*1 has, therefore, any suit. It failed to show

injury appellants. STAMP-AD, result of actions of INC., Appellant, as a facts, light favoring policy of these agreements of enforcement arbitration strong presumption against finding of RABEN, INC., Appellee. BARTON waiver, not a find- the evidence does No. 01-95-00567-CV. right ing PIDCO its waived to arbitra- point tion. sustain of error three. We Texas, Appeals Court of of (1st Dist.). Houston Point of Error Four appellants fourth Jan. 1996. their argue PID- that there was no evidence that

CO’s cancellation of the contracts invalidated arbitration clauses the contracts. Pub

argues por- cancelling remaining PIDCO, contracts, effect,

tions of can- agreements

celled contained the arbitration

within them. provides:

Section 224 of the Texas Act agreement any

A written exist- submit

ing controversy provi- to arbitration or a

sion in a written contract to submit any controversy

arbitration thereafter valid,

arising parties between the is en- irrevocable, upon such

forceable save

grounds equity as exist law or in for the any

revocation contract. construing

Federal courts identical

language Act from Federal have conclud separa

ed that the to arbitrate is

ble from the entire v. Puri contract. Miller Corp.,

tan Fashions n.r.e.). ref.

(Tex.App. writ — Waco above,

As discussed the arbitration

agreements contained within the contracts Therefore, 224 of

are valid. under Article Act, agreements

the Texas arbitration spite

are and irrevocable in also enforceable upon as a attacks made the contract

whole. Id. appellants’

We fourth of er- sustain

ror. trial court

We reverse pro-

as to for further PIDCO remand opinion. this We

ceedings consistent with appellants Chap-

affirm the as to International, Inc.

pelle, Pepe Moffett *2 Raben, Inc., company,

ecutive search client, Stamp-Ad, and its Inc.

sued failure performed. Raben for executive searches *3 Stamp-Ad responded that Barton Raben perform required by failed to the services contracts. promotions is a firm that runs grocery

with chains. Raben is retail Barton consulting management specializing a firm key person- the identification and selection of companies. nel for parties client The had doing been with since business each other 19, 1990, April Ra- 1989. On March Barton engagement ben submitted an letter Stamp-Ad pertaining to Raben’s Barton a fill to locate candidate to position President Devel- of Vice of Product opment Stamp-Ad. for This was the second engagement of such Barton letters between Stamp-Ad. is not and The first letter subject a this lawsuit. March 19 engagement specified letter Barton Raben’s required Stamp- fees for and the search $36,000 Ad Raben a estimated professional upon three fee in installments Upon place- commencement of the search. Jones, Restrepo, Ronald J. Teresa R. candidate, profes- ment of a estimated Houston, for appellant. adjusted 30% of sional fee would be based on first-year compensa- the candidate’s actual Black, Houston, appellee. C. Michael for Stamp-Ad paid tion. and all fee out-of-pocket as expenses billed. engagement provided letter also one-year guarantee employment which obli- gated replace the candidate OLIVER-PARROTT, C.J., Before and out-of-pocket charge, at no other than for WILSON, MIRABAL and JJ. expenses, if the candidate left accord,

employment of his own or was termi- fault, during the first nated due to his own OPINION year. OLIVER-PARROTT, Chief Justice. Davidson as Barton Raben identified Don appeal dispute. This from a arises contract possible President of candidate Vice sufficiency It involves in- Development. not Product Davidson was jury findings, trial court’s position search was terested in the and the rulings on motions for notwith- Sep- closed 1990 and sometime between June standing part affirm in verdict. We January tember 1990. part.

