Opinion
No. 08-20-00094-CV
04-12-2022
The NEVAREZ LAW FIRM, PC, Appellant, v. INVESTOR LAND SERVICES, LLC, Horizon Growth Properties, LLC, Dennis Ardizzoni, Terry McLachlan, and Ian Martin d/b/a Discount Land Exchange d/b/a Investor Land Services, Appellees.
ATTORNEY FOR APPELLANT: Michael Nevarez, The Nevarez Law Firm, PC, P.O. Box 12247, El Paso, TX 79913. ATTORNEY FOR APPELLEES: John P. Mobbs, Attorney at Law, 6350 Escondido Drive, Suite A-14, El Paso, TX 79912.
ATTORNEY FOR APPELLANT: Michael Nevarez, The Nevarez Law Firm, PC, P.O. Box 12247, El Paso, TX 79913.
ATTORNEY FOR APPELLEES: John P. Mobbs, Attorney at Law, 6350 Escondido Drive, Suite A-14, El Paso, TX 79912.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
JEFF ALLEY, Justice
This suit began as a claim by a law firm against its former clients (and some of their individual representatives) to collect an allegedly unpaid legal bill. The suit ended with a judgment against the law firm for an overpayment made by the former clients, and for attorney's fees incurred by them in defending against the law firm's suit. Though the pleadings are rife with extracontractual claims, the core issue devolves down to the construction of the terms of the law firm's written fee agreement. We conclude that the terms of that agreement are unambiguous and defeat the law firm's arguments made in opposition to a summary judgment rendered against it below. Accordingly, we affirm the trial court's judgment.
I. BACKGROUND
In 2011, the Horizon Communities Improvement Association (HCIA) initiated litigation against two landowners, Cruz Enterprises and KCB, Inc., for unpaid assessments, interest, penalties, attorney's fees, and costs which HCIA claimed were owed it. Initially at least, HCIA prevailed on that claim to the extent that it obtained default judgments against Cruz Enterprises and KCB, Inc., collectively for more than two million dollars. HCIA then sought to foreclose on the properties tied to the unpaid assessments.
A. The first engagement agreement
Investor Land Services, LLC, an appellee here, is either a successor-in-interest to Cruz Enterprises and KCB, or otherwise owns an interest in some or all the properties on which HCIA recovered assessments. In July 2013, Investor Land Services, LLC, along with appellee Horizon Growth Properties, LLC (collectively, the Companies), retained appellant, The Nevarez Law Firm (the Firm) to pursue litigation against HCIA for unauthorized assessments, liens, and unlawful foreclosure. They did so under a written fee agreement signed by appellee Ian Martin on behalf of the Companies. Under the agreement, the Firm would bill for services at an agreed hourly rate. And as "a ready means of monitoring and controlling the costs and expenses the [Companies are] incurring," the Firm was to bill the Companies "on a monthly basis." The Firm honored that obligation for the first two months of the engagement, but then began intermittently skipping months. In December 2014, the Firm sent a fifteen-page invoice covering almost a year's worth of charges for the HCIA matter, totaling $40,707.89.
The Firm appeared in the HCIA state court litigation and was successful in setting aside HCIA's default judgments.
B. The second engagement agreement
As part of their litigation strategy, the Companies also pursued claims against HCIA and others in federal court, challenging their property assessment practices under the Racketeer Influenced Corrupt Organizations Act (RICO). But prior to filing that federal lawsuit, the Companies signed a second engagement and fee agreement with the Firm. Appellee Terry McLachlan signed the second agreement as a managing member of the Companies.
See 18 U.S.C. § 1961 et seq. The actual suit also alleged other federal claims and pendant state claims against HCIA and several other persons.
The agreement also notes that appellee Ian Martin had sold his interest in Horizon Growth Properties, LLC and his name was struck through as a client.
The second agreement outlined a different fee structure. According to attorney David Nevarez--the Firm's attorney handling this dispute--the new agreement was due at least in part to the Firm's prior large invoices. The second fee agreement's core term deferred payment of half of the hourly fee "unless and until" certain conditions were met:
Contingent And Deferred Hourly Fee Agreement: The Client and the Firm have discussed the ongoing cost of the above referenced Matter, and have agreed to enter into a Contingent and Deferred Hourly Fee Agreement, whereby the Firm has agreed to defer the Client's payment of ONE-HALF (1/2) of any and all attorneys fees and costs, until the Client approves and receives a settlement payment and/or arbitration award, or the entry of a judgment by a Court as the "prevailing party" in the above-referenced Matter. The Client will continue to pay on a monthly basis of ONE-HALF (1/2) of the foregoing Standard Hourly Fees, and ONE-HALF (1/2) of any and all travel and third party costs and expenses actually incurred ....
