In the Matter of a nontrivial retainer of $80.600 ... What if a lawyer agrees to represent a client in a theft case and gets paid (a retainer) with stolen money.

It sure makes for an interesting case, as this opinion from the Fourteenth Court of Appeals illustrates. As it turns out, if makes a difference whether or not, and when, the money was earned by the attorney, as opposed to just sitting in this trust account as a retainer. Here, the attorney didn't get to keep the money, even though he protested that he had already earned it. In the Matter of Approximately $80,600, (Tex.App. - Houston [14th Dist.] Nov. 3,2017) ("We hold that the evidence is legally and factually sufficient to support the trial court's denial of Fisch's claim that he had a superior right to possession of the money.") 

IN THE MATTER OF APPROXIMATELY $80,600.00.

Nos. 01-14-00424-CV, 01-15-00874-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued October 3, 2017.

R. Scott Shearer, for Abraham A. Fisch, Appellant.

Daniel C. McCrory, Robyn Ashley Brown, for State of Texas.

On Appeal from the 351st District Court, Harris County, Texas, Trial Court Case Nos. 1417446 & 1210228.

Panel consists of Justices Jennings, Higley, and Massengale.

OPINION

LAURA CARTER HIGLEY, Justice.

In two separate actions, Abraham Fisch sought to recover money taken from him based on the State's claim that the money had been stolen. The trial court denied, in both actions, Fisch's request to have the money returned to him. In one action, the trial court ordered the money be returned to a third party. 

In four issues on appeal, Fisch argues the trial court abused its discretion by denying his request for the money to be returned to him because (1) the seizure violated his client's right to counsel, (2) he had a superior right to possession of the money, (3) the money was seized in violation of his Fourth Amendment right against unlawful search and seizures, and (4) the order in one of the actions is void because the trial court acted outside its plenary power.

We affirm in both causes.

Background

On March 4, 2008, Dennis Pharris retained Fisch to defend him against a criminal indictment for theft (the "First Theft Cause"). Under the retention agreement for that cause, Pharris agreed to pay Fisch in installments for a fixed-fee, non-refundable retainer for Fisch's representation. The total amount owed depended on whether the second payment was made promptly and whether the cause went to trial.

Around November 3, 2008, Pharris wrote a check to Fisch for $80,600. Fisch deposited the money into an IOLTA account held by his law practice.

Pharris was later indicted with another offense of theft (the "Second Theft Cause"), and Pharris retained Fisch to represent him in that cause as well.^[1] In the Second Theft Cause, the State alleged that Pharris stole money from Vic Patel. Around the time of the Second Theft Cause, the State charged Pharris with some other crimes. During this time period, Fisch represented Pharris in at least two other matters.

During a bond hearing for the Second Theft Cause in April 2009, the State offered evidence that the $80,600 Pharris paid Fisch for representation in the First Theft Cause came from funds that the State alleged Pharris stole from Patel. After the hearing, Fisch moved money from the IOLTA account into a new account opened under his name. The State obtained a warrant and seized approximately $80,600 from this new account.

The State filed a motion in the Second Theft Cause, asking the court to release the seized money to whoever had the superior right of possession of the money. Fisch and Pharris filed a joint motion, requesting that the money to be returned to Fisch. They argued that Fisch had the superior right of possession.

The trial court held a hearing on the motion on March 4, 2010. At the hearing, Fisch admitted on the stand that, when he received the money from Pharris and placed it in an IOLTA account, the money belonged to Pharris. He also testified that the money was not his until it was earned. He acknowledged that he had not brought any documentation to establish when any of the money was earned. Instead, he explained that proof of his earning the money would come from his testimony. Fisch testified that he had earned the money before he learned it was stolen, but he did not provide any specific information to support this assertion.

Fisch also testified at the hearing that he had placed the money received from Pharris in an IOLTA account. He testified that he kept the money received from Pharris in this account until he earned it. Fisch identified only two withdrawals of the funds received from Pharris before money from his account was seized. Fisch said one withdrawal for $14,000 came from the money received from Pharris but provided no support for this assertion.

The second withdrawal occurred shortly after the bond hearing, during which Fisch learned that the money he received from Pharris had been stolen. Fisch testified that he believed he had earned all of the money received by Pharris at that point. He also testified that all of the money withdrawn on this second withdrawal was for money that he claimed was earned.

At the conclusion of the hearing, the trial court denied Fisch and Pharris's motion to return the money to Fisch.

