Summary
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
Summary of this case from Valentine v. CunninghamOpinion
No. 01-03-00465-CV
Opinion issued July 29, 2004.
On Appeal from the 234th District Court Harris County, Texas, Trial Court Cause No. 2002-50219.
Joe A. Izen, Jr., Bellaire, TX, for appellant.
Kenneth T. Fibich and Erin K. Corley, Fibich, Hampton, Leebron Garth, L.L.P., Houston, TX, and Lynn S. Kuriger, Attorney at Law, Houston, TX, for appellee.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
MEMORANDUM OPINION
Appellant, Timothy Gavrel (Gavrel), on behalf of the estate of Paula Gavrel Asher (Asher), deceased, challenges the trial court's rendition of summary judgment in favor of appellee, John F. Nichols Sr. (Nichols), in this suit for breach of contract and constructive fraud. In two issues, Gavrel contends that the trial court erred (1) in granting Nichols' "no-evidence" motion for summary judgment and (2) "if it refused to consider Gavrel's summary judgment evidence." We affirm.
Facts
Robert Alexander (Alexander) consulted with Nichols, a personal injury lawyer, about whether his stepmother, who had been injured while a resident of a nursing home, could assert a personal injury claim against the nursing home. Following this meeting, Nichols contacted his son, John F. Nichols Jr., with the law firm of Davis Davis, to ask whether they would be interested in pursuing the case. After Davis Davis indicated that it would accept the case, Alexander, as guardian for his stepmother, employed both Nichols and Davis Davis to represent her. Their contract provided for attorney's fees in the amount of "33 1/3 of any collection or settlement made before, during[,] or after suit is filed or trial" and for "a referral or forwarding fee" to "David Davis Law Firm of Houston, TX which will also handle the case." Subsequently, Davis Davis filed suit against the nursing home, the nursing home settled the case for $3,000,000, and Nichols received a $300,000 contingent fee.
At this point, Asher, an attorney who had previously referred personal injury cases to Nichols, contacted Nichols and asserted that she had referred Alexander to him and was entitled to a referral fee. In response, Nichols maintained that Alexander, without a referral, had come to see him directly. Nevertheless, Nichols, who was aware that Asher was suffering from terminal cancer, "gave" Asher $106,000 of his fee.
After Asher's death, Gavrel, on behalf of Asher's estate, sued Nichols for breach of contract and constructive fraud, alleging that Nichols had failed to pay Asher $227,333.33, as the outstanding balance of her fee. After the parties had conducted discovery, Nichols filed his summary judgment motion, relying on traditional and no-evidence grounds. Gavrel filed a response, along with affidavits from Alexander and from his wife, Deborah. In his affidavit, Alexander stated that, before he met with Nichols, he and Deborah had consulted with Asher regarding his stepmother's case, and Asher had "urged" them to retain Nichols. When Alexander and his wife later met with Nichols, they told him that Asher referred them.
Deborah Alexander stated, in her affidavit, that, after the nursing home had settled the lawsuit, she went to see Asher to thank her for her part in the case. Upon learning that the case had settled, Asher, in Deborah's presence, telephoned Nichols and "asked [him] about her referral fee." Deborah stated that, over the speakerphone, she heard Nichols tell Asher that "[he would] send [Asher] her check."
Following a hearing, the trial court signed an order granting Nichols' "no-evidence motion for summary judgment."
Standard of Review
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 claim. Tex. R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on each of the challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment motion may not properly 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. Id.; Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.-Houston [1st Dist.] 2002, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Spradlin, 100 S.W.3d at 377.
When a trial court's order does not specify the grounds under which summary judgment was granted, we will affirm the judgment on any theory advanced in the motion that is meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
No-Evidence Summary Judgment
In his first issue, Gavrel argues that the trial court erred in granting Nichols' no-evidence summary judgment motion because Gavrel proved that (1) there was "a referral fee agreement between Nichols and [Asher]" and "Nichols intentionally breached it," and (2) Nichols engaged in a "scheme" to "deprive [Asher] of her rightfully earned referral fee," which was an "independently tortious act."
Breach of Contract
In a breach of contract cause of action, a plaintiff must prove that (1) a valid contract existed, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff was damaged as a result of the breach. Valero Mktg. Supply Co. v. Kalama Int'l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). In regard to whether a contract is valid, 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, 929 (Tex. App.-Houston [1st Dist.] 1994, writ denied). In his no-evidence summary judgment motion, Nichols asserted that there was no evidence that "a valid and enforceable contract existed, that [he] breached any contract, [or] that Asher was damaged by any breach."
Gavrel asserts that he "presented ample evidence which, if believed by the [t]rier of [f]act, would establish [the] existence of [a] referral fee agreement between Nichols and the [d]eceased forwarding attorney Asher[,] which Nichols intentionally breached." As reflected by Gavrel's record references, Alexander testified that, when he and his wife met with Nichols, they told him that Asher had referred them to him and Deborah Alexander testified that, when Asher telephoned Nichols in her presence and "asked [him] about her referral fee," Deborah had heard Nichols say that "[he would] send [Asher] her check."
