MICHAEL T. GALLAGHER AND CHRISTOPHER A. PRINE THE GALLAGHER LAW FIRM, PLLC (FORMERLY GALLAGHER,Clerk LEWIS, DOWNEY & KIM and THE GALLAGHER LAW FIRM, LLP) v. BRENT COON, INDIVIDUALLY and BRENT W. COON, P.C. d/b/a BRENT COON AND ASSOCIATES appellants brief

ACCEPTED
01-19-00015-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/7/2019 12:16 PM
CHRISTOPHER PRINE
CLERK

CAUSE NO. 01-19-00015-CV
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS

3/7/2019 12:16:29 PM
MICHAEL T. GALLAGHER AND CHRISTOPHER A. PRINE THE GALLAGHER LAW FIRM, PLLC (FORMERLY GALLAGHER,Clerk
LEWIS, DOWNEY & KIM and THE GALLAGHER LAW FIRM, LLP)

BRENT COON, INDIVIDUALLY and BRENT W. COON, P.C. d/b/a
BRENT COON AND ASSOCIATES

DENNIS WEITZEL

__________________________________________________________________

On Appeal from the 164th Judicial District Court, Harris County, Texas
Trial Court Cause No. 2018-52828
__________________________________________________________________

APPELLANT DENNIS WEITZEL’S BRIEF __________________________________________________________________

Oral Argument Requested
__________________________________________________________________

FOX ROTHSCHILD LLP
Michael S. Rumac
State Bar No. 24041835
mrumac@foxrothschild.com
Dana M. Hilzendager
State Bar No. 24106099
dhilzendager@foxrothschild.com

5420 LBJ Freeway, Suite 1200
Dallas, Texas 75240

(972) 991-0889 Attorneys for Appellant

IDENTITY OF THE PARTIES AND COUNSEL

Appellant:
Dennis Weitzel

Counsel for Appellant:

Michael Steven Rumac, State Bar No. 24041835, Fox Rothschild LLP, 5420 LBJ Freeway, Suite 1200, Dallas, Texas 75240, (214) 231-5745, (972) 404-0516 (Fax), mrumac@foxrothschild.com

Dana M. Hilzendager, State Bar No. 24106099, Fox Rothschild LLP, 5420 LBJ Freeway, Suite 1200, Dallas, Texas 75240, (214) 231-5751, (972) 404-0516 (Fax) dhilzendager@foxrothschild.com

Appellees:

Brent Coon, Individually, and Brent W. Coon, P.C. d/b/a Brent Coon and Associates.
Counsel for Appellee:

Lori K. Slocum, State Bar No. 24048597, Brent W. Coon, State Bar No. 04769750, Brent Coon and Associates, 215 Orleans Street, Beaumont, Texas 77701, (409) 835-2666, (409) 883-4483 (Fax)
Lori.Slocum@bcoonlaw.com

Additional Parties to Underlying Case:

Michael T. Gallagher and the The Gallagher Law Firm, PLLC (formerly Gallagher, Lewis, Downey & Kim and The Gallagher Law Firm, LLP).

Counsel for Additional Parties:

L. Boyd Smith, Jr., State Bar No. 18638400, The Boyd Smith Law Firm PLLC, 2904 Sackett Street, Houston, Texas 77098, (713) 343-8899, (713) 343-9265 (Fax) bsmith@boydsmithlaw.com

-and-

Ernest W. Boyd, State Bar No. 00783694, The Butch Boyd Law Firm, 2904 Sackett Street, Houston, Texas 77098, 713-589-8477, (713) 589-8563 (Fax) butchboyd@butchboydlawfirm.com

TABLE OF CONTENTS

I. STATEMENT OF THE CASE 1

II. STATEMENT REGARDING ORAL ARGUMENT 2

III. ISSUES PRESENTED 3

V. STATEMENT OF FACTS 4

VI. SUMMARY OF THE ARGUMENT 6

VII. ARGUMENT 8

A. Standard of Review 8

B. Applicable Law 10

1. Texas Arbitration Act Provides for Mandatory Arbitration 10

2. Arbitration Agreements Interpreted Under Contract
Principles 10

3. Precedent for Decision Process—Trial Court Failed to
Follow 11

4. Texas Law Favors Arbitration—Doubts Regarding Scope of
Agreement Resolved in Favor of Arbitration 12

5. Burden Is on Party Opposing Arbitration to Provide

Positive Assurance that Claims are Outside the Scope of the
Arbitration Agreement 13

