Opinion
NO. 01-19-00003-CV
02-02-2021
ROBERT D. JACKSON, Appellant v. BRIAN STORTS AND STORTS LAW FIRM, Appellee
On Appeal from the 113th District Court Harris County, Texas
Trial Court Case No. 2016-28274
MEMORANDUM OPINION
Acting pro se, appellant Robert D. Jackson sued his former attorney, appellee Brian Storts, for professional negligence and other claims based on the same set of facts. After a bench trial, the trial court rendered take-nothing judgment in favor of Storts, and Jackson appealed, challenging the sufficiency of the evidence and the exclusion of two exhibits.
We affirm.
Background
In 2013, Jackson was named as a codefendant in a civil case. The civil pleadings alleged that Jackson had committed acts for which he could be held both civilly and criminally liable. Jackson discussed the legal matter with Storts, who was a firefighter in addition to a practicing attorney. Storts began advising Jackson about the case until early 2014, when he informed Jackson that he could not continue assisting him without payment. In January 2014, Jackson agreed to Storts's representation on an hourly-fee basis. In February 2014, Storts and Jackson entered into a written fee agreement that formalized their hourly-fee agreement for Storts's representation in the civil matter. A month later, they entered into a second written agreement for Storts to represent Jackson "regarding the criminal allegations" involved in the civil case in exchange for a $25,000 flat fee.
Storts has since been disbarred for reasons unrelated to Jackson's case.
At trial, Storts testified that the strategy, with which Jackson agreed, was to delay litigation in the civil case and let the plaintiff focus on the codefendant and to avoid or delay criminal charges, which could form the basis for Jackson to be dismissed from his firefighting job. Storts testified that to further these objectives, Jackson agreed that Storts would not immediately appear in the civil suit and would not appear at certain pretrial hearings or mediation.
Jackson paid Storts a total of approximately $13,700 in fees that were split between the civil and criminal fee agreements. Around May 2014, Storts orally agreed to represent Jackson in both matters for one flat fee of $25,000, but Jackson stopped making payments. In July and August 2014, Storts informed Jackson that he would need to withdraw from representation entirely if Jackson could not continue paying him.
In October 2014, Jackson requested a copy of his file and a refund of the $6,850 that was paid toward the criminal fee agreement. Storts maintained that the entire amount of the fee that had already been paid was compensation for the services he had already rendered. Nevertheless, he offered to settle the dispute with Jackson by refunding the $6,850 on a payment schedule because he lacked the resources to make a lump-sum payment. Jackson did not agree and filed suit against Storts alleging multiple causes of action all relating to the same operative facts.
Specifically, Jackson's live pleading at trial stated that he was asserting the following causes of action:
• Negligence,
• Gross negligence,
• Negligent misrepresentation,
• Breach of fiduciary duty,
• Fraudulent inducement,
• Violation of the Deceptive Trade Practices Act,
• Theft and conversion,
• Violation of the Texas Theft Liability Act,
• Misapplication of fiduciary property,
• Securing execution of document by deception,
• Extortion,
• Respondeat superior,
• Common law fraud,
• Unjust enrichment, and
• Breach of contract.
Because the issue is not raised by the parties, we do not opine as to whether these claims were properly pleaded.
Both Jackson and Storts were pro se at trial. Jackson's sole trial witness was Storts, who testified that Jackson had agreed to pay him hourly for the civil representation, to pay a $25,000 flat fee for the criminal representation, and later agreed that the $25,000 flat fee would suffice for payment for both the civil and criminal representation. He testified that he had earned the entire amount of fees that Jackson had paid. This testimony was undisputed.
Storts no longer had a license to practice law by the time this case went to trial.
Jackson rested after Storts's testimony without introducing evidence contradicting Storts's testimony, evidence about any loss he suffered as a result of Storts's representation, or evidence that he relied to his detriment on any representation made by Storts. Although Storts testified that, ultimately, no criminal charges were brought against Jackson, nothing in the record on appeal indicates the outcome of the civil case against Jackson.
The trial court rendered take-nothing judgment in favor of Storts, and it issued the following findings of fact:
1. The parties entered into a contract under which Defendant Storts agreed to provide legal services to Plaintiff Jackson.
2. Storts provided legal services to Jackson.
3. At some time during the relationship, Jackson ceased making payments to Storts for services rendered.
4. Storts did not breach his agreement with Jackson.
5. The value of legal services provided by Storts to Jackson exceeded the amounts paid by Jackson.
6. Jackson breached the agreement with Storts before Storts did anything that could amount to a breach [of] the agreement with Jackson.
7. Jackson submitted insufficient evidence to support a claim of professional negligence.
8. Jackson submitted insufficient evidence to demonstrate that any act or omission of Storts cause damage, loss or harm.
9. Jackson submitted insufficient evidence to support a claim for any amount of damage or loss.
Jackson appealed.
Analysis
On appeal, Jackson, who has continued to appear pro se, challenges the sufficiency of the evidence and the trial court's exclusion of two exhibits.
I. Pro se litigants are held to the same standards as attorneys.
We construe appellate briefs "reasonably, yet liberally, so that the right to appellate review is not lost by waiver." Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). We "should reach the merits of an appeal whenever reasonably possible." Id. (citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). The purpose of an appellate brief is to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case. Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *1 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.).
