Tonkin v. Amador (Tex.App.- Houston [1st Dist.] May 21, 2009)(Alcala)
(attorney fee litigation, promissory note, material terms of note, evidence of reasonableness of attorney's fees
AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Judge Wilson, Justices Alcala and Hanks
01-07-00496-CV Ronald H. Tonkin v. Lee Roy Amador
Appeal from County Civil Court at Law No 3 of Harris County
Trial court judges: Linda Storey; Visiting Judge Ed Landry

MEMORANDUM OPINION

This appeal involves an attorney-client dispute concerning unpaid fees for legal services rendered. Appellant
and cross-appellee, Ronald H. Tonkin, appeals from a jury trial award in favor of appellee and
cross-appellant, Lee Roy Amador. In five issues, Tonkin contends the trial court erred by (1) entering final
judgment that Tonkin recover $22,932.27 because Tonkin was entitled as a matter of law to recover
$42,024.96; (2) denying Tonkin's motion for judgment notwithstanding the verdict (JNOV) because Tonkin
was entitled as a matter of law to recover the amount stated on the promissory note; (3) failing to award
reasonable attorney's fees at trial; (4) refusing reasonable attorney's fees for appeal; and (5) denying the
motion for reconsideration by the visiting judge of the sitting judge's denial of the motion for JNOV. In the sole
cross-issue, Amador contends the trial court erred by refusing to submit a jury question on the affirmative
defense of excessive demand. We affirm.

Background

In 2004, Amador hired Tonkin as his attorney to pursue an employment-discrimination claim against the Texas
Department of Public Safety. In exchange for the legal services provided by Tonkin, Amador agreed in writing
to pay $350 per hour for Tonkin's services, $150 per hour for services by Tonkin's associates, $75 per hour
for paralegal services, a $5000 retainer, and 25 percent of any damages awarded to Amador if Amador
succeeded in his discrimination claim. Amador made four payments totaling $3495 but made no further
payments.

According to Tonkin's records, Tonkin worked on Amador's case for a total of 38 hours. Associate and
paralegal work totaled 85.75 hours. The total charge for work and expenses related to Amador's case was
$25,115.85, so Amador owed $21,620.84 after crediting Amador's payments. For unexplained reasons,
Tonkin discounted the $21,620.84 debt to $18,245.84.

According to Tonkin, in 2005, Amador signed a $18,245.84 promissory note to Tonkin. But according to
Amador, the promissory note was blank at the time he signed it. Amador testified that he knew he owed some
amount of money to Tonkin but was unaware Tonkin was claiming the unpaid balance was over $18,000.
Amador made no payments on the promissory note. Amador also said that he never received monthly
statements, even though the agreement required them.

Tonkin filed suit alleging four causes of action: breach of contract on both the attorney-client agreement and
the promissory note, fraud, and quantum meruit. Tonkin claimed $18,245.84 in damages relating to the
breach of contract and requested $16,680 in attorney's fees for trial plus $15,000 if the case was appealed to
an appellate court and $15,000 if the case was appealed to the Texas Supreme Court.

The case proceeded to a three-day jury trial over which visiting Judge Ed Landry presided while Judge Linda
Storey was on leave. The jury awarded Tonkin $9122.92 for breach of the attorney fee agreement, $1690.50
in quantum meruit, $8340 in reasonable attorney's fees plus $7500 if the case was appealed to an appellate
court plus $7500 if the case was appealed to the Texas Supreme Court. The jury determined that Tonkin and
Amador agreed to the material terms of the promissory note and that Amador breached that note, but the jury
awarded Tonkin nothing as a result of that breach. Tonkin submitted a motion for JNOV after Judge Storey
returned from leave, and Judge Storey denied the motion. Tonkin then made a motion to refer his motion for
reconsideration to visiting Judge Landry, which Judge Storey also denied.

Amount of Damages

In his first issue, Tonkin asserts the trial court erred by denying his motion for JNOV because the evidence
proved that Tonkin is entitled to $18,245.84 as a matter of law, since that was the amount shown on the
promissory note.

