H2o Solutions, Ltd. v. PM Realty Grp., LP

• Citation: 438 S.W.3d 606
• Decision Date: 14 August 2014
• Docket Number: No. 01–12–00618–CV.,01–12–00618–CV.
• Parties: H2O SOLUTIONS, LTD., Appellant v. PM REALTY GROUP, LP and Provident investor Group, GP, LLC, Appellees.
• Court: Court of Appeals of Texas

438 S.W.3d 606

H2O SOLUTIONS, LTD., Appellant

v.PM REALTY GROUP, LP and Provident investor Group, GP, LLC, Appellees.

No. 01–12–00618–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Feb. 13, 2014.

Rehearing En Banc Overruled Aug. 14, 2014.

Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston, TX, J.P. B. Vogel, Andrew B. Piel, Patrick D. Sheridan, Harrison Steck, PC., Fort Worth, TX, for Appellant.

Sean Higgins, Claire W. Parsons, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Houston, TX, for Appellees.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

Appellant, H2O Solutions, Ltd. (“H2O Solutions”), sued appellees, PM Realty Group LP and its general partner, Provident Investor Group, GP, LLC (collectively, “PM Realty”), for breach of contract, quantum meruit, fraud, and negligent misrepresentation arising out of an agreement to provide remediation services in the aftermath of Hurricane Ike. The trial court rendered summary judgment in favor of PM Realty on all claims except for H2O Solutions' negligent misrepresentation claim, which H2O Solutions subsequently nonsuited. On appeal, H2O Solutions contends that (1) the trial court erred in rendering summary judgment because PM Realty failed to conclusively establish its right to judgment as a matter of law; (2) the trial court erred in relying on a written agreement between the parties that was not a valid contract and that only addressed future work to be performed; (3) a material fact issue exists concerning which agreement is the operative agreement between the parties; (4) the trial court erroneously failed to strike a document that was not properly authenticated; and (5) the trial court prematurely rendered summary judgment on its quantum meruit, fraud, and negligent misrepresentation claims. PM Realty responds that H2O Solutions seeks to recover from it under a contract or in quantum meruit, but that H2O Solutions judicially admitted that it performed the work at issue in this dispute pursuant to a different contract with different parties, under which H2O Solutions recovered a settlement award for the same work performed, precluding it from recovering damages from PM Realty.

We agree with PM Realty and affirm the summary judgment in its favor.

Background

PM Realty provides property management services to the owners of two office buildings located at 1100 NASA Parkway and 1110 NASA Parkway in Houston (collectively, “the Properties”). The Properties are owned by B & R 1100 NASA Parkway Owner, LP, B & R 1100 NASA Parkway GP, Inc., B & R 1110 NASA Parkway Owner, LP, and B & R 1110 NASA Parkway GP, Inc. (collectively, “the B & R Entities”). H2O Solutions is a remediation company that handles, among other things, water-damage restoration, cleanup, and mitigation services.

Hurricane Ike made landfall in the greater-Houston area on September 13, 2008. The Properties were among those in the region that suffered extensive damage as a result. On September 18, 2008, Chuck Deaton with Paramount Insurance Repair Service (“Paramount”) informed Matt Burk, H2O Solutions' president, that the Properties needed remediation services. Later that day, Burk met with Deaton and David Morris, PM Realty's construction manager, to inspect the Properties and determine what services needed to be provided. Both buildings required generators, and the entire 60,000–square–foot building at 1110 NASA Parkway required substantial “drying and dehumidification control.”

Burk later averred that, on September 19, 2008, he and Morris “negotiated and agreed to the essential terms of the contract, which included scope and price.” The B & R Entities' insurance carrier, Travelers Indemnity Company, allegedly approved the terms of this agreement later that day.

The next morning, September 20, 2008, Burk sent Morris the following e-mail:

Per our conversation, I am sending this e-mail to define the specifications of our proposal. Our proposal has been stated with a not to exceed figure of $6.50 per sq. ft. This allowance will include equipment, labor, and materials for the following:

2—5000 CSM Desiccants

60—Air Movers

Up to 30 LGR Dehumidifiers

Antimicrobial

Wall Venting (drill holes)

The estimated time for this project will be 7—10 days. In the event that the project goes the full 10 days, the sq. ft. price will not be exceeded.

The price per sq. ft. does not include the generator or the fuel for the generator.

In the event that more demolition is required, the scope of demolition will be defined and agreed upon prior to commencement.

