Reversed and Remanded and Majority and Dissenting Opinions filed April 

25, 2013.

In The

Fourteenth Court of Appeals

NO. 14-10-01127-CV

NEW DELIVERANCE CHURCH, INC., Appellant

V.

ADAM MILLER AND HOUSSIERE, DURANT & HOUSSIERE, LLP,

Appellees

On Appeal from the 189th District Court 

Harris County, Texas

Trial Court Cause No. 2004-70043A

M A J O R I T Y O P I N I O N

New Deliverance Church, Inc. (“the Church”) appeals from a summary 

judgment in favor of Adam Miller and Houssiere, Durant & Houssiere, LLP 

(“Houssiere”) (collectively, “appellees”). We reverse and remand.
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I. BACKGROUND

In 2004, an explosion occurred at a chemical plant owned by HRD 

Corporation d/b/a Marcus Oil & Chemical (“HRD”). Numerous litigants filed suit 

against HRD in cause number 2004-70043 (“the Original Suit”), including the 

Church and its pastor, Janice Caslin. As discussed in more detail below, the parties 

dispute whether appellees (who are an attorney and a law firm)1and the Church 

entered into an engagement agreement relative to this litigation.

At the time of the explosion, the Church had granted a deed of trust on its 

property to Church Mortgage and Loan Corporation (“CMLC”) to secure a 

promissory note. CMLC intervened in the Original Suit, alleging the Church had 

assigned its interest in the litigation to CMLC.

On February 20, 2007, Caslin and HRD attended mediation. During the 

mediation, Caslin and HRD signed a handwritten “Rule 11 & Settlement 

Agreement” (“the Rule 11 Agreement”) whereby Caslin ostensibly settled the 

Church’s claims against HRD for $300,000.2 Although CMLC was not a party to 

the Rule 11 Agreement, the agreement expresses that it is “[s]ubject to [CMLC’s]

approval” and “Plaintiff and [CMLC] shall execute full releases and dismiss all 

claims with prejudice on or before payment.” 

 The Church filed a motion to vacate the Rule 11 Agreement, claiming its 

counsel (i.e., appellees) misrepresented the nature of the settlement and pressured 

Caslin to sign the agreement. Additionally, at some point, the Church alleged 

 

1 According to appellees, the Church initially signed a retention agreement with Miller, 

who then referred the Church to Houssiere. For simplicity, we will use the term “appellees,” 

even when an act was performed by Miller or Houssiere individually, unless it is necessary to 

distinguish the parties. 

2 Additionally, Caslin and HRD signed a handwritten agreement whereby Caslin settled 

her individual claims against HRD. 
3

HRD coerced and defrauded the Church into signing the Rule 11 Agreement. 

Appellees filed a motion to withdraw as counsel for the Church, which the trial 

court granted. Appellees intervened in the Original Suit, seeking attorney’s fees 

from the Church. Since that time, the Church has been represented by several 

different attorneys and has also attempted to represent itself through various 

Church members. 

HRD filed a traditional and no-evidence motion for summary judgment in 

which it challenged the Church’s grounds for vacating the Rule 11 Agreement and 

argued the agreement should be enforced. On May 7, 2010, the trial court granted 

HRD’s motion. 

Shortly thereafter, appellees filed a traditional motion for summary 

judgment, arguing that, pursuant to their engagement agreement with the Church, 

the Church owed them a 40% contingency fee (as well as other costs and expenses) 

of the $300,000 settlement enforced by the trial court in its May 7 summary 

judgment. The Church filed a response to appellees’ motion for summary 

judgment, a motion to strike appellees’ plea in intervention, and an original answer 

to appellees’ plea in intervention. Appellees filed a motion to strike all three of the 

Church’s pleadings, contending the pleadings were filed by an attorney who does 

not represent the Church and the summary-judgment response was untimely. 

On July 6, 2010, the trial court granted appellees’ motion and struck the 

Church’s pleadings. The trial court also granted appellees’ motion for summary 

judgment, ordering the Church to pay appellees $139,540.80 in attorney’s fees. 

