Affirmed and Memorandum Opinion filed August 1, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00755-CV

                     PAUL STEVEN JACOBS, Appellant,
                                        V.

               MELISSA ELLEN FIELDS JACOBS, Appellee.

                   On Appeal from the 308th District Court
                               Harris County
                     Trial Court Cause No. 2011-14576


                 MEMORANDUM                     OPINION

      This accelerated interlocutory appeal arises from the trial court’s orders
granting temporary injunctive relief to appellee Melissa Ellen Fields Jacobs in her
action to enforce a mediated settlement agreement incident to the parties’ divorce.
In four issues, appellant Paul Steven Jacobs contends that the trial court had no
authority or jurisdiction to issue any orders and should have stayed Melissa’s
enforcement action because the trial court had previously ordered the parties to
arbitration. We affirm the trial court’s temporary orders. We also deny Melissa’s
Rule 45 motion for damages against Paul.

                                         I

      In November of 2011, Paul and Melissa entered into a Mediated Settlement
Agreement (MSA) to settle issues relating to the division of property upon their
divorce. Disputes arose in finalizing the divorce documents and Melissa moved to
compel arbitration under the terms of the MSA, which provide:

             7.     Arbitration. The parties shall submit all (a) drafting
      disputes, (b) issues regarding the interpretation (but not enforcement)
      of this [MSA] to Thomas O. Stansbury as an arbitrator, whose
      decision shall be binding on the parties, including decisions on the
      payment of attorneys’ fees and arbitration costs incurred as a result of
      the arbitration.

On December 13, 2011, the trial court granted Melissa’s motion and ordered the
parties to arbitration. Following the arbitration, the trial court signed an agreed
final decree of divorce on January 18, 2012. Neither party appealed from this
judgment.

      When Paul allegedly refused to transfer certain assets within his control to
Melissa, Melissa sued Paul in a new action to enforce the property division the
parties agreed to in the MSA. Among other things, Melissa sought temporary
injunctive relief to prevent Paul from hiding or secreting property which she
alleged had been partitioned to her. The trial court granted injunctive relief to
Melissa in temporary orders signed August 1 and 21, 2012. Paul appeals from
these orders.

                                         II

      On appeal, Paul contends that because the trial court had compelled the
parties to arbitration in December 2011, it had no jurisdiction to issue the
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temporary orders of August 1 and 21. As an alternative to his jurisdictional
argument, Paul also argues that the trial court abused its authority or its discretion
in signing the August 1 and 21 orders. For the same reason, Paul also contends the
trial court erred or abused its discretion by denying his motion to stay and his
motion to compel arbitration.

       In response, Melissa argues that Paul fails to acknowledge that the order
granting arbitration in December 2011 was issued in the parties’ prior divorce suit
to resolve drafting disputes concerning the MSA. The order expired, Melissa
maintains, when the parties executed an agreed final decree of divorce and the trial
court signed the judgment granting the divorce in January 2012.1 Melissa also
argues that arbitration would be improper in this enforcement action because issues
related to enforcement of the MSA were expressly excluded from the scope of the
arbitration agreement. Moreover, Melissa points out that the record does not show
that Paul filed any motions to compel or to stay the proceedings in this
enforcement action or that the trial court issued any rulings denying such relief.2

       To determine whether arbitration is required in any given situation, two
issues must be decided: (1) whether a valid, enforceable arbitration agreement
exists and, if so, (2) whether the claims asserted fall within the scope of the

       1
          Below, Paul appeared to take the position that the agreed final decree of divorce, signed
January 18, 2012, does not properly incorporate the terms of the MSA and contains no language
either rendering a judgment granting a divorce or dividing the community estate. However, Paul
does not urge this position on appeal, and we express no opinion on the merits of this argument.
       2
         Melissa also objects to documents Paul attached to his appellate brief which are not
included in the appellate record. This court has repeatedly held that documents attached to an
appellate brief which do not appear in the record may not be considered by the court. See, e.g.,
San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 815 n.4 (Tex. App.—Houston [14th
Dist.] 2008, no pet.); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d
769, 771 (Tex. App.—Houston [14th Dist.] 1991, writ denied). Therefore, we sustain Melissa’s
objection and disregard those documents.

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agreement. Tex. La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 879 (Tex.
App.—Houston [14th Dist.] 2011, no pet.); IKON Office Solutions, Inc. v. Eifert, 2
S.W.3d 688, 693 (Tex. App.—Houston [14th Dist.] 1999, no pet.). A court has no
discretion and must compel arbitration if the answer to both questions is
affirmative. IKON Office Solutions, Inc., 2 S.W.3d at 693.

       Melissa does not dispute that a valid arbitration agreement exists under the
terms of the MSA, but she argues that the claims asserted in her action to enforce
the partition of property upon divorce fall outside the scope of that arbitration
agreement.3 Whether the parties’ agreement imposes a duty to arbitrate a particular
dispute is a matter of contract interpretation and a question of law for the court.
Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex. App.—Houston [14th Dist.] 1994,
writ denied).

