"Gross mistake" challenge to arbitration award under TAA rejected in appeal from confirmation order

A few years ago the U.S. Supreme Court held that the statutory grounds provided in sections 10 and 11 of the Federal Arbitration Act (FAA) for vacating, modifying, or correcting an arbitration award are the exclusive grounds for vacature of an arbitration award. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S. Ct. 1396, 1403 (2008). The Texas Supreme Court, by contrast, has yet to decide whether common law grounds for attacking an arbitration award under the Texas Arbitration Act (TAA) are viable. See E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 270 n.7 (Tex. 2010) ("We express no opinion on this issue [of whether an arbitration under the TAA can be set aside on common law grounds.]." In a case decided last week, the First Court of Appeals in Houston entertained a challenge on the basis of “gross mistake”, and rejected it on the merits. The appellate panel, which upon rehearing had shrunk from three to two, also rejected other common-law grounds for vacature in an opinion written by Chief Justice Radack. Justice Elsa Alcala, a member of the original panel, was no longer on the Houston Court to revisit the issues on motion for re-hearing due to her elevation to the Texas Court of Criminal Appeals by gubernatorial appointment.  

Ouzenne v. Haynes,  No. 01-10-00112-CV (Tex.App.- Houston [1^st Dist] April 12, 2012)(substituted opinion following motion for rehearing, which was denied)

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

We deny appellant's motion for rehearing; however, we withdraw this Court's opinion of May 12, 2001, and issue this opinion in its stead. Our judgment of May 12, 2011 remains unchanged.

This is an appeal from an order confirming an arbitration award in favor of appellee, Carnell Haynes, on his claims against appellant, Paul Ouzenne, arising out of a construction contract. In seven issues on appeal, Ouzenne contends the trial court erred in confirming the award because the arbitrator (1) made a "gross mistake," (2) exceeded his powers, and (3) violated public policy and the law. We affirm.

BACKGROUND

According to his petition, Haynes approached Ouzenne about the possibility of Ouzenne building a four-plex apartment structure on Haynes's property. In December 2006, Haynes and Ouzenne signed a construction contract for the proposed four-plex. Unable to obtain financing for the project himself, Haynes alleged that Ouzenne told him that he would obtain the financing for Haynes. Thereafter, Haynes alleged that Ouzenne had him sign a contract of sale for the property from Haynes to Ouzenne. Haynes did so because he believed that it was necessary to obtain financing for the building project, but he did not realize that he would be transferring title to the property to Ouzenne. Thereafter, Ouzenne gave Haynes notice that he intended to evict Haynes from the property.

In response, Haynes sued Ouzenne in 2007, asserting common-law fraud, statutory fraud, breach of fiduciary duty, promissory estoppel, and violations of the Texas Deceptive Trade Practices Act. Ouzenne filed a motion to compel arbitration, which the trial court granted.

After an arbitration before C. Johnson at the Dispute Resolution Center of Harris County, the arbitrator issued an award in Haynes's favor for $136,410.60, plus pre and post-judgment interest. Haynes moved to enter judgment based on the arbitrator's award, and Ouzenne moved to vacate the arbitrator's award. On December 15, 2009, the trial court granted Haynes's motion, denied Ouzenne's motion, and entered a judgment confirming the arbitrator's award. After the trial court denied Ouzenne's motion for new trial, this appeal followed.

CONFIRMATION OF ARBITRATION

Standard of Review

Review of a trial court's decision as to vacatur or confirmation of an arbitration award is de novo and an appellate court reviews the entire record. In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex. App.-Dallas 2009, pet. denied); see also Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 567-68 (Tex. App.-Dallas 2008, no pet.) (discussing standard of review for confirmation of award). Because Texas law favors arbitration, however, our review is "extremely narrow." See Hisaw & Assocs. Gen. Contractors, Inc. v. Cornerstone Concrete Sys., Inc., 115 S.W.3d 16, 18 (Tex. App.-Fort Worth 2003, pet. denied); IPCO-G. & C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 256 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). An arbitration award has the same effect as a judgment of a court of last resort; accordingly, all reasonable presumptions are indulged in favor of the award and the award is conclusive on the parties as to all matters of fact and law. CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002). Review of an arbitration award is so limited that even a mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground for vacating an award. Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.-Dallas 2004, pet. denied). Here, the parties agree that the Texas Arbitration Act governs their case. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.001-.098 (Vernon 2001).

Gross Mistake

In issues one, two, four, and seven, appellant contends the trial court erred in failing to vacate the arbitration award because the arbitrator committed a "gross mistake"[1] by (1) entering an award that relied on tax appraisals for determining fair market value (issues one and two), (2) failing to consider evidence that Haynes was aware and fully intended to sell his property to Ouzenne (issue four), and (3) failing to properly apply the parol evidence rule (issue seven).

