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Opinion issued October 9,
2008

In
The

Court of
Appeals

For
The

First
District of Texas

____________

NO. 01-07-00850-CV

____________

CHARLIE C. WILLIAMS, Appellant

V.

FREDDIE N. JACKSON, Appellee

On Appeal
from County Civil Court at Law No. 4

Harris County, Texas

Trial Court
Cause No. 844301

MEMORANDUM
OPINION

This is
suit to collect unpaid attorney's fees. Appellant, Charlie C. Williams,
appeals from a judgment that awarded appellee, Freddie N. Jackson,
$8,446.76, plus interest and costs, in accordance with jury findings that
Williams did not comply with his agreement to pay Jackson, that Williams's
failure to pay was not excused by a failure of Jackson to comply with a
material obligation of the same agreement or by duress by Jackson, and
that $8,446.76 would fairly and reasonably compensate Jackson for
Williams's failure to pay. Williams's first issue challenges the
sufficiency of the evidence to support the jury's verdict. In four
additional issues, Williams contends that (1) Jackson created a conflict
of interest by filing this lawsuit and thereby breached the contract, (2)
Jackson's alleged failure to bill Williams monthly constituted an initial,
material breach of the contract that excused Williams's failure to pay,
(3) Jackson is barred from recovering fees billed for secretarial or
paralegal work, and (4) Jackson's trial exhibits should have been excluded
based on Jackson's failure to respond to a discovery request. We
affirm.

Background
Williams and Jackson are both attorneys. This litigation derives from a
written agreement by which Williams retained Jackson to represent him in a
real-property dispute that involved a cloud on property owned by Williams
and allegations that accused Williams of fraud and breach of fiduciary
duty. On August 13, 2004 the two men signed a fee agreement during that
meeting. Williams paid Jackson the $4,000 retainer required by the
agreement, which recited Jackson's rate for legal services as $200 per
hour and required that Williams pay all costs. The fee agreement required
Jackson to bill "promptly" and Williams to pay "promptly." The agreement
did not require monthly billing.

Jackson
prepared a no-evidence motion for summary judgment in the real-property
dispute; he prevailed on that motion, recovered a judgment in January
2005, and successfully defended the opponent's motion for new trial. After
the opponent appealed, Jackson attempted to check out the record to
prepare an appellee's brief and learned only then Williams had checked out
the record and intended to handle the appeal pro se. Jackson stopped
working on the appeal after Williams "fired" him.

This
litigation ensued as a suit on a sworn account when Williams refused to
pay the outstanding balance due Jackson. Jackson and Williams were the
only witnesses who testified at trial, and the fee agreement and Jackson's
billing statements were the only evidentiary exhibits. Williams filed a
motion for judgment notwithstanding the verdict (JNOV) and also filed a
motion for new trial, which was overruled by operation of law.

Legal
Sufficiency

In
his first issue, Williams argues that the evidence is legally insufficient
to support the jury's response to question three of the charge because the
record conclusively establishes (1) that he was under duress when he
signed the fee agreement with Jackson and (2) that he was therefore not
bound by that agreement. Williams frames this issue as a challenge to the
refusal of the trial court to grant Williams's motion for JNOV.
(1)

A.
Standard of Review

A court may
disregard a jury's verdict and render judgment notwithstanding the verdict
(JNOV) if no evidence supports the jury's findings, or if a directed
verdict would have been proper. Tiller v. McClure, 121 S.W.3d
709, 713 (Tex. 2003) (citing Brown v. Bank of Galveston, Nat'l
Ass'n, 963 S.W.2d 511, 513 (Tex. 1998)); Williams v.
Briscoe, 137 S.W.3d 120, 124 (Tex. App.--Houston [1st Dist.] 2004, no
pet.). To determine whether a JNOV is appropriate, we apply the standards
that govern "no evidence," i.e., legal-sufficiency, review. See
Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003);
Williams, 137 S.W.3d at 124; see also City of Keller v.
Wilson, 168 S.W.3d 802, 823 (Tex. 2005) ("[T]he test for legal
sufficiency should be the same for summary judgments, directed verdicts,
judgments notwithstanding the verdict, and appellate no-evidence
review.").

