Portnow v. Berg

• Decision Date: 17 January 1980
• Docket Number: No. 17569,17569
• Citation: 593 S.W.2d 843
• Parties: Stanley L. PORTNOW, M.D., Appellant, v. David BERG et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 843

593 S.W.2d 843

Stanley L. PORTNOW, M.D., Appellant, v. David BERG et al., Appellees.

No. 17569.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Jan. 17, 1980.

Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellant.

Harold Lloyd, Michael O'Brien, Victor N. Makris, David H. Berg, Houston, for appellees.

Before COLEMAN, C. J., and WALLACE and DOYLE, JJ.

COLEMAN, Chief Justice.

Dr. Stanley Portnow brought suit against Michael A. S. Makris, and David Berg, his attorney, for compensation for professional services as a forensic psychiatrist in connection with an unrelated criminal action. At the conclusion of the plaintiff's case the court took the case from the jury and subsequently entered a take nothing judgment. This appeal resulted. The case will be reversed and remanded to the trial court.

There is testimony that Dr. Portnow is a forensic psychiatrist residing in New York City. Mr. Berg called him requesting his professional services in connection with Berg's representation of Makris in a criminal action. This telephone conversation was followed by a letter setting out in some detail the circumstances of the pending action and enclosing certain medical records. In the letter Dr. Portnow was asked to review the medical records cursorily and "(l)et us know if you would be interested in seeing Makris." The letter further stated: ". . . the fees would be paid in whatever fashion you wish, if you are at all interested in the case. . . ." Dr. Portnow testified that Mr. Berg agreed to pay him a fee of between $10,000.00 and $15,000.00 depending on the amount of work required. The doctor then came to Houston where he interviewed Mr. Makris and discussed the case with other witnesses and lawyers. On his return to New York he continued working on the case by reviewing records and doing research.

On August 30, 1974, Dr. Portnow billed Mr. Berg the sum of $6,000.00 plus $329.27 expenses for professional services in connection with Michael A. S. Makris for the period August 23rd through the 25th, 1974. He was reimbursed for his travel expenses by an associate of Mr. Makris. On October 16, 1974, Mr. Berg requested Dr. Portnow to send "(w)hatever reports you can make available to me" by the end of this month. By a letter dated November 1, 1974, Dr. Portnow informed Mr. Berg that he would need certain existing neurological examinations and certain reports. He further stated that he would not expend any further time on the matter until payment in full was received for the work already performed.

Dr. Portnow testified that Mr. Berg agreed that he would pay out of his pocket for his client the agreed fee. He also testified that Mr. Berg "guaranteed the payment."

Berg's motion for a directed verdict set out the following four grounds:

(1) that there is no evidence to support a verdict for the plaintiff against Berg;

(2) that there is insufficient evidence to support a verdict against Berg;

(3) that there is no instrument in writing charging the defendant with the responsibility for this debt;

(4) that there has been no evidence that the charges for the services rendered were reasonable and necessary in Harris County, Texas, at the time they were rendered.

Before ruling on a motion for a summary judgment the trial court must determine whether there is any evidence of probative force to raise fact issues on the material questions presented such that reasonable men may differ as to the controlling facts. Unless there is no material issue of fact upon which reasonable men could differ, the motion should be denied. Mealor v. S. H. Leggitt & Co., 567 S.W.2d 51 (Tex.Civ.App. Fort Worth 1978, no writ); Schriewer v. Liedtke, 561 S.W.2d 584 (Tex.Civ.App. Beaumont 1978, writ dism'd.)

The defendant Berg filed a general denial but his answer did not include any affirmative defenses. The defendant Makris pled the two year statute of limitations as a defense.

The testimony is clearly sufficient to raise fact issues which would support the cause of action alleged against David Berg. There is evidence that Berg requested the services of Dr. Portnow and that he agreed to pay for them personally. There is also evidence that Dr. Portnow entered upon the performance of his duties under the contract, but ceased performing when payment for the services rendered was not forthcoming. There is also evidence that the parties agreed upon a minimum fee of $10,000.00. The trial court erred in directing a verdict in favor of the defendant Berg. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Nagle v. Duncan, 570 S.W.2d 116 (Tex.Civ.App. Houston (1st Dist.) 1978, writ dism'd).

There was evidence that Berg was representing Makris as an attorney in connection with the defense of a pending criminal prosecution, and that Portnow was aware of these facts. Berg employed Portnow to make an examination of Makris for the purpose of using his expertise as a forensic...