On December 4, 2013, Pharris pleaded guilty in the Second Theft Cause. As of that date, the trial court had not determined who had the superior right of possession.

In February 2014, Fisch filed an independent action for release of the seized money (the "Independent Action").^[2] The action was filed with the same court as the Second Theft Cause. In that action, Fisch again alleged that he had the superior right to possession of the money and that, accordingly, the money should be returned to him. Fisch argued that the trial court's plenary power to determine the right of possession had expired under the Second Theft Cause. As a result, Fisch urged the trial court to determine the superior right of possession under his Independent Action.

The State prepared a response. It filed the response in both the Independent Action and the Second Theft Cause. The State argued that the trial court had not lost plenary power to determine the rightful owner of the property in the Second Theft Cause and urged the trial court to rule that the money should be returned to Patel.

The State attached to its response an affidavit from an investigator in the Consumer Protection Section of the Harris County District Attorney's Office. In the affidavit, the investigator averred that the money withdrawn from Fisch's IOLTA account during this second withdrawal was moved into a new account opened in Fisch's name.

The trial court held a hearing. At the conclusion of the hearing, the trial court denied Fisch's petition in the Independent Action and awarded the property to Patel under the Second Theft Cause.

Superior Right to Possession

In his second issue on appeal, Fisch argues the evidence is legally and factually insufficient to support the determination that the money should be returned to Patel. Fisch argues that he established that he had a superior right to possession of the money.

A. Standard of Review

When the appellate record includes the reporter's record, the trial court's factual findings, whether express or implied, may be challenged for legal and factual sufficiency. See McMahon v. Zimmerman, 433 S.W.3d 680, 691 (Tex. App.-Houston [1st Dist.] 2014, no pet.). We review the sufficiency of the evidence supporting a trial court's challenged findings of fact by applying the same standards that we use in reviewing the sufficiency of the evidence supporting jury findings. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

When deciding a legal-sufficiency challenge, we view the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. The evidence is legally sufficient if it would enable a reasonable and fair-minded person to reach the verdict under review. Id.

B. Analysis

Before the criminal trial in the Second Theft Cause, the State filed a motion in that cause for the disposition of the stolen property. See TEX. CODE CRIM. PROC. ANN. art. 47.02(b) (West Supp. 2016) (authorizing trial court, on written consent of prosecuting attorney, to determine right of possession of property when criminal case is pending). Fisch filed a motion, asking the trial court to determine that he had the superior right to possession. The trial court denied the motion but did not otherwise determine right to possession.

After Pharris pleaded guilty in the Second Theft Cause, Fisch filed his Independent Action, again seeking the determination that the money should be returned to him. SeeTEX. CODE CRIM. PROC. ANN. art. 47.01a(a) (West 2006) (authorizing trial court to determine right of possession of property when criminal a case is not pending). The State filed a response under both the Second Theft Cause and the Independent Action, opposing returning the money to Fisch. The State argued that, instead, the money rightfully belonged to Patel, the person from whom Pharris had stolen the money. Fisch challenges the trial court's rulings in both actions.

As an initial matter, we must determine who had the burden of proof before the trial court. "In the usual and ordinary case the burden of proof is . . . imposed on the plaintiff . . . because he asks for action on his behalf from the court, either preventive or in the nature of redress." Pace Corp. v. Jackson, 284 S.W.2d 340, 350 (Tex. 1955). The party seeking a change in the status quo is the one who bears the burden. See id.; Gonzalez v. Razi, 338 S.W.3d 167, 170 (Tex. App.-Houston [1st Dist.] 2011, pet. denied). 

In both actions, Fisch petitioned the trial court to order the money to be returned to him. Accordingly, because he sought the money to be returned to him, Fisch bore the burden of proving that he was the rightful owner of the money. See Pace Corp., 284 S.W.2d at 350; Gonzalez, 338 S.W.3d at 170.

It is undisputed that the money Fisch received from Pharris was stolen. One who acquires stolen property does not acquire its title. H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 508 (Tex. App.-Fort Worth 2012, no pet.). Title remains with the original owner, who can recover the property or its value from whomever has received it. Sinclair Hous. Fed. Credit Union v. Hendricks, 268 S.W.2d 290, 295 (Tex. Civ. App.-Galveston 1954, writ ref'd n.r.e.). The exception to this rule is for money. See id.; Tri-State Chems., Inc. v. W. Organics, Inc., 83 S.W.3d 189, 195 (Tex. App.-Amarillo 2002, pet. denied) (holding "as to personalty other than money, a thief cannot pass good title" (emphasis added)). "One who receives money which has been illegally obtained by a third party in due course of business, in good faith, and for valuable consideration, can keep it without liability to him from whom it was stolen." Sinclair Hous., 268 S.W.2d at 295.

