Date: 07-16-2015

Case Style: Margaret Onwudiegwu v. Jaime J. Dominguez

Case Number: 14-14-00249-CV

Judge: Christopher

Court: Texas Court of Appeals, Fourteenth District on appeal from the County Court at Law # 4 and Probate Court of Brazoria County

Plaintiff's Attorney: Michael A. Culling for Jaime J. Dominguez

Defendant's Attorney: Joseph R. Willie, II for Margaret Onwudiegwu

Description: In this appeal from a judgment ordering a property owner to pay a construction
worker damages in quantum meruit for work performed in constructing a new home, the
property owner argues that the county court at law lacked jurisdiction over the claim
and that there is legally insufficient evidence to support the judgment. We conclude that
although the trial court had jurisdiction, there is legally insufficient evidence to support
the implied finding that the construction worker provided materials and services under
circumstances that reasonably notified the appellant that the worker expected to be paid
by her. We accordingly reverse the trial court’s judgment and render judgment that the
construction worker take nothing by his claim.
2
I. BACKGROUND
In August 2012, Jaime J. Dominguez filed a suit on a sworn account against
defendants Margaret Onwudiegwu and Elias Ogonwanne Onwudiegwu, also referred to
in the record as Okoli Elias Onwudiegwu (“Okoli”).1 Dominguez included claims for
breach of an oral contract, quantum meruit, and mechanic’s and materialman’s liens for
work he and his workers performed constructing a new home for the Onwudiegwus. In
her answer, Margaret included a verified plea that Okoli was deceased.
Dominguez then filed a combined suggestion of death and amended petition,
suggesting that Okoli died more than two years before this suit was filed. In the
amended pleading, Dominguez named neither Okoli nor a representative of Okoli’s
estate as a defendant.
After Dominguez dropped Okoli as a defendant, Ugonwanne Onwudiegwu, in his
capacity as the administrator of Okoli’s estate,2 filed a plea to the jurisdiction in this
case. Ugonwanne asserted that “this is community property,” but it is not clear what
“this” is. Ugonwanne contended that Okoli’s estate was a necessary and proper party
pursuant to former Texas Probate Code section 298.3 He also stated that “the proper
jurisdiction to adjudicate the controversy is Cause No. PRO 032366; In re Estate of
Okoli Elias Onwudiegwu, Deceased; In the County Court [a]t [L]aw No. 4, Sitting in
Probate,” although this case already was pending in “County Court at Law No. 4 and
Probate Court of Brazoria County.” See TEX. GOV’T CODE ANN. § 25.0221(4) (West
1 Because we will be discussing three people with the last name Onwudiegwu, we refer to each
by his or her first name.
2 Although Ugonwanne, a lawyer, also appeared in this case as Margaret’s attorney, that is not
mentioned the plea to the jurisdiction. The plea instead begins with the unambiguous language,
“COMES NOW UGONWANNE ONWUDIEGWU, Administrator of the Estate of Okoli Elias
Onwudiegwu, and files his Plea to the Jurisdiction,” and is signed by Ugonwanne, “Administrator for
Okoli Onwudiegwu.”
3 The Probate Code has since been repealed and replaced with the Estates Code.
3
Supp. 2014) (stating the name of this trial court). The written plea was unsupported by
evidence, and no response to it is in the record.
Dominguez moved to consolidate this case with In the Estate of Okoli Elias
Onwudiegwu, Deceased, in the County Court at Law No. 3 and Probate Court of
Brazoria County. This motion also was unsupported by evidence. The trial court
denied both motions.4
At trial, Dominguez testified that in 2008, he worked for Luis Melendez, a
general contractor, who paid him $900 for work he performed on a home under
construction in Brazoria County. Dominguez told the home’s owner, “Mr. Okoli,” that
Melendez “was not finishing paying” Dominguez. According to Dominguez, Okoli
fired the general contractor and asked Dominguez to finish the brickwork. Dominguez
testified that Okoli gave him checks for $2,000, and Dominguez spent $1,291 of that
amount for materials. Dominguez finished the bricklaying work, and one of his workers
additionally did some flashing work on the house. Dominguez stated that based on his
records, he was owed a total of $6,380 for the work that he and his employees
performed on the house. He stated that he and Okoli never had a written agreement, and
he never spoke with Margaret.
