REVERSE and REMAND and Opinion Filed November 3, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00871-CV 

CAROL M. KAM, Appellant 

V. 

CARL DAVID ADAMS, Appellee 

On Appeal from the 68th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-05795 

MEMORANDUM OPINION 

Before Justices Schenck, Reichek, and Goldstein 

Opinion by Justice Reichek 

Carol M. Kam, representing herself pro se, appeals the trial court’s summary 

judgment granting a declaratory judgment in favor of Carl David Adams. Because 

we conclude Adams failed to show his entitlement to summary judgment as a matter 

of law, we reverse the trial court’s judgment and remand the cause for further 

proceedings. 

Background 

At the center of this action is an “Attorney’s Retainer Agreement” pursuant to 

which Adams was to represent Kam in two pending civil cases. Adams moved for 
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a traditional summary judgment seeking a declaration that the retainer agreement 

was valid and enforceable. As supporting evidence, Adams submitted his affidavit, 

a copy of the retainer agreement, and copies of emails he exchanged with Kam’s 

older brother, Thomas. 

In his affidavit, Adams testified he was contacted by Kam and Thomas about 

representing Kam in two suits in which she had been representing herself pro se with 

Thomas’s assistance. In their discussions, Thomas made it clear to Adams that he 

was acting as Kam’s agent, legal consultant, and financial advisor and, as such, he 

was negotiating for Adams’s services on Kam’s behalf. Thomas insisted it was 

“absolutely necessary” for him to continue to provide consultation and advice to 

Kam on matters pertaining to the litigation. 

Based on his negotiations with Thomas, Adams drafted a proposed retainer 

agreement that defined the term “Client” to include both Thomas and Kam. The 

agreement further stated that Thomas was authorized to act on Kam’s behalf “to the 

full extent necessary and convenient to facilitate the rendering of legal services by 

[Adams].” Paragraph two of the agreement required Thomas and Kam to pay an 

initial $10,000 “non-refundable legal fee” and to maintain an “ever-green retainer” 

of not less than $5,000. Adams stated he forwarded the proposed agreement to Kam 

and Thomas on February 5, 2021. 

Adams met with Kam in his office on February 8. Thomas was not present at 

this meeting. Kam signed the retainer agreement and gave Adams a check for 
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$10,000. Kam subsequently claimed that Adams orally agreed to hold the check 

until Thomas signed the agreement. Adams stated Kam never requested he hold the 

check and he did not agree to do so. 

On February 10, Adams emailed the retainer agreement to Thomas stating, 

Attached (in PDF format) is the modified Attorney’s Retainer 

Agreement containing your suggested changes with regard to the 

amount of the Non-Refundable Legal Fee called for in ¶ 2, as well as 

the signatures of Carol Kam and myself, and dated February 8, 2021. 

Please sign the Agreement at the place provided for your signature on 

Page 5 and return a fully executed copy of the Agreement to my office 

ASAP. 

Thomas replied thirty minutes later, 

 We have a failure to communicate which is troubling. We have 

a great case. You are a great attorney. You are authorized to proceed. 

There will be no non-refundable retainer. Please start the Case and we 

will pay you on the hourly basis. . . . The proposal also needs to list 

clearly the goals for the case. . . . I will be around most of the day. 

This was followed by another email from Thomas later that evening: 

 I will call you in the morning. We are not yet on the same page. 

Carol and I have discussed and we have decided on a more direct route 

for you. 

 Early in the morning of February 11, a severe cold front with inclement 

weather hit north Texas. Adams testified that, due to the weather, he decided not to 

travel to his office on Thursday, February 11 or Friday, February 12. Beginning on 

Monday, February 15, Adams was no longer able to send or receive emails from his 

home computer. Adams’s office building closed all operations on February 16. 
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During this time, Adams states he had no communications with either Thomas or 

Kam. 