Gross mistake is a Texas state common law standard that has been used to attack arbitration awards. Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002). A "gross mistake" is a mistake by the arbitrator that implies bad faith or failure to exercise honest judgment. Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex. App.-Houston [14th Dist.] 1995, no writ) (quoting Carpenter v. N. River Ins. Co., 436 S.W.2d 549, 551 (Tex. App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.)). Ouzenne argues that relying on the tax rolls to determine value was a gross mistake because tax rolls are no evidence of actual value. In support, Ouzenne relies on Housing Auth. of Dallas v. Brown, 256 S.W.2d 656, 659 (Tex. Civ. App.-Dallas 1953, no writ), which held that error, if any, in refusing to admit evidence of tax value was harmless because "tax rolls do not reflect actual value," but an "approximate percentage of actual value." Id. Brown, however, does not state that the value as reflected on the tax rolls is of no probative value.

Ouzenne also relies on In re Marriage of Scott, 117, S.W.3d 580, 585 (Tex. App.-Amarillo 2003, no pet.), which we also find distinguishable. In Scott, the wife in a divorce case presented evidence that the marital home was valued at $35,610. Id. at 583. She reached this value by relying on the tax appraisal from Hutchison County Appraisal District. Id. at 585. The court of appeals held this evidence of value was factually insufficient because the tax appraisal was over three years old on the date of trial and two experts, including the wife's own expert, valued the property at much more. Id. Scott, however, does not stand for the proposition that tax appraisals are no evidence, i.e., legally insufficient evidence, of fair market value.[2]

Thus, we conclude that the arbitrator's reliance on tax rolls to determine value does not rise to a level that implies the bad faith or failure to exercise honest judgment required to show gross mistake.

Ouzenne also argues that the arbitrator committed gross mistake by disregarding testimony indicating that Haynes knew that he was selling the property to Ouzenne. However, contentions that an arbitrator disregarded even uncontroverted testimony may show a mistake of fact or law, but do not rise to the level of gross mistake. See Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 689 (Tex. App.-Dallas 2009, no pet.). Furthermore, as fact-finder, the arbitrator could judge the credibility of the witnesses and choose who to believe or disbelieve. See Xtria L.L.C. v. Intern. Ins. Alliance, Inc., 286 S.W.3d 583, 597 (Tex. App.-Texarkana 2009, pet. denied).

Thus, we conclude that the arbitrator's decision to believe Haynes's evidence over Ouzenne's, even if erroneous, does not rise to a level that implies the bad faith or failure to exercise honest judgment required to show gross mistake.

Finally, Ouzenne contends that the arbitrator committed a "gross mistake" by failing to properly apply the parol evidence rule. The arbitrator's evidentiary ruling, even if erroneous, does not rise to a level that implies the bad faith or failure to exercise honest judgment required to show gross mistake. See Anzilotti., 899 S.W.2d at 266 (holding that mistake of law is insufficient to set aside arbitration award).

To the extent that points of error one, two, four, and seven claim that the arbitrator failed to give an honest consideration resulting in a gross mistake, they are overruled.

Exceeds Powers

In issue three, Ouzenne contends the arbitrator exceeded his powers, which is a statutory ground for vacating an arbitration award under section 171.088(a)(3)(A) of the Civil Practices and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a)(3)(A). The authority of arbitrators is derived from the arbitration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication. Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959); see also Allstyle Coil Co., L.P., v. Carreon, 295 S.W.3d 42, 44 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (stating scope of authority depends on the agreement). Arbitrators exceed their powers when they decide matters not properly before them. Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc., 294 S.W.3d 818, 829 (Tex. App.-Dallas 2009, no pet.); Barsness v. Scott, 126 S.W.3d 232, 241 (Tex. App.-San Antonio 2003, pet. denied).

Ouzenne argues that the arbitrator exceeded his powers because the arbitration agreement requires that all disputes "be resolved by binding arbitration in accordance with the rules of the American Arbitration Association ["AAA"]," and the arbitrator was not selected in accordance with those rules. Instead, Ouzenne complains that the "parties were ordered to binding arbitration at the Harris County Dispute Resolution Center," which "unilaterally selected the Arbitrator, without providing a selection process."

However, the record shows that Ouzenne did not object to the method of appointing the arbitrator until after the arbitration was completed. In fact, Ouzenne did not complain about the method for appointing the arbitrator until he filed his motion for new trial after the trial court confirmed the award.

The AAA rules upon which Ouzenne rely provide that a party must object to the jurisdiction of the arbitrator in a timely manner. See Thomas Petroleum, Inc. v. Morris, No. 01-09-01065-CV, 2011 WL 742651, at *3, (Tex. App.-Houston [1st Dist.] Mar. 3, 2011, no pet.) (citing EMPLOYMENT ARBITRATION RULES AND MEDIATION PROCEDURES, Rule 6(c) (formerly known as NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT DISPUTES)). The same is true under Texas common law. Id. (citing L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 352-53 (Tex. 1977) (holding that, when both parties participate in arbitration proceedings, neither unequivocally withdraws its consent to arbitrate, and arbitration proceedings result in award, award is valid and enforceable)).

Thus, Ouzenne's right to complain about the method by which the arbitrator was selected is waived. See Slaughter v. Crisman & Nesbit, 152 S.W. 205, 207-08 (Tex. Civ. App-San Antonio 1912, no writ) (holding that when party to arbitration appeared and offered testimony before and after appointment of third arbitrator, he waived any irregularity in procedure occurring before the appointment of third arbitrator as required by agreement).