A motion for directed verdict or motion for judgment notwithstanding the verdict preserves a legal-sufficiency
challenge. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991). "The final test for legal sufficiency must
always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Legal-sufficiency review in the
proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not. Id. If the evidence would enable reasonable and fair-minded people to differ in
their conclusions, then jurors must be allowed to do so. Id. at 822. A reviewing court cannot substitute its
judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable
disagreement. Id. Although the reviewing court must consider evidence in the light most favorable to the
verdict, and indulge every reasonable inference that would support it, if the evidence allows only one
inference, neither jurors nor the reviewing court may disregard it. Id.

Tonkin asserts that the jury's answers to questions five and six are dispositive, and that they contradict the
jury's answer to question seven. Question five asks, "Did Ronald H. Tonkin and Lee Roy Amador agree to the
material terms of the promissory note made June 10, 2005 and as evidenced by [the attorney services
agreement]?" The jury answered, "Yes." The charge, however, never defined "material term." Question 6
asks, "Did Lee Roy Amador breach the Promissory Note Agreement with Ronald H. Tonkin made June 10,
2005 and evidenced by Plaintiff's Exhibit No. 28?" The jury answered, "Yes." Question seven asks, "What sum
of money, if any, if paid now in cash, would fairly and reasonably compensate Ronald H. Tonkin for his
damages, if any, that resulted from Lee Roy Amador's Breach of the Promissory Note Agreement with Ronald
H. Tonkin made June 10, 2005 and evidenced by Plaintiff's Exhibit No. 28?" The jury answered, "$0."

Tonkin asserts that "[a]lthough there may be a dispute as to the validity or terms of a promissory note, if one
party does not dispute the amount of the deficiency owed on the note, the deficiency is proven as a matter of
law." Tonkin asserts that by answering question five in the affirmative, the jury concluded that Amador agreed
to pay Tonkin $18,245.84. Tonkin contends the damage amount is $18,245.84, because the jury concluded
that Amador breached the note, and because it was undisputed that Amador made no payments on the note.
Tonkin therefore asserts the jury's conclusion that Tonkin's damages for breach of contract were $0 is
against the great weight and preponderance of the evidence.

Amador responds that the deficiency was not proven as a matter of law because the amount of the deficiency
was in dispute. Additionally, Amador points out that during deliberations, the jury asked the trial court whether
the total amount due under the promissory note constituted a material term of the note. The trial court
declined to answer the question directly, instructing the jurors to only consider the evidence introduced at
trial. Based on the jury's question, Amador asserts that the jury did not consider the amount of the note to be
a material term.

First, we address Amador's suggestion that the jury did not believe the amount of the note was a material
term when it answered question five in the affirmative. A "material term" is "[a] contractual provision dealing
with a significant issue such as subject matter, price, payment, quantity, quality, duration, or the work to be
done." Black's Law Dictionary (8th ed. 2004). Had this definition of "material term" been given to the jury, the
jury would necessarily have had to determine that the amount on the note was a material term. However, no
definition of "material term" was given to the jury in question five, even after the jury specifically asked for a
definition when it was deliberating. Because question five used the phrase "material terms of the promissory
note" without defining for the jury what was meant by "material terms," nothing in the jury charge guided the
jury to consider the amount on the note a material term of the note. Because Tonkin failed to define "material
terms" for the jury, he cannot now complain that the jury may have used its own definition for that term, such
as a definition that does not consider the amount on the note to be a "material term." See Osterberg v. Peca,
12 S.W.3d 31, 55 (Tex. 2000) ("[I]f the trial court has 'to resolve a legal issue before the jury could properly
perform its fact-finding role[,] . . . a party must lodge an objection in time for the trial court to make an
appropriate ruling without having to order a new trial.'" (quoting Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91,
94 (Tex. 1999))). In this case, Tonkin had two opportunities to request a proper instruction: at the time the
issue was first presented to the jury, and again in response to the jury's question. Tonkin made no such
request.

