Adrian James v. Kirby Hiscox

ACCEPTED
03-15-00256-CV
6679518
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/27/2015 11:56:27 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00256-CV

In the Court of Appeals FILED IN
3rd COURT OF APPEALS
For the Third Court of Appeals District AUSTIN, TEXAS
Austin, Texas 8/27/2015 11:56:27 AM
JEFFREY D. KYLE
Clerk

ADRIAN JAMES,
Appellant,

KIRBY HISCOX
Appellee.

Appeal from the County Court at Law #1,
Travis County, Texas
CAUSE NO. C-1-CV-14-008643
The Honorable Todd Wong and Eric Shepperd Presiding

APPELLANT’S BRIEF

JOHN W. ESCOVER
State Bar No. 24029539
401 Ranch Road 620 South, Suite 350
Austin, Texas 78734
Telephone: 512-263-0939
Facsimile: 512-263-0943
John@Escoverlaw.com
COUNSEL FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant lists

the following parties affected by this appeal, and their respective counsel:

APPELLANT APPELLEE

Adrian James Kirby Hiscox

Trial and Appellate Counsel Trial and Appellate Counsel

John W. Escover Henry Novak
State Bar No. 24029539 State Bar No. 15120000
401 Ranch Road 620 South, Suite 350 11782 Jolleyville Road
Austin, Texas 78734 Austin, Texas 78759
Telephone: 512-263-0939 Telephone: 512 577-5380
Facsimile: 512-263-0943 Facsimile: 512 532-6008
John@Escoverlaw.com Henry@henrynovak.com
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………….i

TABLE OF CONTENTS…………..………………………………………………ii

I. STATEMENT OF CASE……………………...…………………………1

II. ISSUES PRESENTED……………..…………………………………….2

III. STATEMENT OF FACTS...……….…………………………………….3

IV. SUMMARY OF THE ARGUMENT……….……….…………………...4

V. ARGUMENT……………….…………………………………………….6

1. The trial court erred because Appellee failed to establish that
there are no genuine issues of material fact. The contract is
subject to two or more reasonable interpretations creating a
fact issue precluding summary judgment…………….………………..6

2. The trial court erred because it failed to indulge every
reasonable inference in favor of Appellant and failed to
resolve any doubts in Appellant’s favor ………….………….………..8

3. The trial court erred because it failed to consider the entire
writing in an effort to harmonize and give effect to all the
provisions of the contract so that none will be rendered
meaningless ………………………………………………….……….10

4. The trial court erred because the contract is ambiguous, creating
a fact issue on the parties’ intent precluding summary
judgment………………………………………………………………12

5. The trial court erred because Appelle drafted the liquidated
damage provision that he now attempts to avoid and under
the contra proferentem doctrine, an ambiguous contract
will be interpreted against its drafter…………………...…………..…14

VI. CONCLUSION AND PRAYER………………………………………....15
CERTIFICATE OF COMPLIANCE ..……………………...……………………...18

CERTIFICATE OF SERVICE……………………………………...……….….….18
TABLE OF AUTHORITIES

CASES

Anglo-Dutch Petroleum v. Greenberg Peden, 267 S.W.3d 454
(Tex. App. – Houston [14th] Dist, 2008)……………………………………...12

Arthur’s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803
(Tex.App. – Dallas, 1999 no-pet)………………………………...…………...14

City of Pinehurst v. Spooner Addition Water Co., 432 S.W. 2d 515
(Tex. 1968)……………………………………………...…………………….10

Coker v. Coker, 650 S.W.2d 391
(Tex. 1983)………………………………………………………………..……8

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587
(Tex. 1996)……………………………………………………………………12

Evergreen Nat'l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669
(Tex.App.-Austin 2003, no pet.)……………………………………………...12

Haase v. Glazner, 62 S.W.3d 795
(Tex. 2001)……………………………………………………….…………….6

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223
(Tex. 2003)……………………………………………………………………12

Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193
(Tex. 1962)……………………………………………………………………10

Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546
(Tex. 1985)……………………………………………………………….…..8-9

R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517
(Tex. 1980)……………………………………………………………………10

Universal C.I.T. Credit Corp. v. Daniel,243 S.W.2d 154
(Tex. 1951)…………………………………………………………………....10
Valence Operating Co. v. Dorsett, 164 S.W. 656
(Tex. 2005)…………………………………………………………….…...…14

STATUTES

TEX. R. CIV. P. 166a(c)………………………………………………..…………...6
I. STATEMENT OF CASE

On November 19, 2012, Appellee and Appellant entered into a personal

services contract wherein Appellee would provide acting services to Appellant’s

production company. Appellant and Appellee negotiated and modified Appellee’s

personal services contract to include, inter alia, a discounted daily shoot rate from

