Josephine Douglas-Peters appeals the trial court's final judgment in favor of Forest Law, P.C. d/b/a Cho, Choe & Holen, P.C., as assignee of Choe, Holen, Yoo & Burchfiel, P.C., on its claim against Douglas-Peters for breach of a legal representation retainer agreement and awarding it $90,453.21 in damages. Douglas-Peters raises four issues on appeal, arguing: (1) the evidence is legally and factually insufficient to support the trial court's finding of fact and conclusion of law on her affirmative defense of limitations; (2) the trial court erred when it concluded that (a) Forest Law had standing, (b) Forest Law had capacity, and (c) there was no defect of parties; (3) the trial court erred when it concluded the contingent-fee provision of the retainer agreement was enforceable; and (4) (a) the trial court erred when it denied her motion for summary judgment on her counterclaims for unjust enrichment and conversion and (b) the evidence is legally and factually insufficient to support the trial court's finding of fact that the $80,000 Texas Kore Law retrieved from the registry of the court should be credited against Forest Law's actual damages. We conclude the trial court did not err in its holdings as to standing, capacity, defect of parties, or enforceability of the contingent-fee provision of the retainer agreement, the evidence is legally and factually sufficient to support the trial court's judgment, and Douglas-Peters may not appeal the trial court's denial of her pro se motion for summary judgment. The trial court's final judgment is affirmed.

In her notice of appeal and brief, Douglas-Peters refers to herself as "Josephine Douglas-Peters (now Douglas)." However the style of the case and the trial court's final judgment refer to her as "Josephine Douglas-Peters."

The style of the case refers to the law firm only as Cho, Choe & Holen, P.C. However, the trial court's findings of fact state that Cho, Choe & Holen, P.C., is the assumed name of Forest Law, P.C.

Douglas-Peters signed a retainer agreement with Texas Kore Law, P.C. d/b/a Choe, Holen, Yoo & Burchfiel, P.C. During the law firm's representation of Douglas-Peters, Yoo and Burchfiel stopped working with the law firm. As a result, the law firm changed its assumed name and became Texas Kore Law, P.C. d/b/a Choe Holen, P.C. For ease of reference, we will generally refer to that law firm as "Texas Kore Law." After Douglas-Peters terminated the attorney-client relationship and Texas Kore Law withdrew, Texas Kore Law executed an asset purchase agreement with and assigned its claims against Douglas-Peters to Forest Law, P.C. d/b/a Cho, Choe & Holen. For ease of reference, we will generally refer to Forest Law, P.C. d/b/a Cho, Choe & Holen as "Forest Law."

Although Douglas-Peters refers to her issue as relating to her "affirmative defense" of defect of parties the substance of her argument on appeal addresses standing, capacity, and defect of parties.

I. FACTUAL AND PROCEDURAL CONTEXT

On April 18, 2008, Texas Kore Law, P.C., filed an assumed name certificate with the Dallas County Clerk, stating that it intended to conduct business under the name "Choe, Holen, Yoo & Burchfiel, P.C."

In August 2008, Douglas-Peters filed her original pro se petition against C.F. & H. Corporation d/b/a South Dallas Nursing Home, Dr. Leona Hawkins, Juliette Wesley, and Charles W. Smith for retaliatory discharge under section 242.133 of the Texas Health and Safety Code. On September 12, 2008, Douglas-Peters signed a retainer agreement with Michael Burchfiel and the law firm of "Choe, Holen, Yoo & Burchfield" to represent her in the underlying case against her former employer. "[Texas Kore Law's] rights under the [retainer agreement] were not conditioned upon Burchfiel's continued involvement in the case." The retainer agreement contained a contingent-fee provision, stating, in part, that "[t]hirty days before this case is first set for trial, whether or not the case actually goes to trial on that date or is reset, [Douglas-Peters] agrees to pay [Texas Kore Law and Burchfiel] forty percent (40.00%) of the total recovery."

This quote is from the trial court's finding of fact no. 6.

On June 2, 2009, Texas Kore Law filed a motion for partial summary judgment on Douglas-Peters' behalf. The trial court granted that motion.

After Yoo and Burchfiel stopped working with the firm, Texas Kore Law filed an assumed name certificate with the Dallas County Clerk on June 10, 2009, stating that it intended to conduct business under the name "Choe Holen, P.C." Also, on June 12, 2009, Texas Kore Law filed an assumed name certificate with the Texas Secretary of State, stating that the assumed name under which the business or professional service is to be conducted or rendered is "Choe Holen, P.C."

On October 19, 2009, there was a bench trial on the remaining issue of damages. At the trial, Douglas-Peters appeared in person and through her attorney, but South Dallas Nursing Home, Hawkins, Wesley, and Smith did not appear. On October 27, 2009, the trial court signed a final judgment awarding Douglas-Peters $197,714 for economic damages, $50,000 for mental anguish damages, $75,000 for exemplary damages, and that South Dallas Nursing Home, Hawkins, Wesley, and Smith pay $80,000 for attorneys' fees Douglas-Peters incurred through trial, plus post-judgment interest. Afterward, Douglas-Peters, through her attorneys, began efforts to collect on the final judgment, including having certain real property belonging to the judgment debtors sold at auction.

On January 1, 2010, Douglas-Peters sent Texas Kore Law a letter asking that it withdraw from representing her and, requesting that in lieu of the contingent fee, it accept, according to the letter, "reasonable payment from the recovery for hours actually worked on the case . . . along [with] any other fees and cost[s] paid." On January 19, 2010, Texas Kore Law sent Douglas-Peters a letter advising that it had filed a motion to withdraw based on her termination of the attorney-client relationship and, according to that letter, was "treating [her] . . . request to reduce fees as a dispute of the attorneys['] fees and expenses due under the retainer agreement." On January 29, 2010, the trial court granted Texas Kore Law's motion to withdraw as attorney of record.

"[O]n February 2, 2010, [the] [a]ssistant [d]eputy [c]onstable [] conducted an auction and sold [South Dallas Nursing Home, Hawkins, Wesley, and Smith's] property for $412,000 to satisfy the judgment with interest of $411,872.19." Andrew Holen attended the auction. After the sale was completed, at the site of the auction, Holen approached Douglas-Peters and requested that she tender the contingent fee plus expenses. Douglas-Peters refused. "The portion of the judgment awarded to [Douglas-Peters] as attorneys' fees, [i.e., $80,000,] was [deposited] into the Court's registry due to the dispute between [Texas Kore Law] and Douglas-Peters over contractual attorneys' fees." Also, as a result of Douglas-Peters' refusal to pay the contingent fee, that same day, Texas Kore Law filed its original petition in intervention in the underlying suit, seeking to enforce the retainer agreement and recover attorneys' fees of "approximately $164,000" plus expenses of $6,000. Then, Texas Kore Law filed a motion for summary judgment on its petition in intervention, which the trial court granted on May 5, 2010. Shortly afterward, the trial court ordered the $80,000 held in the registry of the court to be released to Texas Kore Law as partial satisfaction of the judgment. Douglas-Peters' appealed the trial court's decision. On appeal, this Court vacated the trial court's May 5, 2010 final summary judgment because the petition in intervention was filed after the trial court's plenary power had expired and dismissed the appeal. See Douglas-Peters v. Choe, Holen, Yoo & Burchfiel, P.C., No. 05-10-00208-CV, 2010 WL 4946612, at *1 (Tex. App.—Dallas Dec. 7, 2010, no pet.) (mem. op.).

This quote is from the trial court's finding of fact no. 8.

On October 15, 2012, Texas Kore Law, P.C. d/b/a Choe Holen, P.C., executed an asset purchase agreement with Forest Law, P.C. d/b/a Cho, Choe & Holen. The asset purchase agreement stated it included an assignment of "[a]ll of [Texas Kore Law's] right, title and interest to any claims it may have against [Texas Kore Law's] former client, [] Douglas-Peters, including claims for attorneys['] fees and costs associated with [] Douglas-Peters in that case entitled Josephine Douglas-Peters v. C.F. & H. Corp. et al., Cause No. 0809621."

On February 3, 2014, Forest Law, as assignee of Texas Kore Law's claims, filed its original petition against Douglas-Peters, asserting a claim for breach of contract. Forest Law claimed that pursuant to the retainer agreement it was owed $164,800, 40% of the amount recovered pursuant to the final judgment in favor of Douglas-Peters on her claims against South Dallas Nursing Home, Hawkins, Wesley, and Smith. In her first amended original answer, Douglas-Peters generally denied the claim and asserted the affirmative defenses of collateral estoppel, res judicata, and that the suit was barred by the statute of limitations. Douglas-Peters also stated she was filing a "verified denial" on the basis that the mediation requirement contained in the retainer agreement had not been satisfied and the consideration for the retainer agreement had failed. See TEX. R. CIV. P. 93(9). However, Douglas-Peters' first amended original answer was not verified by affidavit. See TEX. R. CIV. P. 93. Additionally, Douglas-Peters filed a counterclaim against Forest Law for conversion and sought attorneys' fees. Forest Law answered, generally denying the claim, and asserted the affirmative defense that the claim was barred by the statute of limitations.

Douglas-Peters initially appeared through counsel, but at some point also began filing pleadings pro se. The trial court granted her counsel's motion to withdraw on April 8, 2015, and after that Douglas-Peters proceeded pro se.

We note that Douglas-Peters' original answer was verified by affidavit.

Then, on March 20, 2014, Douglas-Peters filed third-party claims against Choe, individually, Holen, individually, and Burchfiel, individually, for breach of contract, negligence, conversion, and malicious prosecution, and sought attorneys' fees. Choe and Holen filed their original answer to the third-party claims, generally denying the allegations, and asserted the affirmative defense that all of the third-party claims against them were barred by the statute of limitations. Burchfiel also filed an answer to the third-party claims, generally denying the allegations, and asserted several affirmative defenses.

On October 15, 2014, Douglas-Peters filed a motion for summary judgment seeking traditional summary judgment on her affirmative defense that Forest Law's breach of contract claim was barred by the statute of limitations.

On October 29, 2014, Forest Law, Holen, and Choe filed a motion for traditional and no-evidence summary judgment on Forest Law's claim for breach of contract, and Douglas-Peters' conversion counterclaim against Forest Law and third-party claims against Holen and Choe for conversion.

