Opinion
14-20-00646-CV
06-28-2022
ERIC D. BURNS, Appellant v. JAMES A. WHITE, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 19-DCV-268373
Panel consists of Justices Jewell, Bourliot, and Poissant.
MEMORANDUM OPINION
Margaret "Meg" Poissant, Justice
Pro se appellant Eric Burns filed suit against appellee James White for breach of contract. In three issues on appeal, Burns argues that: (1) the trial court erred by being "bias[ed] against the law," (2) he received ineffective assistance of counsel, and (3) the trial court erred in granting White's motion to dismiss. We affirm.
Because the parties are familiar with the facts of the case, we set forth the facts of the case necessary to advise the parties of the court's decision and the basic reasons for it in light of the issues raised. See Tex. R. App. P. 47.1, 47.4.
On November 8, 2019, Burns filed suit against White. In his petition, Burns alleged that he and White entered into a letter of intent signed by White in February 2017. The letter of intent, in its entirety, appears as follows:
LETTER OF INTENT
(Preliminary Agreement)
James A. White. CEO
EMD Supply, Inc. located at 909 Industrial Blvd., Sugar Land, TX 77478 has considerable interest in a concept created by Eric Burns of iBurns, Inc. 391 Highway 90 E. Sealy, TX and its creation The Home Communicator", (i.e. Home Communication) to fund a prototype which is functional. Upon availability of the prototype, EMD Supply, Inc. agrees to begin negotiations for licensing and distribution of the product per an agreed upon amount per unit with Eric Burns, Inventor A.K.A. iBums, Inc.
Witness our signatures below.
James A. White
Eric Bums
Burns alleged that he fully performed his obligations under the contract, but that White failed to build or fund a prototype, per the agreement. White filed a general denial and alleged several affirmatives defenses, namely that White is not a party to the contract in his individual capacity, no contract existed between White and Burns that could have been breached, and the letter of intent lacks consideration.
In December 2019, White filed a motion to dismiss the case pursuant to Rule 91a of the Texas Rules of Civil Procedure. In his motion, White asserted that Burns's breach of contract claim has no basis in law or fact for three reasons: (1) the letter of intent lacks essential terms-such as timing of performance and price to be paid-that would be expected to be included in a contract for development; (2) the letter of intent is indefinite, which indicates that there was no meeting of the minds; and (3) only Burns and "EMD Supply, Inc." are parties to the letter of intent, not White in his individual capacity.
The motion to dismiss was heard in January 2020. The trial court denied the motion and advised Burns to retain an attorney:
[Trial Court]: Let me stop you. Mr. Burns?
[Burns]: Yes, sir.
[Trial Court]: Why are you here without an attorney?
[Burns]: I was not able to afford one at the time of these proceedings.
[Trial Court]: Mr. Burns, I think you need an attorney. Your motion to dismiss is denied. Mr. Burns-
[Burns]: Yes, sir.
[Trial Court]: -this case is going to go forward. If you don't come in here with an attorney-
[Burns]: Yes, sir.
[Trial Court]: -those two guys are going to destroy you. All right?
[Burns]: Yes, sir.
In March 2020, Jamal Hicks appeared as Burns's attorney. On July 15, 2020, Burns filed a letter with the trial court that informed Hicks, "I have filed several motions listing you as my attorney of record." The letter also instructed Hicks to "research the facts of this case," and complained of Hicks's representation of Burns. On July 22, 2020, Hicks filed a motion to withdraw, alleging that Burns filed three unauthorized pleadings with the trial court:
[Burns] never spoke with [Hicks] about the contents or filing of the three aforementioned motions. [Burns] drafted and filed all three motions by himself, then proceeded to forge [Hicks's] name, law firm, and State Bar Number in the signature block of all three motions. [Hicks] did not authorize such actions, as [Hicks's] signature block was added to all three motions without [Hicks's] knowledge or approval. [Burns's] actions were fraudulent, unauthorized, and unethical, therefore putting [Hicks] in an unprecedented position as an officer of the Court.
On August 19, 2020, before the trial court ruled on the motion to withdraw, White filed an amended motion to dismiss, asserting the same grounds for dismissal as in the original motion. On August 24, 2020, the trial court granted Hicks's motion to withdraw. The trial court heard the amended motion to dismiss on September 16, 2020. The next day, the trial court granted the motion to dismiss. The day after, Burns filed a timely appeal.
In October 2020, White filed a motion to modify the final judgment to include an award of attorney's fees. In his motion, White claimed that he did not originally include attorney's fees in his proposed order "in the hopes of finally concluding this dispute," but now sought attorney's fees because of Burns's continued pursuit of the case and the expenses that would be incurred if Burns filed an appeal. The trial court granted the motion to modify the judgment, awarding White $5,816.89 in attorney's fees and costs only with respect to Burns's breach of contract claim.
