Robinson v. Garcia

SEERDEN, Justice,

dissenting.

While I join with Justice Kennedy’s opinion as it affirms the summary judgment as to Texas Commerce Bancshares, I disagree with the result reached by him as to Garcia’s motion for summary judgment.

Specifically, I disagree with Justice Kennedy’s conclusion that the dispositive issue regarding Garcia’s summary judgment is whether section 1.207 of the Uniform Commercial Code (Tex.Bus. & Com.Code Ann. § 1.207 (Vernon 1968)) applies to a “full-payment” check. This issue was not raised by the Robinsons in their reply to Garcia’s motion for summary judgment, their briefs before this Court or on either occasion when the matter was submitted for oral argument. In fact, the only mention of this issue in this case is in Justice Kennedy’s opinion.

Appellants’ first point of error is the only one dealing with the granting of Garcia’s motion for summary judgment. It states:

the trial court erred in granting the motion for summary judgment of appellants Garcia for each of the following reasons:
A.Each of the “alterations” to the contingent fee contract was presumptively fraudulent, and no evidence to rebut the presumption was produced by Garcia.
B. Each of the “alterations” was without legal consideration.
C. Each of the “alterations” was induced by fraud, overreaching and undue influence.
D. There was no accord and satisfaction of the obligations of Garcia by the cashing of the check presented to the Robin-sons for each of the following reasons:
1. The amount of the check was not within the disputed amount of the fee.
2. The cashing of the check was the result of fraud, overreaching and undue influence on the part of Garcia.

Garcia’s motion for summary judgment includes copies of the initial employment contract, the second contract raising the percentage in the event of trial to forty percent and providing an additional five percent in the event of an appeal, signed by the Robinsons on March 23, 1987, and the addendum to the contract reciting that a jury award in the underlying suit had been obtained for $59,260,000.00, recognizing the need to employ additional legal assistance to obtain a final judgment and amending the percentage of recovery to fifty percent of the total recovery, whether obtained by execution of a final judgment or by settlement. This document was signed June 16, 1987.

The motion also contains, as exhibits, copies of the final judgment, the settlement agreement, correspondence, checks and settlement statements which have previously been referred to in this opinion. An affidavit of Garcia is attached which states, in addition to identifying the described documents and relating facts already mentioned, that the balance of the money due as a result of the underlying suit was paid to him on January 4, 1988.

A portion of the deposition of appellant, Edward Robinson, was included in Garcia’s motion for summary judgment. The deposition testimony establishes that Robinson received Garcia’s letter of August 7, 1987, and the proposed settlement check containing the notation “acceptance in full and *255final settlement and in satisfaction of all claims in ... [the case in question],” that Robinson added the phrase, “[e]xcept for disputed attorney’s fees and related claims in Cause No. 87-35586,” and negotiated the check on August 10, 1987, that Cause No. 87-85586 is the number assigned to the present litigation in Harris County, and that this litigation had been filed on August 6, 1987.

Garcia argues that the negotiation and acceptance of his check by appellants, after they had retained another attorney and filed suit against him in connection' with the dispute over the amount of the fee, constitutes accord and satisfaction of the debt, as a matter of law and, consequently, he is entitled to a summary judgment. Accord and satisfaction is an affirmative defense.

Appellants’ response incorporates, by reference, their Motion for Partial Summary Judgment and also includes an affidavit of Edward Robinson. This affidavit recites facts relating to the three employment contracts with Garcia. It recites material which establishes a fact question as to whether either of the amendments to the original contract would be enforceable. He also recites that the matters “alleged in the Plaintiffs’ Motion for Partial Summary Judgment are true and correct to my personal knowledge.” The motion for partial summary judgment includes as attachments unverified copies of what purport to be proceedings in a United States Bankruptcy court case involving appellants and Bancshares and TCB-McAllen. These documents relate to the first employment contract between the Robinsons and Garcia and, if authentic, show that such court authorized the proceeding with what we have termed the underlying lawsuit in accordance with the initial employment contract between the Robinsons and Garcia. There is no indication of whether the Rob-insons were in bankruptcy at any other relevant time.

