R SYSTEMS, INC., Appellant and Cross-Appellee v. KPR, INC., Appellee and Cross-Appellant

Reversed and Rendered in part and Affirmed in part and Opinion filed December 5, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00263-CV
............................
R SYSTEMS, INC., Appellant and Cross-Appellee
V.
KPR, INC., Appellee and Cross-Appellant
 
.................................................................
On Appeal from the 14th District Court
Dallas County, Texas
Trial Court Cause No. 85-14370-A
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O P I N I O N
Before Chief Justice Enoch and Justices Stephens FN:1 and Bissett FN:2
Opinion By Justice Bissett
        This is an appeal from a judgment rendered following a jury trial in an action arising from the rendition of public relation services to a computer software company. The plaintiff, KPR, Inc. (KPR), filed suit against R Systems, Inc. (R Systems) for breach of contract, alleging that R Systems had failed to pay for the services rendered, and, in the alternative, pled a cause of action in quantum meruit. In defense, R. Systems alleged failure of a condition precedent, breach of contract, and unclean hands, and also filed a counterclaim for misrepresentation and breach of warranty under the Deceptive Trade Practices Act. KPR, in response, alleged that this counterclaim was brought in bad faith and for the purpose of harassment.
        The jury awarded damages to KPR under both quantum meruit and breach of contract. The trial court rendered judgment for KPR under quantum meruit, but reduced the damages awarded by the jury, and in addition, rendered judgment in favor of KPR for attorney's fees in the amount stipulated to by the parties, for pre-judgment interest and post-judgment interest. R Systems has appealed and KPR has presented cross-points.
        KPR is a public relations firm headquartered in Los Angeles, California. It specializes in the computer and electronics field and represents clients in California, Massachusetts, and Texas. Its president is David Kaye. R Systems is a computer software company doing business in Dallas, Texas. Its president is Bill Kiely. KPR and R Systems entered into a written contract pursuant to which KPR would provide public relations services to R Systems for one year, effective March 1, 1985. The contract was to renew automatically from year to year until cancelled by either party upon 90 days prior written notice.
        Paragraph 2 of the contract provided for three elements of compensation:
        (a)        $3,000.00 monthly service fee;
 