The fee agreement also held out the prospect that the Firm might receive additional compensation measured as a percentage of any "net recovery" the Companies might obtain:
Since the Firm bears a greater share of the economic risk and burden, the client hereby agrees that the Firm is entitled to a percent of the recovery in any settlement, arbitration award or judgment. The Contingency Fee to be paid to the Firm under this arrangement will be a percentage of the "net recovery", depending on the stage at which the settlement, arbitration award or judgment is reached.
The possible percentages for the contingent fee varied from 20 to 30 percent depending on the stage at which the case was resolved. And the agreement defined the term "net recovery:"
The term "net recovery" includes the total of all amounts received by settlement, arbitration award or judgment,
including any award of Reasonable Attorneys Fees and Costs. The term "net recovery" shall also include the reasonable value of any non-monetary proceeds or assets received by or awarded to the Client by settlement, arbitration award or judgment.
The agreement also contained an integration clause:
This Agreement constitutes the full and complete understanding and agreement of the parties hereto, supersedes all prior understandings and agreements, if any, and cannot be changed or terminated orally. All changes or modifications must be in writing and signed by the parties hereto.
Although the second agreement stated that the Companies would not be responsible for paying more than 50 percent of the standard hourly fees, the Firm continued to bill for the full amount of the hourly fees. Attorney Nevarez testified at his deposition that while he agreed to "defer, [and] postpone" 50 percent of the fees, the Firm "invoic[ed] everything because we expected to be paid everything."
C. Termination of the Firm's representation
Although the Firm filed a complaint on behalf of the Companies in federal district court, the complaint was in February 2016 dismissed pursuant to FED.R.CIV.P. 12(b)(6) ("failure to state a claim upon which relief can be granted"). Several months later, the Companies and HCIA participated in a mediation that resulted in a June 2016 mediated settlement agreement. By the settlement agreement's terms, each party agreed to release and dismiss all their claims which were or could have been brought against each other. Each party was to pay their own court costs, expenses, and attorney's fees. The state court litigation was to be dismissed with prejudice, and the Companies agreed not to appeal the already dismissed federal RICO suit. Under the settlement agreement, no party agreed to pay a monetary settlement to another party. HCIA did agree to waive any past and future assessment on the properties identified as owned by the defendants to the original state court proceeding.
According to attorney Nevarez, it became apparent during the mediation that there was a conflict of interest in his representation, so he withdrew from representing the Companies after the mediation was completed. A different attorney was responsible for concluding the settlement and dismissal of the underlying lawsuit.
D. The fee dispute
In January 2017, the Firm sent a "final" bill to the Companies totaling $67,968.41 which represented current and past due amounts. Those amounts represented the full amount of the billings, and not the one-half amount described in the second fee agreement. The next month, the Firm sent a demand letter to Investor Land Services for $676,506.26 which was comprised of the $67,968.41 final bill and a $608,537.85 contingency-based fee. The demand letter explained that the contingency was calculated as 25% of the face amount of the HCIA default judgment ($2,434,151.38) that the Firm had been able to set aside. The demand letter expressly referenced the definition of "net recovery" as including "the reasonable value of any non-monetary proceeds or assets received by or awarded to the Client by settlement, arbitration award or judgment." In substance, the Firm claimed that it was entitled to the contingent fees because the Companies "receive[d] a settlement payment" when HCIA released its claims in the settlement agreement. It calculated the value of that settlement payment as the amount of a 2011 default judgment, which was set aside in 2013, with the underlying claims then being extinguished by the 2016 settlement agreement.
Investor Land Services rejected the Firm's demand by written letter, in which the company stated that it did not owe contingent fees or deferred attorney fees because it had never received any amount of money in a settlement, arbitration award, or judgment. The Companies sent checks to the Firm totaling $33,292.54 "as full payment of the fees that are arguably due."
E. The Firm sues over the unpaid attorney's fee claim
The Firm then sued the Companies as well as Appellees Terry McLachlan, Dennis Ardizzoni, and Ian Martin (collectively, the Individuals) to recover its claimed fees under a litany of causes of action, including: (1) breach of contract; (2) promissory estoppel; (3) conversion; (4) theft; (5) fraud by misrepresentation, inducement, or nondisclosure; (6) negligence or gross negligence; (7) breach of fiduciary duty or of good faith and fair dealing; (8) quantum meruit; (9) sworn account for account stated; and (10) unjust enrichment. The Firm also filed a lis pendens that clouded the title to the land owned by the Companies.