A legal
sufficiency point must be sustained: (1) when there is a complete absence
of a vital fact; (2) when rules of law or evidence preclude according
weight to the only evidence offered to prove a vital fact; (3) when the
evidence offered to prove a vital fact is no more than a scintilla; or (4)
when the evidence conclusively establishes the opposite of the vital fact.
See id., 168 S.W.3d at 810. Under the
legal-sufficiency standard, we must credit evidence that supports the
judgment if reasonable jurors could, and we must disregard contrary
evidence unless reasonable jurors could not. See City of Keller,
168 S.W.3d at 827. If the evidence falls within the zone of reasonable
disagreement, we may not invade the fact-finding role of the jurors, who
alone determine the credibility of the witnesses, the weight to give their
testimony, and whether to accept or reject all or any part of that
testimony. See id. at 822. Unless "there is no favorable
evidence" to support the challenged finding or "if contrary evidence
renders supporting evidence incompetent . . . or conclusively establishes
the opposite" of the finding, we must affirm. See id. at
810-11.

B.
Duress by Jackson not Shown

Williams
challenges the jury's failure to find, in response to question 3 of the
jury charge, that duress by Jackson invalidated their fee agreement.
Coercion or taking an unjust advantage by one party to a contract may
invalidate the contract and render it unenforceable.
See Brown v. Cain Chem., Inc., 837 S.W.2d 239, 244 (Tex.
App.--Houston [1st Dist.] 1992, writ denied). To establish economic duress
sufficient to invalidate a contract, three elements must be present: (1) a
threat to do something a party has no legal right to do, (2) an illegal
exaction of some fraud or deception, and (3) an imminent restraint that
destroys the victim's free agency without a present means for protection.
Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.--Houston [14th
Dist.] 2004, pet. denied) (citing Dale v. Simon, 267 S.W. 467,
470 (Tex. Comm'n App. 1924)); Simpson v. MBank Dallas, N.A., 724
S.W.2d 101, 109 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). Duress must
derive from acts or conduct of the party accused of duress; the emotions
of the purported victim do not suffice. See Brown, 837 S.W.2d at
244. Because "[t]he compulsion must be actual and imminent, and not merely
feigned or imagined," the acts of the defendant must be "such as to
destroy free agency without present means of protection." Sudan v.
Sudan, 145 S.W.3d 280, 292 (Tex. App.--Houston [14th Dist.] 2004)
(quoting Ward v. Scarborough, 236 S.W. 434, 437 (Tex. 1922)),
rev'd on other grounds, 199 S.W.3d 291 (Tex. 2006).

As in
Brown, there is no evidence in this case that Jackson coerced or
threatened Williams and, thus, no evidence of the first element that
Williams had to prove in order to prevail on the affirmative defense.
See Brown, 837 S.W.3d at 244. Williams also failed to show that
the alleged coercion by Jackson was imminent and effectively removed his
freedom not to sign the fee agreement that Jackson proposed. See
Sudan, 199 S.W.3d at 292. Williams negated that element by his own
testimony that he signed the agreement "voluntarily." Though Williams
claims he was "distraught," and Jackson agreed that Williams was
distraught, the emotional state of the complaining party does not
establish duress. See Brown, 837 S.W.2d at 244.

When viewed
in the requisite light, which must favor the jury's verdict, the evidence
is legally insufficient to establish that Williams signed the fee
agreement only because of duress directed at him by Jackson. We overrule
issue one.

B.
Williams's Failure to Pay Jackson Not Excused

In issue
three, Williams challenges the jury's failure to find, in response to
question two of the jury charge, that Jackson breached the fee agreement
and thus discharged Williams of his duty to pay Jackson.
(2) According to Williams, the record establishes that Jackson
did not bill Williams "monthly," and therefore establishes an initial
breach that discharged Williams from any liability for failing to pay
Jackson as a matter of law.

Williams's
arguments invoke the well-settled principle that a material breach by one
party to a contract can excuse the other party from any obligation to
perform. See Mustang Pipeline Co. v. Driver Pipeline Co., 134
S.W.3d 195, 196 (Tex. 2004) ("It is a fundamental principle of contract
law that when one party to a contract commits a material breach of that
contract, the other party is discharged or excused from further
performance."). We construe Williams's point of error as challenging the
legal sufficiency of the evidence to support the jury's failure to find
that a breach of the fee agreement by Jackson discharged Williams's
obligation to pay. See City of Keller, 168 S.W.3d at 810
(stating that
evidence may be legally insufficient when rules of law or evidence
preclude according weight to only evidence offered to prove vital
fact).

