Opinion issued October 29, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00798-CV ——————————— AMERICAN JEREH INTERNATIONAL CORP., Appellant V. RONALD CLARKE, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2020-68829
MEMORANDUM OPINION
Appellant, American Jereh International Corp. (“American Jereh”),
challenges the trial court’s judgment rendered, after a jury trial, in favor of appellee,
Ronald Clarke, in Clarke’s suit against American Jereh for breach of contract,
promissory estoppel, and quantum meruit. In three issues, American Jereh contends that the trial court erred in rendering judgment in favor of Clarke on his
breach-of-contract claim.
We reverse and remand.
Background
In his second amended petition, Clarke alleged that American Jereh was “a
global developer and manufacturer of high-end petroleum equipment.” According
to Clarke, he was well-known to American Jereh as well as “Jereh Global,” Yantai
Jereh Petroleum Equipment & Technologies Co., Ltd. (“Yantai Jereh”), and other
associated businesses.
Clarke further alleged that in 2017, American Jereh wanted to enter business
discussions with BJ Services, LLC (“BJ Services”), a Houston, Texas “based oilfield
fracturing services provider, to negotiate the sale of fracturing equipment produced
by [Yantai Jereh] to BJ Services.” But American Jereh had been unsuccessful in its
attempts to contact BJ services to engage in business discussions. Thus, in February
2017, American Jereh hired Clarke as a consultant “to assist in making contact with
BJ [S]ervices and develop[ing] a business relationship.” As consideration for his
services, American Jereh promised Clarke a five percent commission “on sales if an
agreement was entered into to purchase” equipment.
According to Clarke, he initiated discussions with BJ Services on behalf of
American Jereh “by using his professional relationships, wealth of experience in the
2 industry and personal contacts.” “After garnering the interest of BJ Services, Clarke
provided [American] Jereh with valuable business consultant services and advice,
including professional strategic information and how to best negotiate a business
collaboration agreement with BJ Servicers.” Further, Clarke arranged a meeting
between American Jereh and top-level members of BJ Services. Clarke alleged that
as a direct result of his consultant services, a business relationship was formed
between American Jereh and BJ Services and “a significant contract was signed
between the parties.” Specifically, American Jereh entered into an agreement with
BJ Energy Solutions, LLC and was paid at least $24 million “from the efforts of
Clarke’s consulting services.” Yet, American Jereh did not compensate Clarke as it
had agreed to do.
Clarke brought claims against American Jereh for breach of contract,
promissory estoppel, and quantum meruit. As to his breach-of-contract claim,
Clarke alleged that he and American Jereh had entered into a valid and enforceable
agreement, he performed his obligations under the agreement, American Jereh
breached the agreement by failing to compensate him for his consulting services,
and the breach caused significant injury to him. Clarke requested actual damages,
attorney’s fees, and pre- and post-judgment interest.
American Jereh answered, generally denying the allegations in Clarke’s
petition and asserting certain defenses, including the statute of frauds.
3 At trial, Clarke testified that he was in independent international business
consultant. While working as a consultant, Clarke did not always sign written
agreements with the clients for whom he was providing services.
According to Clarke, in 2013, he was approached by Jason Gao, who told him
that the Jereh Group, the parent company of American Jereh and Jason Oil & Gas,
as well as others, wanted to build a factory in Yantai, China “to make coil tubing,
steel coil tubing products.”1 Related to that project of “putting [a] factory in place,”
Clarke signed a consulting agreement on May 8, 2013 (the “May 8, 2013
agreement”)2 with Jason Oil & Gas, a wholly-owned subsidiary of the Jereh Group.
The May 8, 2013 agreement provided that Jason Oil & Gas would pay Clarke
$250,000 for his services, which were specified in the agreement, according to a
certain fee structure, which was also specified in the agreement. The term of the
May 8, 2013 agreement was three years, and the agreement specified the points in
time when Clarke would be paid. The May 8, 2013 agreement did not provide that
Clarke would be paid a commission because it was not a contract where he was
“selling product that [he] would earn commission on.”3
1 According to Clarke, Gao was the manager of Jason Oil & Gas. 2 A copy of the May 8, 2013 agreement was admitted into evidence at trial. 3 Clarke noted that he had four written contracts with Jason Oil & Gas and all agreements were required to be in writing.
4 Clarke further testified that in 2014, Gao introduced him to Chengcheng Yu,
who Clarke believed was a manager at American Jereh.4 Clarke met Yu at an office
on Miller Road in Houston.5 Later, Clarke met with Yu in China after she asked him
to visit with the chairman of Jereh Group. The chairman asked Clarke to “use [his]
influence” to help the company “get back in [the] good graces” of certain
professional organizations. Clarke agreed to do so voluntarily and without payment.
The chairman also told Clarke: “You go around the world, if you see
opportunities, let us know.” And Clarke told him that he knew about an opportunity
with a company in Russia. Clarke said: “Let me go talk to them and see if they’re
interested in the equipment.” The chairman told Yu to put “something together” and
told Clarke that he was “in charge of it” and would be paid a commission. Yu then,
in 2014, prepared an agreement, which was never signed. That agreement, titled
“Cooperation Agreement” (the “2014 Cooperation Agreement”),6 was to be between
Clarke and Yantai Jereh. It described Yantai Jereh as “a worldwide supplier in
providing integrated solutions of oilfield equipment and services for oil and gas
drilling, well intervention, well completion, natural gas transportation, natural gas
4 Clarke stated that he always believed that Yu was a “senior person at American Jereh” even though “[t]here were several different iterations of her position from time to time.” 5 Clarke testified that the sign outside of the Miller Road office said “Jereh.” 6 A copy of the 2014 Cooperation Agreement was admitted into evidence at trial.
5 liquefaction, [and] environmental management to the oil and gas industry” and stated
that Clarke would assist Yantai Jereh in establishing business relationships with
customers and supplying equipment to customers. The 2014 Cooperation
Agreement also listed Yantai Jereh’s and Clarke’s respective obligations. Notably,
if Yantai Jereh was “successfully awarded” a contract “through [a] bid or direct
negotiation with [the] direct assistance” of Clarke and a contract was “formally
signed,” then Clarke was to receive a three percent commission “of the contract
value.” Clarke’s commission would be due and payable within fifteen days of the
day on which Yantai Jereh received payment from its customer. The 2014
Cooperation Agreement stated that it would be valid for three years.
