*1
(Tex.1971).
evidence,
weight of
see
The Su-
comment on the
the
467 S.W.2d
Roper Corp.,
Bank v.
the
First International
preme Court has said
trial courts should
(Tex.1986 [1985]), and an
submitting an instruction on unavoid-
In Court ease. Prosser and Keeton as follows:
Jury acci- unavoidable instructions I for retrial. would reverse falling disfa- dent have been into doctrine jurisdictions. growing vor number of instruction, it argued, an confuses
Such jury merely it
and misleads the because duty, negligence principles
restates proximate yet appears causation
inject a tends to over- separate issue which
emphasize favor the defendant’s case. Hill, 849 at 803 n. 1. KLINE, Appellant, Donna C. case, In this there was no evidence an extrinsic, event, act as an unavoidable such Pearson, O’QUINN, M. Thomas J. John Hill, God, the accident. which caused One, N.A., Texas, and Bank unexpected at 803. There was no Appellees. catastrophe. The defendant could see Id. overpass; approaching he A14-93-00187-CV. No. had it minutes plaintiff who traveled over Texas, Appeals of Court of stop; able to the defendant before had been (14th Dist.). Houston catastro- stop, not not because of some did traveling too phe, but he was either because March 1994. traveling closely plaintiff or he was too Modifying Supplemental Opinion jury could found that fast. The have Judgment Denying but Otherwise evidence for plaintiff produce enough did May Rehearing 1994. negligent, defendant but them find the was not an issue this unavoidable accident
case. on un- to the instruction comment Texas, accident, Texas
avoidable State Bar 3.04, Charges § Jury
Pattern PJC states: negli- light use of broad-form to which
gence/proximate question cause persons may for all jury answer “No” (PJC 4.01), question is a there
submitted may instruction constitute a
whether this *3 Pullara, Riedmueller, A. Michael
Norman Houston, appellant. for Martin, Borgman, R. Che- J. Clark Steven Irvin, Houston, appellees. ryl E. for MURPHY, SMITH,* provided repay- further agreement Before ELLIS Finally, JJ. ment of a Pearson debt Kline. provisions contained several protect the fee interests of Kline MAJORITY OPINION O’Quinn. Among provisions, those was SMITH, Jr., JACKSON B. Justice all settlement recov- condition that monies (Retired). covered ered in the cases deposited would be client trust modify- appeal is an This from a accounting and distribution. account for ing an arbitration which rendered Kline, appellant, favor Donna Pearson, Kline, then executed against John and Thomas Pearson. *4 (“the agreement with Bank an One bank judgment The modified the award arbitration agreement”), which for the most re- deleting by punitive damages assessed provisions stated the set out the second against appellee, O’Quinn and ordered attorneys’ an agreement, but did not contain nothing appellee, against Kline take in a trial Thereafter, recoveries, provision. arbitration (successor-in-interest MBank, Bank One to by by judgment, or either settlement were N.A.). Although appears his on the name O’Quinn by and on received both Pearson bond, appeal Pearson did not file brief attorneys’ by cases covered the second points of raise error. However, agreement. paid Kline was dispute attorneys This between arose out portion paid of share of fees or not all. her attorney’s contingent of a contract for fees. 8, 1991, against On March Kline filed suit 30, 1988, On March Kline and en- Pearson Pearson, O’Quinn alleging and breach of con- into an O’Quinn tered with where- tract, fiduciary duty, of breach of and breach by agreed O’Quinn pay to expenses and as- duty dealing faith and fair good of because injury sist on certain toxic tort personal and pay to contingent of their failure her certain attorney’s in return for cases a share of the attorney’s original petition spe- fees. (“the attorneys’ agreement”). fees first Pur- cifically provision the invoked arbitration agreement, O’Quinn suant to their advanced attorneys’ agreement prayed the second and money substantial sums of and to Kline Pear- dis- “that the court order arbitration of the signing attorneys’ agree- son. After the first putes between Plaintiff and Defendants ment, O’Quinn Kline and became aware that O’Quinn was and Pearson.” Bank One Bank One was a creditor of Pearson and defendant, wrongdoing but named as a the bank claimed in Pearson’s interest alleged against was the bank it not a as was attorney’s share of fees in cases covered party attorneys’ agreement. to second the attorneys’ agreement. result, Kline, the As a O’Quinn plea filed a then abatement with O’Quinn and Pearson a second executed stay proceedings the pending court to (“the agree- attorneys’ second arbitration. The court took no action on ment”). O’Quinn’s motion. agreements fee-sharing Both ar- detailed a rangement binding and attorneys’ agree- contained a arbitra- Pursuant to second addition, ment, tion clause. the second attor- filed a demand for Kline arbitration neys’ agreement acknowledged the