Phil Watkins, P.C. v. The Krist Law Firm, P.C. Brief

Phil Watkins, P.C. v. The Krist Law Firm, P.C., 2003 Tex. App. Lexis 6693

Procedural History:

            Krist sued Watkins and the clients that Krist formerly represented because they did not pay Krist an amount that was previously settled for including fees and expenses.  The trial court found in favor for Krist based on a contract sent to Watkins from Krist.  Watkins then appealed the case.

Facts:

            Krist law firm represented two clients Sorrells and Sides in a case against DuPont for damages to their pecan orchards caused by Benlate fungicide manufactured by DuPont.  The reached a settlement where the plaintiff would receive $200 per affected acre owned.  The clients of Krist discharged after this settlement was reached without just cause.  The clients hired Watkins to represent them.  Watkins re-litigated the case and received a settlement larger than the one settled for previously by the Krist Law firm.  Krist sued Watkins and the clients for not paying him fees and expenses that were required according to the agreement sent by Krist to Watkins.

Issue:

1.      Was there consideration for the contract?

2.      Is the contract ambiguous?

Holding:

1.      Yes there was consideration for the contract because even though it wasn’t specifically stated the agreement showed that Krist was still asserting its rights to recover attorneys’ fees and expenses.

2.      Yes.  If an agreement is uncertain and doubtful in any way than the contract is ambiguous.

Rationale:

            City of Bunker Hill Village v. Memorial villages Water Auth., 809 S.W.2d 309, 310-311 (Tex. App. 1991) held that reversing summary judgment because the contracts in question were ambiguous and holding that agreement of parties that a contract is unambiguous does not proven an appellate court from finding ambiguity under the ordinary rules of contract construction.

            If a written instrument is so worded that it can be given a certain legal meaning, then it is not ambiguous and is construed as a matter of law. 

            Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 W.E.2d 565, 574 (Tex. 1996) found if a written instrument’s meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning, then it is ambiguous and its meaning must be resolved by a finder of fact.

            It’s unlikely that Krist would forfeit half a million dollars in the case that Watkins received a bigger settlement.  Krist would still have a claim against the clients based on quantum meruit.

            The problem with the agreement sent from Krist to Watkins is that it doesn’t state the amount that was settled for by the Krist firm.  Also, in the sentence of the agreement where it states that if Watkins recovered more than what the Krist firm recovered than Krist will forfeit all its fees and expenses is uncertain and doubtful according to the appellate court.

            In another case A.W. Wright & Associates, P.C. v. Glover, Anderson, Chandler & Uzick LLP., 993 S.W.2d 466, 470 (Tex. App. 1999) the holding was that language in referral contracts between attorneys was uncertain and doubtful and therefore ambiguous.  If the agreement between the parties is uncertain or doubtful in any way than the court will find it ambiguous.  The appellate court found the agreement to be uncertain and doubtful and therefore ambiguous and remands the case to the trial court.

Decision:

            The appeals court reverses the trial courts award and remands this case to the trial court so that the trier of f ct may determine the true intent of the paties.

Living Will

                        I, Chauncey Philips, being of sound mind and at least eighteen years of age, direct that my life shall not be artificially prolonged under the circumstances set forth below, and hereby declare that:

1.      If, at any time, my licensed, attending physician and one other licensed physician certify in writing that:

a.       I have an injury, disease, or illness which is not curable or reversible and which, in their judgment, is an incurable, terminal condition; and

b.      For a period of seven consecutive days or more, I have been unconscious, comatose, or otherwise incompetent so as to be unable to make or communicate responsible decisions concerning my person, then

I direct that, in accordance with Colorado law, life-sustaining procedures shall be withdrawn and withheld pursuant to the terms of this declaration, it being understood that life-sustaining procedures shall not include any medical procedure or intervention for nourishment considered necessary by the attending physician to provide comfort or alleviate pain.  However, I may specifically direct, in accordance with Colorado law, that artificial nourishment be withdrawn or withheld pursuant to the terms of this declaration.

            2.  In the event the only procedure I am being provided is artificial nourishment, I direct that artificial nourishment shall not be continued when it is the only procedure being provided for.

            3. I execute this declaration as my free and voluntary act this 14^th day of August, 2008.

            _________________________________

Chauncey Philips

            The foregoing instrument was signed and declared by Chauncey Philips to be his declaration, in the presence of us, who, in his presence, in the presence of each other, and at his request, have signed our names below as witnesses, and we declare that, at the time of the execution of this instrument, the declarant, according to our best knowledge and belief, was of sound mind and under no constraint or undue influence.

_________________                                      __________________

Witness                                                            Witness

_________________                                      __________________

Date                                                                 Date

State of Colorado         )

                                    ) ss.