reverse render Presi- locate a Vice retained Stamp-Ad, open dent of a different Sales This breach action involves two of contract meantime, began position. In the “executive search” contracts between the ex- negotiating directly regarding with Don Davidson in contract the Vice President of position; January December 1990 or Sales 1991 for the Vice Development position, President of Product (3)Barton mitigate Raben’s failure to April and hired Davidson effective 1991. regard with to the Vice President adjusted Barton Raben submitted a final bill agreement. of Sales search 9,1991 July gross on for the amount claimed Additionally, counterclaimed, as- be due the Vice President of Product serting January that in it had retained search, $39,000 ($250,000 Development first- locating Raben to assist it a Vice — = year x compensation $36,- 30% Stamp-Ad, President of Sales and that = paid $39,000). in three installments *4 comply Barton Raben failed to with that 18,1991, early July As as Stamp-Ad began agreement. Stamp-Ad paid had Barton Ra- $30,000 fees, experiencing problems plus ben in place- out-of-pocket with ex- Davidson’s penses, separate in connection with that perform ment. Davidson did not prom- as agreement, Stamp-Ad sought and return of for Stamp-Ad, ised and it is uncontested that paid. the fees fault, due to his own Davidson was terminat- 31,1991. Therefore, ed on October based on jury Stamp-Ad The found failed to letter, engagement Barton Raben was comply agreement regarding with the required replacement to find a suitable for search for Vice President of Product Devel- Davidson; however, Barton Raben did not opment, $39,000 and awarded Barton Raben replacement extend efforts to find a compensatory $36,942.37 in damages and in Davidson. Barton Raben asserted that attorney’s fees. Stamp-Ad paid had not a number of invoices found further that Barton Raben by Raben, therefore, sent Barton and comply agreement failed to with the for the contract was in breach. Sales, search for Vice President of and Barton Stamp-Ad Raben sued for breach $24,856.68 compensa- awarded in contract, of sought recovery $36,942.37 and tory of the full damages attorney’s and $39,000 payable under the executive search position contract for the of Vice President of considering parties’ After both motions for Development,

Product pay- as well as sums verdict, judgment notwithstanding the able under outstanding invoices related to trial court final entered its which agreement other executive search re- $39,000,prejudgment awarded Barton Raben garding the position Vice President of Sales interest, $36,942.37 fees, attorney’s Stamp-Ad. $24,856.68, plus pre- awarded judgment interest, Stamp-Ad’s but reduced Stamp Ad filed asserting an answer as $12,000. attorney’s fees to defenses: In its first as- (1) Barton Raben’s breach of the search serts denying the trial court erred in regarding contract the Vice President of Stamp-Ad’s motion for notwith- (a) Development position, Product in that standing the verdict and motion for new trial performed had not under its because there is “no evidence” or “insuffi- (b) replacement guarantee, jury’s finding cient evidence” to sought had the additional fee before the that Barton Raben suffered dam- one-year employment date of Don David- ages Stamp-Ad’s breach of the executive son, contrary agreement par- covering search contract President Vice (c) ties, and seeking Barton Raben was Development position. Stamp-Ad of Product more than it was entitled to under the appropriate asserts that the measure of dam- agreement; ages profits is a calculation of “lost net of (2) non-per- Failure of consideration savings”, prove and Barton Raben failed to by formance disagree. Raben the search its We 936 action, comply of contract with re- breach failure just garding damages compensation

measure of is the search for a Vice-Presi- Development? damage actually the loss or sustained. Stew deni/Product 484, Basey, art v. Tex. 245 150 S.W.2d ANSWER: (1952); Corp., 486 v. PV 765 Turner Intern. 1988), object did not (Tex.App.—Dallas

