OPINION
Appellant and “cross-appellee,” Tricon Tool & Supply, Inc. (“Tricon”), appeals the trial court’s judgment rendered on a jury verdict for quantum meruit in favor of appellee and “cross-appellant,” Bruce E. Thumann (“Thumann”). Thumann appeals the trial court’s granting of summary judg *498 ment on part of his quantum meruit cause of action, in which he sought unpaid commissions for products shipped prior to the Texas Workforce Commission’s (“TWC”) “Wage Claim Date.” 1 We determine (1) whether the- evidence was legally and factually sufficient to support the jury’s quantum meruit verdict, (2) whether the trial court improperly admitted testimony regarding appellate attorney’s fees, (3) whether the trial court erred by denying Trieon’s summary-judgment and post-judgment motions on Thumann’s quantum meruit cause of action because collateral estoppel barred that claim, and (4) whether the trial court erred by granting summary judgment on Thumann’s quantum meruit cause of action against Tricon for commissions on products shipped prior to the TWC’s Wage Claim Date. We affirm the judgment of the trial court.
Facts
Thumann was hired by Tricon in December of 1987 to operate a new division that specialized in selling products to apartment building contractors. His responsibilities included performing “takeoffs” 2 from architectural plans, providing product lists of items needed to complete a job, negotiating sales contracts for Tricon, submitting bid proposals, ordering products, and scheduling shipments (“shipping tickets”). He did not handle the actual shipment of products to construction sites. Thumann was the only salesperson in the division. His compensation included a salary of $110,000 per year, as well as a commission on product sales, which was paid on the tenth day of the month following a product’s shipment. The commission structure agreement between Thumann and Tricon paid Thumann a commission rate of three and three quarters percent on monthly sales up to $125,000, four percent on any amount over $125,000 in monthly sales, and six percent on all wood ship sales. Tricon contended that it had an unwritten policy that no commissions were paid to employees on products shipped after the employee had been terminated.
Tricon terminated Thumann on August 16, 2001. Tricon paid Thumann his commissions on products that had shipped through August 16, 2001, but did not pay Thumann for any sales commissions on pending shipments for which he had completed takeoffs and purchase orders. Thu-mann filed an administrative claim with the TWC on November 26, 2001 (“TWC claim”). See Tex. Lab.Code Ann. § 61.051 (Vernon 2006). Thumann asserted in his TWC claim that Tricon had allegedly terminated him because he “contemplated going into business for himself.” He sought the amount of $27,613.85 for unpaid wages in the form of commissions, which he alleged were due from August 16, 2001 through “the first quarter of 2002.” The TWC issued a “Preliminary Wage Determination Order” on April 24, 2002, dismissing Thumann’s TWC claim. See id. at § 61.052 (Vernon 2006). Thumann filed a request for a hearing to contest the preliminary wage determination order. See id. § 61.054 (Vernon 2006). Hearings *499 were conducted on Thumann’s TWC claim on July 1, 2002.
The TWC issued its “Payday Law Decision” on July 3, 2002, dismissing Thu-mann’s TWC claim and making findings of fact and conclusions of law. The TWC in effect split Thumann’s TWC claim for unpaid wages into two categories — one for those commissions on products shipped prior to the TWC Wage Claim Date and another for those commissions on products shipped after the TWC Wage Claim Date. 3 Regarding Thumann’s claim for commissions shipped after the TWC Wage Claim Date (“commissions for post-December 10 shipments”), the TWC determined that Thumann’s TWC claim was “not timely filed” (rather, was not yet ripe) because payment was not yet due at the time that his TWC claim was filed, and the TWC dismissed that portion of Thumann’s TWC claim for want of jurisdiction. Regarding Thumann’s claim for commissions shipped prior to the TWC Wage Claim Date (“commissions on pre-December 10 shipments”), the TWC determined that that portion of Thumann’s claim was “timely” (ie., was ripe), but that he had not earned and thus was not due commissions for sales shipped after his termination. On July 26, 2002, Thumann sent a letter to the TWC, attempting to withdraw his TWC claim.
