JOHN L. FERRIS, Appellant v. CYNTHIA FERRIS, Appellee

AFFIRM; Opinion Filed December 21, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01705-CV
............................
JOHN L. FERRIS, Appellant
V.
CYNTHIA FERRIS, Appellee
.............................................................
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-00204-Z
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
        John L. Ferris (“Husband”) appeals from the trial court's Agreed Amended Final Decree of Divorce. In six issues, he asserts the trial court erred by denying his request for a trial on the reasonableness and necessity of the attorneys' fees of Cynthia Ferris (“Wife”) because (1) it violated his right to due process of law under the Fourteenth Amendment of the United States Constitution, and under the Texas Constitution, Article I, Section 19; (2) the equitable doctrines of contractual estoppel and acceptance of benefits preclude Wife from contesting his right to challenge the fees; (3) the equitable doctrines of promissory estoppel and quasi estoppel provide a separate basis on which he may challenge the fees; (4) the denial violated his right to a jury trial under the Texas Constitution, Article 1, Section 15, and under Texas Rule of Civil Procedure 216; (5) the trial court erred in interpreting the settlement agreement as a waiver by Husband of his right to challenge the fees; and (6) the denial violated the open courts provision of the Texas Constitution, Article I, Section 13. Wife responds that Husband waived his claims by signing a full and complete release of all claims as part of a settlement agreement that was incorporated into the final decree of divorce.
        Issue five is dispositive. We conclude the trial court did not err in interpreting the parties' settlement agreement as a waiver of the right to challenge the reasonableness and necessity of Wife's attorneys' fees. The estoppel arguments raised in Husband's issues two and three were not raised before the trial court and, therefore, are not preserved for appeal. Tex. R. App. P. 33.1. We interpret Husband's remaining issues to be predicated on the assumption that the settlement agreement did not release and waive his right to challenge the attorneys' fees. Given our conclusion to the contrary, we do not consider the remaining issues. Because the legal issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        This appeal arises from a divorce proceeding that was pending for two-and-a-half years. The couple had no children. The events relevant to this appeal began on May 27, 2008, when the parties executed a document entitled “Full and Final Settlement and Release Agreement” (“Settlement Agreement”). Paragraph 2.8 of the Settlement Agreement provides attorneys' fees and expenses incurred up through May 26, 2008, “shall be paid pursuant to the Temporary Orders entered in this cause.” Additionally, the parties agreed “to be solely responsible for the payment of their respective attorney's fees . . . from and after May 27, 2008.” After the Settlement Agreement was executed on May 27, the trial court held a hearing, at the request the parties, to approve the agreement and render a judgment. That hearing was presided over by another judge who was sitting for the Judge of the 256th Judicial District Court. At the hearing, both parties testified they had read and understood the Settlement Agreement, had no further questions, and felt they had all the information necessary to execute a fully informed settlement agreement.   See Footnote 1  Additionally, both parties testified they understood that the agreement settled all pending or potential claims.   See Footnote 2  At the conclusion of the May 27 hearing, the trial judge orally rendered a judgment, granting a divorce and approving the Settlement Agreement. The Agreed Final Decree of Divorce was signed by the sitting judge on July 11, 2008.