S.W.2d curiam, questions one two or to the per lack unit denied S.W.2d profits on a measure dam Here, instructions lost seeks ages. Any complaint form about the of sub breach of contract mission or the failure to instruct is therefore remaining on failure to amount owed Co., waived. See Allen v. Am. Nat'l Ins. Development the Vice President of Product (Tex.1964); Johnson v. State agreed pro executive search contract. The Ins., Farm Mut. Auto. fee, $86,000, paid fessional that was denied); (Tex.App.—San Antonio writ Stamp-Ad was the search fee. addition 274, 278, 279. Tex.R.Civ.P. dispute al that is in became due placed employee if Barton Raben an with “no reviewing point, evidence” Stamp-Ad. *5 only the court considers the evidence and support finding, Barton Raben recommended Don David- that the inferences tend Stamp-Ad disregards all son as a and evidence and inferences candidate for Vice Weirich, contrary. the v. Weirich Development, of Product and President (Tex.1992); Responsive S.W.2d Ter $250,000 Stamp-Ad hired at a Davidson Boy Systems, minal Amer Inc. Scouts yearly salary. point, Stamp-Ad At that be- (Tex.1989). ica., Testi $39,000 obligated up came make the differ- parties mony engagement and both the $250,000 ence between 30% of Davidson’s that, supports letter the conclusion once first-year salary professional and the hired, Stamp-Ad Davidson owed Barton was already paid. obligation fee This had no $39,000, Stamp-Ad Raben an additional and precedent. condition to pay failed that amount. pled “Stamp-Ad’s Barton Raben fail- that pay agreed upon

ure to Barton Raben the insufficiency reviewing an challenge, appeals amount services rendered constitutes the must evidence court of consider, weigh, and all of the [Barton Raben] breach of contract and sues first examine supports and which is con damages.” evidence which for ... actual Plas-Tex, trary jury’s to the determination. jury following ques- asked The was Corp., 772 Inc. v. States Steel United tions: so, Having done court should set the verdict if the aside standing is so to be evidence alone weak as Question No. 1 clearly manifestly unjust. wrong and Cain Stamp-Ad comply Bain, (Tex.1986) Did fail to with (per curiam). regarding the search for Vice-PresidentyProduct Development? sup testimony presented at trial

The Stamp-Ad obli ported the claim that became pay Raben gated to on ANSWER: Yes of Product De contract for Vice-President velopment moment Barton Raben Question 2No. engagement letter position. filled the testimony. supported trial that introduced at money, any, paid What additional sum cash, reasonably fairly contrary and verdict was now would The evidence that compensate Stamp-Ad's Stamp-Ad from witnesses who testified they engagement agree- did not want to Barton Raben the Raben under one of the $39,000professional ments, they fee because did not plus attorneys’ found employment go- that, know if Don Davidson’s legal was preparation services in the ing testimony to work out. This is not trial of the case incurred reason- enough language to overcome the contract $36,- attorney able fees in the amount of testimony by parties’ both witnesses 942.37. clearly wrong and find that the verdict is judgment Barton Raben filed a motion for manifestly unjust. notwithstanding requesting verdict Since there is sufficient evidence in the disregard jury’s the court at- record from prop- which the could have torney finding fees because no evidence ex- erly calculated Barton Raben’s of con- breach answer, support jury’s isted to and the contract, tract on the second search evidence contrary established the fact to the was not entitled to a motion, as a matter of law. In its notwithstanding the verdict or a new trial on argued testimony that uncontroverted grounds. these given by Stamp-Ad’s $12,- attorney was requested attorney 000 was the amount

We overrule of error one. matter, fees in this and that there is no other $36,- the record to its second attorney 942.37 fees award. awarding asserts the trial court erred in attorney’s fees because Barton granted The trial court Barton Raben’s Raben was not entitled to actual motion, its final awarded disagree. We attorney a reduced amount of *6 fees, $12,000. Attorney’s fees are recoverable only if finally the claimant judgment. obtains The determination of reasonable at Merritt, 147, (Tex. Rocha v. 734 S.W.2d 148 torney question fees is a for the trier fact. App. 1987, writ); [1st no Dist.] — Houston Moore, (Tex. 415, Mack v. 669 S.W.2d Williams, Siegler 236, 658 S.W.2d writ). 1984, App. [1st Dist.] no — Houston (Tex.App. [1st Dist.] no — Houston The trier of fact can consider the nature and writ). above, As discussed case, complexity of the the amount in contro proved actual and was entitled to versy, the amount of time and effort re damage Therefore, judgment. the quired, expertise and the in of counsel arriv attorney’s Raben can recover fees. ing attorney at a amount reasonable as fees. Id. at 420.

