Brian Doyle and NDemand, Inc. v. Jay R. Teske ( 2011 )

NO. 12-09-00359-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRIAN SCOTT DOYLE and
NDEMAND, INC., § APPEAL FROM THE 273RD
APPELLANTS
V. § JUDICIAL DISTRICT COURT
JAY R. TESKE,
APPELLEE § SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
Brian Scott Doyle and NDemand, Inc. appeal the trial court‟s judgment in favor of Jay R.
Teske in Teske‟s suit for damages arising out of a business relationship between him and Doyle.
Doyle and NDemand, Inc. raise fourteen issues on appeal. We affirm in part and reverse and
render in part.
BACKGROUND
Doyle and Teske decided to start a computer business together. Doyle, who had
previously worked on computers, agreed to provide the labor, and Teske, who had previously
made money, agreed to provide the capital. They discussed several different names for the
business before agreeing on NDemand Technologies, Inc.
In January 2000, after they had agreed on the name of the business, Teske wrote a check
for $25,000.00 made payable to Doyle to fund NDemand Technologies. However, neither Doyle
nor Teske ever incorporated NDemand Technologies. Instead, Doyle simply deposited Teske‟s
check into Doyle‟s personal account. When he filed his personal tax return for the year, Doyle
claimed the $25,000.00 as income. Teske also helped Doyle obtain a credit card for NDemand
1
Technologies by serving as guarantor for the card. Although the credit card was for the business,
Doyle used the credit card to purchase items that were not business related.
After about two years, NDemand Technologies was failing. Doyle decided that he
should start another business, one focused on bringing internet to rural areas. Doyle called the
new business NDemand, Inc. He lobbied Teske to invest in the new business, but Teske
declined. Thus, Doyle began NDemand, Inc. with new investors. Around the same time,
NDemand Technologies ceased operations completely.
At the time NDemand Technologies failed, the business credit card had a sizeable
balance. Doyle did not have the funds to pay the credit card debt so Teske, as guarantor, was
required to make the payments. Teske learned of the credit card debt sometime in December
2002, made his first payment on the debt in January 2003, and finally paid off the credit card in
August 2004. After paying off the card, Teske asked for detailed billing. Approximately two
weeks after his request, the bank provided him with the past billing, and Teske learned that
Doyle had used the credit card for personal purchases. Sometime later, Teske also learned that
Doyle never set up a corporation for NDemand Technologies.
Believing that Doyle‟s actions were wrong and had cost him money, Teske sued Doyle
and NDemand, Inc. in January 2007 for fraud, breach of fiduciary duty, Blue Sky violations, and
fraud in stock transactions. After a bench trial, the trial court awarded Teske a judgment against
Doyle and NDemand, Inc. This appeal followed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In their initial brief, Doyle and NDemand, Inc. stated that the trial court failed to provide
findings of fact and conclusions of law even though two requests for findings and conclusions
had been made. Doyle and NDemand, Inc. did not, in their initial brief, seek relief based on this
inaction of the trial court. However, in their reply brief, without listing it as a separate issue,
Doyle and NDemand, Inc. assert that the trial court committed reversible error by failing to
provide findings of fact and conclusions of law.
Doyle and NDemand, Inc.‟s reply brief may address any matter in Teske‟s brief, but a
reply brief is not intended to allow parties to raise new issues. See TEX. R. APP. P. 38.3;
Campbell v. Stucki, 220 S.W.3d 562, 570 (Tex. App.–Tyler 2007, no pet.). Therefore, this
argument is not properly before this court. See Campbell, 220 S.W.3d at 570.
2
Even if we consider Doyle and NDemand, Inc.‟s argument, the outcome does not change.
Rule 296 authorizes any party in a nonjury trial to request written findings of fact and
conclusions of law. TEX. R. CIV. P. 296. The request shall be filed within twenty days after the
judgment is signed and served on all other parties in accordance with Rule 21a. Id. The trial
court shall file its findings of fact and conclusions of law within twenty days of a timely filed
request. TEX. R. CIV. P. 297. If the trial court fails to so file findings of fact and conclusions of
law, “the party making the request shall, within thirty days after filing the original request, file
with the clerk . . . a „Notice of Past Due Findings of Fact and Conclusions of Law‟ which shall
be immediately called to the attention of the court by the clerk.” Id. If a party fails to file a Rule
297 reminder, the party waives any complaint regarding the trial court‟s failure to file findings of
fact and conclusions of law. Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 410 (Tex.