In addition to the motion for summary judgment filed by her attorney, on December 12, 2014, Douglas-Peters filed a pro se motion for summary judgment. Based on the argument in the body of her pro se motion for summary judgment, we liberally construe Douglas-Peters to have: (1) challenged Forest Law's standing; (2) challenged Forest Law's capacity as assignee of Texas Kore Law's claims against her; (3) claimed there was a defect of parties; (4) sought summary judgment on Texas Kore Law's breach-of-contract claim; (5) sought summary judgment on her conversion counterclaim against Forest Law; (6) sought summary judgment on her pleaded affirmative defenses to Forest Law's breach-of-contract claim and on the basis that the contingent-fee provision in the retainer agreement was unenforceable because it was unconscionable; and (7) sought summary judgment on her third-party claims against Holen and Choe for breach of contract, negligence, conversion, and malicious prosecution. On December 22, 2014, the trial court denied Douglas-Peters' motion for summary judgment.

Although Forest Law argues that the trial court did not consider or rely on Douglas-Peters' pro se motion for summary judgment, the order does not specify whether it is disposing of Douglas-Peters' October 15, 2014 motion for summary judgment, December 12, 2014 pro se motion for summary judgment, or both. For purposes of this appeal, we assume that the trial court's December 22, 2014 order denied both motions for summary judgment.

Also, on December 22, 2014, through her attorney, Douglas-Peters filed her first amended third-party petition against Holen, individually, and Choe, individually, adding third-party claims for money had and received, and unjust enrichment. She dropped her third-party claims against Burchfiel. On January 6, 2015, Forest Law filed its second motion for traditional and no-evidence summary judgment, addressing, in part, Douglas-Peters' additional claims of money had and received, and unjust enrichment. Douglas-Peters responded. On February 5, 2015, the trial court granted Forest Law's second motion for traditional and no-evidence summary judgment, ordering that Douglas-Peters take nothing on her (1) third-party claims against Holen and Choe for money had and received, and unjust enrichment, and (2) conversion counterclaim against Forest Law.

On August 25, 2015, the case was tried to the court. Douglas-Peters appeared pro se at trial. On September 8, 2015, the trial court signed its written findings of fact and conclusions of law. Then, on September 27, 2015, the trial court signed its final judgment awarding Forest Law $90,453.21 in damages on its claim for breach of contract and attorneys' fees. On October 21, 2015, Douglas-Peters, through a newly retained attorney, filed a motion for new trial and an amended motion for new trial on October 22, 2015. Douglas-Peters' amended motion for new trial was overruled by operation of law. See TEX. R. CIV. P. 329b(c); TEX. R. APP. P. 21.8(c).

II. STANDING, CAPACITY, AND DEFECT OF PARTIES

In issue two, Douglas-Peters argues the trial court erred when it concluded that: (1) Forest Law had standing; (2) Forest Law had capacity; and (3) there was no defect of parties. We note that Douglas-Peters and the trial court's findings of fact and conclusions of law do not distinguish the separate, but similar, doctrines of standing, capacity, and defect of parties. We will determine the substance of the parties' arguments as to standing, capacity, and defect of parties, and address them accordingly. See Fitness Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV, 2015 WL 6750047, at *12 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op.).

Douglas-Peters generally refers to this issue as being based on the affirmative defense of "defect of parties." However, the substance of her argument on appeal includes arguments relating to standing, capacity, and defect of parties. We note that standing, capacity, and defect of parties are not affirmative defenses. See Fitness Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV, 2015 WL 6750047, at *11 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op.); Develo-cepts, Inc. v. City of Galveston, 668 S.W.2d 790, 793 (Tex. App.—Houston [14th Dist.] 1984, no writ) (challenge to capacity referred to as dilatory plea); Bluebonnet Farms, Inc. v. Gibralter Sav. Ass'n, 618 S.W.2d 81, 83 (Tex. App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.) (capacity is dilatory matter); Kriegel v. Scott, 439 S.W.2d 445, 446 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.) (referring to challenge to capacity and defect of parties as dilatory pleas). Standing is a component of subject-matter jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Fitness Evolution, 2015 WL 6750047, at Nauslar v. Coor Brewing Co., 170 S.W.3d 242, 248 (Tex. App.—Dallas 2005, no pet.). The defenses of capacity and defect of parties are dilatory pleas that do not challenge the merits of the case, but seek to delay or defeat the action on procedural grounds. See Kriegel, 439 S.W.2d at 446; Dilatory Plea, BLACK'S LAW DICTIONARY (10th ed. 2014).

A. Standard of Review

The question of standing is a legal question regarding subject-matter jurisdiction, so an appellate court conducts a de novo review of a trial court's ruling. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Fitness Evolution, 2015 WL 6750047, at *12; Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex. App.—Dallas 2006, no pet.); Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 256 (Tex. App.—Dallas 2005, no pet.). Likewise, issues of capacity to sue, a similar, but distinct doctrine that does not implicate a court's subject-matter jurisdiction, are also questions of law, which are reviewed de novo. See Fitness Evolution, 2015 WL 6750047, at *12; see generally, Byrd v. Estate of Nelms, 154 S.W.3d 149, 160-61 (Tex. App.—Waco 2004, pet denied) (citing Mayhew, 964 S.W.2d at 928-29). Conversely, an appellate court reviews a trial court's ruling based on a defect of parties for an abuse of discretion. See Valdez v. Robertson, No. 01-14-00563-CV, 2016 WL 1644550, at *4 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.) (review trial court's dismissal based on defect of parties for abuse of discretion); Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 179 (Tex. App.—San Antonio 2008, pet. denied); Truong v. City of Houston, 99 S.W.3d 204, 216 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (appellants failed to preserve error because no basis to determine whether trial court abused its discretion).

B. Applicable Law

To bring suit and recover on a cause of action, a plaintiff must have both standing and capacity. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005); Fitness Evolution, 2015 WL 6750047, at *12; Flagstar Bank, FSB v. Walker, 451 S.W.3d 490, 497 (Tex. App.—Dallas 2014, no pet.); John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 650 (Tex. App.—Dallas 2013, pet. denied); Nauslar, 170 S.W.3d at 256. Texas courts have had considerable difficulty in defining the relationship between the similar, but distinct, doctrines of capacity and standing. See Austin Nursing Ctr., 171 S.W.3d at 848 n.1; Fitness Evolution, 2015 WL 6750047, at *12; John C. Flood, 408 S.W.3d at 650. Likewise, there has been an effort to distinguish capacity from defect of parties. See generally, CHCA E. Houston, L.P. v. Henderson, 99 S.W.3d 630, 632-33 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (defining capacity and defect of parties).

C. Standing

In the first part of issue two, Douglas-Peters argues the trial court erred when it concluded Forest Law had standing to bring this lawsuit against her. Douglas-Peters generally argues that "[the trial court] erred in [concluding] that [Forest Law] had standing to pursue claims against [her]." She also maintains that "[she] challenges the factual and legal sufficiency that [Forest Law] had standing to sue [her]." Forest Law does not respond to Douglas-Peters' standing arguments.

1. Applicable Law—Standing

Standing is a component of a court's subject-matter jurisdiction. See Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Fitness Evolution, 2015 WL 6750047, at *12; Nauslar, 170 S.W.3d at 248. Standing to sue can be predicated upon either statutory or common-law authority. See Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex. 2001); Fitness Evolution, 2015 WL 6750047, at *12; Nauslar, 170 S.W.3d at 252. The general rules of standing apply unless statutory authority for standing exists. See Williams, 52 S.W.3d at 178; Fitness Evolution, 2015 WL 6750047, at *12; Nauslar, 170 S.W.3d at 252. As a necessary component of a court's subject-matter jurisdiction, standing cannot be waived and can be raised for the first time on appeal. See Tex. Air Control Bd., 852 S.W.2d at 445-46; Fitness Evolution, 2015 WL 6750047, at *12; Mazon, 195 S.W.3d at 803.

To have standing, the pleader bears the burden of alleging facts that affirmatively demonstrate the court's jurisdiction to hear the case. See Tex. Air Control Bd., 852 S.W.2d at 446; Fitness Evolution, 2015 WL 6750047, at *13; Mazon, 195 S.W.3d at 803. When the issue of standing is unchallenged, a trial court looks solely at the plaintiff's pleadings. See Fitness Evolution, 2015 WL 6750047, at *13. However, when standing is challenged, the burden of proof is on the person whose interest is challenged to present sufficient evidence to prove that he is an interested person. See Fitness Evolution, 2015 WL 6750047, at *13.

Standing pertains to a person's justiciable interest in a suit. See Tex. Air Control Bd., 852 S.W.2d at 445-46; Fitness Evolution, 2015 WL 6750047, at *13; Nauslar, 170 S.W.3d at 255. The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome. See Austin Nursing Ctr., 171 S.W.3d at 849; Fitness Evolution, 2015 WL 6750047, at *13; John C. Flood, 408 S.W.3d at 650. Under Texas law, the standing inquiry requires examination of the following: (1) the plaintiff must be personally injured—he must plead facts demonstrating that he (rather than a third party) suffered the injury—and the injury must be concrete and particularized, actual or imminent, not hypothetical; (2) the plaintiff's alleged injury is fairly traceable to the defendant's conduct; and (3) the plaintiff's alleged injury is likely to be redressed by each form of requested relief. See Heckman v. Williamson County, 369 S.W.3d 137, 155 (Tex. 2012); Fitness Evolution, 2015 WL 6750047, at *13; see also Nauslar, 170 S.W.3d at 249 (dividing the standing inquiry into five elements); Precision Sheet Metal Mfg. Co., Inc. v. Yates, 794 S.W.2d 545, 552 (Tex. App.—Dallas 1990, writ denied). A plaintiff has standing when he is personally aggrieved, regardless of whether he has the legal authority to act. See Austin Nursing Ctr., 171 S.W.3d at 849; Fitness Evolution, 2015 WL 6750047, at *13; John C. Flood, 408 S.W.3d at 650.