existence with the American Arbitration Association (AAA). One’s her copy Bank interest and allocated to the also submitted a Kline portion original parties bank a of fees in petition Pearson’s share the AAA The agreement. agree- proceeded May cases covered to arbitration and provided 22, 1992, portion ment that a of Pear- also June three-member arbitration O’Quinn panel would be favor of repay son’s fees used to found in Kline and ordered money O’Quinn pay damages.1 for he advanced to Pearson. and Pearson to Kline and both * sitting by assignment O'Quinn Justice Smith the Texas was also award interest. ordered Supreme $50,000.00 Court. рunitive damages. pay Pearson $105,523.20 $249,316.02 pay plus pre- was Kline pay O’Quinn ordered 1. was ordered to Kline $17,587.20 $41,552.67 plus pre-award post- post-award interest of in- award interest AAA, until the O’Quinn subsequently filed the arbitration with modified against modify conclusion of the trial Bank One. partially vacate arbi- “motion panel tration.” The arbitration affirmed its began on The Bank One trial December prior rulings and motion on denied During pre-trial hearing, 1992. September 1992. then filed a prior rulings, its court ruled that because of vacate, modify alternatively, “motion to litigated against issues there were no to be arbitration award” in the trial correct therefore, O’Quinn; counsel for motion, like the court. That earlier motion permitted participate in the Bank One $50,- AAA, requested deletion of the rested, Kline Bank One moved trial. After damages punitive 000.00 award assessed hearing argu- for a directed verdict and after against O’Quinn by the arbitrators. ment, granted trial court motion. judgment The trial final confirmed court’s thereafter, Shortly “applica- Kline filed an except for the the arbitrators’ award decree,” seeking tion for confirmation O’Quinn, against denied Kline’s re- entirety. award in also its She fees, quest for and ordered original petition, filed first seek- amended nothing from Bank One. Kline take alleging, ing confirmation of the award and raising appeals from that final time, against first causes of action *5 points O’Quinn paid error. has since three sought That attor- pleading Bank One. also compensatory judg- damages of the final ney’s petition fees. Kline later amended her and filed a motion to dismiss this ment has puni- a the trial court to include claim for appeal. against O’Quinn damages tive in the event Initially, O’Quinn’s address motion to
that was the arbitration award not confirmed dismiss. Exhibits attached to that motion entirety. O’Quinn also a motion its filed payment accep- O’Quinn’s reflect and Kline’s for and opposing application Kline’s decree damages plus interest compensatory tance judgment,” sought “motion for both which pursuant judgment. trial finаl award, court’s puni- to confirm the arbitration less acceptance that contends damages. tive judgment payment this satisfied the and pleadings The and documents in the record O’Quinn’s appeal makes moot. conten- this show that the trial court held several hear- tion is without merit. ings by raised to resolve issues modify. general party who to vacate A record of rule is that motion The accepts judgment is es- transpired hearings those is not the benefits what at all However, judgment by topped challenging the notwithstanding this court. from before Jones, record, complete appeal. City Fire Ins. Co. v. the lack of a an examination Twin 114,115 (Tex.App pleadings [1st documents and a review 834 S.W.2d . —Houston denied) (citing hearing Carle pre-trial of the record Carle, case, totality Bank of the trial Tex. S.W.2d One reflect (1951)). rulings. exceptions are two narrow court’s The trial court ruled that There 115; City, authority rule. 834 S.W.2d at had exceeded their this Twin arbitrators O’Donnell, Corp. v. by awarding punitive damages by order- River and Beаch Land (Tex.App. Corpus thirty days payment of the award within 632 S.W.2d — writ). First, party signed. no is not after The court also Christi attorney’s estopped appealing if a reversal of the Kline from ruled that could recover judgment possibly par ruled it could not effect that fees. The court further that would award, right accepted ty’s the benefit under the confirm the arbitration less Carle, judgment. (citing at against O’Quinn, Id. but refused Kline’s Beach, 1004); at 888. request litigate issue of River and that issue Second, estopped appeal is not from attorney’s party fees. trial court then ruled The such judgment ing if the circumstances are confirming that not enter economic it would $25,- remaining O'Quinn pay by $500.00 in her funded terest. Pearson was also ordered punitive damages. Kline was further 000.00 fund. own client trust $1,261.23 expense a case awarded from account (June 1994) party’s acceptance (opinion of the benefits on motion for (2) voluntary. City, rehearing); was not Twin the trial court did not enter 115; Beach, River and at 888. setting out order the issues be consid