Saturday, January 19, 2008

Expunction: Houston appellate court says it does not have jurisdiction to intervene

In Re Wright No. 14-07-01057-CV (Tex.App.- Houston [14th Dist.] Jan 15, 2008)(Guzman)(expuntion, mandamus jurisdiction over clerk found lacking, jurisdictional dismissal)DISMISSED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and BrownIn Re Gerald Anthony WrightAppeal from 182nd District Court of Harris County (Judge Jeannine Barr)

ORIGINAL PROCEEDINGWRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On December 14, 2007, relator Gerald Anthony Wright filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann '22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.
In the petition, relator requests this court to compel the record expunction clerk at the Harris County District Clerk's Office to file his petition for expunction of the record related to his conviction for aggravated assault of a police officer.

We do not have jurisdiction to issue a writ of mandamus against a district clerk unless it is necessary to enforce our jurisdiction. Tex. Gov't Code Ann. ' 22.221; In re Washington, 7 S.W.3d 181, 182 (Tex. App. - Houston [1st Dist.] 1999, orig. proceeding).

Because of the relief requested, we do not have jurisdiction and the petition for writ of mandamus is ordered dismissed.

PER CURIAM

Petition Dismissed and Memorandum Opinion filed January 15, 2008.
Panel consists of Justices Yates, Guzman, and Brown.

Note: The opinion issues as a "per curiam", but the Court's list of decisions published on Jan. 15, 2008 shows Justice Guzman as opinion author.

Prisoner's Bill of Review suit fails following appellate win in prior case

First Court of Appeals, in memo opinion by Justice Tim Taft, affirms trial court's denial of inmate's bill of review. Same plaintiff had won a reversal in the other Houston court of appeals in prior suit. In restating the requirements for a successful attack on a judgment by bill of review, reviewing court holds that the fact that an injustice was committed does not provide sufficient grounds for relief.

Williams v. TDCJ-ID No. 01-06-00404-CV (Tex.App.- Houston [1st Dist.] Jan. 10, 2008)(Taft)(bill of review denied, multiple suits and appeals)
Before Justices Taft, Hanks and Higley) Howard Vanzandt Williams v. Texas Department of Criminal Justice-ID
Appeal from 23rd District Court of Brazoria County (Judge Ben Hardin)
Disposition: Trial court's judgment affirmed

MEMORANDUM OPINION BY JUSTICE TAFT

Howard Vanzandt Williams appeals the trial court’s order denying his bill of review. We affirm.

Factual and Procedural Background

Howard Vanzandt Williams, an inmate of the Texas Department of Criminal Justice-Institutional Division (“TDCJ–ID”), sued Dale Denault, a corrections officer employed by TDCJ–ID, and TDCJ–ID. The trial court dismissed the suit in its entirety, and Williams appealed to the 14th Court of Appeals. The 14th Court of Appeals affirmed the dismissal as to Denault only and reversed it as to claims against TDCJ–ID. See Williams v. Denault, No. 14-00-00889-CV, 2001 WL 1249311, *5 (Tex. App.—Houston [14th Dist.] October 18, 2001, no pet.) (memo op.).
Concluding that Williams had stated a claim against TDCJ–ID subject to the Texas Tort Claims Act, but that Williams had not served TDCJ–ID nor had TDCJ–ID answered the allegations, the 14th Court held that “the trial court abused its discretion in ordering that the case was dismissed with prejudice and in its entirety as frivolous.” Id. at *4. In so holding, the court determined that the trial court’s order dismissing the entire action with prejudice “cannot be said to operate as a dismissal on the merits of a defendant that has not yet been served or answered on the record.” Id. at *4.

The opinion from the 14th Court of Appeals issued on October 18, 2001. On March 12, 2003, Denault’s attorney, a representative from the Attorney General’s office, filed an amicus motion to dismiss the claims against TDCJ–ID for want of prosecution and as frivolous because the statute of limitations had run. An order of dismissal was signed in July and again in December of 2003. The orders are identical, except that the December order includes the language, “All relief not specifically granted is denied.”