Pharris retained Fisch for representation in the First Theft Cause. Pharris and Fisch entered into a retention agreement. Pursuant to that agreement, Pharris paid Fisch $80,600 around November 3, 2008. Fisch deposited the money into an IOLTA account.

Pharris was charged with theft in the Second Theft Cause in April 2009. During a bond hearing for the Second Theft Cause, the State offered evidence that the $80,600 Pharris paid Fisch for representation in the First Theft Cause came from funds that the State alleged Pharris stole from Patel. After the hearing, Fisch moved money from the IOLTA account into a new account opened under his name. The State obtained a warrant and seized approximately $80,600.

The State argues that Fisch did not receive the money in good faith because he learned of the stolen nature of the money before he moved it out of the IOLTA account. At the hearing when he first sought the return of the money under the Second Theft Cause, Fisch admitted on the stand that, when he received the money from Pharris and placed it in an IOLTA account, the money belonged to Pharris.^[3] See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) ("A judicial admission that is clear and unequivocal has conclusive effect and bars the admitting party from later disputing the admitted fact."). He also testified that the money was not his until it was earned. See id.

For proof that the money was earned before he learned that the money was stolen, Fisch acknowledged that he had not brought any documentation to establish when any of the money was earned. Instead, Fisch acknowledged that the sole source of this information would come from his testimony. Fisch testified that he had earned the money before he learned it was stolen. He did not otherwise support this assertion, however. He did not testify about the hours he worked within any specific time period, the work performed, or any billable rate agreed to by the client.

Even if Fisch's bare assertion that he had earned the money could support a determination that he had a superior right to possession, it does not compel such a determination. The trial court could have determined that Fisch's testimony was not credible, and we must defer to that determination. See City of Keller, 168 S.W.3d at 827.

Fisch also argues in this issue that the State failed to establish that the money it seized was the same money received from Pharris. Fisch argues in his brief, "After so many months and so many transactions through both accounts, there is no logical way to say that the money seized from Attorney Fisch's bank operating account is the same money initially deposited in Attorney Fisch's IOLTA account." Fisch testified at the March 4, 2010 hearing that he had placed the money received from Pharris in an IOLTA account. He also testified that he kept the money from Pharris in this account until he earned it. During cross examination by the State, Fisch discussed deposits and withdrawals from this account.

Fisch identified only two withdrawals of the funds received from Pharris before money from his account was seized. Fisch said one withdrawal for $14,000 came from the money received from Pharris. Fisch presented no support for this assertion, however. Nothing in the record establishes that the trial court was compelled to believe this statement. See id.

The second withdrawal occurred shortly after the bond hearing, during which Fisch learned that the money he received from Pharris had been stolen. Fisch testified that he believed he had earned all of the money received by Pharris at that point. He also testified that all of the money withdrawn on this second withdrawal was for money that he claimed was earned.

The record contains an affidavit from an investigator in the Consumer Protection Section of the Harris County District Attorney's Office. In the affidavit, the investigator averred that the money withdrawn from Fisch's IOLTA account during this second withdrawal was moved into a new account opened in Fisch's name. In addition, the money was seized five days after it was moved into the new account, and there is no indication that the money from Pharris left the second account once it was deposited. We hold there is sufficient evidence in the record that the money seized was the money received from Pharris.

We hold that the evidence is legally and factually sufficient to support the trial court's denial of Fisch's claim that he had a superior right to possession of the money.^[4] We overrule Fisch's second issue.^[5]

Constitutional Violations

In his third issue, Fisch argues that the money was seized in violation of his Fourth Amendment right against unlawful search. In his first issue, Fisch argues the State's seizure of the money violated his client's right to counsel.

A. Search and Seizure

Fisch argues that the seizure of the money by a search warrant violated his Fourth Amendment right against unlawful search and seizures because article 47.02

The State correctly points out that it did not obtain the warrant pursuant to article 47.02. Instead, it obtained the warrant pursuant to article 18.02 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 18.02(a)(1) (West 2016).

We overrule Fisch's third issue.

