Summary
reversing trial court's grant of partial summary judgment on appellant's counterclaim for breach of contract where questions of fact remained on the issue of damages
Summary of this case from Valley Forge, Inc. v. CK Constr.Opinion
No. 08-20-00001-CV
08-19-2021
John GILBERT and Marissa Gilbert, Co-Personal Representatives of the Estate of Joan Raabe-Asprey, Appellants, v. Mannie KALMAN, Appellee.
ATTORNEY FOR APPELLANT: David Price Lutz, Martin & Lutz, P.C., PO Box 1837, Las Cruces, NM 88004-1837. ATTORNEY FOR APPELLEE: Jamie T. Wall, James & Haugland, P. C., 609 Montana Ave, El Paso, TX 79902.
ATTORNEY FOR APPELLANT: David Price Lutz, Martin & Lutz, P.C., PO Box 1837, Las Cruces, NM 88004-1837.
ATTORNEY FOR APPELLEE: Jamie T. Wall, James & Haugland, P. C., 609 Montana Ave, El Paso, TX 79902.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
JEFF ALLEY, Justice
John Gilbert and Marissa Gilbert ("the Gilberts") are the personal representatives of the Estate of Joan Raabe-Asprey ("Asprey"). The Gilberts commenced this action against Mannie Kalman ("Kalman") seeking recovery on a promissory note. Kalman counterclaimed, seeking recovery for unpaid legal fees he claims that Asprey owed him. This appeal arises from summary judgments rendered by the trial court in favor of Kalman on his counterclaim for recovery of attorney's fees and against the Gilberts on their claim for the promissory note. We affirm the portion of the final judgment that the Gilberts take nothing on their claims against Kalman, but reverse the summary judgment in favor of Kalman on his counterclaim.
I. BACKGROUND
A. Factual Background
In 2002, Kalman began providing legal services to Asprey, her husband Robert Asprey, and various business entities they owned. Kalman claims he was not paid regularly for these services, and claims he was not paid at all for several years. When Robert Asprey passed away in 2006, it was discovered that he lost some $25 million through day trading. However, he did make his wife the beneficiary of an $8 million life insurance policy. Kalman claims that from the proceeds of that policy, Asprey paid his past due attorney's fees. Going forward, however, Kalman and Asprey worked out a financial arrangement that gives rise to this suit.
On October 3, 2006, Asprey wrote Kalman a check for $50,000 in conjunction with a promissory note ("the Note") made by Kalman in favor of Asprey. Kalman executed the Note on the following day. The Note was repayable on demand with an annual interest rate of eight percent. Kalman, however, claims that Asprey agreed to never make demand on the Note as he was to repay the Note through the provision of ongoing legal services. And consistent with that agreement, he swore that from February 26, 2007 through August 6, 2015, he provided legal services to Asprey valued at $60,350.
Near the end of her life, Asprey found her finances in dire straits. She gave a power of attorney to a close friend, Daniel Manuchia, who attempted to locate outstanding debts owed her. Manuchia had heard that Kalman might owe Asprey money. At a meeting between Asprey, Manuchia, and Kalman, he asked Kalman directly if Kalman owed Asprey any money. While Kalman declined to answer, Asprey said "we are good, we are even."
Asprey died in 2015. The Gilberts, as her personal representatives, brought this action against Kalman to recover on the Note which they found in Asprey's papers.
B. Procedural History
The Gilberts initially brought suit to collect the Note in a New Mexico District Court. That suit was dismissed for lack of personal jurisdiction over Kalman, and while that ruling was on appeal, the Gilberts in 2016 filed this action in the County Court at Law Number Three for El Paso County, Texas. Based on an agreed motion, the trial court abated this case "until the conclusion of the appeal" in the New Mexico action. After the New Mexico appeal was resolved in the Gilberts' favor, Kalman on August 24, 2018, served requests for disclosure on the Gilberts. When those requests went unanswered, Kalman on January 24, 2019, filed a motion to compel those responses, and simultaneously filed interrogatories, requests for production, and requests for admissions on the Gilberts. Responses to that additional discovery were due on February 25, 2019.
