AFFIRM, REVERSE, RENDER, and REMAND; and Opinion Filed August 8, 2013.




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-10-01133-CV

                           ELIZABETH W. CELMER, Appellant
                                        V.
                             CHARLES MCGARRY, Appellee

                      On Appeal from the 101st Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DC-09-3023-E

                                         OPINION
                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                                Opinion by Justice Lang-Miers
       This is a fee dispute between an attorney and his client. The case began when appellant

Elizabeth W. Celmer’s former spouse interpleaded funds into the registry of the trial court after

the conclusion of their divorce litigation. Appellee Charles McGarry, who represented Celmer in

the divorce litigation, asserted claims for breach of contract and quantum meruit against Celmer.

Following a jury trial, the court rendered a judgment for McGarry after it suggested a remittitur

to reduce the actual damages awarded by the jury.

                                          I. BACKGROUND

       Before Celmer and her former spouse Edward O. Bufkin, Jr., were married, they entered

into an antenuptial contract in which they agreed to their relative rights to property. See Bufkin
v. Bufkin, 259 S.W.3d 343, 348 (Tex. App.—Dallas 2008, pet. denied) (Bufkin II). 1 Under the

contract, all property owned before marriage or acquired during the first five years of marriage

was the respective spouse’s separate property. Id. The contract also provided that “a community

property estate will accumulate from and after a date which is five years from the date of the

marriage of the parties.” Id. As interpreted by the El Paso Court of Appeals and this Court in

previous appeals, the contract provided that increases in the value of separate property, as well as

income accumulating on separate property, would become community property after the parties’

fifth wedding anniversary. See id.; Bufkin v. Bufkin, No. 08-02-00025-CV, 2003 WL 22725522

(Tex. App.—El Paso Nov. 20, 2003, pet. denied) (mem. op.) (Bufkin I). There were four assets

at issue in the jury trial of Celmer and Bufkin’s divorce: a residence in Dallas County, a ranch in

Oklahoma, shares of stock in Campeon Pipeline Corporation, and shares of stock in Norgasco,

Inc.

          McGarry represented Celmer in both Bufkin I and Bufkin II, as will be explained in more

detail below. Although McGarry and Celmer had entered into a written contingency fee contract

before Bufkin I, McGarry’s claims were not based on this contract, but rather on a series of e-

mails he later exchanged with Celmer. The written contingency fee contract, dated December 5,

2001, provided, “In compensation for Attorney’s services, Client agrees to pay Attorney a fee

equal to the greater of: (a) forty five percent (45%) of Client’s interest in the Norgasco stock or

the proceeds or settlement thereof; or (b) fifty percent (50%) of Client’s interest in the Norgasco

stock or the proceeds or settlement thereof, if any filing is made in the Supreme Court of Texas

in this case.” McGarry contends that the parties later agreed by e-mail that his contingency fee

would no longer be limited to Celmer’s interest in the Norgasco stock; instead, he would be


     1
       Many of the relevant documents refer to Celmer as “Elizabeth Bufkin,” but the trial court’s judgment and the appellate briefs refer to
appellant as “Elizabeth W. Celmer,” as do we.



                                                                   –2–
entitled to 50% of Celmer’s total recovery, plus $200 per hour for his services, plus expenses.

The difference is significant because at the second trial of Celmer’s divorce, the jury’s findings

resulted in a judgment awarding nothing to Celmer for her interest in the Norgasco stock, but

awarding her $367,095.62 2 for her interest in other assets. This is the amount interpleaded by

Celmer’s former spouse in this action.

           The jury in this case found that McGarry and Celmer intended to be bound by an

agreement for McGarry to receive 50% of Celmer’s total recovery, an additional $200 per hour

for his services, and reimbursement of expenses. Because we conclude that the evidence was

insufficient to support this finding, we reverse the trial court’s judgment in part and render

judgment for McGarry.

                                                                II. ISSUES

           Celmer presents five issues. 3 First, she contends there is no evidence of an enforceable

contingency fee agreement which provided for 50% of her total recovery, plus $200 per hour for

McGarry’s services, plus expenses, and no evidence of any breach of contract to support the trial

court’s judgment. Second, she contends in the alternative that the judgment for breach of

contract is against the great weight and preponderance of the evidence. Third, she contends that

the trial court’s judgment awards excessive damages unsupported by the evidence. She also

argues that McGarry should forfeit any fees owed because of his breaches of fiduciary duty.

Fourth, she argues that the trial court erred in dismissing her claim for tortious interference. And

fifth, she contends that the trial court abused its discretion by striking her third amended petition

and claim for breach of fiduciary duty.



     2
         The interpleaded funds consisted of a judgment amount of $302,010.00 and $65,085.62 in post-judgment interest.
     3
         McGarry states in his brief that although he “perfected a cross-appeal and alleges that the trial court erred in addressing the issue on
which it granted the remittitur, he is not asking this Court to change the judgment.”



                                                                     –3–
                                           III. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

       In her first issue, Celmer contends there is no evidence of an enforceable contingency fee

agreement which provided for 50% of her total recovery, plus $200 per hour for McGarry’s

services, plus expenses. She argues that therefore there is no evidence of any breach of contract

to support the trial court’s judgment.

       1. Facts

       To establish a contract between the parties for a 50% contingency fee plus $200 per hour

for his services, plus expenses, McGarry relies on a series of e-mails he exchanged with Celmer

in May, 2004. This exchange occurred after Celmer prevailed in her first appeal arising out of

the divorce litigation. See generally Bufkin I, 2003 WL 22725522. McGarry represented Celmer

in Bufkin I, under the terms of the parties’ 2001 written contingency fee agreement (the First

Agreement). Although Celmer did not recover any money as a result of the first appeal, the

court of appeals interpreted the prenuptial contract between Celmer and her spouse to allow her

to assert a claim for certain increases in value in the Norgasco stock. Id. at *5–6; see also Bufkin

II, 259 S.W.3d at 349 (describing El Paso court’s ruling). The El Paso court remanded the case

“for a just and right property division” of not only the Norgasco stock but also the entire

community estate.

               a. First Agreement

       The First Agreement provided that “[i]f Attorney is successful in obtaining a new trial,

Attorney will not represent Client in the trial court, but will assist Client in obtaining new trial




                                                 –4–
counsel.” 4 Any fee to McGarry, however, would only be due and paid if Celmer received any

recovery for her interest in the Norgasco stock after the new trial.                                            The First Agreement

expressly stated, “[n]o contingent fee shall be payable to Attorney if no recovery is received by

Client in this matter.”

                      b. Claimed Second Agreement

           McGarry relies on a series of four e-mails to establish a second agreement. He contends

that this second agreement entitles him to 50% of Celmer’s total recovery plus $200.00 per hour

for his services, plus expenses. These e-mails were exchanged in 2004, after the El Paso Court

of Appeals remanded the case for new trial to give Celmer the opportunity to prove her claims to

the community estate. See Bufkin I, 2003 WL 22725522, at *6.