        Subsequently, a dispute arose over Wife's remaining unpaid attorneys' fees. On June 23, 2008, Wife filed a motion requesting the trial court enforce a previous order dated September 7, 2007, and order Husband to “pay the May 26, 2008 invoices presented by counsel” for Wife.
        Additionally, on July 7, 2008, Husband filed a motion styled “John L. Ferris' Motion for Cynthia Ferris' Attorney's Invoices,” arguing that “attorney's invoices produced by Cynthia Ferris are unredacted [sic] to such an extent that John L. Ferris is unable to ascertain the extent to which the charges are reasonable and necessary.” Accordingly, he requested the court order Wife to produce all attorney invoices to the trial court, in order that the trial court could then direct redaction of “only what [was] specifically core work product or attorney-client privilege.” Additionally, at a July 10 hearing, Husband made an oral motion challenging the reasonableness and necessity of Wife's attorneys' fees. The trial court denied both motions.
        Following a hearing on July 10, 2008, the trial court signed an order entitled “Order on Motion to Enforce Payment of Attorney Fees” wherein the court concluded Husband failed to comply with the September 7, 2007 order, and ordered him to pay $190,124.48 to Wife's attorneys.
        On August 8, 2008, Husband filed a motion for new trial, arguing he had a right to “discovery and a hearing on the issue of the reasonableness and necessity of Cynthia Ferris' attorneys' fees.” He requested the court set aside the order to pay $190,124.48 in attorneys' fees. Also on that day, Wife filed a Motion for New Trial, or in the Alternative, Motion to Reform the Final Judgment. In Wife's motion, she requested the court “set aside the Final Decree of Divorce and grant a new trial on issues not decided by the parties' settlement agreement of May 27, 2008.” (emphasis original). Further, she stated she did “not seek to set aside the parties' settlement agreement, but seeks resolution of issues not determined by the settlement agreement, including but not limited to payment by JOHN L. FERRIS of attorneys fees/expenses and expert witness fees/expenses.” (emphasis original). Her motion requested, in the alternative, the court reform the divorce decree “to provide that a judgment is entered against JOHN L. FERRIS and in favor of CYNTHIA FERRIS and/or her attorneys and experts for the amount due under the settlement agreement.”
        On August 20, the trial court held a hearing on these motions. At the hearing, Husband asserted a right to challenge the reasonableness and necessity of all attorneys' fees paid throughout the divorce proceedings. The court denied this motion and granted Wife's motion for new trial. The trial court ordered the Agreed Final Decree of Divorce set aside and granted a new trial on the unpaid attorneys' fees. Following this order, the parties reached a settlement on the issue of the attorneys' fees that were incurred through May 26, but had not been paid. On August 25, 2008, the parties filed with the court a Rule 11 Agreement that provided for a reduction of the attorneys' fees Husband was ordered to pay from $190,124.48 to $155,000. Furthermore, the agreement stated the settlement included “all issues regarding attorney's fees” and expert fees billed from April 29, 2008 forward.
        On October 9, 2008, the trial court signed a new decree entitled “Agreed Amended Final Decree of Divorce.” This amended decree incorporated the terms from the Rule 11 Agreement that was filed on August 25. The amended decree further stated, “The Court rules that the mediated settlement agreement resolved the issue of a challenge to the fees incurred by the parties prior to April 29, 2008.”
        Upon the written request of Husband, the trial court signed Findings of Fact and Conclusions of Law dated November 12, 2008. Those findings and conclusions follow below in their entirety:
 