The Companies answered and filed a counterclaim seeking a declaratory judgment interpreting the second fee agreement. The counterclaim also alleged: (1) breach of contract by the Firm; and (2) a suit to quiet title due to the Firm's filing a notice of lis pendens against the Companies’ properties.
The Companies subsequently filed a traditional motion for summary judgment, primarily arguing that: (1) the second fee agreement only allowed the Firm to collect its full hourly rate if the litigation resulted in a settlement payment, arbitration award, or entry of a judgment as the prevailing party, none of which occurred here; (2) the Firm was only entitled to a contingent fee from a net recovery by the clients, and likewise there was never a net recovery; and (3) the evidence showed that the Firm overbilled the Companies, which entitled them to a judgment for breach of contract for the amount overbilled. The motion also asserted that the Firm in deposition withdrew any claims for conversion, theft, negligence and gross negligence, and breach of fiduciary duty. A no-evidence section of the same motion also challenged several elements of the remaining extra-contractual claims asserted by the Firm. The Individuals filed a separate no-evidence motion for summary judgment, which additionally argued that the Individuals were not liable because they were not parties to the contract with the Firm.
The Firm filed responses to both motions. In response to the Companies’ motion, the Firm attached as responsive evidence a document recapping the billings and receipts in the case. In response to the Individuals’ motion, the Firm attached as evidence a lengthy but unsigned affidavit from attorney Nevarez, emails between Nevarez and the Companies’ representatives regarding the billings, the Mediated Settlement Agreement, various pleadings filed in this case, and the two client engagement agreements.
The trial court granted the Companies’ and Individuals’ motions for summary judgment. The final judgment orders the Firm to pay $10,924.36 which is the claimed amount of the Companies’ overpayment of attorney's fees, and $43,970.44, which is the amount of attorney's fees the Companies expended in defending this lawsuit. The judgment also awards conditional attorney's fees should the Firm unsuccessfully appeal. The Firm filed a motion for reconsideration and new trial which was denied by operation of law. This appeal follows.
The Firm had also filed its own motion for partial summary judgment, contending that the defendants failed to file verified denials to its claim for a sworn account. The defendants, however, timely filed amended answers with a verified denial of the claim prior to the hearing, and from our record, the trial court never ruled on the Firm's motion. To the extent that the Firm is claiming the trial court erred in failing to grant its partial summary judgment, the filing of the timely verified denials defeats that claim. See generally Tex.R.Civ.P . 63 (permitting parties to timely amend pleadings).
II. DISCUSSION
In four issues, the Firm argues that the trial court erred by granting the Companies’ and Individuals’ motions for summary judgment. Issue One complains that the Companies failed to present competent summary judgment evidence entitling them to a judgment on the breach of contract and quiet title claims. Issue Two claims that the Firm raised sufficient evidence on each element of its claims against the Companies, and Issue Three claims that the Firm raised sufficient evidence on each element of its claims as to the Individuals. Issue Four claims that trial court erred in "denying [the Firm] further relief, as to the causes of action pled against the [Companies and the Individuals] that was not expressly granted in the Final Judgment." As we understand the arguments made under these issues, the Firm primarily urges that questions of fact preclude summary judgment. Stated otherwise, there is some evidence in the record that under the terms of the first and second fee agreements, the Firm is entitled to all its invoiced fees and expenses, plus a contingent fee based on the value of the walk-away settlement with HCIA.
The Firm filed a reply brief that identifies 30 "legal errors" in the trial court's judgment. To the extent that the arguments embodied in these claimed errors are responses to arguments raised by the appellees’ brief, we attempt to address them. But we do not address new issues raised in a reply brief. See, e.g., Watret v. Watret , 623 S.W.3d 555, 563-64 (Tex.App.--El Paso 2021, no pet.) (recognizing that Rule 38.3 of the Texas Rules of Appellate Procedure restricts reply briefs to addressing only matters raised in appellee's brief and may not be utilized to present a new issue to the court); see also Fox v. City of El Paso , 292 S.W.3d 247, 249 (Tex.App.--El Paso 2009, pet. denied) (holding appellant failed to preserve issue for review in raising new issue in reply brief).
A. Standard of Review
We review a trial court's order granting summary judgment de novo. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen , 525 S.W.3d 671, 680 (Tex. 2017). When a party with the burden of proof moves for traditional summary judgment, that party "bears the burden to conclusively establish that it is entitled to judgment as a matter of law, notwithstanding the nonmovant's response or lack thereof." B.C. v. Steak N Shake Operations, Inc. , 598 S.W.3d 256, 258-59 (Tex. 2020), citing TEX.R.CIV.P. 166a(c). A matter is conclusively established when "reasonable people could not differ in their conclusions ...." City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005) ; see also Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc. , 644 S.W.2d 443, 446 (Tex. 1982) (a matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence).