County of Larimer        )

            Subscribed and sworn to before me this 14^th day of August, 2008, by Chauncey Philips, the declarant, and ______________and____________, witnesses, as the voluntary act and deed of the declarant.

                        Witness my hand and official seal.

                        My commission expires:________________

                                                            _______________________

                                                            Notary Public

Remedies at Law

Damages always result in the payment of money.  However, the basis or purpose for awarding damages determines how much money is awarded.  The purpose of damages always is to make the plaintiff whole, but making the plaintiff whole means different things in different situations.

            Damages must have been foreseeable at the time a contract is made or at the time the tort occurs.  Damages which are too far removed from the contract are not foreseeable and cannot be awarded.  In addition, the plaintiff has a duty to mitigate his damages.  In other words, he must take reasonable steps to minimize his losses.  If he fails to mitigate, his damage award is reduced by the amount of loss that could have been prevented through mitigation.  Both compensatory damages and restitution must be proved with a “reasonable degree of certainty” at the time of trial.  This means the plaintiff must provide evidence of his losses when he seeks either compensatory damage or restitution.

Compensatory Damages

            Compensatory damages focus on the plaintiff’s losses.  Compensatory damages are further classified as either general damages or special damages.  Special damages may be called consequential damages in some jurisdictions.  By black-letter definition, general damages are those losses which anyone in the plaintiff’s situation would incur.

            The goals of general damages and special damages are the same in both contract and tort cases, because the basis for the losses are different, the damages may seem to be different. 

Punitive Damages

            Sometimes called exemplary damages, the purpose of punitive damages is to punish the defendant for outrageous conduct, such as causing injury while driving under the influence of alcohol or a controlled substance.  Punitive damages are not allowed in some states.  Where they are allowed, they serve the purpose of teaching a lesson to the defendant.

Nominal Damages

            The purpose of nominal damages is to vindicate a right which has been violated when no monetary loss has occurred.  A court typically awards a trivial amount plus court costs in that situation. 

Liquidated Damages

            Liquidated damages arise in contract cases only.  They are damages agreed to by the parties at the time the contract is made, and they represent the parties’ reasonable estimate of losses in the event of breach.

The Judicial System

Although the legal assistant must be familiar with all aspects of the American legal system, the practice of law typically revolves around the judicial branch.  The function of the judicial branch is to apply law to facts in resolving disputes between adversaries, which is accomplished through the trial and appellate processes. 

Each legal system has its own judicial branch, which operates through a system of courts.  A court is classified by the system in which it operates and by the types of cases which it is authorized to hear. These classifications are part of a court’s jurisdiction.  Jurisdiction is the power or authority of a court to hear a specific case.  Both subject matter jurisdiction and personal jurisdiction must exist before a court can decide the merits of a particular case.

Subject Matter Jurisdiction

            Subject matter jurisdiction relates to the type of case in which a court is authorized to hear.  If a court does not have subject matter jurisdiction, it lacks the power to decide the merits of the case.  In that situation, any action taken by it is void; it has no effect whatsoever.  Because it relates to a court’s power to act, subject matter jurisdiction never can be waived.

Limited or General Jurisdiction

            Every court is either a court of limited jurisdiction or a court of general jurisdiction.  No court can be both.  Limited Jurisdiction means that the court cannot hear every type of case presented to it; it can hear only those types of cases which are listed in its creating constitutional provision or statute.  Because of the federal government is one of limited powers, every federal court is a court of limited jurisdiction.

           

            General Jurisdiction means that the court can hear any type of case presented to it unless exclusive jurisdiction has been granted to some other court for a particular type of case.  Every state has at least one court of general jurisdiction, sometimes called a district or superior court.

Original or Appellate Jurisdiction

            Every court is either a court of original jurisdiction or a court of appellate jurisdiction, but some courts are both.  Original Jurisdiction means that actions are commenced in this court for particular types of cases.  A court of original jurisdiction is the trial court for those types of cases specified in its creating constitutional provision or statute.

            Appellate Jurisdiction means that the court is authorized to review decisions of an inferior court in certain types of cases.  A single court may have original jurisdiction in one type of case and appellate jurisdiction in another type of case.  

Concurrent Jurisdiction

            Concurrent jurisdiction means that more than one court is authorized to hear a specific type of case.  This allows a plaintiff to choose between those courts having concurrent jurisdiction of the subject matter of the case.

Personal Jurisdiction

            A court must have both subject matter jurisdiction and personal jurisdiction, some times called in personam jurisdiction, before it can hear and decide the merits of a particular case.

            Personal Jurisdiction refers to the court’s power or authority over the parties to the litigation.

            A court acquires personal jurisdiction over a plaintiff when they file their complaint or petition.  Personal jurisdiction over a defendant usually can be acquired with one of the following ways.