Appellees filed a motion to sever claims between them and the Church from the 

Original Suit. On August 16, 2010, the trial court granted appellees’ motion and 

transferred the claims to cause number 2004-70043A (“the Severed Suit”). HRD is 
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not a party to the Severed Suit. The severance effected a final judgment in the 

Severed Suit. 

II. SUMMARY JUDGMENT

In three issues, the Church challenges the summary judgments entered in 

favor of HRD and appellees.

A. Standard of Review

We review a summary judgment de novo. Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party moving for traditional 

summary judgment must establish there is no genuine issue of material fact and it 

is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident 

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). If the 

movant establishes a right to summary judgment, the burden shifts to the nonmovant to present evidence raising a material fact issue. See M.D. Anderson Hosp. 

& Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Centeq Realty, Inc. v. 

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

B. Issues Pertaining to HRD

In its first and second issues, the Church contends the trial court erred by 

granting HRD’s traditional and no-evidence motion for summary judgment, 

concluding the Rule 11 Agreement was valid and enforceable. However, as 

explained above, HRD is not a party to the Severed Suit. Furthermore, the 

summary judgment in favor of HRD remains an interlocutory order in the Original 

Suit. Accordingly, we may not consider the propriety of the trial court’s summary 

judgment in favor of HRD. We overrule the Church’s first and second issues.
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C. Issue Pertaining to Appellees

We begin by addressing the procedural issue of whether the Church was 

required to file a motion to strike appellees’ intervention before the Church could 

challenge the merits of appellees’ claim for contingency fees. As stated above, 

appellees joined the lawsuit by filing a plea in intervention. Under Texas Rule of 

Civil Procedure 60, “Any party may intervene by filing a pleading, subject to being 

stricken out by the court for sufficient cause on the motion of any party.” Tex. R. 

Civ. P. 60. The rule authorizes a party with a justiciable interest in a pending suit 

to intervene in the suit as a matter of right. In re Union Carbide Corp., 273

S.W.3d 152, 154–55 (Tex. 2008) (per curiam). The parties to the pending case 

may protect themselves from the intervention by filing a motion to strike. Id. at 

155. If any party to the pending suit moves to strike the intervention, the 

intervenors have the burden to show a justiciable interest in the pending suit. Id. 

The Church filed a motion to strike appellees’ plea in intervention, but the 

trial court struck the Church’s motion. Accordingly, the Church may not argue 

appellees improperly intervened because they lack a justiciable interest in the 

lawsuit. Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 

(Tex. 1998). However, a party’s failure to challenge the intervenor’s justiciable 

interest in the suit does not mean the intervenor automatically prevails; the 

intervenor still bears the burden of proving its claims as any other party. See, e.g., 

Robnett v. Kirklin Law Firm, 178 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 

2005, no pet.) (“In moving for summary judgment under rule 166a(a) on its 

intervention claim, the firm had the burden to prove that it was entitled to judgment 

by establishing each element of its claim or defense as a matter of law.”); InterCont’l Corp. v. Moody, 411 S.W.2d 578, 589 (Tex. Civ. App.—Houston [1st Dist.] 

1967, writ. ref’d n.r.e.) (“[When an] intervention should not be stricken[, ] . . .there 
6

should be a hearing on the merits, under appropriate pleadings, which could, of 

course, encompass a decision of the intervenor’s rights by way of a motion for 

summary judgment.”). Thus, although the Church’s motion to strike appellees’ 

plea in intervention was itself stricken, appellees still have the burden to prove 

their claim, which they chose to do via a traditional motion for summary judgment. 

In its third issue, the Church contends the trial court erred by granting 

summary judgment in favor of appellees on their claim against the Church for 

attorney’s fees. In their motion for summary judgment, appellees argued the 

Church owed them, as a contingency fee, 40% of the settlement amount approved 

and enforced by the trial court when it granted HRD’s motion for summary 

judgment.

