Anderson Remodeling & Construction, LLC v. Patrick Smith and Angela Ray

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ANDERSON REMODELING & No. 08-19-00292-CV
CONSTRUCTION, LLC §
Appeal from the
Appellant, §
109th Judicial District Court
v. §
of Andrews County, Texas
PATRICK SMITH and ANGELA RAY, §
(TC#20,906)
Appellees. §
MEMORANDUM OPINION
Following a bench trial, the trial court entered a take-nothing judgment in favor of
Appellees, Patrick Smith and Angela Ray (the “Homeowners”), on Appellee Anderson
Remodeling & Construction, LLC’s (“Anderson Remodeling”) claim for breach of an oral
construction contract. On appeal, Anderson Remodeling contends that in rendering its judgment,
the trial court erroneously relied on the Homeowners’ unpled affirmative defense based on Texas
homestead law. Anderson Remodeling also contends that the trial court erred by denying its oral
motion for a trial amendment in which it sought to add claims of quantum meruit and unjust
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enrichment to its breach of contract claim. Because we disagree with both arguments, we affirm
the trial court’s judgment.
I. FACTUAL BACKGROUND
The Homeowners originally entered into a written contract in which Anderson Remodeling
agreed to construct what was described as a “shop” for the sum of $134,400.00. The original
contract listed 12 items within Anderson Remodeling’s agreed “scope of work,” all of which
appeared to relate to the external construction of the building itself. Several months later, the
parties entered into an amended contract in which the Homeowners agreed to pay Anderson
Remodeling $160,000.00 for the same 12 items listed in the original contract, together with two
new items: (1) a 1,742 linear foot wood fence to be constructed around the property, and (2) the
construction of a 20-foot “roll gate.” The construction was completed in November of 2015, and
the parties agree that the Homeowners paid the $160,000.00 owed under the amended written
contract.
Anderson Remodeling subsequently billed the Homeowners for an additional $80,842.00,
as reflected in two separate invoices, which the Homeowners refused to pay.1 In the first invoice
Anderson Remodeling sought payment of $21,472.00 for the “Balance on Building wood fence
around property 1,742 lf.” In the second invoice Anderson Remodeling sought payment of
$59,370.00, for the construction of a deck, as well as for various improvements it allegedly made
to the interior of the building, which included electrical and plumbing work.
1
At trial, Angela Ray testified that she did not receive the invoices until almost a year after the construction was
completed. Anderson Remodeling did not present any evidence as to when the invoices were sent, but they were
dated March 30, 2015, and December 2, 2015.
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II. PROCEDURAL BACKGROUND
After the Homeowners refused to pay either of the invoices, Anderson Remodeling filed
suit alleging that the Homeowners were in breach of contract. The petition only referenced the
two written contracts and claimed that the Homeowners were “in breach of their contract,” and
owed a balance of $80,842.00. The Homeowners filed a general denial, together with a
counterclaim seeking an unspecified amount of damages, alleging that Anderson Remodeling had
not fulfilled its obligations under the amended contract. The Homeowners later abandoned their
counterclaim, and the only pleaded theory litigated at trial was Anderson Remodeling’s breach of
contract claim.
A. The Trial Testimony
At trial, Robert Anderson, owner of Anderson Remodeling, acknowledged that the
Homeowners had paid all of the amounts due under the amended written contract. However, he
testified that he and the Homeowners had entered into oral change orders while construction was
ongoing, authorizing him to perform additional work on the property. That work included the
construction of an upgraded metal fence, a double roll gate instead of a single one, and various
interior improvements that were not listed in either of the original written contracts.2 He claimed
the change orders totaled $80,842.00.
On the other hand, Ray testified that she and Smith did not enter into any agreements with
Anderson other than the original and amended written contract, and that they paid the amended
contract in full. She recalled receiving the two invoices in question requesting additional
2
The invoices sent to the Homeowners, however, sought payment of $21,472.00 for the construction of a wood fence,
and no additional charge for the roll gate.
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payments almost a year after the construction was completed. Ray explained that she did not pay
the invoices, as she believed the parties’ amended written contract covered all of the work that
Anderson Remodeling performed on the property, including the construction of the fence and the
interior improvements, expressing her expectation that the amended contract required Anderson
Remodeling to ensure that the building was “turnkey” and ready for habitation when it was
finished.3
Although she acknowledged that the building was described as a “shop” in the parties’
contracts, she testified that she considered it to be a “barndominium,” which she explained was a
“new concept” in home building in the area. As such, she testified that the building was her
“homestead,” and her attorney argued that in light of the homestead exemption, Anderson
Remodeling could not obtain a judgment against the Homeowners in the absence of a signed
contract. In its post-trial pleadings, Anderson Remodeling objected to Ray’s purported
homestead defense, asserting that it was not properly pled or proven at trial.