Appellants’ response states that no consideration was given for the execution of the contracts subsequently raising the contingent fee. It states that appellants were required by economic necessity to accept the check representing 50% of the recovery and that the cashing of the check was involuntary and caused by undue coercion by Garcia, who was at time acting as a fiduciary on their behalf and as their attorney. The motion also incorporates Edward Robinson’s affidavit from his answer to Garcia’s Motion for Summary Judgment, which we have previously discussed.

Appellants contend that they are entitled to a partial summary judgment for $1,275,-000.001 claiming that all but the first employment contract are presumed fraudulent. They claim that Garcia is estopped from asserting the defense of accord and satisfaction because he was acting in a fiduciary and attorney-client relationship and, further, that the defense of accord and satisfaction is unavailable because the transaction was inherently unfair and they were unlawfully and fraudulently coerced into cashing Garcia’s proposed settlement check.

The trial court granted Garcia’s motion for summary judgment and denied that of the Robinsons.

Appellants offer four theories for the proposition that the granting of Garcia's motion for summary judgment was error. The first three reasons attack the amendments to the contract employing Garcia as their attorney. They contend that the alterations are presumed fraudulent and there is no evidence to rebut the presumption, that there was no consideration for the alterations and that the alterations were induced by fraud, overreaching and undue influence. The fourth theory presented by appellants is that there was no accord and satisfaction because the amount they received was not within the disputed amount of the fee and the cashing of the check was the result of fraud, overreaching and undue influence.

*256As previously stated, appellants have not presented, either to the trial court or this Court, the issue of whether the Uniform Commercial Code applies to a full-payment check. In Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990), our Supreme Court, in a per curiam opinion, stated:

A court of appeals may not reverse a trial court’s judgment in the absence of properly assigned error, [citations omitted] Furthermore, Rule 52(a) of the Texas Rules of Appellate Procedure provides ‘[i]n order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling.’

Id. at 264; see also San Jacinto River Auth. v. Duke, 783 S.W.2d 209 (Tex.1990).

Accordingly, I believe this case should only be considered in light of the matters presented to us for review. These are contained in point of error number one, previously set out. These matters will now be reviewed.

The doctrine of accord and satisfaction is based upon an agreement, express or implied, to discharge a previous obligation in a manner other than originally agreed; it is the tender of alternative satisfaction upon the condition that acceptance discharges the underlying obligation. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1970). It is distinguished from the doctrine of settlement and compromise, which refers to the conclusion of a disputed or unliquidated claim, and attendant differences between the parties, through a contract in which they agree to mutual concessions to avoid resolving their controversy through a course of litigation. Conversely, accord and satisfaction refers to an agreement between parties, one of whom has a right of action against the other, when the former accepts some performance by the latter in satisfaction of the right of action. The right of action may consist of a claim that is either liquidated or unliquidated, disputed or undisputed. The performance so accepted by the holder of the right of action must be different from that which might be legally enforced. The word “accord” refers to the agreement; the word “satisfaction” refers to the performance of the agreement, given and accepted in lieu of the right of action. See Priem v. Shires, 697 S.W.2d 860, 863 n. 3 (Tex.App.-Austin 1985, no writ). To establish the defense of accord and satisfaction, there must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation, and when meeting of the minds rests upon implication, the facts proved must irresistibly point to such a conclusion. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969).

Here, there is no question that there was a dispute between the parties concerning the division of the proceeds of the underlying lawsuit which gave appellants a right of action against Garcia,2 that Garcia offered his check to appellants as an “accord” and in full satisfaction of the dispute between the parties, and that appellants accepted the check tendered.