           On May 14, 2004, in Plaintiff’s Exhibit (PX) 5, Celmer wrote 5 the first of the e-mails to

McGarry on which he relies:

                      In reference to our original contract, I believe the addendum is
                      required for us to sign to clarify the situation with the progress of
                      our case and cost involved.

                      In the original contract you state that you will not represent me in a
                      trial. However that has changed. You want to do it yourself with
                      the consultant divorce attorney on board associated with the Court
                      330. That is necessary for us to cover all grounds, politically and
                      by law.

                      We need to address further, that any additional costs to proceed
                      with our case have to be split among us 50%/50% from the top of
                      our portion of proceeds received by us. We both have the same
                      steak at the case. We should limit sharing the proceeds with
                      anyone else, unless is absolutely necessary like a divorce attorney
                      practicing well with the 330 court.

                      According to my understanding of the situation and the original
                      contract at this time I owe you 45% of proceeds from the case for
     4
        The First Agreement also provided that Celmer was responsible for payment of expenses, and that she was to pay $500 per month to be
used to offset expenses. The evidence showed that Celmer paid $1000 to McGarry under this provision, but did not make further payments,
supporting the jury’s finding in response to Question 1 that she breached the First Agreement. Celmer does not challenge this finding on appeal.
     5
         The record shows that Celmer is a native of Poland and that English is not her first language. We quote her e-mails verbatim.



                                                                      –5–
              winning the appeal plus the expenses you have incurred so far
              listed on your invoice. I believe it is very fair for you to receive
              additional 5% of the proceeds to represent us at the divorce court,
              as you would have received, if representing me at the Supreme
              Court.

       Within the hour on the same day, McGarry replied (PX6):

              You’re right that we need to work something out . . . . I took
              another look at our existing agreement, and you are right that it did
              not contemplate me representing you further in the trial court. So
              you are free to choose your attorney at this point. I believe I know
              the issue involved very well and can prove it as well as anyone.

              Our existing agreement went to 50% when the case was filed in the
              supreme court. I do not believe it is right or fair to you to seek any
              additional percentage. In fact, since the appeal has been won, it is
              probably unethical for any lawyer to ask for a percentage for the
              new trial. So I think a deferred hourly rate is the only fair option
              for you. This would be true both for my additional work and for
              any new lawyer.

              The existing contract also called for you to cover the out-of-pocket
              expenses. However, you were never able to do that. In the trial
              court, there will be many thousands of dollars in expenses incurred
              for various expert witnesses. So, unless you have the finances
              available, you will have to either find someone to loan it to you, or
              get me to finance it.

              Either way, you have to realize at this point, you are going to end
              up with less than 50%, because the expenses and new hourly fees
              would come out of your 50% . . . .

              Please think this over and let me know how you want to proceed.
              You probably have a couple of weeks to make a decision.

And, later on the same day, Celmer replied (PX 7):

              OK draw the agreement as you see fit based on what you have
              said. Agreement is an Agreement and I owe you 50% up to this
              point plus expenses.

              50% of nothing leaves nothing.
              We have to win to get paid anything.
              What is the hourly fee for you and Mr. H [an attorney McGarry
              had recommended] . . . .
              You would be a main attorney is that right?



                                               –6–
                 It makes sense for you to make money not anybody else in this
                 case. I am not sure why you have said in a contract that you would
                 not represent me in a trial . . . .

       In July 2004, Celmer retained another attorney, Joe Amberson, to represent her pursuant

to a written fee agreement. On July 9, 2004, Celmer wrote the fourth e-mail on which McGarry

relies (PX 8):

                 I did not miss understood anything about lead counsel.

                 I believe that you would be very much involved as a co-counsel in
                 strategy and research of any issues not addressed by the auditor as
                 Joe Amberson suggested. You may decide that you make want to
                 write pleadings or documents as you choose to our benefit. It is up
                 to you and he to decide what would be a part for each of you to
                 play.

The message continued with Celmer’s assurances that McGarry should be consulted about

decisions on strategy and on his own role in the case, “as you [have] more portion to lose than

me.” She then asked, “What is this all about? What are we discussing over and over and over.”

She explained, “Joe Amberson came with the highest recommendations as a [trial] lawyer in the

330 divorce court where we are. That is good enough for me. I believe this is only a win, win,

win situation for three of us.” She concluded, “I will be happy to sign another contract with you

and whatever work you will decide to do in my case for us you can bill me accordingly at the

rate of $200.00 per hour. Your fees have to be paid after final distribution of proceeds as Joe

Amberson’s will too.”

       In addition to the e-mails, McGarry also relies on his own testimony at trial to support his

position that the parties agreed to expand the contingency fee to include all assets, not only the

Norgasco stock:

                 And so if I’m going to finance all of these experts to appraise all of
                 these pieces of property, then the deal, the 50 percent – and I told
                 her it was 50 percent and not because it had gone to the Supreme
                 Court. But the 50 percent was going to have to apply to everything
                 because, you know, why would I finance, you know, her recovery

                                                  –7–
               out of these other pieces of property if I had no interest in them.
               (Emphasis added).

He also testified:

               Q. Okay. You said that it was more likely than not that there was
               not a second written agreement.

               A. I think that’s my own personal conclusion, that – because I sent
               e-mails to your client [Celmer] saying, no, you know, we might
               have just exchanged e-mails and made our agreement that way.
               You know, that’s entirely possible. And, certainly, that’s the only
               evidence of the agreement I have been able to locate after getting
               your client’s records.

       Additionally, McGarry also relies on Plaintiff’s Exhibit 12, an e-mail dated March 2,

2009, five years after the alleged second agreement. McGarry contends, “[t]hat e-mail states

unequivocably that they had signed a second fee agreement when Amberson withdrew, and that

McGarry was to get a contingent fee of fifty percent of the assets, plus an hourly fee of $200 per

hour, plus his expenses.” In this e-mail, Celmer writes in part,

               Charles there was a second written letter agreement related to you
               taking on as a divorce attorney after we discussed that you were to
               be involved and when Jo [Amberson] withdrew for duplication of
               attorney purposes: $200 per hour is what we have agreed as you
               state, plus cost incurred by you related to my trial, if the cost was
               not paid to the experts there would not be any assets nor trial to
               win nor loose. . . .

               Jo Amberson did not care to pay for anything so that is why you
               stepped in since the huge portion of 50% of the asset was to be
               awarded to you only for the appeal it was over a million dollar
               case.

               You had the same steak or then some at that time in my case.

               Cost was listed on the billings I have received.          You have
               confirmed being about 26K hard cost.

               We need to have theses documents present before I can have a feel
               for the numbers. I have signed both instruments at your office or
               faxed it to you, either way.

               These are 2 instruments we have ever signed related to my case
               and you being paid, and you would base your calculation on:
                                               –8–
              1: Appellate
              2. Rate of $200/HR as my divorce attorney
              3. Hard cost. 26K

              So at this time my understanding is you have calculated all
              proposals from your memory since no letters can be located.