I have attached an Authorization to Perform Services for your review. This document will need to be signed prior to beginning the project. Also, I have attached a copy of our Insurance.

Shortly after sending this e-mail, Burk sent Morris another e-mail with a document entitled “Authorization to Perform Services and Direction of Payment” attached. This form document, which did not include any information pertinent to this particular project, generally authorized H2O Solutions to “perform any and all necessary cleaning and/or restoration services.” According to Burk, he and Morris agreed that the “total remediated square-footage used for purposes of the ‘not to exceed $6.50 per square foot’ pricing agreement was 60,000,” that generators and fuel were not included in that cost, and that the “pricing agreement for the generators and fuel was H2O's cost plus overhead and profit.”

Burk averred that he subsequently spoke on the phone with Morris, and Morris agreed that “the scope and pricing detailed in the [first e-mail Burk sent earlier that morning] accurately reflected [their] agreement.” Burk asked Morris if he had signed the authorization form, and Morris responded that he had not because he was unable to print the document. Morris told Burk that “he would execute [the forms] and return them to [Burk] as soon as practicable, but due to the rapidly deteriorating condition of the NASA Properties it was imperative for H2O to begin working.” It is thus undisputed that H2O Solutions began remediation work on the Properties without having a signed authorization form.

H2O Solutions substantially completed remediation services on the Properties on September 26, 2008, and started removing its equipment. That day, Burk, Morris, and David Acosta, an industrial hygienist, met concerning the indoor air quality levels at 1110 NASA Parkway. Acosta informed Burk and Morris that the air quality was at dangerous levels and that H2O Solutions needed to place additional air scrubbers throughout the building. Burk and Morris discussed this recommendation, and Morris authorized this additional work even though Burk informed him that it would be an additional cost. These additional air scrubbers remained in 1110 NASA Parkway until November 3, 2008.

On September 29, 2008, PM Realty presented Burk with copies of two Limited Scope Service Agreements (“LSSAs”), one for each of the Properties. According to Burk, Melinda Greeson, a property manager at PM Realty, informed him that “signing the [LSSAs was] a mere formality to receive payment, and, if [he] did not sign the [LSSAs], H2O would not be paid for its work.” Burk averred that he believed that the LSSAs were vendor agreements for future work because H2O Solutions had already completed the majority of the work at the Properties. Burk averred that no purchase orders were attached to the LSSAs that he executed, and he later averred that he did not receive any purchase orders from PM Realty except through the discovery process.

The opening paragraph of the LSSA for 1100 NASA Parkway provided that the agreement was made “as of the 26th day of September, 2008, by and between PM Realty Group, L.P. as agent for B & R 1100 Nasa Parkway Owner, LP (“Owner”) ... and H2O Solutions (“Contractor”) ....” This document identified PM Realty as “Manager” and included a provision acknowledging that PM Realty was “acting solely as an agent on behalf of Owner in executing and carrying out the terms of this Agreement and that [PM Realty] assumes no liability whatsoever for the payments required under this Agreement or for any of its terms.” The LSSA included the following recital: “Contractor desires to perform the services hereinafter described for the Project and Owner desires to engage Contractor to perform such services.” Under a section entitled “Services to be Performed,” the LSSA provided that “Contractor shall perform the professional services described on Exhibit A attached hereto (the “Services”). The Services will be performed in a first-class manner, to the satisfaction of Owner and within the time period specified in said Exhibit A.” Exhibit A stated:

1. SCOPE OF SERVICES

Contractor shall provide miscellaneous services on an as-needed basis as determined by Owner and/or Manager [PM Realty]. Scope of services shall be further outlined through the issuance of a Purchase Order by Manager at the time services are desired

2. TIME PERIOD FOR SERVICES

Contractor shall perform said services in a reasonable time period as mutually agreed upon by Owner and/or Manager and Contractor

3. WARRANTIES

Contractor shall guarantee and warranty said services for materials and workmanship for a period of one (1) year following completion and acceptance of said work by Owner and/or Manager.

The LSSA also contained a merger clause stating, “All previous oral or written promises and agreements relating to the subject matter of this Agreement are hereby superseded, it being expressly agreed that the terms and provisions of this Agreement shall constitute the full and complete agreement between Owner and Contractor.” The LSSA for 1110 NASA Parkway was substantively identical.

On November 11, 2008, Burk e-mailed Morris an invoice totaling $796,642.39 for the work completed at the two Properties. Morris responded with several concerns, including the fact that the invoice “does not list the Client [the B & R...