Rather than substantively respond to the discovery, on February 21, 2019, the Gilberts filed a Plea in Abatement and Motion for Protective Order. The plea and motion asked the court to abate the discovery based on the primacy of the New Mexico action. The Gilberts claimed that because the New Mexico action was filed first, that case, and only that case should resolve the dispute. The trial court, however, issued a series of three orders that rebuffed this position. First, on March 1, 2019, the trial court ordered that the Gilberts respond to Kalman's requests for disclosure within 21 days. On March 4, 2019, the trial court further ordered that the Texas case would proceed to trial and entered an agreed scheduling order. Finally, the trial court also denied the plea in abatement and protective order on March 5, 2019.
Some discovery materials from the New Mexico litigation have been included as attachments to pleadings in our record, but we otherwise have no information on the status of the New Mexico litigation.
1. Summary judgment on Kalman's claims for attorney's fees
On April 18, 2019, Kalman filed a traditional motion for summary judgment on his counter claim against the Gilberts based on breach of contract and quantum meruit. The motion sought recovery of $60,350 in unpaid legal services that Kalman had provided to Asprey as alleged in the counterclaim. The motion was supported by proof of the un-responded to requests for admission, including these:
[Number 4]: Kalman and Asprey entered into an agreement, by which Kalman agreed to furnish legal services to Asprey.
[Number 5]: The agreement for legal services between Kalman and Asprey was valid and enforceable.
[Number 6]: Kalman was required to comply with the agreement for the furnishing of these legal services.
[Number 7]: Asprey agreed to pay Kalman for legal services rendered to her or on her behalf by Kalman.
[Number 8]: Kalman has fully performed all conditions, covenants and promises under the agreement for legal services for Asprey.
[Number 9]: There remains due and owing to Kalman the sum of $60,350.00 for legal services provided to Asprey.
...
[Number 11]: Asprey failed to pay the sum of $60,350.00 to Kalman prior to her death.
...
[Number 17]: The price for Kalman's legal services was fair and reasonable.
The motion was also supported by Kalman's affidavit averring to the same facts outlined in the requests for admission. His affidavit attached detailed billing records to support the amount, an affidavit of Kalman's attorney in this case attesting to the lack of response to the requests for admission, and the written demand for payment of the unpaid fee.
The Gilberts' response to the summary judgment motion pointed to three claimed disputed issues of material fact: (1) Kalman's own affidavit filed in support of a second motion for summary judgment (that we discuss below) establishes that he was already "paid" the fees, at least to the extent of $50,000, through the Note transaction, and that at most Kalman had a claim for $10,350 (the difference between $60,350 and $50,000); (2) Kalman had a personal relationship with Asprey such that he never expected to be paid for his work; and (3) Kalman was not credible and the court could not rely on his affidavit. The Gilberts did not ask the trial court to withdraw the deemed admissions, but instead asserted the filing of a motion for protective order precluded the deeming of admissions.
The evidence attached to the Gilberts' response included (1) excerpts from a deposition of Kalman taken in New Mexico litigation (with excerpted exhibits), and (2) the Gilberts' attorney's affidavit. The deposition excerpts acknowledged that Kalman drafted the Note and received the $50,000 principal referenced in the Note. The deposition also established that Kalman did not send Asprey bills on an on-going basis (because according to Kalman, she had no money and there was no point). Kalman also testified that the billing records attached to Kalman's affidavit were created after this litigation started. Kalman's deposition explored the personal relationship between Asprey and Kalman, including vacations that they took together. Kalman, however, denied that the relationship was anything more than a close personal friendship. Two deposition exhibits purport to be emails from Asprey to Kalman reflective of their familiarity. Finally, Kalman acknowledged in the deposition that an affidavit he signed in the New Mexico litigation was inaccurate as it concerned the amount of work he did for other New Mexico clients.
In one email, Asprey offers to come to El Paso to cut Kalman's hair, and in the other, she asks if Kalman will be naked when she comes over--a comment Kalman explained as indicative of her sense of humor.
The response was also supported by the affidavit of David Lutz (Gilberts' attorney in this litigation), who authenticated a letter sent by his partner, William Lutz, to Kalman. The letter asked Kalman for an accounting, and states "there appears to be a number of checks totaling a sizable amount of money" written from Asprey to Kalman. The letter lists by date and amount ten checks from March 2006 through July 2010 totaling $311,602.68. Kalman had also been asked about these payments in his deposition and without records in front of him, he testified that he could "neither deny nor admit" to any payments.
