Petroleum Analyzer Company, L.P. v. Franek Olstowski, Individually and DBA Atomic Analytical Consulting Services and Atom Instrument Corporation

Opinion issued July 15, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00076-CV

———————————

Petroleum Analyzer Company LP , Appellant

V.

Franek

Olstowski, Individually, and DBA Atomic Analytical Consulting Services and Atom

Instrument Corporation, Appellees , Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2006-53995

MEMORANDUM

OPINION

Appellant,

Petroleum Analyzer Company LP (PAC), files a motion for rehearing and a motion

for en banc reconsideration of our memorandum opinion issued March 4, 2010 that

upholds an arbitration award and final judgment in favor of appellee, Franek

Olstowski, and a summary judgment in favor of appellee, Atom Instrument

Corporation (Atom). Having received a

response from Olstowski and Atom, we grant PAC’s motion for rehearing and

withdraw our March 4, 2010 memorandum opinion and judgment, and issue this

memorandum opinion and judgment in their stead to clarify our analysis of one

issue raised by PAC. Because we withdraw

our March 4, 2010 opinion, PAC’s motion for en banc reconsideration is rendered

moot. See Brookshire Brothers, Inc. v. Smith , 176 S.W.3d 30, 33 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g) (noting that motion

for en banc reconsideration becomes moot when motion for rehearing is granted

and new opinion and judgment issue).

Through its first, third, and fourth issues in its original appellant’s

brief, 1 PAC contends the trial court

erred when it granted Atom’s no-evidence motion for summary judgment because

(1) the trial court granted Atom’s motion for summary judgment before Atom had

filed an answer to PAC’s original petition, (2) Atom’s motion for summary

judgment is “predicated solely on the doctrine of res judicata” and the trial

court erred by granting a summary judgment based on an affirmative defense that

was never pleaded, and (3) the lawsuit between PAC and Atom had been stayed by

the trial court. In its second issue in

its original appellant’s brief, PAC contends the trial court erred when it

granted attorney’s fees to Atom in conjunction with granting Atom’s summary

judgment. In its fifth issue in its

original appellant’s brief, PAC argues that the trial court erred in granting

Olstowski’s motion to compel arbitration.

In its sixth issue in its original appellant’s brief, PAC contends the

trial court erred in confirming and not vacating the arbitration award.

We

affirm.

Background

This

appeal arises from an ownership dispute as to certain patents and other

intellectual property related to excimer lamp technology, and a dispute as to

Olstowski’s right to control the excimer lamp technology he designed while

employed as a consultant for PAC and other companies. PAC contends Olstowski breached a consultant

and non-disclosure agreement by applying for patents for this technology and by

sharing and attempting to sell the technology to PAC’s competitors and

customers.

In

June 2001, Antek Instruments, L.P. (now owned by PAC) retained Olstowski as a consultant

to provide “services for research, development and testing of products and/or

technologies that may be incorporated into products or services provided by

[Antek].” This arrangement was

memorialized by a “Consultant Agreement” signed by Olstowski and Jay Szinyei,

then Antek’s Manager of Engineering. The

Consultant Agreement expressly required that it may not be modified except by a

writing signed by both parties.

Antek

knew that, while Olstowski worked on projects for Antek, he was also a consultant

for other companies that produced petroleum products. The Consultant Agreement, therefore, defined

a non-exclusive relationship for Olstowski to provide personal services to

Antek. Pursuant to the Consultant

Agreement, “[a]ll [c]onfidential [i]nformation, technology, prototypes, and

products developed by [Olstowski] while providing service for Antek [would] be

the exclusive property of Antek.”

According

to Szinyei, the principal drafter of the Consultant Agreement, the agreement

covered individual projects assigned to Olstowski by Antek. This limitation of the scope of the services

enabled Antek to control the amount of time expended by Olstowski on projects

and thereby control Antek’s expenses.

Thus, the Consultant Agreement required that Olstowski be assigned each

consultant project. After being assigned a consultant project, any information,

technology, prototypes, or products developed by Olstowski while providing such

service then became the exclusive property of Antek.

In

March 2002, Olstowski informed Szinyei about his idea to develop an excimer

light source specifically intended to measure sulfur using ultraviolet (UV)

fluorescence. Thereafter, Olstowski told

Tom McMullen, Antek’s president, and Szinyei about his idea. Antek did not want to assume the risk of

investing its resources into the excimer technology, and decided that Olstowski

could pursue the project on his own time.

Antek informed Olstowski of this decision. Olstowski was also told that if he was

successful in his research, Antek would be interested in talking with Olstowski

about using the excimer technology in its equipment and requested “first dibs”

on considering whether to license the technology.

The

Consultant Agreement was never modified in writing and Olstowski was never

assigned to work on excimer technology as an Antek or PAC project. Antek

had specifically discussed modifying the consultant agreement through a

“carve out” agreement that stated the excimer project was not being done

pursuant to the Consultant Agreement; however, a “carve out” agreement never

materialized.

By

December 2002, Olstowski had developed the excimer technology. Although Olstowski developed the excimer

technology on his own time and with his own money in his own laboratory, Olstowski

performed tests and generated data on the excimer technology using PAC

employees and equipment.

On

December 27, 2002, in his own name and with his own lawyer, Olstowski filed a

patent application titled “Excimer UV Fluorescence Detection.” Olstowski then informed Antek that he had

filed a patent application, and that Antek, as required by the 2001 Consultant

Agreement, would need to sign a non-disclosure agreement with him before he

would disclose his excimer technology to them.

Antek did not object to Olstowski’s filing of the patent application.

On

January 28, 2003, Antek and Olstowski entered into a Mutual Non-Disclosure

Agreement (MNDA) for Olstowski to conduct a feasibility study to investigate

the possibility of incorporating the Olstowski Excimer Technology into the

Antek Technology, or to use the Olstowski Excimer Technology to develop new

products for Antek. The MNDA states:

WHEREAS,

OLSTOWSKI has developed technology using excimer lamps and can detect

substances using excimer fluorescence (hereafter “Olstowski Technology”); and

WHEREAS,

ANTEK had developed products for detecting substances (hereafter “Antek

Technology”), but has not developed and does not possess technology to detect

substances using excimer fluorescence as embodied in the Olstowski Technology;

and

WHEREAS,

ANTEK is desirous to conduct a feasibility study in association with OLSTOWSKI

to investigate the possibility of incorporating the Olstowski Technology into

the Antek Technology, or to use the Olstowski Technology to develop new

products (hereafter “Project”).

. . . .

If either

Party brings an action to enforce the terms hereof, the prevailing Party in

such action shall be entitled to reasonable attorney’s fees. . . . Any controversy or claim arising out of or

relating to this Agreement will be submitted to final and binding arbitration

with the American Arbitration Association in accordance with the Commercial

Arbitration Rules. Judgment upon an

award rendered by the arbitrator may be entered in and by any court having

jurisdiction.

In

the latter half of 2003, Antek and Olstowski negotiated a license agreement for

Antek to license the excimer and related technology from Olstowski. Proposed licensing agreements were exchanged

for over three years while Olstowski continued to work with PAC under the

Consultant Agreement, MNDA, and later an additional Non-Disclosure/Non-Use

Agreement (NDNUA). In 2004, Antek became

a subsidiary of PAC.

In

March 2005, PAC and Olstowski entered into the NDNUA, signed by PAC’s

president, McMullen. Under the NDNUA,

Olstowski agreed to continue to disclose his excimer technology to PAC, and PAC,

in turn, promised to keep the Olstowski Technology secret and promised not to

use the Olstowski Technology. The NDNUA

stated in part:

In order that

we may be more free and open with you, it is necessary to have your promise

that you and your employer, if any, will not use or divulge any confidential

business information or proprietary designs, processes, algorithms, machines,

drawings, technical information or trade secrets which may be provided you by

Franek Olstowski for the particular field hereafter defined. [D]efining the

field applicable to this Agreement . . . excimer lamps or the detection of

substances using excimer fluorescence and the like.

. . . .

This

Agreement controls over any prior written agreements.

. . . .

Any

controversy or claim arising out of or relating to this Agreement will be

submitted to final and binding arbitration with each party selecting an

arbitrator, and the two party-appointed arbitrators selecting a neutral

arbitrator. The arbitration shall be

conducted under the Federal Arbitration Act because the parties agree that

interstate commerce is affected, further the parties acquiesce to the

jurisdiction of the U.S. District Courts and a judgment upon an award rendered

by the arbitrators may be entered in and by the U.S. District court.

. . . .

RECEIVING

PARTY ACCEPTED AND AGREED TO:

Signature:

s/ Thomas McMullen

Print Name: Thomas E. McMullen

Employer: PAC

Date: 14 May 2005

Olstowski provided confidential

information to PAC pursuant to the NDNUA.

Eventually,

the relationship between PAC and Olstowski soured and discussions about a

licensing agreement between the two parties broke down. In August 2006, Antek, PAC, and their attorneys informed Olstowski

that Antek or PAC claimed ownership in the excimer technology. PAC and Olstowski then asserted conflicting

claims as to the ownership of the excimer technology.

In

August 2006, PAC filed suit against Olstowski and Atom, Olstowski’s consulting

company, alleging claims for declaratory relief, tortious interference with

continuing business relations, conversion of intellectual property, breach of

oral contract, attorney’s fees, restitution/unjust enrichment, fraudulent

inducement, and negligent misrepresentation.

