A Fight and a Promise

Start at Hensley v. Nat’l Ass’n for Legal Gun Defense, LLC, a decision of the Texas Court of Appeals Thursday, with an opinion of Chief Justice Bonnie Sudderth and Dana Womack,

Hensley requested and got approval from NALGD for him to reimburse his legal expenses as per the liability coverage agreement. Hensley sued NALGD, seeking to recover his attorney’s fees after NALGD refused to cover the cost of Hensley’s legal expenses. He also filed claims under the Texas Deceptive Trade Practices Act for negligent misrepresentation and breach of contract. The case was tried to the bench in December 2020….

Hensley was arrested under the terms and conditions of the agreement. NALGD agreed to “defend” its members in the event of a threat of violence, or for countermeasures.[d]Protecting yourself or another person’s well-being from bodily harm using the help of[ ]”Any type, type, or make” of a defined list of weapons. Specifically, the agreement provided unlimited coverage for attorney’s fees and up to $1,000,000 of coverage per occurrence for various other legal expenses such as bail bonds, travel, and trial costs….

Hensley stated that he traveled to Hollywood, California in December 2017 for a First Amendment audit. Hensley and his friends were filming on the sidewalk in front of the church when a guard appeared from outside the church. The security guard told the group to get out. Hensley was upset when the security guard told him to leave. Hensley says that after Hensley said something, Hensley saw the security guard become “extremely hostile” and moved within inches of Hensley’s face. He pulled out a flashlight. He was “blind” and held the flashlight close to his face.[ing]” him, Hensley “felt like [he]He realized that the guard was about to get hurt, so he took out his flashlight. Hensley claims that the flashlight “came out” of the guard’s hands. As Hensley tried to get away from him, the guard confronted Hensley and drove him to his destination.

Hensley stated that he called Larry Keilberg (NALGD director) on December 8th, the day after his arrest to ask if NALGD would pay his legal costs. Keilberg then asked Hensley for a copy of the altercation to review and Keilberg replied: Hensley sent the video to Keilberg the next day. He received an answer indicating that NALGD would pay the fees.

OK [NALGD]Will wright [sic]You will receive a $3,000.00 check to help pay your attorney. To send you a check, we need to see your attorney invoice. You must send us a copy the bail bond payment.

[NALGD]You must have permission to publish [your] video on our website and a testimonial from you ….

Keilberg sent Hensley an email shortly thereafter informing him again that Hensley was clear on public property. [his]Rights” in the incident, but NALGD was unable to post the video online due to the profanity. NALGD sent Hensley a check for $3,000 to reimburse him for his “attorney Hemming”. Dated January 2, 2018.

Hensley says that Keilberg advised him to get another attorney after the charges were increased. Keilberg also assured Hensley that NALGD would reimburse the attorney’s fees. Hensley testified that Keilberg had advised Hensley to hire a new attorney in a text message dated February 2018.

Hensley took Keilberg’s advice and contacted another attorney—Lisa Houlé—who quoted an initial retainer fee of $100,000 and an additional $75,000 fee should Hensley’s case proceed to trial. Hensley testified that he spoke with Keilberg about Houlé’s possible representation and that after Keilberg also spoke with Houlé he told Hensley to proceed with hiring her. According to Hensley, Keilberg said that Houlé’s fee was not unreasonable, given the charge.

According to Hensley, Houlé later notified him that she had spoken with Keilberg and that Keilberg “had agreed to pay her retainer and that [Hensley]was to pay her, and that [he]”Woule would pay the reimbursement.” Accordingly, he and Houlé entered into a fee agreement and Hensley ultimately paid $125,000 to her for representation. Hensley testified that he relied on Keilberg’s promise to pay Houlé’s fee when he hired Houlé and that but for Keilberg’s promise he would not have hired Houlé because he could not have otherwise afforded her fee….

Hensley won the case and was awarded $125,000 actual damages. The judgment does not specify the grounds for recovery, and no findings of fact or conclusions of law were requested or filed….

NALGD only appeals against the judgment of the trial court as invalid under the breach-of-contract theory. NALGD claims that Hensley was not protected by the agreement for his conduct in the altercation with the guard. Given the evidence, we acknowledge that this argument may be valid. Even if NALGD believes it didn’t breach the Hensley agreement, we must still investigate the law. The next step is to find out if there were any grounds that supported the judgement.

After reviewing the pleadings and the evidence, we hold that the judgment can be supported on the theory of promissory estoppel…. These elements are: (1) a promise; (2) the foreseeability and substantial reliance of the promisee. When a contract exists between the parties, the claimant must also prove that the promise on which it relied to its detriment was made outside of that contract….

NALGD maintains that Hensley’s actions in relation to the fight with security guards were unacceptable. It is notThey were not covered under the agreement, but they are “well out of compliance with the Agreement”. [a]greement’s terms.” NALGD logic dictates that if NALGD makes any promises to Hensley regarding attorney fees, those are not included in the agreement.

There is ample evidence in this record that NALGD made multiple such promises over the course of nearly three months and even after Keilberg viewed video evidence of the December altercation …. Because this evidence is sufficient to prove that NALGD made promises outside of the agreement to Hensley that it would pay for his attorney’s fees, Hensley satisfied the first promissory estoppel element….

Hensley contacted Keilberg repeatedly about NALGD to cover his fees starting the day following the incident. Keilberg was contacted by both Hensley’s lawyers seeking payment or assurance from NALGD. Keilberg encouraged Hensley himself to find a new lawyer. We hold that this constituted at least some record evidence that it was foreseeable to NALGD that Hensley would rely on its promises to pay his fees….

Both documentary and testimonial evidence shows that Houlé was paid $125,000 for her representation of Hensley. Hensley testified that he could not afford Houlé’s fee and that he indebted himself to a friend to help pay her fee in anticipation that NALGD would provide a reimbursement. Further, only after Hensley and Houlé received assurances of coverage from Keilberg did Hensley enter into the fee agreement with Houlé. We hold that this constituted at least some record evidence that Hensley relied to his detriment on NALGD’s promise to cover his attorney’s fees….

Because NALGD failed to raise a challenge that the judgment was not supported under a theory of promissory estoppel and because we hold that the record contains some evidence to support the judgment on promissory estoppel grounds, we affirm….