Clayton Kalisek and CKORP, LLC v. Hays City Corporation D/B/A Tex-Con Oil Co. ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CLAYTON KALISEK AND §
CKORP, LLC, No. 08-20-00031-CV
§
Appellants, Appeal from the
v. §
County Court at Law No. 1
HAYS CITY CORPORATION §
D/B/A TEX-CON OIL CO., of Travis County, Texas
§
Appellee. (TC# C-l-CV-17-001286)
§
MEMORANDUM OPINION
This is an appeal from a quantum-meruit judgment arising from a dispute over payment for
fuel deliveries. Fuel supplier Tex-Con Oil Co. had a credit agreement with its customer, CKorp,
LLC. All indebtedness of CKorp under the agreement was personally guaranteed by the company’s
owner, Clayton Kalisek. A jury found breach of the credit agreement but no contract damages. The
jury also found that Tex-Con performed but was not paid for compensable work for CKorp and
Kalisek, and that it incurred reasonable and necessary attorney’s fees. The trial court entered
judgment, awarding the quantum-meruit damages jointly and severally against CKorp and Kalisek,
and attorney’s fees solely against Kalisek.
CKorp and Kalisek appeal, arguing that a motion to transfer venue was wrongly denied,
that quantum-meruit damages are unavailable when the credit agreement governed the
transactions, and that attorney’s fees should not have been awarded against Kalisek as guarantor
if they could not be awarded against CKorp as the principal. We affirm.
Background
Tex-Con and CKorp executed a Fleetwide Credit Application for the purpose of Tex-Con
providing business credit to CKorp. Most of the one-page document consists of an application
form which solicited the applicant’s tax identification number, address, references, and other
business information. Toward the bottom of the page, just above the applicant’s signature,
appeared the following agreement:
I/we/am/are authorized, in my capacity to bind my/our firm accordingly, that all
accounts or monies due Tex-Con Oil Company shall be due within the payment
terms established and agreed upon. Any account that becomes delinquent will be
placed on credit hold and fueling privileges will be temporarily suspended until
account becomes current. In the event the payment is not made on this account, the
undersigned agrees to pay for costs incurred for collection.
The document was signed by Kalisek on behalf of applicant CKorp, in his capacity as “Owner.”
Below the applicant’s signature block, at the bottom of the page, appeared a paragraph
labeled “Personal Guarantee” which stated:
In consideration of credit being extended to the above named firm, I personally
guarantee all indebtedness hereunder. I further agree that this guarantee is an
absolute, complete and continuing one, and no notice of the indebtedness of any
extension of credit already or hereafter contracted by or extended need be given.
The terms may be rearranged, extended and/or renewed without notice to me.
The Personal Guarantee also was signed by Kalisek.
Tex-Con filed suit against CKorp and Kalisek in Travis County, alleging that it delivered
lubricants, fuels, and materials to them, but they breached their agreement by failing to make
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payment for seven invoices totaling an outstanding balance of $11,143.61. The lawsuit alleged
causes of action for breach of contract and quantum meruit. Tex-Con also sought to recover its
attorney’s fees pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code.
The case was tried to a jury, and in the jury charge references to “CKORP” were defined
to include both CKorp, LLC and Kalisek. The jury found that “CKORP” failed to comply with the
Fleetwide Credit Application, and that its failure to comply was not excused, but that there were
no contract damages. The jury also found that Tex-Con performed compensable work for
“CKORP,” reasonably valued at $9,079.91, for which it was not compensated. Finally, the jury
found a reasonable fee for the necessary services of Tex-Con’s attorneys to be $20,000. The trial
court entered judgment in favor of Tex-Con, awarding $9,079.91 as actual damages in quantum
meruit against CKorp and Kalisek, jointly and severally. It also awarded $20,000 in reasonable
and necessary attorney’s fees, but only against Kalisek. This appeal ensued.
Analysis
I. Venue
CKorp and Kalisek challenge the denial of their motion to transfer venue from Travis
County to Bexar County. In their motion, they specifically denied that Travis County was the
county in which all or a substantial part of the events giving rise to the claim occurred. On appeal,
they contend that when a venue fact is specifically denied as they did, Rule 87(3)(a) of the Rules
of Civil Procedure requires the party pleading a venue fact to make prima facie proof of that venue
fact. Because Tex-Con failed to file a response to the motion to transfer venue, the Appellants
argue that it was reversible error for the trial court to deny the motion. See TEX. CIV. PRAC. & REM.
CODE ANN. § 15.064(b).
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While Tex-Con did not file any document denominated as a response to the motion to
transfer venue, it did amend its live pleading before the hearing on the motion. That amended
petition alleged seven unpaid invoices, of which five were generated as a result of the delivery of
lubricants, fuels, and materials from Tex-Con’s Travis County location to the defendants at an
address also located in Travis County. The amended petition had an affidavit attached, verifying
the facts stated in the amened petition.
For this dispute over the proper venue, our standard of review is specified by statute. See
Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 459 (Tex. App.—El Paso 2006, no pet.) (citing Wilson
v. Texas Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)). “In all venue hearings . . .