Kalman filed a reply that objected to the Gilberts' evidence generally to the extent that it contradicted the deemed admissions. He relied on the rule stated in Marshall v. Vise , 767 S.W.2d 699, 700 (Tex. 1989) that "[a]n admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it." Kalman also specifically objected based on hearsay and relevance to the two emails purportedly from Asprey to Kalman regarding the nature of their personal relationship that were attached to his deposition excerpts. Kalman further objected to a specific paragraph in the Lutz's affidavit, and to the attached letter, which purported to recite payments made by Asprey to Kalman. Kalman objected to this specific evidence based on (1) lack of authentication, (2) the best evidence rule, and (3) the prohibition of a lawyer being both a witness and advocate. The Gilberts did not file any written response to the objections.
The summary judgment was set for submission on the paper filings alone. There is no transcript from an actual hearing in our record.
On May 31, 2019, the trial judge sustained all Kalman's objections to the Gilberts' summary judgment evidence, excepting the best evidence rule as to the lawyer's letter and affidavit. The trial court then granted Appellant's partial motion for summary judgment awarding Kalman $60,350 in damages against the Gilberts. The court reserved all other issues for trial, including the question of attorney's fees for collecting the attorney's fees.
2. Summary judgment motion negating the Gilberts' claim
Kalman also amended his answer to allege several affirmative defenses to the Gilberts' claim, including offset and payment of the Note through the value of legal services. On May 2, 2019, Kalman filed a separate motion for summary judgment on the claims asserted by the Gilberts. The motion contended that the Gilberts cannot show the Note was a valid enforceable contract because there was no meeting of the minds that it would be a valid obligation and it was not executed or delivered with the intent to be mutual and binding. Rather, the Note was executed to document an account receivable for Kalman's present and future legal services.
Alternatively, the motion asserted the affirmative defenses of payment and offset, arguing that the unpaid legal services of $60,350 more than offset the Note. Supporting that claim, Asprey acknowledged in her lifetime that Kalman owed her nothing, and that in any event, Kalman performed legal services in excess of the principal amount of the Note.
This second motion for summary judgment was supported by Kalman's affidavit that acknowledged he executed the Note. But Kalman swore the Note was "done solely for accounting purposes" and by agreement, it is "not an actual obligation." In the same paragraph he describes the Note as documenting an "account receivable for my [ongoing and future] legal services." Kalman also swore that from 2007 forward, he ceased billing Asprey, but provided her legal services having a value of $60,350. "The legal services I provided were provided in part, to satisfy any obligation that I would have had under the Note." The motion was also supported by an affidavit and deposition testimony from Daniel Manuchia who testified to Asprey's 2015 statement that she and Kalman were "even."
This is the affidavit that the Gilberts referenced in their response to Kalman's summary judgment on his counterclaim.
The Gilberts responded to Kalman's motion, arguing that the parol evidence rule barred Kalman's oral statements varying the payment terms of the Note. The Gilberts further challenged the payment/offset claim by contending that Asprey paid Kalman large sums of money during this period, well in excess of the amount of claimed attorney's fees. They included as their responsive summary judgment evidence the same exhibits used to contest Kalman's motion for affirmative relief--that is, Kalman's deposition excerpts, the two emails from Asprey to Kalman, and the Lutz affidavit with his partner's demand letter attached. The Gilberts also included an excerpt from Manuchia's deposition that could support an inference that Asprey was prone to giving undeserved gifts to people.
As with the other summary judgment motion, Kalman objected to the two emails on hearsay and relevance grounds. He also objected to the lawyer's affidavit and letter as lacking authentication, violating the best evidence rule, and attempting to raise a disputed factual issue through a lawyer representing a party in the case. The Gilberts did not file any written response to these objections.
On July 3, 2019, the trial court granted Kalman's objections to the summary judgment evidence filed by the Gilberts and granted the partial motion for summary judgment, dismissing all claims asserted by the Gilberts.
3. Final judgment
On December 5, 2019, the trial court rendered its final judgment, awarding Kalman $60,350, prejudgment interest and attorney's fees, and awarding a take nothing judgment against the Gilberts on their claims. The Gilberts did not file a motion for new trial or other post judgment motion, and bring two issues on appeal: (1) did the trial court err in its evidentiary rulings, and (2) did the trial court err in granting the two summary judgment motions? See Malooly Bros., Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970) (issue stating that "the trial court erred in granting the motion for summary judgment" allows argument as to all possible grounds upon which the summary judgment should have been denied).
