dissenting.
The majority opinion recognizes an injustice, but fails to correct it. Having concluded that the Bank Board’s prohibition invalidates the agreement between Centex and Dalton, the majority declines to provide an opportunity for an equitable remedy. As a result, Centex reaps a windfall at Dalton’s expense. I dissent.
Centex agreed to pay Dalton a total of $750,000 if Centex closed a deal on a thrift by a certain date. The fee was to compensate Dalton for his services in arranging the sale. Although its representative had previously approved the agreement, the Bank Board prohibited payment to Dalton on the eve of the closing date. Centex proceeded without notice to Dalton.
The majority determines that the Board’s prohibition invalidated the contract before Dalton’s right to enforcement accrued. Allowing that the agreement is unenforceable, Centex should not reap a windfall for its acquiescence to the belated disapproval of the fee. Although there is no indication that Centex affirmatively sought the prohibition, there is also no indication that it made any effort to avoid the foreseeable bar to performance. At a minimum, Cen-tex should have notified Dalton upon learning that the Board would not permit payment. Instead, Centex evidently kept the information to itself, preventing Dalton from appealing the decision while the contract was still viable.
Further, Centex need not have proceeded with the acquisition on the Board’s new terms. Having chosen to do so, the resulting, inconsistent obligations were its burden. Instead of resolving those obligations, it pawned the responsibility onto Dalton.
The majority now rewards Centex with a windfall of $750,000, thus recommending a neatly profitable scheme to those in positions to influence regulatory policymaking. The decision is explained in terms of federal supremacy and the intricacies of contract law, but the plain injustice of the result is overlooked: Centex, by quietly acquiescing to the Board’s new terms, unfairly escaped its debt for the benefit of Dalton’s services.
Whenever our rendition of judgment would work an injustice, our rules enable us to remand the cause for a new trial. Tex.R.App.P. 180. This is such a case.
On remand, Dalton would be free to plead and prove a claim based on quantum meruit. See Hudson v. Wakefield, 711 S.W.2d 628, 631 (Tex.1986) (when a summary judgment is reversed, the parties are not limited to the theories asserted in the original summary judgment at a later trial on the merits and may amend their pleadings to assert other theories in view of the *957appellate holding). Pounded on the equitable doctrine of unjust enrichment, quantum meruit provides a remedy “when nonpayment for the services rendered would ‘result in an unjust enrichment to the party benefitted by the work.’ ” Vortt Exploration v. Chevron U.S.A., 787 S.W.2d 942, 944 (Tex.1990) (citing City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.)).
This remedy remains available despite the obstacles of federal law and state contract law raised by the majority.1 A remedy under quantum meruit is consistent with the Board’s prohibition. Although the prohibition may have preempted state contract law to the extent of invalidating the agreement, the prohibition does not foreclose an equitable remedy. Even in instances of apparent actual conflict, the preemptive effect of a federal regulation is determined by its policy objective. See Midlantic Nat’l Bank v. New Jersey Dept. of Env. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). Here, the prohibition was adopted in the interest of avoiding a precedent permitting finders’ fees.2 Requiring equitable reimbursement by Centex in this instance does not frustrate this policy objective because the circumstances giving rise to the remedy are unique to this transaction: future parties to fee arrangements will have been on notice of the O.T.C.'s prohibition. Further, because the remedy of quantum meruit “does not arise out of contract, but is independent of it,” compensation under quantum meruit would not conflict with the Board’s prohibition on the payment of the fee as arranged by contract. Vortt Exploration, 787 S.W.2d at 944 (citing Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937)). Also, because quantum meruit arises independently of contract obligations, the majority’s contract analysis is inapposite. See id.
Because Centex should be required to pay for the benefit of Dalton’s services, I would reverse the judgment of the Court of Appeals and remand this cause to the trial court. Dalton, in fairness, should have the opportunity to assert a claim under a theory that is consistent with the majority’s invalidation of the agreement.
GONZALEZ and HIGHTOWER, JJ., join in this dissent.. Neither is compensation under quantum me-ruit inconsistent with the provision of the Real Estate License Act, Tex.Rev.Civ.Stat.Ann. art. 6573a § 20(b), conditioning recovery of a commission upon the existence of a written agreement. Here, there was a written agreement between Dalton and Centex, which gave rise to the expectation of payment and became invalid only after a seller was procured by Dalton. When a broker procures a seller while the contract is in force, but the closing occurs after its termination, the broker is nevertheless entitled to the commission earned by the procurement of a seller. See Ramesh v. Johnson, 681 S.W.2d 256, 259 (Tex.App. — Houston [14th Dist.] 1984, writ ref d n.r.e.) (where broker procured a seller pursuant to a written contract but then consented to rescission, and buyer subsequently made a purchase from that seller through a different broker, the original broker satisfied the statutory requirement of a writing and is entitled to a commission).
. See Minutes, Federal Home Loan Bank Board, Special Bank Board Meeting, December 28, 1988.