B. Right to Counsel

Fisch argues the State's seizure of the money violated his client's right to counsel. SeeU.S. CONST. amend. VI. Sixth Amendment rights are personal. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965). Personal rights can only be asserted by the person possessing them; a third party cannot assert them for the third party's benefit. See United States v. Johnson, 267 F.3d 376, 380 (5th Cir. 2001) (holding, because Sixth Amendment rights are personal, appellants lacked standing to assert its violation against another party); accord Edwards v. State, 497 S.W.3d 147, 160 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (holding, because Fourth Amendment rights are personal, they can only be asserted by party possessing them). Accordingly, Fisch cannot assert his client's Sixth Amendment rights for Fisch's benefit. See Johnson, 267 F.3d at 380. 

  

We overrule Fisch's first issue.

Conclusion

We affirm the trial court's judgment in both causes. 

[1] The Second Theft Cause is the same cause number (1210228) for one of the appellate cause numbers under review (01-15-00874-CV).

[2] The Independent Action is the same cause number (1417446) for one of the appellate cause numbers under review (01-14-00424-CV).

[3] On appeal, Fisch does not challenge the proof that the money was stolen. He only challenges whether he was aware that it was stolen before he acquired it. does not authorize the issuance of a warrant. See U.S. CONST. amend. IV.

[4] Also in his second issue, Fisch argues that Chapter 47 of the Texas Code of Criminal Procedural denied him his constitutional right to a trial by jury. Fisch raises a similar argument in his third issue. Fisch does not identify anywhere in the record where he raised this objection to the trial court and obtained a ruling. See TEX. R. APP. P. 33.1(a) (requiring party to present complaint to trial court and to obtain ruling in order to preserve issue for appeal); In re D.R., 177 S.W.3d 574, 580 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) (holding right to jury trial waived by failure to object to bench trial).

[5] The trial court signed two orders—one under each cause number—denying Fisch's request to have the money returned to him. Because we affirm this ruling, we do not need to reach Fisch's fourth issue, arguing that the trial court lacked plenary power to issue the order under one of those orders, the Second Theft Cause. SeeTEX. R. APP. P. 47.1. 

Caveat Appellant: Don't appeal a judgment without a Reporter's Record (unless its a summary judgment)

Court of Appeals concludes that Appellant-Defendant did not preserve his objection to the trial court’s lack of a court reporter for appeal. In the absence of a record of the trial proceedings (a bench trial), appellant could not show that the trial court judge committed reversible error by denying his motion for new trial or in awarding attorney’s fees. Judgment for Plaintiff in sworn-account suit is accordingly affirmed 
   
BACKGROUND
   
In September 2010, E&R Generation sued [Defendant] on a sworn account to recover unpaid invoices from a series of shoe shipments. Tex. R. Civ. P. 185. [Defendant] answered by an unverified general denial. [Defendant] also counterclaimed against E&R Generation for storage costs. Id. In January 2010, the trial court entered judgment in favor of E&R Generation for $89,396.10, plus $29,790.00 in attorney’s fees. [Defendant] timely filed a motion for new trial. In his motion for new trial, [Defendant] contended that he was unable to obtain competent counsel to properly defend his case. The motion was overruled by operation of law. Tex. R. Civ. P. 329b.

The appellate record does not contain a reporter’s record from the bench trial. A letter from the Official Court Reporter confirms that there is no record of any portion of the trial.

DISCUSSION
    
Failure to employ a court reporter
  
[Defendant] first asserts that the trial court erred, because it did not employ a court reporter during the trial as the law requires. Specifically, [Defendant] observes that Texas Government Code section 52.046 requires the court to appoint a court reporter to record the proceedings. Tex. Gov’t Code Ann. § 52.046(a) (West 2005).

A court reporter must transcribe court proceedings. Tex. Gov’t Code Ann. § 52.046(a). However, the parties may waive their right to a record. Tex. R. App. P. 13(a). In the absence of an express waiver, the failure to transcribe trial proceedings is error. In re Estate of Arrendell, 213 S.W.3d 496, 502 (Tex. App.—Texarkana 2006, no pet.) (court reporter’s failure to record proceedings constitutes error in the absence of an express waiver by parties); Reyes v. Credit Based Asset Serv. & Securitization, 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (court reporter’s failure to transcribe the proceedings in accordance with Tex. R. App. P. 33.1(a) is error). Nonetheless, to preserve this issue for appeal, the complaining party must object to the court reporter’s failure to record the proceedings. Tex. R. App. P. 33.1(a); Reyes, 190 S.W.3d at 740 ("[I]n order to preserve the error for appeal, a party has the burden of objecting to the court reporter’s failure to record the proceedings"); see Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 582 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (presuming sufficient evidence supporting judgment where defendant failed to request court reporter record county court bench trial).