II. STANDARD OF REVIEW
When a party with the burden of proof moves for traditional summary judgment, that party "bears the burden to conclusively establish that [he] is entitled to judgment as a matter of law, notwithstanding the nonmovant's response or lack thereof." B.C. v. Steak N Shake Operations, Inc. , 598 S.W.3d 256, 258-59 (Tex. 2020), citing TEX.R.CIV.P. 166a(c) ; Rhône-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222-23 (Tex. 1999) ("The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense."). A matter is conclusively established when "reasonable people could not differ in their conclusions...." City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005) ; see also Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc. , 644 S.W.2d 443, 446 (Tex. 1982) (a matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence). And we review that evidence in the light most favorable to the non-movant, indulging every reasonable inference in favor of the non-movant, and resolving any doubts against the motion. See Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017), citing City of Keller , 168 S.W.3d at 824.
Where the moving party fails to establish all the elements necessary to his cause of action, summary judgment is improper. Hovorka v. Community Health Systems, Inc. , 262 S.W.3d 503, 508 (Tex.App.--El Paso 2008, no pet.). However, if the moving party establishes his entitlement to judgment as a matter of law, the burden then shifts to the non-movant to present countervailing evidence that raises a genuine issue of material fact on the movant's claims. City of Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678 (Tex. 1979). Because summary judgment is a question of law, we review a trial court's summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009).
III. DISCUSSION
We address the Gilberts' arguments in three sections, the first addressing the trial court's ruling on the summary judgment evidence. We then address each summary judgment motion separately, as they were filed, responded to, and decided separately.
A. The Evidentiary Rulings
We review evidentiary rulings in connection with a summary judgment motion under the abuse of discretion standard. See Starwood Management LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). And our review of that discretion turns on whether the trial court acted "without reference to any guiding rules and principles." Id. quoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985). But because the Gilberts filed no response to the motions to strike evidence--that is, they did not address each of the specific hearsay, authentication, best evidence, and witness competency objections below to the trial court--we cannot test the trial court's exercise of discretion as to those specific rulings. As this Court has stated:
A basic tenet of appellate procedure is that appellate courts do not generally consider complaints not raised in the trial court. See TEX.R.APP.P. 33.1(a)(1). Therefore, to preserve error from a ruling that excludes evidence, the complaining party must inform the trial court of the purpose for which the evidence is offered and the reasons why the evidence is admissible. When the record is silent as to what position the complaining party took at trial, it is impossible for a reviewing court to determine whether the trial court abused its discretion by excluding evidence.
Summary judgment procedure incorporates the tenet that a complaint must first be presented to the trial court: "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX.R.CIV.P. 166a(c). Accordingly, to preserve complaints regarding the exclusion of summary judgment evidence, the proponent must inform the trial court of the purposes for which the evidence was offered and the reasons why it was admissible.
Community Initiatives, Inc. v. Chase Bank of Texas , 153 S.W.3d 270, 281 (Tex.App.--El Paso 2004, no pet.) (omitting cited cases). Because the basis for admitting the emails, the attorney letter, and affidavit was never advanced to the trial court in the face of plausible objections, the trial court never had a chance to pass upon the arguments for admission that are now asserted to this Court. Based on our standard of review--abuse of discretion--we cannot say the trial court abused its discretion in sustaining plausible objections to evidence when no response to the objection was every voiced. We overrule issue one as it pertains to the specific objections to the emails attached to Kalman's deposition excerpts, to David Lutz's affidavit, and to William Lutz's letter.
One of our sister courts has taken that concept one step further, requiring a party to object to the trial court's ruling. Cantu v. Horany , 195 S.W.3d 867, 871 (Tex.App.--Dallas 2006, no pet.) ("When a party fails to object to the trial court's ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court's ruling."); but see Miller v. Great Lakes Mgt. Serv., Inc. , No. 02-16-00087-CV, 2017 WL 1018592, at *2 (Tex. App.--Fort Worth Mar. 16, 2017) (mem. op.) (declining to follow that holding of Cantu ). We need not decide that issue here.