On August 1, 2002, Thumann sued Tricon in district court for unpaid wages in the amount of $27,613.85 based on the common-law theories of breach of contract and quantum meruit. Thumann concedes that this was not a suit for judicial review of the TWC Payday Law Decision.
4
Tricon moved for summary judgment on three grounds. First, Tricon asserted that Thumann’s claims for breach of contract and quantum meruit for the recovery of commissions on pre-December 10 shipments was barred by res judicata because of the TWC’s prior, final decision concerning those commissions.
See Holmans v. Transource Polymers, Inc.,
.The trial court granted Tricon’s motion for summary judgment on the portion of *500 Thumann’s suit that the TWC had already considered, i.e., commissions on pre-De-cember 10 shipments — in effect splitting Thumann’s causes of action into commissions on pre- and post-December 10 shipments. The remaining portion of Thu-mann’s claim, for commissions on post-December 10 shipments, went to trial on June 1, 2004. At trial, the evidence showed that Thumann and Tricon did not have a written employment contract. Tricon contended that the parties had a verbal employment contract that included (1) a description of Thumann’s duties, (2) Thu-mann’s salary and benefits compensations, and (3) Thumann’s commission agreement that entitled him to commission on products after they were shipped to a construction project. Thumann contended that neither the verbal employment contract nor the commission agreement referenced how commissions for those sales generated during Thumann’s employment, but shipped after he left the company, would be paid. Tricon introduced evidence that the company had a policy of not paying salespersons commissions for sales generated during employment, but shipped after their termination. Thumann introduced evidence that there was no written company policy regarding the payment of commissions after termination and that he had been assured by one of the co-owners of Tricon that he would be paid for those sales commissions on products that shipped after his termination.
The jury found that Thumann was entitled to judgment based on quantum meru-it, but not breach of contract, and awarded him $5,876.60. Specifically, the jury answered “No” to question number one of the jury charge, which asked, “Did [Thu-mann] and Tricon agree that Tricon would pay Thumann commission for sales generated during his employment whether or not Thumann was still employed by Tricon when the products shipped?” The jury answered “Yes” to question number four of the jury charge, which asked, “Did [Thumann] perform compensable work for Tricon for which he was not paid?” The trial court entered a final judgment on July 12, 2002.
Tricon filed a motion notwithstanding the verdict, a motion for new trial, and a motion to modify the judgment. Thumann filed a “Motion For New Trial/Rehearing On The Partial Granting Of [Tricon’s] Motion For Summary Judgment.” The trial court denied both Thumann’s and Tricon’s post-judgment motions.
Unchallenged Ruling
Thumann does not challenge the trial court’s granting of summary judgment or entry of judgment on his breach-of-contract claim. Therefore, we affirm that portion of the final judgment disposing of Thumann’s claim against Tricon for breach of contract.
See Walling v. Metcalfe,
Sufficiency of the Evidence
In points of error one and two, Tricon argues that the trial court erred because the evidence was legally and factually insufficient to support the jury’s verdict on quantum meruit.
A. Standard of Review and the Law
In a legal-sufficiency review, “we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary.”
Wal-Mart Stores, Inc. v. Miller,
The jury is the sole judge of witnesses’ credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. Id. at 819. Because it is the jury’s province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance with their verdict if reasonable human beings could do so. Id.
When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which it did not have the burden of proof — here, quantum meruit— the appellant must demonstrate that there is no evidence to support the adverse finding.
Croucher v. Croucher,
If an appellant is attacking the legal sufficiency of an adverse finding to an issue on which it has the burden of proof— here, the affirmative defense of express contract — it must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue.
Dow Chem. Co. v. Francis,
In reviewing a factual-sufficiency challenge to a jury finding on an issue on which the appellant did not have the burden of proof, we consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the jury finding is so weak as to make the verdict clearly wrong and manifestly unjust.