Because Ouzenne participated in the arbitration without complaining about the method by which the arbitrator was selected until after the arbitration was concluded and a judgment thereon was confirmed, the trial court did not err by concluding that the arbitrator did not exceed his authority by deciding matters not properly before him.

We overrule issue three.

Violates Public Policy and the Law

In issues five and six, Ouzenne contends the trial court erred in failing to vacate the arbitration award because it "violates public policy and the law." Specifically, Ouzenne complains that (1) the arbitration award did not specify a "laundry list" DTPA violation, and (2) was not based on a good or service as defined by the DTPA.

Ouzenne's claim, however, is not that the award should be vacated because it is unlawful,[3] but that the trial court committed an error of law. And, although Ouzenne claims that the award violates public policy, he cites no way in which the award violates "carefully articulated, fundamental policy." CVN Group, 95 S.W.3d at 239.

"[A]lleged errors in the application of substantive law by the arbitrators during the proceedings in arbitration are not reviewable by the court on a motion to vacate an award." Jamison & Harris v. Nat'l Loan Investors, 939 S.W.2d 735, 737 (Tex. App.-Houston [14 Dist.] 1997, writ denied). A mistake of fact or law is insufficient to set aside an arbitration award. Anzilotti, 899 S.W.2d at 266.

We overrule issues five and six.

CONCLUSION

We affirm the judgment of the trial court.[4]

For footnotes, click below:

Chambers v. O'Quinn Arbitration Dispute Sequel: Opinion on Remand from the Texas Supreme Court Issued