$1,500 per day to $1,000, in exchange for Appellant “guaranteeing” 20 minimum

shoot days, equivalent to $20,000. The parties also negotiated a liquidated damage

clause “if” 20 shoot dates were not met. “In the event, 20 shoot days are not met

within the first four months, Appellee’s daily rate would revert to $1,500 and be

paid retroactively for all completed shoot days.” [CR 19-21] Appellee performed

two shoot days and was initially compensated $2,000 for his services. Appellant

later tendered an additional $1,000. [CR-16] On August 31, 2013, Appellee sent a

demand letter contending he was entitled to an additional $18,000 pursuant to the

shoot day guarantee. [CR-32] Appellent rejected Appellee’s demand. Appellee

filed suit in Justice of the Peace Court seeking $10,000 in damages and attorney’s

fees. The justice court dismissed the suit on lack of jurisdiction. Appellee then

filed suit in County Court contending that he was now entitled to an additional

$28,000. [CR-17] Appellee and Appellant filed competing summary judgments

each contending the contract was unambiguous. The Honorable Todd Wong

granted Appellee’s summary judgment and sustained Appellant’s Objections to

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Appellant’s Brief
Appellee’s Affidavit as inadmissible parole evidence and awarded Appellee

$30,000 less $2,000 already paid, for a total award of $28,000, plus attorney’s fees

and costs. [CR46-48] Appellant timely filed his Motion for New Trial and Reply

contending the guarantee contained a liquidated damages clause creating

Appellee’s sole and exclusive remedy and that Appellee’s interpretation ignored

Paragraph 2B that states Appellee’s pay scale when cancellation notices are given

24, 48, and 72 hours in advance and that Appellee was entitled to his normal rate

of $1,500 for the two completed shoot days, or in other words $3,000. [CR-49 &

78] The Honorable Eric Shepperd denied Defendant’s Motion for New Trial. [CR-

199]

II. ISSUES PRESENTED

1. The trial court erred because Appellee failed to establish that there are no
genuine issues of material fact and that the contract is subject to two or more
reasonable interpretations creating a fact issue precluding summary judgment.

2. The trial court erred because it failed to indulge every reasonable inference
in favor of Appellant and it failed to resolve any doubts in Appellant’s favor.

3. The trial court erred because it failed to consider the entire writing in an
effort to harmonize and give effect to all the provisions of the contract so that none
will be rendered meaningless.

4. The trial court erred because the contract is ambiguous, creating a fact issue
on the parties’ intent precluding summary judgment and under the contra
proferentem doctrine, an ambiguous contract will be interpreted against its drafter.

5. The trial court erred because Appellee drafted the liquidated damage
provision that he now attempts to avoid.

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Appellant’s Brief
III. STATEMENT OF FACTS

Appellee and Appellant entered into a personal services contract crafted by

Appellee. Appellee and Appellant negotiated and modified some specific

contractual terms and conditions that are in dispute and were the subject of

competing motions for summary judgment. Appellant hired Appellee to provide

professional acting services to be compensated pursuant to the terms and

conditions outlined in Paragraphs 2B and 4 of the Agreement. Appellant utilized

Appellee’s acting services during two days of shooting and initially paid Appellee

$2,000.00, and thereafter Appellant tendered an additional $1000 in compliance

with the Agreement that Appellee subsequently rejected.

Paragraph 2B.:

B. Cancellation of Shoot Dates: If a scheduled shoot date is cancelled
with less than a 24-hour notice given to the Actor, the Actor shall be paid
at the full-day rate. If a scheduled shoot date is cancelled and notice is
given to the Actor between 24 and 48 hours prior to the Shoot date, the
Actor shall be paid at 50% of the full-day rate. If a scheduled Shoot Date
is cancelled and notice is given to the Actor between 48 and 72 hours
prior to the Shoot Date, the Actor shall be paid 25% of the full-day rate.
No rate will be paid to the Actor for Shoot Date cancellations given to the
Actor at least 72 hours in advance of a scheduled Shoot Date.

Paragraph 4:

4. MINIMUM GUARANTEED SHOOT DAYS In exchange for
Actor's agreement to reduce his fees to those stated above, the Producer
guarantees to Actor a minimum of twenty (20) Shoot Days of filming,
equivalent to $20,000.00 to be paid to Actor. In the event that the twenty
(20) Shoot Days are not met within the first four (4) months of the
Agreement, the effective rate of $1,000.00 per day as stated in Paragraph
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Appellant’s Brief
2.A.i. above will revert to $1,500.00 per day rate and be paid
retroactively for all completed Shoot Days and become due and payable
within fourteen days after the end of the fourth (4th) month of this
Agreement.1

On August 31, 2013, Appellee first contended that he was entitled to an

additional $18,000 for a total of payment under the Contract of $20,000.2 At the

summary judgment hearing Appellee then contended that he was entitled to an

additional $28,000 (18 more days @ $1,500/day, plus $500 per day in addition to

the $1,000 already paid for the 2 days actually filmed) for a total payment under

the Contract of $30,000.

IV. SUMMARY OF ARGUMENT

The trial court erred when it failed to apply any summary judgment standard

or rule of contractual interpretation when it granted Appellee’s Motion for

Summary Judgment and denied Appellant’s Motion for New Trial. Every

summary judgment standard and contractual rule of construction mandates that the

trial court should have denied Appellee’s Motion for Judgment and should have

granted Appellant’s Motion for New Trial. Or in the alternative, it should have

granted Appellant’s Motion for Summary Judgment, or at a minimum, denied both

motions for summary judgment.