6. If Facts Alleged Are Related to Subject Matter of Contract
with Arbitration Provision, Claims Are Arbitrable …………….. 14
7. If Disagreement, Later Contract Prevails ………………………….. 15
C. Dispute Between BCA and Weitzel Is Subject to Arbitration ……….. 16
1. This Case is Like McReynolds v. Elston …………………………… 16
a. Holding in McReynolds …………………………………………. 16
b. How This Case is Similar to McReynolds ………………… 17

2. This Case also is Like Valerus Compression Services, LP v.
Austin 18

3. Weitzel Demonstrated BCA’s Claims Are Related to
Separation Agreement 20

4. Plain Reading Requires Arbitration 21

5. Trial Court Erred in Denying Arbitration 22

VIII. PRAYER 23

TABLE OF AUTHORITIES

Page(s)

Cases

AutoNation USA Corp. v. Leroy,

105 S.W.3d 190 (Tex. App.—Houston [14th Dist.] 2003, no pet.) 14, 15

Babcock & Wilcox Co. v. PMAC, Ltd.,
863 S.W.2d 225 (Tex. App.—Houston [14th Dist.] 1993, writ
denied) 17

Courage Co., L.L.C. v. Chemshare Corp.,
93 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2002, no pet.) 15

In re D. Wilson Const. Co.,
196 S.W.3d 774 (Tex. 2006) 13

Emerald Texas, Inc. v. Peel,
920 S.W.2d 398 (Tex. App.—Houston [1st Dist.] 1996, no writ) 10, 11

In re Estate of Guerrero,
465 S.W.3d 693 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied) 11

In re FirstMerit Bank, N.A.,
52 S.W.3d 749 (Tex. 2001) 13

G.T. Leach Builders, LLC v. Sapphire V.P., LP,
458 S.W.3d 502 (Tex. 2015) 13

Garg v. Pham,
485 S.W.3d 91 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 19

Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266 (Tex. 1992) 12

McReynolds v. Elston,
222 S.W.3d 731 (Tex. App.—Houston [14th Dist.]
2007, no pet.) 9, 12, 13, 14, 16, 17, 18

iii

Merrill Lynch, Pierce, Fenner & Smith v. Eddings,
838 S.W.2d 874 (Tex. App.—Waco 1992, writ denied) 12

Pennzoil Co. v. Arnold Oil Co.,
30 S.W.3d 494 (Tex. App.—San Antonio 2000, no pet.) 14

Prudential Sec. Inc. v. Marshall,
909 S.W.2d 896 (Tex. 1995) 20

Southwinds Express Constr., LLC v. D.H. Griffin of Texas, Inc.,
513 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.) 14

Texas Private Employment Ass’n v. Lyn-Jay Intern., Inc.,
888 S.W.2d 529 (Tex. App.—Houston [1st Dist.] 1994, no writ) 12

Valero Energy Corp. v. Teco Pipeline Co.,
2 S.W.3d 576 (Tex. App.—Houston [14th Dist.] 1999, pet. filed) 8, 9

Valerus Compression Servs., LP v. Austin,
417 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2013, no pet.) 12, 18, 19

Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 171.001 (West 2018) 10, 11

Tex. Civ. Prac. & Rem. Code Ann. § 171.021 (West 2018) 10

Tex. Civ. Prac. & Rem. Code Ann. § 171.025 (West 2018) 10

Tex. Civ. Prac. & Rem. Code Ann. § 171.026 (West 2018) 10

Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (West 2018) 9

Other Authorities

Tex. R. App. P. 9.4 25

Tex. R. App. P. 25 9

Tex. R. App. P. 26 9

Tex. R. App. P. 28 9

Appellant Dennis Weitzel (“Weitzel”) files this brief in support of his appeal of the Trial Court’s order denying Weitzel’s motion to compel arbitration, and in support thereof, respectfully shows the Court as follows:

I.
STATEMENT OF THE CASE

This case involves the refusal by the Trial Court to order arbitration pursuant to a valid and enforceable arbitration agreement between Dennis Weitzel and Brent Coon and Associates.

On August 8, 2018, Michael T. Gallagher and The Gallagher Law Firm, PLLC (formerly Gallagher, Lewis, Downey & Kim and The Gallagher Law Firm, LLP) (collectively, “Gallagher”) filed suit against Brent Coon, Individually, and Brent W. Coon, P.C. d/b/a Brent Coon and Associates (collectively, “BCA”) for breach of a “written contract/referral agreement/fee sharing agreement” (the “Fee Agreement”) between Gallagher and BCA related to asbestos, mesothelioma, and lung cancer clients. (1 C.R. at 3-7). Gallagher also sought declaratory relief and requested an accounting of the cases subject to the Fee Agreement. (1 C.R. at 5-6).