PAC also requested a temporary and permanent injunction. Olstowski counterclaimed for breach of the

NDNUA, breach of the MDNA, and breach of the Consultant Agreement. Olstowski also filed suit against Robert

Strozier, PAC’s patent attorney, making an additional claim for return of

Excimer Technology files related to the prosecution of European and Japanese

patents. The Strozier case was

consolidated with the suit between PAC and Olstowski and Atom; however,

Olstowski later non-suited against Strozier.

Upon

Olstowski’s motion, the trial court compelled the dispute between Olstowski and

PAC to arbitration in January 2007.

Pursuant to the NDNUA, the trial court ordered PAC and Olstowski to

arbitrate their respective claims against each other, and stayed the suit

between Olstowski and Strozier until the conclusion of the Arbitration. The court did not compel Atom and PAC to

arbitrate and the suit between PAC and Atom remained active.

After

the trial court denied a motion to reconsider the order compelling the dispute

to arbitration, PAC filed a petition for a writ of mandamus against the trial

court with this Court, claiming the trial court erred by entering an order that included Atom in the

arbitration proceedings. We denied PAC’s

petition. PAC then filed a petition for

a writ of mandamus with the Texas Supreme Court. The Supreme Court also denied PAC’s petition.

An

arbitration hearing was held in August 2007, and the arbitration panel rendered

a unanimous award in favor of Olstowski in October 2007. The panel found, among other things, that

Olstowski was the exclusive and sole owner of all the technology in dispute,

and enjoined PAC from claiming ownership in or using the technology, and from

interfering with Olstowski’s use and enjoyment of the technology. The panel declared, by its actions and by

signing the MNDA, which was “all but an admission by [PAC] that it did not

develop the excimer technology, and does not own such technology,” that PAC “waived

any claim of ownership of the excimer technology, if it was ever entitled to

the same.” The panel awarded Olstowski

declaratory relief, and fees and costs of $449,150.00, but also awarded

restitution and contract damages of $323,993.05 to PAC. The trial court confirmed the arbitration award

on November 6, 2007, concluding the case between PAC and Olstowski.

Olstowski

subsequently alleged that PAC sent letters to the U.S. Patent and Trademark

Office, and used and disclosed Olstowski’s trade secrets and technology, in

violation of the trial court’s November 2007 order. Olstowski filed a Motion for Contempt with

the trial court in February 2008; however, before the court ruled on the

motion, PAC filed a notice of removal to the United States District Court, Southern

District of Texas, Houston Division.

Olstowski moved to remand the case and requested rule 11 sanctions. In May 2008, the United States District Court

remanded the case back to the trial court, did not grant Olstowski’s request

for rule 11 sanctions, but did grant Olstowski’s request for costs and attorney’s

fees because “[PAC] lacked an objectively reasonable basis for seeking

removal.”

In

January 2008, Atom filed a no-evidence motion for summary judgment to resolve

all claims by PAC against Atom. In

August 2008, the trial court ruled on the summary judgment without hearing or

further notice to the parties, granted the summary judgment in favor of Atom,

and disposed of all causes of actions between the parties. It also ordered PAC to pay Atom’s attorney’s

fees and ordered conditional awards in the event of an appeal by PAC. This appeal followed.

Motion to Compel

Arbitration

In its fifth issue, PAC argues

that the trial court erred by granting Olstowski’s motion to compel

arbitration. We address (A) the

controlling law; (B) the standard of review for arbitration conducted under the

Federal Arbitration Act (FAA); and (C) PAC’s arguments.

A. Controlling Law

We must determine whether the contract

is controlled by the FAA or the Texas Arbitration Act (TAA), or both. See Royce Homes, L.P. v. Bates , No.

01-08-00191-CV, 2010 WL 184216, at *5 (Tex. App.—Houston [1st Dist.] Jan. 21,

2010, no pet. h.). PAC contends the FAA

does not apply.

The

FAA preempts all otherwise applicable inconsistent state laws, including any

inconsistent provisions of the TAA, under the Supremacy Clause of the United

States Constitution. U.S. Const. art. VI, cl. 2; see

Allied-Bruce Terminix Co. v. Dobson , 513 U.S. 265, 272 , 115 S. Ct. 834, 838

(1995); Royce Homes, L.P. , 2010 WL 184216 at *6 . When there is an express agreement to

arbitrate under the FAA, courts have upheld such choice-of-law provisions even

though the transaction at issue does not involve interstate commerce. In re Kellogg Brown & Root , 80

S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding). As the Kellogg court explained, when

“the parties agree to arbitrate under the FAA, they are not required to

establish that the transaction at issue involves or affects interstate

commerce.” Id.

In

the absence of an express agreement to arbitrate under the FAA, a party may

establish the applicability of the FAA by showing that the transaction affects

or involves interstate commerce. Id. Interstate commerce may be evidenced by

location of headquarters in another state, manufacture of components in a

different state, transportation of goods across state lines, and billings

prepared in another state, among other factors. Stewart Title Guar. Co. v. Mack , 945

S.W.2d 330, 333 (Tex. App.—Houston [1st Dist.] 1997, writ dism’d w.o.j.);

see also Robinson v. TCI/US West Commc’ns Inc. , 117 F.3d 900 , 904 (5th Cir.

1997) (defining interstate commerce as “trade, commerce, transportation, or

communication among the several States, or between any foreign country and any

place or ship outside thereof”).

The

Texas Supreme Court has held that a Texas choice-of-law provision will not be

construed to select the TAA to the exclusion of the FAA unless the clause

specifically excludes the application of the federal law. In re L & L Kempwood Assocs. , 9

S.W.3d 125 , 127–28 (Tex. 1999); Royce Homes, L.P. , 2010 WL 184216 at

*6 . Texas courts have also held that a

general choice-of-law clause such as the one in the NDNUA is insufficient to

invoke the TAA to the exclusion of the FAA.

Royce Homes, L.P. , 2010 WL 184216 at *6 .

Here,

the contract between PAC and Olstowski provides, “[t]he arbitration shall be

conducted under the Federal Arbitration Act because the parties agree that

interstate commerce is affected.”

Because PAC and Olstowski signed a contract to arbitrate under the FAA

and expressly agreed that interstate commerce is affected by the contract, they

are bound to their agreement. See In re Kellogg , 80 S.W.3d at 617

(concluding that parties were “not required to establish that the transaction

at issue involves or affects interstate commerce” because parties had agreed to

arbitrate under FAA); see also W. Dow Hamm III Corp. v. Millennium Income

Fund, L.L.C. , 237 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (holding, in addition to other reasons, that FAA applied to arbitration

agreement because parties expressly agreed in arbitration agreement that

transaction involved interstate commerce) (citing Jack B. Anglin Co. v. Tipps ,

842 S.W.2d 266 , 269–70, 272 (Tex. 1992)).

Moreover, even if the parties had not expressly agreed that interstate

commerce is affected, PAC is a Delaware limited partnership; therefore, this

agreement affects interstate commerce. See

Stewart Title Guar. Co. , 945 S.W.2d at 333 ; Royce Homes, L.P. , 2010

WL 184216 at *6 . Accordingly, we apply

the FAA, while recognizing that the TAA also applies to the extent it is

consistent with the FAA. See Royce

Homes, L.P. , 2010 WL 184216 at *6 (citing In re D. Wilson Constr. Co. ,

196 S.W.3d 774 , 779–80 (Tex. 2006)).

B. Standard

of Review

Arbitration is a contractual proceeding by

which the parties, in order to obtain a speedy and inexpensive final

disposition of disputed matters, consent to submit the controversy to

arbitrators for determination. See Porter & Clements, L.L.P. v. Stone ,

935 S.W.2d 217, 221 (Tex. App.—Houston [1st Dist.] 1996, no writ). “Whether an arbitration agreement is

enforceable is subject to de novo review.”

In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009).

A

party seeking to compel arbitration under the FAA must establish that there is

a valid arbitration agreement and that the claims raised fall within that

agreement’s scope. In re Kellogg

Brown & Root, Inc. , 166 S.W.3d 732, 737 (Tex. 2005); J.M. Davidson,

Inc. v. Webster , 128 S.W.3d 223, 227 (Tex. 2003). Under the FAA, ordinary principles of state

contract law determine whether there is a valid agreement to arbitrate. In re Kellogg Brown & Root , 166

S.W.3d at 738 (citing First Options of Chicago, Inc. v. Kaplan , 514 U.S.

938, 944 , 115 S. Ct. 1920, 1924 (1995)) (“In determining the validity of an

agreement to arbitrate under the FAA, courts must first apply state law

governing contract formation.”). Although there is a strong presumption

favoring arbitration, that presumption arises only after the party seeking to

compel arbitration proves that a valid arbitration agreement exists. J.M. Davidson , 128 S.W.3d at 227 . Because arbitration is contractual in nature,

the FAA generally does not require parties to arbitrate when they have not

agreed to do so. In re Kellogg Brown

& Root, Inc. , 166 S.W.3d at 738 (quoting Volt Info. Scis., Inc. v.

Bd. of Trs. of Leland Stanford Junior Univ. , 489 U.S. 468 , 478–79, 109 S.

Ct. 1248, 1255 (1989)).

C. Arguments

Presented by PAC

PAC contends the trial court erred

by granting Olstowski’s motion to compel arbitration because (1) the NDNUA

contract did not exist, (2) the claims raised and addressed by the arbitration

panel were not within the arbitration agreement’s scope, (3) the court erred by

compelling arbitration without first holding an evidentiary hearing, and (4)

Olstowski waived his right to arbitrate.