However, Gavrel makes no record references to evidence establishing that Nichols and Asher agreed on all of the essential terms of their contract. An essential term is one that the parties would have reasonably regarded, at the time of contracting, as a vitally important ingredient in their bargaining. See Nelly v. Bankers Trust Co. Of Tex., 757 F.2d 621, 630 (5th Cir. 1985) (applying Texas law). Although Gavrel presented some evidence that Nichols had agreed to pay Asher a referral fee, there is no evidence that Nichols and Asher had agreed upon a specific amount as a referral fee. We conclude that a reasonable person, at the time of contracting, would have regarded the amount of a referral fee as a "vitally important ingredient" of a referral agreement.
Gavrel does note, generally, that Nichols admitted that, in regard to other cases that Asher had previously referred to him, he had agreed to pay Asher a fee of one-third of any attorney's fees recovered. Gavrel references these prior referral agreements to support his argument that Nichols orally agreed to pay Asher one-third of any attorney's fees recovered in the case of Alexander's stepmother. However, in each of the previously referred cases, Nichols and Asher had either drafted a written "Fee Sharing Agreement" or had noted their fee sharing arrangement on the "Personal Injury Agreement of Employment" contracts that Nichols had entered into with his clients. Here, there is no evidence of a memorialized referral fee agreement in the case of Alexander's stepmother, and the summary judgment evidence does not support an inference that Nichols orally agreed to pay Asher one-third of the recovered attorney's fees.
Moreover, Gavrel directs us to no evidence establishing that Nichols failed to pay Asher any agreed upon referral fee. Gavrel notes that Nichols admitted that he "gave" Asher $106,000 of his recovered fees, and Gavrel asserts that Nichols still owes Asher an additional $227,333.33. However, because Gavrel failed to produce summary judgment evidence establishing an agreement between Nichols and Asher regarding the specific amount of a referral fee, we cannot conclude that, when Nichols "gave" Asher $106,000, he gave her less than an agreed upon referral fee. See Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (breach of contract occurs when party fails or refuses to do something that he has promised to do); Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991) (the universal rule for measuring damages for breach of contract is just compensation for loss or damage actually sustained).
We hold, therefore, that Gavrel did not produce more than a scintilla of evidence to raise a genuine issue of material fact that Nichols breached any contract with Asher or that Asher suffered damages as a result of any breach. Accordingly, we further hold that, because Gavrel did not present any evidence to show any breach of an alleged contract or damages resulting from such breach, which are essential elements of a cause of action for breach of contract, the trial court did not err in granting Nichols' no-evidence motion for summary judgment on Gavrel's claim for breach of contract.
Constructive Fraud
Constructive fraud is the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relationship. Stephanz v. Laird, 846 S.W.2d 895, 903 (Tex. App.-Houston [1st Dist.] 1993, writ denied). In a constructive fraud cause of action, a plaintiff must prove that a fiduciary relationship existed between the parties. Id. In his no-evidence summary judgment motion, Nichols asserted that there was no evidence that "[he] owed a legal, equitable, or fiduciary duty to Asher or breached a legal, equitable, or fiduciary duty to [her]."
Gavrel asserts that he "presented ample evidence which, if believed by the [t]rier of [f]act, would establish [the] existence of referral fee agreements between Nichols and the [d]eceased forwarding attorney Asher[,] which Nichols intentionally breached." However, Gavrel directs us to no evidence establishing the existence of a fiduciary relationship between Nichols and Asher. Although Nichols admitted that he had known Asher for many years and had accepted client referrals from her on several occasions, a fiduciary relationship does not arise simply because two people have had a long-standing relationship and have contracted with each other on several occasions. See Crim. Truck Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594-95 (Tex. 1992). We hold, therefore, that Gavrel did not produce more than a scintilla of evidence to raise a genuine issue of material fact that a fiduciary relationship existed between Nichols and Asher.
Accordingly, we further hold that, because Gavrel did not present any evidence to show the existence of a fiduciary relationship, an essential element of a cause of action for constructive fraud, the trial court did not err in granting Nichols' no-evidence motion for summary judgment on Gavrel's claim for constructive fraud.
We overrule Gavrel's first issue.
Summary Judgment Evidence
In his second issue, Gavrel contends that the trial court erred " if it refused to consider [his] summary judgment evidence." (Emphasis added.)
However, Gavrel has failed to establish that the trial court did, in fact, "refuse to consider [his] summary judgment evidence." Nichols filed a motion to strike Gavrel's summary judgment evidence on the grounds that the Alexanders' affidavits contained "inadmissable hearsay," "irrelevant statements," "factual conclusions," and "subjective opinions." However, the record does not indicate that the trial court ruled on Nichols' motion to strike. See Tex.R.App.P. 33.1(a)(2)(A) (stating that, as a prerequisite to presenting a complaint for appellate review, the record must show that the trial court either expressly or implicitly ruled on a request, objection, or motion). Moreover, there is nothing in the record that demonstrates that the trial court "refused to consider Gavrel's summary judgment evidence" before granting Nichols' no-evidence summary judgment motion. Accordingly, we hold that Gavrel has not presented any error for our review on this issue.
We overrule Gavrel's second issue.
Conclusion
We affirm the judgment of the trial court.