In April of 2006, Williams filed a petition for a bill of review seeking to set aside the court’s judgment dismissing his claims against TDCJ–ID. That petition does not contain a certificate of service. As best we can determine, Williams alleged that TDCJ–ID waived service. The trial court denied the petition for bill of review without a hearing.

Bill of Review

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987); Alexander v. Hagedorn, 148 Tex. 565, 569, 226 S.W.2d 996, 998 (1950). The mere fact that an injustice has been done is not sufficient to warrant granting a bill of review. Alexander, 148 Tex. at 569, 226 S.W.2d at 998.

A party who has participated in the trial court proceedings must plead and prove three elements to obtain a bill of review: (1) a meritorious ground of appeal exists; (2) which the party was prevented from presenting in a motion for new trial or ordinary appeal by the fraud, accident, or wrongful act of the opposing party, or official mistake or misinformation; (3) unmixed with the fault or negligence of the petitioner. McDaniel v. Hale, 893 S.W.2d 652, 660, 662–63 (Tex. App.—Amarillo 1994, writ denied); see Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245–46 (Tex. 1974). A meritorious ground of appeal is one that, had it been presented to the appellate court as designed, might, and probably would, have caused the judgment to be reversed. Petro-Chem., 514 S.W.2d at 245.

In our review, we must indulge every presumption in favor of the trial court’s ruling. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We will not disturb that ruling unless the petitioner is able to show affirmatively that there was an abuse of judicial discretion. Id. A trial court abuses its discretion only if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Id. Finally, because we have no findings of fact or conclusions of law entered in this case, we must affirm the trial court’s ruling on any theory finding support in the record. See id. When the inquiry on the bill of review concerns questions of law, such as whether an appellant presented prima facie proof of a meritorious ground of appeal, we review the trial court’s decision de novo. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

As a pretrial matter, the plaintiff must present prima facie proof to support the alleged meritorious claim. Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004); Baker, 582 S.W.2d at 408; Martin v. Martin, 840 S.W.2d 586, 591 (Tex. App.—Tyler 1992, writ denied). If the trial court concludes that a prima facie meritorious ground of appeal has not been shown, it may dismiss the case without conducting a trial. Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989); Baker, 582 S.W.2d at 409.

Prima facie proof may consist of documents, admissions, and affidavits, along with other evidence that the trial court may receive. Baker, 582 S.W.2d at 409. Williams presented no proof to support the allegations contained in his petition for bill of review. See Caldwell, 154 S.W.3d at 97. Thus, the trial court did not err if it concluded that Williams failed to establish a meritorious claim in his bill of review.

Conclusion

We affirm the order of the trial court.

Tim Taft
Justice

Panel consists of Justices Taft, Hanks, and Higley.

Referral Fee Dispute: Attorney should have known better

In this dispute stemming from a referral arrangement between lawyers, the trial court granted summary judgment for the second attorney, and the court of appeals affirmed. The referring attorney did not secure a written agreement signed by both parties containing the terms of the fee sharing agreement; unilateral letters recording his understanding of what had been agreed to did not create an enforceable contract since they were never signed by the addressees. Worse, the letters contradicted Plaintiff's claims. Cause of action for fraud also fails. It did not help that attorney-plaintiff made inconsistent statements in the case.

Valentine v. Cunningham No. 01-07-00054-CV (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Jennings)(attorney referral fee agreement, breach of contract claim fails, no enforceable contract)

Panel: Before Justices Nuchia, Jennings and Keyes
Full style: Michael J. Valentine v. Lloyd R. Cunningham, Jr., and Cunningham & Associates, P.C.
Appeal from 151st District Court of Harris County (Hon. Caroline Baker)
Disposition: Summary Judgment for Defendant affirmed

OPINION BY JUSTICE TERRY JENNINGS

Appellant, Michael J. Valentine, challenges the trial court's rendition of summary judgment (1)
in favor of appellees, Lloyd R. Cunningham, Jr. and Cunningham & Associates, P.C. (collectively "Cunningham"), in Valentine's suit against Cunningham for an attorney referral fee. In four issues, Valentine contends that the trial court erred in granting summary judgment in favor of Cunningham on Valentine's breach of contract, fraud, misrepresentation, and breach of fiduciary duty claims and on Cunningham's affirmative defenses of waiver and estoppel.