1. NDNUA Contract

The

court compelled arbitration based upon the arbitration provision found within

the NDNUA contract. PAC does not

challenge the arbitration provision contained within the NDNUA, but instead attacks

both the validity of the contract and the very existence of the contract. It asserts it was an invalid contract because

there was no consideration. It attacks

the existence of the contract because it asserts neither it, nor Olstowski,

were parties to the agreement.

a. Attack

on Validity of NDNUA Contract

Contending that

the NDNUA was not a valid contract, PAC asserts that the trial court erred in

compelling arbitration. PAC contends the

NDNUA is invalid because it asserts there was no consideration for the

contract.

The

Texas Supreme Court has held that the validity of the contract as a whole must

be submitted to arbitration as long as the arbitration provision is valid. See In re FirstMerit Bank, N.A. , 52

S.W.3d 749, 753 (Tex. 2001) (orig. proceeding); Women’s Reg’l Healthcare, P.A.

v. FemPartners of N. Tex., Inc. , 175 S.W.3d 365, 368 (Tex. App.—Houston

[1st Dist.] 2005, no pet.) (“Only if the arbitration clause is attacked on an

independent basis can the court decide the [validity of the contract] dispute;

otherwise, general attacks on the agreement are for the arbitrator.”) (quoting Will-Drill

Res., Inc. v. Samson Res. Co. , 352 F.3d 211 , 218–19 (5th Cir. 2003)); In

re H.E. Butt Grocery Co. , 17 S.W.3d 360, 367 (Tex. App.—Houston [14th

Dist.] 2000, orig. proceeding) (“As a general rule, ‘questions related to the

enforcement of a contract as a whole are properly referable to an arbitrator;

it is only when attack is made on the arbitration clause itself that a court,

rather than an arbitrator, should decide questions of validity.’”) (quoting Prima

Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395 , 402–04, 87 S.

Ct. 1801 , 1805–06 (1967)). Because the

issue regarding the validity of the NDNUA as a whole is an issue for the

arbitrators, and PAC attacks the validity of the contract only by asserting

there was no consideration, we hold the court did not err in compelling

arbitration under the NDNUA. See

Dewey v. Wegner , 138 S.W.3d 591, 601 (Tex. App.—Houston [14th Dist.] 2004,

no pet.) (holding validity of entire agreement at issue between parties must be

submitted to arbitration because Wegner did not attack arbitration agreement

specifically).

b.

Attack on Existence of NDNUA Contract

On

appeal, PAC also attacks the very existence of the NDNUA contract through its

contention that it and Olstowski were not parties to the NDNUA. Generally, issues attacking the validity of the

contract containing the arbitration provision must be submitted to arbitration

as long as the arbitration provision is valid.

See In re FirstMerit Bank, N.A. , 52 S.W.3d at 753 . However, where a party attacks the very

existence of an agreement, as opposed to its continued validity or enforcement,

the issue is a matter for the court and not the arbitrators. See

In re Morgan Stanley & Co. , 293

S.W.3d 182, 189 (Tex. 2009).

PAC

contends the NDNUA does not exist because, “neither PAC nor Olstowski were

listed as a signatory to the NDNUA.”

Before the trial court, PAC raised several assertions regarding why the

NDNUA contract was invalid, but it did not attack the contract by the same

argument it makes on appeal, specifically that neither it nor Olstowski were parties to

the NDNUA contract. As a general rule, a

party is required to present a complaint to the trial judge before being

allowed to raise the issue on appeal. Graham-Rutledge & Co. v. Nadia Corp. ,

281 S.W.3d 683 , 688–89 (Tex. App.—Dallas 2009, no pet.) (citing In re L.M.I. , 119 S.W.3d 707, 711 (Tex.

2003) (to preserve issue for appellate review, including constitutional error,

party must present to trial court timely request, motion, or objection, state

specific grounds therefore, and obtain ruling)). Because PAC did not raise this issue before

the trial court, and the trial court did not rule or refuse to rule on the

issue, we hold PAC waived any error regarding this issue. See,

e.g. , Graham-Rutledge & Co. ,

281 S.W.3d at 688–89 (holding that appellant waived error because record failed

to show where it objected to denial of motion to compel discovery in

arbitration proceeding).

2. Scope of Arbitration Agreement

PAC

also contends that the claims decided by the arbitrators that were at issue

between Olstowski and PAC were not within the scope of the arbitration

agreement. Federal and state law

strongly favors arbitration. Cantella

& Co. v. Goodwin , 924 S.W.2d 943, 944 (Tex. 1996) (orig.

proceeding). Under the FAA, any doubt as

to whether a plaintiff’s claims fall within the scope of the arbitration

agreement must be resolved in favor of arbitration. Id.

Once an agreement is established, “a court should not deny arbitration ‘unless

it can be said with positive assurance that an arbitration clause is not susceptible

of an interpretation which would cover the dispute at issue.’” Prudential Sec. Inc. v. Marshall , 909

S.W.2d 896, 899 (Tex. 1995) (per curiam) (orig. proceeding) (emphasis in

original).

The

NDNUA contains a broad arbitration clause that does not include any exclusions

from arbitration. The NDNUA requires

arbitration of “[a]ny controversy or claim arising out of or relating to this

Agreement . . . .” The NDNUA is an

agreement allowing Olstowski to disclose his technology to PAC in exchange for

PAC’s promise not to use the technology.

In this dispute, each of PAC’s claims against Olstowski, and Olstowski’s

counterclaims against PAC, derive from the conflicting claims between PAC and

Olstowski over who owned the intellectual property rights to the excimer

technology. Because the claims between

PAC and Olstowski each concern the disputed ownership rights to the excimer

technology, we hold that their claims against each other are subject to the

arbitration provision of the NDNUA, and that the trial court properly compelled

arbitration. See In re D.

Wilson Constr. Co. , 196 S.W.3d at 783 (holding that where claims were

related to contract containing arbitration clause, claims “fall squarely within

the scope of the arbitration agreements”).

3. Evidentiary Hearing

PAC

further contends that the trial court erred by failing to conduct an

evidentiary hearing before compelling PAC and Olstowski to arbitration. PAC asserts a hearing was required because of

allegedly contradictory affidavits and testimony presented by PAC.

When

Texas courts are called on to decide if disputed claims fall within the scope

of an arbitration clause under the FAA, Texas procedure controls that

determination. Jack B. Anglin Co. ,

842 S.W.2d at 268 (citing Southland Corp. v. Keating , 465 U.S. 1, 16,

n.10 , 104 S. Ct. 852, 861, n.10 (1984)).

Texas Civil Practice and Remedies Code section 171.021 allows trial

courts to “summarily determine” the issue of whether to compel a party to

arbitrate its claims. Civ. Prac. & Rem. Code Ann. § 171.021 (Vernon 2005); Jack B.

Anglin Co. , 842 S.W.2d at 269 (“[W]e hold that the trial court may

summarily decide whether to compel arbitration on the basis of affidavits,

pleadings, discovery, and stipulations.”).

However, if the material facts necessary to determine the proper

disposition of a motion to compel arbitration are controverted by an opposing

affidavit or otherwise admissible evidence, the trial court must conduct an

evidentiary hearing to determine the disputed material facts. Jack B. Anglin Co. , 842 S.W.2d at 269 .

Here,

any inconsistencies in the affidavits are not material facts to the issue of

arbitrability. We hold the trial court

did not err in failing to hold an evidentiary hearing under these circumstances

where the material facts are found in documents exchanged between the parties. See Stewart & Stevenson, LLC v. Galveston

Party Boats, Inc. , No. 01-09-00030-CV, 2009 WL 3673823 , at *12 (Tex.

App.—Houston [1st Dist.] Nov. 05, 2009, no pet.) (mem. op., not designated for

publication) (holding that trial court did not err in failing to hold

evidentiary hearing regarding allegedly opposing affidavits, where appellate

court could rely solely on material facts found in documents exchanged between

parties to determine validity of arbitration agreement).

4. Waiver

PAC

asserts that Olstowski waived his right to enforce the arbitration provision by

engaging in discovery and by filing a motion to dismiss. There is a strong presumption against finding

that a party has waived its right to arbitration; the burden to prove waiver is

thus a heavy one. In re Bank One,

N.A. , 216 S.W.3d 825, 827 (Tex. 2007); In re D. Wilson Const. Co. ,

196 S.W.3d at 783 (“There is a strong presumption against waiver under the

FAA.”). Any doubts regarding waiver are

resolved in favor of arbitration. In

re Bruce Terminix Co. , 988 S.W.2d 702, 705 (Tex. 1998).

Waiver

may be express or implied, but it must be intentional. EZ Pawn Corp. v. Mancias , 934 S.W.2d

87, 89 (Tex. 1996). “A party waives an

arbitration clause by substantially invoking the judicial process to the other

party’s detriment.” In re Citigroup

Global Mkts., Inc. , 258 S.W.3d 623, 625 (Tex. 2008) (orig. proceeding)

(quoting Perry Homes v. Cull , 258 S.W.3d 580 , 589–90 (Tex. 2008), cert.

denied , 129 S. Ct. 952 (2009)).

Waiver is a question of law based on the totality of the

circumstances. The test for waiver is

whether the party moving for arbitration “has substantially invoked the judicial

process to an opponent’s detriment, the latter term meaning inherent unfairness

caused by ‘a party’s attempt to have it both ways by switching between

litigation and arbitration.’” In re Citigroup Global Mkts., Inc. , 258

S.W.3d at 625 (quoting Perry Homes , 258 S.W.3d at 597 ).

