The Bryant Law Firm and Deborah E. Bryant v. Robert Walker

Affirmed and Majority and Dissenting Memorandum Opinions filed May 14,
2024

In The

Fourteenth Court of Appeals

NO. 14-23-00040-CV

THE BRYANT LAW FIRM AND DEBORAH E. BRYANT, Appellants
V.

ROBERT WALKER, Appellee

On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1145840

DISSENTING MEMORANDUM OPINION

In this appeal the pertinent facts are undisputed. A dispute erupted between
appellee Robert Walker and his attorney, appellant Deborah E. Bryant and her law
firm (collectively Bryant), over Bryant’s handling of Walker’s effort to terminate
his child support obligations. In addition, the undisputed facts establish that
Walker settled his claims against Bryant when he cashed her proffered settlement
check. Because the majority affirms the trial court’s judgment awarding Walker
damages for his claims that he had previously settled, I dissent.

Walker retained Bryant to represent him in a suit to terminate his child
support obligations. Walker eventually paid Bryant $3,300 for her representation.
Bryant represented Walker for more than a year, but she had not achieved
Walker’s goal of terminating his child support obligations. Walker, dissatisfied
with the delay, terminated Bryant’s services. Additionally, Walker notified Bryant
that he was “out of over an additional $3000 (not including my monthly child
support payments) since hiring you and I have nothing to show for it.” Walker
then requested a refund of all funds he had paid Bryant. Walker further informed
Bryant that if she was “not willing to handle this matter as such[,] my only other
option will be to handle this with legal action.”

Bryant agreed to refund the money Walker had paid and she informed
Walker that she would reduce their agreement to writing in the form of a release
for Walker to sign. Walker sent an email in which he demanded the return of his
entire file and protested Bryant attempting to force him to sign a release “under
duress.” Bryant then sent the proposed release and urged Walker “to take the
release to an attorney of your choice to review before you sign.” Walker did not
sign the release.

Several days later, Bryant sent Walker an email notifying him that she would
be sending him a copy of his file along with an unsigned release formalizing their
agreement, a self-addressed stamped envelope for return of the signed release, and
a $3,300 check by certified mail, return receipt requested. Walker received
Bryant’s mailing, including the check. The check included the following
statement: “CASH OF THIS CHECK REPRESENTS A FULL & FINAL
SETTLEMENT AND RELEASE OF ALL CLAIMS AGAINST DEB & TBLF
AND REFUND OF ALL ATTORNEY’S FEES ON CN200025634.” Walker

2
struck through this language and cashed the check.

About a week later, Walker filed suit against Bryant asserting claims for
DTPA violations, negligence, gross negligence, and breach of fiduciary duty.
Walker alleged that Bryant was liable to him for at least $10,500 in child support
payments that he believed he should not have had to pay if Bryant had properly
represented him. In response, Bryant asserted various affirmative defenses
including common law and statutory accord and satisfaction. Bryant also filed
counterclaims for breach of contract and intentional infliction of emotional
distress.

The case proceeded to trial. When Walker concluded his case in chief,
Bryant moved for a directed verdict on Walker’s claims against her based on the
affirmative defense of accord and satisfaction. Walker did not dispute that Bryant
had proven the elements of the accord and satisfaction defense, instead, he argued
that it did not apply to tort claims. Walker also appeared to be under the
misapprehension that Bryant was arguing she was entitled to a directed verdict
under “UCC 4 . . . which covers negotiable instruments for the sale of goods.” The
trial court denied Bryant’s motion.

When Bryant finished presenting her case, the trial court revisited Bryant’s
motion for directed verdict on Walker’s claims, including the argument based on
the accord and satisfaction affirmative defense. The trial court granted the motion
in part and dismissed Walker’s claims for breach of fiduciary duty and DTPA
violations. The trial court, apparently believing that the accord and satisfaction
affirmative defense applied only to contract claims and not to torts, did not grant
the directed verdict on the remainder of Walker’s claims. The trial court then
submitted the remainder of the case to the jury, which found in favor of Walker.
The jury awarded Walker $6,600 for child support payments owed and $50,000 in

3
exemplary damages. Bryant filed motions for judgment notwithstanding the
verdict and for new trial, which were overruled by operation of law. The trial court
signed a judgment based on the jury’s verdict.

To prevail under the common law on her affirmative defense of accord and
satisfaction, Bryant had to establish the existence of a contract, express or implied,
in which the parties agree to the discharge of an existing obligation by means of a
lesser payment tendered and accepted. Lopez v. Munoz, Hockema & Reed, L.L.P.,
22 S.W.3d 857, 863 (Tex. 2000). Additionally, there must be a dispute between
the parties and an unmistakable communication that the tender of the reduced sum
was upon the condition that acceptance would satisfy the underlying obligation.
Id. As our sister court explained, the term “accord” refers to the new agreement
in which one party agreed to give or perform and the other to accept “something
other than or different from what she is, or considers herself to be, entitled to.”
Melendez v. Padilla, 304 S.W.3d 850, 852–53 (Tex. App.—El Paso 2010, no pet.).
The term “satisfaction” refers to the actual performance of the new agreement, in
which the party accepts the tendering of the lesser payment.” Id.