We affirm. Factual and Procedural Background

In his petition, Valentine alleged that between July and December 1996 he performed legal work for his clients Anatoly and Beryle Sverdlin. On or about January 15, 1997, the Sverdlins contacted Valentine and told him that there had been a "take over" at Anatoly Sverdlin's company and that Sverdlin's employment had been terminated. Valentine met with the Sverdlins to discuss the imminent litigation arising from these events, but, due to the potential size of the case and in light of Valentine's other obligations, Valentine eventually contacted Cunningham to see if he would represent the Sverdlins in these matters. Valentine described the case to Cunningham as "a potential big case involving corporate control and breach of fiduciary duty issues." Valentine told the Sverdlins that he was going to introduce them to Cunningham and that either "he [Valentine] would be paid a share out of the case if he were to represent Sverdlin or a share out of the billings by Cunningham" if Cunningham accepted the representation.

Valentine further alleged that, on January 17, 1997, Valentine, the Sverdlins, and Cunningham met. During the meeting, the group learned that attorneys for Valentine's company had set a hearing on an application for a temporary restraining order. Valentine and Cunningham drove to the courthouse for the hearing, and, "[o]n the way to the courthouse," before Cunningham ever agreed to represent Anatoly Sverdlin, he and Cunningham discussed "the referral fee." As alleged by Valentine, the "referral of the representation was expressly conditioned upon Cunningham . . . agreeing to pay a referral fee." Valentine and Cunningham then "negotiated the amount of the referral fee," and Valetine ultimately accepted Cunningham's counter-offer "of a referral fee of 15% of gross attorney billings." "Separate and apart [from] the referral fee," Valentine and Cunningham further agreed that Valentine might do "additional work on the case" and that Valentine would be paid $175 per hour for any work he performed. Cunningham represented Sverdlin at the hearing, and sometime thereafter Cunningham "fully accepted the referral" of the case. Cunningham "reaffirmed the promised referral fee" in June 1998. In early 1999, after Cunningham's successful prosecution of the case, Cunningham disputed Valentine's claim that he ever agreed to pay any referral fee.

In support of his breach of contract claim, Valentine alleged that he and Cunningham "entered into an enforceable oral express or implied in fact agreement." In a section of his petition entitled "quasi contract," Valentine asserted that Cunningham was "bound by a promise implied at law" and that Valentine provided a "valuable service to Cunningham" and "expect[ed] to be paid." In the section of his petition entitled "fraud," Valentine asserted only that Cunningham "engaged in fraud by conduct and/or promissory fraud." Valentine did not allege any specific facts in support of this fraud claim. Finally, in a section of his petition entitled "alternative claims based on disputed novation agreement," Valentine contended that, if the trial court accepted Cunningham's argument that any referral fee agreement had been replaced by a subsequently negotiated contingency fee agreement between Valentine and Sverdlin, then Valentine sued Sverdlin and Cunningham for the "value of the contingency agreement." (2)