1. The Court did receive evidence in the form of the Parties' written Settlement Agreement and the Final Decree of Divorce regarding John L. Ferris' right to challenge for reasonableness the attorneys fees paid prior to 29 April 2008. The Court finds Parties knowingly entered into an irrevocable agreement which granted a full and complete release of the parties and their agents. The Court further finds the terms of this agreement were incorporated into the Final Decree of Divorce.
 
 
 
2. The Court further concludes that the settlement agreement signed 27 May 2008, is not ambiguous, and may be interpreted as a matter of law from the four corners of the Agreement.
 
 
 
3. The Court rules that the settlement agreement resolved the issue of a challenge to the fees incurred by the parties prior to April 29, 2008. The Court finds that as a matter of law the settlement agreement precludes John L Ferris' right to challenge the reasonableness of attorney fees paid prior to 29 April 2008.
 
        On November 10, 2008, Husband filed a motion for new trial, arguing he was entitled to discovery and a hearing on the reasonableness and necessity of Wife's attorneys' fees. That motion was overruled by operation of law. On December 22, 2008, Husband filed a notice of appeal.
 
II. STANDARD OF REVIEW AND APPLICABLE LAW
 
         “We review the trial court's conclusions of law de novo to determine whether they are correct.” OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 736 (Tex. App.-Dallas 2007, pet. denied)(citing McIntyre v. Comm'n for Lawyer Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, pet. denied); Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 906 (Tex.App.-Dallas 2005, pet. denied)). “Interpretation of an unambiguous contract is purely a question of law, which we review de novo.”   See Footnote 3  Jarvis v. Rocanville Corp., 298 S.W.3d 305, 316 (Tex. App.-Dallas 2009, pet. denied); MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999). “The entire instrument, taken by its four corners, must be read and considered to determine the true intention of the parties.” Worldwide Asset Purchasing, L.L.C. v. Rent-A-Center East, Inc., 290 S.W.3d 554, 560 (Tex. App.-Dallas 2009, no pet.) (citation omitted). We review unambiguous contracts without considering parol evidence. See Stewman Ranch, Inc. v. Double M. Ranch, Ltd., 192 S.W.3d 808, 810 (Tex. App.-Eastland 2006, pet. denied)(citing Middleton v. Broussard, 504 S.W.2d 839 (Tex. 1974)).
        “When interpreting a contract, courts examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless.” Worldwide Asset Purchasing, 290 S.W.3d at 560 (citations omitted); see also Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “In harmonizing [the] provisions, terms stated earlier in an agreement must be favored over subsequent terms.” Coker, 650 S.W.2d at 393. Additionally, “specific and exact terms are given greater weight than general language.” Worldwide Asset Purchasing, 290 S.W.3d at 560-61 (citations omitted). “We give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.” Heritage Res., Inc. v. NationsBank, 939 S.W.2d 119, 121 (Tex. 1996). Furthermore, we must also refer to documents incorporated by reference. See In re Bank One, 216 S.W.3d 825, 826 (Tex. 2007) (orig. proceeding) (per curiam) (“Documents incorporated by reference . . . are part of the contract.”).
 
III. APPLICATION OF LAW TO FACTS
 
        We interpret Husband's fifth issue to take issue with all of the trial court's Findings of Fact and Conclusions of Law. The trial court concluded the Settlement Agreement “resolved the issue of a challenge to the [attorneys'] fees incurred by the parties prior to April 29, 2008" and it “preclude[d] John L. Ferris' right to challenge the reasonableness of attorney[s'] fees paid prior to 29 April 2008.” Although he complains generally of all three findings, Husband specifically argues the trial court's interpretation of the Settlement Agreement was in error as a matter of law. In response, Wife argues the “parties settled and released all their pending claims by virtue of their [S]ettlement [A]greement.” We agree.        
        While acknowledging the Settlement Agreement incorporates a full and final settlement and complete release of all claims between the parties, Husband argues his right to challenge the reasonableness and necessity of his wife's attorneys' fees was preserved and carved out by paragraph 2.8 of the Settlement Agreement. That paragraph states, in relevant part:
 
AS FURTHER CONSIDERATION FOR THIS AGREEMENT, that attorney's, court costs, expert witness fees, court reporters' fees, and all other expenses incurred on each party's behalf as of May 26, 2008, whether or not invoiced as of May 26, 2008, shall be paid pursuant to the Temporary Orders entered in this cause.
 
(emphasis added). He asserts the “pursuant to” language includes and incorporates all provisions of the “Temporary Orders” and that he has a right to make a challenge to Wife's attorneys' fees even after a judgment of divorce was rendered. At oral submission, Husband's counsel argued the right to challenge Wife's attorneys' fees could continue after the divorce decree was final and “it might exist in - in perpetuity.” However, Wife disagrees that Husband has a continuing right to object and argues the word “paid” in paragraph 2.8 refers to nothing other than payment of attorneys' fees. She contends, inter alia, no provision is made in the Settlement Agreement or the incorporated “Temporary Orders” to carve out a continuing right to object after the divorce decree was rendered.
        Central to our interpretation of the Settlement Agreement is the meaning of the term “Temporary Orders” referred to in the Settlement Agreement. Husband contends that term incorporates three documents: (1) the “Agreed Temporary Orders,” dated February 15, 2006, (2) the “Order on Payment of Attorney Fees,” dated September 7, 2007, and (3) the “Rule 11 Agreement,” signed by counsel for Husband apparently on July 17, 2006   See Footnote 4  and referred to in the September 7, 2007 order. The order entitled “Agreed Temporary Orders” states, in pertinent part:
 
The Court finds that Petitioner's attorney has been paid $15,000.00 as of this date, and that Respondent's attorney has been paid $7,500.00 as of this date. IT IS ORDERED that Petitioner's attorney be paid an additional $17,500.00 for interim attorney's fees and expenses, and that Respondent's attorney be paid an additional $25,000.00 for interim attorney's fees and expenses. IT IS ORDERED that the interim fees and expenses be paid from community funds payable by Respondent on or before February 16, 2006. IT IS FURTHER ORDERED that the attorneys for each party shall produce their billing statements by facsimile for the prior month on the 10th day of the month following that month's billing, beginning March 1, 2006 (February billing). IT IS FURTHER ORDERED that billing statements may be redacted for work product and attorney-client purposes only, but must include sufficient information for counsel to assess the reasonableness and necessity of the fees and expenses.
 