The elements of an accord and satisfaction under Chapter Three of the
Uniform Commercial Code are (1) a person in good faith tendered an instrument to
the claimant as full satisfaction of a claim, (2) the amount of the claim was
unliquidated or subject to a bona fide dispute, and (3) the claimant obtained
payment of the instrument. Tex. Bus. & Com. Code Ann. § 3.311(a); see 1/2 Price
Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 383 (Tex. 2011) (“It is
settled law that a check—as a type of negotiable instrument—is a formal contract,
a rule established not only in treatises but also the common law of this state and
other states.”); Melendez, 304 S.W.3d at 853 (stating that “Section 3.311 is only
applicable to accord-and-satisfaction claims concerning negotiable instruments.

4
Indeed, Section 3.311 is contained within Chapter 3 of the Texas Business and
Commerce Code, entitled ‘Negotiable Instruments.’”). A directed verdict for a
defendant is warranted if the plaintiff admits, or the evidence conclusively
establishes, a defense to the plaintiff’s cause of action. Prudential Ins. Co. of Am.
v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

In her first and third issues on appeal, Bryant argues that the trial court erred
when it denied her motion for directed verdict on Walker’s claims against her
based on the affirmative defenses of common law and statutory accord and
satisfaction. The majority overrules these issues for two reasons. First, it
concludes that Bryant did not establish the existence of a dispute between the
parties. Second, it concludes that the “Full & Final Settlement and release of all
claims” language on the face of Bryant’s check was overbroad and “extends far
beyond the attorney’s fees requested and attempts to absolve Bryant of all
deficiencies arising from her representation.” The majority then concludes that
there is no “authority supporting such an expansive interpretation of section 3.311
[of the Texas Business and Commerce] whereby a person may discharge all claims
asserted against her (including future possible claims) when the statute specifically
contemplates discharging the claim.” Maj. op. at p. 13 (emphasis in original).
Neither reason is supported by the record or the law.

Turning first to the existence of a dispute. Walker demanded the return of
the entire $3,300 he had paid Bryant to eliminate his child support payment
obligation. In his demand, Walker stated his belief that he had been required to
overpay his child support obligation as a result of Bryant’s alleged negligence to
promptly handle his case. Walker also communicated his willingness to accept the
return of all funds he had paid to Bryant to resolve the dispute. I believe this
undisputed evidence establishes that there was a dispute over Bryant’s

5
representation of Walker. See Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied) (attorney’s failure to render agreed
upon services in a contract provide for a legal malpractice claim since it is a failure
to properly exercise the “degree of care, skill, and diligence as lawyers of ordinary
skill and knowledge commonly possess and exercise”). This dispute is the type of
dispute that can be resolved through an accord and satisfaction. Melendez, 304
S.W.3d at 853 (stating that the defense of accord and satisfaction “is applicable in
tort claims”); Case Funding Network, L.P. v. Anglo-Dutch Petroleum Intern., Inc.,
264 S.W.3d 38, 49 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (stating that
claims “arising out of the commission of a tort are particularly applicable subjects
for accord and satisfaction”).

Turning to the majority’s second reason for rejecting Bryant’s accord and
satisfaction affirmative defense, I believe it misconstrues the law when it
concludes that, because the statue uses the singular form of “claim,” the defense
could not apply to multiple claims. See Tex. Gov’t Code Ann. § 311.012(b) (“The
singular includes the plural and the plural includes the singular.”). Regardless, I
believe there was only a single claim: Walker’s allegation that Bryant committed
malpractice when handling his child support case. The fact there may be different
elements of damages does not change the fact there was a single claim: Bryant
allegedly committed legal malpractice.

Bryant printed on her proffered check the following statement: “CASH OF
THIS CHECK REPRESENTS A FULL & FINAL SETTLEMENT AND
RELEASE OF ALL CLAIMS AGAINST DEB & TBLF AND REFUND OF ALL
ATTORNEY’S FEES ON CN200025634.” Walker struck through this statement
and then cashed the check. Walker’s act of striking through the settlement
language printed on Bryant’s check legally had no effect. See Metromarketing

6
Servs., Inc. v. HTT Headwear, Ltd., 15 S.W.3d 190, 197 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) (“The creditor cannot strike the debtor’s conditions from
the face of the instrument or insert his own provision that the check is partial
payment and accepted ‘without prejudice’ or ‘under protest.’”). The only way that
Walker could repudiate a transaction that purports to fully satisfy a claim was to
return the tendered check. Id. Therefore, when Walker cashed Bryant’s check, he
accepted the proffered settlement of his claims against Bryant. See Melendez, 304
S.W.3d at 852–53 (stating that the term “satisfaction” refers to the actual
performance of the accord, the new agreement, which occurs when the party
accepts the tendering of a lesser payment). Because the undisputed evidence
establishes that Bryant proved her affirmative defense of accord and satisfaction as
a matter of law, I would hold that the trial court erred when it denied her motion
for directed verdict on Walker’s claims against her. See Memorial Med. Ctr. Of E.
Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex. 1997) (recognizing that the parties
settled and released all claims relating to their relationship, including an existing
gross negligence claim); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (stating that Texas public policy is to
“encourage settlement of existing claims”); Vera v. North Star Dodge Sales, Inc.,
989 S.W.2d 12, 18 (Tex. App.—San Antonio 1998, no pet.) (concluding that a
release, which operated to release a car dealership “from any and all liability
regarding the purchase of a” vehicle, was not limited to claims concerning the
actual purchase of the vehicle, but also included unlawful debt collection,
conversion, and wrongful repossession claims).

7
Because the majority affirms the trial court’s denial of Bryant’s motion for
directed verdict, I respectfully dissent.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain (Zimmerer, J.,
Dissenting).

8