Whether considering the standing of one plaintiff or many, with the notable exception of class actions, the court must analyze the standing of each individual plaintiff to bring each individual claim he alleges. See Heckman, 369 S.W.3d at 152; Fitness Evolution, 2015 WL 6750047, at *13. This principle flows from two sources. See Heckman, 369 S.W.3d at 152; Fitness Evolution, 2015 WL 6750047, at *13. First, a plaintiff must demonstrate that the court has jurisdiction over and the plaintiff has standing to bring each of his claims. See Heckman, 369 S.W.3d at 152-53; Fitness Evolution, 2015 WL 6750047, at *13. The court must dismiss only those claims over which it lacks jurisdiction. See Heckman, 369 S.W.3d at 153; Fitness Evolution, 2015 WL 6750047, at *13. Second, a plaintiff must demonstrate that he, himself, has standing to present his claims. See Heckman, 369 S.W.3d at 153; Fitness Evolution, 2015 WL 6750047, at *13. This means the court must assess standing plaintiff-by-plaintiff, claim-by-claim. See Heckman, 369 S.W.3d at 153; Fitness Evolution, 2015 WL 6750047, at *13.

A plaintiff with no legally cognizable interest in the outcome of the case lacks standing to sue on its own behalf, but may be authorized to sue on behalf of another. See Flagstar, 451 S.W.3d at 497. It is well settled that when a claim is assigned, the assignee "steps into the shoes of the [assignor] and is considered under the law to have suffered the same injury as the assignors and have the same ability to pursue the claims." See Sw. Bell Tel. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909, 916 (Tex. 2010); Forex Capital Mkts., L.L.C. v. Crawford, No. 05-14-00341-CV, 2014 WL 7498051, at *3 (Tex. App.—Dallas Dec. 31, 2014, pet. denied) (mem. op.); Flagstar, 451 S.W.3d at 497. As a result, an assignee may assert those rights that the assignor could assert, including bringing suit. See Forex, 2014 WL 7498051, at *2; Flagstar, 451 S.W.3d at 497. Accordingly, an assignee of a claim has standing to assert the injury suffered by the assignor. See Forex, 2014 WL 7498051, at *3 (citing Vt. Agency of Nat. Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 773 (2000)); Flagstar, 451 S.W.3d at 497.

A party's lack of standing deprives the court of subject-matter jurisdiction and renders any trial court action void. See Fitness Evolution, 2015 WL 6750047, at *14; see also In re Russell, 321 S.W.3d 846, 856 (Tex. App.—Fort Worth 2010, orig. proceeding [mand. denied]). The denial of a claim on the merits is different from the dismissal of a claim for want of jurisdiction. See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 307 (Tex. 2008); Fitness Evolution, 2015 WL 6750047, at A court does not render judgment that a plaintiff takes nothing, as it would if the plaintiff's claims failed on the merits. See DaimlerChrysler, 252 S.W.3d at 307; Fitness Evolution, 2015 WL 6750047, at *14. Instead, courts dismiss for want of jurisdiction. See DaimlerChrysler, 252 S.W.3d at 307; Fitness Evolution, 2015 WL 6750047, at *14.

2. Application of the Law to the Facts

In the trial court, Douglas-Peters challenged Forest Law's standing in her pro se motion for summary judgment and in her amended motion for new trial. On appeal, Douglas-Peters expressly challenges the following conclusion of law relating to standing, which was included within a finding of fact and labeled as such by the trial court:

14. . . . . [Forest Law] . . . has standing to pursue such claim.

Further, Douglas-Peters' standing argument impliedly challenges the following conclusion of law:

17. The trial court has jurisdiction of the parties and subject matter in this cause.

We must address standing first because it is a component of a court's subject-matter jurisdiction. See Gibson, 22 S.W.3d at 851; Tex. Air Control Bd., 852 S.W.2d at 446; Fitness Evolution, 2015 WL 6750047, at *12.

The record shows that Forest Law filed suit as assignee of Texas Kore Law. As a result, we must determine whether Texas Kore Law had a sufficient relationship with the lawsuit to have a justiciable interest in the outcome. On appeal, Douglas-Peters does not challenge the following findings of fact that support the trial court's conclusion regarding standing:

1. On September 12, 2008, attorney [] Burchfiel and the law firm of [Texas Kore Law, P.C., d/b/a] Choe, Holen, Yoo & Burchfiel, P.C. [] entered into a Retainer Agreement [] with Douglas-Peters to prosecute her claims against C.F. & H[.] Corporation d/b/a South Dallas Nursing Home, its affiliates, former employee, and principal for damages resulting from or relating to her employment and termination [].

. . . .

5. [Texas Kore Law] represented Douglas-Peters in the underlying suit (after Burchfiel was no longer involved with the case). The case did not settle, and was tried in or about October 2009. [Texas Kore Law] performed its obligations under the [retainer agreement] by representing Douglas-Peters in the underlying suit which resulted in a judgment favorable to Douglas-Peters. . . .

6. [Texas Kore Law's] rights under the [retainer agreement] were not conditioned upon Burchfiel's continued involvement in the case. In any event, Douglas-Peters accepted [Texas Kore Law's] continued representation of her (including some post-judgment collection efforts against the judgment-debtor) until 2010. In January 2010[,] she requested that [Texas Kore Law] withdraw from representing her and, in lieu of its contractual contingency fee, accept "reasonable payment from the recovery for hours actually worked on the case . . . along [with] any other fees and cost[s] paid."

We note Douglas-Peters does not argue that Texas Kore Law does not have standing. In fact, she directs this Court to her third-party petition against the principals of Texas Kore Law. Also, in her "motion for summary judgment breach of contract," Douglas-Peters acknowledged the retainer agreement, arguing:

[Texas Kore Law] and Burchfiel, failed to represent [Douglas-Peters] pursuant to the [retainer agreement]. In April 2010, Burchfiel admits to abandoning [Douglas-Peters] and having not spoken with her since May 2009. . . .

It is an undisputed fact that [Texas Kore Law and Burchfiel's] abandonment is a breach of contract. The law is clear that [Texas Kore Law] is not entitled to be paid for services rendered in violation of [its] duty to a client, or for services needed to alleviate the consequences of [] Burchfiel's abandonment.

. . . .

[Texas Kore Law] neglected their lawful obligation and duty to withdraw Burchfiel after he abandoned [Douglas-Peters]. A new attorney of record was not designated. And, there is no evidence that a new [retainer agreement] with the consent of all parties was signed to replace the original [retainer agreement].

. . . .

The Agreement specifies attorney's fees in terms of settlement and trial. But, it is ambiguous regarding the payment in the event: (1) the attorney abandoned the client but fails to withdraw and (2) pre-trial summary judgment is awarded.

In addition, in Douglas-Peters' first amended third-party petition, she alleged that she "hired [Texas Kore Law] to provide legal representation to her in ongoing litigation which had been initiated by [] Douglas-Peters." She attached a copy of her retainer agreement with Texas Kore Law and alleged third-party claims against Holen and Choe for breach of that retainer agreement. The retainer agreement was attached to some of the pleadings and admitted into evidence during the trial. It states, in part:

[] Douglas-Peters [] hires the law firm of [Texas Kore Law] and Michael Burchfiel [] to represent [Douglas-Peters] in [her] claim against C.F. & H. Corporation d/b/a "South Dallas Nursing Home," and its subsidiaries and related entities, and Dr. Leona Hawkins, Juliette Wesley and Charles W. Smith and any other current or former employees [].

We conclude that Texas Kore Law had a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome. As a result, Forest Law, as assignee of Texas Kore Law's claims against Douglas-Peters, had standing to assert the injury suffered by Texas Kore Law. The first part of issue two is decided against Douglas-Peters. Accordingly, we address Douglas-Peters' argument that Forest Law did not have the capacity to bring suit against her.

D. Capacity

In the second part of issue two, Douglas-Peters argues the trial court erred when it concluded Forest Law had the capacity to bring this lawsuit against her. She argues there was no evidence that the original retainer agreement was sold or assigned to Forest Law. Also, she claims that the assignment of claims by attorneys against their clients should be considered void because they are against public policy, similar to the prohibition of the assignment of legal malpractice claims. In response, Forest Law contends that Douglas-Peters did not raise this issue before or during trial, she conceded in her pleadings that Texas Kore Law assigned its claims against her to Forest Law, and her claim is based on a typographical error.

1. Applicable Law—Capacity

Capacity is a party's legal authority to go into court to prosecute or defend a suit. See Fitness Evolution, 2015 WL 6750047, at *14; Nauslar, 170 S.W.3d at 255. A party has capacity to sue when it has legal authority to act, regardless of whether it has a justiciable interest in the controversy. See Austin Nursing Ctr., 171 S.W.3d at 849; Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996); Fitness Evolution, 2015 WL 6750047, at *14; John C. Flood, 408 S.W.3d at 650; Nauslar, 170 S.W.3d at 255. Capacity is conceived of as a procedural issue dealing with the personal qualifications of a party to proceed with litigation. See Austin Nursing Ctr., 171 S.W.3d at 849; Fitness Evolution, 2015 WL 6750047, at *14; John C. Flood, 408 S.W.3d at 650. The defense of capacity must be raised by verified objection pursuant to Texas Rule of Civil Procedure 93. See TEX. R. CIV. P. 93(1)-(2). The defense of capacity is a dilatory plea. See Develo-cepts, Inc. v. City of Galveston, 668 S.W.2d 790, 793 (Tex. App.—Houston [14th Dist.] 1984, no writ) (challenge to capacity referred to as dilatory plea); Bluebonnet Farms, Inc. v. Gibralter Sav. Ass'n, 618 S.W.2d 81, 83 (Tex. App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.) (capacity is dilatory matter); Kriegel v. Scott, 439 S.W.2d 445, 446 (Tex. App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.) (referring to challenge to capacity and defect of parties as dilatory pleas); see also Dilatory Plea, BLACK'S LAW DICTIONARY (10th ed. 2014). Unlike standing, which is jurisdictional, a challenge to a party's capacity to participate in a suit can be waived. See Nootsie, 925 S.W.2d at 662 (citing TEX. R. CIV. P. 93); Fitness Evolution, 2015 WL 6750047, at *14; Highland Credit Opportunities CDO, L.P. v. UBS AG, 451 S.W.3d 508, 516 (Tex. App.—Dallas 2014, no pet.); John C. Flood, 408 S.W.3d at 650. However, an issue subject to pleading requirements, such as the issue of capacity, may be tried by consent. See Highland Credit, 451 S.W.3d at 516.