Cunningham filed a summary judgment motion, in which he argued that Valentine's claims fail as a matter of law for a number of reasons, including (1) the alleged oral referral fee agreement for 15% of "gross attorney billings" contemplated only "hourly billings," and Valentine was not entitled to any referral fee because Sverdlin paid Cunningham pursuant to a subsequently negotiated contingency fee agreement, (2) Valentine, at most, alleged an "unenforceable oral agreement to agree," (3) Valentine, even according to his own admissions, subsequently renegotiated any alleged oral referral fee agreement with Cunningham and replaced it with a new and separate agreement directly with Sverdlin for a 10% contingency fee interest in the entire case, (4) the alleged oral referral fee agreement was not supported by consideration and violated the statute of frauds, (5) Valentine's claim to an interest in the contingency fee violated Valentine's ethical responsibilities because Valentine served as an expert witness in the case, any such agreement was not in writing, and Valentine acted as Sverdlin's independent attorney in reviewing the contingency fee agreement without disclosing that he claimed an interest in the contingency fee, (6) Valentine's claims are barred by public policy, (7) Valentine's unjust enrichment claim fails because he was fully paid for the work performed, and (8) Valentine's fraud claim fails because it arose out of his breach of contract claim and because no evidence supports the elements of his claim, including detrimental reliance or injury. Cunningham also asserted no-evidence grounds in his summary judgment motion as to the elements of each of Valentine's claims.

The trial court, without specifying its reasons, granted Cunningham summary judgment and ordered that Valentine's claims be denied.

Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341. When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549.

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party's cause of action. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Ridgway, 135 S.W.3d at 600.

Breach of Contract

In his first issue, Valentine argues that the trial court erred in granting summary judgment in favor of Cunningham on his breach of contract claim because there is no legal basis to void the alleged oral referral fee agreement under the disciplinary rules, the agreement was permitted under Texas law, the agreement vested when Cunningham accepted representation, the agreement was supported by consideration, and the agreement was not replaced by a subsequent agreement.

The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). The elements of a valid contract are (1) an offer, (2) an acceptance, (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. Id. To establish a valid contract, a plaintiff must prove that the parties agreed on all of the essential terms of the contract and that the essential terms were sufficiently certain so as to define the parties' legal obligations. See Nickerson v. E.I.L. Instruments, Inc., 874 S.W.2d 936, 939 (Tex. App.--Houston [1st Dist.] 1994, writ denied). If a contract is so indefinite that a court cannot determine the legal obligations and liabilities of the parties, it is not enforceable. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Moore v. Dilworth, 142 Tex. 538, 542-43, 179 S.W.2d 940, 942 (1944); Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 485 (Tex. App.--Houston [1st Dist.] 2006, pet. denied).

Here, Valentine asserts that he made an oral agreement with Cunningham for a referral fee of 15% of gross attorney billings. Valentine further asserts that, although Cunningham and Sverdlin entered into a contingency fee agreement rather than an hourly fee agreement, Valentine and Cunningham's alleged oral referral fee agreement encompassed the contingency fee.

Valentine does not clearly identify the specific evidence on which he relies to support his breach of contract claim. Instead, he focuses his appellate briefing on why his alleged oral referral fee agreement for 15% of the contingency fee does not violate disciplinary rules or public policy. Nevertheless, our review of the evidence indicates that the only direct testimony that potentially supports any type of breach of contract claim came from Valentine, who testified in his deposition that, as he and Cunningham drove to the courthouse for the hearing on the temporary restraining order, he told Cunningham that he expected a referral fee for the case. He further testified that he told Cunningham that "a third [was] customary," Cunningham responded that a third was "too much," and Valentine asked Cunningham what he thought was "fair." According to Valentine, Cunningham then answered 15%, and Valentine said "Okay." Valentine and Cunningham did not reduce this alleged oral referral fee agreement to writing.

On January 21, 1997, Valentine sent Cunningham a letter to confirm that they had, in fact, discussed an oral referral fee agreement in the car on the way to the courthouse. This letter, signed by Valentine and contained in the summary judgment record, provided,

The purpose of this letter is to set forth our agreement regarding the above client and case. We have agreed that I will continue to work on the case on a consulting basis. . . . We have agreed that I will bill your firm at the rate of $175.00 per hour and your firm will bill the client. . . . We have further agreed that in exchange for the referral of this matter, your firm will pay me a referral fee of 15% of the gross attorney billings (exclusive of my own) on this case. It is my understanding that your firm's agreement with the client is for hourly billing. Should this be renegotiated to another alternative billing arrangement, i.e. contingency fee, I expect that we would renegotiate our agreement. If you are in agreement with this letter, please sign the copy and return it to me. (Emphasis added).