1 See Clerk’s Record and Brief Appendix; Plaintiff’s Motion for Summary Judgment Exhibits @
P.1-3; Appellee’s Factor of One Contract.
2 See Clerk’s Record and Brief Appendix; Plaintiff’s Motion for Summary Judgment Exhibits @
P.14; Appellee’s August 31, 3013 Demand Letter.
4
Appellant’s Brief
Appellee’s contract that he crafted, negotiated, and modified provided his

sole exclusive remedy in the event of a breach by Appellant that Appellee would

not be paid $1,000 for all completed shoot days, but compensated at his regular

rate of $1,500 per day.

Appellee has even read and asserted differing interpretations of his own

contract. On August 31, 2013, Appellee contended in his pre-suit demand letter

that he was entitled to an additional $18,000 not an additional $28,000. “Mr.

Hiscox advised me that you paid him the agreed fee of $2,000, for those two days,

but you failed to pay him the balance of the $18,000 fee guaranteed to him.

Accordingly, demand is made upon you for payment of the $18,000 due Mr.

Hiscox under the terms of the Contract.”

Appellee’s multiple positions regarding his own contract clearly evidences

the inherent ambiguity in his own mind of the Agreement’s pay terms and

conditions, and mandates that the trial court erred when it granted summary

judgment and awarded $28,000, an amount that no reasonable interpretation of the

Agreement supports. Therefore, the trial court erred when it granted Appellee’s

Motion for Summary Judgment, when it denied Appellant’s Motion for Summary

Judgment, and denied Appellant’s Motion for New Trial.

5
Appellant’s Brief
V. ARGUMENT

1. THERE ARE GENUINE ISSUES OF MATERIAL FACT. THE CONTRACT IS
SUBJECT TO TWO OR MORE REASONABLE INTERPRETATIONS CREATING A
FACT ISSUE ON THE PARTIES’ INTENT PRECLUDING SUMMARY JUDGMENT

A summary judgment under Rule of Civil Procedure 166a(c) is properly

granted only when a movant establishes that there are no genuine issues of material

fact, and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001).

The contradictory language of Paragraph 4 is susceptible to at least two

reasonable interpretations including but not limited to how the actual computation

of damages should be calculated neither of which are the Appellee’s or trial court’s

unreasonable interpretation.

In short, under the trial court’s and Appellee’s latest interpretation of the

Paragraph 4, Appellant guaranteed to pay Appellee 20 shoot days equivalent to

$20,000, and if Appellee didn’t actually work 20 days for $20,000 by performing

acting services, Appellee would then be entitled to $30,000, despite only being

guaranteed $20,000? Of course what Appellee and the trial court have done is they

have shoehorned two separate clauses with separate meanings and terms within

Paragraph 4 to reach their mathematical equation while completely disregarding

earlier words and clauses in Paragraph 2B that are associated with the contractual

pay scales. The trial court held that Appellee was guaranteed 20 shoot days at

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Appellant’s Brief
$1,500 a day for a total of $30,000 even though the express language without the

application of the liquidated damage clause states a $20,000 guarantee.

It is undisputed that 20 shoot dates were not met and it is undisputed that

there were only two completed shoot dates. Therefore a more reasonable

calculation based upon a plain reading of the language is, assuming arguendo, if

you accept Appellee’s position that there was an absolute guarantee of 20 shoot

days, that for the two completed shoot dates Appellee is entitled to $3,000, leaving

18 guaranteed shoot dates remaining at the $1,000 per date for a total maximum

payment of $21,000, not $30,000, but even this position is not within the plain

reading of the contract, and it ignores the express provision of $20,000, the

liquidated damage clause, and Paragraph 2B.

Neither of the previous arguments are the most reasonable since the express

language of the clause specifically states a contingency if 20 shoot days are not

met. “In the event twenty (20) Shoot Days are not met,” within the first four (4)

months of the Agreement, the effective rate will revert to $1,500 per day rate and

be paid “retroactively for all completed Shoot Days...” (emphasis added) The math

alone dictates that summary judgment award was improper. Furthermore, the plain

language of the liquidated damage clause drafted by Appellee unequivocally states

the contingency; if 20 shoot dates are not met, Appellee will be paid $1,500 per

day, retroactively, for all completed shoot dates, or in other words $3,000.

7
Appellant’s Brief
But of course none of the previous interpretations are reasonable or the

position first espoused by Appellee. On August 31, 2013, Appellee contended in a

pre-suit demand letter crafted by his trial and appellate counsel that, “[M]r. Hiscox

advised me that you paid him the agreed fee of $2,000, for those two days, but you

failed to pay him the balance of the $18,000 fee guaranteed to him.3 Accordingly,

demand is made upon you for payment of the $18,000 due Mr. Hiscox under the

terms of the Contract.