First Court of Appeals, in an opinion by retired Justice Tim Taft issued Oct 1, 2009, decides issues remanded to it by the Texas Supreme Court in former clients' suit against O'Quinn, and finds no waiver of the right to arbitrate had occurred. The court also addresses conflicting provisions in the underlying arbitration agreement as to the applicability of the FAA and the TAA (aka TGAA), and rejects the argument that the lawsuit was improperly dismissed for want of prosecution. Chambers v. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Taft) (arbitration of attorney-client disputes, right to arbitrate not waived, conflicting provisions re applicability of Texas General Arbitration Act (TGAA) and Federal Arbitration Act (FAA) in arbitration agreement) OPINION ON REMAND FROM THE TEXAS SUPREME COURT This suit was brought by former clients, Bob Chambers and 182 others (“appellants”), against John O’Quinn, John M. O’Quinn, P.C., and John M. O’Quinn D/B/A O’Quinn & Laminack (“appellees”), for legal malpractice. Appellants appeal from the trial court’s orders dismissing their suit for want of prosecution and overruling their motion for reinstatement and new trial. In two points of error, appellants argue that the trial court erred in: (1) compelling arbitration under the terms of a compulsory arbitration clause in the attorney-client contract executed between themselves and appellees, and (2) dismissing the case for want of prosecution. We affirm. Background On November 23, 1999, appellants sued appellees for legal malpractice in connection with appellants’ representation and settlement of their toxic tort claims. Appellees responded with a motion to compel arbitration under the terms of a compulsory arbitration clause contained in a contingency fee agreement executed between the parties. On April 14, 2000, the trial court granted appellees’ motion to compel arbitration. On December 20, 2001, appellants petitioned for writ of mandamus in this Court, complaining of the order compelling arbitration. We issued an opinion on January 7, 2002, denying appellants’ petition for writ of mandamus because it was unverified. See In re Chambers, No. 01-01-01216-CV, 2002 WL 24567 (Tex. App.—Houston [1st Dist.] Jan. 7, 2002, orig. proceeding) (not designated for publication). On January 10, 2002, appellants filed a petition for writ of mandamus in the Fourteenth Court of Appeals, asking that court to order the trial court to withdraw its order compelling arbitration. In re Chambers, cause number 14-02-00020-CV in the Fourteenth Court of Appeals. The Fourteenth Court of Appeals issued an opinion on February 7, 2002, denying appellants’ petition for writ of mandamus. On March 18, 2002, appellants filed another petition for writ of mandamus in the Texas Supreme Court, which was also denied. In re Chambers, cause number 02-0154 in the Texas Supreme Court. On January 15, 2004, the trial court signed an order decreeing that “unless a final arbitration hearing on [appellants’] claims has commenced before the American Arbitration Association on or before July 9, 2004, [appellants’] claims shall be DISMISSED FOR WANT OF PROSECUTION.” On July 21, 2004, the trial court signed an order dismissing appellants’ suit for want of prosecution because no final arbitration hearing had commenced by July 9, 2004. On August 5, 2004, appellants filed a motion for reinstatement or new trial. After a hearing on August 20, 2004, the trial court denied appellants’ motion for reinstatement or new trial. On September 22, 2004, appellants appealed. While the appeal was pending, the parties proceeded to arbitration, with the arbitrator ultimately ruling in the appellees’ favor. Appellees filed a motion for summary judgment in those proceedings. The arbitrator granted appellees’ summary-judgment motion and entered an award that appellants take nothing on their claims. Appellants filed a new lawsuit to vacate the arbitration award. Cause number 2005-17972 was originally filed in the 113th District Court, HarrisCounty, Texas, but was transferred to the 61st District Court, Harris County, Texas. The same trial court that had dismissed appellants’ suit for want of prosecution, the 61st District Court, held a hearing on appellants’ application for vacatur. The trial court signed a final judgment on June 10, 2005, denying appellants’ request to vacate the arbitration award and confirming the arbitration award. Appellants filed another appeal among the same parties in this Court from the trial court’s June 10 final judgment. Appellants’ second appeal is cause number 01-05-00635-CV. Appellants moved to consolidate their first appeal with their second appeal. In an order dated June 28,2005, we denied appellants’ request to consolidate the appeals. This Court issued two separate memorandum opinions (1) affirming the judgment of the trial court confirming the arbitration award, Chambers, 2006 Tex. App. LEXIS 9006, at *19, 2006 WL 2974318, at *6, and (2) dismissing the appeal of the order compelling arbitration on jurisdictional grounds, 2006 WL 2853893, at *2 (not designated for publication). In dismissing the appellants’ first appeal, we concluded that mandamus was the proper remedy to review the trial court’s order compelling arbitration. 2006 WL 2853893, at *2. We concluded further that because appellants had already sought and been refused mandamus relief by this Court and the Fourteenth Court of Appeals, we lacked appellate jurisdiction and were bound by these previous rulings denying mandamus. Id. at *2. The Texas Supreme Court granted appellants’ petition for review and reversed, remanding the case for us to conduct a “review on the merits.” Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007). The mandate instructed that the case was being remanded “for further proceedings consistent with [the supreme court’s] opinion.” Id. We based our disposition on three holdings. See 2006 WL 2853893, at *2, 4. While not expressly addressing the last of our three holdings, the supreme court held that we had erred in concluding that we “lacked appellate jurisdiction,” and it reversed our judgment and remanded the case for us to review the appeal “on the merits.” Chambers, 242 S.W.3d 30 at 32. We thus construe the supreme court’s mandate as requiring this Court to consider, on remand, all of appellants’ challenges under their issues presented one and two. Standard of Review In determining whether to compel arbitration, the trial court must decide the following: (1) whether a valid, enforceable arbitration agreement exists, and (2) if so, whether the claims asserted fall within the scope of that agreement. Dallas Cardiology Assoc., P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex. App.— Texarkana 1998, pet. denied). If the answers to both prongs are affirmative, the trial court has no discretion but to compel arbitration and stay its proceedings pending arbitration. Id. The party seeking arbitration has the initial burden to establish his right to the remedy under the first prong; that is, to establish that a valid arbitration agreement exists. Id. Once the existence of an arbitration agreement has been established, a presumption attaches favoring arbitration. Id. At this point, the burden shifts to the opposing party to establish some ground for the revocation of the arbitration agreement. Such grounds include fraud, waiver, unconscionability, or that the dispute falls outside the scope of the agreement. Id. The trial court must resolve any doubt about these issues in favor of arbitration. Id. Appellate courts use a “no evidence” standard for review of the trial court’s factual determinations. See Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.