In

determining whether a party waived an arbitration clause, the courts can

consider, among other factors: (1) whether the movant for arbitration was the

plaintiff (who chose to file in court) or the defendant (who merely responded),

(2) when the movant learned of the arbitration clause and how long the movant

delayed before seeking arbitration, (3) the amount of pretrial activity related

to the merits rather than arbitrability or jurisdiction, (4) the amount of

discovery conducted, and (5) whether the movant sought judgment on the merits. See Perry Homes , 258 S.W.3d at 591–92;

In re Hawthorne Townhomes, L.P. , 282 S.W.3d 131, 141 (Tex. App.—Dallas

2009, no pet.).

The

Texas Supreme Court has found waiver of arbitration in only one case, Perry

Homes v. Cull . 258 S.W.3d at 591–92;

see Hawthorne Townhomes, L.P. , 282 S.W.3d at 142 . In that case, the plaintiffs initially

“vigorously opposed” the defendants’ motion for arbitration, the parties

conducted nearly complete discovery, and the case was set for trial. See Perry Homes , 258 S.W.3d at

585 . Then, after fourteen months of

litigation, the plaintiffs changed their minds and moved for arbitration. The trial court granted the motion four days

before the date the case was set for trial.

Id. The Texas Supreme

Court held the arbitration was waived, set aside the arbitration award, and

remanded the case for trial. Id. at

601 .

This

case is unlike Perry Homes . The

record shows that PAC filed its original petition August 25, 2006, and that on

November 21, 2006 Olstowski filed his first expedited motion to refer the case

to arbitration. In the interim,

Olstowski filed his original answer and counterclaim, a request for a permanent

injunction against PAC, and a motion for a protective order.

PAC

has not shown that Olstowski waived his right to arbitration under the factors

listed in Perry Homes . First, it

was the defendant, Olstowski, who moved for arbitration. See id. at 591–92. Second, the record shows that Olstowski did

not delay before seeking arbitration as his first motion to compel arbitration

came less than three months after PAC’s initial petition. See id . Under the third and fourth factors, PAC

fails to demonstrate, and the record does not show, that any significant amount

of pretrial activity or discovery related to the merits of the case occurred prior

to Olstowski’s first expedited motion to compel arbitration. See id. Instead, the record shows that during the 58

days between Olstowski’s answer and his filing the motion to compel

arbitration, Olstowski’s actions were only to respond to PAC and to protect his

claim to intellectual property rights.

Had Olstowski not responded to PAC’s petition, he would have faced a

default judgment. Fifth, the record does

not show that Olstowski sought judgment on the merits. See id.

PAC

contends that Olstowski, nevertheless, waived the arbitration clause by moving

to dismiss the claims for lack of standing, yet the Texas Supreme Court has

held that a motion to dismiss for lack of standing does not sufficiently invoke

the judicial process to overcome the strong presumption against waiver. See In re Vesta Ins. Group, Inc. 192

S.W.3d 759, 764 (Tex. 2006); In re Hawthorne Townhomes, L.P. , 282 S.W.3d

at 142 . We hold that PAC has failed to

show that Olstowski “substantially invok[ed] the judicial process to [PAC]’s detriment.” See Perry Homes , 258 S.W.3d at 589–90;

In re Hawthorne Townhomes, L.P. , 282 S.W.3d at 142 (holding that

totality of circumstances did not show that defendants had substantially

invoked judicial process to plaintiff’s detriment).

We

overrule PAC’s fifth issue.

Confirmation and

Vacation of Arbitration Award

In

its sixth issue, PAC contends the trial court erred in confirming and not

vacating the arbitration award. It

asserts the trial court erred because the claims at issue were exclusive to federal

jurisdiction; the award violated due process; the arbitration panel did not

make the necessary findings to support injunctive relief; the award was ambiguous and contradictory;

the arbitration panel miscalculated damages due to PAC; the arbitration panel

refused to follow Texas law; the order granted more relief to Olstowski than

what was awarded by the panel; the arbitration panel granted relief outside the

NDNUA; the arbitration panel exceeded its authority for not finding Olstowski

liable for conversion; and, the trial court did not have jurisdiction to

confirm the arbitration award.

A. Vacatur

We

review de novo a trial court’s confirmation of an arbitration award under the

FAA based on the entire record. Royce

Homes, L.P. , 2010 WL 184216 at *6 ; Myer v. Americo Life, Inc. , 232

S.W.3d 401, 407 (Tex. App.—Dallas 2007, no pet.); Tanox, Inc. v. Akin, Gump,

Strauss, Hauer & Feld, L.L.P. , 105 S.W.3d 244, 250 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied). All

reasonable presumptions are indulged to uphold the arbitrator’s decision, and

none are indulged against it. Royce

Homes, L.P. , 2010 WL 184216 at *6 ; Bailey & Williams v. Westfall ,

727 S.W.2d 86, 90 (Tex. App.—Dallas 1987, writ ref’d n.r.e.).

An

arbitration award is presumed valid and entitled to great deference. Myer , 232 S.W.3d at 407–08. When reviewing an arbitration award, we may

not substitute our judgment merely because we would have reached a different

decision. Bailey , 727 S.W.2d at

90 . Because judicial review of an

arbitration award adds expense and delay that diminishes the benefits of

arbitration as an efficient, economical system for resolving disputes, our

review of the arbitration award is “extraordinarily narrow.” See Myer , 232 S.W.3d at 408 . Accordingly, we may not vacate an award even

if it is based upon a mistake in law or fact.

Royce Homes, L.P. , 2010 WL 184216 at *7 .

The

United States Supreme Court recently foreclosed any common law ground for

vacatur of an arbitration award and held that the statutory grounds provided in

sections 10 and 11 of the FAA for vacating, modifying, or correcting an

arbitration award are the exclusive grounds for vacating an arbitration

award. Hall St. Assocs., L.L.C. v.

Mattel, Inc. , 552 U.S. 576, 582 , 128 S. Ct. 1396, 1402 (2008); Royce

Homes, L.P. , 2010 WL 184216 at *7, 11 ; see also Citigroup Global Mkts.,

Inc. v. Bacon , 562 F.3d 349, 350 (5th Cir. 2009) (holding that Hall

Street restricts grounds for vacatur to those set forth in section 10 of

FAA); Anzilotti v. Gene D. Liggin, Inc. , 899 S.W.2d 264, 266 (Tex. App.—Houston

[14th Dist.] 1995, no writ) (holding that courts may not vacate arbitration

award even if it is based upon mistake in law or fact). Section 10(a) permits a court to vacate an

arbitration award:

(1) where the award was procured by corruption, fraud, or

undue means;

(2) where there was evident partiality or corruption in the

arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause shown, or in refusing

to hear evidence pertinent and material to the controversy; or, of any other

misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so

imperfectly executed them that a mutual, final, and definite award upon the

subject matter was not made.

9 U.S.C.S. § 10 (a) (LexisNexis 2008); Royce Homes,

L.P. , 2010 WL 184216 at *7 . 2

On

appeal, PAC lodges multiple assertions why the trial court erred in refusing to

vacate the arbitration award. It,

however, does not assert any of the four statutory grounds listed in sections

10 and 11 as grounds for why the trial court erred in refusing to vacate the

arbitration award. Furthermore, PAC’s

statements that the arbitration panel “exceeded its powers” in granting an

award against public policy or that the arbitrators did not make necessary

findings resulting in an award that is “not final and definite,” are statements

couched in common law arguments that do not provide valid ground for vacatur of

the arbitrators’ award. We hold,

therefore, that the trial court did not err in confirming and refusing to

vacate the arbitration award. See

Royce Homes, L.P. , 2010 WL 184216 at *11 (holding common law arguments made

by appellant, such as manifest disregard of law and gross mistake, were not

valid grounds for vacatur of arbitration award as Hall Street forecloses

any common law grounds for vacatur, and statutory grounds in sections 10 and 11

of FAA are only grounds available for vacating, modifying, or correcting

arbitration award) (citing Hall Street , 1552 U.S. at 583, 128 S. Ct. at

1403 ; Citigroup Global Mkts., Inc. , 562 F.3d at 350 ).

B. Trial Court’s Jurisdiction

PAC contends the trial court had no

jurisdiction to confirm the arbitration award because the NDNUA states, “the

parties acquiesce to the jurisdiction of the U.S. District Courts and a

judgment upon an award rendered by the arbitrators may be entered in and by the

U.S. District Court.”

The plain meaning of the parties’

agreement in the NDNUA to “acquiesce to the jurisdiction of the U.S. District

Court,” means that a U.S. District Court may confirm an award. The agreement fails to specify that the U.S.

District Court is exclusive to other courts.

State courts may confirm arbitration awards pursuant to the FAA. See, e.g. , Royce Homes, L.P. ,

2010 WL 184216 at *11 (upholding state trial court’s confirmation of

arbitration award arbitrated pursuant to FAA).

We hold the district court had jurisdiction to confirm the arbitration

award.

C. Trial Court’s Relief

PAC contends the trial court

awarded greater relief than the arbitration award. It asserts the court erred when it stated PAC

is “enjoined from interfering with Olstowski’s use and enjoyment of his excimer

technology and closed-loop technology.”

It states this was an error because the “Arbitration Panel never awarded

Olstowski with ownership of closed loop technology.”