Cain v. Bain,
Quantum meruit is an equitable remedy based on the promise implied by law to pay for beneficial services rendered and knowingly accepted.
Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc.,
In contending that recovery under quantum meruit is precluded, the defendant can assert the affirmative defense that there was a valid, express contract with the defendant covering the supplied services.
Id.; Truly v. Austin,
B. Analysis
In point of error one, Tricon argues that the evidence supporting the jury’s quantum meruit verdict for commissions on post-December 10 shipments is legally insufficient because there is no evidence to support quantum meruit. To the extent that Tricon’s legal-sufficiency challenge is based on the jury’s implicit rejection of its express-contract affirmative defense, we construe Tricon’s point of error one as also arguing that Tricon proved its affirmative defense as a matter of law. In point of error two, Tricon argues that the trial court erred by denying Tricon’s motion for new trial because the evidence supporting the jury’s quantum meruit verdict is factually insufficient.
1. Thumann Rendered Valuable Services To Tricon
In addressing the first two elements of quantum meruit, Tricon contends that Thumann failed to present a scintilla of evidence showing that he rendered valuable services to Tricon. Thumann had to prove that the services that he performed were provided for the direct benefit of Tricon.
See Truly,
*503
The record reflects that Thumann performed nearly all of the required duties necessary to generate sales worth $128,310 that shipped after his termination. The only duty that Thumann did not complete related to those sales was writing a shipment ticket or calling the factory to have the product shipped to the customer. Thumann’s near completion of these jobs and negotiation of these sales were valuable services rendered to Tricon and directly benefited Tricon by generating income for it.
See Truly,
In support of its factual-sufficiency challenge, Tricon notes that Thumann earned a commission only when the product shipped and that the post-December 10 shipments necessarily had not occurred prior to Thumann’s termination on August 16, 2001. The evidence that Tricon contends undermines the jury’s finding that valuable services were furnished to Tricon is that Thumann was responsible for scheduling the shipments to the construction sites, which he failed to do because he was terminated. After Thumann was terminated, other employees of Tricon performed the additional work to ship the products to the construction sites, and Tricon incurred additional expense to have the products shipped to the contractors. Tricon contends that the manufacturer of a product could be called five to nine times over the shipping of the product.
Tricon also argues that commissions were not the agreed-upon compensation for the pre-shipment work that Thumann had completed before he was fired. That is, Tricon asserts that Thumann’s salary was intended to compensate him for contacting customers, completing takeoffs, and working on quotations (i.e., for all pre-shipment work) and that the post-shipment commissions were intended to compensate Thumann for scheduling the shipments. Tricon thus contends that Thumann was compensated by his salary for his work on the sale of products shipped after December 10, so that he was not entitled to a commission on these shipments, too.
There is no written agreement, but only the testimony of a verbal employment agreement and commission structure agreement. Although both parties presented evidence supporting their positions, the jury was entitled to give weight to the evidence presented and to form its own opinion.
See Cain,
2. Tricon’s Acceptance of Services and Reasonable Notification of Thu-mann’s Expectation of Payment
In challenging the last two elements of quantum meruit, Tricon contends that Thumann failed to present a scintilla *504 of evidence showing that it had accepted Thumann’s services and that Tricon had been reasonably notified that Thumann, in performing such services, was expecting to be paid. The record reflects the following evidence of acceptance: (1) a Tricon representative confirmed that Tricon had accepted the benefit of Thumann’s services; (2) Tricon benefited financially from Thu-mann’s sales by billing its customers for Thumann’s sales and accepting payment for his sales; and (3) Thumann generated more than $120,000 worth of sales from products shipped for the period following December 10, 2001. We hold that this is legally-sufficient evidence of Tricon’s acceptance of Thumann’s services.
The notice element focuses on what Tricon, not Thumann, knew or should have known at the time that Tricon accepted the services.