Valentine provided a space for Cunningham's signature at the bottom of the letter. Cunningham denied receiving the letter, and it is undisputed that Cunningham never signed this letter. Regardless, the letter actually defeats, rather than supports, Valentine's contention that any alleged oral referral fee agreement between Cunningham and him encompassed the subsequently negotiated contingency fee. At most, this letter confirms that, at the time Valentine and Cunningham formed their alleged oral referral fee agreement, Valentine sought as a referral fee a percentage of fees incurred from Cunningham's hourly billings. The letter itself states that, in the event an alternative billing arrangement was made, including a contingency fee agreement, Valentine "expect[ed]" to renegotiate. No evidence shows that this "expectation" was ever confirmed by Cunningham.

Valentine's letter provides no detail as to what Valentine would have expected to receive in the event the billing arrangement changed to a contingency fee. Valentine seems to suggest that his oral agreement would simply transform to automatically entitle him to 15% of the contingency fee. Of course, the referral fee due Valentine under these circumstances could vary significantly from a referral fee calculated on hourly billings. Moreover, even if the letter provided some evidence that Valentine and Cunningham agreed to renegotiate a referral fee upon a change to a contingency fee agreement, the record contains no evidence as to the essential terms of any renegotiated agreement. See Neely v. Bankers Trust Co. of Tex., 757 F.2d 621, 630 (5th Cir. 1985) (applying Texas law; holding that indefiniteness of essential part of agreement rendered whole contract unenforceable and that "[a]s a matter of law, no contract arose"); see also Gavrel v. Nichols, No. 01-03-00465-CV, 2004 WL 1688774, at *3 (Tex. App.--Houston [1st Dist.] July 29, 2004, pet. denied) (mem. op.) (holding that reasonable person, at time of contracting, would regard amount of attorney referral fee as "vitally important" term and that breach of contract claim to recover fee failed as matter of law because, although there was some evidence of agreement to pay fee, there was no evidence of agreement to pay "specific amount" of referral fee).

In addition to the failure to specify the amount Valentine "expected" from a subsequently negotiated contingency fee, the alleged oral referral fee agreement also failed to include other terms that could be considered essential, such as whether the referral fee would be calculated before or after the deduction of expenses and costs and how it would be calculated if additional attorneys were retained to represent Sverdlin. (3) Although Valentine offered conflicting testimony on these issues, even Valentine admitted in his deposition testimony that he did not know whether he was to receive, under this alleged agreement, 15% of attorney's fees before or after expenses. The alleged oral referral agreement, at most, supplied the term of 15% of hourly billings, but it omitted all other essential terms. See Meru v. Huerta, 136 S.W.3d 383, 390 (Tex. App.--Corpus Christi 2004, no pet.) (stating that essential terms of oral contract must be definite, clear, and certain); Gannon v. Baker, 830 S.W.2d 706, 709 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (same).

The narrow scope of Valentine's alleged oral referral fee agreement is further confirmed by Valentine's testimony, in which he agreed that it was his understanding, at the time he formed the agreement, that Cunningham was going to provide legal services at a "straight hourly rate" because Sverdlin was in an economic position to pay hourly fees. Valentine's own testimony establishes that, whatever the terms of this alleged oral referral fee agreement were, neither he nor Cunningham ever contemplated an agreement whereby Cunningham would pay Valentine 15% of a contingency fee.

Thus, even if Valentine had presented sufficient evidence to raise a fact issue as to whether or not he was entitled to 15% of Cunningham's hourly billings, Valentine's breach of contract claim goes well beyond any such agreement. (4) In his petition, Valentine is seeking to recover 15% of the contingency fee. But there is simply no evidence that any such agreement existed. In fact, Valentine's testimony, and his January 21, 1997 letter, establish, as a matter of law, that there was never any enforceable oral referral fee agreement for the terms on which Valentine seeks to recover.

