REVERSE and REMAND and Opinion Filed November 3, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00871-CV
CAROL M. KAM, Appellant V. CARL DAVID ADAMS, Appellee
On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-05795
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Reichek Carol M. Kam, representing herself pro se, appeals the trial court’s summary
judgment granting a declaratory judgment in favor of Carl David Adams. Because
we conclude Adams failed to show his entitlement to summary judgment as a matter
of law, we reverse the trial court’s judgment and remand the cause for further
proceedings.
Background
At the center of this action is an “Attorney’s Retainer Agreement” pursuant to
which Adams was to represent Kam in two pending civil cases. Adams moved for a traditional summary judgment seeking a declaration that the retainer agreement
was valid and enforceable. As supporting evidence, Adams submitted his affidavit,
a copy of the retainer agreement, and copies of emails he exchanged with Kam’s
older brother, Thomas.
In his affidavit, Adams testified he was contacted by Kam and Thomas about
representing Kam in two suits in which she had been representing herself pro se with
Thomas’s assistance. In their discussions, Thomas made it clear to Adams that he
was acting as Kam’s agent, legal consultant, and financial advisor and, as such, he
was negotiating for Adams’s services on Kam’s behalf. Thomas insisted it was
“absolutely necessary” for him to continue to provide consultation and advice to
Kam on matters pertaining to the litigation.
Based on his negotiations with Thomas, Adams drafted a proposed retainer
agreement that defined the term “Client” to include both Thomas and Kam. The
agreement further stated that Thomas was authorized to act on Kam’s behalf “to the
full extent necessary and convenient to facilitate the rendering of legal services by
[Adams].” Paragraph two of the agreement required Thomas and Kam to pay an
initial $10,000 “non-refundable legal fee” and to maintain an “ever-green retainer”
of not less than $5,000. Adams stated he forwarded the proposed agreement to Kam
and Thomas on February 5, 2021.
Adams met with Kam in his office on February 8. Thomas was not present at
this meeting. Kam signed the retainer agreement and gave Adams a check for
–2– $10,000. Kam subsequently claimed that Adams orally agreed to hold the check
until Thomas signed the agreement. Adams stated Kam never requested he hold the
check and he did not agree to do so.
On February 10, Adams emailed the retainer agreement to Thomas stating,
Attached (in PDF format) is the modified Attorney’s Retainer Agreement containing your suggested changes with regard to the amount of the Non-Refundable Legal Fee called for in ¶ 2, as well as the signatures of Carol Kam and myself, and dated February 8, 2021. Please sign the Agreement at the place provided for your signature on Page 5 and return a fully executed copy of the Agreement to my office ASAP.
Thomas replied thirty minutes later,
We have a failure to communicate which is troubling. We have a great case. You are a great attorney. You are authorized to proceed. There will be no non-refundable retainer. Please start the Case and we will pay you on the hourly basis. . . . The proposal also needs to list clearly the goals for the case. . . . I will be around most of the day.
This was followed by another email from Thomas later that evening:
I will call you in the morning. We are not yet on the same page. Carol and I have discussed and we have decided on a more direct route for you.
Early in the morning of February 11, a severe cold front with inclement
weather hit north Texas. Adams testified that, due to the weather, he decided not to
travel to his office on Thursday, February 11 or Friday, February 12. Beginning on
Monday, February 15, Adams was no longer able to send or receive emails from his
home computer. Adams’s office building closed all operations on February 16.
–3– During this time, Adams states he had no communications with either Thomas or
Kam.
Despite not being able to access his office and files, Adams stated he
immediately began working intensely on Kam’s cases in preparation for a hearing
scheduled to occur on February 18. Adams testified that, during their discussions
leading up to the retainer agreement, Thomas was adamant Adams be fully prepared
for the hearing and, given the lengthy history of the litigation prior to his
involvement, he stated it took significant effort for him to get “up to speed” and
prepare an analysis.
On the afternoon of February 16, Adams spoke with Kam. According to
Adams, Kam immediately stated that Adams’s lack of response to her telephone
calls (which he states he never received), or to her emails (which he states he
received only days later), had caused her to decide to discontinue using his services.
Adams stated he provided Kam with a detailed invoice for the work he performed.