Also in pertinent part, the “Order on Motion for Payment of Attorney Fees” states:
 
IT IS ORDERED that based on the Rule 11 Agreement previously entered by the parties, John L. Ferris is ORDERED to pay Petitioner's attorneys' invoices as submitted within ten days without prejudice to [the] right to file [a] motion questioning line items.
 
The Rule 11 Agreement states, in relevant part:
 
 
3. Ms. Ferris' attorneys will submit their billing statements and cost to Mr. Ferris attorney's office each month for payment by Mr. Ferris. Mr. Ferris' attorneys will provide a copy of their billing statements and cost to their opposing counsels each month, [sic] Mr. Ferris is ORDERED to pay the invoice and cost amount in no less than 10 days from the date it is presented to Mr. Ferris's attorneys.
 
 
 
4. Both parties shall have the right to challenge the reasonableness or necessity of the monthly invoices, but shall not have the right to withhold payment based on that allegation. The objection shall be brought under a separate motion and set before the court for a hearing with notice to each side.
 
        In plain language, the February 15, 2006 “Agreed Temporary Orders,” the September 7, 2007 order, and the July 17, 2006 Rule 11 Agreement collectively provide for six things: (1) attorneys' fees shall be paid by Husband “from community funds;” (2) the day of the month that each party's attorney shall produce their invoices; (3) “billing statements may be redacted for work product and attorney-client [privilege] purposes only, but must include sufficient information for counsel to assess the reasonableness and necessity of the fees and expenses”; (4) Husband will pay Wife's attorneys' invoices no less than ten days after receiving them; (5) “both parties shall have the right to challenge the reasonableness or necessity of the monthly invoices, but shall not have the right to withhold payment based on that allegation;” and (5) any objection to the fees “shall be brought under a separate motion and set before the court for a hearing with notice to each side.”
        Husband argues in order for us to properly interpret the Settlement Agreement, we must read together paragraph 2.8 of the Settlement Agreement, the three documents referenced above, and paragraph 4.3 of the Settlement Agreement. Paragraph 4.3 states Husband has “no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by [Husband], which is not subject to and fully released by [the] Settlement Agreement, except for matters as may be expressly excluded” in the agreement. Husband argues the incorporation clause in paragraph 2.8, which states that attorneys' fees “shall be paid pursuant to the Temporary Orders,” wherein he claims his rights to object are set out, is an express exclusion as described by paragraph 4.3. We disagree.
        The language of paragraph 2.8 is clear. That paragraph is described by the parties as “FURTHER CONSIDERATION FOR THIS AGREEMENT” not as a reservation of rights (emphasis original). Paragraph 2.8 states, in two clauses, the parties' responsibility for payment of attorneys fees and expenses. The first clause provides attorneys fees and expenses “incurred on said party's behalf as of May 26, 2008 . . . shall be paid pursuant to the Temporary Orders . . . .” (emphasis added). The second clause states that subsequent to May 26, 2008, each party is “solely responsible for the payment of their respective attorneys' fees” and expenses (emphasis added). The word “pay” in the first clause as to attorneys' fees and expenses incurred through May 26, and the word “payment” as to the attorneys' fees and expenses incurred after that date, are the only two operative terms that describe how attorneys' fees and expense obligations will be addressed by the parties. The language of the three documents referred to as the “Temporary Orders,” which are incorporated by reference, address several obligations. In the July 17, 2006 Rule 11 Agreement, Husband's obligation to pay Wife's attorneys' fees and expenses is expressly stated as being independent of the right to object. The Rule 11 Agreement states, in relevant part:
 
3. . . . Mr. Ferris is ORDERED to pay the invoice and cost amount in no less than 10 days from the date it is presented to Mr. Ferris's attorneys.
 
 
 
4. Both parties shall have the right to challenge the reasonableness or necessity of the monthly invoices, but shall not have the right to withhold payment based on that allegation. The objection shall be brought under a separate motion and set before the court for a hearing with notice to each side.
 