        (b)        direct expenses, at cost plus 20%; and
 
        (c)        unspecified "additional anticipated charges."
        The monthly service fee, the first element of compensation, was based on an estimate of the time to be expended by KPR on R Systems' public relations program. The services for this fee included the labor, research, and writing of news releases and editorial research, the development of an editorial opportunity database, and follow up on various "editorial opportunities," which involved a search for opportunities in various trade journals and other magazines for getting R Systems included in articles, special reports, and staff reports. The direct expenses, the second element of compensation, associated with these services included long distance telephone and facsimile charges, printing, postage, illustrations, entertainment, and supplies. They were billed at cost plus 20%, and could be charged in advance. The third element of compensation, the unspecified "additional anticipated charges," included all special projects outside of the basic service. They could be charged as a lump sum or on an hourly basis, but the contract required that KPR submit such charges to R Systems for its written approval. R Systems was not obligated to pay for any special project unless it had first approved it.
        The contract was signed on February 26, 1985, and KPR began invoicing R Systems on the first of each month, beginning March 1, 1985. It quickly became apparent, however, that the parties were going to operate on a more informal basis than required by the contract, because, although prior approval was not required for billing direct expenses, the parties verbally agreed that approval would be required if expenses exceeded $600.00 per month. The parties followed this verbal agreement, even though the contract provided that it could not be amended except in writing. The evidence reveals that the parties relied on verbal approvals for special projects rather than the written approvals required by the contract. The reason for this was that Mr. Kiely was extremely busy and traveled extensively, thereby preventing him from timely signing approval forms for a number of the special projects.
        In the trial court, R Systems alleged the failure to get these written approvals as the failure of a condition precedent. However, Mr. Kiely admitted that verbal approvals were given. He testified that sometimes he didn't get around to signing approval forms until well after a special project was completed, and further testified that sometimes he never received approval forms for projects he had orally agreed to. Mr. Allen Henderson, R. Systems' Vice-President at all times relevant to this appeal, testified that Mr. Kiely went over each invoice in detail, and never voiced a complaint except for two items. He further stated that the charges for these two items were deleted in response to Mr. Kiely's complaint. KPR did not attempt to collect those charges at trial.
        The first real problem that arose between the parties was R Systems' failure to timely pay the June 1, 1985 invoice. On July 18, 1985, a check for that invoice, in the amount of $14,529.32, was presented to KPR. It bounced. R Systems did not make good on that check until the following September. In the meantime, R Systems also failed to make any payment on the subsequent invoices for the months of July, August and until September 16, 1985. The reason given for this was that R Systems was experiencing cash flow problems. KPR continued to work despite these problems.
        On September 16, 1985, KPR received a letter from R Systems, dated September 12, 1985, which stated that it, R Systems, had terminated the contract. KPR was instructed to stop work immediately. Mr. Kaye then advised Mr. Kiely and R Systems' attorney, Mr. Tom Meyersieck, that the contract required 90 days advance written notice of termination, and offered to continue working for those 90 days. Mr. Meyersieck advised KPR that Mr. Kiely insisted that work stop immediately. At the time KPR stopped work, some articles then being worked on were left uncompleted. The invoices show that KPR charged R Systems only for the "work in progress" on these articles and did not charge them to complete the work.
        KPR, in paragraph III of its live petition, sued for a recovery of $17,061.27 as damages for breach of contract. In the alternative (in the event it was found that it breached the contract), KPR, in paragraph VI of its live petition, sued in quantum meruit to recover the reasonable value for work and services rendered to R Systems, which were knowingly and willingly accepted by it, and which were beneficial to it. KPR further alleged in its action to recover in quantum meruit that the reasonable value of the work and services so furnished and performed by it was $26,432.09.
        The jury, in its answers to the questions submitted to it, found:
        1.        R Systems did not fail to pay KPR for the public relations services in accordance with the written contract (Question 1);
 
        2.        KPR rendered public relations services to R Systems that R Systems knowingly and willingly accepted and which were beneficial to R Systems (Question 2);
 
        3.        Damages in the amount of $32,389.40 were found to be due KPR for public relations services performed by it pursuant to the contract (Question 3);
 
        4.        Damages in the amount of $45,000.00 were found to be due KPR for services rendered to and accepted by R Systems (Question 4);
 
        5.        KPR failed to perform its obligations pursuant to the written contract (Question 5);
 
        6.        KPR impliedly warranted to R Systems that the services offered to R Systems would be of good, highly professional and merchantable quality and fit for the purposes to be used (Question 6);
 
        7.        The goods and services provided by KPR were of good, highly professional and merchantable quality and fit for the purposes to be used (Question 7);
 