The word "assignment" has a comprehensive meaning and in its most general sense means the transfer or setting over of property, or some right or interest. See Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 721 (Tex. App.—Dallas 2004, no pet.). An assignment is a contract between the assignor and assignee, and operates by way of agreement or contract. See Johnson, 148 S.W.3d at 721. Texas law is clear that a challenge to a party's privity of contract is a challenge to capacity, not standing. E.g., Fitness Evolution, 2015 WL 6750047, at *14; Highland Credit, 451 S.W.3d at 515-16; Transcon. Realty Investors, Inc. v. Wicks, 442 S.W.3d 676, 679 (Tex. App.—Dallas 2014, pet. denied); Nat'l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 129 (Tex. App.—Dallas 2014, no pet.); John C. Flood, 408 S.W.3d at 651; Landry's Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 433 (Tex. App.—Dallas 2007, pet. denied); King-Mays v. Nationwide Mut. Ins., 194 S.W.3d 143, 145 (Tex. App.—Dallas 2006, pet. denied). While the question of whether a party is entitled to sue on a contract is often informally referred to as a question of "standing," it is not truly a standing issue because it does not affect jurisdiction. See Fitness Evolution, 2015 WL 6750047, at *14; Transcon. Realty, 442 S.W.3d at 679; Nat'l Health Res., 429 S.W.3d at 129.

Absent specific circumstances, causes of action in Texas are freely assignable. See State Farm Fire & Cas. Co., v. Gandy, 925 S.W.2d 696, 705-07 (Tex. 1996); Fitness Evolution, 2015 WL 6750047, at *14; see also PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 92 (Tex. 2004) (recognizing a few exceptions to this general rule). When a cause of action is assigned or transferred, the assignee becomes the real party in interest with the authority to prosecute the suit to judgment. See Tex. Mach. & Equip. Co. v. Gordon Knox Oil & Exploration Co., 442 S.W.2d 315, 317 (Tex. 1969); Fitness Evolution, 2015 WL 6750047, at *14; Hunter v. B.E. Porter, Inc., 81 S.W.2d 774, 774 (Tex. Civ. App.—Dallas 1935, no writ).

To recover on an assigned cause of action, an assignee must prove: (1) a cause of action existed; (2) the claim was capable of assignment; and (3) the cause was in fact assigned to the party seeking recovery. See Fitness Evolution, 2015 WL 6750047, at *15. An assignee may file suit and recover either in his own name or in the name of the assignor. See Kerlin v. Sauceda, 263 S.W.3d 920, 932 (Tex. 2008); Gordon Knox, 442 S.W.2d at 317; Fitness Evolution, 2015 WL 6750047, at *15; see also Flagstar, 451 S.W.3d at 497. Accordingly, the assignee being the real party in interest and in control of the lawsuit, he is also in privity with the nominal party such that the judgment therein will bind him as a party. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 890 (Tex. 1998); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996) ("People can be in privity in three ways: (1) they can control an action even if they are not parties to the action; (2) their interests can be represented by a party to the action; and (3) they can be successors in interest, deriving their claims through a party to the prior action."); Fitness Evolution, 2015 WL 6750047, at *15.

However, an assignment may be invalidated by the courts because it is found to offend public policy. See Sw. Bell Tel. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909, 916 (Tex. 2010); Johnson, 148 S.W.3d at 727. The Texas Supreme Court has held that certain types of assignments are invalid because they violate public policy: (1) an assignment of a cause of action that works to collude against an insurance carrier; (2) an assignment of a legal malpractice claim; (3) an assignment that creates a Mary Carter agreement; (4) an assignment of the plaintiff's cause of action to a joint tortfeasor of the defendant; and (5) an assignment of interests in an estate that distorts the true positions of the beneficiaries. See PPG Indus., 146 S.W.3d at 87 n.31; Johnson, 148 S.W.3d at 727-28. In addition, the Texas Supreme Court has invalidated assignments that: (1) tend to increase or prolong litigations unnecessarily; (2) tend to distort the litigation process; and (3) are otherwise inconsistent with the purpose of a statutory cause of action. See Sw. Bell Tel., 308 S.W.3d at 916.

Contracts are subject to the public policy of the State. See Johnson, 148 S.W.3d at 726. In examining an agreement to determine if it is contrary to public policy, courts look to whether the agreement has a tendency to injure the public good. See Johnson, 148 S.W.3d at 727. A state's public policy is reflected in its statutes. See, e.g., Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, 467 S.W.3d 494, 504 (Tex. 2015); Fortis Benefits v. Cantu, 234 SW.3d 642, 649 (Tex. 2007); Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex. 2003); see also Johnson, 148 S.W.3d 726-27. Review of a claim that a contract is against public policy should be applied with caution. See Johnson, 148 S.W.3d at 726. The rule that public policy precludes the enforcement of an otherwise valid contract should be applied cautiously and only in cases involving dominant public interests. See Johnson, 148 S.W.3d at 726.

2. Application of the Law to the Facts

Douglas-Peters did not file a verified pleading objecting to Forest Law's capacity as the assignee of Texas Kore Law's claims against Douglas-Peters. See TEX. R. CIV. P. 93(1)-(2). However, in Douglas-Peters' pro se motion for summary judgment, she argued, in part, that Forest Law "must prove . . . the right to collect a contingen[t] fee improperly assigned from [Texas Kore Law, P.C. d/b/a Choe, Holen, Yoo & Burchfiel] to [Texas Kore Law, P.C. d/b/a Choe Holen] and then sold to [Forest Law, P.C. d/b/a Cho, Choe & Holen]." The record does not show that Forest Law objected to Douglas-Peters' capacity defense on the basis that she had failed to file a verified pleading as required by Texas Rule of Evidence 93. During the trial, there was some discussion and testimony as to the assignment of Texas Kore Law's claims against Douglas-Peters to Forest Law and the asset purchase agreement assigning those claims was admitted into evidence. The trial court made findings of fact and conclusions of law as to the assignment of the claims. Further, in her amended motion for new trial, Douglas-Peters argued "there is no evidence or insufficient evidence to show that [Texas Kore Law's] retainer agreement, a service contract, was freely assignable. Without a freely-assignable clause in the retainer agreement, the transfer to [Forest Law] was improper and did not give [Forest Law] [capacity to sue]." Accordingly, assuming without deciding, the issue of capacity was tried by consent, we address Douglas-Peters' capacity arguments. See Highland Credit, 451 S.W.3d at 516 (capacity may be tried by consent).

In the second part of issue two, Douglas-Peters expressly challenges the following finding of fact:

14. [Choe, Holen, Yoo & Burchfiel, P.C.,] was an assumed name of Texas Kore Law, P.C.[,] when the contract was signed. When two of its partners ceased working with the firm in 2009, Texas Kore Law, P.C.[,] changed its name to Choe Holen, P.C. On October 15, 2012, Texas Kore Law d/b/a Choe Holen, P.C.[,] sold its claim against Douglas-Peters to Forest Law, P.C. d/b/a Cho, Choe & Holen, P.C. Cho, Choe & Holen, P.C.[,] filed this suit on February 3, 2014, as assignee of the claim against Douglas-Peters[.]

Also, Douglas-Peters expressly challenges the following conclusion of law:

20. [Texas Kore Law's] claim against Douglas-Peters was assigned to [Forest Law.]

The record shows the asset purchase agreement was admitted into evidence. That agreement provides, in part, that:

THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into by and between Texas Kore Law, P.C. dba Choe Holen, P.C., ("Seller") and Forest Law, P.C. dba Cho, Choe & Holen, P.C. ("Buyer").

. . . .

1.1.2 All of Seller's right, title and interest to any claims it may have against it's [sic] former client, Josephine Douglas-Peters, including claims for attorneys['] fees and costs associated with Josephine Douglas-Peters in that case entitled Josephine Douglas-Peters v. C. F. & H. Corp. et al., Cause No. 08-09621 ("Claim")[.]

However, Douglas-Peters claims that there was no evidence the retainer agreement was sold or the claims against her assigned to Forest Law because the asset purchase agreement identified Texas Kore Law as the seller in the introductory paragraph, but lists it as the buyer on the signature page. Forest Law claims this was merely a typographical error. When interpreting a contract, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless. See Falk & Fish, L.L.P. v. Pinkston's Lawnmower & Equip., Inc., 317 S.W.3d 523, 527 (Tex. App.—Dallas 2010, no pet.). With respect to typographical errors, "written contracts will be construed according to the intention of the parties, notwithstanding errors and omissions, by perusing the entire document and to this end, words, names, and phrases obviously intended may be supplied." See Falk & Fish, 317 S.W.3d at 527-28 (quoting City of Galveston v. Galveston Mun. Police Ass'n, 57 S.W.3d 532, 539 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)). While there is a typographical error as to which party is the seller and buyer on the signature page, we conclude that it is clear from the asset purchase agreement that the parties intended for Texas Kore Law to assign it's claims against Douglas-Peters to Forest Law. See Falk & Fish, 317 S.W.3d at 527-28.

Next, Douglas-Peters contends the asset purchase agreement is void because it is against public policy. She argues that the assignment of claims by attorneys against their clients are a "legal corollary" to the assignment of legal malpractice claims, which is against public policy. Although Douglas-Peters argues that "public policy demands that the alleged assignment between the law firms not be enforced even if the assignment was not circular and therefore defective," she does not provide any analysis or legal basis for her argument showing that the assignment of a claim for attorneys' fees tends to increase or prolong litigations unnecessarily, tends to distort the litigation process, or is otherwise inconsistent with the purpose of a statutory cause of action. See Sw. Bell Tel., 308 S.W.3d at 916. We decline Douglas-Peters' invitation to invalidate the assignment of claims for attorneys' fees on the basis of public policy.

The second part of issue two is decided against Douglas-Peters.

E. Defect of Parties

In the third part of issue two, Douglas-Peters argues the trial court erred when it concluded there was no defect of parties. She maintains that she "complained vociferously about the defect of parties." She contends that the "variance between the pleading and proof as to the names of the parties to the contract" is fatal. Douglas-Peters also points to her third-party petition against the principals of Texas Kore Law. Forest Law responds that Douglas-Peters "did not raise any issues regarding a defect in parties with the trial court."