exception. This case falls within the first by limiting ered the arbitrators or an order by the issues to be considered the arbitra compensatory damages paid by (3) tors; and, the trial court did not know accepted Kline were never what evidence or issues were submitted to subject By appeal. appeal, of this her panel the arbitration because no record was recovery seeks “further” Thus, proceedings. made of the arbitration punitive damages deleted from the arbitra holding the trial court’s that the arbitration attorney’s confirming tion award and fees in panel’s par award “failed to conform to the Thus, the award. reversal of the sought” ties’ arbitration or relief merely would allow Kline to a sum of recover necessity was of limited to the construction of money compensatory damages in addition to agreement. already accepted by her and would have effect on those has un benefits she secured dispute There is no that the award was the judgment. Baptist der thе Memorial binding statutory pursu- result of Bashara, Sys. Hosp. 353-54 attorneys’ agreement, ant to second ( 1984), Tex.App. aff'd, Antonio — San proceedings the arbitration in accor- were (Tex.1985) (held hospital’s S.W.2d 307 dance with the Commercial Arbitration Rules acceptance payment of lien reduced AAA, jurisdic- rules of the that this court has attorney amount of repre fees of tion, applicable. and that Texas law is injured senting client hospital did not bar attorneys’ agreement provided The second seeking higher payment appeal). lien binding arbitration in accordance with O’Quinn’s motion to dismiss is denied. *6 any the rules of the AAA and that court error, point In her first of Kline contends jurisdiction having judgment could enter by rejecting “the trial court erred rather the award. confirming exempla- the arbitration award of ry damages against O’Quinn.” provision The arbitration in the second attorneys’ agreement provided: setting
The trial court’s aside punitive damages against the award of Binding Arbitration. —In that a the event O’Quinn states thаt “... such award fail[ed] hereto, dispute among arises the Parties to parties’ conform either to the arbitration good the in Parties covenant to endeavor agreement sought or the relief ...” and that dispute amicably. faith to resolve the "... scope the arbitrators exceeded the of dispute among the event that a arises Par- authority their in attempting puni to award or, amicably ties that cannot be resolved damages.” tive That “arbitrators exceeded Parties have elected to terminate this powers” statutory ground their is a for vacate Agreement are to an unable reach an award. Tex.Civ.StatANN. art. end, dispute to that said shall A(3). § That “arbitrators have awarded be determined arbitration conducted in upon a matter not submitted to them” is Houston, City Texas, the of of in State statutory ground modifying correcting or accordance with the rules then in force of an award. art. 238 Tex.Civ.StatANN. Association, the Arbitration American A(2). Here, § the trial court did vacate judgment upon may the award rendered award, only the arbitration it modified the any having jurisdiction in be entered court by deleting punitive damages award expenses thereof. The of arbitration shall Therefore, against O’Quinn. issue equally among shared or between punitive before this court is: was the issue of arbitrating parties party but each shall be damages submitted to the arbitrators? responsible for the fees of its own counsel. (1) Texas, undisputed punitive place
It is that: Said arbitration shall take within (30) damages may thirty appropriate days request by any party, be awarded under of circumstances, Transportation any party see Ins. Co. v. unless to the arbitration shall be Monel, 883, 889-92, Sup.Ct.J. 1994 in trial it WL at the time which case shall (30) place thirty days Applying principles
take within after those provision, phrase, trial is concluded. above that the such we hold “a among arises dispute parties,” [emphasis added]. limiting language, encompasses of absence Kline’s tort causes of action and claim for parties’ Whether West, damages. punitive Corp. USX duty imposes particular dis arbitrate (Tex.App.—Houston [1st S.W.2d pute interpretation is a matter contract 1989, writ) (holding that a Dist.] “contro question of law and a for the court. versy” parties may encompass between dif PMAC, Ltd., Babcock & Co. v. Wilcox ferent causes action and claims for differ (Tex.App.—Houston [14th S.W.2d types damages, including punitive ent Util, pending); writ Lost Creek damages). reading Our broad the arbitra Painters, v. Travis Indus. provision supported by tion is own denied). (Tex.App.