       When deciding whether claims fall within an arbitration agreement, courts
employ a strong presumption in favor of arbitration. In re Rubiola, 334 S.W.3d
220, 225 (Tex. 2011). In determining whether a claim falls within the scope of an
arbitration agreement, we focus on the factual allegations of the complaint, rather
than the legal causes of action asserted. Prudential Sec. Inc., v. Marshall, 909
S.W.2d 896, 900 (Tex. 1995). A court should not deny arbitration unless the court
can say with positive assurance that an arbitration clause is not susceptible of an
interpretation that would cover the claims at issue. Osornia v. AmeriMex Motors &
Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (citing Marshall, 909 S.W.2d at 899). Nonetheless, the strong policy in favor

       3
         In his appellate brief, Paul twice asserts that Melissa admitted or did not dispute that her
claims fall within the scope of the MSA, but Paul cites no place in the record in which Melissa
made such an admission concerning the claims made in her enforcement action and we have
found none. Despite Melissa’s argument that the arbitration agreement expired when the trial
court signed a judgment in the divorce action on January 18, 2012, or the purposes of this appeal
we presume the arbitration agreement still has some control over the parties’ dispute.

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of arbitration cannot serve to stretch a contractual clause beyond the scope
intended by the parties or allow modification of the unambiguous meaning of the
arbitration clause. Id.

      Melissa and Paul’s arbitration agreement provides that the parties “shall
submit all (a) drafting disputes, [and] (b) issues regarding the interpretation (but
not enforcement)” of the MSA to the arbitrator. A review of Melissa’s affirmative
pleading reveals that all of her claims and factual assertions are made for the
purpose of enforcing various terms of the MSA. Thus, by its plain language the
MSA clearly and unambiguously excludes Melissa’s enforcement action from the
scope of the arbitration provision. See id. at 714–15 (concluding that trial court did
not err by denying arbitration of claims outside scope of settlement agreement
entered into in prior lawsuit); IKON Office Solutions, Inc., 2 S.W.3d at 694–96
(concluding that plaintiff’s claims were not within the scope of narrow arbitration
clause).

      Paul does not attempt to discuss the specific language of the arbitration
provision or explain how Melissa’s claims allegedly fall within the provision’s
scope; instead, Paul argues that Melissa’s claims should be arbitrated because her
“pleadings and motions assert claims that only exist because of the MSA,” citing
Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 880 (Tex.
App.—Waco 1992, writ denied) (noting that appellees’ pleadings “assert claims
that could have only arisen because the account agreement existed”). Eddings is
distinguishable, however, because the arbitration clause in that case was broadly
written, requiring arbitration in “all controversies which may arise between us,
including but not limited to those involving any transaction or the construction,
performance or breach of this agreement. . . .” Id. at 880 (emphasis added). In
contrast, Melissa and Paul expressly excluded such claims from the scope of the

                                          5
MSA’s arbitration provision.

      Therefore, because the claims Melissa asserts in her enforcement action are
expressly excluded from the scope of the MSA’s arbitration provision, we
conclude that the trial court did not lack jurisdiction or authority to enter the
temporary orders in this case and did not err or abuse its discretion in failing to
order arbitration of Melissa’s claims. We overrule Paul’s issues and affirm the trial
court’s temporary orders.

                                           III

      In addition to responding to Paul’s appellate brief, Melissa also urges a
motion requesting that this court imposes damage under Texas Rule of Appellate
Procedure 45, arguing Paul’s appeal is frivolous. Melissa argues that she has
sought nothing other than to obtain possession and control of assets Paul agreed
should be partitioned and awarded to her upon divorce. According to Melissa,
Paul—a licensed attorney—has failed to comply with the MSA, and “his actions
and inactions in the underlying litigation have been designed solely to stonewall
and delay the trial court proceedings by refusing to transfer and/or refusing to
disclose the whereabouts of assets” previously awarded to her.

      Further, Melissa argues that Paul’s interlocutory appeal reflects further
unmeritorious conduct intended to delay her recovery and cause her to incur
substantial attorney’s fees and expenses. Specifically, she notes that Paul twice
requested supplementation of the appellate record for no apparent purpose,
obtained five briefing extensions, and also filed two requests with this court for an
emergency stay of the trial court proceedings, both of which were denied. Further,
Melissa argues that Paul’s appellate issues are “wholly frivolous” in light of her
response, and that Paul’s brief “either falsely represents or completely omits
significant factual matters and events.”
                                           6
      Texas Rule of Appellate Procedure 45 allows a court of appeals to award
“just damages” upon determining that an appeal is frivolous. Tex. R. App. P. 45.
Under Rule 45, this court may award just damages if, after considering everything
in its file, this court makes an objective determination that the appeal is frivolous.
Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.]
2011, pet. denied) (en banc). “To determine whether an appeal is objectively
frivolous, we review the record from the viewpoint of the advocate and decide
whether the advocate had reasonable grounds to believe the case could be
reversed.” Id. Rule 45 does not require this court to award just damages after every
frivolous appeal; rather, the award of damages is a discretionary decision
“exercise[d] with prudence and caution after careful deliberation.” Id.

      Although we are mindful of Melissa’s frustration with Paul’s attempts to
delay the proceedings below and in this interlocutory appeal, we cannot say that
Paul’s appeal is so objectively frivolous that sanctions should be imposed. We
therefore deny Melissa’s Rule 45 motion for damages for filing a frivolous appeal.

                                        ***

      We overrule Paul’s issues and affirm the trial court’s orders. We also deny
Melissa’s motion to impose Rule 45 damages against Paul.




                                       /s/       Jeffrey V. Brown
                                                 Justice



Panel consists of Justices Brown, Christopher, and McCally.



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