App.–Houston [1st Dist.] 2005, pet. denied). The scheme is a sensible one in that, if the judge
does not comply with the initial request, “the more rigorous procedure of Rule 297 will ensure
that the court is in a timely fashion fully apprised of the request and the party‟s continuing
interest in having it honored.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.
1989).
Here, the record contains four documents relevant to findings of fact and conclusions of
law. The first is a letter from Doyle and NDemand, Inc.‟s counsel to the trial court judge stating
that he “faxed herewith [his] proposed findings of fact and conclusions of law.” The letter is
dated June 9, 2009, and bears a filemark of June 26, 2009. The proposed findings of fact and
conclusions of law are not a part of the record at that point. The second is the trial court‟s
judgment, with no findings of fact and conclusions of law, signed on July 16, 2009. The third is
“Defendants Brian Doyle and NDemand, Inc.‟s Request for Findings of Fact and Conclusions of
Law.” This document, filed on July 24, 2009, requests the trial court to make findings of fact
and conclusions of law within twenty days after the judgment is signed. The only reference to
Rule 297 in the document is the assertion that “Rule 297 of the Texas Rules of Civil Procedure
provides that the „Court shall file its findings of fact and conclusions of law within twenty days
after a timely request is filed.‟” The fourth document is “Defendants Brian Doyle and
NDemand, Inc.‟s Findings of Fact and Conclusions of Law” filed on April 1, 2010. This
document is unsigned. The certificate of service contains the date June 9, 2009, but again the
signature block under the certificate of service is blank.
3
Doyle and NDemand, Inc. complied with Rule 296, and properly requested findings of
fact and conclusions of law. However, they did not take the extra necessary step of complying
with Rule 297, and thus, never “ensure[d] that the court [was] in a timely fashion fully apprised
of the request and the party‟s continu[ed] interest in having it honored.” See id. Therefore, any
complaint related to the trial court‟s failure to file findings of fact and conclusions of law is
waived.
Doyle and NDemand, Inc.‟s issue related to the trial court‟s failure to file findings of fact
and conclusions of law, which was raised in their reply brief, is overruled.
STANDARD OF REVIEW
In a nonjury trial, when, as here, a trial court makes no separate findings of fact or
conclusions of law, we must assume that the trial court made all findings in support of its
judgment. Pharo v. Chambers Co., 922 S.W.2d 945, 948 (Tex. 1996). The trial court's
judgment must be affirmed if it can be upheld on any legal theory that finds support in the
evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam). When, as here, the
appellate record includes the reporter's record, the trial court's implied fact findings are not
conclusive. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). A trial
court's implied findings of fact are reviewable for legal and factual sufficiency of the evidence by
the same standards that are applied in reviewing evidence supporting a jury's verdict. See
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
A party who challenges the legal sufficiency of the evidence to support an issue on which
it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence
to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In
reviewing for legal sufficiency of the evidence, we consider the evidence in the light most
favorable to the verdict, indulging every reasonable inference in favor of the verdict. See
Autozone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam); Associated Indem.
Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998). To determine whether
legally sufficient evidence supports a challenged finding of fact, the reviewing court must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The finder of
fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their
4
testimony. Id. at 819. The finder of fact is free to believe one witness and disbelieve another,
and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly,
reviewing courts must assume that the finder of fact decided all credibility questions in favor of
the findings, and chose what testimony to disregard in a way that was in favor of the findings, if
a reasonable person could do so. Id. at 819-20. A finder of fact “may disregard even
uncontradicted and unimpeached testimony from disinterested witnesses” where reasonable. Id.
at 820.
In addition, it is within the finder of fact's province to resolve conflicts in the evidence.