—Austin pleadings. plea In his abatement filed imposes presumption The law in favor of arbitration, prior the trial court requires, arbitration which whenever provision pro declared that arbitration scope fairly of an arbitration or is debatable “any vided for and all contro arbitration of doubt, reasonably in that the court decide the arising relating versies claims out of or question interpretation in favor of arbitra agreement.” Babcock, tion. at 230. This presumption particularly applicable where Notwithstanding pleading, is, broad, all purporting argues pleadings the clause to cover now that the claims, relating disputes, and other matters proof submitted to arbitrators Babcock, support or its the contract breach. See do not dam Creek, 230; ages. nothing see There is in our also Lost record to support O’Quinn’s argument. at 105. Where there is a broad corroborate clause, may particu a court particular While review whether arbitration arbitration of a scope lar issue is within grievance not be should denied unless it can agreement, the enforcement of positive be said with assurance that the arbi pleading requirements before the arbitrator is not an inter susceptible tration clause procedural is a for the matter arbitrator. pretation dispute. that covers the asserted *7 Creek, 781 at 456. Babcock, 230; S.W.2d 863 S.W.2d at Lost 827 USX S.W.2d at 105. Energy Buyers Corp. In Service USX (Energy Buyers) several causes of asserted (USX) parties contends that the сon arising Corp.’s al- action USX
Kline templated purchase arbitration of tort claims and leged her of a for the of breach contract thus, damages, they agreed to punitive gas. when 781 454. The natural at First S.W.2d among dispute Appeals attempt arbitrate “a that arises the of to Court refused USX’s parties.” agree. Ordinary principles judge require the to him We mandamus trial to require us the true to grant compel contact law to ascertain a motion arbitration cer- parties Energy in expressed by Buyers. intentions of the the tain tort claims asserted Coker, contract. 650 The court’s based on entire Coker v. S.W.2d Id. refusal was (Tex.1983). 391, reading provision [emphasis added] 393 Lan its broad of the arbitration by parties guage the should in contract. at 454-56. The used contract the plain meaning agree- be grammatical accorded its court reviewed both the arbitration definitely appears pending inten unless it that the ment and documents filed parties thereby concluding the tions of the be defeat arbitration before claims would by Buyers, Lyons Montgomery, Energy including 701 asserted a ed. S.W.2d (Tex.1985). avoid, possi punitive damages, 643 We must when claim for were before the Although is un 781 at 455-56. proper, ble and construction which arbitrator. S.W.2d reasonable, inequitable oppressive. Energy Buyers’ pleading specifically did Inc., Reilly Rangers punitive 721 the court held that Management damages, refer to (Tex.1987). requirements pleading the enforcement of Further, O’Quinn’s ordinarily procedur- before an arbitrator is er. claim bears on the USX, parties’ dispute al matter for the arbitrator. disposition final of the at 456. interpret scope sense that he seeks to agreement reference to arbitration holding, In so the court in relied on USX evidence, i.e., pleadings. extrinsic Sons, Wiley Livingston, John & Inc. v. However, O’Quinn never that the has claimed 909, 11 (1964). U.S. S.Ct. L.Ed.2d 898 parties agreement ambiguous. any In Wiley, sought compel In a union cor to event, attorneys’ agreement spe- the second porate employer pursuant to arbitration tо a cifically that it entire states “constitutes the bargaining agreement collective with the cor agreement parties.” of the Because we have porate employer merged an who had with already provision held that the arbitration corporation. other at 84 S.Ct. U.S. enough was broad encom- issue, at 911. At was whether the collective pass Kline’s tort causes of action and claim bargaining agreement merger survived the punitive damages, we must defer to the and whether arbitrators could decide wheth regard procedural arbitrators with mat- procedural prerequisites er certain to arbi sufficiency plead- ters such as the of Kline’s tration out in set had been ings. issue, satisfied. Id. As to the latter Supreme U.S. Court held “once it is O’Quinn’sargument toAs that Kline parties obligated determined ... that the are prove did not in the arbitration that she was subject to submit dispute matter we, punitive damages, entitled to the like the arbitration, ‘procedural’ questions which court, trial do not have rеcord of the arbi grow dispute out and bear on its final tration and are unable determine what disposition should be to the arbitrator.” left claims were submitted or what evidence was Id. at [emphasis S.Ct. 918. added] offered before the arbitrators. Without a explained The court that “even under a con transcription proceedings, of the arbitration rule, trary deny a court could arbitration presume adequate sup we must evidence to only if it could be said not that a claim Obst, port the award. House Grain Co. v. strictly ‘procedural,’ and therefore within (Tex.App.—Corpus court, purview of the but also that it n.r.e.). Christi writ ref'd operate altogether, should to bar arbitration merely
and not
qualify
relitigation
limit or
next asserts that
the arbitral
punitive
award.”