In sum, the summary judgment evidence affirmatively establishes that there was never a meeting of the minds as to Valentine's entitlement to a referral fee for 15% of the subsequently negotiated contingency fee and that the parties did not agree on the essential terms of the purported contract. Accordingly, we hold that there was never an enforceable contract between Valentine and Cunningham for the terms being sued upon and that Valentine's breach of contract claim fails as a matter of law. We further hold that the trial court did not err in granting Cunningham summary judgment on Valentine's breach of contract claim.

We note that, in his deposition testimony, Valentine contradictorily testified that the oral referral fee agreement he had with Cunningham had been renegotiated with Sverdlin when, in January 1997, he and Cunningham met with Sverdlin, and Sverdlin told Valentine and Cunningham that he would "make [them] rich." Valentine testified that, around this time, the case was converted into a contingency fee agreement. According to his alleged new agreement with Sverdlin, Valentine "was supposed to get 10% and [Cunningham] was supposed to get 40%," resulting in a 50% contingency fee to be charged to Sverdlin. Valentine even agreed that the 15% Cunningham was going to pay him from the oral referral fee agreement "turned into" (5) the 10% Sverdlin was going to pay him directly through this new agreement. However, Valentine never secured this alleged new agreement (for a 10% contingency fee) in writing from Sverdlin. Instead, similar to his conduct in trying to memorialize his alleged oral agreement with Cunningham, Valentine sought to memorialize this new agreement with Sverdlin in a subsequent letter. Valentine sent this letter, addressed solely to Sverdlin in November 1998, almost two years after he allegedly formed this new agreement with Sverdlin. In this letter, Valentine wrote,

The purpose of this letter is to memorialize our agreement regarding payment for legal services performed by me on your behalf. . . .

We agreed that in January 1997 . . . that you would pay me for my services by assigning and conveying to me an undivided 10% interest in the total recovery . . . .This fee would also be in the nature of a referral fee paid by you, not by Mr. Cunningham as is customary. . . .
We made this agreement when you offered to pay Mr. Cunningham and I [sic] fifty percent (50%) of the total recovery in the Dispute, rather than pay an hourly rate. We all agreed that Mr. Cunningham would get a forty percent (40%) fee and that I would get a ten percent (10%) fee. . . .

For various reasons, our agreement was never reduced to writing. At the request of several persons, I have waited until now to bring this issue to your attention. I would now appreciate the courtesy of a signed agreement. . . .

Attached to this letter is an assignment from you to me . . . . I have left the percent blank. I would appreciate your filling in what you consider to be fair compensation for me, considering my role in the referral, my past services, and my future services. I know you are an honorable man. You will do the right thing; of this I have no doubt. . . . (Emphasis added). Sverdlin never signed this letter, and, in his affidavit testimony, he denied ever granting Valentine a contingent interest in the case.

On January 29, 1999, after Cunningham and Sverdlin both denied agreeing to pay Valentine either a referral fee or contingent interest, Valentine sent a demand letter to both Cunningham and Sverdlin, in which he stated,

The purpose of this letter is to make demand upon Mr. Sverdlin and Mr. Cunningham that they jointly honor our agreement to pay me a portion of the proceeds from the above referenced lawsuit. I was hired by Mr. Sverdlin . . . I referred the case to Mr. Cunningham. Mr. Cunningham and I agreed [upon] a referral agreement verbally the day I referred the case to him. I reduced the referral agreement to writing. . . .