B. The Request for a Trial Amendment
Following closing arguments to the trial court, Anderson Remodeling acknowledged that
it pled only a claim for breach of contract in its original petition, but it asked for a trial amendment
to add two new causes of action: quantum meruit and unjust enrichment. The Homeowners’
attorney objected to the request, contending that it was not pled and was made at the “last minute.”
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The parties’ original contract contains a penciled notation, showing an additional amount owed of $44,720, for the
construction of the fence, for a total of $181,472.00. Ray explained at trial, however, that when the parties initially
discussed amending the original contract, Anderson wanted to charge her $181,472.00 for the additional
improvements, but he later agreed to the final price of $160,000.
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The trial court denied the request, finding it to be untimely. Instead, the trial court stated its
intention to rule solely on the basis of Anderson Remodeling’s claim for breach of contract.
C. The Trial Court’s Judgment
The trial court later entered take-nothing judgments on both Anderson Remodeling’s
breach of contract claim and the Homeowner’s counterclaim. Although both parties filed requests
for findings of fact and conclusions of law, none were entered. Neither party filed a notice of past
due findings, nor has either complained on appeal of the trial court’s failure to make findings.4
Anderson Remodeling filed a motion for new trial, contending that the trial court erred in
denying its trial amendment, and the Homeowners should not have been permitted to raise the
“affirmative defense” of homestead, as they did not properly plead or prove that the building was
in fact homestead property. After the motion for new trial was denied by operation of law,
Anderson Remodeling appealed raising these same two issues for our review.
III. THE HOMESTEAD DEFENSE
In Issue One, Anderson Remodeling contends that the Homeowners improperly raised the
“affirmative defense of homestead” during trial, despite not having pled the defense in their
answer. Anderson Remodeling concludes that the trial court necessarily and erroneously relied
on the homestead defense in rendering its take-nothing judgment. The Homeowners counter that
there is nothing in the record to suggest that the trial court relied on the homestead defense in
rendering its judgment, noting that its final judgment only stated that it found in favor of the
4
See TEX.R.CIV.P. 297 (setting out requirements for notice of past due findings); see also Ad Villarai, LLC v. Chan
Il Pak, 519 S.W.3d 132, 137 (Tex. 2017) (“Without [the] timely reminder [that rule 297 requires], [the requesting
party] waived its complaint of the failure on appeal.”).
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Homeowners on Anderson Remodeling’s breach-of-contract claim. We agree with the
Homeowners’ assertion that the record is devoid of any indication that the trial court relied on the
Homeowners’ attempt to assert a homestead defense.
A. Standard of Review
This case comes before us without the benefit of findings of fact and conclusions of law.
In the absence of findings and conclusions, the judgment of the trial court must be affirmed if it
can be upheld on any available legal theory that finds support in the evidence. Point Lookout
West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Rivas v. Rivas, 452 S.W.3d 49, 56
(Tex.App.--El Paso 2014, no pet.). The trial court’s judgment implies all findings of fact
necessary to support it. Seneca Ins. Co., Inc. v. Ross, 507 S.W.3d 798, 802-03 (Tex.App.--El Paso
2015, no pet.). But with the benefit of a reporter’s record, these implied findings are not
conclusive, and may be challenged for the sufficiency of the evidence to support them. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
B. Application
Anderson Remodeling does not identify and attack the several implied findings that might
support the trial court’s judgment. For instance, Anderson testified that he had a verbal agreement
for extra work with the Homeowners. Ray denied this was the case, as she believed the parties’
amended written contract covered all the work that Anderson Remodeling performed on the
property, including the construction of the fence and the interior improvements.5 The judgment
5
And even had Anderson Remodeling challenged the implied finding that there was no agreement for additional
work, it would face the hurdle that the trial court as the fact finder was the sole judge of the credibility of the witnesses
and the weight to be given to their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005); Wheeling
v. Wheeling, 546 S.W.3d 216, 223 (Tex.App.--El Paso 2017, no pet.).