Id.
is barred
doctrine
true,
judicata.
may
res
While
The court in USX also
E.
relied
Del
litigate
seeks to
the issue of
dam-
Auth.,
Hosp.
Webb Constr. v. Richardson
ages only in the event that
find that such
(5th Cir.1987). Webb, general
F.2d 145
scope
an issue was not within the
sought
compel
contractor
property
agreement.
Because we
*8
owner and architect to arbitration. 823 F.2d
punitive
have determined that
the issue of
property
at 146. The
owner and architect
damages
scope
the
was within
the
argued that
the
comply
contractor did not
agreement,
we need not address
prerequisites
with the contractual
to arbitra-
judicata argument.
res
finding
tion.
Id. The district court made a
contrary.
court,
to the
Kline asserts that
court “sum-
arbitration award
marily”
request
ceedings
to confirm the award. Confirma-
denied her
adjudication
par-
tion of
fees without an
on the merits.
an arbitration award is
process.
proceeds to
cel of
She then
state
standard
Tex.Civ.
*9
(Vernon
1973).
judgments.
summary
235,
for
This case
arts.
review
StatANN.
jurisdiction
summary
a
Kline
of the trial
appeal
from
invoked the
does
involve an
original
asking
appeal
by filing
petition
from a
court
her
judgment,
proceeding
but an
result,
Moreover,
As a
confirm an
award.
the court to order arbitration.
to
required
proceed-
Kline
of the arbitration
pleadings
documents
that
trial
process to
ing which are
in the record reflect
enforcement
return
contained
award,"
bringing a
the time limits for
mo-
2. The arbitrators rendered
“second
award altered
denying
appeal
motion to
initial
vacate
modify
been
on
tion to
has not
raised
modify.
3,
September
That
was rendered
on
therefore, is not before us.
question
whether
1992. The
of
this second
(Tex.App
court to confirm the award and make it into
Paso
. —El
denied).
judgment.
an enforceable final
In view of writ
parties agreement
pay
attor-
their own
reviewing
court’s
the trial
arbitration,
in
ney’s fees for
view of the
verdict,
granting of a directed
we must de
fact that the arbitrators’ award is consistent
any
there is
of
termine whether
evidence
agreement,
with that
we find that the trial
probative force to raise fact
on the
issues
properly
attorney’s
court
refused to award
presented. Qantel
questions
material
Busi
fees to Kline.
Controls,
Sys.
ness
v. Custom
761 S.W.2d
(Tex.1988);
White v. Southwestern
We also note that Kline could not
Co.,
(Tex.1983);
Bell Tel.
651 S.W.2d
attorney’s
recover
fees under the
Prac
Civil
(Tex.
Navarro,
Collora v.
tices and Remedies Code which sets forth the
1978).
consider the
We must
evidence
types
upon
attorneys
of claims
which
fees are
light
party against
most favorable to the
Among
recoverable.
those
claims
claims are
instructed, disregard
whom the verdict was
personal
for
services rendered and claims on
contrary
all
evidence and inferences.
oral and written contracts. Tex.Civ.PRAC. &
White,
304;
Qantel, 761 S.W.2d at
(Vernon 1988).
§
38.001
Ann.
Rem.Code
262, Collora,
If
S.W.2d at
Pearson’s
the fees
those
can Medical
Inc. v.
any
331,
impose
bank
not
The
did
339 (Tex.App.
[14th
S.W.2d
—Houston
obligation
writ)
duty
1991,
on
to
affirmative
Bank One
(opinion
no
motion for
Dist.]
for Kline’s
to assert
account
share of fees or
rehearing).
special
It exists
a
confi-
where
a claim оn her behalf.
placed in
dence is
who is bound
another
good
regard
act in
faith and
with due
allegations
As for
of breach
Id.
placing
interests of the one
confidence.
duty
good
dealing,
of a
faith and fair
Bank
fiduciary
may
A
informal
relationship
include
duty
matter of
One did not owe such a
as a
moral, social,
relationships such as
domestic
general
law. The courts of this
do not
State
cre-
purely personal relationships
that are
ly recognize
“special
of a
rela
existence
party placing implicit
ated
one
trust and
tionship” giving
independent duty
rise to an
However,
reliance on another.