Dominguez’s wife testified that she keeps her husband’s books and records and
that after Dominguez stopped working on this house, Okoli contacted her to say that he
wanted Dominguez to finish the job. She testified that she told Okoli “to pay off what
he owed, and after he would pay, we would finish the work.” She also stated that Okoli
said “[h]e would pay once the job was completely done,” but that she would not agree to
4 The trial court’s orders denying Ugonwanne’s plea to the jurisdiction and Dominguez’s
motion to consolidate indicate that an oral hearing was held on the two motions on the same day, and
that the trial court received evidence in connection with the plea to the jurisdiction. This part of the
reporter’s record was lost, and after we abated the case, the trial court issued written findings that the
missing material was not necessary to Margaret’s appeal, and thus, there was no need for the parties to
agree to replace it.
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that. According to this witness, Dominguez was owed $6,940 “for work that he did for
Elias Okoli Onwudiegwu and his wife Margaret.” Dominguez’s wife affirmed that she
filed an affidavit of mechanic’s lien against that property. Records show that the
affidavit of lien was recorded on February 17, 2009, and that Margaret was notified of
the filing via certified mail three days later.
Margaret moved for directed verdict on the quantum meruit claim, arguing that
Dominguez was required to show that “the charges were actually for this property, and
the only thing they submitted was invoices without the address of the property to be
worked on.” After the trial court denied the motion, Margaret testified that her current
address is the same as that of the property that is the subject of this dispute, and that she
has never had any communication with the Dominguezes. She further testified that she
moved to the new home in August 2009, but she was not sure whether she had
established it as her homestead.
Dominguez prevailed only on his quantum meruit claim, for which the trial court
awarded him $6,380, plus attorney’s fees, costs, and interest. In its final judgment, the
trial court further stated that Okoli’s estate was not a necessary party. Findings of fact
and conclusions of law were neither issued nor requested.
In two issues on appeal, Margaret argues that the trial court (a) lacked subjectmatter
jurisdiction to adjudicate this suit, and (b) erred in overruling her motion for
directed verdict on Dominguez’s quantum meruit claim.
II. SUBJECT-MATTER JURISDICTION
Because a trial court has no power to decide a case over which it lacks subjectmatter
jurisdiction, a challenge to the trial court’s subject-matter jurisdiction can be
raised for the first time on appeal. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.
2013) (per curiam). Such a challenge presents a question of law that we consider de
novo. Id.
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A. Jurisdiction as a “Statutory Probate Court”
In Margaret’s primary jurisdictional argument, she asserts that the court below “is
actually two courts presided over by one judge.” According to Margaret, “the trial court
sits as the County Court Law No. 4 in Brazoria County, Texas” at some times, and at
other times, it “sits as a statutory probate court.”5 She states that in this case, “the trial
court was not sitting as a statutory probate court.”6 From this, she concludes that the
trial court lacked subject-matter jurisdiction, and that “the proper course of action would
have been for [Dominguez] to file a claim with the estate’s administrator and then file
his causes of action in the County Court [a]t Law No. 3 sitting as a statutory probate
court.”
Margaret’s jurisdictional argument appears to hinge on the extent to which the
various county courts at law in Brazoria county can, do, or did “sit as a statutory probate
court.” Although her reasoning is opaque, one thing is clear: this argument is based on
inaccurate premises.
First, there is no statutory probate court in Brazoria County. “‘Statutory probate
court’ means a statutory court designated as a statutory probate court under Chapter 25,
Government Code.”7 Under the former Probate Code, “[a] county court at law
exercising probate jurisdiction is not a statutory probate court . . . unless the court is
designated a statutory probate court under Chapter 25, Government Code.”8 There are
statutory probate courts in ten counties: Bexar, Collin, Dallas, Denton, El Paso,
Galveston, Harris, Hidalgo, Tarrant, and Travis. See TEX. GOV’T CODE ANN.
