Opinion issued March 8, = 2007
In=20 The
For=20 The
NO.=20
01-03-00025-CV
CHARLES =
MCINTYRE=20
HADEN, JR., INDIVIDUALLY, and CHARLES MCINTYRE HADEN, JR. & =
COMPANY=20
D/B/A HADEN & COMPANY, Appellants DAVID J. =
SACKS, P.C.=20
D/B/A SACKS & ASSOCIATES, Appellee
On =
Appeal from=20
County Civil Court at Law No. 2 Harris =
County,=20
Texas Trial =
Court Cause=20
No. 722,791
CONCURRING AND=20
DISSENTING OPINION ON =
MOTION FOR=20
REHEARING I respectfully dissent. I would =
hold that=20
in this breach of contract lawsuit (1) parol evidence is =
inadmissible, and=20
(2) the written documents establish a meeting of the minds. I =
concur,=20
however, with the resolution of the counterclaims and agree that =
the trial=20
court properly granted summary judgment regarding those =
claims.=20
Parol =
Evidence of=20
Collateral and Contemporaneous Agreement The undisputed evidence shows =
that Sacks=20
and Haden entered into a written agreement that provided that the =
law firm=20
would "assist with the writing of the Appellant's Brief and any =
reply" and=20
that Haden would pay for the service, at a rate of $200 per hour =
for=20
Sacks' work, $150 to $200 per hour for work done by other lawyers =
in the=20
firm, and $50 to $100 per hour for work done by paralegals, plus =
all costs=20
and expenses. The written agreement included a $5,000 retainer =
that Haden=20
paid. In his response to the law firm's motion for summary =
judgment,=20
Haden's affidavit asserts that he never agreed to pay more than =
$10,000=20
for the law firm's work on the brief. Haden's affidavit thus =
attempts to=20
add a material term to the written agreements by claiming that =
fees were=20
capped at $10,000. Haden's affidavit is extrinsic or parol =
evidence=20
because it "tends to prove what is not a term of the contract."=20
Haden=20
contends that the affidavit is admissible as a prior or =
contemporaneous=20
agreement that is consistent with the written agreement. Extrinsic =
evidence of prior or contemporaneous agreements is admissible when =
the=20
evidence is collateral to an integrated agreement, and is not =
inconsistent=20
with and does not vary or contradict the express or implied terms =
or=20
obligations of the written agreement. Suit was=20
against the market [sic] of a promissory note . . . . The note was =
secured=20
by a mortgage on 1000 bushels of oats. By way of defense the maker =
of the=20
note sought to prove an oral agreement that if the oats sold for =
less than=20
25 cents per bushel the note was to be credited with the =
difference.=20
Enforcement of the agreement would have varied the obligation of =
the maker=20
to pay the full amount of principal of the note. The collateral =
agreement=20
was properly rejected. Meeting =
of the=20
Minds Here, the written agreement =
provides that=20
the law firm will assist in the writing of the appellate brief in =
exchange=20
for payment at the rates designated in the written agreement. The=20
agreement here is sufficiently definite that any court could =
enforce the=20
terms of the agreement. See T.O. Stanley Boot Co., 847 =
S.W.2d at=20
221. Haden agreed to the terms by stating, "I have acknowledged =
acceptance=20
of the terms of your fee agreement on behalf of Haden & =
Company and=20
myself . . . ." Parol =
Evidence of=20
Fraud The majority opinion does not =
rely on=20
parol evidence of fraud as a basis for reversing the judgment. =
However, in=20
his motion for rehearing, Haden contends that his affidavit was =
admissible=20
as parol evidence to prevent fraud because the law firm "might =
have=20
submitted a bill for two million dollars" and claimed that it =
spent "five=20
thousand hours writing the fifty page brief." In his affirmative =
defense=20
of fraud and in his counterclaim for fraud, Haden presented =
extrinsic=20
evidence that the law firm's billing was excessive by claiming =
that the=20
law firm did more work than necessary, did inadequate work, and =
charged=20
more than it should have. Haden, however, never asserted to the =
trial=20
court or to this Court that the parol evidence was admissible to =
prove=20
fraud. Haden very clearly asserted a single theory for admission =
of parol=20
evidence--that parol evidence is admissible as a collateral,=20
contemporaneous agreement. Haden first mentions that parol =
evidence is=20
admissible to prove fraud in this motion for rehearing. I would =
further=20
hold that Haden has waived the right to assert that parol evidence =
is=20
admissible to prevent fraud because he failed to raise that =
assertion in=20
his original or reply briefs in this appeal. See =
Jacobs v.=20
Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (holding that =
party=20
waives error by failing to raise issue on appeal). Only inadmissible parol =
evidence supports=20
Haden's challenges to Sacks' breach-of-contract claim. I would =
overrule=20
Haden's second issue and address the remaining issues in this =
appeal and=20
in Cause No. 01-03-00025-CV.
Justice Panel consists of Chief Justice =
Radack=20
and Justices Keyes and Alcala.