 Despite not being able to access his office and files, Adams stated he 

immediately began working intensely on Kam’s cases in preparation for a hearing 

scheduled to occur on February 18. Adams testified that, during their discussions 

leading up to the retainer agreement, Thomas was adamant Adams be fully prepared 

for the hearing and, given the lengthy history of the litigation prior to his 

involvement, he stated it took significant effort for him to get “up to speed” and 

prepare an analysis. 

 On the afternoon of February 16, Adams spoke with Kam. According to 

Adams, Kam immediately stated that Adams’s lack of response to her telephone 

calls (which he states he never received), or to her emails (which he states he 

received only days later), had caused her to decide to discontinue using his services. 

Adams stated he provided Kam with a detailed invoice for the work he performed. 

In addition to the invoice, Adams testified he sent Kam a detailed explanation of his 

lack of availability during the storm and encouraged her to reconsider her decision 

to terminate his employment. In response, Kam accused Adams of dishonesty and 

thievery and demanded Adams disgorge the $10,000 fee he had deposited. Kam told 

Adams there was no valid agreement between them because Thomas never signed it. 
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 In anticipation of claims being filed against him, Adams filed this declaratory 

judgment action.1

 Adams’s motion for summary judgment summarized the evidence 

discussed above and argued simply, 

Plaintiff Adams seeks Declaratory Judgment Relief from this Court, 

declaring the unambiguous terms of and validity of the Contract, and 

seeks the enforcement of all of the terms of the Contract, including the 

Non-Refundable Legal Fee obligations of [Kam] under the undisputed 

circumstances presented by the Motion for Summary Judgment. 

In the alternative, Adams requested quantum meruit relief, also based solely on the 

“undisputed circumstances presented.” Kam did not file a written response to the 

motion. 

Following a hearing, the trial court signed a judgment declaring that (1) the 

retainer agreement was valid and enforceable, (2) the $10,000 legal fee was nonrefundable, and (3) Kam’s demands for the return of the $10,000 fee constituted a 

repudiation of the agreement. Kam brought this appeal. 

Analysis 

As her primary argument on appeal, Kam challenges the trial court’s judgment 

on the basis that the retainer agreement was not binding or enforceable without her 

brother’s signature. To prevail on summary judgment, Adams was required to 

establish that no material fact issues existed, and conclusively prove all elements of 

his cause of action as a matter of law. Ziemian v. TX Arlington Oaks Apartments, 

1

 Kam asserted counterclaims under the Texas Deceptive Trade Practices Act, but later withdrew those 

claims. 
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Ltd., 233 S.W.3d 548, 554 (Tex. App.—Dallas 2007, no pet.). We review a 

summary judgment de novo to determine whether this burden has been met. Id. In 

deciding whether there is a material fact issue precluding summary judgment, 

evidence favorable to the nonmovant is taken as true, every reasonable inference is 

indulged in the nonmovant’s favor, and any doubts are resolved in favor of the 

nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). 

We review the summary judgment record for evidence that would enable reasonable 

and fair-minded jurors to differ in their conclusions. Ziemian, 233 S.W.3d at 554. 

A motion for traditional summary judgment must expressly present the 

specific grounds upon which it is made. TEX. R. CIV. P. 166a(c); McConnell v. 

Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993). “In determining 

whether grounds are expressly presented, reliance may not be placed on briefs or 

summary judgment evidence.” McConnell, 858 S.W.2d at 341. The nonmovant has 

no burden to respond to a motion for traditional summary judgment unless the 

movant establishes its right to judgment on the issues expressly presented to the trial 

court. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). The trial 

court may not grant summary judgment by default when the movant’s motion is 

legally insufficient. Id. 

In this case, Adams’s motion for summary judgment merely summarizes his 

proffered evidence and then requests, based solely on “the undisputed 

circumstances,” a declaratory judgment that the retainer agreement was valid and 
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enforceable. The motion cites no authority and does not discuss the elements 

required for the formation of a valid contract. Nor does the motion explain how the 

evidence submitted establishes any of the required elements. As such, we conclude 

the motion failed to expressly present a specific ground for summary judgment. 