[Defendant] contends that the trial court erred because his bench trial was not recorded, but raises this issue for the first time on appeal. He did not, for example, complain about the lack of a court reporter in his motion for new trial. In a similar case, this Court affirmed a trial court’s judgment—after a bench trial on the merits—because the party seeking reversal had not complained about the lack of a reporter in the trial court. Nicholson, 226 S.W.3d at 583. Because [Defendant] did not object to the absence of a court reporter either by motion or written objection in the trial court, we hold that he has failed to properly preserve the error. See Reyes, 190 S.W.3d at 740 (error not preserved without objection in the trial court); In re Estate of Arrendell, 213 S.W.3d at 502 (same).

Motion for New Trial

[Defendant] next asserts that the trial court abused its discretion when it overruled his motion for new trial. We review a trial court’s denial of a motion for a new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the abuse-of-discretion standard, we view the evidence in the light most favorable to the trial court’s actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

When no reporter’s record exists and the trial court has made no findings of fact, we presume that sufficient evidence supports the trial court’s judgment. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (holding that absent record, reviewing court must presume that evidence before trial court was adequate to support decision); Nicholson, 226 S.W.3d at 583 (assuming sufficient evidence supporting judgment in absence of reporter’s record). Without a reporter’s record, [Defendant] has not shown that the trial court abused its discretion in overruling the motion by operation of law. Moreover, with rare exception, a defendant is not entitled to court-appointed counsel in a civil case. Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003). Accordingly, we hold that the trial court did not abuse its discretion in overruling [Defendant]’s motion for new trial.

Attorney’s Fees

We review an award of attorney’s fees for abuse of discretion. Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). A decision to award attorney’s fees is an issue of fact. See Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex. App.—Corpus Christi 1989, writ denied); Magids v. Dorman, 430 S.W.2d 910, 912 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref. n.r.e.). "Where an appellant has not produced a record before this Court showing the evidence considered by the trial court in making the award, we cannot say that the trial court erred in the amount awarded." Houston Lighting & Power Co. v. Russo Props., Inc., 710 S.W.2d 711, 716 (Tex. App.—Houston [1st Dist.] 1986, no writ). Accordingly, we hold that the trial court did not abuse its discretion in awarding attorney’s fees.

Conclusion

[Defendant] objects to the absence of a court reporter for the first time on appeal. We conclude that, because [Defendant] did not challenge the lack of a reporter in the trial court, he has waived such a challenge on appeal. Without a record, we cannot find that the trial court abused its discretion in overruling [Defendant]’s motion for new trial or in awarding attorney’s fees. We therefore affirm the judgment of the trial court.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00044-CV - 11/10/11

Verbal Presentment of Claim Sufficient for Recovery of Attorney's Fees under Chapter 38 of the Civil Practice & Remedies Code

In an opinion issued today, Texas Supreme Court aspirant and current 14th Court of Appeals Associate Justice Jeff Brown writes that oral presentment of a claim is sufficient to satisfy the condition precedent for attorney fee recovery based on a successful breach-of-contract claim under Chapter 38 of the Civil Practice & Remedies Code.

Pleading that "all conditions precedent have been satisfied" is not required either as long as the Plaintiff proves that the claim was presented to the opposing party prior to attorney's fees being incurred in litigation.


Giannakopulos v. Eris (Tex.App.- Houston [14th Dist.] Feb. 9, 2010) (presentment of claim as condition precedent in attorney's fees claim based on breach of contract)

FROM THE OPINION: [which uses roman numerals as a structuring device, rather than descriptive subheadings, which would be a lot more reader- and search-engine-friendly]

In his first issue, Giannakopoulos contends the trial court erred in awarding attorney’s fees to Eris because Eris’s attorney failed to properly notice and present a claim under Chapter 38 of the Texas Civil Practice and Remedies Code. Specifically, Giannakopoulos contends Eris’s attorney failed to plead and prove that all conditions precedent had been met, and his demand letter did not satisfy Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded. Whether a party is entitled to recover attorney’s fees is a question of law for the court; the amount to be awarded is a question for the trier of fact. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). In the absence of findings of fact and conclusions of law, we will imply all findings necessary to the court’s judgment so long as the record supports them. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251–52 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

Section 38.001 provides that a person may recover reasonable attorney’s fees on a claim based on an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008).