A no-evidence motion for summary judgment is similar to a pre-trial motion for directed verdict. See Draughon v. Johnson , 631 S.W.3d 81, 88 (Tex. 2021) citing TEX.R.CIV.P. 166a(i). The motion must state the elements as to which the movant believes there is no evidence. TEX.R.CIV.P. 166a(i). "A properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion." JLB Builders, L.L.C. v. Hernandez , 622 S.W.3d 860, 864 (Tex. 2021). "[A] no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact." King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). "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," while less than a scintilla exists "when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact." King Ranch , 118 S.W.3d. at 751 (internal quotation marks omitted).
For both traditional and no-evidence motions for summary judgment, we review the evidence in the light most favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts against the motion. City of Keller , 168 S.W.3d at 824 ; see also Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017).
The Firm frames each of its issues in these terms: "Whether the Final Judgment was clearly erroneous, constituted legal error, and/or an abuse of discretion, and contrary to the principles of equity and good conscience ..." To the extent that the Firm suggests we employ a standard of review other than as we state above, we reject that invitation.
B. The summary judgment record conclusively shows that the Appellees never received a monetary settlement, arbitration award, or "prevailing party" judgment—which is a precondition for a 100% fee award
First, we consider whether the summary judgment record conclusively shows that the Companies fully complied with their contractual obligations to pay incurred legal fees. That question turns on whether they owed 50 percent or 100 percent of the Firm's standard fees. Ancillary to that question is whether the Companies overpaid the amount due and were thus entitled to their own judgment for an overpayment. For the following reasons, we conclude that the Companies were only obligated to pay 50 percent of the standard fees, and in fact overpaid what was owed.
As presaged by the background facts, the dispute here arises from the parties’ different takes on the terms of the second fee agreement as applied to the facts of the case. When a contract's meaning is disputed, our primary objective is to give effect to the parties’ intent as expressed in their agreement. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 662 (Tex. 2005). We "presume parties intend what the words of their contract say." Gilbert Texas Const., L.P. v. Underwriters at Lloyd's London , 327 S.W.3d 118, 126 (Tex. 2010). Accordingly, we interpret contract language according to its "plain, ordinary, and generally accepted meaning" unless the instrument directs otherwise. Heritage Res., Inc. v. NationsBank , 939 S.W.2d 118, 121 (Tex. 1996). When discerning the contracting parties’ intent, we examine the entire agreement and give effect to each provision so that none is rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc. , 207 S.W.3d 342, 345 (Tex. 2006).
"An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports." David J. Sacks, P.C. v. Haden , 266 S.W.3d 447, 450 (Tex. 2008). Moreover, when a proper construction of an unambiguous document leads to but one result, rendition of summary judgment is appropriate. See Hansen , 525 S.W.3d at 681. The construction of an unambiguous contract is reviewed under a de novo standard of review. Id.
Under the terms of the second agreement, the Firm was not entitled to payment of more than 50 percent of its standard fees in the absence of a settlement payment, arbitration award, or a judgment making it a "prevailing party" in the HCIA litigation. Because the summary judgment record demonstrates that the HCIA litigation resulted in none of those outcomes, the trial court did not err by granting the Companies’ motion for summary judgment.
The Firm agreed to defer one-half of its regular hourly fee and expenses "until the Client approves and receives a settlement payment and/or arbitration award, or the entry of a judgment by a Court as the ‘prevailing party’ in the above-referenced Matter." The fee agreement makes that statement twice, as it further stated:
Under these circumstances, the Client's litigation costs will be substantially reduced, while the Firm bears a greater share of the economic risk and burden, since the Firm will not be billing , and the Client will not be paying , more than ONE-HALF (1/2) of the foregoing Standard Hourly Fees, and ONE-HALF (1/2) of any and all travel and third party costs and expenses actually incurred, unless and until the Client is deemed by the Court to be the "prevailing party" in any part of subject litigation, or until the Client approves and receives a settlement payment and/or arbitration award. (emphasis supplied).
The Companies’ affirmative motion for summary judgment included the mediated settlement agreement from the underlying state court litigation, and the final judgment dismissing the federal RICO case. Those documents demonstrate that the litigation between the Companies and HCIA concluded without any party receiving a settlement payment or arbitration award, and no judgment was entered in favor of any party. Rather, the mediated settlement agreement between the parties resulted in each party dismissing their claims against each other and assuming the responsibility for their own attorney's fees and costs.
