Williams v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Radack)
(attorney fee dispute, sworn account suit, no duress, no excuse to payment)
[N]othing 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. [...] 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.
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00850-CV Charlie C. Williams v. Freddie N. Jackson
Appeal from Co Civil Ct at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
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.