See Heldenfels Bros., Inc. v. City of Corpus Chnsti,
The record also reflects that Tricon had no documented policy that a commission would not be paid on products shipped after an employee’s termination. Even though there was a verbal commission agreement between Tricon and Thumann, there was evidence that they did not have an agreement, written or verbal, addressing the payment of post-termination commissions in the event that Thumann was terminated. The commission structure agreement made no reference to whether or not commissions for products sold, but not shipped, before termination would be paid. Thumann testified that he never would have worked for Tricon had he known of its unannounced policy not to pay him for sales that he generated during employment that shipped after his departure. See Vortt Exploration Co., Inc., 787 S.W.2d at 945 (stating that plaintiffs testimony that he would not have furnished defendant with information if he had believed that joint operating agreement would not have been reached was evidence of defendant’s being reasonably notified that plaintiff expected to be paid for the services and assistance that were rendered).
Tricon relies heavily on
General Homes, Inc. v. Denison,
From the evidence, the jury rationally could have concluded that Thumann rendered valuable services to Tricon and that Tricon accepted those services and was reasonably notified that Thumann expected to be paid for them. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient to support the jury’s implicit findings that Thumann’s services were accepted by Tricon under such circumstances as would reasonably notify Tricon that Thumann was expecting to be paid regarding post-December 10 shipments.
In its factual-sufficiency challenge, Tricon contends that the following evidence is contrary to the finding that Thumann’s services were accepted by Tricon under such circumstances as would reasonably notify Tricon that Thumann was expecting to be paid. Purchase orders, on which Thumann based his claim for recovery of commissions, were not a final sale: a contractor could cancel all or part of the products on a purchase order. Tricon contends that Thumann was responsible for pulling product from inventory or ordering the product from manufacturers and scheduling shipments. Therefore, Tricon argues that, after Thumann’s termination, other employees performed the additional work to ship the products, and Tricon incurred additional expenses. Tricon also presented evidence that it had a policy that no commission would be paid on product shipped after an employee was terminated. Tricon’s president testified that he had no expectation of paying commissions to Thu-mann for product shipped after his termination.
The jury was responsible for determining the credibility of witnesses in concluding whether there was a policy and whether Tricon knew that Thumann expected to be paid. The court cannot substitute its opinion for the jury’s implicit credibility determination as to which party’s evidence to believe on the subject of whether Tricon knew that Thumann expected to be paid.
See Hollander,
3. Tricon’s Quantum Meruit Defense: Express Contract
Tricon argues that “[a]n express contract did exist on the same subject
*506
matter that is the basis for Thumann’s quantum meruit claim. Thumann presented no evidence that the duties performed by Thumann that would entitle him to a commission on goods that shipped after his termination were anything other than the regular anticipated duties of a salesman for which the verbal agreement provided compensation.” Because Tricon had the burden of proof below on this defense, it must demonstrate on appeal that the evidence establishes as a matter of law all vital facts in support of the issue.
See Dow Chem. Co.,
Jury charge question number one asked: “Was there a contract to pay Mr. Thu-mann a commission for sales generated during his employment whether or not Thumann was still employed by Tricon when the product was shipped?” The jury answered “No” to this question, establishing that there was no such contract and implicitly rejecting Tricon’s affirmative defense that there was a contract that no such commissions would be paid.
Tricon must demonstrate that the evidence conclusively established all vital facts in support of its affirmative defense of an express contract.
See Dow Chem. Co.,
Although Tricon and Thumann had a verbal employment agreement and commission-structure agreement, the jury implicitly found, by its negative answer to question one, that there was no provision in either verbal agreement pertaining to the payment of commissions for sales generated during employment when the products sold were shipped after termination. The evidence set out above is some evidence supporting the jury’s negative answer to question one.