The plain terms of the second agreement deferred the payment of 50 percent of the Firm's standard fees, "unless and until the Client is deemed by the Court to be the ‘prevailing party’ in any part of subject litigation, or until the Client approves and receives a settlement payment and/or arbitration award (emphasis supplied)." The words "unless" and "until" created a condition precedent that had to be met before the Firm was entitled to more than 50 percent of its standard fees. See Arbor Windsor Court, Ltd. v. Weekley Homes, LP , 463 S.W.3d 131, 139 (Tex.App.— Houston [14th Dist.] 2015, pet. denied) (recognizing that the term "unless" constitutes "conditional language"); Emscor, Inc. v. Alliance Ins. Group , 804 S.W.2d 195, 198 (Tex.App.—Houston [14th Dist.] 1991, no writ) (referring to an insurance provision as a "condition" where the provision stated that liability under the policy would not attach "unless and until" the insurers admitted liability or the insured had by final judgment been adjudged to pay a sum); Dallas Berkshire Partners, Ltd. v. James French Photography, Inc. , No. 05-98-01352-CV, 2001 WL 200144, at *5 (Tex.App.–Dallas Mar. 1, 2001, pet. denied) (not designated for publication) (holding that the notice-of-default provision stating "Tenant shall not exercise any such remedy unless ..." was a condition precedent to recovery for breach). And as the record shows, the Companies never actually received a settlement payment, arbitration award, or judgment as the prevailing party in their favor.
Nevertheless, the Firm argues that it only "deferred" the obligation to pay the remaining 50 percent of the fees and did not outright cancel the balance. The contention is semantic at best, because the terms of agreement mean that the Companies had no obligation to pay the remaining 50 percent until certain conditions were met. And because the matter now appears to be completely settled by final judgments in both the state and federal court actions, there is no prospect of a recovery by the Companies in the future that could meet the conditions. Simply put, while the remaining balance may only be deferred, given the circumstances here, it is effectively deferred forever.
We likewise reject the Firm's argument that the second fee agreement is subservient to the terms of the first fee agreement. The second fee agreement specifically provided that it "constitute[d] the full and complete understanding of the parties hereto, [and] supersede[d] all prior understandings and agreements, if any, and cannot be changed or terminated orally. All changes or modifications must be in writing and signed by the parties hereto." Nevarez's deposition testimony also confirms that he believed that the second agreement superseded the first agreement. Because it is undisputed that the parties entered into the second agreement after entering into the first agreement, we find that the unambiguous terms of the second agreement, including the new fee arrangement, superseded the fee arrangement in the first agreement.
Even at that, we understand the Firm is arguing that the judgment below improperly uses the second fee agreement to reduce the amount of the invoices billed, but unpaid, under the first fee agreement. The first fee agreement did not have the 50 percent deferral language. But the summary judgment record answers that claim as well. As a part of their summary judgment motion, the Companies included a spreadsheet that tabulates the bills and payments derived from billing statements that the Firm produced. The spreadsheet includes the full amount of each bill that was dated before the second fee agreement, and half the value of any bill sent after the new agreement. Totaling the amounts invoiced, and the amounts paid, the spreadsheet shows that the Companies overpaid the Firm by $44,216.90. That figure includes the $33,292.54 check (which was never deposited) that the Companies tendered after the Firm served its demand letter. So, the aggregate of what the Companies overpaid, fully accounting for the total amount of the invoices before the second fee agreement, was $10,924.36, which is the amount of the counterclaim judgment ($44,216.90 minus $33,292.54 = $10,924.36). Neither at the trial court, nor in the briefing to this Court, does the Firm challenge the correctness of any of the entries on the spreadsheet. Thus, we find no merit in a claim that the second fee agreement was somehow used to modify any bill duly sent under the first fee agreement.
Those invoices and statements themselves were an exhibit to the Companies’ motion.
Next, we reject the Firm's argument that under the agreement it could charge 100 percent of its fee and defer collection on anything over 50 percent. The thrust of this argument, as we understand it, is that the Firm did not breach its fee contract with the Companies and should not be assessed attorney's fees for a claimed breach. Two answers undermine this claim. First, the agreement states that "the Firm will not be billing , and the Client will not be paying " more than 50 percent of the charge, which belies the Firm's position here that it could charge the full amount of the bill. Nor did any of the billing statements inform the Companies that they only needed to pay 50 percent of the amount invoiced. And second, the Firm sent a demand letter, followed by a suit, that sought payment of 100 percent of the invoiced sums.