Clarke stated that he received the 2014 Cooperation Agreement from Yu,
although it was not signed. Clarke was not involved in the preparation of the 2014
Cooperation Agreement, but he reviewed it. Clarke and Yu agreed that he would
receive a three percent commission. According to Clarke, Yu was designated by the
chairman to be his “go-to person for anything related to the[] business,” and Clark
believed that Yu had the authority to enter into agreements with him and negotiate
with him about his commission. Clarke testified that going forward, in his dealings
with the Jereh Group, the 2014 Cooperation Agreement became a “template,” but it
might have been amended or changed “here or there.”
6 In November 2016, Clarke informed Yu of an opportunity in Ukraine with a
company that “was going to put a bid out for [thirty] drilling rigs.” Clarke sent Yu
an email asking if she had heard about the opportunity. Clarke also informed Yu
that they “need[ed] an agreement in place . . . before [he] d[id] any more work,”
because he did not want to be “cut . . . out.” In response to Clark’s email, Yu told
Clarke that the Jereh Group was already aware of the opportunity.
Clarke further testified that in November 2016, Yu was “representing her
position” to be the regional director for Jereh Group USA, and her office was still
located on Miller Road in Houston. Clarke believed that Jereh Group USA was
“American Jereh” and that Yu primarily worked in Houston.
As to his breach-of-contract claim, Clarke explained that he had an oral
agreement with American Jereh. According to Clarke, in January 2017, he met with
Yu at the Miller Road office. Yu told Clarke: “I need help. I need help to introduce
our product to BJ Services and hopefully others, but BJ Services in particular,
because we cannot even get a phone call returned, e-mail returned, a meeting,
nothing. It’s as if we don’t exist. Can you help me?” Clarke told Yu that he could
help, but he said that he would need a few days to think about “the best way
forward.”
Clarke testified that he knew that the chief executive officer (“CEO”) for BJ
Services “had a run-in with Jereh in Canada the previous year” and the CEO “had a
7 negative perception of Jereh.” Thus, Clarke could not simply call BJ Services’s
CEO and say: “[L]et’s get together” and “[t]alk about this.” Instead, Clarke got in
touch with Marc Allcorn, a senior executive at BJ Services, to talk about “the
possibilities of . . . establishing some kind of relationship” so that products could be
sold to BJ Services. Clarke believed that there were two opportunities to take
advantage of: (1) American Jereh could “collaborate in repairing and maintaining
[BJ Services’s] existing equipment” and (2) American Jereh could provide BJ
Services with “new technology.” After Allcorn thought about it, at the beginning of
February 2017, he called Clarke and suggested a dinner with executives from both
companies.
On February 3, 2017, Clarke emailed Yu suggesting a “dinner with BJ people”
the following week. In his email, Clarke asked what the “arrangement” for his
commission would be because he and Yu needed to “come to some agreement on
that.” When Clarke did not hear back from Yu, he emailed her again on February 4,
2017, explaining that if they could “make a deal together” then he would set up the
meeting with BJ Services for February 8, 2017. On February 7, 2017, Clarke sent
Yu another email, with the subject line: “Draft Agreement.” In the email, Clarke
stated: “Please see attached. It is a draft and you can make [a] counter proposal.”
Clarke testified that he had “cut and paste[d]” the 2017 proposed draft agreement
from the 2014 Cooperation Agreement but suggested that he receive a five percent
8 commission7 this time. Otherwise, Clarke’s 2017 proposed draft agreement was
identical to the 2014 Cooperation Agreement that Yu had sent him, “[e]xcept for the
appendix.” According to Clarke, he sent the 2017 proposed draft agreement “to
remind [Yu] of how [they had been] doing things.” As far as Clarke was concerned
though, “an agreement was in place,” just “the commission rate had to be agreed to”
as well as “a few [other] things” like what law applied and the name of the company
Clarke was signing the agreement with.8 Appendix A of the 2017 proposed draft
agreement listed “BJ Services, Tomball, Texas USA” as “Customers and/or
Projects.” Clarke noted that he never got a response to his 2017 proposed draft
agreement.
Before the dinner on February 8, 2017, Yu sent Clarke an email thanking him
for organizing the dinner with BJ Services and indicating who would be attending
on behalf of her company. In her email, Yu listed herself as both the “Regional
Director of Jereh North America” and as the “Regional Director” of “Jereh
Group-USA.” Clarke testified that he believed that Jereh North America was the
same as American Jereh, but he also stated that Yu never told him that she worked
7 Clarke testified that a five percent commission was reasonable. 8 In contrast, Clarke also testified that the 2017 proposed draft agreement was a “template for an agreement” and “some changes” may have been required. He also stated that he had no written agreement with American Jereh related to his consultation efforts regarding BJ Services. And the 2017 proposed draft agreement was “a proposal.” Further, according to Clarke, American Jereh was not listed as a party to the 2017 proposed draft agreement.
9 for American Jereh, However, based on Yu’s email, Clarke also believed that Yu
was bringing “top level people on behalf of American Jereh to” the dinner with BJ
Services.
On February 8, 2017, Clarke and Yu exchanged emails, with Clarke providing
Yu with the seating arrangement and stating: “If we are to be successful with BJ
[Services] we need to offer some kind of partnership. This could involve stocking
parts at agreed levels or some other way to support each other.” 9 Clarke sent Yu
another email on February 8, 2017, before the dinner, discussing his strategy for
American Jereh’s business going forward. He testified that this email was a portion
of his consulting work in which he was advising American Jereh on how to establish
a relationship with BJ Services.10
Clarke further testified that the dinner took place on February 8, 2017.
Landon Vredeveld, director of operations support, Allcorn, director of learning and
knowledge management, Tony Yeung, manager of engineering, and Andres
Alvarez, manager of electronics and controls, attended on behalf of BJ Services. The
dinner lasted about two and a half hours. According to Clarke, Yu was “most
interested” in speaking with the individuals from BJ Services “because she was
9 Clarke testified that he believed this email communication was part of the consulting services he was providing to American Jereh. 10 But Clarke also testified that he did not expect to get paid for any work he did between January 2017 and the dinner on February 8, 2017.
10 responsible for American Jereh” and American Jereh “was going to be making the
products or supplying the products through their Yantai operation.”