The jury’s answer to question one is not surprising, given that Tricon argued, in its closing argument, that no such contract *507 existed. In its closing argument, Tricon argued:
“So when Mr. Thumann was hired he was never told that he would receive commissions on product that was shipped after he was terminated. When he was terminated he was never told that he would receive commissions on product that was shipped after he was terminated. There was no contract. There was no contract agreement. Looking in the questions, Question Number 1, what is a contract? You are instructed that a contract is created when there is an offer.... There was no offer. Tricon Tool & Supply never offered to pay Mr. Thumann at any time commissions on product that was shipped after he was terminated ... A meeting of the minds. Even Mr. Thumann said he was never told ... And each party’s consent to the terms. Just didn’t happen_ There was no contract. There was no agreement. Answer to Question Number 1 is no.... ”
Therefore, even Tricon admitted that there was no contract covering commissions for services performed during employment that resulted in shipments after termination.
Because there is evidence to support the jury’s finding that there was no agreement that “Tricon would pay Thumann compensation for the sales generated during his employment whether or not Thumann was still employed by Tricon when the product was shipped,” we need not examine the entire record to determine if the contrary proposition is established as a matter of law.
Dow Chem. Co.,
We overrule Tricon’s points of error one and two.
Appellate Attorney’s Fees
In point of error three, Tricon argues that the trial court erred when it admitted evidence of appellate attorney’s fees through Thumann’s expert. Joyce Keat-ing, Thumann’s attorney, gave direct testimony on the matter of attorney’s fees. At the conclusion of her testimony and over objection, Keating requested leave of court to return to the witness stand to provide testimony on appellate attorney’s fees. An opportunity was given to defense counsel to cross-examine Keating on her additional testimony, but counsel declined.
A. Standard of Review
The admission and exclusion of evidence is committed to the trial court’s sound discretion.
City of Brownsville v. Alvarado,
Rule 611 of the Texas Rules of Evidence provides:
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect -witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. A witness may be cross-examined on *508 any matter relevant to any issue in the case, including credibility.
See Tex.R. Evid. 611(a), (b).
B. Analysis
Keating’s additional testimony on appellate attorney’s fees was not a wholly unrelated matter from her direct and cross-examination testimony because it included evidence about Keating’s qualifications, trial and appellate experience, and attorney’s fees.
See id.; Crum & Forster, Inc. v. Monsanto Co., 887
S.W.2d 103, 141 (Tex.App.-Texarkana 1994, no writ);
Tex. Employers’ Ins. Ass’n v. Hitt,
We overrule Trieon’s- point of error three.
Payday Law Decision
In its appeal, Tricon attacks the trial court’s denial of its (1) motion notwithstanding the verdict, (2) motion for new trial, (3) motion to modify the judgment, and (4) motion for summary judgment on Thumann’s quantum meruit claim for commissions on post-December 10 shipments. In his appeal, Thumann attacks the trial court’s granting of summary judgment on his quantum meruit claims for commissions on pre-December 10 shipments.
A. The Law
The objective of the Texas Payday Act is to deter employers from withholding wages by providing wage claimants an avenue for the enforcement of wage claims, many of which would be too small to justify the expense of a civil lawsuit.
Wal-Mart Stores, Inc. v. Lopez,
B. Tricon’s Arguments: Commissions on Post-December 10 Shipments
In point of error four, Tricon argues that “[t]he trial court committed reversible error when it denied Tricon’s motion notwithstanding the verdict, motion for new trial and motion to modify [the] judgment and Tricon’s motion for summary judgment, heard prior to trial and on rehearing after trial, for commissions on goods shipped after December 10, 2001.” Specifically, Tricon argues on appeal that the trial court erred in denying the herein-above-mentioned motions because collateral estoppel barred Thumann’s quantum meruit claim on commissions for post-December 10 shipments.