At Burns's request, the trial court filed findings of fact and conclusions of law, stating in relevant part:
FINDINGS:
The Court finds no contract existed between the parties. The exhibits and pleading make clear that a mere Letter of Intent is what Plaintiff [Burns] has hung his hat upon as the alleged contract at issue in matter. [sic]
The Court finds that these pleading [sic] show that the alleged contract does not meet the standard rules of contract formation, necessary to make a letter of intent an enforceable contract. Here, there was no meeting of the minds. Upon the pleadings and exhibits, I find there was no intent on the part of Defendant [White], to be bound to any action in this matter.
. . .
CONCLUSIONS:
Whereas the Court concluded no contract between these parties, the court dismissed the cause of action on 16 September 2020.
In this matter, Plaintiff was repeatedly advised that his claims had no merit based upon the pleadings and arguments presented in this court.
Plaintiff filed pleadings in this Court, forging the signature block and information of his former Attorney [.]
Plaintiff persisted in these efforts, which the court found to be frivolous. The persistence of Plaintiff in pursuing frivolous actions, causing Defendant to continue to employ private counsel.
II. "Bias Against the Law"
Burns's first issue-titled "bias against the law-consists of numerous alleged wrongs committed by the trial court, including "fail[ing] to apply § 37.004 [Texas Civil Practice and Remedies Code] to letter of intent," allowing Hicks to withdraw as counsel after insisting that Burns obtain a lawyer, violating Burns's constitutional right to self-representation by instructing Burns to obtain a lawyer in the first place, failing to rule on Burns's discovery and declaratory judgment motions, and allowing Hicks to withdraw without a written order. Additionally, under this issue, Burns asserts that Hicks failed to submit any evidence to support the allegation that Burns forged his signature.
While we construe a pro se appellant's brief liberally to reach his appellate issues on the merits when possible, pro se litigants such as Burns are ultimately held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Harrison v. Reiner, 607 S.W.3d 450, 457 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (citing Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012)).
A multifarious point is one that embraces more than one specific ground. Stults v. State, 23 S.W.3d 198, 205 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Although we may disregard and refuse to review multifarious points, we may also elect to consider them if we are able to determine, with reasonable certainty, the alleged error about which an appellant complains. Id.
While Burns does cite to the record and to several cases, Burns does not provide any authority that shows us how the trial court committed error. For example, Burns has not directed us to any case that supports the notion that the trial court committed error by advising Burns to retain an attorney. To the contrary, in a criminal proceeding, trial courts are obligated to admonish defendants about the dangers and disadvantages of self-representation, as the trial court did here. See Alford v. State, 367 S.W.3d 855, 861 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd). Burns also fails to make any argument or cite any case law to support his position that the trial court erred by allowing Hicks to withdraw, or to support his argument that the trial court erred by allowing Hicks to withdraw without a written order. In fact, Burn's claim that the trial court allowed Hicks to withdraw without a written order is controverted by the record, which contains a signed order granting the motion to withdraw.
Appellant further complains that the trial court erred in failing to apply "§ 37.004 CPRC." On February 14, 2020 and on March 4, 2020, Burns filed identical motions for declaratory judgment; on July 2 and August 4, 2020, Burns filed identical amended motions for declaratory judgment, requesting that the court issue an order declaring that an enforceable contract agreement existed between Burns and White based on the letter of intent. The trial court denied Burns's amended motion on August 27, 2020, and granted White's Rule 91a Amended Motion to Dismiss on September 17, 2020.
Burns fails to detail how the trial court erred in failing to apply "§ 37.004 CPRC," and does not cite to authority to support his argument.
Section. 37.004 states, in its entirety:
§ 37.004. SUBJECT MATTER OF RELIEF
(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been a breach.
(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.Tex. Civ. Prac. & Rem. Code Ann. § 37.004.
Thus, even construing his brief liberally, Burns's first issue is unsupported by the record, inadequately briefed, incomplete, and multifarious. See Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438, 445 n.6 (Tex. App.-Houston [14th Dist] 2016, pet. denied) (refusing to address issue that was "speculative, incomplete, and multifarious"); Bell v. Tex. Dep't of Crim. Justice-Institutional Div., 962 S.W.2d 156, 157 n.1 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (observing that courts of appeal may disregard multifarious issues); see also Jones v. Villages of Town Ctr. Owners Ass'n, Inc., No. 14-12-00306-CV, 2013 WL 2456873, at *6 (Tex. App.-Houston [14th Dist.] June 6, 2013, pet. denied) (mem. op.) ("If the appellate court concludes that a point of error is multifarious, it may refuse to review [it.]"). Burns's first issue is overruled.