When a contract contains an ambiguity, the granting of a motion for

summary judgment or directed verdict is improper because the intent of the

contracting parties is an issue of fact. (emphasis added) Coker v. Coker, 650

S.W.2d 391, 394 (Tex. 1983). If you are buying what the Apellee is selling even

Appellee doesn’t know what his intent was at the time the Contract was executed

then surely it is an impossibility for the trial court to insert its opinion of what

Appellee knew at the time the contract was negotiated, modified, and executed.

2. THE TRIAL COURT FAILED TO INDULGE EVERY REASONABLE INFERENCE IN
FAVOR OF APPELLANT AND FAILED TO RESOLVE ANY DOUBTS IN
APPELLANT’S FAVOR

In deciding whether there is a disputed material fact precluding summary

judgment, every reasonable inference must be indulged in favor of the non-movant

3 See Clerk’sRecord and Brief Appendix; Plaintiff’s Motion for Summary Judgment Exhibits @
P.14; Appellee’s August 31, 2013 Demand Letter.

8
Appellant’s Brief
and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546,

548 (Tex. 1985).

Appellant contends the liquidated damage provision is controlling and clear.

Although he concedes an argument, although strained and unreasonable, can be

made as demonstrated above, that there is a doubt as to the parties’ intentions and

what the proper measure of damages would be if 20 shoot dates were not met. But

the analysis clearly begs the question, “why would Appellant supposedly guarantee

to pay Appellee $20,000, and if Appellee did not have to work then Appellee

would be paid $30,000? Where is the benefit of the bargain?

The bargain negotiated is that Appellant would get a discount if Appellee

actually works at least 20 days. If so, rather than paying Appellee $30,000 for

those services, Appellee would receive $20,000, a fact confirmed on August 31,

2013 in Appellee’s demand letter. However, the most reasonable interpretation is

that if 20 shoot days were not completed within the first four months, Appellant

would get no discount and Appellant must pay Appellee at his regular rate of

$1,500 rather than $1,000 for all completed shoot days. The ambiguities don’t end

there, what if Appellee worked 21 days but the 21 st day came after the four month

mark? Does Appellee get paid $1,000 or $1,500? Contractual construction

mandates that since Appellee drafted the contract all inferences must be indulged

in Appellant’s favor but were clearly not at the trial court level.

9
Appellant’s Brief
3. THE TRIAL COURT FAILED TO CONSIDER THE ENTIRE WRITING IN AN
EFFORT TO HARMONIZE AND GIVE EFFECT TO ALL THE PROVISIONS OF THE
CONTRACT SO THAT NONE WOULD BE RENDERED MEANINGLESS

“We must examine and consider the entire writing in an effort to harmonize

and give effect to all the provisions of the contract so that none will be rendered

meaningless.” Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 243 S.W.2d 154,

158 (Tex. 1951). “No single provision taken alone will be given controlling effect;

rather, all the provisions must be considered with reference to the whole

instrument.” Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196

(Tex. 1962). In construing a written contract, the primary concern of the court is

to ascertain the true intentions of the parties as expressed in the instrument. R & P

Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980); City

of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968).

In addition to the analysis contained in subheading two above, the trial court

also failed to harmonize Paragraph 2B and Paragraph 4. Paragraph 2B states,

If a scheduled shoot date is cancelled with less than a 24-hour notice given
to the Actor, the Actor shall be paid at the full-day rate. If a scheduled shoot
date is cancelled and notice is given to the Actor between 24 and 48 hours
prior to the Shoot date, the Actor shall be paid at 50% of the full-day rate. If
a scheduled Shoot Date is cancelled and notice is given to the Actor between
48 and 72 hours prior to the Shoot Date, the Actor shall be paid 25% of the
full-day rate. No rate will be paid to the Actor for Shoot Date cancellations
given to the Actor at least 72 hours in advance of a scheduled Shoot Date.

There is no evidence regarding if and when notice was given, and if it was,

was it given 24, 48, or greater than 72 hours in advance of the scheduled shoot day.
10
Appellant’s Brief
Furthermore, whether 2B was actually invoked or not is irrelevant to contractual

interpretation. But its presence absolutely precludes summary judgment because

its plain meaning directly contradicts Appellee’s latest position and the trial court’s

ruling and award. 2B’s express provisions precludes there being an absolute

guarantee of 20 shoot dates or $20,000 and is most consistent with Appellant’s

position that Appellee is only entitled to two days of pay at $1,500. Its invocation

or not has no bearing on interpretation, but it is a factual determination that clearly

precludes summary judgment because it affects whatever mathematical calculation

that is ultimately applied.

Therefore and pursuant to 2B, Appellee is not entitled to any pay for any

shoot days cancelled beyond the 72 hour mark and he may be entitled to partial

payments for days cancelled within 48 or 24 hours. The trial court’s granting

Appellee’s Motion for Summary Judgment has rendered 2B meaningless. It is

undisputed that 2B was crafted by Appellee and therefore any discrepancies must

be construed against Appellee. At a minimum when Paragraphs 2B and 4 are

construed together, it creates a fact issue precluding summary judgment. If

properly construed under the rules of construction, 2B must be given preference

since it is earlier in the contract than Paragraph 4, and all reasonable inferences are

to be resolved in Appellant’s favor. Therefore if paragraphs 2B and 4 are properly

11
Appellant’s Brief
construed and applied, Appellee is only entitled to $3,000 for two completed shoot

dates.

