Appeal from County Civil Court at Law No. 4 Harris County,
Texas Trial Court Case No. 1073076
consists of Justices Higley, Brown, and Caughey.
Carter Higley Justice
D. Eichner, P.C. filed suit against Ben Dominguez, II for
money owed for accounting services. The trial court ordered
the parties to arbitrate their dispute. The trial court
subsequently signed a judgment confirming the arbitration
award. In three issue, Dominguez argues (1) the arbitration
agreement was substantively unconscionable, (2) the trial
court erred by not vacating the award, and (3) Eichner, P.C.
was not authorized to recover attorneys' fees.
2005, Eichner, P.C. signed a contract with Dominguez to
prepare tax returns for Dominguez and to provide other
tax-related services. The agreement did not have a
termination date. In 2013, the parties signed a new
agreement. This agreement also did not have a termination
agreements contained mandatory arbitration provisions. The
2005 agreement required Dominguez to provide notice of any
disputes for charges within two years of the charges. The
parties agreed that this notice provision was a condition
precedent for seeking arbitration.
February 1, 2016, Eichner, P.C. filed suit against Dominguez,
alleging Dominguez owed Eichner, P.C. money under the
contracts. Dominguez answered and filed a motion to compel
arbitration based on the arbitration provisions in both
contracts. The following month, Eichner, P.C. also filed a
motion to compel arbitration. The trial court granted
Eichner, P.C.'s motion, but struck out language in the
proposed order requiring the parties to use the Better
Business Bureau for its arbitration.
couple of months after the trial court ordered the parties to
mediation, Dominguez sought discovery from Eichner, P.C.
through the trial proceedings. Eleven days later, Dominguez
filed a motion to set aside the order to arbitrate with the
trial court. There is no indication in the record that
Dominguez set the motion for consideration before the trial
court, and the trial court never ruled on the motion.
the arbitrator issued an award to Eichner, P.C., Dominguez
filed a motion to vacate the award. Instead, the trial court
signed a final judgment confirming the arbitration award. The
judgment included an award of attorneys' fees incurred by
Eichner, P.C. Dominguez filed a motion for new trial, which
was overruled by operation of law.
law renders unconscionable contracts unenforceable."
In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883,
892 (Tex. 2010). "The ultimate issue of whether an
arbitration agreement is against public policy or
unconscionable is a question of law for the court."
Royston, Rayzor, Vickery, & Williams, LLP v.
Lopez, 467 S.W.3d 494, 499 (Tex. 2015).
appellate courts "review de novo a trial court's
decision to confirm or vacate an arbitration award."
Denbury Onshore, LLC v. Texcal Energy S. Texas,
L.P., 513 S.W.3d 511, 515 (Tex. App.-Houston [14th
Dist.] 2016, no pet.). "A party seeking to vacate an
arbitration award bears the burden of presenting a complete
record that establishes grounds for vacating the award."
In re Drobny, No. 01-15-00435-CV, 2016 WL 4537076,
at *7 (Tex. App.-Houston [1st Dist.] Aug. 30, 2016, no pet.)
(mem. op.) (citing Statewide Remodeling, Inc. v.
Williams, 244 S.W.3d 564, 568 ...