Whether a
party to a contract has breached the contract is generally a question of
law for the court, which determines as a matter of law what the contract
requires of the parties. See Meek v. Bishop Peterson & Sharp,
P.C., 919 S.W.2d 805, 808 (Tex. App.--Houston [14th Dist.] 1996, writ
denied). When the terms of a contract are clear and
unambiguous, and the facts concerning breach or performance are undisputed
or conclusively established, the trial court decides, as a matter of law,
whether the facts show performance or breach. See id. Resolution
by the fact-finder is appropriate to resolve underlying factual disputes
that pertain to the alleged breach, but not the breach itself. See
id.

Materiality
of a breach--the question whether a party's breach of a contract will
render the contract unenforceable--generally presents a dispute for
resolution by the trier of fact. See Continental Dredging, Inc. v.
De-Kaizered, Inc., 120 S.W.3d 380, 394-95 (Tex. App.--Texarkana 2003,
pet. denied) (citing Hudson v. Wakefield, 645 S.W.2d 427, 430
(Tex. 1983)). Materiality of a breach and the resulting unenforceability
of the agreement breach can, however, present questions for the court to
resolve as a matter of law. See Mustang Pipeline Co., 134 S.W.3d
at 198-200 (holding that material breach occurred as matter of law, given
that contract stated that "'all time limits . . . are of the essence";
further holding that breach discharged Mustang from further performance).

In
Mustang Pipeline, the supreme court relied on two provisions of
the Restatement of Contracts relating to materiality of a breach of
contract. See id. (citing Restatement (Second) of Contracts §§
241-242 (1981)). Section 241 of the Restatement lists five "circumstances"
that are "significant in determining when a failure to perform is
material," and section 242 lists two additional factors that are
"significant in determining whether a party's duties are discharged
. . . due to the other party's material breach." Id.
(Emphases added.)

Pertinent
to this case, in which Williams challenges the jury's failure to find that
he was discharged from his duty to pay Jackson, section 242 of the
Restatement (Second) of Contracts addresses the implications of time
deadlines stated in a contract for deciding whether alleged breach of a
deadline by the party seeking enforcement of a contract--here Jackson, who
did not bill Williams "monthly"--will discharge the other party to the
contract--here, Williams--of any duty to comply with the contract. See
id. Pursuant to subsection (2) of section 242 of the Restatement,
"the extent to which the agreement provides for performance without delay"
is a circumstance that affects materiality of lack of timely performance.
Mustang Pipeline Co., 134 S.W.3d at 199 (citing Restatement
(Second) of Contracts § 242). More specifically, and pertinent to the
controversy here, section 242(2) further states that

[A]
material failure to perform or to offer to perform on a stated day
does not of itself discharge the other party's remaining duties
unless the circumstances, including the language of the agreement,
indicate that performance or an offer to perform by that day is
important.

Id.
(Emphasis added.)

The record
establishes that, although Jackson described his billing requirement at
trial as a "monthly" obligation, the fee agreement required only that he
"bill [Williams] promptly," which then required Williams to "pay . . .
promptly." In contrast to the Mustang Pipeline contract, the
Jackson-Williams fee agreement does not impose a duty of compliance on
either a stated day or without delay. See Mustang Pipeline Co.134
S.W.3d at 199. Likewise, nothing in the fee agreement suggests that the
requirement of "prompt" billing is of the essence, to the extent that it
serves as a predicate to compliance by Williams with his duty to pay
Jackson. See id. The fee agreement provides no basis, therefore,
to support Williams's contention that Jackson's lack of compliance, if
any, with his duty of "prompt" billing discharged Williams as a matter of
law from any duty to comply with the fee agreement by paying Jackson.
See id. (citing Restatement (Second) of Contracts § 242(2)).

We overrule
issue three.

Breach of
Contract Defenses

In
issues two and four, Williams challenges and raises defenses to
enforcement of the fee agreement against him, as follows: in issue two, he
claims that a conflict of interest barred Jackson from initiating this
lawsuit; in issue four, Williams argues that Jackson's work included
billing entries for clerical or secretarial duties, for which Williams
contends he had no duty to compensate Jackson, and, in addition, that
Jackson's fees were unreasonable.