§§ 25.0171(c), 25.0451(b), 25.0591(d), 25.0631(b), 25.0731(b), 25.0861(b), 25.1031(c),
5 Bold and underlining omitted.
6 Bold and underlining omitted.
7 Act of Apr. 28, 1997, 75th Leg., R.S., ch. 52, § 1, sec. 3(ii), 1997 TEX. GEN. LAWS 121, 121,
repealed by Act of May 26, 2009, 81st Leg., ch. 680, § 10(a), 2009 TEX. GEN. LAWS 1512, 1731 (eff.
Jan. 1, 2014).
8 Id.
6
25.1101(b), 25.2221(c), and 25.2291(c) (West 2004 & Supp. 2014). In this case, the
word “probate” appears in the trial court’s name (as it does in the names of each of
Brazoria County’s four statutory county courts), but the “County Court at Law No. 4
and Probate Court of Brazoria County” is not a statutory probate court. Compare id.
§ 25.0591(d) (“Dallas County has the following statutory probate courts . . . .”) and id.
§ 25.1031(c) (“Harris County has the following statutory probate courts . . . .”) with id.
§ 25.0221(4) (stating that “Brazoria County has the following statutory county courts”
and listing the trial court in this case) (emphasis added).
Second, of Brazoria County’s four statutory county courts, none “sits as a
statutory probate court,” but all exercise “original probate jurisdiction.” See Act of June
1, 2009, 81st Leg., R.S., ch. 1351, § 12(b), sec. 4C, 2009 TEX. GEN. LAWS 4273, 4276
(providing that where, as here, a county has no statutory probate court, its county courts
at law exercise original probate jurisdiction). That is not the same jurisdiction as a
statutory probate court. See TEX. GOV’T CODE ANN. § 25.0003(f) (West Supp. 2014)
(“A statutory county court does not have the jurisdiction of a statutory probate court
granted statutory probate courts by the Texas Probate Code.”).
Third, Margaret assumes that Dominguez’s claims against her could be litigated
only in a statutory probate court, or perhaps in a court exercising probate jurisdiction.
She contends that the trial court did not have “jurisdiction to enter a money judgment”
and that it lacked jurisdiction due to the absence of a necessary party. Because it is not
clear whether these contentions are part of Margaret’s first jurisdictional argument or
are distinct grounds for concluding that the trial court lacked jurisdiction, we have
addressed each of them separately.
B. “Jurisdiction to Enter a Money Judgment”
Margaret asserts that under sections 2989 and 31410 of the former Texas Probate
9 See Act of May 27, 1995, 74th Leg., R.S., ch. 1054, § 5, sec. 298, 1995 TEX. GEN. LAWS
7
Code, the trial court did not have subject-matter jurisdiction to enter a money judgment
in this case. Those provisions, however, concern claims against a decedent’s estate
through the estate’s personal representative, and no such claims were litigated in this
case.
The record instead shows that after Margaret filed her original answer asserting
that Okoli was deceased, Dominguez filed a “Suggestion of Death and First Amended
Original Petition for Suit on a Sworn Account.” In the amended petition, Dominguez
neither named Okoli as defendant nor substituted the administrator of Okoli’s estate.
Dominguez thereby dismissed the claims against Okoli. See Webb v. Jorns, 488 S.W.2d
407, 409 (Tex. 1972) (explaining that an amended pleading acts as a voluntary dismissal
of an omitted defendant); Phifer v. Nacogdoches Cnty. Cent. Appraisal Dist., 45 S.W.3d
159, 172 (Tex. App.—Tyler 2000, pet. denied) (holding that an amended petition
omitting a deceased defendant acted as a voluntary dismissal, so that the rules regarding
a writ of scire facias to substitute an estate’s representative for a deceased defendant
became inapplicable). And, because Dominguez also did not name the estate’s
administrator as a defendant in the amended petition, the only claims actually litigated
were Dominguez’s claims against Margaret. The cited provisions of the former Probate
Code therefore do not apply.
