his responsibility to the Dallas Cowboys organization.@ Davis and his agency performed 24-hour surveillance on Irvin and documented Irvin=s presence when such documentation was needed.  Further, Davis and his agency checked the parking lot of places where Irvin was or was scheduled to be and checked license plate numbers through a database in order to determine whether there were any protection problems.  If the database contained the names of someone known to cause problems, Davis or his agents took steps to prevent possible problem-causing  persons from entering the place.  If potential problem-causing persons were already present, Davis or his agents discouraged Irvin from entering the facility.  These services were paid for by the Dallas Cowboy organization and were rendered between September 1997 and January 1998.

A party can recover in quantum meruit only when the subject matter is not covered by an express contract.  Truly v. Austin, 744 S.W.2d 934 (Tex.1988).  If there is no contract, a claimant has the burden to establish that:  (1) valuable services were rendered or materials furnished for the person sought to be charged; (2) the services and materials were accepted by the person sought to be charged; (3) they were used and enjoyed by him; and (4) under such circumstances as reasonably notified the person sought to be charged that the claimant was expecting to be paid by the person sought to be charged.  Vortt Exploration Company, Inc. v. Chevron U.S.A. Inc., 787 S.W.2d 942 (Tex.1990).  

Wells is attacking a finding upon which he had the burden of proof.  Therefore, he must show that the adverse finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Broach v. Bradley, 800 S.W.2d 677 (Tex.App. B Eastland 1990, writ den=d); Robert W. Calvert, ANo Evidence@ and AInsufficient Evidence@ Points of Error, 38 TEXAS L. REV. 361 (1960).

We have reviewed all the evidence, and we find that it supports the trial court=s finding that any community supervision services and investigative services Wells provided were on behalf of West.  Also, the evidence supports the finding that any security services Wells provided were on behalf of Roberts.  The testimony also supports a finding that Wells was acting in the capacity of Irvin=s friend.  Other friends as well as family members helped Irvin in the same manner as Wells. Other friends and family members also ensured that Irvin was where he was supposed to be, and they also helped people contact Irvin. Further, on occasion, other friends and family members accompanied Irvin to his community supervision meetings. There was ample evidence to support the trial court=s finding that the circumstances were not such as would reasonably notify Irvin that Wells expected to be paid. 

 We have examined all of the evidence in the record.  The trial court=s failure to find for Wells on the issue of quantum meruit is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Wells=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.                                                                      

JIM R. WRIGHT

JUSTICE

October 16, 2003

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.