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Contracts No. 04-02-00497-CV, 5/7/2003. Click here for the full text of this decision FACTS: The appellant, Lawrence DiMiceli, appeals a judgment in favor of Affordable Pool Maintenance Inc. A jury found that DiMiceli breached the parties’ agreement for the renovation and repair of DiMiceli’s swimming pool and also found that APM had performed compensable work to the benefit of DiMiceli. HOLDING: Affirmed as modified. As a general rule, “a plaintiff who seeks to recover the reasonable value of services rendered or materials supplied will be permitted to recover in quantum meruitonly when there is no express contract covering those services or materials.” Truly v. Austin, 744 S.W.2d 934 (Tex. 1988). There is no dispute that a written contract exists. Thus, the existence of a contract bars APM’s recovery on quantum meruitunless an applicable exception exists. A plaintiff may recover on the theory of quantum meruitwhere an express contract exists when a plaintiff has partially performed an express contract but, because of the defendant’s breach, the plaintiff is prevented from completing the contract. The evidence, in light of the jury’s finding that APM did not breach the agreement, establishes that APM completed the work required under the contract. Therefore, APM is precluded from arguing that it was prevented from completing the contract. APM cannot recover on the theory of quantum meruiton the basis of partial performance. DiMiceli also argues that there is no evidence to establish that APM provided him with goods and services that were not covered by the service contract. The existence of an express contract does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted that are not covered by the contract. Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80 (Tex. 1976), overruled on other grounds by Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989). APM contends the Aug. 20, 1999, invoice reflects extra-contractual goods and services provided to DiMiceli. The invoice contains handwritten notes stating “bypassed heater,” “set chems,” and “clean pool 2x.” Each of these notes is followed with the initials “N/C.” Montwill specifically testified that these notes referenced the extra-contractual services APM provided. However, he also testified that APM provided these services at no charge to DiMiceli. Montwill did not specifically testify that the other services listed on the invoice were extra-contractual. On the contrary, Montwill treated the invoice as the balance owed under the contract. APM fails to point to other evidence in support of the proposition that it provided additional goods and services outside the contract. Accordingly, APM cannot recover on the theory of quantum meruitbased upon extra-contractual services. DiMiceli contends that the evidence is factually insufficient to support the trial court’s award of attorney’s fees in the amount of $12,500 for trial and $4,000 for appeal. Chapter 38 of the Texas Civil Practice and Remedies Code allows for the recovery of attorney’s fees for a valid quantum meruitclaim or breach of contract claim. In awarding attorney’s fees in this case, the jury was asked what amount would be a reasonable fee for the necessary services of APM’s attorney for preparation of trial and appeal. The jury found $12,500 to be a reasonable amount for attorney’s fees for trial and $4,000 for appeal. APM’s trial counsel, Alex Katzman, testified on the first day of trial that he had worked approximately 98.6 hours on the case and billed at a rate of $125 per hour. At this rate, APM incurred attorney’s fees,”through the end of the day,” of $12,325. Katzman also testified that in the event APM was successful, $3,500 would be the usual and customary fee for taking the case on appeal. DiMiceli’s counsel, Robert Dahl, also testified. Dahl testified that a reasonable award of attorney’s fees on appeal would be $4,000. The trial court resumed the next day with closing arguments, the charge conference and jury deliberations. The record reflects that Katzman participated in the charge conference and provided closing arguments. Trial concluded the day after Katzman testified. Therefore, Katzman engaged in additional work beyond the time he testified, and the jury knew this when they deliberated. The evidence is sufficient to support the sum of $12,500 found by the jury to be a reasonable attorney’s fee. Additionally, the evidence is factually sufficient to support the jury’s award of appellate attorney’s fees. Katzman testified that in the event the case was appealed, the usual and customary fee would be $3,500. However, the jury also could have considered Dahl’s testimony that $4,000 would be a reasonable appellate fee. The court holds the evidence is sufficient to support the jury’s award of trial and appellate attorney’s fees. OPINION: Stone, J.; L�pez, Stone and Duncan, JJ.

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