4. THE TRIAL COURT ERRED BECAUSE THE CONTRACT IS AMBIGUOUS,
CREATING A FACT ISSUE ON THE PARTIES’ INTENT PRECLUDING SUMMARY
JUDGMENT AND UNDER THE CONTRA PROFERENTEM DOCTRINE, AN
AMBIGUOUS CONTRACT WILL BE INTERPRETED AGAINST ITS DRAFTER

A contract is unambiguous if it can be given a definite or certain legal

meaning. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d

587, 589 (Tex. 1996). On the other hand, if the contract is subject to two or more

reasonable interpretations after applying the pertinent rules of construction, the

contract is ambiguous, creating a fact issue on the parties’ intent. J.M. Davidson,

Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003). Under the contra proferentem

doctrine, an ambiguous contract will be interpreted against its drafter. See, e.g.,

Evergreen Nat'l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 677 (Tex.App.-

Austin 2003, no pet.)(if insured's interpretation of ambiguous policy provision is

reasonable, it will be adopted even if insurer's interpretation is objectively more

sensible, as long as insured's construction is not unreasonable). Courts employ this

doctrine as a device of last resort when construing ambiguous contracts; it

essentially operates as a tie-breaking device to prevent arbitrary decisions. Id.

Anglo-Dutch Petroleum v. Greenberg Peden, 267 S.W.3d 454 (Tex. App. –

Houston [14th] Dist, 2008).

12
Appellant’s Brief
Despite the rules of construction and summary judgment law, it is clear from

the trial court’s granting Appellee’s Motion for Summary Judgment and denying

Appellant’s Motion for New Trial that the ambiguities that permeate Appellee’s

contract where strictly construed against Appellant. The rules of contractual

interpretation dictate that any contractual ambiguities must be construed against

Appellee drafter.

The first sentence of Appellee’s contract Paragraph 4 is directly modified by

the second sentence.

In exchange for Actor's agreement to reduce his fees to those stated above,
the Producer guarantees to Actor a minimum of twenty (20) Shoot Days of
filming, equivalent to $20,000.00 to be paid to Actor.

The second sentence,

In the event that the twenty (20) Shoot Days are not met within the first four
(4) months of the Agreement, the effective rate of $1,000.00 per day as
stated in Paragraph 2.A.i. above will revert to $1,500.00 per day rate and be
paid retroactively for all completed Shoot Days and become due and payable
within fourteen days after the end of the fourth (4th) month of this
Agreement.

The second sentence spells out contingency compensation if 20 shoot days

are not completed. Rather than Actor being paid $1,000 per shoot days completed,

there would be no discount, but the Actor would be paid his normal rate ($1,500)

for all completed shoot days. The court has effectively ruled that there was a

guarantee of $30,000 when no such provision exists or can be inferred from the

contract and furthermore this reasoning completely ignores Paragraph 2B, as stated
13
Appellant’s Brief
above. If all reasonable inferences and indulgences had been construed in

Appellant’s favor the rules of construction dictate that Appellee is only entitled to

$3,000 for the two completed shoot dates at $1,500 per day, and certainly not

guaranteed $30,000.

There is no doubt and the case law is clear if ambiguities exist then summary

judgment is improper and under the rules of construction Appellant’s position that

Appellee is only entitled to $3,000 must be given deference and resolved in his

favor.

5. THETRIAL COURT ERRED BECAUSE APPELLEE DRAFTED THE LIQUIDATED
DAMAGE PROVISION THAT HE NOW ATTEMPTS TO AVOID

“Liquidated damages clauses fix in advance the compensation to a party

accruing from the failure to perform specified contractual obligations….” Valence

Operating Co. v. Dorsett, 164 S.W. 656, 644 (Tex. 2005). “Damages for breach

by either party may be liquidated in the agreement but only at an amount that is

reasonable in the light of the anticipated or actual loss caused by the breach and the

difficulties of proof of loss.” Id.

Courts will enforce a liquidated damages clause only on the presence of two

conditions: (1) the harm caused by the breach must incapable or difficult of

estimation; and (2) the amount of liquidated damages must be a reasonable forecast

of just compensation. Arthur’s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997

S.W.2d 803, 810 (Tex.App. – Dallas, 1999 no-pet).
14
Appellant’s Brief
The “[I]n the event” clause clearly indicates a contemplated contingency and

as such is an enforceable liquidated damage provision that fixes the just

compensation in advance for the failure to perform a specific contractual

obligation. There is no evidence that Appellee was precluded, or not, from seeking

other acting work or any work during the pendency of this contractual

arrangement. Therefore it is impossible to calculate or even predict his potential

monetary damages based upon work he claims he might have or might not have

been engaged to perform, for what duration, and at what rate. By definition this

makes his losses impossible to predict or calculate, satisfying the first prong.

