IN THE
TENTH COURT OF APPEALS
No. 10-06-00381-CV
Beatrice Villarreal Gonzales,
Appellant
v.
Dunnam & Dunnam, L.L.P.
and Vance Dunnam,
Appellees
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 2004-0659 CV1
MEMORANDUM Opinion
Beatrice Gonzales appeals from a summary judgment granted in favor of her former attorney Vance Dunnam, and his law firm Dunnam & Dunnam, LLP (collectively “Dunnam”) for breach of contract to pay attorney’s fees. In three issues, Gonzales argues that the trial court erred in (1) finding that a contract existed between the parties, (2) calculating the damages award, and (3) denying her motion for new trial.
Background
Dunnam represented Gonzales in a divorce. At the conclusion of the divorce proceeding, Vance Dunnam, a partner in Dunnam & Dunnam LLP, demanded payment of $30,000 for his legal services. Gonzales, feeling the charges significantly outweighed the services, suggested $25,000 as payment and Dunnam agreed. Gonzales then refused to pay the full $25,000 and tendered $14,150 as payment, which was not accepted by Dunnam.
Dunnam filed a partial summary judgment motion for $25,000, alleging that two separate contracts for legal fees were entered into and breached by Gonzales. Gonzales failed to timely file a response and requested leave to file a late response, which the trial court denied. The trial court entered a final judgment in favor of Dunnam for the sum of $25,000 plus prejudgment interest in the amount of $3,848.46 and $4,000 for attorney’s fees. Gonzales appeals the grant of the summary judgment motion.
Standard of Review
The standards for reviewing a traditional motion for summary judgment are well established. We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005)). We must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. See id. at 756 (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Spates, 186 S.W.3d at 568).
Breach of Contract
In her first issue, Gonzales argues that the trial court erred in granting partial summary judgment on Dunnam’s breach of contract claim because Dunnam’s summary judgment evidence failed to prove each element necessary to create a contract. The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.—Tyler 2004, pet denied); Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex. App.—Waco 2001, no pet.).
The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). To establish a valid contract, 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, 939 (Tex. App.—Houston [1st Dist.] 1994, writ denied). If a contract is so indefinite that a court cannot determine the legal obligations and liabilities of the parties, it is not enforceable. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Moore v. Dilworth, 142 Tex. 538, 542-43, 179 S.W.2d 940, 942 (1944); Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 485 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
Because Gonzales failed to file a timely response to Dunnam’s summary judgment motion and the trial court denied her motion for leave to file a late response, Gonzales’s response was not before the court. The uncontroverted summary judgment evidence presented by Dunnam established that Gonzales hired Dunnam to represent her in her divorce action. Gonzales initially agreed to pay an hourly rate of $200 per hour for legal services rendered by Dunnam, and she was aware that the final bill would depend on the amount of work involved in the divorce. Near the conclusion of the divorce case, Dunnam told Gonzales that the total amount for services was $30,000, Gonzales offered Dunnam $25,000, which Dunnam accepted. As Dunnam continued to work on finalizing the divorce, Gonzales, on several separate occasions, told Dunnam that she would pay the $25,000 fee. When Dunnam completed the final paperwork, he gave it to Gonzales and she left his office without paying the fee.
City of Keller requires that every reasonable inference be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller, 168 S.W.3d at 822. Even construing the summary judgment evidence in a light favorable to Gonzales, we find that Dunnam’s evidence conclusively established that Gonzales breached a valid contractual agreement for legal services. We overrule Gonzales’s first issue.
Damages
In her second issue, Gonzales asserts that the trial court erred in determining damages. Specifically, she argues that she sent Dunnam a $3,500 check from her ex-husband, that Dunnam cashed the check and retained the funds, and that she should be credited for that amount.
Gonzales does not appeal the trial court’s denial of her motion for leave to file a response, therefore the evidence in her response supporting her argument is not before us. Neely v. Coleman Enters., 62 S.W.3d 802, 806 (Tex. App.—Waco 2001, pet. denied). Because the summary judgment response was untimely filed and leave was denied, there is no evidence in the summary judgment record to support Gonzales’s second issue, which we thus must overrule.
Motion for New Trial
In Gonzales’s third issue, she argues that the trial court erred in denying her motion for new trial because she pled the affirmative defenses of payment and duress in her answer and these issues must be decided by a jury. However, when a nonmovant relies on an affirmative defense in response to a summary judgment motion, the nonmovant must support the response with evidence sufficient to raise a fact issue on each element of the affirmative defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Nat'l Cafe Servs., Ltd. v. Podaras, 148 S.W.3d 194, 199 (Tex. App.—Waco 2004, pet. denied). Because Gonzales did not file a timely response to Dunnam’s motion for partial summary judgment, there is no evidence in the summary judgment record on her affirmative defenses. Thus, the trial court did not abuse its discretion in denying Gonzales’s motion for new trial, and we overrule her third issue.
Conclusion
Having overruled Gonzales’s three issues, we affirm the trial court's judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 28, 2008
[CV06]