In its award, the arbitration panel

states, “The Panel DECLARES that Olstowski is the exclusive and sole owner of:

a. the technology and methods embodied in

the patent applications styled “Improved Ozone Generator with Duel Dielectric

Barrier Discharge;” [sic] Improved Closed-Loop Light Intensity Control and

Related Fluorescence Application Method;[fn. 4] and “Excimer UV Fluorescence

Detection”;

b. all the accompanying drawings,

blueprints, schematics and formulas created or drawn by either Olstowski or Virgil

Stamps of the application identified in or in support of ((a) and (b)

hereinafter referred to as the “Excimer Technology”); and

c. Issued Patents and/or Patent Applications

pending entitled: Ozone Generator with Dual Dielectric Barrier Discharge and

Methods for Using Same, Improved Closed-Loop Light Intensity Control and

Related Fluorescence Application Method, and Excimer UV Fluorescence Detection

(as amended).

. . . .

fn.4 However, the general closed-loop technology

is not new or unique as noted in finding no. 20.

In

the trial court’s order confirming the arbitration award, the trial court

noted:

(1) Olstowski is the

exclusive and sole owner of all technology in dispute,

. . . .

(3) Further, PAC is

enjoined from interfering with Olstowski’s use and enjoyment of his excimer and

closed-loop technology,

. . . .

Because the trial court used the word

“his” to modify “closed-loop technology,” the trial court’s order, read in

conjunction with the arbitration award, plainly refers to the “Improved

Closed-Loop technology” referenced by the arbitration panel, and not to “the

general closed-loop technology” expressly excluded by the arbitration panel in

its footnote four. We conclude the trial

court’s relief was consistent with the arbitrator’s award.

We

overrule PAC’s sixth issue.

Atom’s Motion for

Summary Judgment

Through

three issues, PAC contends the trial court erred when it granted Atom’s

no-evidence motion for summary judgment against PAC.

A. Standard

of Review

We

review summary judgments de novo. Valence

Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment

must be granted if, after adequate time for discovery, the moving party asserts

there is no evidence of one or more specified elements of a claim or defense on

which the adverse party would have the burden of proof at trial, and the

respondent produces no summary judgment evidence raising a genuine issue of

material fact on those elements. Tex. R. Civ. P. 166a(i); LMB, Ltd.

v. Moreno , 201 S.W.3d 686, 688 (Tex. 2006).

When the movant files its motion in proper form, the burden shifts to

the nonmovant to defeat the motion by presenting evidence that raises an issue

of material fact regarding the elements challenged by the motion. LMB, Ltd. , 201 S.W.3d at 688 ; Landers

v. State Farm Lloyds , 257 S.W.3d 740, 744 (Tex. App.—Houston [1st Dist.]

2008, no pet.).

In

a Rule 166a(i) no-evidence summary judgment, the movant represents that no

evidence exists as to one or more essential elements of the non-movant’s

claims, upon which the non-movant has the burden of proof at trial. Tex.

R. Civ. P. 166a(i). The non-movant then must present evidence raising a

genuine issue of material fact on the challenged elements. Id.

A party who files a no-evidence summary judgment motion pursuant to rule

166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez , 206 S.W.3d

572, 581 (Tex. 2006). A fact issue

exists if the evidence “rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman , 118

S.W.3d 742, 751 (Tex. 2003) (quoting Merrell

Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than create a

mere surmise or suspicion of fact, less than a scintilla of evidence exists,

and summary judgment is proper. Transp.

Ins. Co. v. Faircloth , 898 S.W.2d 269, 282 (Tex. 1995); Macias v. Fiesta

Mart, Inc. , 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no

pet.). A respondent is not required to

marshal its proof to defeat a no-evidence motion for summary judgment; it need

only point out evidence that raises a fact issue on the challenged elements. Tex. R.

Civ. P. 166a(i), cmt. (1997).

Because the trial court’s summary judgment does not specify the ground

on which the court relied for its ruling, we should affirm it if any theory

advanced by Atom has merit. See

Weiner v. Wasson , 900 S.W.2d 316 , 317 n.2 (Tex. 1995).

B. No

Answer

In

its first issue, PAC contends the trial court erred because it granted Atom’s

summary judgment motion before Atom filed an answer to PAC’s original

petition. PAC asserts, “[a]lthough Atom

did make an appearance in the case, Atom never filed a general denial,

affirmative defense or counter-claim before summary judgment was filed and

granted.” PAC notes that Atom was not

included as a defendant in Olstowski’s original answer filed October 3, 2006,

but was included in an amended answer that included both Olstowski and Atom

filed on October 30, 2008, two months after the trial court granted Atom’s

summary judgment motion. PAC also notes

Atom made an appearance in the case.

PAC

waived this error, if any. As a

prerequisite to presenting a complaint for appellate review, the record must

show that a complaint was made to the trial court by a timely request,

objection, or motion and that the trial court (1) ruled on the request,

objection, or motion, either expressly or impliedly, or (2) refused to rule on

the request, objection, or motion, and the complaining party objected to the

refusal. See Tex. R. App. P. 33.1. Under rule 166a(c) of the Rules of Civil

Procedure, in the context of summary judgment, issues that are not expressly

presented to the trial court by written motion, answer, or response will not

serve as grounds for reversal of a summary judgment on appeal. Tex.

R. Civ. P. 166a(c); Roark v. Stallworth Oil & Gas, Inc. , 813

S.W.2d 492, 495 (Tex. 1991); City of Houston v. Clear Creek Basin Auth. ,

589 S.W.2d 671, 678 (Tex. 1979) (summary judgment non-movant could not raise

for first time on appeal additional fact issue that was not raised in its

response). The party who allows an issue

to be tried by consent and who fails to raise the lack of a pleading before

submission of the case cannot later raise the pleading deficiency for the first

time on appeal. Roark , 813 S.W.2d

at 495 (citing Tex. R. Civ. P. 67, 90). As the Supreme Court has noted, “[t]here is

no valid reason why these rules should not apply to issues raised in the motion

for summary judgment.” Id. “[I]t would advance no compelling interest of

the parties or of our legal system to reverse a summary judgment simply because

of a pleading defect.” Id.

An

opposing party should use special exceptions to identify defects in a pleading

so that they may be cured, if possible, by amendment. Horizon/CMS Healthcare

Corp. v. Auld , 34 S.W.3d 887, 897 (Tex. 2000). When a party fails to specially except,

courts should construe the pleadings liberally in favor of the pleader. Id.

In

this case, the trial court set the submission date for the motion for summary

judgment on August 18, 2008. Prior to

that date, the record shows that PAC failed to raise the issue regarding any

deficiencies in Atom’s pleadings. PAC

did not file any special exceptions, and did not raise the issue in any

motions. The first time the record shows

that PAC raised this issue is in PAC’s motion for reconsideration, filed after

the trial court granted the summary judgment.

Because the record does not show that PAC brought this issue to the

attention of the trial court or that the trial court ruled on it before it

granted summary judgment, we hold that PAC failed to preserve error, if any, on

this issue. See Tex. R. App. P. 33.1;

Tex. R. Civ. P. 67, 166a(c); Roark , 813 S.W.2d

at 495 (holding that because Roark failed to direct trial court’s attention to

absence of pleading in his written response or before court rendered judgment,

complaint may not be raised on appeal); Hainsworth v. Berry , 485 S.W.2d

934 , 934–35 (Tex. Civ. App.—Houston [1st Dist.] 1972, no writ) (holding failure

to object to absence of answer at trial level prevents contention on appeal

that pleadings were insufficient).

We

overrule PAC’s first issue.

C. Res Judicata

In its second issue, PAC states the

trial court erred when it granted Atom’s motion for summary judgment based on

“an affirmative defense and counter-claim that was never pled.” PAC contends the summary judgment for Atom

was premised on the affirmative defense of res judicata, which was never

pleaded by Atom, and, therefore, an improper ground for summary judgment.

The record shows Atom’s no-evidence

motion for partial summary judgment requests judgment against PAC for “all

causes of action against Atom” and it cites to rule 166a(i) of the Texas Rules

of Civil Procedure, the rule pertaining to no-evidence motions for summary

judgment. See Tex. R. Civ. P. 166a(i). In its motion, Atom states:

Atom is entitled to summary judgment because PAC cannot,

by depositions, answer to interrogatories, admissions on file, or other

admissible evidence, demonstrate there is any evidence to support its causes of

action for declaratory relief, tortious interference with continuing business

relations, conversion of intellectual property, breach of oral contract,

attorney fees, restitution/unjust enrichment (alternative to breach of contract),

fraudulent inducement, negligent misrepresentation (alternative to fraudulent

inducement), and application for temporary and permanent injunction.

In addition to

challenging the absence of any evidence to establish PAC’s claims, Atom also

asserts that the motion for summary judgment should be granted because each of the causes of action were the

same as those that had been fully and completely adjudicated in the

arbitration. Atom’s no-evidence motion

for summary judgment, therefore, makes two alternative challenges, (1) that

there is no evidence on each of PAC’s claims, and (2) that the arbitration

between Olstowski and PAC fully and completely adjudicated PAC’s claims against

Atom. Without stating the basis for its

decision, the trial court granted summary judgment against PAC, which disposed

of all claims between PAC and Atom.

When

there are multiple grounds for summary judgment and the order does not specify

the ground on which the summary judgment was rendered, the appealing party must

negate all grounds on appeal. Ellis

v. Precision Engine Rebuilders, Inc. , 68 S.W.3d 894, 898 (Tex. App.—Houston

[1st Dist.] 2002, no pet.) (citing State Farm Fire & Cas. Co. v. S.S. ,

858 S.W.2d 374, 381 (Tex. 1993)). If

summary judgment may have been rendered, properly or improperly, on a ground

not challenged, the judgment must be affirmed. Id. (citing Holloway v. Starnes ,

840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ denied)).