III. Ineffective Assistance of Counsel
In his second issue, Burns argues that he received ineffective assistance of counsel.
A. Standard of Review & Applicable Law
It is well established that the doctrine of ineffective assistance of counsel does not extend to most civil cases. See In Interest of A.L.H., 515 S.W.3d 60, 87 (Tex. App.-Houston [14th Dist.] 2017, pet. denied); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.-Houston [14th Dist.] 2003, no pet.). The Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution provide that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. Amend. VI; Tex. Const. art. I, § 10 (emphasis added).
This right has been extended to certain civil proceedings, such as termination-of-parental-rights cases, see In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003), but we generally presume that a party "may not assert ineffective assistance of counsel unless she has a constitutional or statutory right to assistance of counsel." In re E.R.W., 528 S.W.3d 251, 258 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Burns has not cited, nor have we found, any cases indicating that a party has a constitutional right to effective assistance of counsel in litigation involving a breach of contract. We overrule Burns's second issue.
IV. Rule 91a Motion to Dismiss
In his third issue, Burns argues that the trial court erred in granting White's motion to dismiss because there was a binding contract between Burns and White.
A. Standard of Review
Rule 91a's purpose is to allow dismissal of a cause of action that has "no basis in law or fact." Tex.R.Civ.P. 91a.1. As specified in rule 91a, a cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Id. A cause of action has no basis in fact if "no reasonable person could believe the facts pleaded." Id. A rule 91a motion to dismiss must state that it is made pursuant to the rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. Id. 91a.2. White's motion to dismiss clearly sought rule 91a relief as to Burns's breach of contract claim. The motion cited the rule, identified the cause of action to which it was addressed, and specifically stated the reason why the claim had no basis in law or fact: the letter of intent was indefinite, lacked essential terms, and White was not a party to the letter of intent in his individual capacity. See id.
We review de novo a trial court's ruling on a rule 91a motion. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam); see also Tony's Barbeque & Steakhouse, Inc. v. Three Points Invs., Ltd., 527 S.W.3d 686, 695 (Tex. App.-Houston [14th Dist.] 2017, no pet.). We look solely to the pleading and any attachments to determine whether the dismissal standard is satisfied. Estate of Savana, 529 S.W.3d 587, 592 (Tex. App.-Houston [14th Dist.] 2017, no pet.); Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). To determine if the cause of action has a basis in law or fact, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the petition. Wooley, 447 S.W.3d at 76; HMT Tank Serv. LLC v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 807-08 (Tex. App.-Houston [14th Dist.] 2018, no pet.).
B. Applicable Law
"The elements of a breach-of-contract action are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach." See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). "A breach occurs when a party fails or refuses to do something he has promised to do." See id.
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. Tyco Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750, 771 (Tex. App.-Houston [1st Dist.] 2012), aff'd, 432 S.W.3d 885 (Tex. 2014). "The elements of written and oral contracts are the same and must be present for a contract to be binding." Id. (citing Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.-Houston [14th Dist.] 2002, no pet.)).
The party alleging breach of contract has the "burden of proving the existence of a valid contract." McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 392 (Tex. 2019); see First Tech Fed. Credit Union v. Fisher, No. 14-18-00140-CV, 2020 WL 830052, at *6 (Tex. App.-Houston [14th Dist.] Feb. 20, 2020, pet. denied) (mem. op.). Once the existence of a contract has been established, "[f]or an agreement to be enforceable, there must be a meeting of the minds with respect to its subject matter and essential terms." C3 Commc'ns, LLC v. Gigabit Techs., LLC, 14-19-00730-CV, 2021 WL 2965456, at *6 (Tex. App.-Houston [14th Dist.] July 15, 2021, pet. denied) (mem. op.) (citing Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.-Houston [14th Dist.] 2010, pet. denied)). Additionally, "[t]o be enforceable, a contract must address all of its essential and material terms with 'a reasonable degree of certainty and definiteness.'" Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) ((quoting Pace Corp. v. Jackson, 284 S.W.2d 340, 345 (Tex. 1955)); see C3 Commc'ns, 2021 WL 2965456, at *6. "[A] contract must at least be sufficiently definite to confirm that both parties actually intended to be contractually bound." Fischer, 479 S.W.3d at 237. Even where the parties' intent to agree is clear, the agreement's terms must be sufficiently definite to permit the court to understand the parties' obligations and give an appropriate remedy for a breach. Id.; C3 Commc'ns, 2021 WL 2965456, at *6.