We overrule of error two. In its third as- In to order show the reasonable serts the trial court erred in granting Barton fees, necessity attorney party ness and the judgment Raben’s motion for notwithstand- seeking attorney required fees is to show ing reducing Stamp-Ad’s the verdict and suing that the fees were incurred while the jury $36,942.37 attorney’s awarded fees from party sought charged to be with the fees on a $12,000. Stamp-Ad to claims that the evi- recovery claim which allows of such fees. dence support jury was sufficient to the Sterling, Stewart Title Guar. Co. v. agree. award. We (Tex.1991). party seeking A attorney duty segregate fees has nonre Barton Raben filed suit to recover amounts coverable fees from recoverable fees and to allegedly due engagement agree- under two segregate parties. the fees owed different overlapped ments that with each other. In id., See at 11. asserting addition to affirmative defenses of consideration, non-performance failure of

breach, Stamp-Ad seeking recognized exception counter-claimed A to the reimbursement of paid duty segregate sums it had attorney arises when the trial, attorney as testified in with claims At rendered are connection

fees knowledge legal background, his are to his arising of the same transaction and out attorney’s regarding community standards prosecution or de- so interrelated that their rate, fees, hourly amount essentially typical and the the his proof entails or denial of fense requested case. He that spent 11. of time on the Sterling, 822 same facts. than jury hourly him an rate lower award in a suit are causes of action involved When rate but commensurate with or his standard upon of facts dependent the same set He testified of Barton Raben’s counsel. that and thus are “intertwined circumstances compo- jury finds that the three “the being inseparable,” party point of they so interwoven trial] are may [of nents suing attorney recover the en- for fees out, in separated that event Mr. can’t be covering Id. tire amount all claims. together, right that the three taken Black is trial, attorney Barton Raben’s testified At $36,- attorney fees would be the reasonable his experience, qualifications, and as to his [sic].” for familiarity attorneys charge with the fees August agreed he similar services. a trial court to disre In order for for charge per hour Barton Raben $150 grant a motion gard jury’s findings and to per hour professional his services $35 verdict, notwithstanding it his paralegals. Based on his assistants no evidence determine that there is must experience these professional judgment and have made the upon which the could hourly He introduced reasonable are Mancorp Culpepper, findings upon. relied through March 1994 show his time records review profes- logged time was not ing grant of a motion rep- expenses incurred sional services and verdict, reviewing withstanding court professional In his resenting Barton Raben. any whether there is evi must determine $8,000 would rea- opinion, he estimated that made upon could have dence which sonably compensate him for his services is reviewed in the finding. The record that, total, 1994. He testified since March finding, to the consider light most favorable $36,942.37 a reasonable fee for the services is and inferences that ing the evidence in the claims performed for Barton Raben he rejecting finding and the evi against Stamp-Ad. *7 contrary finding. to the dence and inferences Dish, Indep. 706 Temple School Navarette cross-examination, at- Barton Raben’s On (Tex.1986). 308, If there is more 309 S.W.2d separate out torney that he did not testified sup to competent than a scintilla original Barton Raben’s applicable the fees judgment jury’s findings, then the port the Stamp-Ad’s of contract claim breach notwithstanding will be reversed. the verdict counterclaim because State, Transp., Inc. v. Southern States any extremely to differentiate it’s difficult 639, 640 S.W.2d and second time between the first of the project. by presented the attor The evidence a more than neys for sides constitutes both approxi- to establish that I have been able that to find of evidence for scintilla spent in on the mately time was they that so intertwined the claims were probably not project that would second jury to inseparable, and for the award were first, say is to spent on the that have been $36,942.37 attorney in of the claim on prosecution in the entering Therefore, in trial court erred the first. opposed as second notwithstanding the verdict judgment the case was filed after The counterclaim attorney fees that reduced filed, way was no originally and there was jury awarded amount from the go and differentiate that time to back at $36,942.37. in time what that beginning point of er- Stamp-Ad’s third sustain prosecuting the We spent be amounts would ror. defending the case. case versus portion purpose damages place