The jury's affirmative answer to question five that Tonkin and Amador agreed to the material terms of the
promissory note is consistent with the jury's answer to question seven, where the jury determined that Tonkin
had no damages as a result of the breach. These answers are consistent with Amador's testimony that Tonkin
filled in the amount shown on the note after Amador signed the note. Considering that in answering question
five the jury did not believe the amount on the note was a "material term" based on Amador's testimony that
the amount was not included in the note until after Amador signed it, the answer to question seven awarding
no damages is consistent with the answer in question five.

Second, Tonkin's contention that the promissory note is the amount of damages he is due, is undermined by
the jury's answers to questions one, two, and three. The answers to questions one, two, and three
established that Amador breached the attorney services agreement, the breach of the attorney services
agreement was not excused, and $9122.92 would compensate Tonkin for the breach. We are bound by the
answers to questions one, two, and three because the answers to those questions are unchallenged at trial
and in this appeal. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). The damages are $9122.92 for
attorney's fees due to Tonkin pursuant to the attorney services agreement between Tonkin and Amador.
Because Tonkin has not challenged that $9122.92 is the amount due for the services he provided to Amador,
he cannot now contend that the value of those services is, as a matter of law, the amount of $18,245.84
shown on the note.

Based on the evidence in the record, we conclude the amount shown on the note does not, as a matter of
law, constitute proof of the amount due. We hold the trial court did not err by denying Tonkin's motion for
judgment notwithstanding the verdict. We overrule Tonkin's first issue.

Attorney's Fees

In his second issue, Tonkin asserts the trial court erred by denying his motion for JNOV because the evidence
proved that Tonkin is entitled to recover, as a matter of law, $16,680 as reasonable attorney's fees in
preparation for trial; $15,000 as reasonable attorney's fees in preparation for this appeal; and $15,000 as
reasonable attorney's fees in preparation for an appeal to the Texas Supreme Court. Tonkin requested
approximately double what the jury awarded. The jury found that Tonkin's attorney's fees were $8340 to
prepare for trial, $7500 to appeal to an appellate court, and $7500 to appeal to the Texas Supreme Court.

"Generally, it is the province of the jury to determine the reasonable value of an attorney's services. However,
if the evidence is not contradicted by any other witness, or attendant circumstances, and the same is clear,
direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion
thereon, it is taken as true, as a matter of law." Brown v. Bank of Galveston Nat'l Ass'n, 930 S.W.2d 140, 145
(Tex. App.--Houston [14th Dist.] 1996), aff'd 963 S.W.2d 511 (Tex. 1998) (internal citations omitted); see
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). In deciding whether attorney's
fees were proven as a matter of law, a court may consider whether the opposing party had the means and
opportunity to disprove or impeach the expert testimony but failed to do so. Brown, 930 S.W.2d at 145.

Amador contends the amount in controversy relative to the amount of requested attorney's fees constitutes
an "attendant circumstance tending to cast suspicion on the uncontradicted evidence regarding the attorney's
fee." Inwood N. Homeowner's Ass'n v. Wilkes, 813 S.W.2d 156, 158 (Tex. App.--Houston [14th Dist.] 1991, no
writ). Tonkin attempts to distinguish Inwood from the present case by noting that Inwood's requested
attorney's fees were more than twice the amount in controversy. See id at 157-58. Although Tonkin did not
request more in attorney's fees than the amount in controversy, the amount of requested attorney's fees,
$16,680, did approach the amount in controversy, $18,245.84. When we take into account the requested
attorney's fees on appeal to this Court and to the Texas Supreme Court, the potential total reaches $36,680,
which is nearly double the amount in controversy.

Examining only the evidence that favors the jury's finding, we conclude the disparity between the amount in
controversy and amount of requested attorney's fees was an attendant circumstance tending to cast
suspicion on the uncontradicted evidence regarding the attorney's fee. Brown, 930 S.W.2d at 145. We hold
the trial court did not err by refusing to grant Tonkin's motion for JNOV because it was within the province of
the jury to determine the reasonable amount of attorney's fees. We overrule Tonkin's second issue.