Like licensed attorneys, litigants appearing on their own behalf must comply with applicable laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). "Having two sets of rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to discard their valuable right to the advice and assistance of counsel." Wheeler, 157 S.W.3d at 444. Failing to require pro se litigants to comply with applicable laws and rules of procedure could give them "an unfair advantage over litigants represented by counsel." Mansfield State Bank, 573 S.W.2d at 185.
The Rules of Appellate Procedure require appellate briefs to include a clear and concise argument for each issue raised, with appropriate citations to legal authority and to the record. TEX. R. APP. P. 38.1(i). Rule 38 requires the appellant to provide a legal argument that demonstrates the basis for the requested relief. See Law Offices of Lin & Assocs. v. Mem'l Hermann Hosp. Sys., No. 01-08-00891-CV, 2011 WL 346483, at *2 (Tex. App.—Houston [1st Dist.] Jan. 31, 2011, pet. denied) (mem. op.). When an appellant fails to meet the procedural requirements for presenting an issue on appeal, the issue is waived. See, e.g., Izen v. Comm'n for Lawyer Discipline, 322 S.W.3d 308, 322 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
II. Sufficiency of the evidence
In his first issue, Jackson argues that the evidence is legally and factually insufficient to support the findings of fact. Even construing this contention liberally as a challenge that the judgment is not supported by legally and factually sufficient evidence, see Perry, 272 S.W.3d at 587, we conclude that the contention lacks merit.
First, almost all of the stated causes of action require proof of damages, harm, or injury. At trial, the undisputed evidence demonstrated that Jackson and Storts entered into an agreement for Storts to provide legal advice and representation, that Jackson paid approximately $13,700 in legal fees, and that Storts earned the full $13,700 in fees. Storts was the only witness at trial. Jackson did not testify, and no other controverting evidence was produced. Although Jackson's questions to Storts implied that he believed Storts did not earn the entire $13,700 fee, Jackson's questions are not evidence that could have been considered by the factfinder. Jackson's pleading and theory of the case was that he was entitled to a refund of legal fees from Storts. Because the evidence that Storts had earned the entire $13,700 fee was undisputed, Jackson was required to proffer some other evidence that he had been damaged, injured, or harmed by Storts's actions. He did not do this. Nothing in the record supports a finding that Storts suffered any damages, harm, or injury nor was there evidence of any particular amount of damages. Therefore, we conclude that the trial court properly rendered take-nothing judgment as to all of Jackson's claims which required proof of damages, harm, or injury.
See TEX. BUS. & COM. CODE § 17.50 (Deceptive Trade Practices Act); TEX. CIV. PRAC. & REM. CODE § 134.005 (violation of the Texas Theft Liability Act; theft); Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018) (fraudulent inducement); USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (breach of contract); In re FirstMerit Bank, 52 SW.3d 749, 758 (Tex. 2001) (fraud); United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (conversion); IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (negligence); Van Duren v. Chife, 569 S.W.3d 176, 191 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (negligence, negligent misrepresentation, breach of fiduciary duty). Jackson's claims for misapplication of fiduciary property and securing execution of a document by deception sound in breach of fiduciary duty or fraud and would require proof of damages. The court is unaware of any stand-alone claim for civil liability based on "extortion"; however, to the extent Jackson was alleging some type of abuse of process, that claim would also require proof of damages. Cf. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.—Houston [1st Dist.] 1994, writ dism'd) (abuse of process). --------
Second, some of Jackson's claims assert causes of action based on Storts's alleged violations of the Penal Code. But the Penal Code does not create private causes of action. See A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Therefore, we conclude that the court did not err by rendering take-nothing judgment as to those causes of action.
Third, Jackson pleaded an equitable cause of action for unjust enrichment. However, the undisputed evidence that Storts earned all the fees paid under the parties' agreements also precludes Jackson from recovering for unjust enrichment. See Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("Unjust enrichment occurs when a person has wrongfully secured a benefit or has passively received one which it would be unconscionable to retain.").
Having concluded that the trial court did not err by rendering take-nothing judgment in favor of Storts, we overrule Jackson's first issue.
III. Exclusion of evidence
In his second issue, Jackson asserts that the trial court abused its discretion by excluding exhibits 3 and 30. He provides no argument or citation to legal authority in support of his contention that the exclusion of these exhibits was error. While the brief includes no legal authority or argument as to exhibit 3, the legal authority cited regarding exhibit 30 supports the trial court's exclusion of the documents as evidence relating to settlement negotiations. See TEX. R. EVID. 408. We conclude that this issue has not been briefed in compliance with Rule 38 of the Texas Rules of Appellate Procedure, and we hold that it is waived. See TEX. R. APP. P. 38; Wheeler, 157 S.W.3d at 444; Mansfield State Bank, 573 S.W.2d at 184-85; Law Offices of Lin & Assocs., 2011 WL 346483, at *2; Izen, 322 S.W.3d at 322. We overrule Jackson's second issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice Panel consists of Justices Kelly, Goodman, and Countiss.