Id. at 820. Consequently, we must assume that, where reasonable, the finder of fact resolved all
conflicts in the evidence in a manner consistent with the findings. Id. Where conflicting
inferences can be drawn from the evidence, it is within the province of the finder of fact to
choose which inference to draw, so long as more than one inference can reasonably be drawn.
Id. at 821. Therefore, we must assume the finder of fact made all inferences in favor of the
findings if a reasonable person could do so. Id. The final test for legal sufficiency must always
be “whether the evidence at trial would enable reasonable and fair-minded people to reach the
verdict under review.” Id. at 827. Anything more than a scintilla of evidence is legally
sufficient to support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450
(Tex. 1996).
If a party is attacking the factual sufficiency of the evidence to support an adverse finding
on an issue on which the other party had the burden of proof, the attacking party must
demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng’g,
Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.–Austin 1992, no writ).
In addressing a factual sufficiency of the evidence challenge, an appellate court must consider
and weigh all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
The verdict should be set aside only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Id. However, this court is not a fact finder, and we
may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier
of fact. Durban v. Guajardo, 79 S.W.3d 198, 208 (Tex. App.–Dallas 2002, no pet.) The trial
court may take into consideration all of the facts and surrounding circumstances in connection
with the testimony of each witness and accept or reject all or any part of that testimony. Canal
5
Ins. Co. v. Hopkins, 238 S.W.3d 549, 557-58 (Tex. App.–Tyler 2007, pet. denied) (op. on
reh‟g).
TESKE’S CLAIMS AGAINST NDEMAND, INC.
In their second issue, Doyle and NDemand, Inc. assert that judgment against NDemand,
Inc. is improper because NDemand, Inc. was not in existence at the time of the acts sued upon
and NDemand, Inc. had no dealings with Teske other than providing him internet service. In his
response, Teske asserts that Doyle acquired NDemand, Inc. by March 17, 2004. Teske further
notes that NDemand, Inc. did not file a verified pleading asserting that it is not liable in the
capacity in which it was sued. Thus, Teske asserts that there is “some evidence in the record
sufficient to warrant the trial court, in the absence of appropriate pleadings, to find that
NDemand, Inc. was the beneficiary of the funds advanced by Teske to Doyle.” Teske cites no
authority to support this position.
After a thorough review of the record, we have found no evidence showing that
NDemand, Inc. was the beneficiary of the funds advanced by Teske to Doyle. Doyle deposited
the $25,000.00 check in his personal checking account. No evidence was presented that any of
that money made its way to NDemand, Inc. Doyle used the NDemand Technologies‟ credit card
for personal purchases and NDemand Technologies‟ purchases. Again, no evidence was
presented that the credit card was used for NDemand, Inc.‟s purchases.
Further, NDemand, Inc.‟s argument is not about capacity. It argues that it is not liable to
Teske because NDemand, Inc. had no interactions with Teske. Thus, NDemand, Inc.‟s argument
“does not fall within the ambit of rule 93(2), and the lack of verification does not prevent [it]
from asserting [its] argument.” See Toles v. Toles, 113 S.W.3d 899, 909 (Tex. App.–Dallas
2003, pet. denied).
Finally, NDemand, Inc. cannot be liable under agency theory. The acts of a corporate
agent on behalf of the corporation generally are deemed to be the corporation‟s acts. Latch v.
Gratty, Inc., 107 S.W.3d 543, 545 (Tex. 2003) (per curiam). But here, there was no evidence
that Doyle‟s acts were on behalf of NDemand, Inc. Instead, Doyle deposited Teske‟s $25,000.00
check into his personal checking account and used the credit card for personal purchases and
purchases related to NDemand Technologies‟ business. Additionally, there was no evidence that
Doyle was a corporate agent of NDemand, Inc. at the time of the allegedly tortious actions.
6
There is a complete absence of evidence that NDemand, Inc. committed any of the alleged
wrongful acts against Teske. See City of Keller, 168 S.W.3d at 810. Accordingly, we sustain
Doyle and NDemand, Inc.‟s second issue. Because this issue is dispositive as to NDemand, Inc.,
we need not address their fourth, sixth, eighth, tenth, and twelfth issues, all of which complain
about the judgment against NDemand, Inc. See TEX. R. APP. P. 47.1.