Motion for Reconsideration

In his third issue, Tonkin asserts the trial court erred by denying his motion for reconsideration directed to
visiting Judge Landry after sitting Judge Storey denied Tonkin's motion for JNOV because Judge Landry, not
Judge Storey, presided at trial. To preserve error for appellate review, the complaining party must make a
timely, specific objection at the earliest possible opportunity. See Tex. R. App. P. 33.1(a). Tonkin did not
request for Judge Landry to rule on the motion for JNOV until after Judge Storey denied the motion for JNOV.
For Tonkin's complaint to be timely, he needed to present his motion for JNOV for Judge Landry's
consideration only and object to its consideration by Judge Storey. We hold Tonkin waived this issue by failing
to make a timely objection to the trial court requesting that Judge Landry rule on the motion instead of Judge
Storey. See id. We overrule Tonkin's third issue.

Excessive Demand

In his sole cross-issue, Amador contends the trial court erred by denying his request to submit a jury question
on the affirmative defense of excessive demand.

A trial court must submit a jury question if it is supported by some evidence, but may refuse to do so if it is not
supported by any evidence. See Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). If
there is some evidence to support a jury question and the trial court does not submit the question, the trial
court commits reversible error. See Elbaor, 845 S.W.2d at 243. In determining whether a trial court should
have submitted a question to the jury, the reviewing court must examine the record for evidence supporting
submission of the question and ignore all evidence to the contrary. See id. at 243. Conflicting evidence
presents a fact question for the jury. See Brown v. Goldstein, 685 S.W.2d 640, 641-42 (Tex. 1985).

Excessive demand is an affirmative defense to an award of attorney's fees. Kurtz v. Kurtz, 158 S.W.3d 12, 21
(Tex. App.--Houston [14th Dist.] 2004, pet. denied). Generally, a creditor who makes an excessive claim upon
a debtor is not entitled to attorney's fees for subsequent litigation required to recover the debt. Findlay v.
Cave, 611 S.W.2d 57, 58 (Tex. 1981) (citing Collingsworth v. King, 283 S.W.2d 30 (1955); Ingham v. Harrison,
224 S.W.2d 1019 (1949); Warrior Constructors, Inc. v. Small Business Investment Co. of Houston, 536
S.W.2d 382 (Tex. Civ. App.--Houston [14th Dist.] 1976, no writ)). A demand is not excessive simply because it
is greater than the amount a jury later determines is actually due. Panizo v. Young Men's Christian Ass'n of
Greater Houston Area, 938 S.W.2d 163, 169 (Tex. App.--Houston [1st Dist.] 1996, no writ). However, when
the amount claimed to be due is liquidated, "it may be very persuasive evidence." Findlay, 611 S.W.2d at 58.
See generally Black's Law Dictionary (8th ed. 2004) (defining "liquidated debt" as "[a] debt whose amount has
been determined by agreement of the parties or by operation of law"). The dispositive question in determining
whether a demand is excessive is whether the claimant acted unreasonably or in bad faith. See Standard
Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627-28 (Tex. App.--Houston [1st Dist.] 2003, pet.
denied).

Examining the record for evidence supporting submission of the excessive-demand question and ignoring all
evidence to the contrary, we conclude that Amador's evidence fails to raise a question of fact as to excessive
demand by Tonkin. Although Amador contends the note was altered by the addition of the amount to the face
of the note after Amador signed the note, Tonkin's pleadings were consistent with the amount shown on the
note. Amador makes no showing of bad faith by Tonkin. See id. Absent a showing of bad faith, a pleading for
the amount shown on the face of the note is not excessive as a matter of law. See id. We hold the trial court
did not err by refusing to submit a question to the jury on the issue of excessive demand. We overrule
Amador's sole cross-issue. Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Alcala, Hanks, and Wilson. (1)

1. The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating by assignment.