To preserve a complaint for appellate review, a party must first present the issue to the trial court to obtain a ruling. Tex.R.App. P. 33.1(a). We first address Tricon’s summary judgment motion that Tricon contends preserved its complaint for appellate review. Tricon
*509
brought the alleged collateral-estoppel error to the attention of the trial court in its motion for summary judgment, which the trial court denied. After a trial on the merits, as in the present case, the denial of a motion for summary judgment may not be reviewed on appeal.
Ackermann v. Vordenbaum,
We next address Tricon’s post-judgment motions that it contends preserved its complaint for appellate review. The record does not reflect that Tricon brought the alleged collateral-estoppel error to the attention of the trial court in either its “Motion Not Withstanding [sic] the Verdict, Motion for New Trial, and Motion to Modify the Judgment” 5 or “First Supplemental Motion Not Withstanding [sic] the Verdict, Motion for New Trial, and Motion to Modify the Judgment.” 6 The only post-judgment document in which Tricon raised its collateral estoppel argument was in a response to Thumann’s “Motion for New Trial/Rehearing on the Partial Granting of [Tricon’s] Motion for Summary Judgment.” 7 Tricon’s response argued that the trial court should treat Thumann’s request for reconsideration of “[Tricon’s] Motion for Summary Judgment” as a motion for judgment notwithstanding the verdict because there was a jury verdict. Tricon urged the trial court to consider all issues, including its argument that the trial court’s denial of summary judgment on commissions for post-December 10 shipments was improper because Thumann’s quantum meruit claim was barred by collateral estoppel.
Tricon’s collateral estoppel argument rests on construing Thumann’s post-judgment motion as one for judgment notwithstanding the verdict. We assume without deciding that, if we can construe Thu-mann’s post-judgment motion as Tricon argues, Tricon’s response to Thumann’s post-judgment motions would function as a request for affirmative relief that would preserve the collateral estoppel issue for review. That is, we assume without deciding that a response to a judgment-notwithstanding-the-verdict motion could preserve *510 for review an issue that would normally have to be preserved by a judgment-notwithstanding-the-verdict motion.
Tricon’s argument that Thumann’s motion for new trial and request for reconsideration on “[Tricon’s] Motion for Summary Judgment” be treated as a motion for judgment notwithstanding the verdict because there was a jury verdict is inappo-site. Thumann’s complaint in his motion for new trial and rehearing — that the trial court erred when it granted summary judgment on his quantum meruit claim on commissions for pre-December 10 shipments — concerned an issue that was not submitted to the jury. Indeed, Thumann’s complaint is that there was no jury verdict on the matter. Thumann was not complaining in his motion about the jury’s verdict in his favor on commissions for post-December 10 shipments; rather, his motion concerned matters that never went to the jury. One cannot construe a motion that does not challenge a jury’s verdict as one that does. Thus, Thumann’s rehearing and motion for new trial should not have been treated by the trial court as a motion for judgment notwithstanding the verdict.
Accordingly, Tricon has not preserved this alleged error for appeal. To preserve this type of complaint, Tricon had to raise it in (1) a motion for directed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial.
See Cecil v. Smith,
We overrule Tricon’s point of error four.
C. Thumann’s Appeal: Commissions on Pre-December 10 Shipments
In two points of error in his own appeal, Thumann argues that the trial court erred by granting summary judgment on his quantum meruit claim against Tricon for commissions on pre-December 10 shipments.
1. Standard of Review
The standard of review for a traditional summary judgment is well-established: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is, therefore, entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor.
Nixon v. Mr. Prop. Mgmt. Co.,
2. Res judicata
Thumann argues in his point of error two that “[t]he trial court erred in granting [Tricon’s] motion for summary judgment because Texas law recognizes Thu-mann’s right to file suit on his common-law claim for unpaid wages even after having filed a Payday claim” — that is, that his quantum meruit claim against Tricon for commissions on pre-December 10 shipments is not barred by res judicata.
The doctrine of res judicata addresses the conclusive effects of judgments.