1. Applicable Law—Defect of Parties

Generally, a defect of parties refers to joinder problems involving necessary or indispensable parties. See In re Hall, 433 S.W.3d 203, 211 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 153-54 (Tex. App.—Houston [14th Dist.] 2014, no pet.); CHCA, 99 S.W.3d at 633. The defense of defect of parties is a dilatory plea or matter in abatement. See TEX. R. CIV. P. 85 ("The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory pleas[.]"); Piper v. Thompson's Estate, 546 S.W.2d 341, 343 (Tex. Civ. App.—Dallas 1976, no writ); Kriegel, 439 S.W.2d at 446. A dilatory plea is "[a] plea that does not challenge the merits of a case but that seeks to delay or defeat the action on procedural grounds." Dilatory Plea, BLACK'S LAW DICTIONARY (10th ed. 2014). The proper procedural tool for raising defect of parties is a motion to abate. See Wilchester W. Concerned Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 560 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Truong v. City of Houston, 99 S.W.3d 204, 216 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A dilatory plea involving a matter in abatement "objects to the place, time, or method of asserting the plaintiff's claim but does not dispute the claim's merits." Plea in Abatement, BLACK'S LAW DICTIONARY. In a motion to abate, the defendant must: (1) identify any impediment to the continuation of the suit; (2) identify an effective cure; and (3) ask the trial court to abate the suit until the defect is corrected. See Truong, 99 S.W.3d at 216; Martin v. Dosohs I Ltd., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999, pet. denied). If the plaintiff cures the defect, the trial court will permit the suit to continue. See Garcia-Marroquin v. Nueces Cty. Bail Bond Bd., 1 S.W.3d 366, 374 (Tex. App.—Corpus Christi 1999, no pet.). However, if the plaintiff does not cure the defect, the trial court will dismiss the suit. See Garcia-Marroquin, 1 S.W.3d at 374.

The defense of defect of parties must be raised by verified objection pursuant to Texas Rule of Civil Procedure 93(4). See TEX. R. CIV. P. 93(4); Allison v. Nat'l Fire Ins. Co., 703 S.W.2d 637, 638 (Tex. 1986) (per curiam); In re Hall, 433 S.W.3d at 211; Alphaville, 429 S.W.3d at 153; CHCA, 99 S.W.3d at 633. However, verification is not required where "the truth of such matters appear of record." TEX. R. CIV. P. 93; see John C. Flood, 408 S.W.3d at 656-57. If the matter of defect of parties appears of record in the evidence, verification of the answer is not a prerequisite to addressing the defect-of-parties question on appeal. See InvestIN.com Corp. v. Europa Int'l Ltd., 293 S.W.3d 819, 825 (Tex. App.—Dallas 2009, no pet.) (discussing whether issue of capacity appeared of record); Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 117 (Tex. App.—Corpus Christi 1995, writ denied). "In an appropriate action, to assist in the disposition of the case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties . . . to appear before it for a conference to consider . . . [a]ll pending dilatory pleas, motions and exceptions." TEX. R. CIV. P. 166(a). When a case is called for trial in which there has been no pretrial hearing, the issue of law arising on all pleas in abatement and other dilatory pleas remaining undisposed of shall be determined. TEX. R. CIV. P. 175.

2. Application of the Law to the Facts

The record shows that Douglas-Peters did not file a verified pleading asserting a defect of parties. See TEX. R. CIV. P. 93(4). However, in her pro se motion for summary judgment, Douglas-Peters argued:

59. . . . . The attorney-client relationship was with Burchfiel.

61. . . . . A new attorney of record was not designated. And, there is no evidence that a new contract with the consent of all parties was signed to replace

the original contract. Holen and Choe admit that they did not enter into any contract with [Douglas-Peters]. Holen admits that [Texas Kore Law] was prohibited from further use of the assumed name, [Choe, Holen, Yoo & Burchfiel].

77. . . . . Because the [retainer agreement] is a contract with the assumed name of [Choe, Holen, Yoo & Burchfiel], [Forest Law] did not have [the capacity] to file suit on February 3, 2014. The court action must be dismissed.

85. [Forest Law], Holen, and Choe admit that [Douglas-Peters] did not enter into any contract with [them]. . . . Forest Law [] [has] not sustained an injury by [Douglas-Peters].

Douglas-Peters' defect of parties argument impliedly challenges the following finding of fact:

14. [Choe, Holen, Yoo & Burchfiel] was an assumed name of Texas Kore Law, P.C.[,] when the [retainer agreement] was signed. When two of its partners ceased working with the firm in 2009, Texas Kore Law, P.C.[,] changed its assumed name to Choe Holen, P.C.

See Shaw v. County of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2005, pet. denied) (challenge to unidentified findings of fact may be sufficient if appellate court can determine from argument specific findings of fact appellant challenges).

During the trial, the assumed name certificates for Texas Kore Law were admitted into evidence showing that on April 17, 2008, it filed with the Texas Secretary of State an assumed name certificate stating it was going to conduct business under the name "Choe, Holen, Yoo & Burchfiel, P.C.," on June 9, 2009, it filed with the Dallas County Clerk an assumed name certificate stating its business would be conducted under the name "Choe Holen, P.C.," and on June 12, 2009, it filed an assumed name certificate with the Texas Secretary of State stating that it was going to conduct business under the name "Choe Holen, P.C." Also, the retainer agreement was admitted into evidence. Douglas-Peters signed the retainer agreement with "Choe, Holen, Yoo & Burchfiel" on September 12, 2008. Further, the asset purchase agreement assigning Texas Kore Law's claims against Douglas-Peters to Forest Law was admitted into evidence. Accordingly, we conclude that it appears of record that Forest Law, as assignee of Texas Kore Law's claims against Douglas-Peters, is a proper party to the lawsuit. See InvestIN.com, 293 S.W.3d at 825; Cantu, 910 S.W.2d at 117.

The third part of issue two is decided against Douglas-Peters.

III. LEGAL AND FACTUAL SUFFICIENCY

In issues one and the second part of issue four, Douglas-Peters argues the evidence is legally and factually insufficient to support the trial court's: (1) finding of fact and conclusion of law on her affirmative defense of limitations; and (2) finding that the $80,000 Texas Kore Law retrieved from the registry of the court should be credited against Forest Law's actual damages.

A. Standard of Review

A party appealing from a nonjury trial in which the trial court made findings of fact and conclusions of law should direct his attack on the sufficiency of the evidence at specific findings of fact, rather than at the judgment as a whole. See Thompson & Knight, L.L.P. v. Patriot Expl., L.L.C., 444 S.W.3d 157, 162 (Tex. App.—Dallas 2014, no pet.); Shaw, 251 S.W.3d at 169. However, a challenge to an unidentified finding of fact may be sufficient if an appellate court can fairly determine from the argument which specific finding of fact the appellant challenges. See Copeland v. Cooper, No. 05-13-00541-CV, 2015 WL 83307, at *3 (Tex. App.—Dallas Jan. 7, 2015, pet. denied) (mem. op.); Shaw, 251 S.W.3d at 169.

1. Legal and Factual Sufficiency of the Trial Court's Findings of Fact

In an appeal from a bench trial, findings of fact have the same weight as a jury's verdict. See Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 233 n.4 (Tex. 1993); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.); Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury's answer. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Sheetz, 503 S.W.3d at 502. When the appellate record contains a reporter's record, findings of fact are not conclusive and are binding only if supported by the evidence. See Martin v. PlainsCapital Bank, No. 05-10-00235-CV, 2016 WL 5945000, at *2 (Tex. App.—Dallas Oct. 13, 2016, no pet.); Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157.

A challenge to the legal sufficiency of the evidence supporting an adverse finding of fact on an issue for which the appellant did not have the burden of proof requires the appellant to show that no evidence supports the adverse finding. See Graham Central Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014); Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157. When reviewing the record, an appellate court determines whether any evidence supports the challenged finding of fact. See Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157. If more than a scintilla of evidence exists to support the finding of fact, the legal sufficiency challenge fails. See Graham Central Station, 442 S.W.3d at 263; Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157.

When an appellant challenges the factual sufficiency of the evidence on an issue, an appellate court considers all the evidence supporting and contradicting the finding of fact. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Martin, 2016 WL 5945000, at *2; Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157. An appellate court sets aside findings of fact for factual insufficiency only if the finding is so contrary to the evidence as to be clearly wrong and manifestly unjust. See Ortiz, 917 S.W.2d at 772; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157. In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses. See Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157. As long as the evidence falls "within the zone of reasonable disagreement," we will not substitute our judgment for that of the factfinder. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); Sheetz, 503 S.W.3d at 502; Fulgham, 349 S.W.3d at 157.

2. Legal Sufficiency of the Trial Court's Conclusions of Law

An appellate court reviews the trial court's conclusions of law de novo. See BMC Software, 83 S.W.3d at 794; Sheetz, 503 S.W.3d at 502. An appellant may not challenge a trial court's conclusions of law for factual insufficiency, but it may review the legal conclusions drawn from the facts to determine their correctness. See BMC Software, 83 S.W.3d at 794; Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.). If an appellate court determines that a conclusion of law is erroneous, but the trial court nevertheless rendered the proper judgment, the error does not require reversal. See BMC Software, 83 S.W.3d at 794; Sheetz, 503 S.W.3d at 502; Reisler, 439 S.W.3d at 619-20; Fulgham, 349 S.W.3d at 157-58.

B. Statute of Limitations

In issue one, Douglas-Peters argues the evidence is legally and factually insufficient to support the trial court's finding of fact and conclusion of law on her affirmative defense of limitations. She argues that the breach-of-contract cause of action accrued "no later than January 19, 2010" when Texas Kore Law filed its motion to withdraw at her request. Forest Law responds that the cause of action against Douglas-Peters accrued "on February 2, 2010, when [Douglas-Peters] made a recovery on the underlying judgment." Accordingly, this issue concerns whether the cause of action for breach of contract against Douglas-Peters accrued when Texas Kore Law filed its motion to withdraw as Douglas-Peters contends.

On appeal, Douglas-Peters argues only that:

[I]t was unnecessary for there to be a writ of execution and sale on February 2, 2010, for an accrual of the cause of action when both parties already treated the contract as having been terminated.