—San Antonio 1996, no writ). Under that standard, we consider only the evidence that supports the fact finding, while disregarding the evidence to the contrary. Hearthshire Braeswood Plaza Ltd. P’ship v. Bill Kelly Co., 849 S.W.2d 380, 384 (Tex. App.—Houston [14th Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, the trial court’s finding must be upheld. See id. However, when the trial court decides a matter involving both factual determinations and legal conclusions, we employ the abuse of discretion standard to review. See Pony Express Courier Corp., 921 S.W.2d at 820. Under the abuse of discretion standard, we defer to the trial court’s factual determinations while reviewing legal conclusions de novo. Id. Pure legal conclusions or matters not involving extrinsic evidence, are subject to de novo review under the abuse of discretion standard. See id. at 820 n. 2; see also Fridl v. Cook, 908 S.W.2d 507, 511 (Tex. App.—El Paso 1995, writ dism’d w.o.j.). Order Compelling Arbitration Appellants argue in their first point of error that the trial court erred by granting appellees’ motion to compel arbitration because the compulsory arbitration clause in each agreement was void. Each contract, executed between O’Quinn and each individual appellant, contained the following language: X. ARBITRATION 10. Any and all disputes, controversies, claims or demands arising out of or relating to this Agreement or any provision hereof, the providing of services by Attorneys to Client, or in any way relating to the relationship between Attorneys and Client, whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. Any such arbitration proceeding shall be conducted in Harris County, Texas. This arbitration provision shall be enforceable in either federal or state court in Harris County, Texas pursuant to the substantive federal laws established by the Federal Arbitration Act. Any party to any award rendered in such arbitration proceeding may seek a judgment upon the award and that judgment may be entered by any federal or state court in Harris County, Texas having jurisdiction. The contracts also contained the following heading in capital letters at the top of the first page, “This contract is subject to arbitration under the Texas general arbitration statute.” A. “Personal Injury” A written agreement to arbitrate is valid and enforceable if an arbitration agreement exists and the claim asserted is within the scope of the agreement. Tex. Civ. Prac. & Rem. Code § 171.001 (Vernon 2005). However, an exception exists for personal injury claims which requires that each party to a claim, on the advice of counsel, agree to arbitration in writing. Tex. Civ. Prac. & Rem. Code Ann. § 170.002(a)(3),(c)(1) (Vernon 2005). The agreement must be signed by each party and each party’s attorney. Id. § 170.002(c)(2). Appellants urge that the instant suit is akin to a personal injury claim and that the execution of a written agreement to arbitrate should have been subject to the safeguards in section 170.002(a)(3). Appellants assert that, unlike ordinary commercial contractual relationships, the fiduciary nature of the attorney-client relationship dictates against an attorney’s ability to impose an arbitration condition on a client. In the instant case, appellants sued O’Quinn for breach of fiduciary duties and legal malpractice. Our sister courts are split on the issue of whether a legal malpractice suit is a claim for personal injury. See Taylor v. Wilson, 180 S.W.3d 627, 630 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). The majority of courts have held that legal malpractice claims are not claims for personal injury. Id. (holding legal malpractice claim is not claim for personal injury); Miller v. Brewer, 118 S.W.3d 896, 899 (Tex. App.— Amarillo 2003, no pet.) (same); In re Hartigan, 107 S.W.3d 684, 690 (Tex. App.—San Antonio 2003, pet. denied) (same). But see In re Godt, 28 S.W.3d 732, 739 (Tex. App.—Corpus Christi 2000, no pet.) (holding legal malpractice claim falls within personal injury exception and is included within scope of Texas Arbitration Act). Appellants request that we hold that in a legal malpractice case the test for deciding whether section 171.002 applies is whether the underlying case involves personal injury. We decline to do so. Instead, we adopt the reasoning of Fourteenth Court of Appeals in Taylor, upholding the majority view that legal malpractice claims are not claims for personal injury, and, therefore, arbitration agreements are enforceable in the context of a legal malpractice suit. See Taylor, 180 S.W.3d at 630 (holding legal malpractice claim is not claim for personal injury). The Taylor court examined the legislative history of the personal injury provision in the Texas Arbitration Act and found “no room for doubt in the legislature’s intent to restrict the meaning of the personal injury exception of the Texas Arbitration Act to physical personal injury.” Id. at 631. The court also noted that the plaintiff’s underlying claim was for economic losses rather than personal injury. Id. at 630. In the instant case, although appellants’ underlying claim was for personal injury, appellants’ malpractice claim is not, by virtue of this fact, transformed into a claim for personal injury. Rather, appellants’ legal malpractice claim remains a claim of economic injury. Thus, appellants’ malpractice claim is not excluded from arbitration. B. Failure to disclose material facts, seek advice of counsel Appellants also assert that the arbitration provisions are unenforceable because the O’Quinn firm failed to disclose the arbitration agreement and failed to adequately explain material facts and issues relating to arbitration. Additionally, appellants claim that none of them were advised to seek, or did seek, independent counsel with respect to arbitration and that public policy dictates that such safeguards be implemented with respect to compulsory arbitration agreements executed within an attorney-client relationship. Id. In support of their argument, appellants rely on the dissenting opinion of Chief Justice Phil Hardberger in Henry v. Gonzalez, 18 S.W.3d 684 (Tex.