Puga v. Donna Fruit Co.,
We agree that the Payday Act is not an employee’s sole and exclusive remedy for a claim based on past wages, but, rather, is an alternative remedy that is cumulative of common-law remedies.
See Bennett v. Cash Am. Int’l, Inc.,
Thumann conceded in his summary-judgment response that the TWC’s order was final, stating, “Thumann withdrew his Payday claim and did not appeal the final administrative order thus permitting him to proceed with his common law claim.” (Emphasis added.) However, Thumann argues in his brief that Holmans stands for the proposition that “[t]he [TWC’s] decision should not be considered final as precluding a claimant’s ability to seek an alternative common law remedy unless the claimant [ (1.) ] files a claim under the statute, [ (2.) ] utilizes its reme *512 dial scheme by exhausting all administrative remedies, and [ (3.) ] appeals the final administrative order.” We disagree with Thumann’s interpretation of Holmans. The court held in Holmans, “Should a claimant choose to file a claim under the statute, utilize its remedial scheme, and appeal the final administrative order, then the claimant is properly required to abide by the statute’s provisions.” Id. at 193. The court did not, however, define when an administrative order would become final for purposes of a claimant’s ability to seek an alternative common-law remedy. See id. (holding that Payday Law is cumulative of common law and is alternative remedy that wage claimant may seek; in that case, because that appellant had withdrawn his administrative claim from the TWC before its order became final, appellant could pursue common-law remedies).
We rely on the Labor Code to define when the TWC’s administrative order becomes final. The TWC’s decision becomes final 14 days after the date on which it is mailed, unless a further appeal to the TWC is initiated. See Tex. Lab.Code Ann. §§ 61.061(c), 61.0614 (Vernon 2006). On July 1, 2002, the TWC held a hearing and determined that Thumann was not entitled to any unpaid wages from Tricon on commissions from pre-December 10 shipments. The TWC rendered its decision that “the determination order issued April 24, 2002, is affirmed.” See Tex. Lab.Code Ann. 61.059 (Vernon 2006) (stating that TWC may modify, affirm, or rescind preliminary wage-determination order). The Payday Law Decision had a notice that stated, “The attached decision will become final 14 days after the date mailed shown above, unless within that time a party to the appeal files with the Commission a written motion for a reopening or a written motion for a rehearing. A party to the appeal seeking judicial review of the agency’s decision must file the request in a court of competent jurisdiction within 30 days of the date the decision was mailed.” (Emphasis in original.)
Thumann did not attempt to withdraw his claim until July 26, 2002 — 23 days after the TWC had issued its Payday Law Decision.
8
The TWC’s Payday Law Decision became final on July 17, 2002 — 14 days after the date on which the TWC’s decision was mailed.
See
Tex. Lab.Code Ann. §§ 61.061(c), 61.0614. Thus, Thumann’s attempt to withdraw his administrative claim was untimely. Had Thumann wanted to pursue his common-law remedies concerning commissions on pre-December 10 shipments, he would have had to withdraw his claim with the TWC
before
its decision became final.
See Holmans,
Thumann did not pursue a suit for judicial review of the TWC’s final decision on the merits, as permitted by Section 61.062. 9 Instead, he instituted this action *513 to pursue common-law breach-of-contract and quantum meruit remedies against Tricon.
The doctrine of res judicata prevents parties and their privies from relit-igating a claim with a final adjudication from a competent tribunal — one of competent jurisdiction.
See Harrison,
Accordingly, the trial court did not err by granting, in part, Tricon’s motion for summary judgment on Thumann’s quantum meruit claim seeking commissions on the pre-December 10 shipments based on res judicata.
We overrule Thumann’s point of error two in his appeal.
3. Express Contract
Thumann argues in his point of error one that “[t]he trial court erred in granting [Tricon’s] motion for summary judgment on Thumann’s quantum meruit claim because Tricon failed to establish as a matter of law the existence of an express agreement on pre-December 10, 2001 shipments.”
