Bob Bennett & Associates, P.C. and Bob Bennett v. Gary O. LandAppeal from 125th District Court of Harris County (Memorandum Opinion )

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2013 » Bob Bennett & Associates, P.C. and Bob Bennett v. Gary O. LandAppeal from 125th District Court of Harris County (Memorandum Opinion )

State: Texas

Court: Texas Northern District Court

Docket No: 01-12-00795-CV

Case Date: 06/04/2013

Plaintiff: Bob Bennett & Associates, P.C. and Bob Bennett

Defendant: Gary O. LandAppeal from 125th District Court of Harris County (Memorandum Opinion )

Preview:Opinion issued June 4, 2013

In The

Court of Appeals
For The

First District of Texas
------------------------ NO. 01-12-00795-CV ---------------------- BOB BENNETT & ASSOCIATES, P.C. AND BOB BENNETT, Appellants V. GARY O. LAND, Appellee

On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2012-20006

MEMORANDUM OPINION Bob Bennett & Associates, P.C. and Bob Bennett appeal the trial court's judgment confirming an arbitration award in favor of Gary O. Land. Appellants

identify one issue on appeal, with a number of sub-issues, challenging the confirmation of the award. We affirm. Background Summary Gary O. Land retained the legal services of Bob Bennett & Associates, P.C. and Bob Bennett (collectively, "Appellants") to represent Land in a matter involving a possible civil rights violation and a federal investigation of Land. Land also retained Appellants to assist in a commercial dispute in Potter County, Texas. On February 10, 2011, Land signed an attorney retainer and fee agreement ("the Fee Agreement") with Appellants. Among other matters, the Agreement addressed the scope of Appellants' representation of Land and set out how fees and expenses would be calculated and billed. The Agreement also contained an

arbitration provision, which provided, in part, as follows: In order to facilitate a quick and inexpensive resolution of any disputes concerning this Agreement, the parties agree that any disputes arising out of the Agreement, whether contractual or tortious in nature will be resolved by submission to binding arbitration pursuant to the rules of the Houston Bar Association Fee Dispute Committee. . . . To further clarify our Agreement on arbitration, arbitration would apply to any controversy, claim or dispute in the course and scope of the business relationship or arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate. 2

Our dispute shall be determined by arbitration in Houston, Texas before a panel selected by, and per the rules of the Houston Bar Association Fee Dispute Committee, in accordance with the laws of the State of Texas for Agreements made in and to be performed in Texas. "Disputes" shall include, without limitation, those involving fees, costs, billing, and breach of ethical or fiduciary duties. The arbitration shall be administered by the Houston Bar Association Fee Dispute Committee, pursuant to its Rules and Regulations. . . . As required by the Fee Agreement, Land paid a $50,000 retainer to the firm. Appellants commenced providing services to Land for which Land was invoiced. After some time, the $50,000 retainer was exhausted. continued to provide services to Land. On August 3, 2011, Land sent a letter to Appellants stating that he was terminating Appellants' representation of him. Land indicated in the letter that he disagreed with the fees that Appellants had charged him. Land retained another attorney to represent him in the fee dispute with Appellants. New counsel sent a letter to Appellants requesting a fee reduction of $35,000. The letter also requested Appellants to refund a portion of the retainer Land had paid. As permitted by the Fee Agreement, Land initiated the arbitration process by filing a fee dispute complaint with the Houston Bar Association's Fee Dispute Committee. In the complaint, Land stated that the amount of fees in dispute was $70,998.31. Land sought the return of $35,000 of the $50,000 in fees that he had paid the firm. Appellants consented to the arbitration and filed an arbitral counterclaim, alleging that Land owed the firm $25,787.50 in unpaid fees. 3 However, Appellants

The matter was assigned to an Arbitration Panel comprised of two attorneys and one non-attorney. The arbitration hearing occurred over the course of three days. Land appeared and testified at the hearing by telephonic conference call. Bob Bennett also testified at the hearing. In addition, Appellants offered the affidavits of several attorneys indicating that the fees charged by Appellants were reasonable. The Arbitration Panel also considered documentary evidence,

including invoices sent by Appellant to Land. The Arbitration Panel issued its written Arbitration Award on January 3, 2012. The panel awarded Land $27,500 and expressly awarded Appellants nothing on the counter-claim. Rule 7.03 of the Rules and Regulations of the Houston Bar Association's Fee Dispute Committee provides that a party may apply to the Fee Dispute Committee Chair for a modification or correction of an arbitration decision. On February 3, 2012, Appellants filed a motion for modification and correction ("modification motion") of the Arbitration Award. The Arbitration Panel issued an order denying the modification motion on March 2, 2012. The Arbitration Award remained unchanged. The order also included a 17 page explanation, detailing the grounds for the panel's January 3, 2012 Arbitration Award. On April 4, 2012, Land filed a motion to confirm the Arbitration Award in the trial court. Appellants answered and filed an application for vacatur of the 4

award on April 27, 2012. The parties then filed a series of responses and replies regarding whether the Arbitration Award should be confirmed. After a hearing, the trial court signed an order granting Land's motion to confirm and "enter[ing] judgment in accordance with the [A]rbitration [A]ward." Appellants now appeal the judgment. They identify one issue with a number of sub-issues in which they assert that the trial court erred by confirming the Arbitration Award. Specifically, Appellants contend that the trial court erred by confirming the award because the arbitrators exceeded the scope of their authority, demonstrated partiality to Land, did not permit Appellants to finish crossexamining Land, and committed gross mistake. Judicial Review of Arbitration Award A. Scope and Standard of Review Texas law favors the arbitration of disputes. Jones v. Brelsford, 390 S.W.3d 486, 491

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