              I have a photographic memory in general, but I would be hesitant
              to recall anything especially nuances if any in this important matter
              involving a lot of money.

              I doubt your memory is perfect that is why we sign papers in such
              cases, so there is no misunderstanding. You would not get
              involved without such agreements.

              I would appreciate your checking your records for these. We need
              these ASAP!

Celmer contends this e-mail shows that in 2009, she had an incorrect recollection that she and

McGarry had entered into a second written agreement in 2004. She emphasizes that despite her

claim of a “photographic memory,” she clearly stated that she “would be hesitant to recall

anything . . . in this important matter involving a lot of money,” and asks McGarry to find the

actual written agreement. She argues that the e-mail does not confirm an expansion of the 50%

from her interest in the Norgasco stock to her entire recovery, pointing to her reference to “the

asset” in the singular.   And Celmer testified at trial that the parties never agreed to any

percentage other than 50% of her portion of the increase in value of the Norgasco stock in the

First Agreement.

              c. Results of Second Divorce Trial

       McGarry remained involved in the case during the time Amberson represented Celmer.

After Amberson withdrew as Celmer’s counsel in July 2005, McGarry acted as lead counsel and

tried the case before a jury. The jury made findings regarding the value of specific assets

including the Norgasco stock. See Bufkin II, 259 S.W.3d at 349. But because of the jury’s

findings regarding the value of the Norgasco stock, Celmer was not awarded any amount for the

Norgasco stock in the divorce decree.
                                              –9–
         McGarry also represented Celmer in her ex-spouse’s appeal of the 2006 decree to this

Court. We concluded in that appeal that the trial court’s award of prejudgment interest in the

amount of $124,659.12 to Celmer was improper. Id. at 347, 350, 356–58. We affirmed the

remainder of the trial court’s judgment. Id. at 358.

         2. Standard of Review

         When an appellant attacks the legal sufficiency of the evidence to support an adverse

finding on an issue on which she did not have the burden of proof, she must demonstrate there is

no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.

1983).    In evaluating the legal sufficiency of the evidence to support a finding, we must

determine whether the evidence as a whole rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002). We sustain a no-

evidence point only if there is no more than a scintilla of evidence proving the elements of the

claim. St. Joseph Hosp., 94 S.W.3d at 520. In making this determination, we must view the

evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168

S.W.3d at 807.

         3. Applicable Law

                 a. Requirements of Contract

         Whether McGarry and Celmer intended to enter into an enforceable written contract was

a question of fact for the jury. See Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 554–56 (Tex.

1972). The court in Scott explained, “[a] transaction is complete when the parties meant it to be

complete. It is a mere matter of interpretation of their expressions to each other, a question of

fact.” Id. (quoting 1 CORBIN ON CONTRACTS 87–91 (1963)). Parties may agree upon some of the

                                               –10–
terms of a contract, and leave other portions to be made later. Id. at 555. Binding obligations

may arise from an informal agreement even if the parties intended to draw up a more formal

written agreement but never did so. Id. at 556 (quoting 17 AM. JUR. 2D Contracts § 28). But

before a contract may be enforced, the parties must agree on the material terms. T.O. Stanley

Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The parties must agree to

the same thing, in the same sense, at the same time. Weynand v. Weynand, 990 S.W.2d 843, 846

(Tex. App.—Dallas 1999, pet. denied). The party seeking to enforce the contract bears the

burden of proving the existence of the contract and its terms. Calce v. Dorado Exploration, Inc.,

309 S.W.3d 719, 737 (Tex. App.—Dallas 2010, no pet.).            And whether a contract is too

indefinite to be enforced is a question of law to be determined by the court. Fiduciary Fin.

Servs. of the Sw., Inc. v. Corilant Fin., L.P., 376 S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet.

denied).

       Additionally, a contingent fee contract for legal services must be in writing and signed by

the attorney and client. TEX. GOV’T CODE ANN. § 82.065(a) (West Supp. 2012); see also TEX.

DISCIPLINARY RULES PROF’L CONDUCT R. 1.04(d), reprinted in TEX. GOV’T CODE ANN., tit. 2,

subtit. G, app. A (West Supp. 2012) (hereinafter cited “D.R.”) (a contingent fee agreement “shall

be in writing and shall state the method by which the fee is to be determined”).

               b. Preservation of Issue for Appeal

       McGarry urges that Celmer has waived the complaint that the evidence was insufficient

because the jury charge did not include any instructions regarding section 82.065(a) or D.R.

1.04, and Celmer failed to object to the charge on this basis. We disagree. Although the jury

could determine the parties’ intent, it could not resolve the question of whether the series of e-

mails met the legal requirements for an enforceable contingency fee contract. See Parker

Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010,

                                              –11–
pet. denied) (whether parties reached agreement is question of fact; whether agreement is legally

enforceable is question of law). Celmer preserved this issue in her motion for new trial. See

DeAtley v. Rodriguez, 246 S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.) (one way to

preserve error for no evidence or matter of law point is through motion for new trial). 6 In

addition, Celmer filed a motion to disregard the jury’s findings and motion for remittitur and

requested judgment in her favor. See Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499

(Tex. 1993) (per curiam) (for appellate court to render judgment after sustaining complaint as to

legal sufficiency of evidence, party must request that relief).

           4. Application of Law to Facts

                       a. E-Mails as the Second Agreement

           The jury was instructed that “[i]f a law requires a record to be in writing, an electronic

record satisfies the law,” as long as the parties have “agreed to conduct transactions by electronic

means.” The jury was also instructed that “[w]hether the parties agree to conduct a transaction

by electronic means is determined from the context and surrounding circumstances, including the

parties’ conduct.” See Uniform Electronic Transactions Act, TEX. BUS. & COM. CODE ANN.

§§ 322.001–.021 (West 2012).

           McGarry contends that the parties’ e-mails satisfied the requirement that the contract

must be in writing. We disagree. In the e-mails on which McGarry relies as proof that he and

Celmer entered into a contract, Celmer requested a writing rather than agreeing “to conduct

transactions by electronic means.” See id. And her e-mails contain her repeated emphasis on the

necessity of a writing. In PX 5, she states, “I believe the addendum is required for us to sign to


     6
          We note that Celmer did not cite to section 82.065(a) of the Texas Government Code in her motion for new trial or her motion to
disregard jury findings, although she raised it in her pretrial motion for summary judgment and in her appellate brief. However, her complaint
that the series of e-mails did not constitute a written contingency fee agreement meeting the requirements of D.R. 1.04 as a matter of law was
sufficiently specific to advise the trial court of the grounds of her objection. See TEX. R. APP. P. 33.1(a) (to preserve error for appeal, party must
state grounds for desired ruling “with sufficient specificity to make the trial court aware of the complaint”).