To recover attorney’s fees, the claimant must comply with the following requirements of section 38.002: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered within thirty days of presentment. Id. § 38.002 (Vernon 2008).

Presentment of the claim is required to provide the other party with an opportunity to pay the claim before incurring an obligation for attorney’s fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required. France v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

All that is necessary is that a party show that its assertion of a debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to pay the claim. Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

It is undisputed that Eris pleaded for recovery of his attorney’s fees pursuant to Texas Civil Practice and Remedies Code section 38.001. Giannakopoulos complains, however, that Eris is not entitled to attorney’s fees because he failed to plead that “all conditions precedent have been performed or have occurred.” See Tex. R. Civ. P. 54. But the failure to plead that all conditions precedent have been met does not preclude an award of attorney’s fees; it merely requires the claimant to prove the requirements of section 38.002. See Wingate v. Acree, No. 14-01-00851-CV, 2003 WL 1922569, at *6 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 138 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see also Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ) (explaining generally that when a plaintiff fails to plead performance of conditions precedent she may nevertheless obtain judgment on her claim if she proves all essential elements of the claim, including the performance of any conditions precedent). Therefore, Eris’s failure to plead that all conditions precedent have been met will not preclude an award of attorney’s fees if he proved that he complied with the requirements of section 38.002.

Giannakopoulos contends, however, that Eris failed to show that he made a proper demand on him. He also contends that Eris’s demand letter failed to satisfy the requirements of Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded, but rather demanded payment in three days. We disagree.

At trial, Eris testified that he asked Giannakopoulos to pay his fifty percent of the additional property taxes, but Giannakopoulos refused and told Eris that he would have to pay the taxes. Oral presentment of a claim is sufficient to satisfy the presentment requirement; it is not necessary for a party to present a claim in writing. Jones, 614 S.W.2d at 100; Harrison, 982 S.W.2d at 719. Further, on January 26, 2007, Eris’s attorney sent a letter to Giannakopoulos’s attorney demanding that Giannakopoulos pay his fifty percent of the excess taxes for 2006 ($3,280.52) as the contract provided.

Although the letter demanded payment by January 30, 2007, we nevertheless conclude it is adequate to show presentment. See Harrison, 981 S.W.2d at 719 (holding employee’s oral demand for payment “when he got through with his two-week tour” satisfied presentment requirement); Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin 1987, writ denied) (holding letter requesting payment at unspecified time satisfied presentment requirement). Therefore, Eris’s oral and written requests for payment adequately presented Eris’s claim for purposes of section 38.002. We overrule Giannakopoulos’s first issue.

AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00566-CV Illas Giannakopulos v. Bill Eris
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher

Does Promissory Estoppel Claim Support Attorney Fee Award?

Are attorney's fees available on a successful promissory estoppel claim? The answer is not so clear as the courts of appeals are divided on the issue. Worse, the two Houston Courts of Appeals are on opposite sides of the divide, thus putting the courts below in the quandry of which authority to follow. Rather than resolving the issue - or calling upon the Supreme Court to do so for the benefit of all Texas courts and appellate jurisdictions - the First Court of Appeals here affirms attorney's fees on more conventional grounds sanctioned by statute: breach of contract.

Attorney’s fees challenge

Basis for fee award

Prince contends that the trial court erred in awarding QAI its attorney’s fees because Texas law does not allow an award of attorney’s fees based on a claim of promissory estoppel. Prince recognizes that Texas courts currently are split on this issue. Compare Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 635–38 (Tex. App.—Houston [14th Dist.] 2004, pet. abated) (holding that attorney’s fees are not recoverable under Tex. Civ. Prac. & Rem. Code § 38.001(8) for promissory estoppel claim because such claims presuppose no “oral or written contract”) (quoting Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002) (“promissory estoppel doctrine presumes no contract exists”)) with Preload Tech., Inc. v. A.B. & J. Constr. Co., 696 F.2d 1080, 1094–95 (5th Cir. 1983) (upholding attorney’s fees awarded under Texas law for promissory estoppel claim); Traco, Inc. v. Arrow Glass Co., 814 S.W.2d 186, 194–95 (Tex. App.—San Antonio 1991, writ denied); Safe Env’t v. Pelzel & Assocs., Inc., No. 3-09-00721-CV, 1999 WL 815819, at *31999 Tex. App. LEXIS 7628 (Tex. App.—Austin 1999, no pet.) (mem. op.).