[Texas Kore Law or its assignee, Forest Law,] knew that [Douglas-Peters'] contract had been terminated by January 19, 2010. [Douglas-Peters] fired her lawyers on January 1, 2010. The lawyers acknowledged being fired on January 19, 2010. The lawyers filed a Motion to Withdraw from [Douglas-Peters'] representation on January 19, 2010.

Since both parties had already treated the contract as terminated, any cause of action for breach of contract occurred no later than January 19, 2010.

(Citations omitted).

1. Applicable Law

Section 16.004(a)(3) of the Texas Civil Practice and Remedies Code states that "[a] person must bring suit on the following actions not later than four years after the day the cause of action accrues: . . . (3) debt." TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3) (West 2002). The date a cause of action accrues is normally a question of law. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623 (Tex. 2011) (per curiam); IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV, 2016 WL 5791674, at *2 (Tex. App.—Dallas Oct. 4, 2016, no pet.). A cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a claimant to seek a judicial remedy. See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 (Tex. 2004); IDA Eng'g, 2016 WL 5791674, at *2. A breach-of-contract claim accrues when the contract is breached. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006) (per curiam); IDA Eng'g, 2016 WL 5791674, at *2.

Generally, a party breaches a contract when it fails to pay an invoice on or before the date payment is due. See IDA Eng'g, 2016 WL 5791674, at *2. However, the act of terminating a contract is not a breach of contract if one party is merely exercising its right to terminate the contract with or without cause. See Gulf Liquids New River Project, L.L.C. v. Gulsby Eng'g, Inc., 356 S.W.3d 54, 66 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (discussing construction contracts). Nevertheless, terminating the contract does not excuse that party's breach of an obligation to pay for services already performed. See Gulf Liquids, 356 S.W.3d at 66.

2. Application of the Law to the Facts

On January 1, 2010, after Texas Kore Law successfully represented Douglas-Peters at trial and began efforts to collect on the final judgment, Douglas-Peters sent Texas Kore Law a letter asking that it withdraw from representing her. On January 19, 2010, Texas Kore Law responded to Douglas-Peters' notice that she was terminating the attorney-client relationship, notifying her that it had filed a motion to withdraw.

In her first amended answer, Douglas-Peters asserted the affirmative defense that Forest Law's breach-of-contract claim was barred by the statute of limitations. On appeal, Douglas-Peters expressly challenges the legal and factual sufficiency of the evidence to support the following finding of fact:

15. No or insufficient evidence was presented that the breach[-]of[-]contract claim accrued prior to February 2, 2010.

Also, Douglas-Peters expressly challenges the legal sufficiency of the evidence to support the following conclusion of law:

21. The cause of action against Douglas-Peters accrued on February 2, 2010 when she refused to turn over or agree to turn over the 40% contingency fee at the constable's sale. This lawsuit was timely filed within the statute of limitations.

To demonstrate that there was evidence to support that the breach-of-contract claim accrued before February 2, 2010, Douglas-Peters relies on the following finding of fact: "On January 19, 2010, [Texas Kore Law] advised Douglas-Peters that it had filed a Motion to Withdraw based on her termination of their attorney-client relationship."

We must determine whether Douglas-Peters' termination of the attorney-client relationship and Texas Kore Law's motion to withdraw constituted a breach of the retainer agreement causing the breach-of-contract claim to accrue as Douglas-Peters contends. The retainer agreement, which was also admitted into evidence, contained a provision allowing Douglas-Peters to terminate Texas Kore Law, stating:

VI. [Douglas-Peters'] Right to Fire [Texas Kore Law]

[Douglas-Peters] understands that she has the right to fire [Texas Kore Law] at any time, even if [Douglas-Peters] has no reason. Any decision to terminate [Texas Kore Law] must be provided in writing, and will be effective upon receipt by [Texas Kore Law].

[Emphasis in orig.] As a result, Douglas-Peters' act of terminating the retainer agreement is not in itself a breach of contract because she was merely exercising her right, as stated in the retainer agreement, to terminate the contract "at any time, even if [she] has no reason." See Gulf Liquids, 356 S.W.3d at 66. The next section of the retainer agreement contained this provision: "If [Douglas-Peters] terminates [Texas Kore Law], [Douglas-Peters] agrees and realizes that [Texas Kore Law] still [is] entitled to receive the assigned percentages of recovery noted in this [retainer] agreement." This explicitly provides that terminating the contract, did not excuse Douglas-Peters' breach of her obligation to pay Texas Kore Law for the services already performed. See Gulf Liquids, 356 S.W.3d at 66. The trial court found that Douglas-Peters refused Texas Kore Law's request that she tender the contingency fee on February 2, 2010 as follows:

9. [] Holen attended the Constable's sale on February 2, 2010. After the sale of the property in an amount that fully satisfied the judgment, Holen approached Douglas-Peters to request that she tender [Texas Kore Law's] contingency fee plus expenses. Douglas-Peters refused the request to pay the contractually agreed upon attorneys' fees.

Accordingly, we conclude the evidence was legally and factually sufficient to support the trial court's finding of fact and conclusion of law on Douglas-Peters' affirmative defense of limitations.

Issue one is decided against Douglas-Peters.

D. Credit or Offset

In the second part of issue four, Douglas-Peters argues the evidence is legally and factually insufficient to support the trial court's finding of fact that the $80,000 Texas Kore Law retrieved from the registry of the court should be credited against Forest Law's actual damages. Douglas-Peters contends that the trial court's finding of fact that Forest Law "was entitled to keep the $80,000.00 statutory legal fee award was so against the overwhelming weight of the evidence as to be clearly wrong and unjust" because "the award of $80,000 in statutory legal fees properly belonged to her." Forest Law responds that "[t]he trial court merely credited Douglas-Peters with the $80,000 that had previously been recovered by [Texas Kore Law] which is consistent with the evidence submitted at trial on the issue of damages."

1. Applicable Law

When a lawyer has contracted for a contingent fee, the lawyer is entitled to receive the specified fee only when and to the extent the client receives payment. See Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 94 (Tex. 2001) (quoting Restatement (Third) of the Law Governing Lawyers § 35 (1998)). In the absence of a prior agreement to the contrary, the amount of the client's recovery is computed net of any offset, such as recovery by an opposing party on a counterclaim. See Levine, 40 S.W.3d at 94 (quoting Restatement (Third) of the Law Governing Lawyers § 35 cmt. d).

2. Application of the Law to the Facts

On appeal, Douglas-Peters expressly challenges the legal and factual sufficiency of the evidence to support the following finding of fact:

13. After [Texas Kore Law] obtained a summary judgment in its favor and ostensibly before the [Court of Appeals'] Memorandum Opinion issued, [Texas Kore Law] retrieved the $80,000 from the Court's registry. Such amount must be credited against [Douglas-Peters'] actual damages in this case, thus, [Douglas-Peters'] actual damages on its breach of contract claim are $90,453.21. [Footnote omitted.] [Douglas-Peters] is also entitled to reasonable and necessary attorneys' fees incurred in bringing this action in the amount of $10,000.

[Emphasis in orig.] In a footnote to finding of fact no. 13, the trial court noted that the $90,453.21 "is calculated as follows: $411,872.19 x .40 = $164,748.88 + $5,704.33 = $170,453.21 - $80,000 = $90,453.21."

During the trial, Forest Law stipulated that Texas Kore Law received the $80,000 from the registry of the court. Further, Holen testified as to what he believed was the appropriate calculation of the contingent fee. The retainer agreement was admitted into evidence. Also, a letter dated January 7, 2010, sent from Texas Kore Law to Douglas-Peters detailing the award from the underlying judgment, the amount owed pursuant to the contingent fee provision of the retainer agreement, the expenses incurred by Texas Kore Law, and interest was admitted into evidence. In addition, the constable's amended return, the deputy constable's affidavit outlining the breakdown of the proceeds of the sale, and the constable's execution worksheet for the underlying judgment were admitted into evidence. Further, two invoices detailing the attorneys' fees and expenses incurred by Forest Law for this lawsuit were admitted into evidence. Douglas-Peters does not point to any contradicting evidence. Accordingly, we conclude there is legally and factually sufficient evidence to support the trial court's finding of fact that the $80,000 should be credited against Douglas-Peters' actual damages.

The second part of issue four is decided against Douglas-Peters.

IV. ENFORCEABILITY OF THE CONTINGENT-FEE PROVISION

In issue three, Douglas-Peters argues the trial court erred when it concluded the contingent-fee provision in the retainer agreement was enforceable. She claims the contingent-fee provision is unenforceable because: (1) the means for calculating the contingent fee was unconscionable as it results in the attorneys recovering excessive compensation; and (2) at the time it was formed, the contingent-fee provision was unconscionable because it was contrary to the public policy embodied in former section 242.133 of the Texas Health and Safety Code. Forest Law responds that Douglas-Peters did not plead the affirmative defense of unconscionability so her issue is waived. Also, Forest Law argues the retainer agreement clearly states that Douglas-Peters would pay no attorneys' fees if there was no recovery and the attorneys were required to pay all expenses even though they may never receive any fees. Further, Forest Law claims the retainer agreement noted that Douglas-Peters preferred a contingent fee to an hourly rate.

A. Standard of Review

Whether an agreement is an enforceable contract is a question of law that is reviewed de novo. See Crisp Analytical Lab, L.L.C. v. Jakalam Props., Ltd., 422 S.W.3d 85, 89 (Tex. App.—Dallas 2014, pet. denied). However, a determination of unconscionability involves both questions of law and questions of fact. See Hoover Slovacek L.L.P. v. Walton, 206 S.W.3d 557, 561-62 (Tex. 2006); Celmer v. McGarry, 412 S.W.3d 691, 705 (Tex. App.—Dallas 2013, pet. denied). An appellate court reviews a trial court's decision regarding unconscionability for an abuse of discretion. See Hoover Slovacek, 206 S.W.3d at 561-62; Celmer, 412 S.W.3d at 706. In applying this standard, an appellate court defers to the trial court's factual determinations while reviewing its legal conclusions de novo. See Hoover Slovacek, 206 S.W.3d at 561-62; Celmer, 412 S.W.3d at 706.