                                                                       –12–
clarify the situation with the progress of our case and cost involved.” In PX 7, she states, “OK

draw the agreement as you see fit based on what you have said.” In PX 8, she states, “I will be

happy to sign another contract with you and whatever work you decide to do in my case for us

you can bill me accordingly at the rate of $200.00 per hour.” Four years later, even when she

recalled that she had signed a contract, she cautioned, “I have a photographic memory in general,

but I would be hesitant to recall anything especially nuances if any in this important matter

involving a lot of money. I doubt your memory is perfect that is why we sign papers in such

cases, so there is no misunderstanding . . . . I would appreciate your checking your records for

these.” (PX 12). Consequently, the evidence as a whole does not rise to a level that would

enable reasonable and fair-minded people to differ in their conclusions regarding whether

Celmer agreed to conduct transactions by electronic means. See City of Keller, 168 S.W.3d at

822.

               b. Terms of Agreement

       But even if the e-mails were sufficient to constitute a written agreement, that written

agreement nowhere states that McGarry’s contingency fee will be expanded to include Celmer’s

entire recovery rather than only her interest in the Norgasco stock. At trial and in his brief,

McGarry emphasized that limiting the first appeal to the Norgasco stock was necessary for there

to be any appeal at all. Because she was awarded nothing “but her clothes and personal effects”

in the first trial, Celmer could not afford the costs associated with appealing the entire case. She

and McGarry both believed that the Norgasco stock was the most valuable of the assets at issue

and provided the best chance of a monetary recovery to her. Nothing in the e-mails alters this

understanding, embodied in the parties’ written agreement that McGarry would receive “fifty

percent (50%) of Client’s interest in the Norgasco stock or the proceeds or settlement thereof.”

At most, McGarry clarified that the percentage under the parties’ original contingency fee

                                               –13–
contract had risen from 45% to 50% because of the proceedings in the Texas Supreme Court, and

Celmer acknowledged the increase. At the same time, McGarry stated he did “not believe it is

right or fair to you to seek any additional percentage.” And although McGarry testified at trial

that he explained to Celmer “the 50 percent was going to have to apply to everything,” neither

the e-mails nor the testimony at trial establish an agreement in writing that states “the method by

which the fee is to be determined.” See D.R. 1.04. There is no further e-mail correspondence in

2004 about a new writing, its execution, or negotiation of its terms. There is nothing reflecting

an expansion of the contingency fee the parties agreed to in 2001.

       McGarry also relies on later e-mails to indicate that Celmer understood that she was to

pay McGarry 50% of her entire recovery. In a 2007 e-mail written after the second trial, Celmer

stated, “I am aware that I owe you 50% of the recouped assets for the 1st appeal and the

additional divorce fees.” In another e-mail, she wrote, “Of course $150K plus your fees is a

great number for you now . . .”, an amount that is approximately half of the jury’s award of

$302,010 at the retrial. She also stated in the 2009 e-mail that McGarry had “the same [stake]”

in the case as she did. But Celmer’s subjective belief about terms of a purported second

agreement several years after it was allegedly formed is not evidence of a meeting of the minds

sufficient to constitute an agreement that McGarry would receive 50% of Celmer’s entire

recovery, plus $200 per hour for his services, plus expenses. See Weynand, 990 S.W.2d at 846

(parties must agree to same thing, in same sense, at same time); Paciwest, Inc. v. Warner Alan

Props., LLC, 266 S.W.3d 559, 567–68 (Tex. App.—Fort Worth 2008, pet. denied)

(determination of whether meeting of minds has occurred is based on objective standard;

evidence of party’s subjective belief of what contract says or whether an amendment occurred is

not relevant to whether there was meeting of minds sufficient to amend contract).




                                              –14–
                      c. Lost Agreement

           The dissenting opinion concludes that there was legally and factually sufficient evidence

that a second written contingency fee agreement was entered into by the parties but was lost. The

dissent relies on Chakur v. Zena, 233 S.W.2d 200, 202 (Tex. Civ. App.—San Antonio 1950, no

writ), and EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 (Tex. App.—Corpus

Christi 1994, writ denied), for the proposition that the contents of a lost memorandum sufficient

to satisfy the statute of frauds may be proved by clear and convincing evidence. Assuming this

standard applies, and that McGarry even raised this argument on appeal, 7 we do not agree that

McGarry met the burden of proving the terms of a lost written contingency fee agreement by

clear and convincing evidence.

           The standard relied upon in the dissent, clear and convincing evidence, is that “measure

or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established.” Vardilos v. Vardilos, 219 S.W.3d 920,

921–22 (Tex. App.—Dallas 2007, no pet.) (quoting TEX. FAM. CODE ANN. § 101.007). This

standard falls between the preponderance of the evidence standard of civil proceedings and the

reasonable doubt standard of criminal proceedings. Id. at 922. When the burden of proof at trial

is by clear and convincing evidence, we apply a higher standard of legal sufficiency review. Id.

at 921. As we explained in Vardilos, “the proof must weigh more heavily than merely the

greater weight of the credible evidence, but it need not be unequivocal or undisputed.” Id. at

922.

     7
        McGarry argues in his brief that a contingency fee agreement may be proven by oral testimony and the document itself need not be
located, citing VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 869–70 (Tex. App.—Fort Worth 2001, pet. denied). But the
VingCard case is neither a statute of frauds case nor a “lost agreement” case. The VingCard court concluded that an attorney’s testimony of his
fees was sufficient to comply with the Arthur Andersen factors. See Arthur Andersen & Co. v. Perry Equip. Co., 945 S.W.2d 812, 818 (Tex.
1997) (setting out factors for proof that an attorney’s fee is reasonable and necessary). The court also noted that evidence of a contingency fee
percentage alone was insufficient; the attorney must prove that the fee was both reasonably incurred and necessary to the prosecution of the case.
VingCard, 59 S.W.3d at 869. The court did not discuss proof of lost agreements, nor did it conclude that a contingency fee agreement need not
be in writing as long as an attorney testifies as to its terms. See id. We disagree that by citing VingCard, McGarry raised any argument that a
second written contingency fee agreement with Celmer existed but was lost.



                                                                     –15–
       McGarry testified, obtained a jury issue, and argued on appeal that the second

contingency fee agreement was made by e-mail.           Although McGarry testified on direct

examination that his “initial recollection” was that he and Celmer had signed a second written

fee agreement, he stated on cross-examination that it is “more likely than not” that there was no

formal second agreement. He explained instead that he and Celmer most likely made the second

agreement by exchanging e-mails. In response to a question whether he prepared a second fee

agreement like the first one he and Celmer had executed, he answered:

               I cannot answer that clearly yes or no. My recollection was that I
               did. Her recollection was that I did. I have no record of it
               currently, and despite my requests to [Celmer], I have not been
               able to locate one. And so I have concluded—or it is my belief that
               it is more likely than not that there wasn’t a second written
               agreement and that we are both mistaken. But I can’t categorically
               say that because, as I said, we both remembered that there was. It
               just hasn’t shown up. (Emphasis added.)

In addition, McGarry emphasized in his testimony that he was relying on the e-mails, not the

terms of a lost agreement, as proof:

               Q. Are you required under Rule 1.04 [of the Disciplinary Rules] to
               have a written fee agreement with your client if it is a contingency
               fee agreement?