        8.        KPR did not: 1) represent that the services to be provided had characteristics and benefits that they did not have; 2) represented that the services to be provided were of a particular standard or quality when they were of another; 3) fail to disclose that it had no prior experience, or lack thereof, in providing public relations services to computer software companies in order to induce R Systems to enter into the contract; and 4) did not represent that the agreement would confer rights and obligations that it did not have (Question 8).
        The jury failed to find that R Systems was entitled to recover damages from KPR. It further found that the counterclaim brought by R Systems against KPR was brought in bad faith and for the purpose of harassment. Judgment, signed on November 4, 1987, decreed that KPR recover of and from R Systems the sum of $45,000.00, plus attorney's fees in the amount of $20,000.00 (stipulated by the parties), pre-judgment interest in the amount of $13,712.23, post-judgment interest in the amount of 10% per annum from date of judgment until paid, and additional attorney's fees in the event of an appeal by R Systems.
        R Systems filed a motion, entitled "Motion for New trial or in the Alternative to Modify, Correct or Reform Judgment." Among other allegations, R Systems alleged that there was no evidence or factually insufficient evidence to support the jury's finding of $45,000.00 quantum meruit damages, and that the trial court erred in awarding KPR "quantum meruit damages in excess of $26,432.09, which is the amount pled by KPR, Inc. for quantum meruit." The motion was contested by KPR. Following a hearing on the motion, the trial court rendered a judgment, entitled "Reformed and Corrected Final Judgment," which was signed on January 27, 1988. That judgment decreed that KPR have and recover from R Systems "quantum meruit damages in the amount of $20,770.93, plus pre-judgment interest in the amount of $5,553.79, plus attorney's fees in the amount of $20,000.00 for the preparation and trial of this cause." The January 27, 1988 judgment further decreed that KPR have and recover from R Systems attorney's fees in the amount of $4,500.00 in the event of a successful appeal to the Court of Appeals, the further sum of $1,500.00 in the event of an application for "Writ of Certiorari" is made to the Texas Supreme Court and the further sum of $1,500.00 in the event of a successful appeal to the Texas Supreme Court, and the judgment shall bear interest at the rate of 10% per annum until paid. The January 27, 1988 judgment is the subject matter of this appeal.
        R Systems, as appellant, brings forward three points of error. The first two points read: "1. The trial court erred in entering the judgment against R. Systems in quantum meruit because an express, written contract existed between the parties which cover the subject matter of the suit; 2. The trial court erred in entering judgment against R Systems in quantum meruit because of KPR's unclean hands in that in answer to Special Issue Number 5 the jury found that KPR breached the contract."
        The essential elements for a recovery in quantum meruit are: 1) valuable services were rendered; 2) to the person sought to be charged; 3) which services were accepted, used and enjoyed by the person sought to be charged; and 4) under such circumstances has 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. Montes v. Naismith and Trevino Constr. Co., 459 S.W.2d 691, 694 (Tex. Civ. App.--Corpus Christi 1970, writ ref'd n.r.e.). See also, Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771, 773 (Tex. Comm'n App. 1941, opinion adopted); Garza v. Mitchell, 607 S.W.2d 593, 600 (Tex. Civ. App.--Tyler 1980, no writ). The right to recover in an action based on quantum meruit does not arise out of a contract but is independent of a contract and is based upon the promises implied by law to pay for beneficial work or services rendered and knowingly accepted. Davidson v. Clearman, 391 S.W.2d 48, 50 (Tex. 1965).