We affirm the of the is to Raben, injured party good position of Barton in as as it favor and we reverse the attorneys’ enjoy party fully through to render fees would the other had Stamp-Ad against performed trial for Barton Raben in under the contract. Lakewood by Pipe Conveying Techniques, the amount of as found 814 S.W.2d jury- 553, 1991, (Tex.App [1st Dist.] . —Houston writ); Serv., no Stewart & Stevenson Inc. v. Enserve, (Tex. Inc., 337, 343, 719 S.W.2d

MIRABAL, J., dissenting. App. ref 'd [14th Dist.] writ —Houston n.r.e.) damages The measure of for breach MIRABAL, Justice, dissenting. profit of a service contract is the that agree I dissent. I do not that provider service would have earned had he prove had the burden to the amount of costs permitted complete been the contract. by saved Barton Raben as a result of Barton Hotel, Buck, Gunter Inc. v. 775 S.W.2d non-performance one-year Raben’s under its (Tex.App Antonio writ de . —San Further, employment guaranty. I do not nied); Harlingen Indep. Sch. Dist. v. C.H. agree had the burden ob- Bros., (Tex. Page & ject, request or to question, different App.1932, holding approved). Comm’n regarding damage Barton Raben’s issue. In appropriate damages measure of is the dif my opinion, Barton Raben had the burden to price ference between contract plead, proof, the burden of and the burden to expenses services and the that would have request proper jury question on the issue rendering been incurred the services. Id. of its Dist., Harlingen Indep. Sch. the court Stamp-Ad specifically raised the issue re- appropriate held that the measure of dam garding appropriate measure of ages for a breach of contract for architects’ recoverable it when filed its profit services is the the architects would (1) asserting answer Barton Raben had complete have made if allowed to con performed not replacement guaran- under its profits tract. 48 at 985. The lost (2) tee, sought Barton Raben had the addi- computing damages method of for breach of one-year tional fee employment before the Harlingen Indep. contract announced in Sch. Davidson, date of contrary agree- Don to the Dist. has been followed in numerous subse (3) parties, ment of the quent Wynnewood decisions. See Dev. v.Co. seeking was more than it entitled to was Belmares, (Tex.App . —East agreement. under the writ) (the proper -land no measure of damages for the breach of contract is the net its first as- *8 profits appellee would have made had the legally serts there is insufficient evidence to out); contract carried v. been Comeaux support jury’s finding the that Barton Raben Mann, 274, (Tex.Civ.App. 244 S.W.2d 276 $39,000 in damages Stamp-Ad’s suffered for dism’d) (contractor 1951, —Austin writ en was breach of the executive search contract cov- titled to the recover difference between the ering the Vice President of Develop- Product price expenses contract and the he would position. Stamp-Ad ment asserts that the contract, completing have incurred in the less appropriate damages measure of is a calcula- paid). the amounts he had been profits savings”, tion of “lost net of Bar- prove damages. ton Raben failed to its Here, Barton Raben seeks breach of con- Stamp-Ad argues that Barton Raben is not damages Stamp-Ad’s pay tract to failure gross $39,- entitled to recover the amount of remaining the amount owed on the Vice recovery place 000 because such a Development would President of Product executive position Barton Raben a better financial agreed professional search contract. The fee, $36,000, occupied parties than it would have paid Stamp-Ad had both that was was fully performed $39,000 agree. the contract. I that the search fee. The additional

