Motion for Rehearing Granted; Motion for En Banc Reconsideration Denied
as Moot; Majority and Dissenting Opinions filed April 25, 2013 Withdrawn;
Affirmed and Substitute Memorandum Opinion on Rehearing filed July 25,
2013.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-10-01127-CV


             NEW DELIVERANCE CHURCH, INC., Appellant
                                     V.

   ADAM MILLER AND HOUSSIERE, DURANT & HOUSSIERE, LLP,
                        Appellees


                  On Appeal from the 189th District Court
                           Harris County, Texas
                    Trial Court Cause No. 2004-70043A


    SUBSTITUTE MEMORANDUM OPINION
             ON REHEARING
      We issued our original Majority and Dissenting Opinions in this case on
April 25, 2013. Thereafter, Adam Miller and Houssiere, Durant & Houssiere, LLP
(“Houssiere”) (collectively, “appellees”) filed a motion for rehearing and a motion
for en banc reconsideration. New Deliverance Church, Inc. (“the Church”) filed a
response to these motions. We grant appellees’ motion for rehearing, withdraw
our previous Majority and Dissenting Opinions, vacate our previous judgment, and
issue this Substitute Memorandum Opinion on Rehearing and a new judgment,
affirming the trial court’s summary judgment in favor of appellees. Appellees’
motion for en banc reconsideration is denied as moot.

                                    I. BACKGROUND

       In 2004, an explosion occurred at a chemical plant owned by HRD
Corporation d/b/a Marcus Oil & Chemical (“HRD”). Numerous litigants filed suit
against HRD in cause number 2004-70043 (“the Original Suit”), including the
Church and its pastor, Janice Caslin. As discussed in more detail below, the parties
dispute whether appellees (who are an attorney and a law firm)1 and the Church
entered into an attorney-client agreement relative to this litigation.

       In February 2007, Caslin and HRD attended mediation.                     During the
mediation, Caslin and HRD signed a handwritten “Rule 11 & Settlement
Agreement” (“the Rule 11 Agreement”) whereby Caslin ostensibly settled the
Church’s claims against HRD for $300,000. Thereafter, the Church filed a motion
to vacate the Rule 11 Agreement, claiming the agreement was invalid for several
reasons, including appellees’ deficient representation. Appellees filed a motion to
withdraw as counsel for the Church, which the trial court granted.

       HRD filed a motion for summary judgment in which it challenged the
Church’s grounds for vacating the Rule 11 Agreement and argued the agreement

       1
        According to appellees, the Church initially signed a retention agreement with Miller,
who then referred the Church to Houssiere. For simplicity, we will use the term “appellees,”
even when an act was performed by Miller or Houssiere individually.

                                              2
should be enforced.     In May 2007, the trial court granted HRD’s motion.
Appellees then filed a traditional motion for summary judgment, arguing that,
pursuant to their engagement agreement with the Church, the Church owed them a
40% contingency fee (as well as other costs and expenses) of the $300,000
settlement enforced by the trial court in its May 2007 summary judgment. The
Church filed a response to appellees’ motion for summary judgment, a motion to
strike appellees’ plea in intervention, and an original answer to appellees’ plea in
intervention. Appellees filed a motion to strike all three of the Church’s pleadings,
which the trial court granted. The trial court also granted appellees’ motion for
summary judgment, ordering the Church to pay appellees $139,540.80 in
attorney’s fees and expenses.

      Appellees filed a motion to sever claims between them and the Church from
the Original Suit. The trial court granted appellees’ motion and transferred the
claims to cause number 2004-70043A (“the Severed Suit”). HRD is not a party to
the Severed Suit. The severance effected a final judgment in the Severed Suit.

                            II. SUMMARY JUDGMENT

      In three issues, the Church challenges the summary judgments entered in
favor of HRD and appellees.

A. Standard of Review

      We review a summary judgment de novo.             Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).          A party moving for traditional
summary judgment must establish there is no genuine issue of material fact and it
is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). If the
movant establishes a right to summary judgment, the burden shifts to the non-


                                         3
movant to present evidence raising a material fact issue. See M.D. Anderson Hosp.
& Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

B. Issues Pertaining to HRD

       In its first and second issues, the Church contends the trial court erred by
granting HRD’s traditional and no-evidence motion for summary judgment,
concluding the Rule 11 Agreement was valid and enforceable.           However, as
explained above, HRD is not a party to the Severed Suit.         Furthermore, the
summary judgment in favor of HRD remains an interlocutory order in the Original
Suit. Accordingly, we may not consider the propriety of the trial court’s summary
judgment in favor of HRD. We overrule the Church’s first and second issues.

C. Issue Pertaining to Appellees

       In its third issue, the Church contends the trial court erred by granting
summary judgment in favor of appellees on their claim against the Church for
attorney’s fees. In their motion for summary judgment, appellees argued the
Church owed them, as a contingency fee, 40% of the settlement amount approved
and enforced by the trial court when it granted HRD’s motion for summary
judgment.

       Appellees’ claim for contingency fees is based on a document entitled,
“Power of Attorney and Engagement Agreement” (“the Engagement Agreement”),
which appellees attached to their plea in intervention and motion for summary
judgment. The Engagement Agreement contains a provision affording appellees a
contingency fee of 40% of any settlement entered into prior to a final judgment
rendered after trial.

       The Church contends Caslin signed the Engagement Agreement solely in her

                                         4
individual capacity. Appellees respond that the Church is unambiguously a party
to the Engagement Agreement or, alternatively, that the Church ratified the
Engagement Agreement.

       In our Majority Opinion on original submission, we held appellees did not
raise a ratification ground in their motion for summary judgment.                     However,
appellees have supplemented the clerk’s record with a supplemental motion for
summary judgment in which they raised ratification.                   The Church does not
challenge ratification on appeal.          Accordingly, we must affirm the summary
judgment. See Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.—Houston [14th
Dist.] 1998, no pet.). Regardless, appellees presented evidence establishing the
Church retained benefits of the Engagement Agreement, namely, appellees’ legal
services, including taking numerous depositions and hiring expert witnesses. See
Willis v. Donnelly, 199 S.W.3d 262, 273 (Tex. 2006) (“Generally, ratification is a
doctrine of agency law, and allows a principal to be bound by an agent’s
unauthorized contract in circumstances where the principal becomes aware of the
contract and retains benefits under it.”). We overrule the Church’s third issue.2

       We affirm the trial court’s judgment.



                                             /s/       John Donovan
                                                       Justice


Panel consists of Justices Boyce, McCally, and Donovan.


       2
         The Church also argues the Engagement Agreement is not binding because it was
undated. The Church cites no authority supporting the proposition that a contract is invalid if it
is undated. Moreover, the evidence shows appellees performed legal services on behalf of the
Church, and which the Church accepted, prior to execution of the Rule 11 Agreement.

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