        Where the plaintiff pleads for a recovery because of breach of an express contract, and, in the alternative, pleads for a recovery based on quantum meruit, recovery may be had on either theory proved but not on both. Electric Wire & Cable Co. v. Ray, 456 S.W.2d 260, 264 (Tex. Civ. App.--Houston [14th Dist.] 1970, writ ref'd n.r.e.); Roby Industries, Inc. v. Maxwell Electronics Corp., 409 S.W.2d 559, 561 (Tex. Civ. App.--Dallas 1966, writ ref'd n.r.e.); Musick v. Pogue, 330 S.W.2d 696, 698 (Tex. Civ. App.--San Antonio 1959, writ ref'd n.r.e.). If a valid express contract covering the subject matter exists, there can be no recovery in quantum meruit. Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex. 1964). However, "the existence of an express contract does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are not covered by the contract." Black Lake Pipe Line Co. v. Union Constr. Co., Inc., 538 S.W.2d 80, 86 (Tex. 1976), overruled on other grounds, Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
        An action to recover damages in a suit on quantum meruit is an equitable action. C. & W. Manhattan Assoc. v. Attorney's Title Co., 614 S.W.2d 883, 884 (Tex. Civ. App.--Tyler 1981, writ ref'd n.r.e.); Wyche v. Perrin, 228 S.W.2d 330, 334 (Tex. Civ. App.-- Dallas 1950, writ ref'd n.r.e.). The purpose of the general rule prohibiting recovery in quantum meruit when there is a valid express contract covering the same services is to prevent a conflict in which the plaintiff claims an amount over and above what he could recover under his contract. Musick, 330 S.W.2d at 699. It follows, then, that if a plaintiff cannot recover under contract, for whatever reason, he should be permitted to recover under quantum meruit to the extent that equity demands.
        In the case at bar, it is undisputed that KPR provided public relations services to R Systems, that R Systems benefited from these services, and that R Systems accepted those services knowing that KPR expected to be paid. The facts of this case also provide evidence of probative value that there were circumstances which entitled KPR to recover under quantum meruit. There is some evidence of the technical failure of a condition precedent (getting prior written approvals), although R Systems had verbally approved the work. There is some evidence that KPR was prevented from completing its work due to R Systems' breach of the 90 day written notice requirement for termination. R Systems did not suffer any damages. Under these circumstances, KPR was entitled to recover under the theory of quantum meruit.
        The only equitable defense pled by R Systems in response to KPR's claim in quantum meruit was the doctrine of unclean hands. The issue of "unclean hands" is a question of fact for the jury. Arrow Chemical Corp. v. Anderson, 386 S.W.2d 309, 314 (Tex. Civ. App.--Dallas 1965, writ ref'd n.r.e.); Rodgers v. Tracy, 242 S.W.2d 900, 905-06 (Tex. Civ. App.--Amarillo 1951, writ ref'd n.r.e.). This issue was not submitted to the jury in this case. As a result, it has been waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, 1085 (1928); Glendon Investments, Inc. v. Brooks, 748 S.W.2d 465, 468 (Tex. App.-Houston [1st Dist.] 1988, writ denied); Neuhaus v. Kain, 557 S.W.2d 125, 136 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.).
        R Systems does contend in its second point of error, however, that the jury's answer to Question 5 establishes, as a matter of law, KPR's unclean hands. We disagree.
        Question 5 reads:
        Did KPR, Inc., fail to perform its obligations, if any, under the provisions of Plaintiff's Exhibit 1 (the contract)?
 