               A. Yes.

               Q. And you have, I’m assuming, searched extremely diligently
               through whatever records you have obtained and been unable to
               find a second, written agreement?

               A. Well, no because e-mails are in writing. They do constitute
               writings as a matter of law. And the printed names at the bottom
               constitute signatures as a matter of law.

       Additionally, and even if this testimony constituted clear and convincing evidence that a

written contingency fee agreement existed but was lost, McGarry did not prove by clear and

convincing evidence a material term of the contract, that is, the expansion of the contingency

agreement to 50% of Celmer’s total recovery. McGarry’s testimony that “[w]e changed the
                                              –16–
original agreement” to “50 percent of everything” is the only evidence of this material term.

There is no writing reflecting it. None of McGarry’s own e-mails to Celmer either in 2004 or

after explain that the contingency fee will be expanded to encompass her total recovery rather

than only the Norgasco stock.       Celmer’s own e-mails, quoted at length above and in the

dissenting opinion, at most establish that Celmer believed, several years after the fact, that a

second written agreement had been signed. There is no statement or acknowledgement that

Celmer ever agreed, either orally or in writing, to pay McGarry “50 percent of everything” rather

than 50 percent of the Norgasco stock. In contrast, there are several references in her e-mails to

her willingness to pay McGarry $200 per hour plus expenses. But the e-mails do not contain any

unequivocal reference to an expanded contingency fee.           Consequently, on this record, we

conclude that the jury could not form “a firm belief or conviction” that Celmer agreed in writing

to pay McGarry an expanded contingency fee. See id. at 921–22.

               d. Conclusion

       We conclude that the evidence was legally insufficient to support the jury’s finding, in

response to Question 2, that McGarry and Celmer intended to be bound by an agreement for

McGarry to receive a contingent fee equal to 50% of Celmer’s total recovery, plus an hourly fee

equal to $200 per hour for his services, plus reimbursement of expenses. We sustain Celmer’s

first issue. Because we have sustained Celmer’s first issue, we need not consider her second

issue regarding the factual sufficiency of the evidence to support the jury’s verdict.

B. DAMAGES

       In her third issue, Celmer contends that the trial court’s judgment awards excessive

damages unsupported by the evidence.         She argues that because there was no enforceable

contingency fee contract, McGarry’s damages should be limited to the jury’s award of quantum

meruit damages.      Celmer also argues in the alternative that the trial court’s judgment

                                               –17–
“improperly enforces an unconscionable agreement.” She contends that McGarry’s fees “should

be forfeited for multiple breaches of fiduciary duty.” Celmer also complains that the trial court

erred by calculating McGarry’s damages based on Celmer’s gross recovery, rather than a net

recovery that subtracted the expenses found by the jury. 8

           1. Excessiveness of Damages for Claimed Breach of Second Agreement

           Because we have concluded that the evidence was legally insufficient to support the

jury’s finding that there was a new contract in 2004, we also conclude that there is no evidence

to support the jury’s award of damages for breach of that contract in response to Question 6 of

the jury charge. See, e.g., Hall v. Hubco, Inc., 292 S.W.3d 22, 28 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied) (where court of appeals concluded there was no contract as matter of

law, jury’s damages award for breach of the alleged contract was stricken from judgment). As a

result, we need not consider Celmer’s arguments about the excessiveness of the damages in

response to Question 6, or the excessiveness of the damages awarded in the judgment after the

trial court’s suggestion of remittitur of a portion of the damages awarded by the jury in response

to Question 6.

           2. Fee Forfeiture

           Celmer argues that any fee should be forfeited because McGarry breached his fiduciary

duty or because the agreement was unconscionable. Although the jury was not asked any

questions about unconscionability or breach of fiduciary duty, the trial judge suggested a

remittitur of a portion of the jury’s damage award after a discussion of unconscionability and

breach of fiduciary duty at the post-trial hearing on McGarry’s motion for judgment. At the

hearing, the trial court noted that “this second agreement [the 2004 agreement found by the jury]


     8
         In light of our disposition of the previous issue, we do not consider this complaint further, as it is relevant only to calculation of a
contingency fee award.



                                                                    –18–
was entered into either during or at least after the existence of an attorney-client relationship

between Mr. McGarry and Ms. Celmer.” The trial court then entered judgment on the jury’s

verdict subject to a suggestion of remittitur “sufficient to reduce the total actual damages to an

amount equal to one half of the amount of the interpleader.” The trial court stated that “the basis

for the remittitur is the Court’s conclusion that any fee in excess of one half of the total recovery

would be unconscionable; and that the burden on that issue was on Mr. McGarry, and that he has

waived his right to have the jury make that determination.” 9 Consequently, the trial court

determined that the fee in excess of one-half of the total recovery was unconscionable, but

impliedly concluded that forfeiture of the entire fee was not appropriate.

                      a. Standards of Review: Fee Forfeiture and Unconscionability

           We review a trial court’s fee forfeiture determination under an abuse of discretion

standard. Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 339 (Tex. App.—Fort Worth

2003, pet. denied).              A trial court does not abuse its discretion unless it acts arbitrarily or

unreasonably, without reference to any guiding rules or principles. Id. Legal and factual

sufficiency are relevant factors to be considered in assessing whether the trial court abused its

discretion. Id. An abuse of discretion does not occur, however, where the trial court bases its

decisions on conflicting evidence, as long as some evidence reasonably supports the trial court’s

decision. Id. (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002)).

           A determination of unconscionability involves both questions of law and questions of

fact. See Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 561–62 (Tex. 2006) (whether

particular fee amount or contingency percentage charged by attorney is unconscionable under all

relevant circumstances of the representation is an issue for the factfinder; but whether a contract,

     9
         In making these determinations, the trial court necessarily disregarded the jury’s answer to Question 3, in which the jury found that there
was no attorney-client relationship between McGarry and Celmer at the time they entered into the alleged second agreement. We agree with the
trial court.



                                                                      –19–
including a fee agreement between attorney and client, is contrary to public policy and

unconscionable at the time it is formed is a question of law); Pony Express Courier Corp. v.

Morris, 921 S.W.2d 817, 820 (Tex. App.—San Antonio 1996, no writ) (“procedural”

unconscionability focuses on “the facts surrounding the bargaining process,” while “substantive”

unconscionability “is concerned with the fairness of the resulting agreement”). We review the

trial court’s decision regarding unconscionability for an abuse of discretion. Id. In applying this

standard, we defer to the trial court’s factual determinations while reviewing its legal conclusions

de novo. Id.

       A trial court may properly disregard a jury’s finding of fact where the evidence

supporting the finding is legally insufficient. Bufkin II, 259 S.W.3d at 353. Evidence is legally

insufficient where (1) there is a complete lack of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence

conclusively establishes the opposite of a vital fact. Id.

               b. Applicable Law: Fee Forfeiture

       Whether a particular fee amount or contingency percentage charged by the attorney is

unconscionable under all relevant circumstances of the representation is an issue for the

factfinder. Hoover Slovacek LLP, 206 S.W.3d at 561–62. On the other hand, whether a contract,

including a fee agreement between attorney and client, is contrary to public policy and

unconscionable at the time it is formed is a question of law. Id. A fee is unconscionable under

the disciplinary rules “if a competent lawyer could not form a reasonable belief that the fee is

reasonable.” D.R. 1.04(a). “Contracting for a contingent fee in combination with an hourly fee

does not in and of itself violate DR 1.04.” Tex. Comm. on Prof’l Ethics, Op. 518, 59 TEX. B.J.