Appellee cannot contend that the liquidated damage provision is not a

reasonable forecast of damages since it states he would be paid his regular rate of

$1,500 per completed shoot days. His contract, that he modified, states that his

compensation, in the event of a breach, will revert to his normal daily rate, and he

will be compensated for all completed shoot dates at $1,500 per day. Therefore, the

second element of a liquidated damage provision that the amount be just, is

satisfied as well making the clause an enforceable liquidated damage clause.

VI. CONCLUSION AND PRAYER

There is not a single rule of contractual interpretation or a summary

judgment standard that Appellee can articulate that supports his strained and

15
Appellant’s Brief
unreasonable readings or multiple interpretations of the contract, and consequently

the trial court’s granting of summary judgment.

Appellant has demonstrated that multiple grounds exist mandating that the

trial court should have denied Appellee’s Motion for Summary Judgment and

granted Appellant’s Motion for New Trial including; 1) Appellee failed to

establish that there are no genuine issues of material fact, and that Appellee was

entitled to judgment as a matter of law; 2) There are disputed material facts

precluding summary judgment, and this court failed to indulge every reasonable

inference in favor of Appellant and failed to resolve any doubts in Appellant’s

favor; 3) The court failed to consider the entire writing in an effort to harmonize

and give effect to all the provisions of the contract so that none will be rendered

meaningless; 4) The granting of summary judgment was improper because after

applying the pertinent rules of construction, the contract is ambiguous, creating a

fact issue on the parties’ intent; and 5) Since the contract is ambiguous under the

contra proferentem doctrine, the ambiguous contract must be interpreted against its

drafter, and in this case Appellee. There is no doubt and the case law is clear if

ambiguities exist then summary judgment is improper and under the rules of

construction Appellant’s position of $3,000 is the most reasonable and must be

given deference. There is no rational reading of the Contract that entitles Appellee

16
Appellant’s Brief
to $30,000 even Appellee’s own first position regarding the breach belies the trial

court’s judgment and award.

Accordingly, Appellant respectfully requests that this court reverse the trial

court’s judgment and enter an order granting Appellant’s Motion for Summary

Judgment, or in the alternative reverse and remand, and for such other further relief

to which Appellant shows himself justly entitled.

Respectfully submitted,

THE LAW OFFICES OF JOHN W. ESCOVER,
LLLP

____________________________________
JOHN W. ESCOVER
State Bar No. 24029539
401 Ranch Road 620 South, Suite 350
Austin, Texas 78734
Telephone: 512-263-0939
Facsimile: 512-263-0943
John@Escoverlaw.com
ATTORNEY FOR APPELLANT

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Appellant’s Brief
CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the word limit of Tex. R. App. P.
9.4(i)(2)(B) because this brief contains 4,153 words, excluding the parts of the
Brief exempted by Tex. R. App. P. 9.4(i)(1).

____________________________________
John W. Escover

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing
legal instrument has been served on all parties of record via facsimile and/or
electronic service on the 27th day of August, 2015 as follows:

Electronic Service or Via Facsimile: (512) 532-6008
Henry Novak
11782 Jolleyville Rd., Suite 210
Austin, TX 78755

__________________________________
John W. Escover

18
Appellant’s Brief
APPENDIX

1. Plaintiff’s Motion for Summary Judgment Exhibits;

2. Trial Court’s Order Granting of Summary Judgment and Sustaining

Objection to Plaintiff’s affidavit;

3. Trial Court’s Order Denying Defendant’s Motion for New Trial.

19
Appellant’s Brief
F ACT 0 R OF NE

-------------------------
This Agreement (herein after the "Agreement") is entered into this November 19, 2012 by and
between Kirby M. Hiscox, (herein after the II Actor") and Adrian James (herein after the
··Producer"), The parties hereby agree as follows:

1. ACTOR'S SERVICES

Actor shall be available and shall provide to the Producer professional acting services (herein
after "Acting Services") for Producer's Entrepreneur Archive project, as outlined in
Paragraphs I.A. below. At the request of the Producer, Actor shall be available and shall provide
to the Producer Optional Hourly or Retained Consulting and Collaboration Services as
outlined in Paragraph 1.B. below.

A. Professional Non-Broadcast Acting Services for private distribution shall include:
On-Camera, Voice-Over. lnternet. DVD, Print Collateral;

B. Optional Hourly or Retained Consulting and Collaboration sball include: Pre-
Shoot Day meetings and conference calls for review and preparation, Concept Development and
Assistance. Business Consulting, Executive Coaching.