In addition to the invoice, Adams testified he sent Kam a detailed explanation of his
lack of availability during the storm and encouraged her to reconsider her decision
to terminate his employment. In response, Kam accused Adams of dishonesty and
thievery and demanded Adams disgorge the $10,000 fee he had deposited. Kam told
Adams there was no valid agreement between them because Thomas never signed it.
–4– In anticipation of claims being filed against him, Adams filed this declaratory
judgment action.1 Adams’s motion for summary judgment summarized the evidence
discussed above and argued simply,
Plaintiff Adams seeks Declaratory Judgment Relief from this Court, declaring the unambiguous terms of and validity of the Contract, and seeks the enforcement of all of the terms of the Contract, including the Non-Refundable Legal Fee obligations of [Kam] under the undisputed circumstances presented by the Motion for Summary Judgment.
In the alternative, Adams requested quantum meruit relief, also based solely on the
“undisputed circumstances presented.” Kam did not file a written response to the
motion.
Following a hearing, the trial court signed a judgment declaring that (1) the
retainer agreement was valid and enforceable, (2) the $10,000 legal fee was non-
refundable, and (3) Kam’s demands for the return of the $10,000 fee constituted a
repudiation of the agreement. Kam brought this appeal.
Analysis
As her primary argument on appeal, Kam challenges the trial court’s judgment
on the basis that the retainer agreement was not binding or enforceable without her
brother’s signature. To prevail on summary judgment, Adams was required to
establish that no material fact issues existed, and conclusively prove all elements of
his cause of action as a matter of law. Ziemian v. TX Arlington Oaks Apartments,
1 Kam asserted counterclaims under the Texas Deceptive Trade Practices Act, but later withdrew those claims. –5– Ltd., 233 S.W.3d 548, 554 (Tex. App.—Dallas 2007, no pet.). We review a
summary judgment de novo to determine whether this burden has been met. Id. In
deciding whether there is a material fact issue precluding summary judgment,
Free access — add to your briefcase to read the full text and ask questions with AI
REVERSE and REMAND and Opinion Filed November 3, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00871-CV
CAROL M. KAM, Appellant V. CARL DAVID ADAMS, Appellee
On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-05795
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Reichek Carol M. Kam, representing herself pro se, appeals the trial court’s summary
judgment granting a declaratory judgment in favor of Carl David Adams. Because
we conclude Adams failed to show his entitlement to summary judgment as a matter
of law, we reverse the trial court’s judgment and remand the cause for further
proceedings.
Background
At the center of this action is an “Attorney’s Retainer Agreement” pursuant to
which Adams was to represent Kam in two pending civil cases. Adams moved for a traditional summary judgment seeking a declaration that the retainer agreement
was valid and enforceable. As supporting evidence, Adams submitted his affidavit,
a copy of the retainer agreement, and copies of emails he exchanged with Kam’s
older brother, Thomas.
In his affidavit, Adams testified he was contacted by Kam and Thomas about
representing Kam in two suits in which she had been representing herself pro se with
Thomas’s assistance. In their discussions, Thomas made it clear to Adams that he
was acting as Kam’s agent, legal consultant, and financial advisor and, as such, he
was negotiating for Adams’s services on Kam’s behalf. Thomas insisted it was
“absolutely necessary” for him to continue to provide consultation and advice to
Kam on matters pertaining to the litigation.
Based on his negotiations with Thomas, Adams drafted a proposed retainer
agreement that defined the term “Client” to include both Thomas and Kam. The
agreement further stated that Thomas was authorized to act on Kam’s behalf “to the
full extent necessary and convenient to facilitate the rendering of legal services by
[Adams].” Paragraph two of the agreement required Thomas and Kam to pay an
initial $10,000 “non-refundable legal fee” and to maintain an “ever-green retainer”
of not less than $5,000. Adams stated he forwarded the proposed agreement to Kam
and Thomas on February 5, 2021.
Adams met with Kam in his office on February 8. Thomas was not present at
this meeting. Kam signed the retainer agreement and gave Adams a check for
–2– $10,000. Kam subsequently claimed that Adams orally agreed to hold the check
until Thomas signed the agreement. Adams stated Kam never requested he hold the
check and he did not agree to do so.