• Defendant’s consent;
• Defendant’s domicile in the same state where the action is file;
• Long-arm statutes

Classifications of Law

All legal rules can be grouped into broad categories according to their type.  A rule’s classification tells us the situations to which it applies and how it applies in relation to other rules.  For example, all law is classified as either criminal or civil.

Substantive or Procedural Law

            All law is either substantive or procedural. 

Substantive Law-

A substantive law is a legal rule which creates or defines rights and duties.  For every right, there is a corresponding duty. 

Examples of substantive law are the constitutional provision establishing Congress, and administrative regulation requiring the registration of publicly traded securities, a state statute limiting the speed of vehicles, or a court opinion interpreting the terms of a contract or further refining common law rules of negligence.

Every substantive law can be classified as either public or private.

Procedural Law-

           

Procedural law, sometimes called adjective law, complements substantive law by providing the mechanisms to enforce substantive rights and duties.  As it relates to courts and administrative agencies, procedural law typically includes the method for initiating an action, serving a summons, making motions, conducting discovery and trial, and appealing the final judgment.

            Examples of procedural law include the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the Federal Rules of Appellate Procedure. 

Public Law-

           

            All substantive law is either public or private.  Public law consists of rules which involve the relationship of government to society as a whole.  Constitutional law, administrative law, and criminal law are examples of public law.

Private Law-

            Private law consists of rules which involve the relationship of private individuals to each other.  Most civil law is private law, including tort law, contract law, and most property law.

           

Criminal Law and Civil Law

Criminal Law-

            Criminal law consists of rules designed to protect society by providing minimum standards of conduct which must be observed by each of it members.  Penal sanctions are imposed on those who fail to observe the minimum standards.  Crimes are defined by statute (federal or state) or ordinance (local).

Crimes are further classifies as treason, felonies, or misdemeanors.

Treason-

Treason is an attempt to overthrow the government as defined by Articles III, Section 3 of the U.S. Constitution.

Felony-

A felony is a crime for which the maximum possible punishment is either death or imprisonment for on year or more. 

Misdemeanor-

A misdemeanor is a crime for which the maximum possible punishment is either a fine or imprisonment for less than one year.

Civil Law-

            Civil law consists of those legal rules which focus on the rights and duties of individuals in relation to each other.  In contrast to criminal law, which imposes penal sanctions, civil law sanctions are remedial; they grant a remedy to enforce a right.

            American civil law is based on common law principles and traditionally is classified according to the basis of the right or duty to be enforced, and the type of remedy sought, whether legal or equitable.

            Tort-

                        A tort is a wrongful act (other than breach of contract) for which the law provides a remedy, typically in the form of money damages.  Torts are based on rules of conduct to which each member of society is expected to conform. 

                        Examples of torts include assault, battery, conversion, false imprisonment, negligence, and trespass.  A tort can be intentional (assault, battery, conversion, trespass); unintentional (negligence); or based on strict liability (defective product sold to public).

Definition and Philosophies of Law

  Everay legal assistant must be able to articulate the American legal structure and the general legal principles which have evolved, and which continue to evolve, within it. 

Law Defined
    There are many definitions of the word law within the context of the practice of law, not to mention the system which is served by law practitioners.  Each definition provides a slightly different perspective or nuance, but the general definition can best be describes as follows:

       Law is a system of enforceable rules adopted by a controlling body to govern the conduct of a society.

Philosophies of American Law
    A legal philosophy is a school of thought concerning the purpose of law and how it should operate.  Several different legal philosophies are intertwined in the American legal system.  Although they evolved at various points in history, they continue to impact the way in which our laws operate. 

Natural Law-
  This philosophy emphasized the individual's right to make personal choices as long as those choices do not interfere with another's right to make personal choices.  The freedom of choice is a birthright; it is not conferred b anyone, and it cannot be taken away by anyone.

Legal Positivism-
  This philosophy emphasized the institutional rule of law and distinguishes law from morality.  If the process used to adopt a particular rule is just and if no other rule exists to carve out an exception to that rule, the legal positivist adheres to the rule.Legal Positivism is reflected in the maxim: Hard cases make bad law.

Sociological Jurisprudence-
  This philosophy promotes societies values as the measuring stick for right and wrong; it evaluates a legal rule by looking at its social effect.  If the effect is bad, the legal sociologist favors getting rid of the rule.  Law is seen as a tool for social engineering.

Legal Realism-
  This philosophy determines what reasonable people would do in a given situtaion and then sanctions that conduct.  Legal realists treat legal rules as little more than rebuttable presumptions.

Different metods of legal reasoning can lead to different results.  Therefore, we look not only at the controlling rule of law stated in a judicial opinion, but also at the reasoning used to support the stated rule.