        Answer        "Yes" or "No."
 
        Answer:        "Yes."
KPR objected to the submission of this issue as being unduly vague and failing to distinguish between breach of contract and the failure of a condition precedent. The trial court agreed with this interpretation but held that R Systems was entitled to a condition precedent issue as well, and refused to modify the issue. Because Special Issue 5 involved more than one ultimate or controlling issue, it was improperly multifarious and should not have been submitted. See, European Import Co. v. Lone Star Co., Inc., 596 S.W.2d 287, 290 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). However, R Systems' failure to request proper issues on breach of contract or failure of condition precedent and its failure to object to Question 5 resulted in a waiver of those defenses. Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 669 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
        If, in fact, the jury found the failure of a condition precedent, then that is precisely the reason why KPR must recover in quantum meruit. See, Rheiner v. Varner, 627 S.W.2d 459, 463 (Tex. App.--Tyler 1981, no writ). Even assuming, however, that the jury's verdict could be construed to mean that KPR breached its contract, this would not establish R Systems' unclean hands defense as a matter of law. The two are not identical. The party asserting the unclean hands defense has the burden of proving that he has been injured by the plaintiff's conduct. Right to Life Advocates, Inc. v. Aaron Women's Clinic, 737 S.W.2d 564, 572-73 (Tex. App.--Houston [14th Dist.] 1987) cert. denied, ___ U.S. ___, 109 S. Ct. 71 (1988). The jury in this case found that R Systems suffered no damages, and R Systems has not appealed that finding. Consequently, any breach of contract by KPR was necessarily immaterial, and R Systems has failed to prove its unclean hands defense as a matter of law. R Systems' first two points of error are overruled.
        R Systems, in its third point of error, contends that the trial court erred in not rendering judgment in its favor for the stipulated attorney's fees because it was the prevailing party in that the jury, in answer to questions 1 and 5, found that it did not breach the contract, but that KPR did. We disagree. The jury found in favor of KPR on quantum meruit. Judgment was rendered in favor of KPR on that theory. Likewise, judgment for attorney's fees was rendered in favor of KPR because it prevailed in its suit in quantum meruit. Moreover, while R Systems complains of the failure of the trial court to award the stipulated attorney's fees to it, no complaint is made of the award of attorney's fees to KPR. The parties stipulated that reasonable attorney's fees would be $20,000 for trial preparation, $4,500 for an appeal to this court, $1,500 for an application for writ of error to the Texas Supreme Court, and $1,500 if the application was granted. Judgment for KPR was rendered concerning attorney's fees in accordance with that stipulation.
        If a judgment may rest upon more than one ground, an appellant must assign error as to each such ground, or the judgment will be affirmed on the ground to which no error was assigned. Texas Dept. of Human Resources v. Orr, 730 S.W.2d 435, 436 (Tex. App.--Austin 1987, no writ); Hixson v. Pride of Texas Distributing Co., Inc., 683 S.W.2d 173, 176 (Tex. App.--Fort Worth 1985, no writ). Any findings of fact which are not challenged by proper assignment of error on appeal are binding on the parties in this court. Texas Real Estate Comm'n v. Hood, 617 S.W.2d 838, 840 (Tex. Civ. App.--Eastland 1981, writ ref'd n.r.e.); Ott v. Bell, 606 S.W.2d 955, 957 (Tex. Civ. App.--Waco 1980, no writ).
        R Systems is not entitled to recover attorney's fees under the contract because it failed to prove that it suffered actual damages greater than those suffered by KPR. L Q Motor Inns, Inc. v. Boysen, 503 S.W.2d 411, 412 (Tex. Civ. App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.). Because R Systems has not challenged the jury's findings under quantum meruit, they are binding on this court. KPR is, therefore, entitled to recover attorney's fees under this theory. Angroson, Inc. v. Independent Communications, Inc., 711 S.W.2d 268, 274 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1986). R Systems' third point of error is overruled.
        KPR, in its first cross-point of error, asserts that the trial court erred in "arbitrarily reducing the jury's award of damages under quantum meruit." As already noted, KPR, in its "live petition," in its alternative action to recover damages in quantum meruit for work and services rendered to R Systems, alleged "that the reasonable value of the work at the time Plaintiff was prevented from completing performances was $26,432.09 for labor and materials provided by Plaintiff, for which sum Plaintiff sues." Also, as above set out, the jury in its answer to question 4, found that KPR was entitled to a recovery of $45,000.00 under the theory of quantum meruit. The trial court rendered judgment for KPR for this amount in its judgment of November 4, 1987. R Systems, in its "Motion to Modify, Correct or Reform Judgment," asked that the damages be limited to either $26,432.09 or $17,061.27. The "Reformed and Corrected Final Judgment," rendered on January 27, 1988, decreed that KPR have and recover from R Systems "quantum meruit damages in the amount of $20,770.93." R Systems, in its "Motion for New Trial," asserted that there was no evidence or factually insufficient evidence to support the damage award.