940 if dispute is became Ra- conclusively proposition due Barton establishes a con placed employee Stamp-Ad. trary ben an with to finding, a of law” “matter placed Stamp- Meyerland Once an individual was of error will with be sustained. Ad, Improvement Community Temple Barton Raben had an obli- Ass’n additional v. 263, agreement (Tex.App gation replace to 700 S.W.2d [1st under .—Houston n.r.e.). 1985, refd Dist.] if left one his writ year individual he within of own accord or because of his own fault. that, supports The evidence conclusion hired, Stamp-Ad once Davidson was owed David- recommended Don $39,000, an Raben additional Stamp-Ad to son as a for Vice candidate to failed that amount. How- Development, President of Product ever, law, damage a as matter the loss or $250,000 at hired Davidson a actually sustained from the yearly salary. At point, Stamp-Ad be- $39,000 Stamp-Ad’s breach was less the ex- $39,000 obligated up came to make differ- pense have would incurred in ence between 30% of Davidson’s searching replacement a Davidson. first-year salary and professional The is uncontroverted that much However, already paid. at fee required expended time and is to be effort obligated Barton Raben also to re- became qualified order locate a candidate for an place year Davidson if he within left one position executive such as Vice President his own or his accord due to own fault. However, Development. Product there is no following ques- was asked expense evidence of the value attrib- be tions: uted to such time and effort. plaintiff proving has the burden of Question 1No. certainty degree with some a factual basis the amount of awarded. comply Did fail with 556; Pipe, Lakewood 814 S.W.2d at McCar agreement regarding the for a search 510, (Tex. ley Hopkins, S.W.2d Development? Vice-President/Product writ); App. [1st Dist.] no — Houston (Tex. Hall, Mangham Civ.App —CorpusChristi writ refd . Fes ANSWER: n.r.e.). Barton Raben had the burden to prove each element of recoverable Question 2No. 556; Pipe, See Lakewood Su Trucks, Allen, perior Inc. v. money, any, paid What additional sum of (Tex.App. Dist.] writ [1st — Houston cash, reasonably fairly now in would n.r.e.). ref'd compensate Barton Raben for comply re- failure with not- filed motion garding for a the search Vice-Presi- withstanding requesting that “the verdict Development? dent/Product Ques- disregard jury’s answer to Court 2,No. Raben as a mat- tion because Barton n n n n n : n ter of law failed to establish critical ele- *9 proper damages, ANSWER: ment of of measure its and enter favor reviewing In a point, “no evidence” upon jury’s based other answers.” only reviewing court considers the evidence no the find- there is the record inferences tend Because ing, disregards infer- have all evidence and from which the could determined contrary. expenses by not Responsive Terminal Barton Raben saved ences America, Sys., Boy completing performance of the second search Inc. v. Scouts contract, If not calculate the net the evidence could profit lost Barton Raben on the search Accordingly, Stamp-Ad

contract. was enti- requested judgment

tled to the notwithstand-

ing the verdict.

I point would sustain of error one. its second awarding

asserts the trial court erred in attorney’s fees because Barton

Raben was not entitled to actual I

agree.

Attorney’s fees are recoverable finally judgment.

claimant obtains Rocha v.

Merritt, (Tex.App. 734 S.W.2d 1987, writ); Siegler [1st Dist.]

—Houston no

Williams, (Tex.App.— writ).

Houston [1st Dist.] no As dis above, prove

cussed Barton Raben did not all

of the elements of its actual and is

not damage judgment. entitled to a There

fore, attorney’s Barton Raben cannot recover

I sustain would of error two. agree majority’s

I disposition with the

point of error three.

I portion judg- would reverse the

ment in favor of Barton render that Barton nothing Raben take

against Stamp-Ad. respects, all other I

agree majority. with the Ray WARD, Appellant,

Curtis Texas, Appellee.

The STATE of 01-93-00294-CR,

Nos. 01-93-00301-CR. Texas, Appeals

Court of (1st Dist.).

Houston

Jan. 1996. *10 Turner, Houston, appellant.

Robert G.