At the end of the dinner, when everyone was “kind of dispersing” and “saying
[their] goodbyes,” Clarke said to Yu: “Are you good with [five] percent?” And Yu
responded: “Yes, I’m good.” They did not discuss anything else or any other terms
of an agreement that night though.11 Based on Yu’s statements, Clarke believed that
they had a finalized oral agreement. According to Clarke, February 8, 2017 was the
date that he and American Jereh entered into an oral agreement, although the only
term they had agreed to that night was his five percent commission.12 Clarke
admitted that Yu, in her deposition testimony, did not agree that there was an oral
agreement with Clarke on February 8, 2017.13
After the February 8, 2017 dinner, Clarke spoke with Allcorn, who stated that
BJ Services was “pretty impressed” and “wanted to know more.” According to
Allcorn, BJ Services wished “to follow up with some more information.” Yu also
11 As Clarke explained, he was “not going to sit down and go through a contract in a parking lot.” 12 Clarke also testified that the oral agreement made on February 8, 2017 was for a “[five] percent commission” and the rest of the agreement was “pre-ordained.” And according to Clarke, Yu knew the rest of the agreement was “in line” with the 2014 Cooperation Agreement. 13 According to Clarke, under the oral agreement, he was responsible for “introduc[ing] and warm[ing] up and de-ic[ing] the relationship . . . with the intent of supplying equipment.”
11 felt that the dinner went well. Clarke explained that the ultimate goal was for “an
environment [to develop] where Jereh would be able to sell its products to BJ
Services.” Clarke felt that after the dinner American Jereh and BJ Services could
enter an agreement regarding the purchase of equipment within twelve months. He
expected that a contract between BJ Services and American Jereh could be
negotiated in a couple of months, and that he could be paid for his consulting services
within nine or ten months or that it would take less than a year for American Jereh
to pay him.
On February 9, 2017, Clarke sent an email to Yu providing his opinion and
seeking to “reinforce[] . . . that simple transactions between a buyer and [a]
seller . . . ha[d] come to an end.” Clarke hoped that Yu would find his opinions
helpful. In response, on February 13, 2017, Yu sent Clarke an email thanking him
for “arranging the meeting between Jereh and BJ [Services].” She also informed
Clarke that she was “working on” his consulting agreement, but she needed to speak
with Max Liu14 and she would have to “get . . . back” to him about a consulting
agreement. Clarke believed this to mean that Yu would “just inform” Liu about the
oral agreement that he and Yu had purportedly finalized at the end of the dinner on
14 Clarke stated that Liu became the president of American Jereh in March 2017. Yu later testified that in February 2017, Liu was the president of Jereh North America.
12 February 8, 2017.15 According to Clarke, he and the Jereh Group did not typically
sign written agreements when he provided consulting services.
As to the relationship that formed between BJ Services and, as Clarke alleged,
American Jereh, Clarke stated that he believed that “everything stemmed from th[e]
first de-icing or warm-up meeting” in February 2017 that he had organized. Clarke
testified that on November 20, 2019, more than two years later, “BJ Services and
American Jereh entered into a sales contract” (the “November 2019 sales contract”).
Under the November 2019 sales contract, BJ Services agreed to pay American Jereh
$24 million. In Clarke’s opinion, this was a “tremendous contract for Jereh” and “a
huge, huge breakthrough into the US market.” Clarke became aware that a contract
had been formed between American Jereh and BJ Services because “[t]here were
several newspaper articles, magazine articles, statements from BJ Services, press
relations, things like th[at].” Clarke noted that he had no direct role in “any of the
negotiations about the specific contents of” the November 2019 sales contract but
stated that his “involvement was setting the ball rolling” in 2017. He did not know
about the November 2019 sales contract until he read about it. Clarke acknowledged
that it was American Jereh’s position that the November 2019 sales contract was
initiated by “a third-party consultant named Lyoid Fussell.”
15 Clarke testified that in his opinion Yu had more authority than Liu.
13 A copy of the November 2019 sales contract was admitted into evidence. It
stated that it was between Yantai Jereh, “for itself and on behalf of American Jereh,”
and BJ Services. Under sale contract, BJ Services agreed to buy a “[f]leet” from
Yantai Jereh and American Jereh for $24 million.16 The November 2019 sales
contract was signed by the president and CEO of BJ Services, Liu, the president of
American Jereh, and by the second vice president of Yantai Jereh. Clarke testified
that BJ Services paid American Jereh $25.6 million pursuant to the November 2019
sales contract. Clarke believed that he was owed $1.26 million based on the
November 2019 sales contract amount, and he had expected to receive that money
fifteen days after American Jereh was paid.
On September 15, 2020, Clarke sent an email to Yu, stating that he was
“delighted to hear that, as a result of the meeting [he had] arranged between Jereh
and BJ [Services], there ha[d] . . . been a large volume of equipment delivered to the
USA.” Clarke requested “payment of the 5% commission” that he believed he was
owed from American Jereh. Clarke did not receive a response to his September 15,
2020 email. On September 17, 2020, Clarke sent Yu another email, stating: “Can
you please confirm you received my e-mail of 15th September? . . . I am anxious to
cement our financial arrangements regarding the equipment developed as a result of
the relationship started at the dinner meeting in Houston some time ago with BJ
16 According to Clarke, this amount was amended to $25.6 million.
14 [Services].” At trial, Clarke explained that he meant that they needed to “figure out
how th[e] money [was] going to change hands; which banks [were] going to [be]
use[d]; who[] [was] going to do it; [was] it going to come from China; [was] it going
to come from America.”
On September 18, 2020, Clarke received an email from Liu, asking Clarke to
provide the agreement he had mentioned in his emails to Yu. Liu also stated: “At
that dinner, I remembered mentioning the business of transforming BJ’s old
equipment. After that dinner, for nearly two years, we and BJ [Services] never had
any business dealings. We did not have any relationship established. My judgment
was BJ [Services] denied us. . . . [W]e did not even have the opportunity to talk
about th[e] business again.” Liu signed the email as the president of Jereh Global
North America.
In summation, Clarke testified that he had an oral agreement with American
Jereh, and Yu had agreed to pay him a “[five] percent commission” of “sales” at the
February 8, 2017 dinner with BJ Services. Although Clarke also noted that the
definition of “sales” was not discussed on February 8, 2017, he thought he and Yu
both understood “that it was invoice sales.” The payment period was also not
discussed on February 8, 2017. “The specific thing [that they] discussed at the
dinner was the commission.”