C. Absence of a Necessary and Proper Party
In the section of her appellate brief in which Margaret challenges the trial court’s
subject-matter jurisdiction, she also states, “It is the contention of the Defendant that the
estate is a necessary and proper party.” She does not explain why she contends that the
estate is a necessary and proper party, and in any event, an estate is “not a legal entity
5207, 5209, repealed by Act of May 26, 2009, 81st Leg., ch. 680, § 10(a), 2009 TEX. GEN. LAWS 1512,
1731 (eff. Jan. 1, 2014).
10 See Act of May 27, 1995, 74th Leg., R.S., ch. 1054, § 16, sec. 314, 1995 TEX. GEN. LAWS
5207, 5212, repealed by Act of May 26, 2009, 81st Leg., ch. 680, § 10(a), 2009 TEX. GEN. LAWS 1512,
1731 (eff. Jan. 1, 2014).
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and cannot be sued as such.” Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.
1987).
Even if we treated this isolated statement as an assertion that the estate’s personal
representative was a necessary and proper party, the problem remains that Margaret
raised no such complaint in the trial court. Cf. TEX. R. CIV. P. 37 (“Before a case is
called for trial, additional parties necessary or proper parties to the suit, may be brought
in, either by the plaintiff or the defendant, upon such terms as the court may
prescribe . . . .”) (emphasis added). The record instead shows that the case was called
for trial on November 4, 2013, and attorneys for both parties announced that they were
ready. At no time did Margaret argue in the trial court that a necessary party was absent
from the case. See Puryear v. Red River Auth. of Tex., 383 S.W.2d 818, 821 (Tex. Civ.
App.—Amarillo 1964, writ ref’d n.r.e.) (holding that the appellant’s complaint that the
trial court lacked jurisdiction due to the absence of necessary parties was untimely
where raised for the first time in a motion for new trial).11
At one time, it was at least theoretically possible that the joinder of a person could
be so essential to a case that proceeding in the person’s absence would constitute
fundamental error, which could be raised for the first time on appeal. See Vondy v.
Comm’r’s Court, 620 S.W.2d 104, 106 (Tex. 1981); but see Brooks v. Northglen Ass’n,
141 S.W.3d 158, 163 (Tex. 2004) (stating that since Texas Rule of Civil Procedure 39
has been amended, “[t]he doctrine of fundamental error should no longer protect
11 After Dominguez dismissed his claims against Okoli, the administrator of Okoli’s estate—a
non-party—filed a plea to the jurisdiction. Although the plea was unsupported by any evidence, the
administrator asserted that the estate was a necessary and proper party under section 298 of the former
Probate Code. But as previously mentioned, that section concerns presentment of claims against a
decedent or the decedent’s estate through the estate’s personal representative. When the jurisdictional
plea was filed, the only claims remaining were Dominguez’s claims against Margaret. The
administrator of Okoli’s estate did not seek to intervene in this suit, but instead asserted that the trial
court was required to dismiss the case on the ground that the estate administration was pending in
County Court at Law No. 4. County Court at Law No. 4, however, is the same court in which
Dominguez’s claims already were pending and which ultimately tried the case.
9
persons from the binding force of judgments when they have had an opportunity to raise
the absence of the nonjoined person and waived it” (quoting William V. Dorsaneo, III,
Compulsory Joinder of Parties in Texas, 14 HOUS. L. REV. 345, 369 (1977))).
Assuming, without deciding, that it is still possible for nonjoinder to constitute
fundamental error, Margaret cites no authority that supports her implication that this is
such a case, and we have not independently discovered any such authority. The record
shows that Margaret had ample opportunity to raise this issue in the trial court, and we
conclude that Margaret’s failure either to raise this issue before trial or to brief the
question of why she was not required to do so defeats her appellate complaint. See, e.g.,
Vondy, 620 S.W.2d at 108 (reversing the appellate court’s holding that the failure to
name one of the four commissioners as a party was fundamental error and explaining
that the existing defendants had failed to point out any defect in the petition related to
the omission of the fourth commissioner); Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d
200, 204 (Tex. 1974) (explaining that Texas Rule of Civil Procedure 39 concerning
“Parties Needed for Just Adjudication” was based on Federal Rule of Civil Procedure
19, and that under that rule, “[o]ne of the practical factors” considered by the U.S.