That leaves the requests for admission issue which the Gilberts did address in their response. Kalman argued that the trial court should exclude any evidence in the response that contradicts any of the deemed admissions. See Marshall v. Vise , 767 S.W.2d 699, 700 (Tex. 1989) ("An admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it."); ReadyOne Industries, Inc. v. Flores , 460 S.W.3d 656, 665 (Tex.App.--El Paso 2014, pet. denied) ("Any matter admitted in response to a request for admissions is conclusively established unless the court on motion permits withdrawal or amendment of the admission."). Consequently, the deemed admissions would have at least precluded any consideration of the Gilberts' evidence that might tend to deny that Kalman performed legal services with a value in excess of the amount of the Note, and that Asprey obligated herself to pay for those services.
Under Texas law, requests for admissions are deemed admitted on the day after they are due absent a proper objection, answer, or assertion of privilege. See TEX.R.CIV.P. 198.2(c) ; Marino v. King , 355 S.W.3d 629, 633 (Tex. 2011) (per curiam). The Marino court also noted that the trial court "may allow the withdrawal of a deemed admission upon a showing of (1) good cause, and (2) no undue prejudice." Id. The trial court has broad discretion to grant or deny a motion to withdraw deemed admissions. Stelly v. Papania , 927 S.W.2d 620, 622 (Tex. 1996) ; Carlton Firm, P.C. v. Edwards , No. 08-03-00009-CV, 2004 WL 540324, at *2 (Tex.App.--El Paso, Mar. 18, 2004, no pet.) (mem. op.). Here, however, the Gilberts never filed a motion to withdraw the admissions.
Rather, the Gilberts seek to rely on their motion for protective order to overcome their failure to respond. In this regard, they cite two cases for the proposition that a timely filed motion for protective order constitutes a response that prevents the deeming of admissions. In re Approximately $61,083.00 , No. 14-13-01059-CV, 2014 WL 866040 (Tex.App.--Houston [14th Dist.] Mar. 4, 2014, no pet.) (per curiam) (mem. op.) and Reynolds v. Murphy , 188 S.W.3d 252, 261 (Tex.App.--Fort Worth 2006, pet. denied.) ("[The Appellant] does not cite any authority, nor have we found any, holding that the filing of a motion for protective order within the time period for answering requests for admissions is not sufficient to prevent those admissions from being deemed admitted if the court does not eventually rule on the motion.").
Kalman responds that neither case can be read that broadly. He urges that in In re Approximately $61,083.00 the trial court granted a motion to withdraw deemed admissions. 2014 WL 866040, at *1. The relator sought mandamus to vacate that order. Id. The case was decided based upon the trial court's wide discretion to grant or deny a motion to withdraw deemed admissions, as well as an incomplete record presented on mandamus. Id. at *2-3. Neither of those circumstances apply here.
Kalman also challenges the Gilberts' reliance upon Reynolds v. Murphy. In that case, the plaintiff claimed that the trial court erred by granting the defendants' objections to his summary judgment evidence, including 996 requests for admissions--contained in his third set of such requests--which plaintiff claimed were deemed admitted. Reynolds , 188 S.W.3d at 260. The defendant had filed a motion for protective order and objections claiming that the requests were an abuse of the discovery process, unduly burdensome, and harassing. Id. Kalman notes here that the Gilberts did not file any specific objections to the requests for admissions, and that their motion for protective order was overruled.
As discussed in the next section, we need not resolve this thorny issue because even assuming the requests for admission were deemed admitted, Kalman's own evidence that he filed of record creates a fact issue on the summary judgment granting his counterclaim. And the requests for admissions are not germane to our resolution of Kalman's summary judgment on the Gilberts' claim.
B. The Partial Summary Judgment Ruling on Kalman's Claims
Turning to the merits of the summary judgment on Kalman's counterclaim, the Gilberts' claim that the trial court erred in granting partial summary judgment for the value of the legal fees because Kalman's own evidence raised a fact issue as to whether the legal services were provided in repayment of the Note obligation.
