Rand Mintzer v. Houston Medical Testing Services, Inc., 417 S.W.3d 691

Background

Rand Mintzer (attorney) arranged DNA testing with Houston Medical Testing Services (the Service) to review state forensic results in a criminal defense matter; the testing confirmed the state results.
The Service invoiced Mintzer for the testing; Mintzer forwarded invoices to his incarcerated client, and neither Mintzer nor the client paid.
The Service sued Mintzer asserting breach of contract and, alternatively, quantum meruit; trial focused on whether Mintzer was personally liable or acted as agent for a disclosed principal (the client).
The jury found (1) the parties had an agreement for DNA testing, (2) Mintzer did not fail to comply with the contract, and (3) under quantum meruit the Service rendered compensable services valued at $2,200.
Trial court entered judgment on the verdict; Mintzer moved for JNOV arguing the contract finding bars quantum meruit recovery. The court denied JNOV; on appeal the court reversed, holding contract bars quantum meruit and rendering judgment that the Service take nothing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a jury finding that an agreement existed bars recovery in quantum meruit	The Service argued the jury finding could reflect an implied contract or an agreement lacking consideration, so quantum meruit could still apply	Mintzer argued the jury’s contract finding precludes quantum meruit because an existing contract (express or implied-in-fact) governs remedies	Yes. The court held an agreement covering the services (express or implied-in-fact) bars quantum meruit; judgment reversed and Service takes nothing
Whether lack of consideration for the agreement preserves quantum meruit	The Service argued the agreement lacked consideration because Mintzer didn’t pay; thus the contract finding shouldn’t preclude quantum meruit	Mintzer argued evidence supports that if a contract existed it was supported by consideration (someone was to pay), and the contract finding was unchallenged	Court rejected Service’s preservation and merits arguments; lack-of-consideration argument was not preserved and, on the merits, evidence showed consideration existed
Whether an implied-in-fact contract differs from an express contract for purposes of barring quantum meruit	The Service claimed implied-in-fact contract should not bar quantum meruit	Mintzer (and majority) argued implied-in-fact contracts are true contracts whose remedies supplant quasi-contract recovery	Court held implied-in-fact contracts bar quantum meruit just as express contracts do
Preservation: whether appellate court may decide extension of contract bar to implied contracts when not argued below	The Service and dissent argued the implied-contract issue was not preserved and the court should not decide a novel rule on appeal	Mintzer relied on the jury contract finding to argue quantum meruit is barred; majority treated that position as preserved	Majority addressed the issue on the merits; dissent would have declined review as unpreserved and novel

Key Cases Cited

Bluelinx Corp. v. Texas Constr. Sys., Inc., 363 S.W.3d 623 (Tex. App.—Houston [14th Dist.] 2011) (quantum meruit elements and general rule that contract bars recovery)
Weaver v. Jamar, 383 S.W.3d 805 (Tex. App.—Houston [14th Dist.] 2012) (quantum meruit elements described)
Hudson v. Cooper, 162 S.W.3d 685 (Tex. App.—Houston [14th Dist.] 2005) (measure of recovery in quantum meruit and role of trial court in equitable relief)
In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005) (quantum meruit is an equitable remedy based on promise implied by law; contract generally bars it)
Truly v. Austin, 744 S.W.2d 934 (Tex. 1988) (authority for bar on quantum meruit when contract exists)
Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671 (Tex. 2000) (distinguishing quasi-contract and enforcing parties’ bargained-for rights)
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (express vs. implied-in-fact contract distinction and mutual assent)
Hester v. Friedkin Cos., 132 S.W.3d 100 (Tex. App.—Houston [14th Dist.] 2004) (contract can bar quantum meruit against nonparty)
Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411 (Tex. App.—Dallas 2001) (agent of disclosed principal not liable on contract absent assumption of liability)
Christus Health v. Quality Infusion Care, Inc., 359 S.W.3d 719 (Tex. App.—Houston [1st Dist.] 2011) (where jury implicitly found an express contract, awarding quantum meruit was error)