Finally, we reject the Firm's contentions that appellee Terry McLachlan conceded the full amount of the debt when he supposedly stated immediately after the mediation that the Companies would pay all the outstanding attorney's fees. Shortly thereafter, and in response to the Firm's demand letter, the Companies’ new attorney tendered a check for $33,292.54 to the Firm, which the Firm argues is an "admission" that the Companies "did in fact owe monies to the Firm." The significance of any statement by Terry McLachlan, and the responsive letter, however, first stumbles on the parol-evidence rule that requires us to enforce an unambiguous contract as written. See Haden , 266 S.W.3d at 450-51 (describing the general principles of the parol evidence rule). Moreover, the responsive letter stated that "Your contention that a contingency fee is due in light of the fact that the judge dismissed the entire case with prejudice and completely rejected every claim asserted by ILS is simply without merit." It also stated, "Your contention that ILS owed any deferred attorney fees is likewise without merit." In an attempt to avoid this litigation, the Companies tendered checks representing full payment of any fees "arguably" due. This is hardly an admission that the Firm's claim is meritorious.
We actually cannot find this statement in the record. The Firm's brief cites to a page in its response to the motion for summary judgment as the source of the statement. A footnote on that page refers to the statement, and cites as its source Exhibits G, H, and to Attorney Nevarez's own unsigned affidavit. Exhibit G, however, is only an email from the Firm to Terry McLachlan and others attaching a final bill. Exhibit H is attorney Nevarez's sworn claim which does not recite any statement by McLachlan. And an unsigned affidavit, as we discuss later, has no evidentiary weight.
In sum, the summary judgment record shows that the Companies never received a monetary settlement, arbitration award, or judgment as part of the HCIA litigation, and thus any amount of fees and expenses above 50 percent is deferred, and under the record here, deferred forever. Because the record also shows that the Companies fully paid 50 percent of the bill, they did not breach their contract with the Firm. And as the record also shows, they overpaid their obligation by at least $10,924.36, which established the basis for their counterclaim.
C. The summary judgment record also disproves the basis for a contingent fee award
The Firm also sought a $608,000 contingent award based on the settlement of the HCIA litigation. It was only entitled to a recovery of a contingent fee, however, if there was a net recovery, defined as "the total of all amounts received" or "the reasonable value of any non-monetary proceeds or assets received by or awarded to" the clients through a settlement, arbitration award, or judgment. Because the record belies that any amount was received, or any non-monetary proceed or asset was received or awarded to the Firms, there is no basis for a contingent fee award.
As set out above, there was no monetary payment or judgment in favor of the Companies. The most that the Firm can claim is that the settlement and dismissal of the state court lawsuit precluded HCIA from ever seeking any assessments on the property that the Companies (or Individuals) owned. But HCIA's inability to pursue a claim is not the same thing as the Companies receiving a payment or asset. Our sister court's decision in Affiliated Computer Servs., Inc. v. Kasmir & Krage, LLP , No. 05-98-00227-CV, 2000 WL 1702635 at *1 (Tex.App.--Dallas Nov. 15, 2000, pet. denied) (not designated for publication) is instructive. In that case, an attorney and client entered into a contingent fee agreement entitling the attorney to a percentage of "all amounts ... collected, by judgment or settlement[.]" Id. When the case concluded, the attorney attempted to collect a percentage of a five-million-dollar loan that was forgiven in the parties’ settlement agreement as an attorney's fee. The Dallas court concluded, however, that the common meaning of "collected" refers to an amount that is received. Id. "[T]he extinguishment of a purchase note is not an ‘amount collected.’ " Id. at *2.
The same is true here. HCIA's release of its claim for unliquidated property assessments is not a "proceed or asset received" by the Companies. The dictionary defines the term "proceeds" as: "(1) the total amount brought in; or (2) the net amount received after deduction of any discount or charges." Aerospace Optimist Club of Fort Worth v. Texas Alcoholic Beverage Comm'n , 886 S.W.2d 556, 559 (Tex.App.--Austin 1994, no writ), citing Proceeds , WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1986). An "asset" is defined as "a valuable person or thing," or "something that is owned by a person, company, etc." Asset , MERRIAM-WEBSTER , https://www.merriam-webster.com/dictionary/asset (last visited December 17, 2021); see also Asset , BLACK'S LAW DICTIONARY (10th ed. 2014) ("an item that is owned and has value"). And to receive something is "to come into possession of; acquire," or "to get or be given (something)." Receive , MERRIAM-WEBSTER , https://www.merriam-webster.com/dictionary/receive (last visited December 17, 2021); see also Receive , WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY (2003) ("to take [something] into one's possession"); Receive , BLACK'S LAW DICTIONARY (10th ed. 2014) ("to take (something offered, given, sent, etc.); to come into possession of or get from some outside source").