B. Applicable Law

An attorney contingent-fee contract serves two main purposes: (1) it allows plaintiffs who cannot afford to pay an attorney up front to pay the attorney out of any recovery; and (2) it offers the potential of a greater fee than might be earned under an hourly billing method, compensating the attorney for the risk that the attorney will receive no fee if the case is lost. See Hoover Slovacek, 206 S.W.3d at 561; Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). A successful breach of contract claim requires proof of the following elements: (1) a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. See Varel Indus., L.P. v. PetroDrillbits Int'l, Inc., No. 05-14-01556-CV, 2016 WL 4535779, at *5 (Tex. App.—Dallas Aug. 30, 2016, pet. denied) (mem. op.); Berryman's South Fork, Inc. v. J. Baxter Brinkmann Int'l Corp., 418 S.W.3d 172, 185 (Tex. App.—Dallas 2013, pet. denied). To be enforceable, a contract must address all of its essential and material terms with a reasonable degree of certainty and definiteness. See Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016).

Unconscionable contracts are unenforceable under Texas law. See In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding). A contract is unenforceable if, given the parties' general commercial background and the commercial needs of the particular trade or case, the clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract. See In re Poly-America, 262 S.W.3d at 348. A contractual provision is against public policy when it is illegal or inconsistent with the public's best interest. See Security Serv. Federal Credit Union v. Sanders, 264 S.W.3d 292, 297 (Tex. App.—San Antonio 2008, no pet.).

Whether a particular fee amount or contingency percentage charged by an attorney is unconscionable under all relevant circumstances of the representation is an issue for the fact finder. See Hoover Slovacek, 206 S.W.3d at 561-62; Celmer, 412 S.W.3d at 706. On the other hand, whether a contract, including a fee agreement between the attorney and the client, is contrary to public policy and unconscionable, at the time it is formed, is a question of law. See In re Poly-America, 262 S.W.3d at 348; Hoover Slovacek, 206 S.W.3d at 561-62; Celmer, 412 S.W.3d at 706.

Because an attorney's fiduciary duty to a client covers the contract negotiations between them, such contracts are closely scrutinized. See Anglo-Dutch Petroleum Int'l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 450 (Tex. 2011); Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 699 (Tex. 2000); Celmer, 412 S.W.3d at 706. The burden is on the attorney, as a fiduciary, to establish that the contract is fair and reasonable. See Keck, 43 S.W.3d at 699; Celmer, 412 S.W.3d at 706. A presumption of unfairness or invalidity attaches to these contracts because the relationship between an attorney and the client is fiduciary in nature. See Keck, 43 S.W.3d at 699; Celmer, 412 S.W.3d at 706.

Part of the attorney's duty is to inform the client of all material facts. See Anglo-Dutch Petroleum, 352 S.W.3d at 450. Attorneys have a duty, at the outset of the representation, to "inform a client of the fee" and "the contract's implications for the client." See Hoover Slovacek, 206 S.W.3d at 565; Celmer, 412 S.W.3d at 706. For a contingent-fee agreement to be enforceable, it must satisfy section 82.065 of the Texas Government Code, which states:

(a) A contingent fee contract for legal services must be in writing and signed by the attorney and client.

(b) Any contract for legal services is voidable by the client if it is procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons.

TEX. GOV'T CODE ANN. § 82.065 (West Supp. 2016). Public policy strongly favors a client's freedom to employ an attorney of his choosing and, except in some instances where counsel is appointed, to discharge the attorney during the representation for any reason or no reason at all. See Hoover Slovacek, 206 S.W.3d at 562. Nonetheless, courts recognize the valid competing interests of an attorney who, like any other professional, expects timely compensation for work performed and results obtained. See Hoover Slovacek, 206 S.W.3d at 563. Accordingly, attorneys are entitled to protection from clients who would abuse the contingent-fee arrangement and avoid duties owed under the contract. See Hoover Slovacek, 206 S.W.3d at 563. Allowing the discharged lawyer to collect the contingent fee from any damages the client recovers, complies with the principle that a contingent-fee attorney is entitled to receive the specified fee only when and to the extent the client receives payment. See Hoover Slovacek, 206 S.W.3d at 562.

Although the Texas Disciplinary Rules of Professional Conduct "do not define standards of civil liability of lawyers," courts look to the Disciplinary Rules for guidance when determining whether a specific situation violated the public policy protections embodied in the Disciplinary Rules. See Royston, 467 S.W.3d at 503; Gillespie v. Hernden, No. 04-15-00405-CV, 2016 WL 7234067, at *3 (Tex. App.—San Antonio Dec. 14, 2016, no pet. h.); see also Tex. Disciplinary Rules of Prof'l Conduct preamble: scope ¶ 15, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G, app. A (West 2013) ("These rules do not undertake to define standards of civil liability of lawyers for professional conduct. Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached."). In other words, the Disciplinary Rules do not create standards of civil liability for attorneys, but courts may examine the Disciplinary Rules to discern the policies and protections embodied in them as an aid. See Royston, 467 S.W.3d at 503; Gillespie , 2016 WL 7234067, at *4; Tex. Disciplinary Rules of Prof'l Conduct preamble: scope ¶ 15. The Disciplinary Rules provide that "[a] lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable." Tex. Disciplinary Rules of Prof'l Conduct R. 1.04(a). The Disciplinary Rules require a contingent-fee agreement to be in writing. See Gillespie , 2016 WL 7234067, at *3; Tex. Disciplinary Rules of Prof'l Conduct R. 1.04(d). Also, the Disciplinary Rules provide that a contingent fee is permitted only where the fee is "contingent on the outcome of the matter for which the service is rendered." See Hoover Slovacek, 206 S.W.3d at 563; Tex. Disciplinary Rules of Prof'l Conduct R. 104(d). Further, the Disciplinary Rules provide that a contingent-fee agreement:

[S]hall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

Tex. Disciplinary Rules of Prof'l Conduct R. 104(d). However, without diminishing to any degree the ethical obligations of attorneys, courts are mindful that the parties to an agreement determine its terms, and courts must respect those terms absent compelling reasons to do otherwise. See Royston, 467 S.W.3d at 503-04.

Unconscionability is an affirmative defense. See Banowsky v. Schultz, No. 05-14-01624-CV, 2016 WL 531573, at *9 (Tex. App.—Dallas Feb. 10, 2016, no pet.) (mem. op.). Generally, an affirmative defense must be pleaded or it is waived. TEX. R. CIV. P. 94. However, the pleading requirement in Texas Rule of Civil Procedure 94 is not absolute. See Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992). For example, illegality need not be pleaded because: (1) pleading an agreement is illegal on its face anticipates the defense; and (2) enforcement of an illegal agreement violates public policy. See Shoemake, 826 S.W.2d at 937; Phillips v. Phillips, 820 S.W.2d 785, 789-90 (Tex. 1991). For the same reasons, the defense of penalty is not waived by the failure to plead it if it is apparent on the face of the petition and established as a matter of law. See Shoemake, 826 S.W.2d at 937; Phillips, 820 S.W.2d at789-90.

C. Application of the Law to the Facts

Initially, we address Forest Law's argument that Douglas-Peters did not plead the affirmative defense of unconscionability so her issue is waived. During the trial, there was testimony as to the enforceability of the retainer agreement and contingent fee. Also, in her motion for new trial, Douglas-Peters challenged the trial court's findings of fact and conclusions of law relating to the enforceability of the contingent-fee provision in the retainer agreement. Accordingly, we will assume, without deciding, that Douglas-Peters preserved her argument that the contingent-fee provision was unenforceable because it was unconscionable and against public policy. See generally, Shoemake, 826 S.W.2d at 937 (illegality); Phillips, 820 S.W.2d at 789-90 (penalty).

For example, during the trial, Douglas-Peters stated that:

My understanding is that the Texas Health and Safety Code [section 242.128] provides immunity to any prosecution related to the report of abuse. Attorneys' fees are a part of the statute that has to do with the report of abuse, and therefore, any prosecution related to that, that makes the attorneys' fees a part of the statute related to the report of abuse.

The trial court disagreed with Douglas-Peters' interpretation of section 242.128. Also, during her closing argument, Douglas-Peters argued, without objection:

The Supreme Court has ruled that lawyers almost always possess more sophisticated understanding of fee agreements, and therefore, the appropriate balance and the burden of fair dealing and allotment of risk is in their hands. And basically it's a fee agreement. It is not a contract. It says, "Retainer Agreement." There are significant differences between a valid, enforceable contract and an agreement. The Supreme Court said that a contract is not just the contract. And it's primarily due to—from all the sources I can find, it is due to the fiduciary relationship of trust.

. . . .

We have an agreement. A retainer agreement that's inferred by the legal profession, and by definition it is not a valid, enforceable contract.

Also, we note that in her pro se motion for summary judgment, she argued the contingent-fee agreement in the retainer agreement was unconscionable and expressly disagreed with Forest Law's statement in support of its breach-of-contract claim in its traditional and no-evidence motion for summary judgment that they had entered into a valid enforceable contract. Also, in her response to Forest Law's motions for summary judgment, she argued Texas Kore Law had charged an unreasonable and unconscionable fee and that the contractual provisions requiring that unreasonable fee were unenforceable and void. Douglas-Peters also made an unconscionability argument in her brief in opposition to Forest Law's motion for summary judgment. During opening argument, Douglas-Peters argued the contract was unenforceable. She did not specify unconscionability, but after enumerating several reasons, she added "enforcement is contrary to many other policies."

On appeal, Douglas-Peters impliedly challenges the following finding of fact:

12. [] Douglas-Peters had a valid and enforceable contract with [Texas Kore Law], and she failed and refused to pay the 40% contingency fee plus expenses due under the [retainer agreement]. Douglas-Peters breached her [retainer agreement] with [Texas Kore Law]. The contingency fee due under the contract was $164,748.88. [footnote omitted]. [Texas Kore Law] was also entitled to be reimbursed for the expenses it incurred in the representation of Douglas-Peters, including expert witness fees, in the total amount of $5,704.33.

See Shaw, 251 S.W.3d at 169 (challenge to unidentified findings of fact may be sufficient if appellate court can determine from argument specific findings of fact appellant challenges). In a footnote to finding of fact no. 12, the trial court noted that the $164,748.88 "is calculated as follows: $411,872.19 x .40 = $164,748.88." Also, Douglas-Peters impliedly challenges the following conclusion of law:

18. [Texas Kore Law] had a valid and enforceable contract with Douglas-Peters.