An accord and satisfaction is considered a substitute contract complete within itself and it therefore must be based upon a consideration the same as any other contract. Grindstaff v. North Richland Hills Corp. No. 2, 343 S.W.2d 742, 744 (Tex.Civ.App.-Fort Worth 1961, writ ref'd n.r.e.). Appellants do not claim that the fact that they added the qualifying phrase “[e]xcept for disputed attorney’s fees and related claims, Cause No. 87-35582” to the check before negotiating it prevents the transaction from being an accord and satisfaction. They do not question appellee’s reliance on Pileco, Inc. v. HCI, Inc., 735 S.W.2d 561 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.), and Hixson v. Cox, 633 S.W.2d 330 (Tex.App.-Dallas 1982, writ ref'd n.r.e.), which declare that the law is well settled that a disputed money demand may be discharged by the creditor’s acceptance and negotiation of a check in an amount less than the claim, tendered on the condition that its acceptance be full and final satisfaction of the claim and that upon receipt of such a check the creditor is given the *257choice of either accepting the check as full payment or returning it, unaccepted, and suing for the full amount claimed.

Appellants argue at length about the duties of an attorney to exercise the utmost good faith and fair dealing in his relations with his client, as well as the importance of the trust a client is entitled to rely upon in his dealings with his lawyer. They cite numerous cases illustrating that the burden of establishing perfect fairness, adequacy and equity of a transaction with a client is on the attorney, based on the maxim that he who bargains from a position of trust and advantage with persons placing trust and confidence in him, must show that reasonable use has been made of the confidence. See Archer v. Griffith, 390 S.W.2d 735 (Tex.1965); State v. Baker, 539 S.W.2d 367, 374 (Tex.Civ.App.-Austin 1976, writ ref'd n.r.e.). However, all of the cases referred to by appellants, as well as their statements and arguments, deal with the rights of the parties in connection with Garcia’s employment as the Robinsons’ attorney rather than the new contract evidenced by the accord and satisfaction. Appellants have referred us to no cases, nor have we found any, which stand for the proposition that a party is precluded from entering into an accord and satisfaction of a disputed contract because such contract was induced by fraud or undue influence. To the contrary, all claims arising out of express or implied contracts, irrespective of their subject matter, can be the subject of an accord and satisfaction, if the contract is not illegal. Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592 (1938). The confidential relationship of attorney and client had terminated before the Robinsons cashed the check. A confidential relationship does not continue to exist after one of the parties files suit against the other. See Arrington v. Sneed, 18 Tex. 140 (1857). I would therefore hold that whether the “alterations” to the contingent fee contract were without consideration, fraudulently entered into, or whether the “alterations” were the result of undue influence, does not preclude an accord and satisfaction, when the fiduciary relationship had terminated before the accord and satisfaction.

Appellants also contend that there was no accord and satisfaction of Garcia’s obligations by the cashing of the check because 1) the amount of the check was not within the disputed amount of the fee and 2) the cashing of the check was the result of fraud, overreaching and undue influence on the part of Garcia.

The first of these positions is based upon the fundamental proposition that, since an accord and satisfaction is a contract, and an essential element of all contracts is consideration, the payment of a part of the debt which is undisputed is not sufficient to support a promise to accept the same in full payment of the debt, and does not bar the creditor’s suit to recover the balance. See Prather v. Citizens Nat’l Bank, 582 S.W.2d 903, 906 (Tex.Civ.App.-Waco 1979, writ ref’d n.r.e.). However, the defense of accord and satisfaction may be established by part payment of an unliquidated demand, and sufficient consideration for accord may arise out of a dispute as to the liability upon a liquidated claim. Industrial Ins. Co. v. Finley, 382 S.W.2d 100, 104 (Tex.1964). In our case, the parties were engaged in a dispute over the proper percentage of a contingent fee contract and, as pointed out in Garcia’s letter of August 4, 1987, the check tendered did not include any fee for the $600,000.00 deficiency judgment forgiven by TCB-McAllen. I would hold that there was consideration for an accord and satisfaction.

Finally, appellants’ summary judgment proof is not supported by evidence of fraud, overreaching or undue influence in connection with the cashing of the check. There was no fiduciary relationship between the Robinsons and Garcia at the time they cashed the check. An accord and satisfaction was established as a matter of law, and appellants have presented no evidence to raise a fact issue concerning fraud, duress and undue influence in the cashing of the settlement check. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). I would hold that appellants’ first point of error be *258overruled and affirm the judgment of the trial court.

. Presumably their calculation of the difference between $6,250,000 and the amount they received from Garcia.

. The right of action exists regardless of which party would prevail in the action.