In this appeal, PAC does not challenge

each of the grounds under which the no evidence motion for summary judgment

could have been granted. Excluding its

arguments concerning attorney’s fees that we address separately in this

opinion, PAC’s entire argument challenging the summary judgment is, as follows:

To obtain summary judgment, a movant must either negate at

least one element of the plaintiff’s theory of recovery, or plead and

conclusively establish each element of an affirmative defense. Pursuant to Texas Rule of Civil Procedure 94,

res judicata is an affirmative defense that must be pled. Atom’s Motion was predicated on and granted solely

on the doctrine of res judicata .

Because the affirmative defense upon which Atom based its Motion was

never pled, the trial court erred in granting summary judgment on this basis

and it must be reversed.

(citations omitted) (emphasis in

original).

In

this appeal, PAC challenges the res judicata portion of the no-evidence summary

judgment, but it fails to address Olstowski’s alternative challenge that there

exists no evidence on each of PAC’s claims.

Because summary judgment may have been rendered on a ground not

challenged on appeal, we uphold the summary judgment, whether it may have been

rendered properly or improperly. See

Ellis , 68 S.W.3d at 898 .

We overrule PAC’s second issue.

D. Stay

In its fourth issue, PAC asserts the trial court erred in

granting Atom’s motion for summary judgment because the lawsuit between PAC and

Atom had been stayed by the trial court. In its response to Atom’s summary judgment

motion at trial, PAC does not directly raise or identify evidence to counter

Atom’s no evidence motion for summary judgment.

PAC’s sole response to the motion is its assertion that the trial court

should not grant the motion because the trial court stayed the case between PAC

and Atom.

The record shows that

there was only one order that stayed proceedings. The order granted Olstowski’s motion to stay

the cause of action between Olstowski and Strozier. The order states:

After

considering the Defendant/Counter-plaintiff Franek Olstowski’s motion to stay

proceeding arbitration, the court GRANTS the motion and ORDERS this matter is

stayed as to cross-defendant Strozier until the arbitration proceeding is

complete. . . .

Although

no written order shows a stay of the Atom proceedings, PAC claims the court

verbally ordered a stay. At the hearing

to which PAC cites, the court states, “This [arbitration agreement] only refers

to Mr. Olstowski. Just set [the

arbitration] for Mr. Olstowski.

Everybody else will be stayed. I

think [the arbitration proceeding] will resolve it anyway.” At the same

hearing, however, the court also states, “The Court grants the motion. So you go back to the subject matter of the

motion, which was only as to Mr. Olstowski – I mean – Strozier.”

A

judgment or order that is rendered in writing and signed by the trial judge

becomes the official judgment of the court.

Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas,

Ltd. , 260 S.W.3d 67, 85 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Anytime there is a conflict between oral

pronouncements made by a trial judge and his written judgment or order, the

matters set forth in the written order control.

In re JDN Real Estate-McKinney L.P. , 211 S.W.3d 907, 914 (Tex.

App.—Dallas 2006, pet. denied); see also Capital Fin. , 260 S.W.3d at 85

(“Recitals in a judgment or signed order of the court thus control over

conflicting recitals in the record.”).

In

this case, the trial court’s written order clearly stays only those matters

between Olstowski and Strozier. This

order controls over conflicting oral pronouncements, if any exist. See In re JDN Real Estate-McKinney L.P. ,

211 S.W.3d at 914 . We hold the

proceedings between Atom and PAC were never stayed, and that the trial court,

therefore, did not err in granting Atom’s motion.

We

overrule PAC’s fourth issue.

Attorney’s Fees

In its second issue, PAC contends

the trial court erred when it granted attorney’s fees to Atom in conjunction

with granting Atom’s summary judgment.

The trial court awarded Atom $240,379.66 in attorney’s fees and

conditional awards in the event of a successful appeal. See Hunsucker v. Fustok , 238 S.W.3d

421, 431 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“The general rule is

that a trial court’s award of attorney’s fees may include appellate attorney’s

fees.”).

A. Standard of Review

Generally, we review a trial court’s

decision to grant or deny attorney’s fees for an abuse of discretion. See Bocquet v. Herring , 972 S.W.2d 19,

21 (Tex. 1998); EMC Mortgage Corp. v. Davis , 167 S.W.3d 406, 418 (Tex.

App.—Austin 2005, pet. denied). A trial

court abuses its discretion if its decision is arbitrary, unreasonable, and

without reference to guiding principles.

Goode v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997). When reviewing a trial court’s decision under

this standard, we must view the evidence in the light most favorable to the

trial court’s ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie , 116

S.W.3d 438, 444 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Phillips

& Akers, P.C. v. Cornwell , 927 S.W.2d 276, 279 (Tex. App.—Houston [1st

Dist.] 1996, no writ).

The statute authorizing attorney’s

fees in this case is the Declaratory Judgment Act, which states, “In any

proceeding under this chapter, the court may award costs and reasonable and

necessary attorneys’ fees as are equitable and just.” Tex.

Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). The grant or denial of attorney’s fees in a

declaratory judgment lies within the discretion of the trial court, and its

judgment will not be reversed on appeal absent a clear showing that it abused

its discretion. Oake v. Collin County ,

692 S.W.2d 454, 455 (Tex. 1985). Any

fees must be reasonable and necessary, which are questions of fact, as well as

equitable and just, which are questions of law.

Bocquet , 972 S.W.2d at 21 .

Although what constitutes reasonable attorney’s fees is a question of

fact, clear, direct, and uncontroverted evidence, even evidence from an

interested witness, will establish that attorney’s fees sought are reasonable

and necessary, where the opposing party had means and opportunity to disprove

the testimony but failed to do so. See

Smith v. Patrick W.Y. Tam Trust , 296 S.W.3d 545 , 547–48 (Tex. 2009) (citing

Ragsdale v. Progressive Voters League , 801 S.W.2d 880, 882 (Tex. 1990));

Rosenblatt v. Freedom Life Ins. Co. of Am. , 240 S.W.3d 315, 321 (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

B. Arguments

Presented by PAC

PAC asserts the court erred in

awarding fees because (1) Atom failed to plead for attorney’s fees, (2) the

action between PAC and Atom was stayed by the trial court, (3) Atom’s attorney’s

affidavit was inadmissible, (4) there was no statutory basis for the award, (5)

Atom failed to segregate between those fees generated for Olstowski and those

generated for Atom, and (6) there was insufficient evidence to support the

trial court’s award of attorney’s fees.

1. Failure to Plead for Attorney’s Fees

PAC

asserts the trial court erred in awarding attorney’s fees to Atom because “Atom

failed to plead for the recovery of attorney’s fees.” PAC notes that Olstowski’s amended answer

including Atom as a defendant was not filed until after the trial court granted

Atom’s motion for summary judgment.

Absent

a mandatory statute, a trial court’s jurisdiction to render a judgment for

attorney’s fees must be invoked by pleadings, and a judgment not supported by

pleadings requesting an award of attorney’s fees is a nullity. Alan Reuber Chevrolet, Inc. v. Grady

Chevrolet, Ltd. , 287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.). However, the issue must not be waived or

tried by consent. Id. (citing In

re Pecht , 874 S.W2d 797, 803 (Tex. App.—Texarkana 1994, no writ)).

As

discussed above, we hold this issue was waived when PAC failed to bring the

issue before the trial court until after the summary judgment was granted. See Tex.

R. App. P. 33.1; Tex. R. Civ.

P. 67, 166a(c); Roark , 813

S.W.2d at 495 (holding that because Roark failed to direct trial court’s

attention to absence of pleading in his written response or before court

rendered judgment, complaint may not be raised on appeal).

2. Stay

PAC

also asserts that the court erred in awarding attorney’s fees because the

action between PAC and Atom was stayed, and additionally, Atom could not have

incurred attorney’s fees during the time period of the arbitration proceeding

because the claims between PAC and Atom were stayed from January 19, 2007

though at least the conclusion of the arbitration in November 2007. As discussed above, the claims between Atom

and PAC were not stayed, and therefore the court did not err in granting

summary judgment. Additionally, because

the case between PAC and Atom was not stayed, Atom could have incurred fees

generated during the time period of the arbitration proceeding to time the

summary judgment was rendered.

3. The Affidavit

PAC

next contends that Atom’s attorney’s affidavit regarding the amount of attorney’s

fees generated was inadmissible because (a) it was not sworn before a notary

public and the date on the jurat of the notarization makes the affidavit

inadmissible, and (b) Atom’s attorney’s affidavit was conclusory and the motion

was based upon hearsay.

a. Defects in

the Affidavit

PAC

asserts the trial court erred in awarding fees because the affidavit supplying

evidence of the fees was never sworn to before a notary public. As we construe PAC’s argument, it next

asserts that even if sworn, the affidavit was sworn to on February 9, 2008,

over a month after Atom filed its summary judgment. It contends that because of the incorrect

date on the jurat of the notarization, the affidavit is inadmissible.

Texas

Government Code section 312.01 sets out the requirements for an affidavit: “‘Affidavit’

means a statement in writing of a fact or facts signed by the party making it,

sworn to before an officer authorized to administer oaths, and officially certified

to by the officer under his seal of office.”