TESKE’S CLAIMS AGAINST DOYLE
In part of their first issue, Doyle and NDemand, Inc. assert that Teske‟s claim of breach
of fiduciary duty is barred by the applicable statute of limitations. In his fifth issue, Doyle
asserts that there is legally and factually insufficient evidence that he breached a fiduciary duty
to Teske. Doyle‟s main contention, as it relates to this claim, is that he did not have a fiduciary
relationship with Teske.
Limitations
Statutes of limitations prevent the litigation of stale claims by
afford[ing] plaintiffs what the legislature deems a reasonable time to present their claims and
protect[ing] defendants and the courts from having to deal with cases in which the search for truth
may be seriously impaired by the loss of evidence, whether by death or disappearance of
witnesses, fading memories, disappearance of documents or otherwise.
S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996). The applicable statute of limitations for breach of
fiduciary duty is not later than four years after the day the cause of action accrues. TEX. CIV.
PRAC. & REM. CODE ANN. § 16.004(a)(5) (Vernon 2002). However, the discovery rule defers the
accrual of certain causes of action until the plaintiff knew or through the exercise of reasonable
diligence should have discovered the wrong. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918
S.W.2d 453, 455 (Tex. 1996). The discovery rule applies in “those cases where the nature of the
injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.”
Id. at 456. To be inherently undiscoverable, an injury, by its nature, must be unlikely to be
discovered within the limitations period despite the exercise of due diligence. G. Prop. Mgmt.,
Ltd. v. Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 48 (Tex. App.–San Antonio 2006, no
pet.). When dealing with a fiduciary, the nature of the injury is presumed to be inherently
7
undiscoverable. Id. However, a plaintiff must still exercise diligence and has some
responsibility to ascertain when an injury occurs. Id.
Here, Doyle took Teske‟s check for $25,000.00 and placed it in his personal checking
account in January 2000. The business credit card was issued in January 2000 and Doyle used it
for personal purchases. Teske filed his original petition on January 4, 2007. Doyle argues that
Teske knew of his legal injury in the summer of 2002. Doyle further asserts that Teske should
have known by December 2002 at the latest because Teske then became aware that Doyle was
not paying NDemand Technologies‟ credit card bill. However, Teske did not immediately
realize that Doyle had taken advantage of the situation. Of course, Teske was aware that Doyle
had not issued any stock to him or repaid the $25,000.00. Teske was never given a balance sheet
or income and expense records showing the condition of the company. By the fall of 2002,
Teske knew that the business was failing. Teske testified that he learned in January 2003 that
Doyle had not been making payments on the credit card account. Teske also testified that he did
not request the detailed billing for the credit card until around the time of his final payment,
August 13, 2004. The bank provided him with the information approximately two weeks later.
Thus, Teske determined in August 2004, after he received those statements, that Doyle had used
the credit card for personal purchases. Teske did not know that Doyle had deposited the
$25,000.00 check into Doyle‟s personal account until even later. Accordingly, the trial court‟s
implied findings that Teske failed to learn of his legal injury until after January 2003, less than
four years from the time that suit was filed, and that Teske exercised reasonable diligence in
discovering Doyle‟s wrongful conduct are supported by the evidence. See Altai, Inc., 918
S.W.2d at 455-56. We overrule that portion of the first issue asserting that Teske‟s breach of
fiduciary duty claim is barred by limitations.
In their fourteenth issue, Doyle and NDemand, Inc. assert that Teske waived his right to
pursue his claims by not timely filing them. Assuming this issue refers to something other than
the limitations argument asserted in issue one, we can locate no separate argument in their brief
addressing their fourteenth issue. Thus, issue fourteen is waived for improper briefing. See TEX.
R. APP. P. 38.1(i). We overrule Doyle and NDemand, Inc.‟s fourteenth issue.
Breach of Fiduciary Duty
8
Doyle argues there was no fiduciary relationship. Alternatively, he argues that “if anyone
was the fiduciary it was [Teske]” because he was older and a more experienced businessman.