15 According to Clarke, American Jereh ultimately did not compensate him for
his consulting services, which he thought were valuable services because the
November 2019 sales contract with BJ services “changed [the] landscape of
[American Jereh’s] business in the United States.” Clarke had expected to receive
five percent of American Jereh’s “revenues,” and he believed that American Jereh
had benefitted from his services. However, Clarke noted that he did not have any
direct involvement “with any business between any Jereh entity and BJ Services”
after March 2017. Clarke never had a written agreement with American Jereh.
Allcorn testified that he began working at BJ Services in November 2016 as
the integration project manager; and according to Allcorn, he was a leader and an
investor at BJ Services. After moving out of the integration project manager role,
Allcorn became the director of learning and development, which allowed him to be
involved in all leadership meetings.
Allcorn noted that he dealt with Clarke “remotely” in 1986 or 1987, and he
met Clarke in person in 1988, while working at Schlumberger. At the time, Clarke
had a lot of knowledge about coiled tubing, which was helpful to Allcorn. According
to Allcorn, at the time of trial, he had known Clarke for about thirty-five years.
16 As to “Jereh,”17 Allcorn explained that prior to January 2017, the CEO of BJ
Services, Warren Zemiak, had “a bad taste in [his] mouth” about Jereh. In January
2017, Clarke contacted Allcorn by telephone, telling Allcorn that “he was
representing Jereh and that they wanted to find a way to get access to the BJ
[Services] decision-maker so that they could sell equipment to BJ Services.” Clarke
further stated that Jereh had been “unsuccessful in kind of doing that with anybody,”
and Clarke said that he would help. Clarke then asked Allcorn if he “could arrange
a meeting for the Jereh people with BJ Services.” Clarke spoke to Allcorn about
how Jereh was “a wide[-]ranging manufacturer and that [it] had a lot of different
things that [it] could do,” and although Allcorn’s role was “not in procurement,
equipment selection or in the supply chain group,” he was an “investor and . . . a
leader” in BJ Services, and he thought “it was a great opportunity for [BJ Services]
to make sure that [it] gave Jereh a . . . very good look.” Clarke told Allcorn that he
had a contract with Jereh, so Allcorn agreed to set up a meeting. 18 Allcorn noted
that he spoke to Vredeveld, the head of manufacturing and sustaining, Yeung, an
engineering manager, and Alvarez, a lead person for control systems, who all
17 Allcorn testified that he only ever knew about the company named “Jereh”; he had not heard the name American Jereh before late 2020. 18 Allcorn stated that he had no knowledge of a February 2017 oral agreement between Clarke and American Jereh.
17 worked at BJ Services, and then he coordinated with Clarke to set a date for a
meeting with Jereh.
As to BJ Services’s objective in meeting with Jereh, Allcorn explained that
BJ Services wanted “to find out if Jereh could be a credible or viable supplier to BJ
Services.” Ultimately, Allcorn brought “key players from BJ [Services]” to a dinner
on February 8, 2017 with what Allcorn believed “to be the leadership from Jereh.”
At the dinner, there were introductions and Vredeveld and Yeung were sat “in the
best position to talk to the most senior person at Jereh.” According to Allcorn, during
the dinner, “there was a pitch . . . about what it was that Jereh could offer to BJ
Services.” Allcorn believed that the individuals representing Jereh at the dinner,
including Yu, Liu, and Jili Wang, the Vice Board Chairman, President of Jereh
Group, had the authority to negotiate a contract on behalf of Jereh. Allcorn also
believed that Jereh and BJ Services “continued their discussions after” the
February 8, 2017 dinner and that discussions occurred between BJ Services and
Jereh in 2018 and 2019. But Allcorn felt that he “had done what [he] needed to do
to put everybody together,” so he only monitored the relationship at leadership
meetings.
Allcorn further testified that ultimately BJ Services bought equipment from
Jereh. According to Allcorn, he heard about “what [BJ Services was] doing with
Jereh” at leadership meetings and he was asked to review a specific portion of the
18 November 2019 sales contract. Under the November 2019 sales contract, BJ
Services agreed to purchase “one fleet,” and there were provisions in the contract to
buy more. Copies of 2020 and 2021 invoices from American Jereh to BJ Services
were admitted into evidence at trial. The invoices listed Yu’s email address at Jereh
and stated that they were from Yu. It was Allcorn’s understanding that BJ Services
made payments to Jereh totally $25.6 million for the “fleet.”
As to the February 8, 2017 dinner specifically, Allcorn stated that the
November 2019 sales contract was “a result of the initial meeting that [BJ Services]
had in February” 2017 with Jereh. The dinner got BJ Services “to overcome th[e]
hurdle of [its] CEO having a bad taste in his mouth” about Jereh. And according to
Allcorn, Clarke was the person “who initiated it all.” However, he also stated that
Zemiak, the CEO of BJ Services, drove the negotiations of the November 2019 sales
contract and he was not at the February 8, 2017 dinner. Similarly, Dan Fu was
involved in the negotiations of the November 2019 sales contract, and he was not at
the February 8, 2017 dinner with Jereh.
Finally, Allcorn noted that in February 2017 he did not know that American
Jereh existed as a company; he only knew of Jereh. And none of the people at the
meeting represented that they were from American Jereh. Allcorn also noted that it
took more than a year from the February 8, 2017 dinner for BJ Services to enter into
the November 2019 sales contract with Jereh.
19 Yu testified that she began working for American Jereh in May 2022 and she
did not work at American Jereh before then. American Jereh was an “oil field
equipment manufacturer” and it “suppl[ied] . . . oil field equipment like fracking
equipment for . . . oil field service companies.” At American Jereh, Yu served as
the key account director, and she worked out of the Miller Road office in Houston.
Yu further testified that she was not employed by American Jereh in 2017,
and in 2017, she did not tell Clarke that she was employed by American Jereh. In
2017, Yu worked for Yantai Jereh, which operated out of China, as the regional
director for North America.19 Yantai Jereh was not the parent company of American
Jereh; it did not own American Jereh, and it did not control American Jereh.
According to Yu, in her role as regional director for North America, she was “in
charge [of] selling the equipment to the customer . . . [in] the region [that she was]
responsible for.” Jereh North America was a division of Yantai Jereh. The offices
for Yantai Jereh and Jereh North America were in China. However, if Yu needed to
have a local meeting in the United States, she could borrow a meeting room at the
Miller Road office.
As to Clarke, Yu explained that she met Clarke at an oil and gas show
sometime before 2017. Later, she and Clarke talked about “what kind of companies
19 Yu explained that she worked at Yantai Jereh from September 2009 until April 2022.
20 he c[ould] help to approach” Yu could not recall whether she asked Clarke “for help
with meeting BJ Services and selling . . . products.” Yu also could not recall
whether Clarke ever met with her at the Miller Road office. According to Yu, Clarke
knew that she worked for Yantai Jereh.