An agreement must be definite with respect to those terms that are "material and essential" to the parties' agreement. Fischer, 479 S.W.3d at 237. Material and essential terms are those that parties would reasonably regard as vitally important elements of their bargain, and are determined on a case-by-case basis. Id.; C3 Commc'ns, 2021 WL 2965456, at *6.
"Our primary concern in construing a contract is to ascertain and give effect to the intentions the parties objectively manifested in that instrument." Carnegie Homes & Constr. LLC v. Turk, No. 14-16-00260-CV, 2017 WL 3927290, at *10 (Tex. App.-Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.) (citing Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006) ("As with any other contract, the parties' intent is governed by what they said, not by what they intended to say but did not.")). Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005); see also Carnegie Homes & Constr., 2017 WL 3927290, at *10. In determining the meaning of contract terms, we also may consider the context of the circumstances existing at the time the contract was executed and the particular business activity sought to be served. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996); Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987).
C. Application
It was Burns's burden to prove the existence of a valid, enforceable contract between Burns and White. See Lopez, 576 S.W.3d at 392. It is true that "a letter of intent may be binding even though it refers to the drafting of a future, more formal agreement." John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 19 (Tex. App.-Houston [1st Dist.] 2000, pet. denied). Thus, a party who does not wish to be prematurely bound by a letter agreement should include "a provision clearly stating that the letter is nonbinding, as such negations of liability have been held to be effective." Id. No such provision was included here. Nevertheless, we still conclude that the letter of intent did not create a binding contract.
The letter of intent indicates that EMD Supply, Inc. has "considerable interest" in funding a prototype of Burns's invention and that "upon availability of a prototype, EMD Supply Inc. would "agree to begin future negotiations." But the letter of intent lacks essential terms, such as the price, the specific performance promised, and the timing of said performance. See Fischer, 479 S.W.3d at 237. Thus, we conclude the letter of intent fails for indefiniteness because we have no essential terms providing how we would enforce each of the parties' rights. See Fischer, 479 S.W.3d at 237; T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221-22 (Tex. 1992). And inasmuch as Burns argues that the letter of intent was an agreement to enter into a future contract, we have previously held that "[a]greements like [letters of intent] to negotiate toward a future contract are not legally enforceable." K. Griff Investigations, Inc. v. Cronin, 633 S.W.3d 81, 90 (Tex. App.-Houston [14th Dist.] 2021, no pet.). In other words, this letter of intent was no more than an indefinite indication of interest in negotiating toward a contract in the future. As the trial court concluded, the letter of intent does not demonstrate that the parties actually intended to be contractually bound. See Fischer, 479 S.W.3d at 237.
Further, because the letter of intent states that "[u]pon" availability of a prototype, EMD Supply, Inc. would agree to begin future negotiations, creation of a functional prototype was a condition precedent to the parties' formation of a binding contract. See also Schwarz-Jordan, Inc. of Hous. v. Delisle Constr. Co., 569 S.W.2d 878, 881 (Tex. 1978) ("Terms such as 'if,' 'provided that,' or 'on condition that,' usually indicate an intent that the provision be a condition precedent rather than a promise."). Because a functional prototype was never created, no enforceable contract was formed. See Chalker Energy Partners III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 673 (Tex. 2020) ("A party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied."); Cronin, 633 S.W.3d at 90 (concluding that there was no enforceable contract because the conditions precedents of the letter of intent had not occurred).
On appeal, Burns argues that even if the letter of intent was not sufficient by itself, White had verbally offered $30,000 and 15-20% in royalties to Burns in exchange for Burns's intellectual property, including plans, sketches, drawings, and specifications of Burns's invention. However, Burns has not directed us to, nor have we found anywhere in the record where Burns presented this argument to the trial court. The first time Burns presented this argument was in a bill of exceptions that he prepared after his notice of appeal was filed. "We will not consider a ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response." Bob v. Cypresswood Cmty. Ass'n, No. 01-14-00311-CV, 2015 WL 3423753, at *3 (Tex. App.-Houston [1st Dist] May 28, 2015, no pet.) (mem. op.); see Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990). Thus, we will not consider the alleged existence of an oral contract as a ground for reversing the motion to dismiss.
Because we conclude that no contract existed between the parties, we need not address any issue regarding the capacity of the parties to the contract. See Tex. R. App. P. 47.1.
We conclude that Burns's breach of contract claim had no basis in law or fact and the trial court did not err by granting White's motion to dismiss. See Tex. R. Civ. P. 91a.6); Sanchez, 494 S.W.3d at 724. We overrule Burns's third issue.
V. Conclusion
We affirm the judgment of the trial court.