                                                –20–
795, 796 (1996). But “the total fee to be paid under such arrangement” must be “reasonable,

considering all of the factors set out in DR 1.04.” Id.

       Because a lawyer’s fiduciary duty to a client covers contract negotiations between them,

such contracts are closely scrutinized. Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden,

P.C., 352 S.W.3d 445, 450 (Tex. 2011). A presumption of unfairness or invalidity attaches to

these contracts because the relationship between attorney and client is fiduciary in nature. Keck,

Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 699 (Tex. 2000).

The burden is on the attorney to establish that the contract is fair and reasonable. Id. The

presumption does not arise if the attorney-client relationship has been severed before the

agreement is made. Id. at 699 n.3.

       Lawyers have a duty, at the outset of the representation, to “inform a client of the basis or

rate of the fee” and “the contract’s implications for the client.” Hoover Slovacek LLP, 206

S.W.3d at 565. The decision whether to forfeit an attorney’s fee is initially that of the trial court.

Wythe II Corp. v. Stone, 342 S.W.3d 96, 105 (Tex. App.—Beaumont 2011, pet. denied) (citing

Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999)), cert. denied, 132 S. Ct. 1150 (2012). The

trial court’s primary consideration is “whether forfeiture is necessary to satisfy the public’s

interest in protecting the attorney-client relationship.” Id. (quoting Burrow, 997 S.W.2d at 246).

Forfeiture may not be required if the trial court may reasonably conclude that the actions of the

attorney did not affect the value of the lawyer’s work for the client or harm the client. See id.

               c. Application of Law to Facts

       Although the First Agreement provided that McGarry would not represent Celmer in the

trial court if he was successful in obtaining a new trial, it also provided that “Attorney . . . will

assist Client in obtaining new trial counsel.” The written agreement under which McGarry was

representing Celmer (that is, the First Agreement) explicitly provided for the very services

                                                –21–
McGarry was rendering through the e-mails exchanged in 2004.                                                 The trial court correctly

concluded that the 2004 negotiations were undertaken during the existence of an attorney-client

relationship. Consequently, a presumption of unfairness arose and McGarry bore the burden to

establish that the agreement was fair and reasonable. See Keck, 20 S.W.3d at 699.

           We also agree with the trial court that Celmer pleaded unconscionability and breach of

fiduciary duty as defenses to McGarry’s claims, and we reject McGarry’s other arguments that

Celmer failed to preserve error. 10                       Although McGarry correctly states that Celmer’s third

amended cross-claim containing an affirmative claim for damages for breach of fiduciary duty

was struck by the trial court (as we discuss in response to Celmer’s fifth issue below), her answer

to McGarry’s first amended cross-claim, the operative pleading at trial, included this defense.

Celmer also pleaded that “the attorney’s fees that McGarry seeks to recover are excessive,

unreasonable and unconscionable and should therefore be denied in whole or in part.” In

addition, Celmer’s motion for new trial complained that the fee awarded in the trial court’s

judgment was unconscionable; that the jury’s answer to Question 7 (the predicate for a quantum

meruit finding) was “against the great weight and preponderance of the evidence and is

manifestly unjust” and “contrary to law”; and that the judgment improperly included interest and

failed to give credit for expense amounts Celmer had paid, among other complaints.

           The trial court found the alleged second agreement to be unconscionable and

unreasonable to the extent that it required Celmer to pay more than 50% of her total recovery.

The trial court also impliedly concluded that forfeiture of McGarry’s entire fee was not

warranted. These findings were supported by the evidence at trial. McGarry’s expert witness


10
    McGarry claims that Celmer has waived any complaint of breach of fiduciary duty to support a forfeiture of fees by failing to plead, offer
evidence, or request a jury finding on the issue. He also contends that if unconscionability is a question of fact, Celmer waived any complaint by
failing to object to the jury charge or submit a jury question, and that if unconscionability is a question of law, any error was cured by the trial
court’s remittitur.




                                                                      –22–
testified that a contract that called for a 40% contingency fee at trial, a 45% fee for appeal to the

court of appeals, and a 50% fee for appeal to the supreme court was reasonable and “fairly

standard.” McGarry also testified that the $200 hourly fee he charged Celmer was less than his

usual hourly fee and was reasonable. But there was no evidence that a combined contingency

fee of 50% plus an hourly rate of $200 was fair and reasonable or was in accordance with any

written agreement between the parties. 11 The evidence also showed that McGarry’s failure to

include a request for prejudgment interest in Celmer’s pleadings was one basis cited on appeal

for a loss to Celmer of $124,659.12 in prejudgment interest that was awarded to her. See Bufkin

II, 259 S.W.3d at 356–58.

          On the other hand, there was evidence that McGarry performed valuable services for

Celmer, obtaining a reversal of the original divorce decree, advancing expenses for appeal and

retrial, obtaining an award of damages for Celmer on retrial, and obtaining affirmance of the

award of damages in his representation of Celmer on appeal. See, e.g., id. at 347–56; Bufkin I,

2003 WL 22725522 at *1–6. We agree with the trial court that although McGarry failed to

establish the reasonableness of the fee he sought under the alleged second agreement, forfeiture

of all fees was not warranted. See Wythe II Corp., 342 S.W.3d at 105. We overrule this portion

of Celmer’s third issue.

          3. Quantum Meruit Award

          We also consider, in light of our conclusion that there was insufficient evidence to

support the jury’s finding of a second agreement, whether we may render judgment for McGarry

based on the jury’s quantum meruit findings in response to Question 8. Celmer requested this




     11
         The jury’s answer to Question 6 awarded McGarry almost 70% of the $367,095.62 Celmer recovered in the trial of her divorce, net of
expenses, and was more than twice the amount of the hourly fees and expenses for which McGarry offered evidence at trial.



                                                                 –23–
relief in the alternative in her motion to disregard the jury findings and motion for remittitur. See

Horrocks, 852 S.W.2d at 499.

       Quantum meruit is an equitable remedy that is based upon the promise implied by law to

pay for beneficial services rendered and knowingly accepted. In re Kellogg Brown & Root, Inc.,

166 S.W.3d 732, 740 (Tex. 2005) (quoting Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc.,

787 S.W.2d 942, 944 (Tex. 1990), and Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988)). A

party to a contract may seek alternative relief under both contract and quantum meruit theories.