The Companies never came into possession of a proceed or asset. The definition of non-monetary proceeds might, for instance, apply had the Companies recovered title to a specific tract of land or other tangible asset, but that was not part of the settlement agreement. Moreover, at the time that the second fee agreement was negotiated, both parties would have known of the default judgment that had already been set aside. They could have easily drafted the agreement to include the value of the default as a trigger for a contingent fee award. They did not, and we will not rewrite the agreement to reach that result.
The Firm's Issue One is overruled.
D. The Firm's other claims
Next, we consider whether the Companies were entitled to summary judgment for the Firm's other claims. For the following reasons, we conclude that the trial court did not err by granting the Companies’ no-evidence motion regarding these claims. 1. The withdrawn and other extra-contractual claims
First, the Companies’ argued in their no-evidence summary judgment motion that because Nevarez agreed to withdraw certain claims, the Companies were entitled to summary judgment on the Firm's following claims: (1) conversion; (2) appropriation by theft; (3) negligence and/or gross negligence; and (4) breach of fiduciary duty. Nevarez's deposition testimony, attached to the summary judgment motion, states as much. Moreover, the Firm in its response to the motion for summary judgment acknowledged that it had agreed to withdraw these claims in response to the Companies’ summary judgment motion. Finally, the Firm advances no argument regarding these claims in its appellate brief.
Additionally, the Firm conceded in its response to the Companies’ summary judgment motion that because it had not had an adequate time for discovery, the Firm could not produce evidence on its claims for: (1) fraud by misrepresentation and/or inducement; (2) fraud by nondisclosure; (3) breach of duty of good faith and fair dealing; and (4) quantum meruit. Although the Firm argues that it produced "substantial evidence" to support these claims, the Firm nevertheless does not direct our attention to any particular evidence in the record supporting the claims.
The Firm does not raise as an issue on appeal, however, that the trial court erred in hearing the no-evidence motion for summary at the time that it did. See Tex.R.Civ.P. 166a(i) (requirement that no-evidence motion should be filed "after adequate time for discovery").
Because the record contains no evidence raising a genuine issue of material fact as to these claims, we conclude that the trial court did not err in granting summary judgment on these grounds. See TEX.R.CIV.P. 166a(i).
2. Claims for Suit on sworn account, action on account stated, unjust enrichment, and promissory estoppel
The Firm further argues that it produced sufficient evidence to preclude summary judgment on its claims for a sworn account, action on account stated, unjust enrichment, and promissory estoppel. The Companies and Individuals respond that although the Firm argued that fact issues existed on these claims and that it cited to various documents attached to its original petition, motion for partial summary judgment, and the responses to the parties’ motions, the Firm failed to identify which portions of the approximately 370 pages of exhibits raise a fact issue on the specific elements of the claims. Because the Firm did not identify the portions of the cited documents that support its claims, it failed to meet its summary judgment burden in the trial court.
The Texas Supreme Court has held that a party fails to meet its summary judgment burden by making a "general reference to a voluminous record which does not direct the trial court and parties to the evidence on which the movant relies." Rogers v. Ricane Enterprises, Inc. , 772 S.W.2d 76, 81 (Tex. 1989). This Court has likewise recognized that courts are "not required to search the record for evidence raising a material fact issue without more specific guidance from the [non-movant]." EP Hotel Partners, LP v. City of El Paso , 527 S.W.3d 646, 654 (Tex.App.--El Paso 2017, no pet.) (internal quotation marks omitted); see also Aguilar v. Morales , 162 S.W.3d 825, 838 (Tex.App.--El Paso 2005, pet. denied) (stating that appellate courts are "not required to sift through voluminous records in search of evidence to support the non-movant's argument that a fact issue exists").
Here, the Firm claimed in its motion for partial summary judgment and its response to the Companies’ motion for summary judgment that fact issues existed on its claims for sworn account, action on account stated, unjust enrichment, and promissory estoppel, but the Firm did not specify to the trial court what evidence supports these contentions. And on appeal, the Firm states in a conclusory manner that it "produced sufficient evidence to support each of the Firm's claims against the [Appellees]," but it fails to point us to any specific evidence in the record supporting these claims. Neither this Court nor the trial court are obligated to sift through the record to determine what evidence supports the Firm's claim. Because the Firm has not directed our attention to the evidence in the record that warrants reversal of the trial court's order granting Appellees’ no-evidence motion for summary judgment, we uphold this part of the trial court's summary judgment order. See Rogers , 772 S.W.2d at 81 ; EP Hotel Partners , 527 S.W.3d at 662-63 ; Aguilar , 162 S.W.3d at 838.