        We first determine whether there was evidence to support the damage award based on quantum meruit. We conclude that there was sufficient evidence to support the jury's finding that KPR sustained $45,000 in damages under quantum meruit. R Systems' president, Mr. Bill Kiely, testified that the replacement of KPR's services was $70,000. KPR's president, Mr. David Kaye, also testified as to the value of KPR's services, based upon the reasonable hourly billing rates of its employees. These values were $150 per hour for him, $100 per hour each for Mr. Al Grickson and Ms. Sandra Rochowansky, and $85 per hour for Mr. Mark Ferelli. Based upon these values, and KPR's time sheets, Mr. Kaye further testified that the value of KPR's basic service alone amounted to more than $70,000.00.
        Next, we decide whether the trial judge erred in rendering judgment in favor of KPR for quantum meruit damages in the amount of $20,770.93. As will be developed, we conclude that the trial court erred in awarding damages in that amount, but did not err in failing to award $45,000 for such damages.
        The judgment of the trial court must be supported by pleadings, and if not so supported, it is erroneous. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983); Tex. R. Civ. P. 301. A judgment for damages which is in excess of the amount pleaded is erroneous even though a larger amount is awarded by the jury. Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S.W.2d 751, 756 (1951); Thate v. Texas & P. Ry. Co., 595 S.W.2d 591, 601 (Tex. Civ. App.--Dallas 1980, writ dism'd); Longoria v. Atlantic Gulf Enterprises, Inc., 572 S.W.2d 71, 76 (Tex. Civ. App.--Corpus Christi 1978, writ ref'd n.r.e.); Kleiner v. Eubank, 358 S.W.2d 902, 907 (Tex. Civ. App.--Austin 1962, writ ref'd n.r.e.). Evidence of damages different from the damages prayed for in the pleadings will not cure the failure of a judgment to conform to the pleadings. Hartford Accident & Indemnity Co. v. Moore, 102 S.W.2d 441, 443 (Tex. Civ. App.--Dallas 1937, writ ref'd). In its rendition of judgment, the trial court, in awarding damages, is restricted to the "top dollar" alleged in the pleadings. Concrete Constr. Supply v. M.F.C., Inc., 636 S.W.2d 475, 483 (Tex. App.--Dallas 1982, no writ); Burk Royalty v. Walls, 596 S.W.2d 932, 938 (Tex. Civ. App.--Fort Worth), aff'd, 616 S.W.2d 911 (Tex. 1981). In order to obtain a valid judgment for an amount which is different from the amount pled in the "live petition" at the time of trial, a party must move for a trial amendment, and receive permission to file it, in order for the pleadings to conform to the judgment. Burk Royalty, 596 S.W.2d at 938. KPR elected to sue for $26,432.09 damages in quantum meruit, and it is confined in its recovery to this specific amount. It cannot rely on the general language in the prayer to its petition, wherein it asks for a recovery of "actual damages," and general relief. See Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967); Employers Ins. of Wausau v. Schaefer, 662 S.W.2d 414, 419 (Tex. App.--Corpus Christi 1983, no writ). In the instant case, KPR did not file a trial amendment asking that it recover quantum meruit damages in the amount of $45,000, the amount found by the jury. Consequently, it is not entitled to a recovery of that amount. However, it is entitled to recover $26,432.09 damages, based on quantum meruit, the amount sued for and specifically pled in its pleadings. While the authorities cited above deal with judgments in excess of the amount pled, the same rules control in this case, where the amount of damages awarded in the judgment is less than either the amount pled or the amount awarded by the jury. Accordingly, the judgment of the trial court should be reformed.
        It is apparent from the record that the trial court did not grant R Systems' motion for new trial. Since the trial court did not enter an order addressing that motion, but merely reformed the judgment, R Systems' motion for new trial was overruled by operation of law. Tex. R. Civ. P. 329b. R Systems has not appealed that decision. Instead, the trial court granted R Systems' motion to reform, correct or modify the judgment.
        The trial court may not make new findings of fact or usurp the authority of the jury. First Nat'l Bank v. Walker, 544 S.W.2d 778, 781 (Tex. Civ. App.--Dallas 1976, no writ). A trial court may set aside a jury finding only if the finding is immaterial or there is no evidence to support such finding, considering the evidence in the light most favorable to the finding, and rejecting inferences contrary to the finding. Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex. 1978); Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex. 1967). The trial court cannot disregard a jury's answer to an issue merely because the evidence is factually insufficient or against the great weight and preponderance of the evidence. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937, cert. denied, 358 U.S. 874 (1958); L. H. Land Painting Co., Inc. v. S & P Constr., Inc., 516 S.W.2d 14, 16-17 (Tex. Civ. App.--Fort Worth 1974, writ dism'd).