A trial
court "shall submit the questions, instructions[,] and definitions" that
"are raised by the written pleadings and the evidence." Tex. R. Civ. P.
278. Williams raised the issues addressed in his second and fourth issues
as affirmative defenses to Jackson's suit to enforce their fee agreement
as a sworn account. To the extent that the evidence raised those issues,
Williams was entitled to a jury's determination of any factual disputes
regarding those issues. See id. We need not address whether the
evidence raised material issues of fact for the jury to decide regarding
these issues in this case, however, because Williams did not request that
the trial court include either questions or instructions regarding the
issues as part of the jury charge.

A party
waives "all independent grounds of recovery or of defense" when
that party does not submit its claim of recovery or defense to the jury or
request that the jury determine any element of its claim or defense,
unless the evidence "conclusively establishe[s]" the claim or defense.
See Tex. R. Civ. P. 279 (emphasis added). In this case, Williams
did not propose that the jury determine pertinent dates relating to
Jackson's representation in support of his claim that a conflict precluded
this lawsuit. Likewise, Williams did not request that the trial court
instruct the jury that, in determining whether Williams failed to comply
with the fee agreement, in response to question one of the jury charge,
the jury exclude from its consideration any work that Williams challenged
as "secretarial" and any fees that Williams challenged as "unreasonable."
The evidence does not conclusively establish either defense, and Williams
does not contend otherwise. See id. Accordingly, Williams waived
jury consideration of those issues. See id.
(3)

We overrule
issues two and four.

Admissibility of Jackson's Trial Exhibits

In his
fifth issue, Williams argues that the trial court erred by admitting
Jackson's two trial exhibits into evidence because of pretrial discovery
violations by Jackson. Jackson's two exhibits are the fee agreement and
his billing invoices. Williams has waived any challenge to either exhibit
because the record reflects that his counsel confirmed on the record that
both exhibits were to be admitted without objection. See Tex. R.
App. P. 33.1 (a); see also Tex. R. Evid. 103(a)(1) (stating
requirement of objection); In re C.O.S.S., 988 S.W.2d 760, 765
(Tex. 1999) (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.
1982)).

We overrule
issue five.

Conclusion

We affirm
the judgment of the trial court.

Sherry Radack

Chief Justice

Panel
consists of Chief Justice Radack and Justices Nuchia and
Higley.

1. To preserve a
complaint for review on appeal, a party must present to the trial court a
timely request, motion, or objection that states the specific grounds for
the ruling requested and conforms to the requirements of the Rules of
Procedure and Evidence. See Wal-Mart Stores, Inc. v. McKenzie,
997 S.W.2d 278, 280 (Tex. 1999); Tex. R. App. P. 33.1(a)(1)(A)-(B). The
complaining party must also show that the trial court ruled on the
request, objection, or motion "either expressly or impliedly." Tex. R.
App. P. 33.1(a)(2)(A).

Williams
filed his motion for JNOV on June 25, 2007, two days before the trial
court signed the judgment in favor of Jackson. As supplemented pursuant to
this Court's notice, the record on appeal shows that the trial court never
ruled on Williams's motion for JNOV.

In
Chilkewitz v. Hyson, as here, the trial court signed a judgment
in favor of the prevailing party after the complaining party sought to set
aside a jury's verdict by filing a motion for JNOV. 22 S.W.3d 825, 828
(Tex. 1999). The supreme court stated that the trial court had impliedly
overruled the complaining party's motion for JNOV by rendering judgment in
favor of the prevailing party. Id. Under the Chilkewitz
reasoning, we may infer from the judgment rendered in favor of Jackson in
this case on June 27, 2007 that the trial court implicitly overruled
Willams's motion for JNOV. See id. We therefore hold that
Williams preserved his challenge to the trial court's failure to grant
that motion and thus complied with rule 33.1(a)(2).

2. Question two of the jury charge asked whether
Williams's "failure to comply with the agreement [was] excused" and
instructed the jurors that "Failure to comply by [Williams] is excused by
[Jackson's] previous failure to comply with a material obligation of the
same agreement." The jury answered "No." Williams's contentions do not
include a challenge to the jury's implied finding that any breach by
Jackson was not a material breach.

3. We note further that Williams did not raise any
issue regarding Jackson's alleged conflict of interest in the trial court
in order that the trial court resolve that issue as a matter of law.