ARBITRATION PROVISIONS IN MSA- Spradley v. Spradley, 2014 Tex. App. LEXIS 3244 (Tex. App.-Austin March 26, 2014) (mem. opinion) (Cause No. 03-13-00745-CV). H and W executed a MSA, which complied with Texas Family Code 6.602. The MSA stated that the parties would thereafter finalize their divorce and obtain a final judgment in accordance with the MSA. Before that could happen, W amended her pleadings and filed a declaratory judgment action challenging the validity and enforceability of the MSA claiming that H had induced her into signing the MSA by fraud and duress. H sought to compel arbitration relying on two separate arbitration provisions in the MSA. One arbitration provision provided that the MSA was merely an outline of the settlement and the parties understood the final order would contain additional language to implement the MSA. This provision required arbitration of drafting disputes by the mediator. The second arbitration provision stated “if any other dispute arises with regard to the interpretation or performance of [the MSA] or any of its provisions” then these will be handled by binding arbitration with the mediator.
The trial court denied H’s motion to compel arbitration and H’s motion to enter judgment on the MSA. The trial court also denied W’s MSJ claims. H filed an interlocutory appeal. The COA found that the MSA was conclusive proof of the parties’ agreement to arbitrate. The COA found that the first arbitration provision should be read only to include drafting disputes regarding the final judgment. The second arbitration provision was much broader in scope and contemplated both mediation, and if no agreement, then arbitration of “any other disputes” regarding interpretation or performance. The COA held that W’s challenge to the enforceability and validity was a dispute regarding interpretation or performance and fell within the scope of the second arbitration provision. The COA reversed the trial court’s order denying arbitration and remanded the case so arbitration could take place.
ATTORNEY’S FEES-When you prove up attorney’s fees you must put on evidence that the fees were reasonable and necessary, including the hourly rate, the number of hours spent by the lawyer and paralegal, and the work performed. In Heard v. Heard, (Tex. App.-Fort Worth March 27, 2014) (mem. opinion) (Cause No. 02-12-00406-CV), the COA held that an exhibit admitted into evidence requesting attorney’s fees in the amount of $18,568.98 without any information about the hourly rate, number of hours spent on the case or a description of the services provided, was not sufficient. The attorney did not testify about such matters or even conclusorily testify that amount was reasonable and necessary. The record was insufficient to support the trial court’s award of fees.
In IMOMO Pyrtle, ___S.W.3d___, 05-1300359-CV, 2014 WL 2053972 (Tex. App.-Dallas, no pet. h.) (05/19/2014), W’s attorney testified that (1) she had been licensed in Texas since 1982; (2) she incurred fees of $6,008.98 prior to trial; (3) she incurred an additional 8 hours on day of trial; (4) was asking for a total of $8,000; and (5) her hours totaled 24 and there were 10 hours of paralegal time at $100 per hour. W testified that she agreed to pay her attorney $250 per hour. However, there was no expert testimony regarding the reasonableness of the hourly rate or the reasonableness of the fees. Thus the record was insufficient to support the trial court’s award of $7,000 fees to W’s attorney.