As to the origination of the February 8, 2017 dinner, Yu stated that Clarke
emailed her on February 2, 2017 and suggested having a dinner with representatives
from BJ Services. Yu had not asked Clarke to set up a dinner with anyone from BJ
Services, but she did want Clarke “to help [her] with BJ Services if he could.” In
his email, Clarke asked Yu: “[W]hat will our arrangement be regarding
commission?” But Yu never responded to Clarke’s question about a commission
because she did not have “authorization to do so.” According to Yu, she had
previously told Clarke that there was an approval process before a commission could
be agreed to and she could not make such an agreement on her own.
On February 3, 2017, Clarke again emailed Yu and told her: “[I]f we can make
a deal together[,] we can have dinner with BJ [Services] on February 8th.” Yu
agreed to the dinner with BJ Services on February 8, 2017, but she explained that
she did not agree to pay Clarke for just setting up the dinner. And if Clarke had
demanded that she “pay [him]” in order to go to the dinner, she would not have
agreed to that demand.
21 Yu also testified that on February 7, 2017, Clarke sent her a proposed draft of
an agreement by email. The 2017 proposed draft agreement was between Clarke
and Yantai Jereh, and it included “a whole list of things that . . . Clarke [was]
proposing he would have to do to earn his commission.” But Clarke did not
complete anything on the list, and Yu did not expect him to because she had no
agreement with him to do so. Yu noted that the 2017 proposed draft agreement did
not include standard terms that Yu had agreed to in other agreements with Clarke.
According to Yu, she did not respond to Clarke’s February 7, 2017 email containing
the 2017 proposed draft agreement before the dinner with BJ Services on February
8, 2017.
At the February 8, 2017 dinner, Yu and others spoke to the BJ Services
representatives about Yantai Jereh’s capabilities. But Yu did not receive any
business cards from the BJ Services representatives. BJ Services did not seem
“really interested in the capability [that Yantai Jereh] proposed.” At the February 8,
2017 dinner, Yu did not discuss a consulting agreement with Clarke, and no one who
worked for American Jereh attended the February 8, 2017 dinner.20 Yu also testified
that she did not negotiate a consulting agreement with Clarke after the dinner in the
parking lot, and she did not discuss a five percent commission for any sales to BJ
20 Yu explained that Liu, president of Jereh North America, Wang, vice board chairman of president of Jereh Group, and Sharq Li, a products manager, attended the February 8, 2017 dinner. No one from American Jereh attended the dinner.
22 Services on the night of February 8, 2017. At the time the February 8, 2017 dinner
took place, American Jereh did not have any capability to “manufactur[e] a frac
fleet.”
Additionally, Yu stated that she never agreed on behalf of any entity to pay
Clarke a five percent commission at any time. And she did not agree to pay on behalf
of American Jereh or on behalf of Yantai Jereh to pay Clarke a five percent
commission. According to Yu, she made no agreement with Clarke. After the
February 8, 2017 dinner, Yu told Clarke that they had not reached an agreement and
that she could not enter into a consulting agreement with him until she got her
supervisor, Liu, involved.21 Yu wanted to make sure Clarke knew that they did not
have any agreement and that she needed Liu to make the final decision regarding a
consulting agreement. Ultimately, Liu decided “not to go with . . . Clarke . . . for the
consulting agreement,” so Yu never returned the 2017 proposed draft agreement to
Clarke. According to Yu, Clarke “made a proposal, Yantai Jereh . . . considered it,
and just decided not to go into business with him.” Yu did not hear from Clarke
again about his 2017 proposed draft agreement or any agreement between her and
Clarke until September 15, 2020.22
21 Yu noted that Liu was president of Jereh North America, a part of Yantai Jereh, at the time and was her boss. According to Yu, Liu never worked for American Jereh. 22 On September 17, 2020, Clarke emailed Yu stating that he was “anxious to cement [their] financial arrangements . . . regarding the equipment development,” which to 23 Yu also testified that neither Yantai Jereh nor American Jereh ever did any
business with the BJ Services representatives who attended the February 8, 2017
dinner. Following the February 8, 2017 dinner, BJ Services was not interested in
working with Yantai Jereh. And “the whole concept of business with BJ Services
went cold from” March 2017 until around December 2018. Yu considered the
February 8, 2017 dinner to be a “total failure.” Yu noted that she did speak with
Clarke in March 2017 about BJ Services, and Clarke sent a letter to Yu that he
proposed Wang send to Vredeveld at BJ Services. Although Wang ultimately sent
Vredeveld a letter, she did not work for American Jereh and Yantai Jereh received
no response to Wang’s letter.
In December 2018, Yu received a call from Fussell, who was a third-party
consultant for Yantai Jereh. Fussell told Yu that he had a contact at BJ Services
named Samir Seth, who was an independent consultant for BJ Services. Yu
subsequently met with Seth and agreed to send him some information to try to start
some business with BJ Services related to the selling of an “electric turbine frac
fleet” to BJ Services. This was the genesis of the November 2019 sales contract.
According to Yu, negotiations with BJ Services continued for months, and Yu
testified as to several communications between herself, Seth, and Fu, who worked
Yu indicated that Clarke knew no agreement between them had ever been “cement[ed].”
24 for BJ Services, that ultimately resulted in the November 2019 sales contract. Yu
explained that on November 20, 2019, BJ Services and Yantai Jereh, “for itself” and
on behalf of American Jereh, entered the November 2019 sales contract. But Clarke
was not directly involved with the November 2019 sales contract in any way nor was
Allcorn from BJ Services. According to Yu, Clarke was making a false claim that
she ever entered into an agreement with him.
Fu testified that he worked for BJ Energy Solutions, but he previously worked
for BJ Services beginning in January 2017 as the director of technology. At that
time, Fu was “responsible for . . . software and chemistry.” In 2017, he was not
involved with the purchase and sale of equipment by BJ Services.
According to Fu, he was a member of the team at BJ Services who negotiated
the November 2019 sales contract. As to the origination of the November 2019 sales
contract, Fu stated that it began in December 2018 and early 2019 with Seth, whom
BJ Services had hired as a consultant to gather information about a potential “new
frac fleet.” Fu, Seth, and Zemiak were the BJ Services’s representatives involved at
the “inception point.” Fu did not work on any projects with Jereh until December
2018.