Id. A party generally cannot recover under quantum meruit, however, when there is a valid

contract covering the services or materials furnished. Id. (citing Murray v. Crest Constr., Inc.,

900 S.W.2d 342, 345 (Tex. 1995), and Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675 (Tex.

1964)). Conversely, where a written contract is unenforceable, a plaintiff is not barred from

recovery in quantum meruit. Angroson, Inc. v. Indep. Commc’ns, Inc., 711 S.W.2d 268, 272

(Tex. App.—Dallas 1986, writ ref’d n.r.e.).

               a. For First Appeal

       We first consider the jury’s award in quantum meruit for the reasonable value for services

rendered and expenses advanced through the first appeal. Question 1 of the jury charge asked

whether Celmer failed to comply with the parties’ 2001 written agreement. The jury was

instructed that “[t]he Court has determined as a matter of law that the 2001 Agreement was valid

and enforceable, and that McGarry had complied fully with the 2001 Agreement upon the

completion of the first appeal.” The jury answered that Celmer failed to comply with the

agreement, and Celmer has not challenged this finding on appeal. It is also undisputed that

Celmer was obligated to pay expenses under the 2001 agreement, and that she paid only $1,000

of the $3,252.42 in expenses incurred. In response to Questions 7 and 8, the jury found that




                                               –24–
McGarry performed compensable work of $60,000 in the first appeal, and advanced $2,252.42 in

expenses in the first appeal.

       But because there was a written contract between the parties regarding McGarry’s

services through the first appeal, recovery in quantum meruit for these services is not proper. In

re Kellogg Brown & Root, Inc., 166 S.W.3d at 740. McGarry argues, however, that because

Celmer’s breach is undisputed, he may avoid that contract and recover the reasonable value of

his services in quantum meruit, citing Howell v. Kelly, 534 S.W.2d 737, 739 (Tex. Civ. App.—

Houston [1st Dist.] 1976, no writ), and Willis & Conner v. Turner, 25 S.W.2d 642, 648 (Tex.

Civ. App.—Waco 1930, writ dism’d w.o.j.). We disagree. In Howell and Willis & Conner,

quantum meruit recovery was permitted when the plaintiff had partially performed an express

contract but, because of the defendant’s breach, the plaintiff was prevented from completing the

contract.    See Howell, 534 S.W.2d at 738–39 (client discharged attorney before work

completed); Willis & Conner, 25 S.W.2d at 648–49 (same); see also Truly, 744 S.W.2d at 936

(recovery in quantum meruit allowed when plaintiff has partially performed an express contract,

but because of defendant’s breach, plaintiff is prevented from completing the contract; this is

exception to rule that plaintiff who seeks to recover reasonable value of services rendered is

permitted to recover in quantum meruit only when there is no express contract covering those

services).

       Here, there is no evidence or contention that Celmer prevented McGarry’s completion of

the First Agreement. McGarry represented Celmer through the entire appeal, up until the time he

contends the First Agreement ended by its terms, when he was “successful in obtaining a new

trial.” Celmer also points out that McGarry continued to rely on the First Agreement for

authority to sign releases on her behalf in 2009. An award of quantum meruit would contravene

the express terms of the parties’ agreement that McGarry would be paid 50% “of Client’s interest

                                              –25–
in the Norgasco stock or the proceeds or settlement thereof,” and that “[n]o contingent fee shall

be payable to Attorney if no recovery is received by Client in this matter.” See Truly, 744

S.W.2d at 936. However, McGarry proved and obtained a jury finding on Celmer’s breach of

the First Agreement, and the amount of damages resulting from that breach, that is, Celmer’s

failure to pay $2,252.42 in expenses, was undisputed. Although Celmer complains that McGarry

waived any claim for damages by failing to request a jury finding of damages based on her

breach, a jury question was not necessary where the amount of unpaid expenses was

conclusively established by the evidence. See Ritchie v. Rupe, 339 S.W.3d 275, 284 (Tex.

App.—Dallas 2011, pet. granted) (jury questions should not be submitted where facts in question

are conclusively established). Consequently, although McGarry may not recover a contingent

fee in quantum meruit for breach of the First Agreement, he may recover the $2,252.42 in

expenses established by the undisputed evidence for Celmer’s breach of the First Agreement.

              b. For Second Trial and Appeal

       We have concluded that no express contract existed as a matter of law for McGarry’s

services in the second trial and appeal. As a result, recovery of the reasonable value of his

services as found by the jury is proper. See Angroson, Inc., 811 S.W.2d at 272 (where written

contract unenforceable, plaintiff not barred from recovery in quantum meruit). McGarry may

also recover his trial and appellate attorney’s fees as provided in the judgment. See id. (party

may recover attorney’s fees for valid quantum meruit claim). Consequently, judgment for

McGarry is appropriate on the jury’s findings of the reasonable value of the work he performed

and the expenses he advanced in the second trial and appeal, in the amounts of $67,574.00 and

$23,016.14 respectively.

       In sum, we sustain Celmer’s third issue in part and overrule it in part. We reject

Celmer’s argument that McGarry should forfeit all fees because of his breaches of fiduciary

                                              –26–
duty, but sustain in part her contention that the trial court’s judgment awards excessive damages

unsupported by the evidence. We conclude that McGarry may recover the expenses established

by the undisputed evidence for Celmer’s breach of the First Agreement, as well as the amounts

found by the jury for the reasonable value of the work he performed and the expenses he

advanced for the second trial and appeal.

C. DIRECTED VERDICT

       In her fourth issue, Celmer complains the trial court erred by granting McGarry’s motion

for directed verdict on her claim for tortious interference. In her operative pleading, Celmer

alleged:

               The actions and conduct of McGarry in threatening to garnish the
               payment to be made by Bufkin to Celmer that allegedly resulted in
               the filing of an interpleader, the executing of releases that McGarry
               lacked authority to execute, the scheming and conspiring between
               McGarry, Bufkin and Bufkin’s attorney, Potter, which resulted in
               the payment of $367,095.62 into the registry of the 101st Judicial
               District Court constitutes tortuous interference with Celmer’s
               rights under the Second Decree to receive a payment of
               $367,095.62, the amount jointly calculated by McGarry and
               Bufkin’s attorney, Potter, to be the amount due on March 16, 2009.

       McGarry moved for directed verdict on this claim, on the grounds that “there are no

damages pled,” and “we find no basis in the law for such claim.” The trial court granted the

motion.

       1. Standard of Review

       The standard of review for a directed verdict is a legal sufficiency or “no evidence”

standard of review. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642 (Tex. App.—

Dallas 2012, pet. denied). We described this standard in our discussion of Celmer’s first issue.

       2. Applicable Law

       Celmer relies on COC Services, Ltd., v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex.

App.—Dallas 2004, pet. denied), for the elements of a cause of action for tortious interference
                                              –27–
with prospective relations.     In COC Services, we described the elements of the tort of

interference with a prospective relationship as (1) a reasonable probability that the parties would

have entered into a contractual relationship; (2) an “independently tortious or unlawful” act by

the defendant that prevented the relationship from occurring; (3) the defendant did such act with

a conscious desire to prevent the relationship from occurring or knew that the interference was

certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered

actual harm or damage as a result of the defendant’s interference. Id.