The Gilberts' response to Kalman's motion raised as the first disputed genuine issue of material fact the following:
This Court should note that even under Mr. Kalman's theory, he would not be entitled to the amount he seeks. Mr. Kalman claims by affidavit that the $50,000 he received was for "my ongoing and future legal services." See Affidavit of Mannie Kalman, attached to Defendant's Traditional Motion for Partial Summary Judgment on Plaintiffs Claims, filed on May 2, 2019, at ¶ 3. At most, he can only seek $10,350. See , Deposition of Mannie Kalman, attached as Exhibit "A," at 15:4-16:8 (admitting payment of $50,000); see also , Promissory Note, attached as Exhibit "1" to the Deposition of Mannie Kalman.
The Gilberts repeat that objection in their principal brief to this Court. We agree.
This Court has noted that "[a] fact question exists when the summary judgment record contains inconsistent or conflicting summary judgment proof." Cuidado Casero Home Health of El Paso, Inc. v. Ayuda Home Health Care Services, LLC , 404 S.W.3d 737, 743 (Tex.App.--El Paso 2013, no pet.) citing Rankin v. Union Pac. R.R. Co. , 319 S.W.3d 58, 67 (Tex.App.--San Antonio 2010, no pet.) ; see also Sosebee v. Hillcrest Baptist Med. Ctr. , 8 S.W.3d 427, 435 (Tex.App.--Waco 1999, pet. denied) (conflicting testimony of a single witness used to support a summary judgment contained inconsistencies that "create a fact issue to be resolved by a jury.").
The Gilberts point to such an inconsistency here. While the premise of the motion for summary judgment on the counterclaim is that Asprey never paid for the legal services, Kalman's affidavit filed in the companion motion for summary judgment states that the Note was executed "[i]n order to continue our professional relationship, [and] Asprey agreed to pay me $50,000.00 for my ongoing and future legal services." Kalman documented the "account receivable" with the $50,000 promissory note. He swore: "The legal services I provided were provided in part, to satisfy any obligation that I would have had under the Note." It cannot be both true that the legal services were due and owing, while at the same time, they were provided to offset the amount due under the Note. And at a minimum, there is a factual dispute, as the Gilberts argued below, as to whether the estate owes the entire $60,350 reflected on the bill, or only $10,350, which is the difference after accounting for the $50,000 Note.
The only question is whether an affidavit used in support of one motion for partial summary judgment can be considered as part of the response to a different motion for partial summary judgment. A party must ensure that any pertinent evidence is properly before the trial court for consideration in resolving a motion for summary judgment. Saenz v. S. Union Gas Co. , 999 S.W.2d 490, 493 (Tex.App.--El Paso 1999, pet. denied) (proofs attached to prior response to summary judgment were not automatically before trial court for consideration of current motion). But a party can ensure "that the evidence is properly before the court either by requesting in the motion that the trial court take judicial notice of the evidence that is already in the record or by incorporating that document or evidence in the party's motion." Steinkamp v. Caremark , 3 S.W.3d 191, 194 (Tex.App.--El Paso 1999, pet. denied). And for incorporation, "magic language is not necessary; it is only necessary that the party makes the court aware of that particular evidence to which the party is referring." Id. at 194-95 ; see also Ramirez v. Colonial Freight Warehouse Co., Inc. , 434 S.W.3d 244, 252 (Tex.App.--Houston [1st Dist.] 2014, pet. denied). The Gilberts did at least that. In their response to the partial motion for summary judgment on the counterclaim, they pointed distinctly to the affidavit that Kalman executed and attached to the motion for partial summary judgment attacking the Gilberts' claim. They pointed to a particular paragraph of the affidavit and quoted a portion of its language. Accordingly, we conclude that affidavit is fairly part of the response that the trial court should have considered in resolving this motion for partial summary judgment. Nor would the requests for admission, even if deemed, preclude its consideration. The Gilberts did nothing more than refer to Kalman's own evidence, as distinct from offering their own responsive evidence.
Accordingly, we conclude that the trial court erred in granting Kalman' motion for partial summary judgment on his counterclaim and reverse that portion of the final judgment. That claim is remanded to the trial court.
C. The Summary Judgment on the Gilberts' Note Claim
Kalman's summary judgment challenging the Gilberts' claim on the Note rises or falls on whether he disproved at least one element of the Gilberts' claim, or whether he conclusively proved his affirmative defenses of payment or offset. We conclude that at least a fact issue exists on the elements of the Note claim, but that Kalman proved his affirmative defenses of offset or payment.