Supreme Court “in holding that an absent party was not jurisdictionally indispensable
was the fact that the case had actually been tried as to those parties who were present
and there was no objection at the trial level concerning the nonjoinder of a party.”
(citing Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102, 88 S. Ct. 733,
19 L. Ed. 2d 936 (1968))). Cf. Gilmer Indep. Sch. Dist. v. Dorfman, 156 S.W.3d 586,
587 (Tex. App.—Tyler 2003, no pet.) (addressing the merits of the complaint where—
unlike here—the existing defendant filed a pretrial plea to the jurisdiction in which it
raised the issue of failure to join an indispensable party).
Having rejected each of Margaret’s jurisdictional arguments, we overrule her first
issue.
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III. QUANTUM MERUIT
In her second issue, Margaret contends that the trial court erred in overruling her
motion for directed verdict on Dominguez’s quantum meruit claim. Because a
defendant in a nonjury trial makes a motion for judgment rather than a motion for
directed verdict, we construe this as a motion for judgment. See Hammer v. Wood, No.
14-07-01081-CV, 2009 WL 2589432, at *1 n.2 (Tex. App.—Houston [14th Dist.] Aug.
25, 2009, no pet.) (mem. op.) (citing Joplin v. Borusheski, 244 S.W.3d 607, 610 (Tex.
App.—Dallas 2008, no pet.)). The trial court’s ruling on a motion for judgment at the
close of the plaintiff’s case may address both factual and legal issues. See Qantel Bus.
Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303–05 (Tex. 1988); Huang v. Don
McGill Toyota, Inc., 209 S.W.3d 674, 677 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (op. on reh’g). Although Margaret does not expressly challenge the legal or factual
sufficiency of the evidence supporting any of the trial court’s implied findings, she does
ask that this court reverse the trial court’s judgment and render a take-nothing judgment
on Dominguez’s quantum meruit claim. Because she would be entitled to that result
only if the evidence were legally insufficient to support the judgment, we will construe
this issue as a challenge to the legal sufficiency of the evidence. See Stevens v.
Travelers Ins. Co., 563 S.W.2d 223, 233 (Tex. 1978) (explaining that a successful
challenge to the legal sufficiency of the evidence requires rendition of judgment).
Compare Magana v. Citibank, N.A., 454 S.W.3d 667, 681 n.11 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied) (examining the appellants’ prayer for relief and
concluding that they challenged the factual sufficiency of the evidence because they
sought remand, which is the appropriate remedy when the evidence is factually
insufficient) with Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CV,
2007 WL 2894167, at *3 (Tex. App.—Houston [1st Dist.] Oct. 4, 2007, pet. dism’d)
(mem. op.) (construing a challenge to the denial of a “motion for directed verdict” in a
bench trial as a challenge to the legal sufficiency of the evidence).
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When a complete reporter’s record is filed, we review the trial court’s findings of
fact for legal and factual sufficiency under the same standards we apply to jury verdicts.
Green v. Alford, 274 S.W.3d 5, 23 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(op. on reh’g en banc) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per
curiam)).12 To analyze the legal sufficiency of the evidence, we review the record in the
light most favorable to the challenged finding, crediting favorable evidence if a
reasonable factfinder could and disregarding contrary evidence unless a reasonable
factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Evidence is legally sufficient if it “rises to a level that would enable reasonable and fairminded
people to differ in their conclusions.” Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 601 (Tex. 2004). We will conclude that the evidence is legally insufficient to
support the finding only if (a) there is a complete absence of evidence of a vital fact, (b)
the court is barred by rules of law or evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than
a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital
fact. City of Keller, 168 S.W.3d at 810.