See Tex. Gov’t Code Ann. §

312.011(1) (Vernon 2005). Without

notarization or a jurat, an unsworn statement is not an affidavit, and it is

not proper summary judgment evidence. Coastal

Cement Sand Inc. v. First Interstate Credit Alliance, Inc. , 956 S.W.2d 562,

567 (Tex. App.—Houston [14th Dist.] 1997, writ denied). When an affidavit admitted in support of

summary judgment is not properly authenticated by notarization, the party may

raise this “substantive” complaint for the first time on appeal. Blanche v. First Nationwide Mortg. Corp. ,

74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.).

In

this case, Atom’s attorney, Alton W. Payne, made statements in writing and

signed the affidavit. The statements are

sworn to because the affidavit begins, “Before me, the undersigned authority,

personally appeared Alton W. Payne . . . .”

See Norcross v. Conoco, Inc. , 720 S.W.2d 627, 630 (Tex. App.—San

Antonio 1986, no writ) (holding affidavit that expressly stated affiant was

duly sworn was valid affidavit). The

record shows Payne’s statement is sworn to before a notary, who is an officer

authorized to administer oaths. See Tex. Gov’t Code Ann. § 602.002(4)

(Vernon 2003). Finally, the statement is

officially certified by the notary under her seal of office. The record shows that in its response to Atom’s

summary judgment, PAC’s only objection regarding the issue of the affidavit’s

validity was that the affidavit “was never sworn to and subscribed to before a

notary public.” Because the record shows

that the affidavit was notarized by a notary public, we hold PAC’s objection at

trial and assertion on appeal lack merit.

PAC

next contends that the error in the date of the jurat of the notarization

renders the notarization invalid. Error

in the date of the notarization is a defect of form, not substance. Nortex Drug Distribs., Inc. v. Sunset

Trails, Inc. , No. 05-98-00676-CV, 2000 WL 1230766 , at *4 (Tex. App.—Dallas

Aug. 31, 2000, no pet.) (mem. op., not designated for publication). By failing to object to the trial court, PAC

waived this error if any. See id. Rule 166a(f) states that reversal cannot be

predicated on defects in the form of an affidavit or attachment unless the

opposing party objects and the proponent of the proof has the “opportunity” to

amend, but refuses. See Tex. R. Civ. P. 166a(f); Vice v.

Kasprzak , No. 01-08-00168-CV, 2009 WL 3152122, at *6 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009,

no pet. h.) (citing Grand Prairie Indep. Sch. Dist. v. Vaughan , 792

S.W.2d 944, 945 (Tex. 1990)). The

notarization on Payne’s affidavit is dated February 8, 2008. PAC had until August 18, 2008, the submission

date, to raise the issue regarding the date of the notarization before the

trial court. Because it failed to object

to the date, we hold PAC waived any error regarding the date of the

notarization. Eberstein v. Hunter ,

260 S.W.3d 626, 629 (Tex. App.—Dallas 2008, no pet.) (holding appellant waived

right to complain about evidence on appeal due to failure to object to summary

judgment evidence).

b. Objections to Payne’s Affidavit

Without

pointing to any specific statements within Payne’s affidavit, PAC generally

objected at trial on the basis that the affidavit “misstates the contents of

the various attachments,” “is conclusory,” is “without foundation,” and that

the attachments are “hearsay.” PAC’s

arguments on appeal are the same.

An

objection based on a summary judgment affidavit’s conclusory statements is an

objection to substance, which may be raised for the first time on appeal;

whereas, an objection based on lack of foundation or hearsay is an objection to

form, which requires a written ruling for appellate review. See Green v. Indus. Specialty Contractors ,

1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

At

the outset, we note that the trial court did not rule on PAC’s objections to

the affidavit. As a result, PAC’s objections

as to the form of the affidavit are waived.

See Hogan v. J. Higgins Trucking, Inc. , 197 S.W.3d 879, 883 (Tex.

App.—Dallas 2006, no pet.) (“[T]here must be some indication that the trial

court ruled on the objections in the record or in the summary judgment itself,

other than the mere granting of the summary judgment.”). Moreover, PAC’s general objections of

“hearsay” or “without foundation,” as well as objections not specifically

identifying statements, would be too general to present an issue for review,

even if it had been preserved for appeal through an adverse ruling. See Tex.

R. App. P. 33.1 (a)(1)(a) (requiring that complaint be sufficiently

specific to make trial court aware of complaint).

PAC’s objection on appeal that the affidavit

is conclusory is an objection to the substance of the affidavit, which may be

raised for the first time on appeal. See

Green , 1 S.W.3d at 130 (citing City of Wilmer v. Laidlaw Waste Sys.,

Inc. , 890 S.W.2d 459, 467 (Tex. App.—Dallas 1994), aff’d , 904 S.W.2d

656 , 660–661 (Tex. 1995). Thus, PAC did

not need to obtain a ruling to raise this objection on appeal. See id. Nevertheless, PAC’s argument on appeal is

vague and overbroad. PAC fails to cite

to the record, presents no argument to explain how the affidavit is conclusory,

and cites no authority to support its allegation that the affidavit is

conclusory. Accordingly, we hold this contention is waived. Tex.

R. App. P. 38.1(h) (stating that brief must contain clear and concise

argument for contentions made with appropriate citations to authorities and

record); Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279 ,

284–85 (Tex. 1994) (holding appellate court has discretion to deem points of

error waived due to inadequate briefing); see Kyle v. Countrywide

Home Loans, Inc. , 232 S.W.3d 355, 359, 361 (Tex. App.—Dallas 2007, pet. denied) (holding objection inadequate

when it fails to identify specific language that is objectionable, fails to

explain basis for the objection, and fails to show how alleged deficiencies

defeat motion for summary judgment); Stewart v. Sanmina Tex., L.P. , 156

S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (objections insufficient if

they do not state specific basis for objection to particular statement).

4. Statutory

Basis for Award

PAC

asserts the trial court’s award of attorney’s fees was based upon section

38.001 of the Texas Civil Practice and Remedies Code. PAC contends the trial court erred by

awarding attorney’s fees under section 38.001 of the Civil Practice and Remedies

Code because the Code does not permit recovery of attorney’s fees for defending

a breach of contract claim.

A

party may not recover attorney’s fees unless such recovery is authorized by

statute or provided for by contract between the parties. State v. Mid-South Pavers, Inc. , 246

S.W.3d 711, 730 (Tex. App.—Austin 2007, pet. denied) (citing Travelers Indem. Co. of Conn. v. Mayfield ,

923 S.W.2d 590, 593 (Tex. 1996)). Under

section 38.001(8) of the Texas Civil Practice and Remedies Code, a party “may

recover” reasonable attorney’s fees if the claim is for an oral or written

contract. See Tex. Civ. Prac. & Rem. Code Ann. §

38.001(8) (Vernon 2008). Chapter 38 does

not provide for the recovery of attorney’s fees by a defendant who only defends

against a plaintiff’s contract claim and presents no contract claim of its

own. Energen Res. MAQ, Inc. v.

Dalbosco , 23 S.W.3d 551, 558 (Tex. App.—Houston [1st Dist.] 2000, pet.

denied) (citing Am. Airlines, Inc. v. Swest, Inc. , 707 S.W.2d 545, 547

(Tex. 1986) (holding defendant could not recover attorney’s fees under

predecessor to section 38.001 when defendant presented no contract claim of its

own)).

In

its motion for summary judgment, Atom requested attorney’s fees under both section 38.001 and under the Texas

Declaratory Judgments Act (TDJA), as found in section 37.003(a) of the Civil

Practices and Remedies Code. The

Declaratory Judgments Act provides that in any proceeding under the Act “the

court may award costs and reasonable and necessary attorney’s fees as are

equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. §

37.009.

Although

Atom requested fees under section 38.001, it is clear from the summary judgment

that the trial court awarded Atom fees under section 37.003. Atom sought summary judgment to dispose of

“all causes of action against Atom.” PAC

sought declaratory relief against Atom in its original petition. In its summary judgment motion, Atom was

defending against PAC’s claims, and it sought fees under section 37.003 because

PAC’s suit “is a suit seeking declaratory relief.” When the trial court granted the summary

judgment, it stated in the order that “Atom is entitled to attorney’s fees

incurred in the defense of this suit that were reasonable and necessary,

and Atom is entitled to attorney fees incurred in the defense of this

suit in the amount of $240, 379.66.” (emphasis in original). Atom was defending against a suit for

declaratory judgment, and the trial court awarded Atom attorney’s fees based

only upon his defense, and not upon any alternative claims of Atom against

PAC. We conclude that the trial court

did not grant attorney’s fees under section 38.001(8). We hold the trial court properly awarded fees

under section 37.009 by exercising its discretion to award fees to a party defending

a claim for declaratory relief. Cf.

Flagship Hotel, Ltd. v. City of Galveston , 117 S.W.3d 552, 566 (Tex.

App.—Texarkana 2003, pet. denied) (holding that, where party claimed it was

entitled to attorney’s fees under both sections 38.001 and 37.009 of the Texas

Civil Practice and Remedies Code, and order granting attorney’s fees did not

state basis for the award, it was not abuse of discretion to award attorney’s

fees under section 37.009 to party that did not prevail on contract claim if

that is equitable and just under circumstances).

5. Segregation

PAC

contends that Atom failed to segregate its attorney’s fees between those

generated for Olstowski and those generated for Atom.

a. Applicable

Law

A

party seeking attorney’s fees has a duty to segregate nonrecoverable fees from

recoverable fees, and to segregate the fees owed by different parties. French v. Moore , 169 S.W.3d 1, 17

(Tex. App.—Houston [1st Dist.] 2004, no pet.).