Id.
a fiducia-
good
dealing
faith and
in contract
fair
extraordinary
ry relationship is
one and will
public
of the
or the
outside
insurance context
created;
lightly
not be
fact that one
mere
Crim
Tractor v. Navis-
sector. See
Truck &
alone,
subjectively
not
trusts another does
591, 595,
Transp. Corp.,
tar Int’l
823 S.W.2d
placed
indicate that
in another
confidence is
TV,
(Tex.1992);
n. 5
see
Houston
also
Cable
by fiduciary
in the sense
relation-
demanded
Ass’n.,
Inc. v. Inwood West
839 S.W.2d
Civic
ships
something apart
from the
because
497,
(Tex.App.
Dist.]
503
[14th
—Houston
parties
required.
between
is
transaction
curiam,
1992),
per
writ dism’d
contract. Section 43 of the Commercial 1994) rehearing). (opinion motion for provides AAA that “the bitration Rules of the may grant any remedy or arbitrator relief arising con- dispute “A under or out of a just equitable that the arbitrator deems and relationship may give rise to both tractual scope and within the of the of at the of contract and tort claims breach University, parties....” Columbia duty time since the breach of under same Arbitration and Guide to International may conduct.” contract involve tortious Va- (2d 1992). Arbitrators, 137,148 [empha- ed. II, Wagner Energy Corp. v. & Brown lero case, In claim for added] sis this Kline’s 564, (Tex.App. 566 Paso 777 S.W.2d —El damages beyond scope denied). is of the 1989, However, pu- to recover writ parties. agreement of the a contraсt dis- nitive attendant prove a pute, plaintiff plead must narrowly is Where an arbitration clause injury accompanying distinct tortious with drawn, judicial jur review of the arbitrator’s Moriel, damages. e.g. Sup. actual opposed isdiction as to the merits 893; Bell Tel. Co. v. Ct.J. at Southwestern award, is less deferential. The arbitration (Tex. 493, DeLanney, 494-95 809 S.W.2d PMAC, Babcock & Co. v. 863 S.W.2d Wilcox Morales, Bank, 1991); N.A v. International (Tex.App. [14th — Houston (Tex.1987); Texas Nat’l 736 S.W.2d Prods., (citing pending) Container (Tex. Karnes, Bank v. 717 S.W.2d Am. and Its Inc. v. United Steelworkers of 1986) (and therein); cases cited Jim Walter (5th F.2d 819-20 Cir. Local (Tex. Reed, Homes 1989)). ease, confront In the instant we are Brown, 1986); Co. v. Underwriters Bellefonte provi only ed not with narrow (Tex.1986). 742, 744 Punitive 704 S.W.2d sion, pleading which was but also with for of damages are not recoverable breach scope provi intended to broaden the that Karnes, at 903. contract alone. Therefore, I not defer to the sion. would in determining an action is tort whether sufficiency regard with to the arbitrators contract, in must look to the substance plеading.1 action, not the manner of the cause Homes, pleaded. which it was Jim Walter Petition, Original alleged Kline In her at 618. against O’Quinn action and Pearson causes of Supreme by Texas Court: As stated contract, duty for breach of breach of party may duties The acts of a breach dealing, and of a good faith and fair breach simultaneously in tort or contract alone fiduciary duty. alleged that She injury often The nature of the most both. pay her share of fees in and Pearson failed duty or duties are determines which by Attorneys’ the cases covered Second injury When breached. alleged Agreement. Specifically, she subject of a contract economic loss to the failed to disclose the and Pearson in contract alone. action sounds itself the proceeds in receipt “in trust” of settlement Co., Bell Tel. 809 S.W.2d at Southwestern agreement and then cases covered their Homes, 711 at (citing Jim Walter proceeds her knowl- disbursed those without 618). allegation of edgе or consent. There was no liability is for only claim of tort There was also Kline’s constructive trust or fraud. fair deal- duty good of a faith and on the breach allegation no of conscious indifference fiduciary duty. As of a allegation breach part O’Quinn or Pearson and duty good of a faith for her claim of breach likely to cause serious that their conduct was dealing, alleged a breach fair Transportation Ins. Co. harm to Kline. See damages. including punitive correspondence As noted Notwithstanding 1. AAA, O'Quinn's majority, majority court never ruled on pleadings the trial to the submitted plea submitted verbiage plea O'Quinn's nor was that motion points in abatement out that importantly, defen- requested "all to the arbitrators. More arbitration of abatement which way enlarged pleading or enhanced arising relating in no out of or sive controversies or claims Petition, Original allegations which Attorneys’] Agreement” in Kline's indicates [Second submitted to the arbitrators. all the arbitrators were to considеr matters. Truck, contract. See Crim solely on the fact