Quantum meruit is an equitable remedy that generally is available if there is no
express contract covering the services or materials furnished, but nonpayment would
unjustly enrich the party benefited by the work. See Vortt Exploration Co. v. Chevron
U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). To prevail under this theory, the
claimant must prove that (a) the claimant provided valuable services or materials, (b)
the services or material were provided to or for the person that the claimant seeks to
charge, (c) the person that the claimant seeks to charge accepted the services or
materials, and (d) the circumstances reasonably notified the person whom the claimant
12 Because parts of the reporter’s record are missing, we abated the case for the trial court to
conduct a hearing to determine if the missing parts of the record were necessary to Margaret’s appeal.
See TEX. R. APP. P. 34.6(f). Because the trial court determined that the missing parts of the record are
not necessary, we treat the reporter’s record before us as complete.
12
seeks to charge that the claimant was expecting to be paid by that person. Heldenfels
Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) (citing Vortt
Exploration, 787 S.W.2d at 944). Because Dominguez prevailed on this claim, the trial
court must have found that Dominguez proved each of these elements.
On appeal Margaret makes two arguments directed to the quantum meruit claim.
Her first argument is based on the premise that Dominguez’s work was covered by an
express contract with the general contractor. But see Murray v. Crest Constr., Inc., 900
S.W.2d 342, 345 (Tex. 1995) (per curiam) (explaining that construction contracts are an
exception to the general rule that a party may not recover under quantum meruit when
there is an express contract covering the services or materials furnished). According to
Margaret, “[t]he evidence before the trial court was that the Plaintiff was a subcontractor
of the general contractor, and that it was the responsibility of the general contractor to
pay for the labor and materials used by his subcontractors.” This characterization of the
record is inaccurate. Dominguez offered uncontroverted testimony that Okoli fired the
general contractor, and then negotiated for Dominguez to work directly for Okoli.
There is no evidence that the work at issue in this case was covered by an express
contract between Dominguez and the general contractor. In connection with this
argument, Margaret also states that “[t]here is no written evidence in this appellate
record” that she fired the general contractor and hired Dominguez, but she cites no
authority that such documentary evidence is required. See TEX. R. APP. P. 38.1(i)
(requiring an appellant to support the arguments in its brief “with appropriate citations
to authorities and to the record”).
Her remaining argument consists of the single sentence, “The evidence further
shows that [Margaret] never interacted, written, verbal or otherwise, with
[Dominguez].” At a minimum, that argument goes to fourth element of a quantum
meruit claim, that is, whether the circumstances reasonably notified Margaret that
Dominguez was expecting to be paid by her.
13
After reviewing all of the evidence in the light most favorable to the judgment,
we conclude that the evidence is legally insufficient to support this implied finding. The
evidence establishes that the work for which Dominguez seeks payment was performed
in September and October 2008. He worked on the construction of a new house;
Margaret and Okoli lived elsewhere at that time. The Dominguezes spoke only to
Okoli. Okoli signed a check in partial payment to Dominguez, but the check was drawn
on the account of “Tisiel International.” There is no other evidence about “Tisiel
International.” There also is no evidence that Margaret had reason to know that Okoli
had fired the general contractor. It is undisputed, however, that Dominguez and
Margaret never met or spoke before this case. On this record, there is no evidence that
circumstances reasonably notified Margaret that Dominguez expected to be paid by her
rather than by the general contractor or by “Tisiel International.” Cf. Gibson v. Bostick
Roofing & Sheet Metal Co., 148 S.W.3d 482, 490 (Tex. App.—El Paso 2004, no pet.)
(reversing a contractor’s quantum meruit claim against a property’s legal owner on
legal-insufficiency grounds where the contractor dealt only with the property’s equitable
owner, and never dealt with the legal owner).

Outcome: We conclude that the trial court had subject-matter jurisdiction to adjudicate
Dominguez’s claims against Margaret, but the evidence is legally insufficient to support
one of the implied findings necessary for Dominguez to prevail on his quantum meruit
claim. We accordingly reverse the trial court’s judgment and render judgment that
Dominguez take nothing by his claim.

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