There is no dispute that Kalman executed the Note in favor of Asprey on October 4, 2006. "A plaintiff who sues for recovery on a promissory note does not have to prove all essential elements for a breach of contract but rather need only establish the note in question, that the defendant signed it, that the plaintiff was the legal owner and holder thereof, and that a certain balance is due and owing on the note." Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Tr. I , 331 S.W.3d 500, 505 (Tex.App.--El Paso 2010, no pet.). Kalman's summary judgment argues that the parties never intended that the Note be repaid. He sought summary judgment because there was no meeting of the minds that the Note would be a valid obligation and it was not executed or delivered with the intent to be mutual and binding.
We view these claims as attacking the first element in a suit on a note--the existence of a note--here at least one with a payment obligation. "Testimony by an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it." Aerotek, Inc. v. Boyd , 624 S.W.3d 199 (Tex. 2021) quoting Lofton v. Texas Brine Corp. , 777 S.W.2d 384, 386 (Tex. 1989). Kalman's affidavit falls short of that standard under his theory attacking the Note. On one hand he avers that the Note was never intended to re-paid, but then the same affidavit states: "The legal services I provided were provided in part, to satisfy any obligation that I would have had under the Note." That statement assumes at least some obligation under the Note in the event he did not perform any on-going services. And it is no small matter that we have the Note in the summary judgment record, which on its face creates a payment obligation. It states a specific "Place for Payment," a specified interest rate on the "Unpaid Principal" and "Matured, Unpaid Amounts." It contains other typical note terms, such as contingencies for default, attorney's fee liability if the Note is placed for collection, and a savings clause to prevent usuary. It contains these statements: "Maker promises to pay to the order of Payee at the place for payment and according to the terms of payment the principal amount plus interest at the rates stated above," and "Each Maker is responsible for all obligations represented by this note." A fact finder may or may not believe that there was a side agreement negating the explicit payment obligation, but there is at least a fact created by the terms stated on the face of the Note.
The Gilberts also correctly point out that, "[w]hen parties have entered into a valid, written, integrated contract, the parol evidence rule precludes enforcement of any prior or contemporaneous agreement that addresses the same subject matter and is inconsistent with the written contract." West v. Quintanilla , 573 S.W.3d 237, 243 (Tex. 2019) ; see also First Bank v. Brumitt , 519 S.W.3d 95, 109-10 (Tex. 2017). To this argument, Kalman counters that "the parol evidence rule ‘does not preclude enforcement of prior or contemporaneous agreements which are collateral to an integrated agreement and which are not inconsistent with and do not vary or contradict the express or implied terms or obligations thereof.’ " ERI Consulting Engineers, Inc. v. Swinnea , 318 S.W.3d 867, 875 (Tex. 2010), quoting Hubacek v. Ennis State Bank , 159 Tex. 166, 317 S.W.2d 30, 31 (1958). The record, however, fails to establish that the proposed additional term (that the parties never intended the Note to be repaid) has been established as a matter of law. Accordingly, Kalman has failed to negate at least one element of the Gilberts' claim on the Note.
But Kalman also moved for summary judgment on the affirmative defense of payment or offset, arguing that the Note had been fully paid through legal services rendered to Asprey. This part of the motion was supported by Kalman's testimony concerning the legal services provided with a detailed invoice for that work. The Gilberts offered no evidence to refute that those services were in fact provided. And the claim of payment is supported by statements made by Asprey herself. Daniel Manuchia investigated the debt pursuant to a power of attorney he had from Asprey. He specifically questioned Asprey in 2015--after the claimed legal services were performed--and she denied that Kalman owed her any money.
The Gilberts suggest that Manuchia's testimony is barred by the parol evidence rule Here, they miss the point. Rather than going to the initial validity of the Note, Manuchia's testimony and Asprey's admission also supports the claim that any debt was satisfied. The Gilberts offered no testimony to the contrary, and never argued below or on appeal that the amount of claimed attorney's fees do not exceed the amount of the Note. Their other arguments are unavailing. While they contend that Asprey made other payments to Kalman during this time period, the evidence supporting that claim all comes from the lawyer's demand letter that was struck as evidence. Otherwise, the record only contains Kalman's deposition testimony that he could neither admit nor deny the existence of any other payments without having records before him. That testimony falls far short of proving that any payments were in fact made, much less the reason for any payments made.