        If the trial court had wished to change the damage award, the proper procedure would have been to order a new trial unless the plaintiff agreed to offer a remittitur. See City Nat'l Bank v. Jacksboro Nat'l Bank, 602 S.W.2d 511, 512 (Tex. 1980). In all such instances, it is the plaintiff who has the choice of whether to file a remittitur. Generally speaking, the trial court simply cannot disregard jury findings. Since the trial court, in effect, denied R Systems' motion for new trial, a remittitur is not available to them. The trial court did not have the power or authority to substitute its own opinion of damages for that of the jury. KPR's first cross-point is sustained. KPR, in its remaining cross-points of error, contends that "the trial court erred by not granting KPR judgment non obstante veredicto for breach of contract [second cross-point]; the trial court erred in submitting question 5 because it was improperly multifarious [third cross-point]; the trial court erred in submitting question 1, which had already been resolved by partial summary judgment [fourth cross-point]; 4) there is no evidence to support the jury's response to question 1 [fifth cross-point]." KPR states in its brief that its second through its fifth cross-points "are submitted conditionally only, in the event that this court reverses the trial court's judgment in quantum meruit, or refuses to reinstate the jury's damage award under that theory." As is apparent, we will not reverse the judgment insofar as it awards quantum meruit damages, but we will reverse the amount of money awarded to KPR as quantum meruit damages. We will consider the cross-points, assuming, arguendo, that we are required to reach them in disposing of this appeal.
        Concerning KPR's suit for damages because of the asserted breach of contract by R Systems, it alleged in its "live petition" that "plaintiff provided substantial public relations services to Defendant. However, Defendant has breached the contract by failing to pay for said services. The price agreed upon by Defendant for said services was $17,061.27, for which sum Plaintiff sues." KPR, in its brief, asks this court to grant the following alternative relief: "1. Affirm the trial court's judgment that KPR recover in quantum meruit, but reverse the trial court's reduction of damages and reinstate the jury's verdict for $45,000; or 2. Modify the trial court's judgment and render judgment for KPR in the amount of $32,389.40, pursuant to the jury's verdict, under the alternative theory of breach of contract."
        KPR did not file a trial amendment. Under the authorities cited in our discussion relating to the action for damages based on quantum meruit, which also apply to the suit for damages because of breach of contract, KPR is limited to a recovery of $17,061.27 damages for breach of contract. Therefore, we cannot reverse the trial court's judgment and render judgment for KPR in the amount of $32,389.40, pursuant to the jury's finding, under the theory of breach of contract, assuming, for the purposes of argument, that the cross-points are sustainable. Since we will reverse the trial court's award to KPR of $20,770.93 quantum meruit damages and render judgment for $26,432.09 quantum meruit damages, it certainly is not in the best interest of KPR to reverse the judgment and render judgment for KPR in the amount of $17,061.27, the amount of damages pled for breach of contract. KPR is not entitled to a recovery in both actions brought by it, and in rendering judgment for a recovery of $26,432.09, KPR is, in fact, recovering the "top dollar" in this lawsuit. For the reasons stated, KPR's second, third, fourth and fifth cross-points are overruled.
        The trial court's judgment, insofar as it decreed that "KPR, Inc., have and recover from R Systems, Inc., quantum meruit damages in the amount of $20,770.93, plus pre-judgment interest on said recovery in the amount of $5,553.79," is reversed, and judgment is here rendered that KPR, Inc. have and recover from R Systems, Inc. quantum meruit damages in the amount of $26,432.09, plus pre-judgment interest on said recovery in the amount of $7,095.02. The judgment of the trial court in all other respects is affirmed.
        Reversed and rendered in part and affirmed in part.
 
 
                                                          
                                                          GERALD T. BISSETT
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 90
 
880263.U05
 
FN:1 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Gerald T. Bissett, Justice, retired, Court of Appeals, Thirteenth District of Texas at Corpus Christi, sitting by assignment.
File Date[12-05-89]
File Name[880263]