LaChance v. Hollenbeck, 14296

• Decision Date: 12 June 1985
• Docket Number: No. 14296,14296
• Citation: 695 S.W.2d 618
• Parties: Jim LaCHANCE, Individually and d/b/a Jim LaChance Company and Persimmon Hollow Company, Appellant, v. Spencer D. HOLLENBECK, et ux., Appellees.
• Court: Texas Court of Appeals

Page 618

695 S.W.2d 618

Jim LaCHANCE, Individually and d/b/a Jim LaChance Company and Persimmon Hollow Company, Appellant, v. Spencer D. HOLLENBECK, et ux., Appellees.

No. 14296.

Court of Appeals of Texas Austin.

June 12, 1985.

Rehearing Denied Aug. 28, 1985.

Jeffrey D. Talmadge, Fulbright & Jaworski, Austin, for appellant.

Claude E. DuCloux, Robinson, Felts, Starnes, Angenend & Mashburn, Austin, for appellee.

Before SHANNON, C.J., and BRADY and GAMMAGE, JJ.

BRADY, Justice.

Appellant appeals from a judgment for $1,819.10 in a bench trial involving a suit by appellees, Spencer D. Hollenbeck and wife, Faye Hollenbeck, for expenses paid by appellees to improve a condominium. This condominium was under a contract of purchase from appellant. We will affirm the judgment of the trial court.

On February 11, 1983, appellees executed a contract of purchase from appellant for a condominium in Austin in the sum of $72,000. Appellees paid $500 earnest money to Jim LaChance, acting as the Persimmon Hollow Company. The property was to be financed through a Veteran's Administration loan. The contract agreement provided that the sale was to be closed six months from the contract date at the prevailing VA interest rate at the time of closing. LaChance, representing the seller, refused to close the sale. Appellant alleges that the VA interest rate had changed shortly before the day of closing, requiring seller to pay additional "points" to the lender to secure VA financing.

Upon appellant's refusal to close the sale, appellees demanded return of their earnest money and reimbursement for sums appellees paid appellant and others for certain "extras" installed in the condominium. These "extras" included ceiling fans, additional electrical wiring, a concrete patio and other items installed in the condominium prior to the agreed closing date.

This cause was set for trial on the merits on May 21, 1984. On May 17, appellant discharged his attorney. On May 18, LaChance filed a motion for continuance. The trial court continued the case until Wednesday, May 23, to give him additional time to locate new counsel. Upon the failure of appellant to obtain new counsel, the court proceeded to trial over appellant's objection. Thus, appellant's first point of error concerns the denial by the trial court of his motion for continuance.

In his brief and argument before this Court, counsel for appellant stated erroneously that trial counsel "withdrew" from the case. LaChance testified and swore in the motion for continuance that he "discharged" his attorney on the evening of May 17, four days before trial. Appellant argues that it is fundamental that a party to a trial must be afforded a reasonable opportunity to obtain counsel. Furthermore, appellant contends that the denial of that right is fundamental error if the litigant, without negligence or default on his part, is deprived of his right, and an ex parte judgment is rendered against him. However, we do not agree that appellant was without negligence or default in discharging his attorney on the evening of May 17, less than four days before trial. The granting or denying of a continuance is within the trial court's sound discretion, and will not be disturbed on appeal unless it is clearly shown that such discretion has been abused. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963). Absent a manifest showing of abuse of discretion, the trial court's decision will not be disturbed. U.S. Fire Ins. Co. v. Alvarez, 657 S.W.2d 463 (Tex.App.1983, no writ); Garcia v. Texas Emp. Ins. Assn., 622 S.W.2d 626 (Tex.App.1981, writ ref'd n.r.e.). We do not find that the trial judge committed an abuse of discretion in denying appellant's second continuance. Appellant's first point of error is overruled.

Appellant's second point of error claims that appellees' case was tried on a theory of quantum meruit. Appellant recites that the case falls into this category because appellees sought recovery for work and materials based upon a claim of unjust enrichment. Thus, the argument is made that appellees should be denied recovery for failure to prove the elements of quantum meruit. Appellees reply that this is an erroneous conclusion since the case was not tried on that theory; rather, the case was tried on the equitable theory of unjust enrichment.

Unjust enrichment, however, does not provide an independent basis for a cause of action. The phrase "unjust enrichment" characterizes the result whereby one individual fails to make restitution of benefits received under circumstances giving rise to an implied or quasi-contract. Allen v. Berrey, 645 S.W.2d 550 (Tex.App.1982, writ ref'd n.r.e.); Fun Time Centers, Inc. v. Continental National Bank of Fort Worth, 517 S.W.2d 877 (Tex.Civ.App.1974, writ dism'd).

We agree with appellant that the judgment of the trial court cannot be sustained on the theory of quantum meruit. Recovery under quantum meruit requires that: (1) a valuable service was rendered or materials furnished, (2) for the person sought to be charged, (3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him, and (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Prairie Valley I.S.D. v. Sawyer, 665 S.W.2d 606, 610 (Tex.App.1984, writ ref'd n.r.e.). Appellant is correct in saying that appellees' payment for the installation of improvements into the condominium did not carry with it the reasonable expectation that appellees would be paid by appellant for the cost of those improvements. It is true that the improvements were for the benefit of the appellees and not for the benefit of appellant. Thus, quantum meruit is not applicable in this case. After a careful reading of the record, however, we are compelled to affirm the judgment of the trial court.

In their first amended original petition, it is uncontroverted that appellees pleaded, among other things, that appellant committed a breach of contract. For their claims against appellant, of which breach of contract was a part, appellees pleaded damages flowing from the acts of appellant in failing to close as required by the contract. Our reading of the statement of facts and the trial court's findings of fact supports a finding of breach of contract. The trial court's findings state, among other things, that: (1) appellees were ready, willing and able to close the condominium sale at a scheduled closing on August 3, 1983; (2) appellees took all...