Adrian James v. Kirby Hiscox
03-15-00256-CV
Tex. App.Aug 27, 2015Background
- In November 2012 Hiscox (Actor) and James (Producer) executed a written personal‑services agreement: local day rate $1,000 (discounted from $1,500) in exchange for a guaranteed minimum of 20 shoot days ("equivalent to $20,000").
- Contract Paragraph 4 provided that if 20 shoot days were not met within the first four months, the $1,000 rate would "revert" to $1,500 and be paid retroactively for all completed shoot days.
- Hiscox performed 2 shoot days and was initially paid $2,000; James later tendered an additional $1,000 which Hiscox rejected. Hiscox demanded $18,000 (later asserted $28,000 / $30,000) and sued in county court.
- The parties filed competing motions for summary judgment. The trial court granted Hiscox’s motion, sustained objections to portions of Hiscox’s affidavit as inadmissible parol evidence, awarded $28,000 (total judgment $30,000 less prior $2,000 payment), plus attorney’s fees and costs, and denied James’s motion for new trial.
- James appeals, arguing the contract is ambiguous, the court misapplied summary‑judgment standards, failed to harmonize Paragraphs 2B (cancellation/pay rules) and 4, and should have construed ambiguities against the drafter (Hiscox).
Issues
| Issue | Plaintiff's Argument (Hiscox) | Defendant's Argument (James) | Held |
|---|---|---|---|
| 1. Whether genuine fact issues exist about contract interpretation | Contract is clear: guarantee failed → retroactive rate applies; Hiscox entitled to full remedy awarded | Contract is ambiguous and susceptible to multiple reasonable interpretations; summary judgment improper | Trial court held contract unambiguous in favor of Hiscox and granted plaintiff summary judgment |
| 2. Proper effect of Paragraph 4 liquidated/retroactive clause | Paragraph 4 is a valid liquidated‑damage/contingency clause: if 20 days not met, rate reverts and retroactive pay for completed days at $1,500 applies | Paragraph 4 must be read with Paragraph 2B and the rest of the contract; Plaintiff’s reading produces an unreasonable windfall and conflicts with cancellation provisions | Trial court accepted plaintiff’s reading and awarded retroactive damages |
| 3. Whether Paragraph 2B (cancellation pay scale) negates or creates factual issues | Paragraph 2B does not defeat Paragraph 4; contingency controls and entitles plaintiff to retroactive pay | Paragraph 2B introduces factual questions (notice timing, partial payments) that preclude summary judgment | Trial court did not treat Paragraph 2B as creating a fact issue and proceeded to judgment for plaintiff |
| 4. Who bears construction of ambiguity (contra proferentem) and availability of parol evidence | If ambiguous, ambiguity should be resolved against drafter (Hiscox); parol evidence may be needed to show intent | Ambiguity exists; summary judgment improper because intent is a fact question; plaintiff’s affidavit contains inadmissible parol evidence | Trial court sustained some objections to affidavit as parol evidence but nevertheless granted plaintiff summary judgment; James’s new trial motion was denied |
Key Cases Cited
- Haase v. Glazner, 62 S.W.3d 795 (Tex. 2001) (summary‑judgment standards and when issues of fact preclude judgment)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (ambiguity in contract creates fact issue on intent)
- Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546 (Tex. 1985) (nonmovant entitled to every reasonable inference on summary judgment)
- Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587 (Tex. 1996) (when contract is unambiguous)
- J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (tests for ambiguity after applying construction rules)
- Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193 (Tex. 1962) (harmonize whole instrument; no provision construed in isolation)
- City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex. 1968) (consider entire contract to ascertain parties’ intent)
- Arthur's Garage, Inc. v. Racal‑Chubb Sec. Sys., Inc., 997 S.W.2d 803 (Tex. App.—Dallas 1999) (standards for enforcing liquidated‑damages clauses)
- Anglo‑Dutch Petroleum v. Greenberg Peden, 267 S.W.3d 454 (Tex. App.—Houston [14th] 2008) (use of contra proferentem as tie‑breaker)