Subsequent to this, Mr. Sverdlin, Mr. Cunningham, and I agreed to modify our fee agreement from an hourly fee agreement to a contingent fee agreement. Mr. Sverdlin proposed to pay Mr. Cunningham and I a 50% contingent fee of all proceeds . . . His exact words were, "I make [sic] you rich." We agreed. The terms of the agreement were that Mr. Cunningham would receive a 40% contingent fee of all proceeds and I would receive a 10% contingent fee of all proceeds. . . .
For reasons I will not set forth herein, at Mr. Cunningham's request, I never reduced the subsequent contingent fee agreement to writing. Mr. Sverdlin and Mr. Cunningham have now repudiated our agreement . . . .

Valentine's letters not only indicate that Valentine repeatedly failed to reduce his fee agreements to writing, but further confirm that Valentine's alleged oral referral fee agreement with Cunningham contemplated, at most, a percentage of gross attorney's fees billed hourly. These letters, as well as Valentine's testimony, also confirm that, throughout the history of this dispute, Valentine has asserted contrary positions with regard to who owed him fees and for how much. (6) We overrule Valentine's first issue.

Fraud

In his second issue, Valentine argues that the trial court erred in granting summary judgment in favor of Cunningham on Valentine's claims for fraud and misrepresentation because fact issues "exist which preclude summary judgment."

In his petition, in support of his fraud claim, Valentine alleged only that Cunningham "engaged in fraud by conduct and/or promissory fraud and such fraud has been the proximate cause of damages to Valentine." He alleged no additional facts to support the fraud claim. In his appellate briefing, Valentine more specifically asserts that Cunningham committed fraud by promising to pay him a referral fee but later denying that he made any such promise. Valentine also asserts that Cunningham never intended to pay a referral fee.

To prove a fraud claim, a plaintiff must show (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998).

Even assuming that Valentine adequately pleaded a fraud claim in his petition, we conclude that the summary judgment record establishes, as a matter of law, that Cunningham did not commit fraud because he did not make any material representations that were false. As stated above in our discussion of Valentine's breach of contract claim, the evidence establishes that Cunningham, at most, agreed that a fair referral fee might constitute 15% of hourly billings. Valentine contends that this agreement should have encompassed 15% of the contingency fee. However, the evidence shows that Cunningham never made any representations to support this contention. In fact, Valentine's own letters and testimony establish that the parties never contemplated a referral fee based on a percentage of any contingency fee. The evidence shows only that Valentine may have expected this issue to be renegotiated in the future. Valentine, by his own conduct, attempted to transform any sort of oral referral fee agreement he had with Cunningham for hourly billings into an entirely different agreement for a portion of the contingency fee.

Moreover, Valentine's allegations that Cunningham committed "fraud" by preventing him from securing his 10% contingency interest offered to him by Sverdlin are not supported by the record. Contrary to Valentine's allegations, there is simply no evidence that Cunningham committed fraud by failing to "secure [Sverdlin's] signature on the written fee agreement," "cultivat[ing] dissension between [Sverdlin] and [Valentine]," or making "it impossible for [Valentine] to get a signed written contract." In fact, Sverdlin himself has denied orally granting Valentine a contingent interest in the case. (7) Accordingly, we hold that Valentine's fraud claim fails as a matter of law and that the trial court did not err in granting Cunningham summary judgment on Valentine's fraud claim.

We overrule Valentine's second issue.

Breach of Fiduciary Duty

In his third issue, Valentine contends that the trial court erred in granting summary judgment in favor of Cunningham on Valentine's claims for breach of fiduciary duty.

In his petition, Valentine did not assert a breach of fiduciary duty claim and did not plead any facts supporting such a claim. There was nothing in Valentine's pleadings sufficient to put Cunningham on notice that Valentine sought recovery for a breach of fiduciary duty. Pleadings must give "fair notice of the claim involved." Tex. R. Civ. P. 47(a); see also Eikon King St. Manager, L.L.C. v. LSF King St. Manager, L.L.C., 109 S.W.3d 762, 771 (Tex. App.--Dallas 2003, pet. denied). Valentine's claim for a breach of fiduciary duty was not before the trial court at the time it granted summary judgment in favor of Cunningham, and Valentine cannot raise such a claim for the first time on appeal. See Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460, 465 (Tex. App.--Dallas 2006, pet. denied); Loera v. Interstate Inv. Corp., 93 S.W.3d 224, 228 (Tex. App.--Houston [14th Dist] 2002, pet. denied); see also Tex. R. App. P. 33.1(a).
We overrule Valentine's third issue.