—San Antonio 2000, pet. dism’d). In Henry, former clients brought suit against their former attorneys alleging legal malpractice and breach of fiduciary duty, amongst other claims. Henry, 18 S.W.3d at 687. The clients also sought a declaratory judgment that an arbitration clause in the contract they executed with their former attorney was unenforceable and void. Id. The court determined that a valid arbitration agreement existed, and rejected the clients’ arguments that they were fraudulently induced to sign the contract. Id. at 692. In his dissent, Hardberger reasoned that the “fundamental fiduciary nature of the attorney-client relationship dictates against an attorney’s ability to impose an arbitration condition on a client.” Id. at 693. Hardberger opined, “Clients are often in vulnerable positions, requiring them to bestow a large amount of trust in their attorneys . . . Applying general contractual principles to an arbitration provision in the attorney-client context ignores the practical reality that in most instances the attorney and his or her client are not engaged in an arm’s length transaction during their initial negotiations.” Id. Hardberger concluded that attorneys generally have a greater advantage over their clients in an arbitration setting. Id. Appellants argue, as did Hardberger, that emerging national trends require attorneys to observe and satisfy safeguard requirements in order to enforce an arbitration agreement inserted into an attorney-client contingent fee contract. Id. We decline to extend Justice Hardberger’s reasoning to this case. Whether to impose conditions upon the enforceability of arbitration provisions between attorney and client is a matter for the legislature, not the courts. As previously noted, the legislature has imposed certain conditions with respect to personal injury claims, requiring that agreements to arbitrate such claims be in writing and entered into on the advice of counsel. Tex. Civ. Prac. & Rem. Code Ann. § 171.002(c) (Vernon 2005). The legislature’s failure to impose such conditions on attorney-client contracts, while expressly recognizing them in other contexts, indicates that the legislature did not intend to impose such conditions. See Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) (holding “[w]hen the Legislature has employed a term in one section of a statute and excluded it in another, we presume that the Legislature had a reason for excluding it.”) C. Waiver of Right to Jury Trial Appellants also argue that the agreement impermissibly waives their right to a jury trial. The San Antonio Court of Appeals previously rejected this argument in Gonzalez. There, the court stated that “well established caselaw favors mandatory arbitration and holds that arbitration does not deny parties their right to a jury trial, as a matter of law.” Gonzalez, 18 S.W.3d 684, 691 (citing Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992)). Moreover, a difference exists between a jury trial waiver and an agreement to arbitrate disputes. Arbitration is an agreement to resolve disputes out of court in the first instance, not an agreement to waive a particular constitutional right available within the judicial process. D. Wilson Const. Co., Inc. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 231 (Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.). When a party contractually agrees to arbitrate a dispute, it waives its rights to recourse in the courts. Id. Because arbitration does not deny parties their right to a jury trial as a matter of law, we reject appellants’ argument. D. The Federal Arbitration Act Appellants next assert that appellees are not entitled to arbitration because federal, rather than Texas law, controls under the terms of the contract. Texas law holds that the Federal Arbitration Act is not applicable to an attorney-client contract that does not relate to interstate commerce. In re Godt, 28 S.W.3d at 737. Thus, appellants argue it is upon O’Quinn as the promoter of arbitration to prove that this agreement involves interstate commerce. Specifically, appellants state that the agreement “does not contain any language providing that Texas law may govern the arbitration agreement or that arbitration shall be enforceable under the Texas Arbitration Act.” Provision 10 of the contract states that “any and all disputes . . . arising out of or relating to this Agreement . . . shall be resolved by binding arbitration pursuant to the Federal Arbitration Act[.]” The contract also provides, “This arbitration provision shall be enforceable in either federal or state court in Harris County, Texas pursuant to the substantive federal laws established by the Federal Arbitration Act.” Appellees acknowledge that the contract references the Federal Arbitration Act, but they suggest that these references to federal law must be harmonized with the notice at the top of the first page of the contract, which states in capital letters, “This contract is subject to arbitration under the Texas general arbitration statute.” The San Antonio Court of Appeals was confronted with a similar set of facts in Henry. Henry, 18 S.W. 3d at 688. There, provision 10 of the attorney-client contract stated that the “Agreement shall be construed under and in accordance with the laws of the State of Texas . . . .” Id. However, provision 11 provided that all disputes “shall be resolved by binding arbitration pursuant to the Federal Arbitration Act . . . .” Id. The contract also contained a clause that appeared in all capital letters above the signature lines stating, “This contract is subject to arbitration under the Texas General Arbitration Statute.” Id. Thus, the contract in Henry was internally inconsistent as to whether the FAA or the TAA governed. Id. In concluding the dispute was governed by the TAA, the court referred to basic principles of contract interpretation. Id. In 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. Id. (citing Bush v. Brunswick Corp., 783 S.W.2d 724, 728 (Tex. App.—Fort Worth 1989, writ denied)). If the provisions of the contract appear to conflict, they should be harmonized, if possible, to reflect the intentions of the parties. Id. (citing Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex. 1983); Bush, 783 S.W.2d at 728). Courts cannot strike down any portion of a contract unless there is an irreconcilable conflict. Id. (citing Ogden, 662 S.W.2d at 332). After applying the above-referenced principles and determining that the two provisions in the contract were in irreconcilable conflict, the Henry court held that the TAA controlled the dispute. Id. The court noted that, although the contract stated that the FAA controlled, performance of the contract did not relate to interstate commerce and that the FAA is implicated in transactions relating to interstate commerce. Id. (citing Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996)). Therefore, the court struck down the provision relating to the FAA and concluded that the dispute was governed by the TAA. Id. The court reached its conclusion, in part, because the contract’s prominent bold type stated that any arbitration would be governed by the TAA, all parties involved in the suit were Texas residents, the contract was signed in Texas, the contract was to be performed in Texas only, and the dispute did not relate in any way to interstate commerce. Id. Similarly, the contract in the instant case (1) does not relate to interstate commerce, and (2) was executed between Texas residents in Texas, to be performed in Texas. Therefore, we hold that the TAA controls this dispute. See also In re Godt, 28 S.W.3d at 737 (holding that, where there existed a similar conflict, the TAA controlled where there was no evidence demonstrating that attorney-client agreement related to interstate commerce.) E. Texas Disciplinary Rule of Conduct 1.08(g) Appellants next argue that O’Quinn attempted to limit his liability in violation of Rule 1.08(g) of the Texas Disciplinary Rules of Professional Conduct. See Tex. R. Disciplinary P. 1.08(g), reprinted in Tex. Gov’ t. Code Ann., tit. 2, subtit. G (Vernon 2005). Rule 1.08(g) expressly forbids an attorney from entering into an agreement with a client that prospectively limits the attorney’s liability to the client unless (1) the agreement is permitted by law and (2) the client is independently represented in making the agreement. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 699 (Tex. 2000). Appellants claim that O’Quinn has, through arbitration, sought to limit appellee’s liability to appellants for the precise claims asserted in this litigation. Furthermore, by asking for separate arbitration in its motions, the O’Quinn Firm clearly sought to burden, and did burden, appellants with “arbitration costs” that made arbitration financially prohibitive. Arbitration is a means of dispute resolution and does not constitute a limitation on a party’s liability. See McGuire, Cornwell & Blakey v. Grider, 765 F.Supp. 1048, 1051 (D. Col. 1991) (holding that attorney arbitration clauses “do not prospectively limit lawyer liability to the client. Rather, they merely shift determination of the malpractice claim to a different forum.”) As appellees correctly note, appellants asserted in arbitration the identical causes of action they assert in the instant litigation and sought the same categories and amounts of damages. Thus, appellee’s liability is not limited as a practical matter. Moreover, the San Antonio Court of Appeals has held that a similar arbitration clause did not violate Disciplinary Rule 1.08(g), noting “the arbitration clause merely prescribes the procedure for resolving any disputes between attorney and client.” In re Hartigan, 107 S.W.3d 684, 689 (Tex. App.—San Antonio 2003, no pet.). The same description aptly applies, and thus the same result obtains here. Consequently, we hold that the arbitration clause in the instant case does not limit the liability to which appellees would otherwise be exposed, and therefore it does not violate Disciplinary Rule 1.08(g). F. Waiver Appellants claim that appellees waived their right to arbitrate. In support of their argument, appellants cite Sedillo v. Campbell, 5 S.W.3d 824, 826 (Tex. App.—Houston [14th Dist.] 1999, no pet.), for the principle that a party may impliedly waive arbitration by “engaging in some combination of filing an answer, setting up a counterclaim, pursuing extensive discovery, moving for a continuance and failing to timely request arbitration.” Sedillo, 5 S.W.3d at 827. Stated differently, a court may find that a party has waived its right to arbitration if such party substantially invokes the judicial process to the opposing party’s detriment. Id. Appellants suggest that this case compares favorably with the defendant’s actions constituting waiver in Sedillo. Id. There, the defendant: (1) answered the subject lawsuit and immediately filed a bankruptcy petition that was dismissed “based on bad faith”; (2) “filed numerous pleadings and motions in the court below without first seeking arbitration”; (3) filed a Response to Motion for Summary Judgment; (4) filed a jury demand and paid the jury fee; and (5) did not file its motion to stay proceedings in favor of arbitration until eleven months after plaintiff filed suit. Id. at 826–27. In comparing O’Quinn’s actions with Sedillo’s, appellant notes that O’Quinn filed an answer in the trial court and sought, before attempting to invoke arbitration, both a Rule 11 Agreement extending the time for answering and a sixty-day abatement of appellant’s suit under the Deceptive Trade Practices Act. Moreover, O’Quinn did not file a motion to stay proceedings in favor of arbitration until six months after suit had been filed. Appellant notes further that O’Quinn filed a companion suit against appellants’ attorneys, took depositions, and sought abatement in the companion case. Because public policy favors arbitration, there is a strong presumption against waiver, and any doubt about whether a party waived contractual arbitration rights must be resolved in favor of arbitration. Id. at 826– 27; In re Oakwood Mobile Homes, 987 S.W.2d 571, 573–74 (Tex. 1999); Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 590 (Tex. App.—Houston [14th Dist.] 1999, no pet.). After comparing Sedillo to O’Quinn’s actions in the instant case, we determine that no waiver occurred. A party invokes the judicial process only to the extent that it “litigates a specific claim it subsequently seeks to arbitrate.” Sedillo, 5 S.W. 3d at 827 (quoting Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 328 (5th Cir. 1999)). O’Quinn filed for arbitration within a reasonable time of answering appellants’ case and the fact that O’Quinn filed suit against appellants’ attorneys does not amount to litigation of this specific claim. Therefore, O’Quinn did not “substantially invoke” the judicial process, and the trial court did not abuse its discretion in holding that no waiver occurred. See In re Bruce Terminex Co., 988 S.W.2d 702, 705–06 (Tex. 1998) (holding no waiver even though party (1) did not file an application for arbitration within two years of suit being filed; (2) did not act to institute arbitration for more than 17 months after the trial court compelled arbitration; and (3) served discovery in the lawsuit that would not have been allowed in arbitration); see also Pennzoil Oil Co. v. Arnold Oil Co., 30 S.W.3d 494 (Tex. App.—San Antonio 2000, no pet.) (holding no waiver even though party, before requesting arbitration: (1) moved for change in venue; (2) served interrogatories and two sets of document requests; (3) participated in six depositions; (4) participated in docket control conference; (5) requested a jury; (6) requested an extension of trial date; (7) proposed protective order regarding discovery; (8) moved to compel discovery; and (9) moved for summary judgment). G. Texas Government Code section 82.065(a) Finally, appellants assert that the agreement, along with the arbitration clause, is void because it was not executed in conformance with section 82.065 of the Texas Government Code, which provides, “[a] contingent fee contract for legal services must be in writing and signed by the attorney and client.” Tex. Gov’ t Code Ann. § 82.065(a) (Vernon 2005). Appellants note that O’Quinn did not sign the agreements, although the clients did. Appellant’s argument that the contract is void due to the absence of O’Quinn’s signature is unavailing. In Enochs v. Brown, 872 S.W.2d 312, 318 (Tex. App.—Austin 1994, no writ), the Austin Court of Appeals examined the legal effect of a contingent fee agreement fully performed but not signed by the attorney. The court looked to the legislative purpose behind section 82.065 and determined that the statute was designed to prevent fraud. Id. The court determined that the statute accomplishes its purpose of guarding against fraud in contingent fee contracts and complies with the statute of frauds by requiring the party enforcing the contract to produce a written contract signed by the party to be charged. Id. We agree with the reasoning in Enochs. Consequently, because O’Quinn was the party enforcing the contingent fee agreement against appellants and because appellants, the clients, signed the agreements in the instant case, we hold that section 82.065(a)’s purpose has been fulfilled, and that the contract is not void. For all the aforementioned reasons, we hold that the trial court did not abuse its discretion in determining that a valid, enforceable arbitration agreement existed and that the claims asserted fell within the scope of that agreement. Mallick, 978 S.W.2d at 212. Thus, the trial court had no discretion but to compel arbitration. We overrule appellants’ first point of error. Dismissal for Want of Prosecution [This section omitted; see --> Hearing on Motion to Reinstate/Motion for New Trial may cure defect in notice or render it harmless error]