On February 10, Adams emailed the retainer agreement to Thomas stating,
Attached (in PDF format) is the modified Attorney’s Retainer Agreement containing your suggested changes with regard to the amount of the Non-Refundable Legal Fee called for in ¶ 2, as well as the signatures of Carol Kam and myself, and dated February 8, 2021. Please sign the Agreement at the place provided for your signature on Page 5 and return a fully executed copy of the Agreement to my office ASAP.
Thomas replied thirty minutes later,
We have a failure to communicate which is troubling. We have a great case. You are a great attorney. You are authorized to proceed. There will be no non-refundable retainer. Please start the Case and we will pay you on the hourly basis. . . . The proposal also needs to list clearly the goals for the case. . . . I will be around most of the day.
This was followed by another email from Thomas later that evening:
I will call you in the morning. We are not yet on the same page. Carol and I have discussed and we have decided on a more direct route for you.
Early in the morning of February 11, a severe cold front with inclement
weather hit north Texas. Adams testified that, due to the weather, he decided not to
travel to his office on Thursday, February 11 or Friday, February 12. Beginning on
Monday, February 15, Adams was no longer able to send or receive emails from his
home computer. Adams’s office building closed all operations on February 16.
–3– During this time, Adams states he had no communications with either Thomas or
Kam.
Despite not being able to access his office and files, Adams stated he
immediately began working intensely on Kam’s cases in preparation for a hearing
scheduled to occur on February 18. Adams testified that, during their discussions
leading up to the retainer agreement, Thomas was adamant Adams be fully prepared
for the hearing and, given the lengthy history of the litigation prior to his
involvement, he stated it took significant effort for him to get “up to speed” and
prepare an analysis.
On the afternoon of February 16, Adams spoke with Kam. According to
Adams, Kam immediately stated that Adams’s lack of response to her telephone
calls (which he states he never received), or to her emails (which he states he
received only days later), had caused her to decide to discontinue using his services.
Adams stated he provided Kam with a detailed invoice for the work he performed.
In addition to the invoice, Adams testified he sent Kam a detailed explanation of his
lack of availability during the storm and encouraged her to reconsider her decision
to terminate his employment. In response, Kam accused Adams of dishonesty and
thievery and demanded Adams disgorge the $10,000 fee he had deposited. Kam told
Adams there was no valid agreement between them because Thomas never signed it.
–4– In anticipation of claims being filed against him, Adams filed this declaratory
judgment action.1 Adams’s motion for summary judgment summarized the evidence
discussed above and argued simply,
Plaintiff Adams seeks Declaratory Judgment Relief from this Court, declaring the unambiguous terms of and validity of the Contract, and seeks the enforcement of all of the terms of the Contract, including the Non-Refundable Legal Fee obligations of [Kam] under the undisputed circumstances presented by the Motion for Summary Judgment.
In the alternative, Adams requested quantum meruit relief, also based solely on the
“undisputed circumstances presented.” Kam did not file a written response to the
motion.
Following a hearing, the trial court signed a judgment declaring that (1) the
retainer agreement was valid and enforceable, (2) the $10,000 legal fee was non-
refundable, and (3) Kam’s demands for the return of the $10,000 fee constituted a
repudiation of the agreement. Kam brought this appeal.
Analysis
As her primary argument on appeal, Kam challenges the trial court’s judgment
on the basis that the retainer agreement was not binding or enforceable without her
brother’s signature. To prevail on summary judgment, Adams was required to
establish that no material fact issues existed, and conclusively prove all elements of
his cause of action as a matter of law. Ziemian v. TX Arlington Oaks Apartments,
1 Kam asserted counterclaims under the Texas Deceptive Trade Practices Act, but later withdrew those claims. –5– Ltd., 233 S.W.3d 548, 554 (Tex. App.—Dallas 2007, no pet.). We review a
summary judgment de novo to determine whether this burden has been met. Id. In
deciding whether there is a material fact issue precluding summary judgment,
evidence favorable to the nonmovant is taken as true, every reasonable inference is
indulged in the nonmovant’s favor, and any doubts are resolved in favor of the
nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
We review the summary judgment record for evidence that would enable reasonable
and fair-minded jurors to differ in their conclusions. Ziemian, 233 S.W.3d at 554.
A motion for traditional summary judgment must expressly present the
specific grounds upon which it is made. TEX. R. CIV. P. 166a(c); McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993). “In determining
whether grounds are expressly presented, reliance may not be placed on briefs or
summary judgment evidence.” McConnell, 858 S.W.2d at 341. The nonmovant has
no burden to respond to a motion for traditional summary judgment unless the
movant establishes its right to judgment on the issues expressly presented to the trial
court. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). The trial
court may not grant summary judgment by default when the movant’s motion is
legally insufficient. Id.