First, we address Douglas-Peters' claim that the contingent-fee provision in the retainer agreement is unenforceable because the means for calculating the contingent fee was unconscionable as it results in the attorneys recovering excessive compensation. She contends that the trial court inappropriately "added the $80,000 statutory legal fee award from the underlying case to the gross amount recovered as actual and exemplary damages before applying the 40% contingency agreement between [Douglas-Peters and Texas Kore Law]." As a result, she argued the trial court's award "more than doubled the reasonable value of [her] lawyers' services as found by the underlying court resulting in an hourly rate in excess of $823.00." Douglas-Peters maintains that "[t]his fee is unreasonable and unconscionable. . . . By adding the legal fees awarded to the amount to which the contingent fee is applied, the [trial court's] result is an unconscionable and excessive fee."

The retainer agreement between Douglas-Peters and Texas Kore Law was admitted into evidence. With respect to attorneys' fees, the retainer agreement states, in part:

II. [Douglas-Peters'] Responsibility to Pay the Lawyers' Fees

A. The Lawyers' Fees

The lawyers have offered to represent the client on an hourly basis at their standard hourly rates. [Douglas-Peters], however, does not want to pay the lawyers on an hourly basis. [Douglas-Peters] prefers to pay the lawyers a percentage of the total recovery obtained in this case.

The lawyers do not guarantee or promise that [Douglas-Peters] will receive a recovery or win this case. If there is a recovery, the attorneys' fees will be a percentage of the total recovery as outlined below:

1. [Douglas-Peters] will pay no attorneys' fees if there is no recovery.

. . . .

3. Thirty days before this case is first set for trial, whether or not the case actually goes to trial on that date or is reset, [Douglas-Peters] agrees to pay the lawyers forty percent (40.00%) of the total recovery.

. . . .

B. Definition of Total Recovery

The total recovery is (i) the total amount recovered by settlement or judgment, including any amount recovered in interest, (ii) the annual salary, wages, or commissions of any job [Doulas-Peters] accepts with Defendant(s) or its subsidiaries or related companies, (iii) court costs, (iv) attorneys' fees, and (v) punitive damages. There is nothing subtracted in determining the total recovery.

. . . .

VI. [Douglas-Peters'] Right to Fire [Texas Kore Law]

[Douglas-Peters] understands that she has the right to fire [Texas Kore Law] at any time, even if [Douglas-Peters] has no reason. Any decision to termination [Texas Kore Law] must be provided in writing, and will be effective upon receipt by [Texas Kore Law].

(Emphasis in orig.)

The written retainer agreement informed Douglas-Peters of the amount of the contingent fee, i.e., 40% of the total recovery, and its implications should Douglas-Peters prevail. Further, it defines total recovery and specifies that "nothing [shall be] subtracted in determining the total recovery." This is the calculation the trial court used. In addition, the retainer agreement permits Douglas-Peters to terminate Texas Kore Law's representation at any time without reason. Finally, it states that Douglas-Peters did not want to pay an hourly rate and preferred the contingent fee. During the trial, Douglas-Peters offered no evidence that the contingent-fee calculation provided for in the retainer agreement was excessive. Accordingly, we conclude that the contingent-fee provision in the retainer agreement informed Douglas-Peters of all material facts and the trial court did not err when it determined the particular contingency percentage was enforceable.

Second, we address Douglas-Peters' argument that, at the time it was formed, the contingent-fee provision of the retainer agreement was unconscionable because it was contrary to the public policy embodied in former section 242.133 of the Texas Health and Safety Code. Douglas-Peters claims that "[s]ince this case involves a statutory fee shift under former Texas Health [and] Safety Code [s]ection 242.133, the statutory award should supersede or replace the contingent fee agreement between the parties based upon public policy." Douglas-Peters argues that Texas Kore Law has already been paid the $80,000 awarded as attorneys' fees in the underlying case against her former employer.

Former section 242.133 of the Texas Health and Safety Code prohibited retaliation against employees that reported a violation and permitted an employee to sue for retaliation. Act of June 14, 1989, 71st Leg., R.S., cha. 678, § 1, 1989 Tex. Gen. Laws 2230, 2476, repealed by Act of July 19, 2011, 82nd Leg., 1st C.S., ch. 7 (S.B. 7) § 1.05(m), 2011 Tex. Gen. Laws 309, 317; see also TEX. HEALTH & SAFETY CODE ANN. § 161.134 (West Supp. 2016). It allowed for recovery of, inter alia, damages, mental anguish, exemplary damages, lost wages, and attorneys' fees. Act of June 14, 1989, 71st Leg., R.S., cha. 678, § 1, 1989 Tex. Gen. Laws 2230, 2476 (repealed 2011); see also TEX. HEALTH & SAFETY CODE ANN. § 161.134.

Although Douglas-Peters argues that public policy should limit her attorneys' fees to the $80,000 awarded in the underlying judgment against her former employer based on former section 242.133 of the Texas Health and Safety Code, she does not provide any analysis or legal basis for her argument demonstrating why that section makes the contingent-fee provision of the retainer agreement unconscionable and contrary to public policy, and therefore, unenforceable. See TEX. R. APP. P. 38.1(i).

Issue three is decided against Douglas-Peters.

V. SUMMARY JUDGMENT

In the first part of issue four, Douglas-Peters argues that the trial court erred when it denied her pro se motion for summary judgment on her counterclaims against Forest Law for unjust enrichment and conversion. However, after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal, except in specific situations that do not apply here. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Texas Instruments v. Udell, No. 05-14-01042-CV, 2016 WL 4485573, at *2 n.2 (Tex. App.—Dallas Aug. 25, 2016, pet. filed) (mem. op.); Zaan, L.L.C. v. Sangani, No. 05-12-00423-CV, 2015 WL 2398652, at *6 (Tex. App.—Dallas Aug. 26, 2015, pet. denied) (mem. op.); Clark v. Dillard's, Inc., 460 S.W.3d 714, 724 (Tex. App.—Dallas 2015, no pet.); Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.). Accordingly, we conclude that Douglas-Peters may not appeal the denial of her pro se motion for summary judgment.

Based on our review of the record, Douglas-Peters did not file an unjust-enrichment counterclaim against Forest Law. Although Douglas-Peters did file third-party claims against Holen and Choe for conversion and unjust enrichment, they are not parties to this appeal. Also, Douglas-Peters does not appeal the trial court's February 5, 2010 order granting Forest Law's second motion for traditional and no-evidence summary judgment, ordering that Douglas-Peters take nothing on her conversion counterclaim against Forest Law.

The first part of issue four is decided against Douglas-Peters.

VI. CONCLUSION

The trial court did not err in its holding as to standing, capacity, defect of parties, or enforceability of the contingent-fee provision of the retainer agreement. Also, the evidence is legally and factually sufficient to support the trial court's judgment. Finally, Douglas-Peters may not appeal the trial court's denial of her pro se motion for summary judgment.

The trial court's final judgment is affirmed.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE 151538F.P05

JUDGMENT

On Appeal from the 116th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-01027.
Opinion delivered by Justice Lang. Justices Myers and Evans participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee CHO, CHOE & HOLEN, P.C. recover its costs of this appeal from appellant JOSEPHINE DOUGLAS-PETERS. Judgment entered this 3rd day of March, 2017.

Douglas-Peters v. Cho, Choe & Holen, P.C.

Summary

Opinion

MEMORANDUM OPINION

I. FACTUAL AND PROCEDURAL CONTEXT

II. STANDING, CAPACITY, AND DEFECT OF PARTIES

A. Standard of Review

B. Applicable Law

C. Standing

1. Applicable Law—Standing

2. Application of the Law to the Facts

D. Capacity

1. Applicable Law—Capacity

2. Application of the Law to the Facts

E. Defect of Parties

1. Applicable Law—Defect of Parties

2. Application of the Law to the Facts

III. LEGAL AND FACTUAL SUFFICIENCY

A. Standard of Review

1. Legal and Factual Sufficiency of the Trial Court's Findings of Fact

2. Legal Sufficiency of the Trial Court's Conclusions of Law

B. Statute of Limitations

1. Applicable Law

2. Application of the Law to the Facts

D. Credit or Offset

1. Applicable Law

2. Application of the Law to the Facts

IV. ENFORCEABILITY OF THE CONTINGENT-FEE PROVISION

A. Standard of Review

B. Applicable Law

C. Application of the Law to the Facts

V. SUMMARY JUDGMENT

VI. CONCLUSION

JUDGMENT

Douglas-Peters v. Cho, Choe & Holen, P.C.

Douglas-Peters v. Cho, Choe & Holen, P.C.

Case Details

Citations

Citing Cases

Douglas-Peters v. Cho, Choe & Holen, P.C.

Summary

Opinion

MEMORANDUM OPINION

I. FACTUAL AND PROCEDURAL CONTEXT

II. STANDING, CAPACITY, AND DEFECT OF PARTIES

A. Standard of Review

B. Applicable Law

C. Standing

1. Applicable Law—Standing

2. Application of the Law to the Facts

D. Capacity

1. Applicable Law—Capacity

2. Application of the Law to the Facts

E. Defect of Parties

1. Applicable Law—Defect of Parties

2. Application of the Law to the Facts

III. LEGAL AND FACTUAL SUFFICIENCY

A. Standard of Review

1. Legal and Factual Sufficiency of the Trial Court's Findings of Fact

2. Legal Sufficiency of the Trial Court's Conclusions of Law

B. Statute of Limitations

1. Applicable Law

2. Application of the Law to the Facts

D. Credit or Offset

1. Applicable Law

2. Application of the Law to the Facts

IV. ENFORCEABILITY OF THE CONTINGENT-FEE PROVISION

A. Standard of Review

B. Applicable Law

C. Application of the Law to the Facts

V. SUMMARY JUDGMENT

VI. CONCLUSION

JUDGMENT

Douglas-Peters v. Cho, Choe & Holen, P.C.

Douglas-Peters v. Cho, Choe & Holen, P.C.

Case Details

CitationsCopy Citation

Citing Cases

Citations