Finally, he argues that, if there was a fiduciary relationship, Doyle did not breach it.
There are formal fiduciary relationships, which arise as a matter of law in certain formal
relationships and includes relationships between attorneys and clients, partners, and joint
venturers. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Additionally, there
are informal fiduciary relationships. Courts impose fiduciary duties on some relationships
because of their special nature or because a person “occupies a position of peculiar confidence
towards another.” Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002). The
term “fiduciary” refers to integrity and contemplates fair dealing and good faith as the basis of
the transaction. Id. Thus, an informal fiduciary duty may arise from a moral, social, domestic,
or purely personal relationship of trust and confidence. Meyer v. Cathey, 167 S.W.3d 327, 331
(Tex. 2005) (per curiam). To impose an informal fiduciary duty in a business transaction, the
special relationship of trust and confidence must exist prior to, and apart from, the agreement
made the basis of the suit. Id. The elements of breach of a fiduciary duty claim are (1) a
fiduciary relationship exists between the plaintiff and defendant, (2) breach of the fiduciary duty
by the defendant, and (3) the defendant‟s breach results in injury to the plaintiff or benefit to the
defendant. Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 479 (Tex. App.–Dallas 2010, no
pet.).
Doyle and Teske agreed to form a corporation. However, no steps were ever taken to do
so. Doyle ran the company as his sole proprietorship and treated Teske as an investor. However,
even if we assume there was no formal relationship from which a formal fiduciary relationship
would arise, the record supports a finding of an informal fiduciary relationship.
Doyle was still a teenager in 1996 when he started helping Teske and his wife with their
home computer problems. Initially, Doyle did the work as an employee of a computer company,
but by 1998 he did the work “on the side” and Teske paid him directly, in cash. Doyle testified
that, after he moved to Houston, he would visit Teske once or twice a month from 1998 through
2004 and work on Teske‟s computers. Teske would give him $50.00 or $100.00 each time.
Doyle testified that “[t]here was never any expectation of, during that time, of payment for
services rendered.” He did it because he “liked the guy” and he thought Teske was a “good
guy.”
9
Teske, who was eighty years old at the time of trial in 2009, testified that every time
Doyle came to his house, “he walked away with pockets full of money.” The last time Doyle
was at Teske‟s house, Teske gave him $750.00. Teske and his wife thought of Doyle as their
son. Teske said that Doyle was a good friend and he had trusted him. He was really
disappointed and mad because they had taken Doyle in like a son. Teske explained that he did
not “cover every step” because he thought of Doyle as a son whom he trusted as a close friend.
A special relationship of trust and confidence existed before January 2000. Thus, the
nature of the relationship between the parties was that of fiduciaries. See Meyer, 167 S.W.3d at
331. Doyle argues that only Teske could be the fiduciary because he was older and a more
experienced businessman. However, both business associates can owe each other the duty of a
fiduciary. Although Teske was older, he was not more experienced in the computer repair field,
which was the nature of the business. Also, according to Teske, he was to provide the money
and Doyle was to provide the expertise and work. While Doyle maintains that it was Teske‟s
obligation to incorporate the business, Teske testified that it was Doyle‟s obligation. The trial
court was free to believe Teske‟s testimony and disbelieve Doyle‟s. City of Keller, 168 S.W.3d
at 819. Teske trusted Doyle to set up the corporation, to run the corporation, and to handle the
start up money and credit card for the corporation. Doyle never incorporated NDemand
Technologies, but instead ran the business as his sole proprietorship. He breached his fiduciary
duty to Teske by running the business as his sole proprietorship to the exclusion of Teske,
including using funds and a credit card that Teske designated for their business for his personal
benefit. The trial court‟s implied findings that Doyle was a fiduciary of Teske and that Doyle
breached his fiduciary duty to Teske are supported by the evidence. See id. at 827; Cain, 709
S.W.2d at 176. Because the evidence is legally and factually sufficient to support the trial
court‟s determination that Doyle breached his fiduciary duty to Teske, we overrule Doyle‟s fifth
issue.