Our precedent on this issue is contrary to the Fourteenth Court of Appeals’ decision in Sambuca. See Adams v. Petrade Int’l, 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.] 1988, writ denied). Nevertheless, we need not reconsider our position, because the trial court’s judgment does not specify the theory under which fees were awarded, and the trial court’s findings of fact and conclusions of law provide a contractual basis for the attorney’s fee award. Specifically, the trial court found that [...]

In its counterclaim, QAI sought its attorney’s fees as relief. The trial court’s findings of fact and conclusions of law support an award of attorney’s fees under the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008) (allowing for recovery of reasonable attorney’s fees on claim for oral or written contract). The findings identify an agreement among the parties; Prince’s breach of that agreement; and damages incurred by QAI resulting from that breach. The issue of whether the cash flow statement was a settlement agreement, the breach of which would support an award of attorney’s fees, was tried by consent. See Tex. R. Civ. P. 67. Prince does not challenge any of the trial court’s findings of fact and conclusions of law.

We conclude that the fee award does not rest on a promissory estoppel theory. We hold that the applicable statutory authority and the evidence support the trial court’s award of attorney’s fees.

Lee-Way Prince Enterprises, LLC v. Qai Assurance, Inc. (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Bland)(award of attorney’s fees on contract breach attorney's fees for promissory estoppel claim, breach of ontract, breach of settlement agreement, common-law fraud)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-07-01004-CV Lee-Way Prince Enterprises, LLC v. Qai Assurance, Inc. and Arthur Kwok
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John T. Wooldridge

Caveat Counsel: Cursory Attorney's Fee Testimony Found Insufficient

CAUTIONARY TALE: FEE AWARD THROWN OUT FOR LACK OF PROPER EVIDENCE TO SUPPORT IT.

Message to the Plaintiff's bar from higher realms above: Be careful how you go about proving up reasonable and necessary attorney's fees in a contingency fee case. Just establishing the existence of a contingency fee contract and a few resume items will not do.

MIND THE ARTHUR ANDERSEN FEE FACTORS

Attorney's Fees

In its first issue, O&B asserts that the evidence is legally insufficient to support an award of attorney's fees. The jury was asked to determine “a reasonable fee for the necessary services" of appellees' attorney and awarded $3,350. O&B argues the evidence is insufficient to show that amount was reasonable and necessary.

Appellees' attorney's testimony in support of attorney's fees was very brief. After stating where he went to law school, counsel testified that he had been practicing law for eight years, “was familiar with rates . . . charged by attorneys," and had spent about 172 hours on the case. He explained that he had a contingent fee contract with the appellees that provided he would receive one-third of any recovery as his fee.

This evidence is insufficient to support an award of attorney's fees.

The jury was asked to award reasonable and necessary attorney's fees, but appellees did not provide sufficient evidence for the jury to evaluate what was reasonable and necessary.

A contingent fee agreement alone is not a sufficient basis to determine an appropriate fee award. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997); San Antonio Credit Union v. O'Connor, 115 S.W.3d 82, 105-06 (Tex. App.-San Antonio 2003, pet. denied).

That a plaintiff and his attorney agree on a fee does not establish that such a fee is reasonable and appropriate to shift to the defendant. Arthur Andersen, 945 S.W.2d at 818. Rather, a plaintiff must request a specific amount of fees, not a percentage of the damages, and must show that the amount requested is reasonable and necessary. See id. at 819; Castle Tex. Prod. Ltd. P'ship v. Long Trusts, 134 S.W.3d 267, 278-79 (Tex. App.-Tyler 2003, pets. denied); San Antonio Credit, 115 S.W.3d at 106.

Factors to consider when determining if a fee request is reasonable are:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Arthur Andersen, 945 S.W.2d at 818 (quoting Tex. R. Disciplinary P. 1.04, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005) (alteration in original)).

Counsel's bare testimony of the name of his law school, his years practicing, and the hours he worked on the case does not establish that any particular fee is reasonable. Indeed, though he testified he is familiar with the rates attorneys charge, he did not specify to which attorneys he was referring and never stated that their fees are reasonable. Further, he did not request a specific amount of fees, instead testifying that appellees had agreed to pay him a percentage of their recovery. [2]

We conclude that this evidence is legally insufficient to give the jury a basis for determining that any amount of attorney's fees was reasonable and necessary. See Arthur Andersen, 945 S.W.2d at 819; see also San Antonio Credit, 115 S.W.3d at 106-07 (rendering take nothing judgment on attorney's fees claim, noting claimant relied on contingent fee and did not present evidence “that a specific amount of money was a reasonable attorney's fees award"). We sustain O&B's first issue.