2. CONSIDERATION

A. Rate: In consideration for the Acting Services 10 be performed by Actor under this
AgreemenL the Producer shall pay Actor as follows:

i) Day Rate Local (Local Rate designated as the Austin, Texas, metropolitan area):
SI ,OOO.OO for up to eight (8) hours of work;

ii) Extended Day Hourly Rate Local: $ 150.00 per hour for work beyond the initial eight
(8) hours;

iii) Day Rate Non-Local: S 1.500.00 for up to eight (8) hours of work, including an
additional half-day travel rate of$750.00 for travel to the Shoot location and an additional half-
day travel rate of 5750.00 for travel returning from the Shoot location;

iv) Extended Day Hourly Rate Non-Local: 5 175.00 per hour for work beyond the initial
eight (8) hours;

v) Pre-Shoot Day meetings for review and preparation: 5175.00 per hour. with a £\"-0 (2)
hour minimum ;

EXHIBIT A I
vi) Optional Hourly Consulting and Collaboration: $175.00 per hour

vii) Optional Retained Consulting and Collaboration: 15 hours per month at $2,000.00,
20 hours per month at 52,500.00 per month, 25 hours per month at S3,000.00 per month. 30
hours per month at 53,500.00 per month, 40 hours per month at 54,000.00.

B. Cancell ation of Shoot Da tes: If a scheduled Shoot Date is cancelled with less than a
24-hour notice given to the Actor. the Actor sball be paid at the full-day rate. Ifa scheduled ,J~?\
Shoot Date is cancelled and notice is given to the Actor between 24 and 48 hours nor to the 21~
Shoot Date, the Actor shall be paid at - Yo 0 the full-day rate. If a scheduled Shoot Date is
cancelled and notice is given to the Actor between 48 and 72 hours prior to the Shoot Date. the
Actor shall be pai at 0 of the full-day rate. No rate will be paid to the Actor for Shoot Date \
cancellations given to the Actor at least 72 hours in advance of a scheduled Shoot Date.

C. Payments Due: Payments for Acting Services are d ue and payablc \vithin one ( I)
week of completion of daily filming. Payments for Optional Hourly Consulting and
Collaboration Services are due and payable on the first (1 ") and fifteenth (I 5") of the month.
Payments for Optional Retained Consulting and Collaboration are due and payable in advance on
the first (I") of the month.

3. EXPENSES The Producer wiII provide Actor v.:ith transportation to and from Non-Local
Shoot locations, and provide Actor \vith lodging, meals, and any necessary per-diem fo r
incidentals associated \vith the travel. Expenses beyond those stated above, if necessary for
travel. will be agreed upon prior to expendirure.

4 . .1\1JN l MmJ G UARANTEED SHOOT DA YS In exchange for Actor'S agreement to reduce
his fees to those stated above, the Producer guarantees to Actor a minimum oft\.\'enry (20) Shoot
Days of filming, equivalent to 520,000.00 to be paid to Actor. In the event that the twenty (20)
Shoot Days are nOl met within the first four (4) months of the Agreement. the effective rate of
SI.OOO.OO per day as stated in Paragraph 2.A.i. above \vill reven to a S 1.500.00 per day rate and
be paid retroactive ly for all completed Shoot Days, and become due and payable with in fOW1een
days after the end of the fOW1h (4th) month of this Agreement

5. INll E PENll ENT C O NTRACTOR Nothing herein shall be construed to create an employer-
employee relationship between the Producer and Actor. Actor is an independent contractor and
not an employee of the Producer or any of its subsidiaries or affiliates. It is understood that the
Producer will nOl withhold any amounts for payment of taxes from the compensation of Actor
hereunder. Actor \\:ill not represent to be an employee of the Producer.

6. C Ol\'FIDENTIALIT Y In the course of performing Acting Services, Consultation, o r
Collaboration, the panies recognize that Actor may come in contact with or become familiar
with infonnation which the Producer or its subsidiaries or affiliates may consider confidential.
This infonnation may include, but is not limited to. infonnation pertaining to the Producer's
business model or operation. Actor agrees to keep all such information confidential and further
agrees not to discuss or divulge such information to anyone other than the Producer. the
Producer~ s personnel, or Producer's designees.

EXHIBIT A 2
7. TER M This Agreement shall commence on November 19. 2012 and shall terminate on May
18, 2013. The Producer may, a t its option, renew Ibis Agreement on a mont h-to-mo nth
ba sis under th e sa me terms a nd condit ions as set forth her ein by giving w ritten notice to
Actor of such intent to renew for each a dd itiona l monthly T erm on o r befo re flfteen (15)
d ays prior to expira tion of the current T erm.

8. NOTI CE Any nolice or communication pennined or required by this Agreement shall be
deemed effective when delivered by email. or personally delivered or deposited. postage prepaid.
in the first class mail of me United States properly addressed to the appropriate party at the
address set forth below:

A. Notices to Acto r: Kirby M. Hiscox. 2433 Cloud Peak Lane , Round Rock. Texas,
78681.

B. No tices to the Produ cer: Adrian James, 6702 Troll Haven, Austin, Texas, 78746.

9. MISCELLANEOUS

A. En tire Agr eem ent a nd Amendments. This Agreement constitutes the entire
agreement of the panies with regard to the subject maner hereof, and replaces and supersedes all
other agreements or understandings, whether wnnen or oral. No amendment or extension of the
Agreement shall be binding unless in writing and signed by both panies.

B. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of Actor and the Actor' s successors and assigns. and the Producer and the Producer's successors
and assigns.