that based case, Kline does not In the instant 594-97. parties were to agreement provided that the relation- of a confidential allege the existence “fairly good and in faith.” treat each other *13 duty fiduciary a give rise to ship which would is not maintainable without “If an action contract. See Crim of the outside contract, proving where pleading Truck, 594-97; see also Amer- S.W.2d at 823 of the con- gist of the action is the breach Giurintano, Int’l, 821 Inc. v. ican Medical nonfeasance, tract, either malfeasance 331, (Tex.App. [14th S.W.2d 339 contract, it is in an action on the substance —Houston writ) 1991, (opinion on motion for may pleading.” of whatever be the form the Thus, rehearing). Kline failed as a matter of Printing and Assis- International Pressman a cause of action for breach of law to state Smith,-145 399, Am. v. Tex. 198 tants’ Union fiduciary duty and was barred from recover- (1946). 729, Here, 735 the substance S.W.2d ground. ing punitive on that solely alleged of Kline’s claim is based on the only injury of Attornеys’ Agreement. Similarly, Kline’s claim breach of the Second subject matter of the economic and to cause of action for breach of a Because her contract, i.e., contingent share of attor- her duty good dealing faith and fair is not of Attorneys’ neys’ fees owed under the Second par- maintainable without reference subject injury to the Agreement. Economic contract, proper Kline failed to state a ties’ automatically not matter of the contract will cause of action. tort preclude punitive damages especially a observed, majority correctly As the allegation an of fraud. See where there is duty good cause of action for breach of the of Cable, 503; Houston 839 S.W.2d at see also dealing recog generally faith and fair is not Co-Op, Farmers 829 Schindler v. Austwell in contract nized outside of the insurance (Tex.App. Corpus 289-91 S.W.2d — public context or the sector. Crim See 1992) (opinion for rehear- Christi on motion Transp. Truck Tractor v. Int’l & Navistar (Tex. ing), ajfd modfd, 841 853 S.W.2d (Tex.1992); Corp., 823 S.W.2d Hous 1992). TV, ton Inc. v. Inuiood Cable West Civic noted, previously Original Kline’s Peti- As Assoc., (Tex.App. allege fraud or intentional con- tion did not 1992), dism’d, —Houston [14th Dist.] (i.e., any or conscious duct of kind malice (Tex.1993). Aside from those cir indifference) specify punitive dam- nor did it cumstances, allegation duty an of breach of a ages. petition requested actual dam- Her good dealing only gives faith and fair rise interest, fees, declaratory re- ages, ato cause of action for breach of contract. relief, lief, and “such other and further Truck, See Crim 823 S.W.2d at n. 5. As general in equity, whether at law or whether noted, previously Kline’s claim of a breach of may special, she show herself which good dealing nothing fair faith and is more be entitled.” than a claim for breach of contract. As a pleading that a is suffi- It is well-settled result, Kline could not dam recover party fair only gives opposing cient if it an ages as matter law on basis. claims at issue. adequate notice of the The sаme is true of her claim of a breach Vawter, Garvey fiduciary duty. Similar to her other tort (Tex.1990) curiam). (per general prayer A claim, alleges fiduciary duty on the enlarge pleading for relief cannot simply and Pearson because entirely different extent that it embraces (1) parties agreement provided: not cause of action for which fair notice does paid Kline’s share of fees would Thompson, exist. Stoner v. O’Quinn’s proceeds deposited settlement (Tex.1979). Only the relief consistent (2) account; and, client trust that Kline theory with the of the claim reflected firm an “associate” of law would be granted general petition may be under a handling by the purpose cases covered Sys., 587 prayer. Kissman v. Bendix Home agreement. (Tex.1979). The viable Original fiduciary duty theory recovery alleged A from the relation- in Kline’s arises just for breach of contract. ship parties and not from the Petition was of the tion Arbitration Rules general prayer contained therein cannot be Commеrcial Thus, place any of the AAA does not the burden provide pled. read to relief not “stenographic party request record” Original only failed to state a Petition not ap- proceedings, rules of the arbitration punitive damages upon claim which could procedure clearly place the burden on awarded, pellate give have but also did not been appellant “to see that a sufficient record adequate puni- fair and notice requiring error rever- presented is to show damages could have been awarded tive Tex.RApp.P. 52(d); sal.” Univer- Columbia the arbitrators.2 supra at 143. Because Kline did sity, recognize every pre- I reasonable bring complete appeal, record on this forth a sumption indulged uphold arbitration *14 before the presume court must the evidence Smulcer, proceedings. Riha v. 843 S.W.2d judgment. Beck supported trial court its See 289, (Tex.App. [14th Dist.] 292 —Houston Masten, at 295. & 830 S.W.2d Galvan, denied); 1992, Massey 822 v. writ Accordingly, I Kline’s first would overrule 309, (Tex.App. [14th S.W.2d —Houston judgment of the point of error and affirm the denied). 