       3. Application of Law to Facts

       In Anderton v. Cawley, 378 S.W.3d 38, 59 (Tex. App.—Dallas 2012, no pet.), we

described the fourth element of a tortious interference claim as “actual harm or damages suffered

by the plaintiff as a result of the defendant’s interference, i.e., the defendant’s actions prevented

the relationship from occurring.” Id. (quoting Tex. Integrated Conveyor Sys., Inc. v. Innovative

Conveyor Concepts, Inc., 300 S.W.3d 348, 367 (Tex. App.—Dallas 2009, pet. denied)). Here,

no relationship was prevented from occurring that caused Celmer damage. Celmer argues that

she and Bufkin had “reached an agreement to settle the divorce judgment and agreed to a closing

date to exchange funds and execute releases on March 16, 2009.” She contends that Bufkin “was

under no obligation to voluntarily pay the judgment,” and could have required her to “pursue

post-judgment discovery and collection with uncertain results.” However, Bufkin paid the full

amount of the judgment into the registry of the court, and no contractual relationship was

prevented from occurring that caused Celmer damage. The court’s directed verdict on this issue

was proper. See Leick, 378 S.W.3d at 642. We decide Celmer’s fourth issue against her.

D. AMENDMENT OF PLEADINGS

       In her fifth issue, Celmer contends the trial court abused its discretion when it struck her

third amended cross-claim that asserted a claim for breach of fiduciary duty. Celmer included a

                                               –28–
claim for breach of fiduciary duty in an earlier pleading, but omitted it in her second amended

cross-claim. There is no scheduling order in the appellate record, but the trial court’s order

granting McGarry’s motion to strike Celmer’s third amended cross-claim recites that pursuant to

the scheduling order entered in the case, the deadline for filing amended pleadings asserting new

causes of action was January 29, 2010, and the deadline for completing discovery was March 1,

2010. Celmer’s third amended cross-claim was filed on March 19, 2010. At the time the cross-

claim was filed, trial was set for May 3, 2010. McGarry moved to strike the pleading on the

ground that it asserted new causes of action after the court-imposed pleading deadline. Celmer

responded that the causes of action for professional negligence and breach of fiduciary duty had

been omitted from her second amended pleading “to create a more positive environment for

settlement” prior to mediation. Celmer also argued that the pleading deadlines were extended to

March 26, 2010, when the court reset the submission date for McGarry’s pending motion for

summary judgment.

        1. Standard of Review

        We review a trial court’s enforcement of a scheduling order for abuse of discretion.

G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542 (Tex. App.—Dallas 2005,

no pet.).

        2. Applicable Law

        Rule 63 of the Texas Rules of Civil Procedure governs amendments to pleadings before

trial. See TEX. R. CIV. P. 63. Leave of court must be obtained to file a pleading after a date set

by the trial court in a pretrial order. Id. Leave “shall be granted” by the trial court “unless there

is a showing that such filing will operate as a surprise to the opposing party.” Id. A trial court

has no discretion to refuse an amended pleading unless (1) the opposing party presents evidence

of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense, and is

                                               –29–
thus prejudicial on its face, and the opposing party objects to the amendment. Halmos v.

Bombardier Aerospace Corp., 314 S.W.3d 606, 622 (Tex. App.—Dallas 2010, no pet.). As we

explained in Halmos,

               An amendment that is prejudicial on its face has three defining
               characteristics: (1) it asserts a new substantive matter that reshapes
               the nature of the trial itself; (2) the opposing party could not have
               anticipated the new matter in light of the development of the case
               up to the time the amendment was requested; and (3) the
               amendment would detrimentally affect the opposing party’s
               presentation of its case.

Id. at 623.

        3. Application of Law to Facts

        In his motion to strike, McGarry complained that Celmer’s amendment asserted new

causes of action. At the hearing on McGarry’s motion, the trial court concluded “that the attempt

to reinsert additional causes of action supported by the affidavits of late-designated experts is

prejudicial” to McGarry. The trial court also noted that even if Celmer had deleted the causes of

action in order to facilitate mediation, she had known for several months prior to the date she

amended her pleading that mediation had been unsuccessful and the case was not going to settle.

The court denied all motions for summary judgment on April 9, 2010, and granted the motion to

strike the amended pleading on April 12, 2010. The case proceeded to trial as scheduled in May.

        We conclude the trial court did not abuse its discretion. After Celmer amended her

pleading to omit the causes of action for professional negligence and breach of fiduciary duty,

the issues to be tried all arose out of McGarry’s claim that the parties had entered into a revised

contingency fee contract. The trial court could have concluded that Celmer’s reasserted claims

would reshape the nature of the trial from contract to tort and would detrimentally affect

McGarry’s presentation of his case at trial. See Halmos, 314 S.W.3d at 623. Further, Celmer

had not conducted any discovery, so McGarry could not have anticipated from the development


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of the case that Celmer intended to pursue these claims after she omitted them from her pleading.

See id. We decide Celmer’s fifth issue against her.

                                        IV. CONCLUSION

       Because we conclude that the evidence was legally insufficient to support the jury’s

finding of an agreement between the parties under which McGarry would receive a contingency

fee of 50% of Celmer’s total recovery, plus $200 per hour for his services, plus expenses, we

sustain Celmer’s first issue. We overrule the portion of Celmer’s third issue requesting forfeiture

of all fees to McGarry, and determine that McGarry may recover damages for expenses

advanced in the first appeal and damages in quantum meruit as found by the jury for

compensable work performed and expenses advanced in the second trial and appeal.                We

conclude that the trial court did not err in dismissing Celmer’s claim for tortious interference, or

by striking her third amended petition, and we overrule her fourth and fifth issues. We affirm the

trial court’s judgment in part, reverse in part, and render judgment for McGarry in the amount of

$92,842.56, plus prejudgment interest. We affirm the awards of attorney’s fees, costs, and

postjudgment interest in the trial court’s judgment.




                                                       /Elizabeth Lang-Miers/
                                                       ELIZABETH LANG-MIERS
                                                       JUSTICE



FitzGerald, J., dissenting

101133F.P05




                                               –31–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ELIZABETH W. CELMER, Appellant                       On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas
No. 05-10-01133-CV         V.                        Trial Court Cause No. DC-09-3023-E.
                                                     Opinion delivered by Justice Lang-Miers.
CHARLES MCGARRY, Appellee                            Justices O'Neill and FitzGerald participating.

         In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED and RENDERED in part. We REVERSE that portion of
the trial court's judgment awarding appellee Charles McGarry the sum of $208,816.37 as actual
damages and $13,072.48 as prejudgment interest, and RENDER judgment for appellee Charles
McGarry in the amount of $92,842.56 and prejudgment interest in an amount to be determined
by the trial court. In all other respects, the trial court's judgment is AFFIRMED. We REMAND
this cause to the trial court for the determination of prejudgment and postjudgment interest.

       It is ORDERED that each party bear its own costs of this appeal.



Judgment entered this 8th day of August, 2013.




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE




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