C. Gove rning Law, Severa bility. This Agreement shall be governed by the la\\<"5 oftbe
State of Texas. The invalidity o r unenforceability of any provision of the Agreement shall not
affect the validity or enforceability of any other provision.

WHEREFORE. the parties have executed this Agreement as of the date firs t written above.

Adrian James

Signed: _ _ _~ '---_ __ _ __ Dated: _---LILJ.
1/1.:
191.f}-"'O."'0,"-,d'----_
Name Printed: _---''--':''UJ...il.lU.>oL.i.ll.!J.I:.L_ __

Signed: -..L~~!..':..~<2~r---:----- Dated: Nt},) 19 I
2-eJfL
Name Printed: _ _ _ _-'---'---'-'-=+--'Ic1J1
....:. ' H (.s Cd.);:

EXHIBIT A 3
NO. C-I-CV-14-008643

KIRBY mscox, § IN THE COUNTY COURT
§
Plaintiff §
§
V. § TRA VlS COUNTY, TEXAS
§
§
ADRIAN JAMES, §
§
Defendant § COURT NO. ONE

AFFIDAVIT IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

STATE OF TEXAS §
§
COUNTY OF WILLIAMSON §

BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared Kirby

Hiscox who, upon being duly sworn by me, deposed and stated as follows:

"My name is Kirby Hiscox. I am over the age of 18 years. I have never been convicted

of a felony. I am fully competent to make this affidavit. The facts hereinafter set forth are

within my personal knowledge and are true and correct.

"From 20 I 0 through 2012, I was a part-time freelance professional actor.

"On November 19, 2012, I entered into a written contract with Adrian James (the

"Defendant"), who at that time lived at 6702 Troll Haven, Austin, Texas, 78746, to act in and

be the host of a series of filmed interviews to be by Defendant for a business called

'"Entrepreneur Archive" he was developing that was to be a resource/membership website for

entrepreneurs. Defendant sought and received my professional input and assistance in the

development of the Entrepreneur Archive concept.
"I had worked as a professional actor and host for Defendant on several of his prior

productions for various business ventures he developed over the two years previous to the

Entrepreneur Archive project and he was pleased with the acting work l had done on those

projects.

'·In November 2012 the Defendant contacted me and asked if I would be interested in

being the host of the Entrepreneur Arcbive project. I-Ie told me he planned on shooting 30 or

more videos over a six-month period of time.

"Because of his prior employment of me he was familiar with my $1.500 per day fee

structure. He asked me if I would be willing to reduce my daily fee to $1,000 if (i) he

guaranteed me a millirnum of 20 days of filming over the next six-months, and (ii) if he didn't

provide me with 20 days of filming at $1.000 a day within the first four months of the contract

term, he would pay my full daily rate of $1 ,500 for all 20 days of filming, whether those days

were tilmed within the first four months or not. Under this arrangement, Defendant would save

$10.000 by completing all 20 shooting days within the first four months and I would be

released from further obligation under the contract after only four months and free to pursue

other acting contracts.

·'1 accepted his offer and our agreement was reduced to writing in the document that

attached to this Affidavit as Exhibit A (the ··Contract""). A copy of the Contract is also attached

to Plaintiff's Motion for Summary Judgment as Exhibit A. Both copies of the Contract are true

and accurate copies oflhe original. We executed the Contract on November 19,2012.

··Paragraph 7 of the Contract provides for the six-month term of the Agreement;

Paragraph 2 A. (i) sets forth the reduced daily rate of $1 ,000; and Paragraph 4 contains the

guarantee of20 days of shooting and the four-month contingent daily rate clause.

AF FIDAVIT IN SUPPORT OF PLAINTIFF ' S MOTION FOR SUMMA RY JUDGMENT Page 2
"1 rendered the first two days of filming to the Defendant before the end of the month of

December 2012. but he never provided me with any additional shooting days. I remained

obligated by the tenus of the Contract to be ready to film the additional days on a phone caWs

notice from the Defendant, so I was unable to seek out and commit to other acting opportunities

during the remainder of the six-month term of the Contract. I did, in fact, remain ready, willing,

and able to render the remaining 18 days of filming called for in the Agreement through May

2013.

'The Defendant paid me $2,000 for the two days of filming, and another $400 for

wardrobe fitting fees and for consulting fees in assisting him with the Entrepreneur Archive

concept. He has paid me nothing further.

"The Defendant remains indebted to me for $28.000, accounted for as follows: (a) 18

days of filming at $1,500 per day for a total of $27,000, and (b) $500 a day for each of the two

days of filming I rendered ($3.000 at the retroactive rate of $1,500 a day, less the $2.000

Defendant paid) amounting to $1 ,000."

Executed on November _,I t-'" 2014.
/

SUBSCRIBED AND SWORN TO before me by Kirby Hiscox on November B, 2014.

EUZABETH ANN TEST
NotJry Public
ctfu\8
Notary Public, State of Texas
STATE Of TEXAS
My Corrm Exp. ApoII. 2017

AFFIDAVIT IN SUPPORT OF PLAINTIFF'S M OTION FOR SUMMARY JUDGMENT Page 3
F ACT 0 R OF NE