In negotiating the November 2019 sales contract, Fu explained that he mainly
dealt with Yu and Liu from Jereh. He believed that those negotiations involved
people from American Jereh and Yantai Jereh.
25 Fussell testified in late 2018, American Jereh hired him as a “contract sales
consultant.” Before working as a consultant for American Jereh though, Fussell
signed a written consulting agreement with American Jereh. Fussell explained that
the agreement provided that he would receive “a commission based on an actual
transaction taking place”; “if [he] . . . brought an opportunity to the table that [went]
all the way to a contract signing and then a payment was issued, that[] [would be]
when [he] would . . . qualif[y] for a commission.” Fussell further noted that to be
paid, he would need “to find a customer that Jereh was not already communicating
with” and provide that customer with information about the “direct drive turbine
equipment [or] electric frac equipment” that Jereh “want[ed] to sell.” Fussell would
also need to “advance [the customer] to the point where [it] w[as] interested in doing
a field trial” because it was “Jereh’s hope . . . that by executing the field
trial, . . . [the] customer would then purchase an entire fleet or purchase additional
equipment.”
In late 2018, Fussell began reaching out to acquaintances and customers in the
industry and “asked if they were looking [at certain] types of equipment,”
specifically, “[d]irect drive turbine equipment and electric frac equipment,” “so that
[he] could notify them of the offerings that Jereh had.” Fussell reached out to Adam
Brazeal, whom Fussell had known for years and who worked for BJ Services.
Brazeal put Fussell in touch with Seth, who BJ Services had hired to compare
26 “electric frac and direct drive turbine technology” and evaluate various sellers.
Fussell had multiple telephone calls and conference calls with Seth and gave
multiple presentations. In the end, Seth appeared to be most interested in “direct
drive turbine [technology].” Once BJ Services was ready to enter commercial
discussions with American Jereh, Fussell contacted Yu so that BJ Services and Jereh
could discuss and begin negotiating a contract. Sometime during the first part of
2019, Fussell “turned over the information” to Yu.
According to Fussell, BJ Services and American Jereh ultimately entered the
November 2019 sales contract, and Fussell earned his commission. However,
instead of accepting his commission, Fussell used his “commission as a way to
negotiate for full-time employment” with American Jereh.
As to Clarke, Fussell testified that Clarke was “trying to be paid for [his]
work.” Clarke did not have any involvement with the origination or negotiation of
the November 2019 sales contract. The November 2019 sales contract related to the
purchasing of direct drive turbine equipment.
The jury found in favor of Clarke on his breach-of-contract,
promissory-estoppel, and quantum-meruit claims. As to his breach-of-contract
claim, the jury found that “Clarke and American Jereh [had] agree[d] that American
Jereh would pay Clarke for consulting services for the contract entered into between
American Jereh and BJ Services”; American Jereh failed to comply with the
27 agreement; and American Jereh’s failure to comply with the agreement was not
excused. The jury awarded Clarke $1,280,000 in damages on his breach-of-contract
claim.
As to his promissory-estoppel claim, the jury found that Clarke had
“substantially rel[ied] to his detriment on American Jereh’s promise” and the
“reliance [was] foreseeable by American Jereh.” But the jury did not award Clarke
any damages related to his promissory-estoppel claim.
As to his quantum-meruit claim, the jury found that Clarke had “perform[ed]
compensable work for American Jereh for which he was not compensated,” and it
awarded him $87,500 in damages on his quantum-meruit claim.
Clarke then filed a motion for judgment on the verdict and a motion for award
of attorney’s fees, electing to recover on his breach-of-contract claim and requesting
that the trial court award him $257,584.22 in attorney’s fees based on the jury’s
findings on Clarke’s breach-of-contract claim.23 The trial court entered judgment
based on the jury’s findings, awarding Clarke $1,280,000 on his breach-of-contract
claim and $257,584.22 in attorney’s fees, plus interest and court costs.
Breach of Contract
In its first and second issues, American Jereh argues that the trial court erred
in rendering judgment in favor of Clarke on his breach-of-contract claim because the
23 See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001.
28 oral agreement on which Clarke relied was unenforceable as a matter of law as it did
not contain all essential terms and violated the statute of frauds.
Whether a contract is enforceable as a matter of law is a question that we
review de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994); W. Beach
Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 254 (Tex. App.—Austin 2002, no pet.);
Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied).
The existence of a valid contract an essential element of a breach-of-contract
claim. See Dupree v. Boniuk Interests, Ltd., 472 S.W.3d 355, 364 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (setting out elements of breach-of-contract claim).
Parties form a binding contract when the following elements are present: (1) an
offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting
of the minds; (4) each party’s consent to the terms; and (5) execution and delivery
of the contract with the intent that it be mutual and binding. Winchek v. Am. Express
Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.]
2007, no pet.); see also David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.
2008) (“A meeting of the minds is necessary to form a binding contract.”).
An enforceable and legally binding contract exists if it is sufficiently definite,
certain, and clear in its essential terms. Fort Worth Indep. Sch. Dist. v. City of Fort
Worth, 22 S.W.3d 831, 846 (Tex. 2000); T.O. Stanley Boot Co. v. Bank of El Paso,
29 847 S.W.2d 218, 221 (Tex. 1992). A binding agreement may exist when parties
agree on some terms sufficient to create a contract, leaving other provisions for later
negotiation. Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); Crisp Analytical Lab, L.L.C. v. Jakalam
Props., Ltd., 422 S.W.3d 85, 89 (Tex. App.—Dallas 2014, pet. denied). “When an
agreement leaves essential (or material) matters open for future negotiation and
those negotiations are unsuccessful, however, the agreement is not binding upon the
parties and merely constitutes an agreement to agree.” Stergiou, 438 S.W.3d at 744
(internal footnote and quotations omitted).
The question of what terms are essential to a contract is determined on a
contract-by-contract basis, depending on the subject matter of the contract at issue.
T.O. Stanley Boot Co., 847 S.W.2d at 221. The parties must have a meeting of the
minds and must communicate consent to the essential terms of the alleged
agreement, which is determined based on an objective standard of what the parties
said and did rather than on their subjective states of mind. Baroid Equip., Inc. v.
Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied); Angelou v. African Overseas Union, 33 S.W.3d 269, 279–80 (Tex. App.—
Houston [14th Dist.] 2000, no pet.).