Although Gallagher did not sue Weitzel, on September 14, 2018, BCA filed its “Original Cross-Claim Against Defendant Dennis Weitzel and Request for Declaratory Relief” (BCA’s “Cross-Claim”). (1 C.R. at 13-36). On November 6, 2018, Weitzel answered BCA’s Cross-Claim and moved to enforce an arbitration

agreement previously executed by Weitzel and BCA (Weitzel’s “Motion”). (1 C.R.

at 37-51).

BCA filed a response to Wetizel’s Motion on November 16, 2018 (1 C.R. at 52-81), and Weitzel filed a reply in support of his Motion on December 4, 2018 (1 C.R. at 82-89). On December 7, 2018, the trial court held a hearing on Weitzel’s Motion (R.R. at 1-11), and subsequently denied Weitzel’s Motion on December 17, 2018 (Suppl. C.R. at 3). Weitzel perfected this accelerated appeal on January 7, 2019. (1 C.R. at 127-32).1
II.

STATEMENT REGARDING ORAL ARGUMENT

Weitzel feels that oral argument understanding of the issues in this appeal. oral argument.

would be beneficial for the Court’s As such, Weitzel respectfully requests

1 Weitzel actually filed a combined notice of appeal and petition for writ of mandamus on January 4, 2019. However, on January 7, 2019, the District Clerk requested that Weitzel separate out his notice of appeal and file an amended notice of appeal on the same day. Weitzel complied with this request.

III.
ISSUES PRESENTED

1. The Trial Court erred in refusing to enforce the arbitration agreement between BCA and Weitzel, and in denying Weitzel’s motion to compel arbitration.

2. The Trial Court erred in refusing to sever BCA’s claims against Weitzel from

the Lawsuit so that the claims could be resolved via binding arbitration, and in denying Weitzel’s motion to sever.

3. The Trial Court erred in refusing to dismiss or stay its own proceedings so that BCA’s claims against Weitzel could be resolved via binding arbitration, and in denying Weitzel’s motion to dismiss.

4. The Trial Court erred in failing to hold an evidentiary hearing before denying

Weitzel’s Motion to decide whether a fact issue existed as to the enforceability of the arbitration agreement between BCA and Weitzel.

V.
STATEMENT OF FACTS

BCA has asserted causes of action against Weitzel for BCA’s alleged overpayment of referral fees to Weitzel. (1C.R. at 13-22). On November 18, 2002, BCA sent a letter to Weitzel to memorialize a referral agreement that outlined the percentage of fees Weitzel and Gallagher each would receive for referring certain cases to BCA upon the case’s favorable resolution. (1 C.R. at 23-25). The letter also included an attachment with a list of several cases to show the source of the referral and the attorney working on the case (the letter and its attachment will be referred to as the “2002 Agreement”). (1 C.R. at 26-36).

Weitzel was not BCA’s employee at the time of the 2002 Agreement, but he joined BCA as an attorney on October 5, 2005. (1 C.R. at 15). On February 19, 2010, Weitzel voluntarily ended his employment with BCA (1 C.R. at 47), and on April 17, 2010, BCA and Weitzel entered into an agreement titled “Separation and Withdrawal Agreement By and Between Brent Coon and Associates and Dennis Weitzel” (the “Separation Agreement”), made effective February 19, 2010. (1 C.R. at 47, 49). The Separation Agreement postdates the 2002 Agreement by more than seven years. (1 C.R. at 14, 47).

The Separation Agreement incorporates four exhibits, and provides that the Separation Agreement with exhibits is the entire agreement between BCA and Weitzel:

Entire Agreement- This agreement and its exhibits constitute the entire agreement between the parties with respect to the subject matter hereof.

(1 C.R. at 48).

The Separation Agreement also contains an arbitration clause (the

“Arbitration Agreement”), and provides that all disputes arising out of the Separation

Agreement will be resolved via binding arbitration:

Arbitration- All disputes arising under this Agreement shall be resolved by binding arbitration proceedings brought under the auspices and rules of the American Arbitration Association (AAA) only to the extent that such rules are not inconsistent with this section. Arbitration awards resulting from such proceedings shall be binding and specifically enforceable to the maximum extent permitted by law. Arbitrators shall be selected in accordance with the rules established by AAA.