The trial court‟s judgment must be affirmed if it can be upheld on any legal theory
supported by the evidence. In re W.E.R., 669 S.W.2d at 717. We have determined that the
evidence supports a finding of breach of fiduciary duty, and the claim is not barred by
limitations; thus, the judgment should stand. Accordingly, we need not address the remainder of
Doyle and NDemand, Inc.‟s first issue, in which they assert that all other claims against them are
barred by limitations, or the third, seventh, ninth, and eleventh issues in which Doyle contends
10
the trial court erred in rendering judgment in favor of Teske on his remaining causes of action.
See TEX. R. APP. P. 47.1.
QUANTUM MERUIT AND ACCORD AND SATISFACTION
In his thirteenth issue, Doyle asserts that the value of Doyle‟s services to Teske exceeded
the amounts claimed to be owed to Teske and thus Doyle should not have to repay Teske. Doyle
requests this court render a decision for him based on quantum meruit for the value of his
services or, at a minimum, consider the value of his services as accord and satisfaction for the
money invested by Teske. He asserts he is entitled to a full offset for Teske‟s claims.
The burden is on Doyle to establish the affirmative defense of accord and satisfaction.
Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979). This defense rests on a new contract in
which the parties agree to discharge an existing obligation in a manner otherwise than originally
agreed. Id. The tender of the alternate satisfaction is upon the condition that the acceptance will
constitute a discharge of the underlying obligation. Id. An “accord” is in essence a contract or
agreement, and “accord and satisfaction” is founded on and dependent on, and results from a
contract, express or implied, between the parties. Id.
Doyle asserts that he spent a total of $76,500.00 worth of uncompensated time working
on Teske‟s personal computers. He argues that his “services arise to the level of accord and
satisfaction.” He does not identify evidence of an “accord,” that is, a new agreement between
him and Teske in which they agree to discharge the original obligations by application of
Doyle‟s work on Teske‟s personal computers. Neither has our review of the record uncovered
such an agreement. Doyle has not met his burden to establish the affirmative defense of accord
and satisfaction. Id.
Quantum meruit is an equitable remedy “based upon the promise implied by law to pay
for beneficial services rendered and knowingly accepted.” Vortt Exploration Co. v. Chevron
U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party recovers under quantum
meruit when no express contract covers the services rendered. Id. The elements of quantum
meruit are (1) valuable services were rendered or materials furnished, (2) for the person sought to
be charged, (3) the services or materials were accepted, used, and enjoyed by the person sought
to be charged, (4) under such circumstances that reasonably notified the person sought to be
charged that the plaintiff expected to be paid. Id.
11
Here, Doyle testified that he provided computer repair work for Teske without the
expectation of payment for services rendered. He also testified that Teske gave him money when
he worked on Teske‟s computers. Teske testified that he paid Doyle for the work performed.
Thus, the evidence does not support Doyle‟s assertion that he is entitled to recover under the
theory of quantum meruit. See id. We overrule Doyle‟s thirteenth issue.
AFFIRMATIVE RELIEF SOUGHT BY DOYLE AND NDEMAND, INC.
Although not listed as a separate issue, Doyle and NDemand, Inc., also assert that the
trial court erred when it did not award them damages on their counterclaim alleging that Teske
filed a frivolous lawsuit. A brief must 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(i). Doyle
and NDemand, Inc., failed to cite any authorities or any portion of the record in support of their
claim for affirmative relief and have therefore waived this complaint. See Daniel v. Falcon
Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.–Houston [1st Dist.] 2005, no pet.).
Therefore, to the extent that they seek appellate review of the trial court‟s determination that
Teske‟s lawsuit was not frivolous, we overrule Doyle and NDemand, Inc.‟s issue.
DISPOSITION
We affirm the trial court‟s judgment in favor of Teske against Doyle. We reverse the
trial court‟s judgment in favor of Teske against NDemand, Inc., and render judgment that Teske
take nothing on his claims against NDemand, Inc.
BRIAN HOYLE
Justice
Opinion delivered March 31, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
12