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can be upheld under the rationale that Anderson Remodeling failed to carry its burden of proof
that the work it billed for was not already included in the contract price that the Homeowner’s had
already paid for. In other words, its assertion that the trial court necessarily relied on an
affirmative defense is unsupported on this record. As such, the issue of the homestead defense is
a red herring.
That conclusion is further bolstered here because while a homestead defense might have
protected the subject property, it would not have prevented a judgment against the Homeowners.
Homestead protection finds its roots in the Texas Constitution, which provides that the “homestead
of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the
payment of all debts,” except in certain circumstances enumerated therein. TEX.CONST. ART.
XVI, § 50. Relevant to our analysis, one of the enumerated exceptions is for “work and material
used in constructing new improvements thereon, if contracted for in writing, or work and material
used to repair or renovate existing improvements thereon . . . .”6 TEX.CONST. ART. XVI, § 50.
Thus, a contractor who makes improvements on a homestead, but who is not paid by the
homeowners, may only file a lien or force a sale for the payment of the debt if the contractor has
a written contract with the homeowner. See TEX.PROP.CODE ANN. § 41.001(a)(b)(3) (providing
that a homestead is “exempt from seizure for the claims of creditors except for encumbrances
properly fixed on homestead property”); see also Laster v. First Huntsville Properties Co., 826
S.W.2d 125, 129-30 (Tex. 1991); Dominguez v. Castaneda, 163 S.W.3d 318, 329 (Tex.App.--
El Paso 2005, pet. denied).
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The Constitution also provides that any such writing must meet certain requirements not relevant to our discussion.
TEX.CONST. ART. XVI, § 50(5)(A-D).
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However, the homestead laws only protect the homestead property itself from liens and
forced sales. They do not affect a contractor’s right to obtain a personal money judgment against
a homeowner who has breached a contract, which in turn can be collected in a variety of other
ways, aside from the filing of a lien or the forced sale of the property. See, e.g., Lott v. Penny,
No. 05-99-00157-CV, 1999 WL 1117098, at *4 (Tex.App.--Dallas Dec. 8, 1999, no pet.) (not
designated for publication) (recognizing that the homestead protections may prevent a recovery
“against a homestead” where there is no written contract, but do not prevent the entry of a money
judgment against the homeowners on a theory of quantum meruit). In the present case, Anderson
Remodeling was not attempting to either place a lien on the Homeowners’ property or to force a
sale of the property; instead, it was simply attempting to obtain a money judgment against the
Homeowners based on their alleged breach of the parties’ oral agreement. And because the
homestead defense has no relevance to the question of whether Anderson Remodeling was entitled
to a money judgment against the Homeowners, the Homeowners’ attempt to raise a homestead
defense could not have factored into the trial court’s judgment. We therefore reject Anderson
Remodeling’s contention that the trial court necessarily relied on the homestead defense in
rendering its judgment.
Anderson Remodeling’s Issue One is overruled.
IV. THE DENIAL OF THE TRIAL AMENDMENT
In Issue Two, Anderson Remodeling contends that the trial court erred when it denied its
trial amendment to add causes of action for quantum meruit and unjust enrichment, claiming that
the Homeowners provided no evidence that the amendment would have prejudiced their case, and
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that the amendment was necessary due to Ray’s surprise testimony regarding her claim of
homestead. We disagree with both points.
A. Standard of Review
We review a trial court’s decision denying a motion for leave to file a trial amendment for
an abuse of discretion. See Karam v. Brown, 407 S.W.3d 464, 476 (Tex.App.--El Paso 2013, no
pet.), citing State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (“If the trial
amendment is not mandatory, then the decision to permit or deny the amendment rests within the
sound discretion of the trial court.”). A trial court abuses its discretion when it acts arbitrarily,
unreasonably, or without regard to guiding legal principles. Ford Motor Co. v. Garcia, 363
S.W.3d 573, 578 (Tex. 2012).
B. Controlling Law
Rule 66 of the Texas Rules of Civil Procedure provides that the trial court shall “freely”
grant a request for a trial amendment “when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that the allowance of such
amendment would prejudice him in maintaining his action or defense upon the merits.”
TEX.R.CIV.P. 66. Similarly, Rule 63 provides that a trial court shall grant an amendment made
within seven days of trial or thereafter “unless there is a showing that such filing will operate as a
surprise to the opposite party.” TEX.R.CIV.P. 63. The burden to show surprise or prejudice is on
the party resisting the amendment. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938,
939 (Tex. 1990); Karam, 407 S.W.3d at 476.