Conclusion We affirm the judgment of the trial court.

CASE DETAILS AND LINKS:

Chambers v. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Opinion on remand by Tim Taft) (arbitration of dispute arising from attorney-client relationship in mass tort litigation; right to enforce arbitration clause not waived; conflicting provisions concerning applicability of Texas General Arbitration Act (TGAA) and Federal Arbitration Act (FAA) in underlying arbitration agreement between attorney/law firm and clients)

Disposition by Court of Appeals: Affirm trial court order in favor of arbitration and dismissal of the lawsuit for want of prosecution

Opinion by Justice Tim Taft (retired)

Panel members: Justices Taft, Keyes and Hanks

Appellate cause number and link to docket: 01-04-01029-CV

Full case style: Bob Chambers, et al. v. John M. O'Quinn, individually dba O'Quinn & Laminack, and John M. O'Quinn, P. C.

Court below: 61st District Court of Harris County

Trial Court Judge: Hon. John Donovan

Are the FAA and TAA mutually exclusive?

FAA and TAA are not necessarily incompatible and mutually exclusive, as stated by the Dallas Court of Appeals in a recent opinion (see excerpt below); even when the parties' contractual relationship involves interstate commerce. Nor does the FAA necessarily preempt the Texas Arbitration Act when both apply. Preemption only comes into play when there is a conflict between state and federal act:

The Consulting Agreement does not state whether the Federal Act or the Texas Act applies to this suit. The Federal Act generally governs arbitration provisions in contracts involving interstate commerce. See 9 U.S.C. § 2 (2009); see also In re Morgan Stanley & Co., Inc., No. 07-0665, 2009 WL 1901635, at *1 (Tex. Jul. 3, 2009). “Interstate commerce” includes all contracts “relating to” interstate commerce. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) (orig. proceeding).

Appellees argue that the Consulting Agreement does not evidence a transaction involving interstate commerce. We disagree. The Consulting Agreement was executed by a Texas resident (Dr. Jain), a Delaware corporation (Medical Media Holdings), and a Delaware limited partnership (PER Group); notice under the contract was to be given to Dr. Jain in Texas and to PER Group and Medical Media Holdings in Rhode Island; and arbitration was required to take place in Chicago, Illinois. Additionally, the record establishes that PER Group and Dr. Jain provided services pursuant to the Consulting Agreement to “clients throughout the United States” and contemplated “holding meetings on both a nationwide and worldwide scope.” We conclude that the Consulting Agreement involves interstate commerce. See In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding) (per curiam).

The Federal Act, however, does not preempt the Texas Act simply because the contract involves interstate commerce. In re D. Wilson Constr. Co., 196 S.W.3d 774, 778-79 (Tex. 2006) (orig. proceeding). The Consulting Agreement states that it “is governed by, and will be enforced under and construed in accordance with, the internal laws of the State of Texas . . . .” The Texas Supreme Court has interpreted similar language as invoking both federal and state law. Id. And when both acts apply, the Federal Act will preempt the Texas Act only if the Texas Act is inconsistent with the Federal Act or affects the enforceability of the contract. Id. Because the parties do not assert that the Texas Act or state law would subvert the enforcement of the Consulting Agreement, we conclude that we have jurisdiction under both laws. And, because the Federal Act does not preempt the Texas Act, we will apply the Texas Act to our analysis.

SOURCE: Opinion of the Dallas Court of Appeals in Case No. 05-08-01582-CV (8/19/09)