Here, American Jereh argues that the February 8, 2017 oral agreement did not
contain all essential terms because Clarke relied on the discussion that he had with
30 Yu in the parking lot after the February 8, 2017 dinner to establish that he had an
oral agreement with American Jereh. And Clarke admits that the only thing he and
Yu discussed at that time was that he would receive a five percent commission “on
sales.” (Internal quotations omitted.) According to American Jereh, Clarke and Yu
did not discuss the “definition of sales,” the “timeline for payments on any of
the . . . commission-bearing sales,” Clarke’s duties under the oral agreement,
whether the oral agreement would be between Clarke and American Jereh, and “the
duration or scope of the [oral] agreement.” (Internal quotations omitted.)
At trial, Clarke testified that he had an oral agreement with American Jereh,
which he claimed was breached.24 According to Clarke, the oral agreement arose
out of a conversation between himself and Yu on February 8, 2017. Clarke testified
that at the end of the February 8, 2017 dinner with BJ Services, which both Clarke
and Yu attended, Clarke said to Yu: “Are you good with [five] percent?” And Yu
responded: “Yes, I’m good.” Clarke stated that February 8, 2017 was the date that
he and American Jereh entered into an oral agreement, but he admitted that the only
term they had agreed to that night was his five percent commission of “sales.”
Further, Clarke testified that he and Yu did not discuss the meaning of “sales” on
February 8, 2017, which Clarke admitted could mean “a bunch of different things.”
24 Clarke admitted that “there was never a written agreement” between himself and any Jereh entity.
31 And they also did not discuss the payment period. “The specific thing [that he and
Yu] discussed at [the February 8, 2017] dinner was the commission.” Clarke also
noted that Yu never told him that she worked for American Jereh—the Jereh entity
that he asserted he had an oral agreement with.
As noted above, a contract must be sufficiently definite in its terms to be
legally binding. T.O. Stanley Boot Co., 847 S.W.2d at 221. An “essential” term is
one that the parties reasonably regarded, at the time of contracting, as a vitally important ingredient in their bargain. Failure to fulfill such a promise, in other words, would seriously frustrate the expectations of one or more of the parties as to what would constitute sufficient performance of the contract as a whole.
Neeley v. Bankers Tr. Co. of Tex., 757 F.2d 621, 628 (5th Cir. 1985) (internal
quotations omitted); see also Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 485 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied). Several courts have interpreted
“essential” terms to include the names of the parties, the time of performance, the
price to be paid, the work to be done, and the service to be rendered. See Liberto v.
D.F. Stauffer Biscuit Co., 441 F.3d 318, 324 (5th Cir. 2006). Further, the basic
obligations of the parties should be clearly outlined. See Kirby Lake Dev., Ltd. v.
Clear Lake City Water Auth., 320 S.W.3d 829, 838–39 (Tex. 2010).
Here, the February 8, 2017 oral agreement, which Clarke asserts was the
contract that American Jereh breached, lacks clear, certain, and definite terms, which
are necessary for an enforceable contract. See Gannon v. Baker, 830 S.W.2d 706,
32 710 (Tex. App.—Houston [1st Dist.] 1992, writ denied). And it leaves the Court
unable to determine the obligations of the parties. See Weitzman v. Steinberg, 638
S.W.2d 171, 175 (Tex. App.—Dallas 1982, no writ). Notably, the “only thing” that
Clarke and Yu discussed after the February 8, 2017 dinner was whether she would
agree to a five percent commission of “sales.” See T.O. Stanley Boot Co., 847
S.W.2d at 221–22 (contract unenforceable when there was “evidence of only one
material element”). Clarke testified that he did not discuss any “other terms” with
Yu because he was “not going to sit down and go through a contract in a parking
lot.” Absent from the purported February 8, 2017 oral agreement was, among other
things, a “definition of sales,” a timeline for payments to Clarke, Clarke’s duties and
obligations under the agreement, the duration and scope of the agreement, and who
the parties to the agreement were. Essential terms cannot be retroactively added to
a contract “which the parties were unable to complete by mutual agreement.”
Weitzman, 638 S.W.2d at 175 (noting courts “cannot make contracts for the parties”
and “a jury [cannot] supply an essential term in the contract which the parties were
unable to complete by mutual agreement”); see also Soliman v. Goltz, No.
05-93-00008-CV, 1993 WL 402740, at *7 (Tex. App.—Dallas Oct. 6, 1993, no writ)
(not designated for publication) (“[C]ourts are without authority to supply missing
terms of a contract which the parties themselves had either not seen fit to place in
their agreement, or which they omitted to agree upon.”); Mooney v. Ingram, 547
33 S.W.2d 314, 317 (Tex. App.—Dallas 1977, writ ref’d n.r.e.) (where agreement
leaves essential term for later determination and it is never determined, no
enforceable contract exists).
Accordingly, we conclude that the February 8, 2017 oral agreement did not
constitute an enforceable contract because it lacked essential terms.
We note that at trial Clarke testified that although the February 8, 2017 oral
agreement only addressed a “[five] percent commission,” the rest of the agreement
was “pre-ordained.” And according to Clarke, Yu knew that the rest of their
agreement would be “in line” with the 2014 Cooperation Agreement. Clarke
testified that he and Yu “both knew that the agreement [they] agreed to was the same
agreement that [they] agreed to in 2014”—“[s]ame terms, same situation.”
However, although Clarke stated that he viewed the 2014 Cooperation Agreement
as a “template” for his later agreements with Jereh entities, he also testified that the
“template” would need to be amended or changed “here or there.” Thus, by his own
testimony, Clarke conceded that the 2014 Cooperation Agreement could not supply
the missing essential terms from the February 8, 2017 oral agreement because the
terms of the 2014 Cooperation Agreement would have to be amended or changed
“here or there.”
Further, even were we to presume, without deciding, that the February 8, 2017
oral agreement incorporated the terms from the 2014 Cooperation Agreement so that
34 Clarke could avoid his lack-of-essential-terms problem, we note that under the
statute of frauds, an agreement that “cannot be fully performed within one year is
not enforceable unless there is a writing signed by the party against which
enforcement is sought.”25 Westside Wrecker Serv., Inc. v. Skafi, 361 S.W.3d 153,
162 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); see TEX. BUS. & COM. CODE
ANN. § 26.01(a), (b)(6).