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Anderson Remodeling focuses its argument on the failure of the Homeowners to present
any evidence of either prejudice or surprise.7 A party opposing a trial amendment, however, is
not always required to present such evidence. When the trial amendment seeks to add a new cause
of action, in certain circumstances the attempt to add a new cause of action can be considered
“prejudicial on its face.” See Karam, 407 S.W.3d at 476, citing Deutsch v. Hoover, Bax &
Slovacek, L.L.P., 97 S.W.3d 179, 186 (Tex.App.--Houston [14th Dist.] 2002, no pet.); see also
Kilpatrick, 874 S.W.2d at 658 (recognizing that an amendment that asserts a new cause of action
or defense may be considered prejudicial on its face). In particular, an amendment adding a new
cause of action is considered prejudicial on its face if it: “(1) reshapes the nature of the case; (2)
could not have been anticipated; and (3) prejudices a party’s presentation of the case.” Karam,
407 S.W.3d at 476, citing Deutsch, 97 S.W.3d at 186.
C. Application
1. The trial amendment was prejudicial on its face
Applying the above test, the proposed trial amendment was prejudicial on its face. First,
the addition of the proposed claims for quantum meruit and unjust enrichment would have
substantially reshaped the nature of the trial. Anderson Remodeling’s original petition sounded
solely in breach of contract. Claims for quantum meruit and unjust enrichment are independent
claims for relief, which are distinct from breach of contract; in effect, these claims allow a plaintiff
7
The record shows, however, that the trial court did not give the Homeowners the opportunity to present such
evidence, or make any arguments regarding whether they were surprised or prejudiced by the trial amendment, as the
trial court summarily denied Anderson Remodeling’s request for the trial amendment without comment immediately
after it was made. See Wendell v. Cent. Power & Light Co., 677 S.W.2d 610, 618 (Tex.App.--Corpus Christi 1984,
writ ref’d n.r.e.) (finding it irrelevant that the opposing party did not object to the filing of a trial amendment, where
the trial court denied the trial amendment without giving party’s attorney the opportunity to object).
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to recover for services rendered or materials furnished when there is no express contract covering
the services or materials in question, and the defendant would be unjustly enriched by accepting
or receiving the services or materials without payment.8 See Hill v. Shamoun & Norman, LLP,
544 S.W.3d 724, 732-33 (Tex. 2018) (recognizing that a claim for quantum meruit is an equitable
remedy, distinct from a breach of contract claim, and is based upon a promise that is “implied by
law to pay for beneficial services rendered and knowingly accepted,” to prevent a party from being
unjustly enriched by services); Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683-84 (Tex.
2000) (a claim for unjust enrichment arises when there is no express contract between the parties,
and is based on a theory of “quasi-contract” to prevent a party from being unjustly enriched by the
other’s actions).
Thus, while a claim for breach of contract requires evidence of an express contract that was
breached, claims for quantum meruit and unjust enrichment require the opposite, i.e., evidence that
there was no express contract governing the services rendered, making the claims inconsistent with
each other. See Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex. 1964) (recognizing
that recovery on an express contract and on quantum meruit are “inconsistent.”); Houle v. Casillas,
594 S.W.3d 524, 554 (Tex.App.--El Paso 2019, no pet.) (“Recovery under a theory of unjust
enrichment is based on quasi-contract, and therefore, when a valid, express contract covers the
subject matter of the parties' dispute, there can generally be no recovery under this theory, as
8
The elements of a claim for quantum meruit are as follows: “1) valuable services were rendered or materials
furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought
to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be
charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.”
Vortt Expl. Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Similarly, a plaintiff may recover
under a theory of unjust enrichment when the defendant has wrongfully secured a benefit, or has passively received a
benefit, which it would be unconscionable to retain. Houle v. Casillas, 594 S.W.3d 524, 554 (Tex.App.--El Paso
2019, no pet.).
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allowing such recovery would be inconsistent with the parties' express agreement.”); see also
Chico Auto Parts & Serv., Inc. v. Crockett, 512 S.W.3d 560, 573-74 (Tex.App.--El Paso 2017, pet.
denied) (recognizing that “[a] party generally cannot recover under quantum meruit when there is
a valid contract covering the services or materials furnished.”). Accordingly, a trial amendment
adding these two new claims for relief would have shifted the focus of the trial from the issue of
whether an express contract existed, as Anderson Remodeling claimed, to the issue of whether
Anderson Remodeling could recover under these entirely new and inconsistent theories of
recovery.