Conclusion

Having held that the trial court did not err in granting Cunningham summary judgment on Valentine's breach of contract and fraud claims, and having held that Valentine cannot assert a breach of fiduciary duty claim for the first time on appeal, we need not address Valentine's fourth issue, in which he contends that the trial court erred in granting summary judgment in favor of Cunningham on Cunningham's affirmative defenses of waiver and estoppel.
We affirm the judgment of the trial court.

Terry Jennings
Justice


Panel consists of Justices Nuchia, Jennings, and Keyes.

1. See Tex. R. Civ. P. 166a(c), 166a(i).
2. Sverdlin is not a party to this appeal, and Valentine agrees in his briefing that he is not pursuing any relief against Sverdlin.
3. The lack of an enforceable referral agreement containing the terms on which Valentine seeks to recover is further illustrated by the fact that Cunningham subsequently engaged additional counsel to represent Sverdlin in the litigation and, pursuant to a written agreement with this additional counsel, the additional counsel recovered a portion of the contingency fee. Valentine's alleged oral referral fee agreement does not address how his alleged entitlement to a portion of the contingency fee would be impacted by the retention of additional counsel. For example, it is unclear if Valentine claims that he is entitled to 15% of the contingency fee paid to Cunningham or 15% of the entire fee paid by Sverdlin (including the portion paid to the additional counsel).
4. This is likely due to the fact that, because Cunningham and Sverdlin entered into a contingency fee agreement shortly after commencing representation, Cunningham never billed Sverdlin for any hourly attorney's fees. The summary judgment evidence, including Cunningham's affidavit, establishes that Cunningham received payment solely through a contingency fee and never received any fees through any hourly billing. Valentine argues that there is some evidence that Cunningham was "paid, under the contingency fee agreement, based upon an hourly attorney billing formula." However, the evidence cited by Valentine shows only that hourly billing records were used to split the contingency fee, pursuant to a written fee sharing agreement, between Cunningham and another firm retained on behalf of Sverdlin. Valentine presented no evidence that the total contingent fee was calculated on the number of hours billed.
5. Valentine contradictorily testified during his deposition that he did not renegotiate the 15% agreement with Cunningham.
6. Valentine's attempt to recover fees on two competing sets of facts and Valentine's repeated failure to secure fee agreements in writing (including a contingent fee agreement negotiated directly with a client) is cause for concern. More troubling is Valentine's admission that he reviewed the terms of Sverdlin's and Cunningham's contingent fee agreement on Sverdlin's behalf, as Sverdlin's "personal" lawyer, while at the same time claiming an interest in a percentage of the contingent fee provided for in the agreement. Valentine concedes in his appellate briefing that Cunningham asked him to "independently" review the contingency fee agreement for Sverdlin "to prevent any potential overreaching." Nevertheless, in light of our holdings that the summary judgment evidence affirmatively established that there was never an enforceable contract, we do not address Cunningham's arguments that Valentine violated disciplinary rules in the course of the underlying proceedings.
7. Valentine cites the affidavit testimony of William Patterson, Sverdlin's former father-in-law, who testified that he was at some of the meetings with Cunningham, Valentine, and Sverdlin when fees were discussed. Patterson's testimony is conclusory and does not support Valentine's claim for 15% of Cunningham's contingency fee. Patterson testified only that there was some sort of agreement between Cunningham and Sverdlin regarding fees, but Patterson provided no detail as to the terms of the alleged agreement. Additionally, most of Patterson's testimony concerns Sverdlin's alleged agreement to grant Valentine a 10% contingent interest in the case. Patterson's affidavit provides no evidence that Cunningham made any misrepresentations to Valentine.