Appellees’ claim for contingent fees is based on a document entitled, 

“Power of Attorney and Engagement Agreement” (“the Engagement Agreement”),

which appellees attached to their plea in intervention and motion for summary 

judgment. The Engagement Agreement contains the following pertinent 

contingent fees provision: 

2.01 In consideration of the services rendered and to be rendered to 

the Client by the Attorneys, Client does hereby assign, grant and 

convey to the Attorneys the following present undivided interest in the 

Client’s Claims for and as a reasonable contingent fee for the 

Attorneys’ services, which fees shall be calculated upon the Total Net 

Recovery (as hereinafter defined) as follows:

. . .

40% If settled at any time AFTER SUIT HAS BEEN FILED BUT 

PRIOR TO THE ENTRY OF A JUDGMENT BASED ON A JURY 

OR NON-JURY VERDICT.

The Church contends on appeal that the Engagement Agreement establishes 

Caslin signed the agreement solely as “Janice F. Caslin,” which is “representative 
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of her individual capacity alone.” According to the Church, “There is no reference 

to Janice Caslin executing the agreement in a representative capacity for or in 

behalf of New Deliverance Church nor is there any indication giving note to 

whether Janice Caslin was acting with actual or apparent authority.” The form 

used for the Engagement Agreement has a signature block for the “CLIENT” with 

lines for “Signature,” “Name Printed,” “Client’s Address,” and “Client’s Social 

Security No[.]”

Appellees respond that “[t]he contract entered into between Appellant and 

Appellees clearly and unambiguously identified the parties to the contract as 

including Appellant, New Deliverance Church.” Appellees assert, “Signed by 

Janice Caslin, as the Pastor, President, CEO and Representative of New 

Deliverance Church, she had authority to bind New Deliverance Church to the 

contractual terms.” According to appellees, the absence of a reference to “New 

Deliverance Church” in the signature block does not create an ambiguity “[g]iven 

the contract’s clear identification of the parties to it as including New Deliverance 

Church.”

The following statements appear on the front page of the Engagement 

Agreement:

This Agreement . . . is made by and between Janice Caslin / New

Deliverance (whether one or more) hereinafter defined and referred to 

as “Client” and [Miller.]

. . .

The Client hereby retains and employs the Attorneys to pursue and 

collect any and all claims [and damages] . . . sustained by the Client 

on or about 12-5, 2004 related to New Deliverance Church & Janice 

Caslin. The Claims are against [HRD.] For the purposes of this 

Agreement, the term “Client” shall mean and include all persons or 

other entities for whom the individual signing this Agreement is 

acting for in the capacity of an agent (by power of attorney or 
8

otherwise), executor, administrator, guardian of the person, guardian 

of the estate, conservator, or next friend of any minor or person who is 

NCM.

(italicized terms handwritten on the Engagement Agreement). Caslin wrote her 

initials “JC” at the bottom of each page of the Engagement Agreement except the 

final page. On the final page, Caslin signed “Janice F. Caslin” on the signature 

line for “CLIENT.” Nothing is written on the lines for “Name Printed,” “Client’s 

Address,” and “Client’s Social Security No[.]” Nothing on the signature page or in 

any other provision of the Engagement Agreement indicates what Caslin’s 

relationship was to the Church or that she signed on behalf of the Church in a 

representative capacity.

The summary-judgment record also includes a document entitled, 

“Arrangement for a Division of Fees Between Lawyers,” which presumably 

memorialized Miller’s referral of clients to Houssiere. This agreement does not 

mention the Church and was signed only by Caslin in what appears to be her 

individual capacity. 