McConnell, 858 S.W.2d at 341. 

Furthermore, Adams’s motion failed to establish the absence of a material fact 

issue. The elements required for the formation of a valid contract are: (1) an offer, 

(2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the 

minds, (4) each party’s consent to the terms, and (5) execution and delivery of the 

contract with the intent that it be mutual and binding. Levetz v. Sutton, 404 S.W.3d 

798, 803 (Tex. App.—Dallas 2013, pet. denied). Whether or not the parties intended 

to enter into a final, binding, and enforceable contract is frequently a question of 

fact. Foreca, S.A. v. GRD Dev. Co., Inc., 758 S.W.2d 744, 745 (Tex. 1988). Intent 

is a fact question uniquely within the realm of the trier of fact because it depends 

upon the credibility of the witnesses and the weight to be given to their testimony. 

Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). If the parties 

intended that their contract would not be binding until it was signed by the parties, 

then the signatures of the parties are required for the contract to be effective. Rea v. 

Simmons & Simmons Constr. Co., 275 S.W.2d 747, 750 (Tex. App.—San Antonio), 

aff’d, 286 S.W.2d 353 (Tex. 1955). 
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 Adams’s own summary judgment evidence demonstrates there is a fact issue 

regarding whether the retainer agreement would be binding without Thomas’s 

signature. The evidence shows that Thomas controlled most aspects of the litigation 

involving his sister and he was the primary, if not sole party involved in negotiating 

the terms of the retainer agreement with Adams. Thomas’s level of control was such 

that both Thomas and Adams felt it necessary to make Thomas a party to the 

agreement with the term “Client” defined as being both Thomas and Kam, jointly. 

The agreement included distinct signature lines for both Kam and Thomas. 

The evidence further shows Kam believed Adams would not deposit the check 

she gave him until after Thomas signed the retainer agreement. Although Adams 

disputes that this was their understanding, he is an interested witness. For the 

testimony of an interested witness to establish a fact as a matter of law, there must 

be no circumstances in evidence tending to discredit his testimony. Swilley v. 

Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Such circumstances are presented here by 

Kam’s complete reliance on Thomas in the creation and negotiation of the retainer 

agreement, as well as the continued negotiations and apparent changes made to the 

agreement, including to the non-refundable fee specifically, after Kam signed it. 

Although Adams performed work on Kam’s cases, there is no evidence Kam 

was aware of Adams’s performance or that she accepted the benefits of it. See Rea, 

275 S.W.2d at 750. Furthermore, most of the work Adams performed appears to 
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have been done after Thomas informed him they would not pay him the nonrefundable fee that is in dispute. 

Reading the evidence in the light most favorable to Kam, as we must, Adams’s 

summary judgment evidence does not conclusively establish Kam intended to enter 

a binding contract with Adams absent Thomas’s signature on the agreement. 

Because Adams’s evidence serves only to raise a fact issue, Kam was not required 

to offer a response to the motion for summary judgment or contradictory proof. See 

Swilley, 488 S.W.2d at 67. “In our summary judgment practice, the opponent’s 

silence never improves the quality of a movant’s evidence.” Id. 

Based on the foregoing, we conclude Adams failed to establish his entitlement 

to a declaratory judgment on the enforceability of the retainer agreement as a matter 

of law. Accordingly, we reverse the trial court’s judgment and remand the cause for 

further proceedings. 

 

 

 

 

210871F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CAROL M. KAM, Appellant 

No. 05-21-00871-CV V. 

CARL DAVID ADAM, Appellee 

 On Appeal from the 68th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-05795. 

Opinion delivered by Justice 

Reichek. Justices Schenck and 

Goldstein participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is REVERSED and this cause is REMANDED to the trial court for further 

proceedings consistent with this opinion. 

 It is ORDERED that appellant CAROL M. KAM recover her costs of this 

appeal from appellee CARL DAVID ADAM. 

Judgment entered November 3, 2022