[t]he court shall determine venue questions from the pleadings and affidavits.” TEX. CIV. PRAC. &
REM. CODE ANN. § 15.064(a). “In determining whether venue was or was not proper, the appellate
court shall consider the entire record, including the trial on the merits.” Id. § 15.064(b). Prima facie
proof of venue facts is made when they are properly pleaded and an affidavit is filed, fully and
specifically setting forth the facts supporting the pleading. TEX. R. CIV. P. 87(3)(a).
Under these standards, the entire record must be considered as part of our appellate review,
including Tex-Con’s amended pleading and its supporting affidavit. Thus, contrary to the
Appellants’ arguments, the relevant record did contain prima facie proof to support the alleged
venue facts. Accordingly, the challenge to the denial of the motion to transfer venue, which is
basely solely on Tex-Con’s failure to file a separate response to the motion, must be denied. See
TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b). Appellants’ first issue is overruled.
II. Quantum meruit
In their second issue, CKorp and Kalisek contend that a valid contract covering the subject
of the dispute—the Fleetwide Credit Application—precluded Tex-Con from recovering on a
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theory of quantum meruit. “As a general rule, a plaintiff who seeks to recover the reasonable value
of services rendered or materials supplied will be permitted to recover in quantum meruit only
when there is no express contract covering those services or materials.” Truly v. Austin, 744
S.W.2d 934, 936 (Tex. 1988). CKorp and Kalisek argue that the credit agreement was the contract
between the parties, and Tex-Con offered it into evidence. The jury was asked about it and
specifically found that that CKorp failed to comply with the agreement. The Appellants thus argue
that a recovery for quantum meruit was disallowed as a matter of law.
In response, Tex-Con characterizes the Appellants’ position as an affirmative defense,
which they were required to plead and prove. See TEX. R. CIV. P. 94. “When the existence of or
the terms of a contract are in doubt, and there is a claim for unjust enrichment, it is incumbent on
the party disputing that claim to secure findings from the trial court that an express contract exists
that covers the subject matter of the dispute.” Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671,
685 (Tex. 2000) (citing Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex. App.—Tyler 1973, writ
ref’d n.r.e.)). Because CKorp and Kalisek failed to plead express contract as an affirmative
defense, Tex-Con argues that this challenge to its recovery for quantum meruit has been waived.
A defendant’s failure to plead and prove the affirmative defense of an express contract is a
waiver of the defense. See, e.g., Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502
(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing Fortune Prod. and Freeman); see also
City of El Paso v. Mountain Vista Builders, Inc., 557 S.W.3d 617, 623 (Tex. App.—El Paso 2017,
no pet.) (quoting TEX. R. CIV. P. 94 for proposition that “[a] defendant is required to plead
affirmative defenses including waiver, estoppel, and ‘any other matter constituting an avoidance
or affirmative defense’”). CKorp and Kalisek did plead affirmative defenses, but not the defense
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that a quantum-meruit claim was barred by an express contract. Appellants’ second issue is
overruled.
III. Attorney’s fee award against Kalisek
In the last issue, Kalisek challenges the award of attorney’s fees against him in his
individual capacity, when he acted as a guarantor and attorney’s fees were not awarded against his
principal, CKorp. He argues that under Texas law litigants may recover attorney’s fees only if
specifically provided by statute or contract. See Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011).
Kalisek contends that because CKorp is a limited liability company, attorney’s fees could not be
awarded against it pursuant to Civil Practice and Remedies Code section 38.001, which authorizes
the recovery of “reasonable attorney’s fees from an individual or corporation . . . .” In fact the trial
court did not award attorney’s fees against CKorp. Kalisek also notes that while the agreement in
the Fleetwide Credit Application provided that “[i]n the event the payment is not made on this
account, the undersigned agrees to pay for costs incurred for collection,” the jury awarded no
damages for CKorp’s failure to comply with that agreement. He thus argues that because CKorp
is not liable to pay Tex-Con’s attorney’s fees, he cannot be held individually liable for the fees in
his capacity as the guarantor of CKorp’s indebtedness, when there is no obligation to pay attorney’s
fees that CKorp has failed to perform. See, e.g., Anderton v. Cawley, 378 S.W.3d 38, 46 (Tex.
App.—Dallas 2012, no pet.).
In response, Tex-Con argues that section 38.001 expressly authorizes the recovery of
attorney’s fees for a quantum-meruit claim involving “furnished material.” TEX. CIV. PRAC. &
REM. CODE ANN. § 38.001(3); see Base-Seal, Inc. v. Jefferson County, 901 S.W.2d 783, 785 (Tex.
App.—Beaumont 1995, writ denied). Apart from the arguments addressed above, Kalisek presents
no appellate arguments that the judgment erroneously awarded quantum-meruit damages against
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him individually. As such, section 38.001(3) authorized recovery of reasonable attorney’s fees
against him, an “individual” who was adjudged to be liable for a valid claim for furnished
materials, and not merely in his capacity as guarantor. We overrule the final issue.
Conclusion
We affirm the judgment of the trial court.
MICHAEL MASSENGALE, Visiting Justice
February 12, 2021
Before Rodriguez, C.J., Alley, J., and Massengale, V.J.
Massengale, V.J., sitting by assignment
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