A court may determine as a matter of law whether an agency relationship 

exists by reviewing the agreement between the parties. Wright Group ArchitectsPlanners, P.L.L.C. v. Pierce, 343 S.W.3d 196, 201 (Tex. App.—Dallas 2011, no 

pet.). When it is apparent from the entire agreement that an officer of a 

corporation signed the contract on behalf of the corporation, it is the corporation’s 

contract. See Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 628 (Tex. 2011) 

(“Anyone looking at the deed of trust, and noting that the grantor was ‘Gary Ben 

Stephens, General Partner of Stephens Group, L.P., and Stephens Group II, L.P.,’ 

would readily assume that Stephens likewise signed that same document in that 

same capacity, and that the omission of the partnership designation from the 

signature line was a harmless mistake.”); Pierce, 343 S.W.3d at 201–02 (holding 
9

signator signed contract as representative of entity because it was clear he had a 

connection to the entity and was signing on its behalf).

Additionally, we recognize this is not just any contract; it is a fee agreement 

between an attorney and a client. Particular considerations apply in this context. 

Lawyers must be clear in identifying the parties to the fee agreements they draft

and present to clients. See Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, 

P.C., 352 S.W.3d 445, 450 (Tex. 2011). “Because a lawyer’s fiduciary duty to a 

client covers contract negotiations between them, such contracts are closely 

scrutinized.” Id. “Part of the lawyer’s duty is to inform the client of all material 

facts.” Id. “And so that this responsibility is not a mere and meaningless 

formality, the lawyer must be clear.” Id. “Clarity in fee agreements is certainly 

important to clients.” Id. “Only reasonable clarity is required, not perfection; not 

every dispute over the contract’s meaning must be resolved against the lawyer.” 

Id. at 451. “But the object is that the client be informed, and thus whether the 

lawyer has been reasonably clear must be determined from the client’s 

perspective.” Id.

It is not clear from the four corners of the Engagement Agreement whether 

Caslin signed on behalf of the Church or only on behalf of herself individually. No 

language indicating a representative capacity appears by Caslin’s signature. Cf. id. 

at 452 (determining that, viewed from client’s perspective, lawyer’s signature on 

attorney-client fee agreement in a signature block which listed law firm’s name 

above lawyer’s signature reasonably indicated client was contracting with law firm 

rather than contracting with the lawyer individually). The Engagement Agreement

references the “Client’s Social Security No[.]”; this language suggests 

representation of an individual rather than the Church, which does not have a 

social security number. Viewed from the client’s perspective, as required under 
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Anglo-Dutch, the fee agreement drafted by appellees is not clear as to whether 

Caslin signed in her individual capacity and thus does not conclusively establish

appellees’ claim for contingency fees. 

In addition to arguing on appeal that the Engagement Agreement 

conclusively established their right to attorney’s fees, appellees advance several 

reasons the Church is precluded from contending it was not a party to the 

Engagement Agreement. First, appellees argue the Church did not file a verified 

denial of Caslin’s agency. Under Texas Rule of Civil Procedure 93(7), a defendant 

is required to file a verified denial if he denies “execution by himself or by his 

authority of any instrument in writing, upon which any pleading is founded, in 

whole or in part and charged to have been executed by him or by his authority.”

Tex. R. Civ. P. 93(7).

In their plea in intervention, appellees attach and incorporate the 

Engagement Agreement. As noted above, this attorney-client fee agreement does 

not clearly identify whether client Caslin signed in an individual capacity, in her 

capacity as a representative of the church, or in both capacities. In their plea in 

intervention, appellees allege they are entitled to 40% of the Church’s settlement

but do not specify their basis for this allegation. This basis could be based on the 

contention someone executed the Engagement Agreement on behalf of the Church 

or the contention the Church ratified the agreement; appellees argue both bases on

appeal.

Additionally, we recognize some courts of appeals have held Rule 93(7) 

does not mandate a verified denial when the plaintiff does not allege that the 

defendant executed the subject contract. See Barnwell v. Fox & Jacobs Constr. 