Nor does testimony that Kalman and Asprey were close friends (that they took vacations together) prove that Kalman intended to do legal work for free. The mere fact that Kalman had a close personal relationship with a client does not mean that he intended to provide his services for free. At best this claim is speculation. Once Kalman produced evidence sufficient to demonstrate his entitlement to summary judgment, the burden shifted to the Gilberts to produce evidence sufficient to raise a fact question. Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018) ; Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The Gilberts' speculations do not constitute summary judgment evidence.
The Gilberts also argue that Kalman has failed to present a written fee agreement. The general rule is that parties to a contract must agree upon the material terms to establish a contract. T.O. Stanley Boot Co., Inc. v. Bank of El Paso , 847 S.W.2d 218, 221 (Tex. 1992). The Gilberts cite no case law supporting the argument that a written fee agreement is also necessary to recover under a contract to provide legal services. To the contrary, Texas law does not require a written agreement, except in cases of contingency fees. LAN/STV v. Martin K. Eby Construction Co., Inc. , 435 S.W.3d 234, 244 (Tex. 2014). Similarly, the Gilberts also contend that because Kalman did not keep contemporaneous time records, that a fact issue is created as to the existence or amount of the charges. The record here shows that Kalman later reconstructed a detailed eight page invoice that describes the services he performed, the date of those services, the hours expended for particular services, along with the billing rate and total charge. The date range for these services began on February 26, 2007, and ended on August 6, 2015. In 2012, the Texas Supreme Court held that in a fee-shifting context, attorneys "must provide sufficient details of the work performed" so that a "court can make a meaningful review of the fee request." El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 764 (Tex. 2012). For the purposes of lodestar calculations in fee-shifting situations, "this evidence includes, at a minimum, documentation of the services performed, who performed them and at what hourly rate, when they were performed, and how much time the work required." Id. The attorneys sponsoring the fee application in El Apple likely did not have contemporaneous billing records to document their time, but the court remanded the case so that they could "reconstruct their work in the case to provide the minimum information" which the court now requires. Id. Kalman has done nothing more than that here, ending up with a billing record that includes all the information required by El Apple. The Gilberts raised no issue of material fact contesting that Kalman actually performed any of the specific services described, or that the billing rate or the time expended were excessive. Kalman proved the amount of his offset.
Similarly unavailing is the Gilberts' claim that Kalman's admission in his deposition that he made an inaccurate statement in an affidavit creates a fact issue to every statement in this litigation. The deposition excerpt that the Gilberts rely on reads as follows:
Q. Here is your affidavit. Paragraph 5, is that accurate, based on your testimony today?
A. No. That would be inaccurate.
The referenced paragraph five is not included in the response to the summary judgment, so the trial judge would have no basis to know what the statement referred to, or how it was inaccurate. Nor do the Gilberts offer any authority for the proposition that an untruthful statement made by a declarant on one issue serves to create a genuine issue of material fact as to every statement made by the same declarant.
Attached to another pleading is an affidavit executed by Kalman in the New Mexico litigation. The paragraph five in that affidavit states that "Although Ms. Asprey resided in New Mexico, we only ever conducted business with one another in my El Paso law offices." The deposition excerpts attached to that other pleading recount two times that Kalman met with some bankers in New Mexico on behalf of Asprey about ten years in the past. Even if this information had been included in the summary judgment record, it might well have been subject to the general rule that impeachment on prior inconsistent statements as to a collateral matter are not admissible. TXI Transp. Co. v. Hughes , 306 S.W.3d 230, 241 (Tex. 2010).
In sum, Kalman proved that there is no genuine issue of material fact that he provided services not otherwise compensated for, in excess of the amount of the Note, which sustains his affirmative defense of offset and payment. The trial court did not err in granting this partial motion for summary judgment, and consequently there is no error in its incorporation into the final judgment.
IV. CONCLUSION
For the reasons set out above, the Gilberts' first issue is overruled. The second issue is sustained, but only as to the partial summary judgment on Kalman's counterclaim. We overrule that portion of the second issue attacking the partial summary judgment on the Gilberts' claim for relief. Kalman's counterclaim is remanded to the trial court for further consideration.