The Firm's Issue Two is overruled.
E. The Individuals’ no-evidence summary judgment motion
We next consider whether the trial court erred by granting the Individuals’ no-evidence summary judgment motion. The Firm argues that it produced sufficient evidence to support its claims against the Individuals for: (1) breach of contract; (2) action for suit on sworn account; (3) action on account stated; (4) unjust enrichment; (5) promissory estoppel; (6) fraud by misrepresentation or inducement or nondisclosure; (7) breach of duty of good faith and fair dealing; (8) quantum meruit; and (9) participatory and vicarious liability. In its response to the Individuals’ summary judgment motion, the Firm cited to Nevarez's unsigned affidavit that was attached to the response, but presented no other evidence to support his claims. The Individuals respond that because Nevarez's affidavit was unsigned, it has no legal effect and does not constitute competent evidence.
Under the Texas Government Code, an affidavit must be "signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." TEX.GOV'T CODE § 312.011(1). An unsigned document purporting to be an affidavit does not qualify as an affidavit, and it does not constitute competent evidence in determining a summary judgment issue. See Frazier v. City of Dallas , No. 05-99-01399-CV, 2000 WL 688546, at *2 (Tex.App.--Dallas May 24, 2000, no pet.) (not designated for publication).
Here, the document the Firm offered as Nevarez's affidavit is not signed or notarized. Moreover, as the Individuals argued in their no-evidence motion, neither does the record indicate that the Individuals were parties in their individual capacities to the second agreement, and Ardizzoni and Martin did not even sign the agreement. Moreover, handwriting on the second agreement demonstrates that Martin's name was removed from the agreement because he had sold his interest in the properties to Horizon Growth Properties, LLC. Thus, the Individuals cannot be held liable on a contract they never signed, even as agents of the Companies. See MVS Int'l Corporation v. Int'l Advertising Solutions, LLC , 545 S.W.3d 180, 205 (Tex.App.--El Paso 2017, no pet.).
Because the purported affidavit did not constitute competent summary judgment evidence, and because there is no evidence of an element on the Firm's causes of action, the Firm failed its burden to produce evidence raising a fact issue on the challenged elements of its claims against the Individuals. We therefore find that the trial court did not err by granting the Individuals’ no-evidence summary judgment motion. See Frazier , 2000 WL 688546, at *2.
Moreover, the Firm does not point us to any particular evidence in the record that raises a fact issue, but rather only cites to its response to the Individuals’ summary-judgment motion and a list of exhibits to the Firm's summary-judgment motion. Again, we are not obligated to search the record for evidence that raises a fact issue, and the Firm's issue fails for this additional reason. See Tex.R.App.P. 38.1(i) ; see also Aguilar v. Morales , 162 S.W.3d 825, 838 (Tex.App.--El Paso 2005, pet. denied) Walton v. City of Midland , 24 S.W.3d 853, 858 (Tex.App.--El Paso 2000, no pet.), abrogated by In re Estate of Swanson , 130 S.W.3d 144 (Tex.App.--El Paso 2003, no pet.).
The Firm's Issue Three is overruled.
F. Exclusion of evidence
Finally, the Firm argues that the trial court abused its discretion when it "summarily excluded and rejected consideration of the [Firm's] extensive evidence." In its brief, the Firm does not state what specific evidence the court excluded, or on what basis the court did so. Moreover, the record is bereft of any ruling by the trial court excluding evidence. In the absence of an adverse ruling, any appellate complaint is not preserved for our review. See TEX.R.APP.P. 33.1(a).
The Firm also argues that the Companies’ motion for summary judgment and supporting documents contain hearsay. Again, no hearsay objection to these documents or adverse ruling appears in the record, and the trial court's ruling on the motion for summary judgment does not constitute an implicit ruling on the evidence in support of the motion. As such, this complaint is also not preserved for our review and is waived. See TEX.R.APP.P. 33.1(a)(2) ; see also Seim v. Allstate Texas Lloyds , 551 S.W.3d 161, 166 (Tex. 2018) (holding that a trial court's ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment).
The Firm's Issue Four is overruled.
III. CONCLUSION
The trial court's judgment is affirmed. Pursuant to that judgment, we will include in our judgment an award for the conditional appellate attorney's fees as specified in the trial court's judgment.