the Law Office of Dennis Hunsberger PLLC v. Physician Life Care Planning, LLC
04-20-00243-CV
| Tex. App. | Jul 21, 2021Background
- PLCP (expert-services firm) and Hunsberger (solo PI attorney) signed a Retention Agreement listing a menu of products/services and prices; PLCP sent invoices for selected items and Hunsberger paid some but not invoices for expert trial testimony totaling $10,500.
- PLCP delivered a physician report (concluding non‑catastrophic injury) and an economist’s economic damages report treating the claimant as totally disabled (no residual earnings analysis); Hunsberger later complained the wrong economic report was provided.
- The personal‑injury jury returned a defense verdict; PLCP then sued on a sworn account for unpaid invoices and sought attorney’s fees; Hunsberger counterclaimed for breach of contract (wrong/incomplete reports).
- PLCP moved for traditional and no‑evidence summary judgment; the trial court struck portions of Hunsberger’s affidavit, granted summary judgment to PLCP, awarded $10,500 plus interest, costs, and attorney’s fees (with contingent appellate fees), and denied Hunsberger’s motion for new trial.
- On appeal Hunsberger argued the Retention Agreement was unenforceable/ambiguous (no meeting of the minds), that pre‑agreement intake materials controlled, that PLCP breached first, and that attorney’s fees awarded were excessive.
Issues
| Issue | Plaintiff's Argument (PLCP) | Defendant's Argument (Hunsberger) | Held |
|---|---|---|---|
| Enforceability of the Retention Agreement/menu contract | Retention Agreement + invoices form an enforceable contract specifying prices and terms; invoices show selections | Agreement is indefinite: essential terms (which product chosen) left for later, so no binding contract | Contract enforceable; Retention Agreement and invoices established essential terms and formation |
| Whether intake form/emails are part of the contract | Intake form/emails were preliminary; only Retention Agreement and invoices created the contract | Intake form and pre‑agreement emails reflect the parties’ true agreement (including residual‑earnings report) | Intake form/emails are preliminary and not part of the contract; Retention Agreement controls |
| Hunsberger’s claim that PLCP breached (wrong economic report) excusing nonpayment | PLCP delivered the products invoiced; no proof of prior breach | PLCP breached by providing a report without residual earnings analysis; breach excuses payment | Hunsberger produced no competent summary‑judgment evidence of PLCP’s breach; PLCP negated breach element; summary judgment for PLCP on claim and counterclaim |
| Reasonableness/excessiveness of attorney’s fees award | Attorney’s affidavit and billing records establish reasonable fees and prospective conditional appellate fees | Fees excessive relative to $10,500 invoiced; award disproportionate | Award affirmed: uncontroverted affidavit supports reasonableness and prospective fees; Hunsberger failed to timely controvert |
Key Cases Cited
- First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017) (summary‑judgment standard)
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (movant bears initial burden in traditional summary judgment)
- Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018) (burden shift after movant meets summary‑judgment burden)
- KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) (no‑evidence summary‑judgment standard)
- T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) (contract must be sufficiently definite)
- Fischer v. CTMI, L.L.C., 479 S.W.3d 231 (Tex. 2016) (agreements to enter future contracts enforceable if material terms present)
- In re Laibe Corp., 307 S.W.3d 314 (Tex. 2010) (multiple documents may form a single contract)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (whether a contract is ambiguous is a question of law)
- Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (burden to raise fact issue on affirmative defenses at summary judgment)
- Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) (definition of a reasonable attorney’s fee)
- Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019) (fee‑opponent must submit specific evidence to overcome presumptive lodestar)
- Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545 (Tex. 2009) (uncorroborated, clear, positive testimony of interested witness may be taken as true)