If any attorney’s fees relate solely to a claim for which such fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable

fees. Tony Gullo Motors I., L.P. v.

Chapa , 212 S.W.3d 299, 313 (Tex. 2006).

It is only when legal services advance both recoverable and

unrecoverable claims that the services are so intertwined that the associated

fees need not be segregated. Id.

at 313–14; see also A.G. Edwards & Sons, Inc. v. Beyer , 235 S.W.3d

704, 710 (Tex. 2007).

To

preserve a complaint for review on appeal, a party must present to the trial

court a timely request, motion, or objection that states the specific grounds

for the ruling requested and conforms to the requirements of the Rules of

Procedure and Evidence. Tex. R. App. P. 33.1(a)(1)(A)–(B);

see Wal-Mart Stores, Inc. v. McKenzie , 997 S.W.2d 278, 280 (Tex.

1999). The complaining party must also

show that the trial court ruled on the request, objection, or motion “either

expressly or impliedly.” Tex. R. App. P.

33.1(a)(2)(A).

b. Analysis

In

PAC’s original brief on appeal, PAC makes the following argument regarding

segregation,

In addition,

the claims and defenses Atom asserted are different from the claims and

defenses asserted by Olstowski; therefore, pursuant to the holding of Stewart

Title Guaranty Company v. Aiello , the fees must be segregated. Atom failed to demonstrate, as a matter of

law, that the causes of action involved in the suit are dependent upon the same

set of facts or circumstances and thus are “intertwined to the point of being

inseparable.” Because it failed to

segregate the fees or provide proper evidence, the court erred in awarding any

attorney’s fees.

(citations

omitted) (emphasis omitted).

This argument was

never made by PAC in its response to Atom’s motion for summary judgment. The response states:

Additionally,

there is no competent summary judgment evidence to support a claim of attorneys’

fees and PAC objects to Exhibit C to Atom’s Motion and its attachments. First, Exhibit C, the affidavit of Alton

Payne, is not an affidavit. As can be

seen, it was never sworn and subscribed to before a Notary Public. Therefore, it cannot be considered at

all. Second, Mr. Payne’s affidavit

misstates the contents of the various attachments and is conclusory without

foundation. Third, since Exhibit C is

not proper summary judgment proof, the various attachments cannot be considered

as they are hearsay and without foundation.

Fourth, all of the attorneys’ fees Atom seeks to recover are fees that

were generated for Olstowski as part of the arbitration. In that proceeding, Olstowski was awarded

$375[,]000 in attorneys’ fees. Any

additional award of attorneys’ fees to Atom would amount to a double

recovery. Therefore, Atom’s request for

attorneys’ fees must be declined.

(citation omitted).

The argument on appeal

is different from the argument in PAC’s response to Atom’s motion for summary

judgment. At trial, PAC’s position was

that the attorney’s fees to Atom would be a “double recovery” because the

arbitration awarded Olstowski those same fees.

On appeal, however, PAC’s argument is that the fees must be segregated

because the claims and defenses asserted by Atom and Olstowski are not

intertwined. We hold PAC has waived any

complaint regarding segregation by failing to raise this issue before the trial

court. See Tex. R. App. Proc. 33.1 (prerequisite

to presenting complaint on appeal is timely complaint to the trial court); Green

Int’l, Inc. v. Solis , 951 S.W.2d 384, 389 (Tex. 1997) (“[I]f no one objects

to the fact that the attorney’s fees are not segregated as to specific claims,

then the objection is waived.”) (citing Hruska v. First State Bank of

Deanville , 747 S.W.2d 783, 785 (Tex. 1988)).

6. Sufficiency of the Evidence

On

appeal, PAC challenges the evidence offered by Atom to support the award of attorney’s

fees, and contends the evidence is insufficient to support the award. It asserts that because Atom failed to

provide proper evidence, the court erred in awarding any attorney’s fees to

Atom. For support, it maintains its

argument that the action between Atom and PAC was stayed, and that any fees

were, therefore, generated for Olstowski and not Atom.

The

amount of an award for attorney’s fees rests in the sound discretion of the

trial court, and its judgment will not be reversed on appeal absent a clear

showing of abuse. Owen Elec. Supply,

Inc. v. Brite Day Constr., Inc. , 821 S.W.2d 283, 288 (Tex. App.—Houston

[1st Dist.] 1991, writ denied). When a

movant includes a prayer for attorney’s fees in its summary judgment motion, an

attached affidavit is “expert opinion testimony” that may be considered as

proof of the attorney’s fees incurred. Id. To create a fact issue, the non-movant must

file a counter affidavit contesting the reasonableness of the movant’s attorney’s

fee claim. Id. (citing Tesoro

Petrol. Corp. v. Coastal Ref. & Mktg., Inc. , 754 S.W.2d 764, 767 (Tex.

App.—Houston [1st Dist.] 1988, writ denied)); see also Tex. Civ. Prac. & Rem. Code Ann. §

18.001 (Vernon 2008). Unless a

controverting affidavit is filed, an affidavit as to the amount of attorney’s

fees is presumed reasonable. Tex. Civ. Prac. & Rem. Code Ann. §

18.001(b) (Vernon 2008); Hunsucker , 238 S.W.3d at 432 . Even if the testimony comes from an

interested witness, the movant establishes the amount of attorney’s fees as a

matter of law when the testimony is clear, direct, positive, not contradicted

by any other witness or attendant circumstances, and could have been easily

controverted by the non-movant. See Smith , 296 S.W.3d at 547–48 (citing Ragsdale ,

801 S.W.2d at 882 ). The trial court

abuses its discretion in denying attorney’s fees when the movant files an

affidavit for fees and no fact issue is created by the non-movant. See Hunsucker , 238 S.W.3d at 432

(citing Ragsdale , 801 S.W.2d at 882 ).

Here, Atom attached to its motion for

summary judgment the affidavit of its attorney.

Attached to the affidavit is a 51-page invoice of fees. In this affidavit, Atom’s attorney, Payne,

detailed the specific work he and his law firm performed in the defense of Atom

and Olstowski, including hundreds of specific tasks, total number of hours

worked, and estimates of charges for any appellate work. Payne stated that the total fees his law firm

had incurred in the defense of Atom and Olstowski against PAC’s claims were

$689,529.66. He then noted that the

arbitration award to Olstowski was $449,150 in attorney’s fees, and that there

was a remaining $240,379.66 balance still due from Atom. In the 51-page invoice attached to the

affidavit, the total fees listed by the invoice was $690,729.60. Almost every invoice page specifies that the

invoice was generated “[i]n reference to . . . Franek Olstowski and Atom

Instrument Corp.”

PAC

fails to cite, and the record does not show, that it filed an affidavit

controverting Payne’s testimony. PAC,

therefore, failed to raise a material fact issue as to the reasonableness of

the fees set forth in the affidavit because it filed no affidavit controverting

Payne’s testimony, even though it could have readily done so if it believed his

claimed fee was unreasonable. Such

uncontroverted testimony will be taken as a matter of law, when, as here, the

opposing party has means and opportunity to disprove it. Ragsdale , 801 S.W.2d at 882 . The amount requested by Atom was clear,

direct, and positive in this case.

Although the trial court had discretion to award less than the requested

amount if the amount requested was unreasonable, not credible, or questionable,

the court here would abuse its discretion if it had not awarded any attorney’s

fees at all in the face of uncontroverted evidence of fees incurred and

anticipated. See Hunsucker , 238

S.W.3d at 432 ; Ragsdale , 801 S.W.2d at 882 .

Although

Payne included an itemized invoice of the services and charges he billed to

Atom and Olstowski, PAC asserts that the affidavit was still insufficient

because did not identify how many hours were spent on Atom’s defense

specifically. However, an attorney’s fee

affidavit need not do this. See, e.g. ,

Hugh Wood Ford, Inc. v. Galloway , 830 S.W.2d 296, 298 (Tex. App.—Houston

[14th Dist.] 1992, writ denied) (holding that attorney’s detail concerning work

he had done, together with his total estimate of hours worked, was sufficient

to support award of attorney’s fees).

Here, Atom’s attorney provided an affidavit which sufficiently detailed

the nature and extent of the services rendered, with Atom listed in the subject

area on nearly every page of the invoice.

PAC

also complains the trial court awarded Atom fees that had already been awarded

to Olstowski by the arbitration panel so that it is paying twice for the same

fees. In its motion, Atom requested

attorney’s fees for the amount of fees generated in excess of those awarded to

Olstowski by the arbitration award.

Double award does not occur because PAC is ordered to pay fees that are

not part of the amount awarded by the arbitrators to Olstowski.

Taking

into consideration (1) the evidence presented to the trial court regarding attorney’s

fees and (2) the fact that no controverting affidavit or other evidence was

submitted regarding the reasonableness of legal fees, we hold that the court

did not abuse its discretion by awarding attorney’s fees to Atom in the amount

of $240,379.66, and

conditional attorney’s fees in the event of a successful appeal.

We overrule PAC’s second issue.

Conclusion

We affirm the

judgment of the trial court.

Elsa

Alcala

Justice

Panel consists of Chief Justice Radack,

and Justices Alcala, and Higley.

1 For clarity, we have numbered the

issues one through six. Roman numeral

one with subissues A, B, C, and D, are numbered issues one through four,

respectively. Roman numeral two with subissues

A and B are numbered issues five and six, respectively.

2 Section 11 of the Federal Arbitration

Act refers to modification or correction of an arbitration award. See 9 U.S.C.S. § 11

(LexisNexis 2008).