1992, However, in writ view Dist.] trial court. Original that Kline’s Petition was of the fact scope of the arbitra- intended to define the OPINION ON MOTIONS tion under the and the FOR REHEARING pleading allege facts fact that this did not rehearing, Kline re- In her motion for support punitive an award of which would $50,000.00 punitive quests interest on the trial court damages, I would hold that the in with the arbi- damages award accordance correctly the arbitrators determined request ruling. We find Kline’s trators’ an award on a matter not submit- rendered hereby It ordered that be meritorious. is properly trial court ted to them and judgment be modified to the trial court’s damages against struck the $50,000.00 in interest on the award Kline O’Quinn. percent punitive damages at the rate of ten holding I that such a would also note (10%) 15, commencing from per June annum is with- compelled the fact that this court 1992, paid. until Kline’s motion for rehear- complete out a record. The record before ing respects is in all other overruled. transcription inсlude a this court does not rehearing, O’Quinn con- In his motion for majority, proceeding. The the arbitration not waive constitutional tends that he did Obst, v. citing House Grain Co. S.W.2d vacating modify- arguments support in 1983, 903, (Tex.App. Corpus Christi — punitive damages arbitrator’s award. n.r.e.), holds that without a tran- writ refd dispute not that he Although does proceeding, the scription of the arbitration grounds constitutional failed to raise adequate presume evidence to court must that, court, appellee, as the trial he contends upon in support the The case relied award. every argue obligation to he is under no proposi- House for the aforementioned Grain theory support of trial alternative tion, City Antonio v. McKenzie San Kkalaf, judgment. court’s See Williams Constr., 989, 315, 136 Tex. 150 S.W.2d (Tex.1990). kind, (1941), merely says nothing of the but all general requiring rule recites the this O’Quinn is before While indulged in presumptions be favor reasonable appellee, procedural posture court of the award. party in arbi non-prevailing was the record, complete losing party seeking to modi In the absence of a tration. As the award, O’Quinn presume fy that evidence before the trial arbitrators’ must or vacate the bringing judgment. trial court of supported court its Beck & Mas- had the burden establishing Ap- County complete record and of v. Harris forth a ten Pontiac-GMC (Tex. basis, grounds, Dist., including constitutional any praisal modifying vacating or de- which would warrant App. writ [14th —Houston Tex.R.App.P. 50(d)). nied) Grissom award. See (citing Sec- the arbitrators’ While par- solely on the breach petition, post-evidentiary based 2. Similar to her agreement. requested punitive ties' brief filed in the arbitration Co., 676 S.W.2d Greener & Sumner Constr. (Tex.App. Paso 710-11 —El n.r.e.) (appellee, losing party as the
refd
arbitration, in the trial court had the burden establishing warrant facts which would award);
vacating of see also Atri- Barrick
um VIII Venture v. West- Westwood Partnership, 693
wood Limited (Tex.App. [14th Dist.]
700-701 —Houston writ) (same, except appellant was arbitration). O’Quinn losing party in did arguments constitutional present his and, therefore, those
the trial court waived Grissom,
grounds appeal. this 710-11; Atrium at see also West- 700-701; Mullinax,
wood,
Wells, Sage, Baab and Cloutman v. *15 (Tex.App. —Dallas n.r.e.) (opinion rehearing) on motion
refd
(law firm waived fees not rais- during proceeding claim the trial court award). O’Quinn’s set aside rehearing
motion for is overruled. original opinion,
In accordance with our
hereby reverse that of the trial court’s
judgment, striking the arbitrators’ award of
$50,000.00 punitive damages, and render
judgment that Kline recover from
$50,000.00 punitive damages, plus interest (10%) percent per
at the rate of ten annum 15, 1992,
commencing paid. from June until
The remainder of the trial court’s
is affirmed. WASHINGTON, Idlebird
Wanda
Appellant, and Dr. Patrick
CITY OF HOUSTON Titus, Appellees.
A.
No. 06-93-00054-CV. Texas, Appeals
Court
Texarkana. 14, 1994.
Submitted March
Decided March 1994.