In this case, Adams’s motion for summary judgment merely summarizes his
proffered evidence and then requests, based solely on “the undisputed
circumstances,” a declaratory judgment that the retainer agreement was valid and
–6– enforceable. The motion cites no authority and does not discuss the elements
required for the formation of a valid contract. Nor does the motion explain how the
evidence submitted establishes any of the required elements. As such, we conclude
the motion failed to expressly present a specific ground for summary judgment.
McConnell, 858 S.W.2d at 341.
Furthermore, Adams’s motion failed to establish the absence of a material fact
issue. The elements required for the formation of a valid contract are: (1) an offer,
(2) acceptance in strict compliance with the terms of the offer, (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. Levetz v. Sutton, 404 S.W.3d
798, 803 (Tex. App.—Dallas 2013, pet. denied). Whether or not the parties intended
to enter into a final, binding, and enforceable contract is frequently a question of
fact. Foreca, S.A. v. GRD Dev. Co., Inc., 758 S.W.2d 744, 745 (Tex. 1988). Intent
is a fact question uniquely within the realm of the trier of fact because it depends
upon the credibility of the witnesses and the weight to be given to their testimony.
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). If the parties
intended that their contract would not be binding until it was signed by the parties,
then the signatures of the parties are required for the contract to be effective. Rea v.
Simmons & Simmons Constr. Co., 275 S.W.2d 747, 750 (Tex. App.—San Antonio),
aff’d, 286 S.W.2d 353 (Tex. 1955).
–7– Adams’s own summary judgment evidence demonstrates there is a fact issue
regarding whether the retainer agreement would be binding without Thomas’s
signature. The evidence shows that Thomas controlled most aspects of the litigation
involving his sister and he was the primary, if not sole party involved in negotiating
the terms of the retainer agreement with Adams. Thomas’s level of control was such
that both Thomas and Adams felt it necessary to make Thomas a party to the
agreement with the term “Client” defined as being both Thomas and Kam, jointly.
The agreement included distinct signature lines for both Kam and Thomas.
The evidence further shows Kam believed Adams would not deposit the check
she gave him until after Thomas signed the retainer agreement. Although Adams
disputes that this was their understanding, he is an interested witness. For the
testimony of an interested witness to establish a fact as a matter of law, there must
be no circumstances in evidence tending to discredit his testimony. Swilley v.
Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Such circumstances are presented here by
Kam’s complete reliance on Thomas in the creation and negotiation of the retainer
agreement, as well as the continued negotiations and apparent changes made to the
agreement, including to the non-refundable fee specifically, after Kam signed it.
Although Adams performed work on Kam’s cases, there is no evidence Kam
was aware of Adams’s performance or that she accepted the benefits of it. See Rea,
275 S.W.2d at 750. Furthermore, most of the work Adams performed appears to
–8– have been done after Thomas informed him they would not pay him the non-
refundable fee that is in dispute.
Reading the evidence in the light most favorable to Kam, as we must, Adams’s
summary judgment evidence does not conclusively establish Kam intended to enter
a binding contract with Adams absent Thomas’s signature on the agreement.
Because Adams’s evidence serves only to raise a fact issue, Kam was not required
to offer a response to the motion for summary judgment or contradictory proof. See
Swilley, 488 S.W.2d at 67. “In our summary judgment practice, the opponent’s
silence never improves the quality of a movant’s evidence.” Id.
Based on the foregoing, we conclude Adams failed to establish his entitlement
to a declaratory judgment on the enforceability of the retainer agreement as a matter
of law. Accordingly, we reverse the trial court’s judgment and remand the cause for
further proceedings.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE
210871F.P05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CAROL M. KAM, Appellant On Appeal from the 68th Judicial District Court, Dallas County, Texas No. 05-21-00871-CV V. Trial Court Cause No. DC-21-05795. Opinion delivered by Justice CARL DAVID ADAM, Appellee Reichek. Justices Schenck and Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant CAROL M. KAM recover her costs of this appeal from appellee CARL DAVID ADAM.
Judgment entered November 3, 2022
–10–