Co., 469 S.W.2d 199, 205 (Tex. Civ. App.—Dallas 1971, no writ) (“An 

examination of [plaintiff’s] pleadings, however, reveals that nowhere therein is it 
11

alleged that the invoice, or invoices, charged to be the contract between the parties, 

was executed by [defendant]. Since there were no allegations as provided for in 

[Rule 93(h), predecessor of Rule 93(7)] it necessarily follows that there was no 

necessity for verified denial.”); Woods v. P. B. S. Motor Co., 288 S.W.2d 557, 

557 (Tex. Civ. App.—Texarkana 1956, no writ) (“Appellee did not specifically 

allege that the contracts sued upon were in writing or that they were executed by 

the appellant. Therefore, it was not necessary to deny the execution of the 

instruments under oath as required by Rule 93.”); see also Nelson v. Enriquez, 373 

S.W.2d 566, 568–69 (Tex. Civ. App.—Eastland 1963, no writ) (“After considering 

the allegations in appellee’s petition and the contract attached thereto, we have 

concluded it was not necessary for appellants to deny under oath the matters set 

forth.”). 

Accordingly, under the specific circumstances of this dispute over an 

attorney-client agreement, we determine Rule 93(7) does not mandate a verified 

denial. We do not address other circumstances not presented by the facts of this

case.

Appellees also argue the Church waived any contention with respect to the 

capacity in which Caslin signed because the Church did not plead ambiguity. We 

reject this contention because a determination regarding the identities of the parties 

to the Engagement Agreement is appropriate regardless of whether the Church

pleaded ambiguity. See Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 

438, 444–45 (Tex. 1993); Watkins v. The Krist Law Firm, P.C., No. 14–02–00291–

CV, 2003 WL 21786173, at *3–5 (Tex. App.—Houston [14th Dist.] Aug. 5, 2003, 

pet. dism’d) (mem. op.); City of Bunker Hill Vill. v. Mem’l Vills. Water Auth., 809 

S.W.2d 309, 310–11 (Tex. App.—Houston [14th Dist.] 1991, no writ).
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Next, appellees contend the Church judicially admitted it retained appellees

by stating in pleadings that it had terminated appellees. Appellees also note Caslin 

averred in an affidavit that appellees represented her and the Church in February 

2007. Appellees did not mention these purported admissions in their motion for 

summary judgment. Furthermore, even if we consider these statements and 

construe them as judicial admissions, they are merely evidence that appellees 

represented the Church at some point but do not establish the Church was a party 

to the Engagement Agreement.

Appellees argue evidence in the record (but not attached to their motion for 

summary judgment nor referenced therein) proves the Church ratified the 

Engagement Agreement. However, because appellees did not raise ratification in 

their motion for summary judgment, we will not consider it on appeal. See 

Wasserberg v. 84 Lumber Co., L.P., No. 14-10-00136-CV, 2011 WL 3447493, at 

*4 (Tex. App.—Houston [14th Dist.] Aug. 9. 2011, no pet.) (mem. op.).

Finally, appellees argue the trial court could have considered their motion 

for summary judgment unopposed because the trial court struck the Church’s 

response to the motion. In support, appellees cite rule 3.3.2 of the Harris County 

District Courts RULES of the CIVIL TRIAL DIVISION: “Failure to file a 

response may be considered a representation of no opposition.” However, a local 

rule may not conflict with the Texas Rules of Civil Procedure and cannot be used 

to decide the merits of a claim. Valls v. Johanson & Fairless, L.L.P., 314 S.W.3d 

624, 629 n.5 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We cannot apply 

rule 3.3.2 in such a fashion as to trump Texas Rule of Civil Procedure 166a(c), 

which obligates the traditional summary-judgment movant to prove his entitlement 

to summary judgment. Id.
13

Accordingly, the trial court erred by granting summary judgment because 

appellees failed to conclusively establish that they and the Church entered into the 

Engagement Agreement.

3 We sustain the Church’s third issue.

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

/s/ John Donovan

Justice

Panel consists of Justices Boyce, McCally, and Donovan. (McCally, J., 

dissenting).

 

3 Because we conclude appellees did not conclusively establish Caslin signed the 

Engagement Agreement on behalf of the Church, we need not consider appellees’ argument that 

Caslin had actual and apparent authority to sign the agreement as the Church’s agent.