Second, we find nothing in the record to suggest that the Homeowners could have
anticipated prior to trial that Anderson Remodeling intended to raise these new claims for relief.
Anderson Remodeling’s petition only alleged that the Homeowners had breached an express
contract, and the record does not contain any discovery responses or communications between the
parties that would have alerted the Homeowners that Anderson Remodeling intended to deviate
from this claim or that it otherwise intended to proceed at trial on a different theory of recovery.
Third, we conclude that the Homeowners would have been prejudiced in their ability to
respond to these two new claims if the trial court had granted the trial amendment. To establish
these new claims, Anderson Remodeling would have been required to present evidence that it
bestowed a benefit upon the Homeowners that was outside the scope of the parties’ contract, and
that the Homeowners would be unjustly enriched if allowed to retain the benefit without payment.
In turn, the Homeowners would have been entitled to present evidence that they did not knowingly
accept any benefits outside the scope of the contract, or alternatively, they could have disputed the
value of any such benefits. But without notice that Anderson Remodeling intended to raise claims
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for unjust enrichment or quantum meruit, it would have been a mere fortuity for the Homeowners
to have addressed these issues. Moreover, the Homeowners may have been less inclined to
abandon their counterclaim for damages based on Anderson Remodeling’s alleged inadequate
work if quantum meruit and unjust enrichment were to be litigated. The counterclaim potentially
rebutted elements of the new causes of action.
The timing of the request for the trial amendment was also prejudicial to the Homeowners,
as the request came after the close of evidence, and after closing arguments were already made.
And although Rule 66 allows a trial court to postpone a trial to allow the party opposing a trial
amendment to “meet such evidence,” neither party requested any postponement of the trial, leaving
the Homeowners with no opportunity to present evidence to rebut any claim of unjust enrichment
or quantum meruit. TEX.R.CIV.P. 66. Accordingly, we conclude that Anderson Remodeling’s
trial amendment which sought to add two new claims for relief was prejudicial on its face.
2. The homestead claim did not justify the amendment
Finally, Anderson Remodeling contends that the trial court erred by denying the trial
amendment, claiming that the amendment was necessary to allow it to respond to Ray’s “surprise”
testimony that she considered the building to be her homestead. Anderson Remodeling, however,
does not explain how Ray’s testimony necessitated the need to raise a claim for either quantum
meruit or unjust enrichment, nor is there a connection between the two. As explained above,
Ray’s attempt to raise a homestead defense was irrelevant to Anderson Remodeling’s quest to
obtain a money judgment against the Homeowners, regardless of what theory of relief it pursued
against them. Therefore, even assuming that Anderson Remodeling was surprised by the
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Homeowners’ attempts to raise the homestead defense at trial, it would be irrelevant to raising new
theories of relief.
Moreover, there is nothing in the record to suggest that Anderson Remodeling could not
have raised the alternative theories of unjust enrichment or quantum meruit prior to trial. As the
Homeowners point out, a party is permitted to plead claims of breach-of-contract and claims of
unjust enrichment or quantum meruit in the alternative. See generally In re Kellogg Brown &
Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005) (recognizing that although the claims are inconsistent,
a party to a contract may “seek alternative relief under both contract and quasi-contract theories.”);
Tatum v. Tatum, 606 S.W.2d 31, 33 (Tex.App.--Corpus Christi 1980, no pet.) (“there certainly is
nothing to prevent plaintiff from pleading alternative theories of express contract and quantum
meruit.”). And, given the fact that the Homeowners expressly denied breaching their contract in
their answer to Anderson Remodeling’s petition, the trial court could have found that Anderson
Remodeling knew, or should have known, of the need to raise these alternative claims for relief
prior to trial, and, as explained above, could have denied the trial amendment on that basis as well.
See Geis v. Colina Del Rio, LP, 362 S.W.3d 100, 116 (Tex.App.--San Antonio 2011, pet. denied)
(recognizing that a trial court has the discretion to deny a trial amendment adding a new cause of
action if the opposing party objects and “it appears that the new matter was known to the party
seeking to file the amendment, or by reasonable diligence it could have been known by the party.”).
Accordingly, we conclude that the trial court did not abuse its discretion in denying
Anderson Remodeling’s request for a trial amendment. Anderson Remodeling’s Issue Two is
overruled.
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IV. CONCLUSION
The trial court’s judgment is affirmed.
JEFF ALLEY, Justice
January 29, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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