SOURCE: O and B Farms, Inc.v. Black (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Yates) (fraud and civil conspiracy claims award of attorney's fees, exemplary damages reversed) (breach of contract damages proven)(contingency fee contract insufficient to establish reasonable attorney's fees) (detrimental reliance as element of fraud cause of action)
AFFIRMED AS MODIFIED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00595-CV O and B Farms, Inc., and B and O Farms, LLC v. Eldon Jay Black, Kevin Lee
Donahoo, Thomas David Horrell, Jr., Charles Richard Weeks, Ronald Russell Swisshelm, and Casey Ross Gray
Appeal from 220th District Court of Hamilton County
Trial Court Judge: Hon. James E. Morgan

Withdrawal of counsel for nonpayment of fees gets clients no sympathy

Denial of Motion for Continuance (made orally in mid-trial) was not error, court of appeals says.

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008) (Hanks)

In issue two, the Loftons argue that the trial court erred in refusing to allow them sufficient time to retain legal counsel by denying their request to continue the case.

We review the grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The Loftons’ attorney withdrew from the case. The Loftons contend that they were not notified of the withdrawal hearing or informed that the attorney had withdrawn. Once they were notified, the Loftons represent that they “sought diligently to secure legal representation in the rural and surrounding area where they reside.” They further assert that, due to their “extremely modest means, ethnicity, and lack of sophistication,” they should be given additional time to find competent counsel.

The record reflects that the Loftons’ attorney withdrew because the Loftons had not paid his fees.

It also reflects that the Loftons were aware of his withdrawal more than five months before the trial setting. Furthermore, the Loftons’ request for a continuance was made orally after Dyer had rested his case and after the Loftons had cross-examined two witnesses. Accordingly, we hold that the trial court did not abuse its discretion in denying the oral motion for continuance. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 917, 928 (Tex. App.—Dallas 2003, pet. denied).

We overrule issue two.

He who represents himself ...

Pro se divorce litigant avoided spending money on a lawyer of his own, but ends up having to pay for wife's lawyer. Panel of Houston Court of Appeals - referring to family court judge as an institutional "it" (as is the custom) - approves.

Appellant Has Not Shown The Trial Court Abused Its Discretion When It Ordered Appellant To Pay Appellee's Attorney's Fees

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Anderson) (divorce, attorney's fees as part of property division)

In his third issue, appellant contends the trial court abused its discretion when it awarded appellee her attorney's fees as part of the Final Decree of Divorce. In appellant's view, the trial court erred because appellee did not include a request for attorney's fees in any of her pleadings.
We review a trial court's award of attorney's fees for an abuse of discretion. Panozzo v. Panozzo, 904 S.W.2d 780, 785 (Tex. App.- Corpus Christi 1995, no writ). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding principals. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

A trial court may apportion attorney's fees in a divorce action as part of a just and right division of the property. Henry v. Henry, 48 S.W.3d 468, 480 (Tex. App. - Houston [14th Dist.] 2001, no pet.). Attorney's fees incurred by both spouses during the divorce are a factor to be considered by the trial court in making an equitable division of the marital estate. Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005 (1950). The fact the final divorce decree in this case does not include the attorney fee award in the list of property awarded to appellee cannot be viewed as an indication the attorney's fees were not considered in the division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

In her Original Petition for Divorce, appellee asked the trial court, in the event the parties could not agree on a property division, to divide the marital estate in a manner the trial court deemed just and right and as provided by law. In addition, in appellee's Original Answer to appellant's counterclaim, appellee asked for her attorney's fees as part of an equitable division of the estate or, alternatively, they be taxed as costs.

Pleadings are to be liberally construed in favor of the pleader, particularly when, as here, the complaining party did not obtain a ruling on his special exceptions. See Tull v. Tull, 159 S.W.3d 758, 762 (Tex. App.- Dallas 2005, no pet.). The purpose of the pleading is to give notice of the claim involved. Id. Appellee's pleadings adequately apprised appellant that appellee was seeking the recovery of her attorney's fees as part of her suit for divorce.[1] We overrule appellant's third issue.

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Opinion by John Anderson)
(divorce, waiver of jury trial, local rules, attorney's fees)
Opinion by Justice John Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County (Hon. Bonnie Crane Hellums)
Disposition: Affirmed

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.