(emphasis added). This Rule 11 Agreement makes it clear that “payment”of attorneys' fees and “objections” to attorneys' fees are set out in the “Temporary Orders” as entirely separate propositions.
        Husband correctly argues we must construe the Settlement Agreement as a whole, within its “four corners” and the incorporated “Temporary Orders.” He further asserts we may not consider the attorneys' fees, release, and warranty provisions of the Settlement Agreement in isolation from each other. We agree. It is well settled law that we must “examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless.” Worldwide Asset Purchasing, 290 S.W.3d at 560. Husband further urges us to recognize the contractual interpretation rule that “specific terms are to be given greater weight than general language.” Id. at 560-61. We agree we should follow that contract law directive as well.
        Considering the foregoing, we conclude the specific language of paragraph 2.8, providing that attorneys' fees and expenses will be “paid” pursuant to the incorporated “Temporary Orders,” does not conflict with the more general language of the warranty and release in 4.3. Rather, the provisions are in harmony. The language of paragraph 2.8, “shall be paid pursuant to the Temporary Orders,” does not incorporate all provisions of the Temporary Orders. Rather, it can only be fairly read to incorporate those provisions in the “Temporary Orders” dealing with payment of attorneys' fees and expenses. The entirely separate provision as to objections to attorneys' fees is not referred to in any way in paragraph 2.8. The claimed right to object, set out in the “Temporary Orders,” cannot be construed as being reserved by the language in paragraph 2.8 that only addresses payment. We conclude neither paragraph 2.8, nor any other part of the Settlement Agreement contains as reservation of a right to object to Wife's attorneys' fees. Further, we conclude the Settlement Agreement unambiguously waives and releases any rights Husband may have had to object to his wife's attorneys' fees.
III. CONCLUSION
 
        We conclude the trial court did not err in interpreting the Settlement Agreement as a waiver of any and all claims, and that Husband has no continuing right to challenge the reasonableness and necessity of Wife's attorneys' fees. The trial court's conclusion of law were not in error and they support the final judgment, which we affirm. Because Husband's issue number five is dispositive, we do not consider his remaining issues. Additionally, Wife's request for damages is denied.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
081705F.P05
 
 
 
Footnote 1 At the May 27th hearing, Husband testified:
 
 
Q. And you had an opportunity to fully read [the settlement agreement]; is that right?
A. Yes
Q. And do you understand it?
A. I believe so, yes.
Q. Okay. Are there any other questions that you have that you feel like you have had not [sic] answered as of this moment?
A. No.
Q. Okay. And, again, we have gone through extensive discovery in this case; is that correct?
A. Yes.
Q. And do you feel like you have all the information that you needed to make a fully informed settlement agreement?
A. Yes.
 
Also at that hearing, Wife similarly testified:
 
 
Q. Ms. Ferris, do you feel like you've had sufficient time to consider the agreement that's being presented to the Court today?
A. Yes.
Q. Okay. And do you feel like you've had sufficient time to read through the Full and Final Settlement and Release Agreement that's been signed by both you and Mr. Ferris?
A. Yes.
Q. Okay. And this case has been pending for about two and a half years; is that correct?
A. Yes.                                
Q. Okay. And we've had an opportunity to do extensive discovery to investigate all of the potential claims that both you and Mr. Ferris have had; is that correct?
A. Yes.
Q. As of this time today, is there any additional information that you believe that you need that you don't currently have in order to reach a settlement agreement?
A. I don't think so.                                 
Footnote 2 Wife answered “Yes” when asked: “And do you understand that by reaching a settlement in this case that both you and Mr. Ferris are conceding and settling all of the potential claims that you have raised against each other with regard to characterization and reimbursement?” Similarly, Husband answered “Yes” when asked: “And you understand that all - by signing this and proving this up today that all pending claims that you had are resolved?”
Footnote 3 The parties state the Settlement Agreement is an unambiguous contract. The trial court also considered it unambiguous. We agree.
Footnote 4 The Rule 11 Agreement is not dated and is not in the Clerk's Record provided to this court, except as an exhibit to the parties' motions for new trial. In their brief, both parties state the agreement was signed on July 17, 2006.