Because summary judgment was proper on res judicata grounds, we do not reach Thumann’s point of error one concerning whether Tricon failed to establish as a matter of law the existence of an express agreement.
See Rogers v. Ricane Enters., Inc.,
Conclusion
We affirm the judgment of the trial court.
Notes
. A pivotal date, for much of the discussion, is the date that the Texas Workforce Commission ("TWC”) designed as the "Wage Claim Date,” which will be discussed further below.
. A takeoff involves taking a set of architectural and structural plans to make a list of all of the items that could be sold on that project, putting this list into a proposal, and submitting the proposal to the contractor of the project in an attempt to sell those products. To complete a takeoff on a set of plans, Thu-mann would calculate the amount of each product needed for the project, document the total on a list or spreadsheet, contact the manufacturers, obtain pricing, and issue a quotation to the customer.
. The "Payday Law Decision” listed the "Wage Claim Date” as December 7, 2001. The TWC stamped Thumann’s claim and appendices as being received on December 10, 2001. In its "Payday Law Decision,” the TWC divided the claims into categories for pre- and post-December 7 shipments. Tricon, in its motion for summary judgment, organized its argument according to the “Payday Law Decision” by using categories for pre- and post-December 7 shipments. However, the trial court, in its order granting in part and denying in part Tricon’s motion for summary-judgment motion, divided the claims into categories for pre- and post-December 10 shipments. The record does not reflect that either party complained to the trial court about the changed shipment date from December 7, 2001 to December 10, 2001, nor does either party complain of the trial court’s order on appeal. In their briefs on appeal, both parties reference the December 10 date. Accordingly, we will reference the December 10 shipment date.
. In its argument on appeal, Tricon notes that Thumann’s lawsuit was not one for judicial review of the Payday Law Decision. Thu-mann conceded in his summary-judgment response and in his brief in his appeal that he "opted not to exhaust his administrative remedies or seek further appeal of the TWC's determination....”
. In its “Motion Not Withstanding [sic] the Verdict, Motion for New Trial, and Motion to Modify the Judgment,” Tricon argued that (1) the trial court should render a verdict notwithstanding the judgment or alternatively grant a new trial because there was legally and factually insufficient evidence to support the jury’s verdict on quantum meruit on commissions for post-December 10 shipments and (2) the trial court should modify the judgment to delete the award of appellate attorney's fees because evidence in support of those fees had been improperly admitted.
. In its "First Supplemental Motion Not Withstanding [sic] the Verdict, Motion for New Trial, and Motion to Modify the Judgment,” Tricon argued that the trial court should render a verdict notwithstanding the judgment or alternatively grant a new trial because a valid, express contract existed on the same subject matter found by the jury to be the basis of recovery for quantum meruit.
.In his "Motion for New Trial/Rehearing on the Partial Granting of [Tricon’s] Motion for Summary Judgment," Thumann complained that the trial court had improperly rendered summary judgment on his quantum meruit claim on commissions for pre-December 10 shipments.
. The TWC issued its "Payday Law Decision” on July 3, 2002.
. Once the TWC's decision became final, to seek judicial review properly, Thumann was required to comply with section 61.062 of the Texas Labor Code, which provides:
(a) A party who has exhausted the party’s administrative remedies under this chapter may bring a suit to appeal the order.
*513 (b) The suit must be filed not later than the 30th day after the date the final order is mailed.
(c) The commission and any other party to the proceeding before the commission must be made defendants in the suit.
(d) The suit must be brought in the county of the claimant's residence. If the claimant is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.
(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.
Tex. Lab.Code Ann. § 61.062 (Vernon 2006). Although Thumann filed this suit not later than the 30th day after the date that the final order was mailed, i.e., August 2, 2002, in his county of residence, he did not state that he was seeking relief under section 61.062, nor did he name the TWC as a defendant to the suit. See id. Thumann concedes in his appellant’s brief that he was not seeking judicial review of the TWC’s decision under the statute.