As to the 2014 Cooperation Agreement, Clarke testified that it was between
him and Yantai Jereh, and it stated that Clarke would assist Yantai Jereh in
establishing a business relationship with customers and supplying equipment to
customers. Under the 2014 Cooperation Agreement, if Yantai Jereh was
“successfully awarded” a contract “through [a] bid or direct negotiation with [the]
direct assistance” of Clarke and a contract was “formally signed,” then Clarke would
receive a three percent commission “of the contract value.” Clarke’s commission
would be due and payable within fifteen days of the day on which Yantai Jereh
received payment from its customer. The 2014 Cooperation Agreement stated that
it was valid for three years.
25 Whether an agreement falls within the statute of frauds is a question of law that we review de novo. See Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 426 (Tex. 2015); Holloway v. Dekkers, 380 S.W.3d 315, 321 (Tex. App.—Dallas 2012, no pet.).
35 The three-year term in the 2014 Cooperation Agreement was an essential term
which Clarke admittedly did not discuss, amend, or change in his discussion with
Yu after the February 8, 2017 dinner. And as such, according to Clarke’s own
testimony, the three-year term was meant to be carried over from the 2014
Cooperation Agreement to his February 8, 2017 oral agreement.
“A contract for performance that is intended to span a period of more than one
year falls within the statute of frauds . . . .” Westside Wrecker, 361 S.W.3d at 164.
Thus, Clarke’s February 8, 2017 oral agreement, which Clarke asserts American
Jereh breached, was intended to last for three years and was required to be in writing.
See Young v. Ward, 917 S.W.2d 506, 508 (Tex. App.—Waco 1996, no writ)
(explaining “[a]greements which demand performance at or for a specified amount
of time are easily determined by the court to fall or not fall under the” statute of
frauds); see, e.g., Gilliam v. Kouchoucos, 340 S.W.2d 27, 27–30 (Tex. 1960)
(employment contract for ten years clearly fell within statute of frauds); Ward v.
Sponseller, No. 09-19-00441-CV, 2021 WL 5498222, at *4 (Tex. App.—Beaumont
Nov. 24, 2021, no pet.) (mem. op.) (parties’ oral agreement “was not performable
within one year as the terms required [party] ‘to stay onboard for five years’”);
Holloway v. Dekkers, 380 S.W.3d 315, 321–22 (Tex. App.—Dallas 2012, no pet.)
(where parties’ oral agreement was for term that “plainly exceeded one year,” statute
of frauds applied and agreement was unenforceable). Because the February 8, 2017
36 oral agreement was not in writing, it is not enforceable under the statute of frauds.
See Royle v. Tyler Pipe Indus., Inc., 6 S.W.3d 593, 594 (Tex. App.—Tyler 1999,
Based on the foregoing, we conclude that the February 8, 2017 oral agreement
was unenforceable as a matter of law, and we hold that the trial court erred in
rendering judgment in favor of Clarke on his breach-of-contract claim against
American Jereh.
We sustain American Jereh’s first and second issues.
Attorney’s Fees
In its third issue, American Jereh argues that the trial court erred in awarding
Clarke attorney’s fees on his breach-of-contract claim because the February 8, 2017
oral agreement was unenforceable.
A party cannot recover attorney’s fees unless permitted by statute or contract.
Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999); Waldroff, 213
S.W.3d at 489. A party who prevails on a breach-of-contract claim and recovers
damages may recover his reasonable attorney’s fees under Texas Civil Practice and
Remedies Code 38.001. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001; MBM
Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 666 (Tex. 2009); LG Ins.
Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 640 (Tex. App.—Dallas 2012, pet.
denied). The availability of attorney’s fees under a particular statute is a question of
37 law for the court. Holland, 1 S.W.3d at 94; Alta Mesa Holdings, L.P. v. Ives, 488
S.W.3d 438, 453 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
Here, the trial court’s judgment stated that Clarke had “elected to recover
under [his] breach[-]of[-]contract claim” and it awarded him $1,280,000 in damages
on his breach-of-contract claim. It also awarded Clarke $257,548.22 in attorney’s
fees “pursuant to [s]ection 38.001 of the Texas Civil Practice and Remedies Code
for prevailing on his breach-of-contract claim.” On appeal, however, we have
concluded that the February 8, 2017 oral agreement, on which Clarke’s
breach-of-contract claim was based, was unenforceable as a matter of law. And we
have held that the trial court erred in rendering judgment in favor of Clarke on his
breach-of-contract claim against American Jereh. Because Clarke has not prevailed
on his breach-of-contract claim, he is not entitled to attorney’s fees under Texas Civil
Practice and Remedies Code 38.001. See, e.g., Wilson & Wilson Tax Servs., Inc. v.
Mohammed, 131 S.W.3d 231, 240 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(where appellate court concluded party could not prevail on breach-of-contract
claim, appellate court also reversed attorney’s fees award under Texas Civil Practice
and Remedies Code 38.001). Accordingly, we hold that the trial court erred in
awarding Clarke $257,548.22 in attorney’s fees “pursuant to [s]ection 38.001 of the
Texas Civil Practice and Remedies Code for prevailing on his breach-of-contract
claim.”
38 We sustain American Jereh’s third issue.
Conclusion
We reverse the judgment of the trial court to the extent that it awarded
damages and attorney’s fees to Clarke on his breach-of-contract claim. We render
judgment that Clarke take nothing on his breach-of-contract claim and his request
for attorney’s fees related to his breach-of-contract claim. Because Clarke may be
entitled to seek judgment on his alternative quantum-meruit claim, we remand the
case to the trial court for consideration of the jury’s alternative finding and Clarke’s
request for attorney’s fees related to his alterative quantum-meruit claim.26 See
Charlie Thomas Chevrolet, Ltd. v. Martinez, 590 S.W.3d 9, 20 (Tex. App.—Houston
[1st Dist.] 2019, no pet.); Landing Cmty. Improvement Ass’n v. Young, No.
01-15-00816-CV, 2018 WL 2305540, at *24 (Tex. App.—Houston [1st Dist.] May
22, 2018, pet. denied) (mem. op.).
26 Although the trial court entered judgment on the jury’s findings in favor of Clarke on his breach-of-contract claim, the jury also found in his favor on his quantum-meruit claim and awarded him damages in the amount of $87,500. When, as here, “a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to a judgment on the theory entitling him to the greatest or most favorable relief.” Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988); Strebel v. Wimberly, 371 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). “[A]n election by the prevailing party is not necessary” and that party “may seek recovery under an alternative theory if the judgment is reversed on appeal.” Boyce Iron Works, Inc., 747 S.W.2d at 787.
39 Julie Countiss Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.