(1 C.R. at 49).

In its Cross-Claim, BCA admits that its claims arise, at least in part, from the

Separation Agreement: “Upon his departure, an agreement was reached (the

departure agreement) between Weitzel and BCA concerning [referral] cases, and

other cases that Weitzel had responsibility over. BCA has continued to pay Weitzel

the funds under the agreement, and Weitzel has collected additional funds under

the departure agreement.” (1 C.R. at 16) (emphasis added).

BCA further admits that its claims also arise from the 2002 Agreement (see 1

C.R. at 14-16, 19, 23-36), and BCA’s response to Weitzel’s Motion expressly states

and acknowledges that the referral cases (from the 2002 Agreement) at issue in the

present dispute between BCA and Weitzel are listed in Exhibit 4 to the Separation

Agreement:

The cause of action BCA has pending before the court [sic] presently against Weitzel isn’t derived from the Weitzel/BCA Separation Agreement; the current case manifested from actions and inactions mandated to be performed by the 2002 Referral Agreement. The Separation Agreement contained four exhibits to it. The Weitzel referral cases subject to the current proceedings pending before this court [sic] fall on what the Separation Agreement deems “Exhibit 4”.

(1 C.R. at 55).

BCA’s argument at the hearing on Weitzel’s Motion echoed this point (see

R.R. at 6:5-7:24), but then it confusingly and misleadingly stated that BCA was not suing under Exhibit 4, but rather the 2002 Agreement (see R.R. at 8:7-9:25).

Either way BCA frames its argument, its claims are subject to the Arbitration Agreement and the Trial Court erred in denying Weitzel’s Motion and failing to
order arbitration of the present dispute.

VI.
SUMMARY OF THE ARGUMENT

The Trial Court erred in denying arbitration of BCA’s claims against Weitzel

because the parties expressly agreed to arbitrate these exact types of disputes in the

Separation Agreement. BCA does not dispute the validity or enforceability of the

Arbitration Agreement. Rather, BCA claims that its current dispute does not fall

within the scope of the Arbitration Agreement2. Under Texas law, however, any doubts about the scope of the Arbitration Agreement must be resolved in favor of arbitration.

Further, BCA failed to provide positive assurance that the Arbitration Agreement was not susceptible to an interpretation that would cover the dispute between BCA and Weitzel. Indeed, BCA’s own pleadings acknowledge that the Separation Agreement concerns the cases at the center of the present controversy.

BCA further acknowledges that the disputed cases are identified on Exhibit 4 to the Separation Agreement, which are expressly incorporated into the Separation Agreement. Not only has BCA failed to provide positive assurance that its claims are not covered by the Arbitration Agreement, but BCA’s own pleadings acknowledge that its claims arise out of the Separation Agreement and are covered by the Arbitration Agreement.

The Separation Agreement itself includes broad language requiring the arbitration of “all disputes arising under this Agreement.” According to applicable precedent from this and other Courts of Appeals, this language subjects to arbitration any claim that is based on facts touching upon, significantly related to, inextricably

2 The contractual interpretation and relationship between the 2002 Agreement and the Separation Agreement that BCA urged on the Trial Court renders several provisions of the Separation Agreement superfluous. Such an interpretation would be a violation of well-established Texas precedent that Courts should attempt to give meaning to all contractual provisions and render none meaningless.

enmeshed with, or factually intertwined with the Separation Agreement. Again, the present dispute involves fee arrangements for cases referenced in the Separation Agreement, bringing them within the scope of the Arbitration Agreement.

Finally, to the extent the 2002 Agreement and Separation Agreement conflict, the Separation Agreement prevails as the latter agreement between BCA and Weitzel. The 2002 Agreement does not contain dispute resolution language. The Separation Agreement, in contrast, requires that all disputes arising from the agreement be resolved by binding arbitration—a result that Texas law favors and requires.

For all of these reasons, the Trial Court erred when it refused to follow established Texas precedent requiring mandatory arbitration of matters subject to an undisputed arbitration provision between BCA and Weitzel.

VII.
ARGUMENT

A. Standard of Review

When deciding whether to compel arbitration, courts must decide two issues:

“(1) whether a valid, enforceable arbitration agreement exists, and (2) if so, whether the claims asserted fall within the scope of the agreement.” Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 581 (Tex. App.—Houston [14th Dist.] 1999, pet.

filed). Trial courts have no discretion and must compel arbitration if both questions can be answered affirmatively. 3 See id.

The question of whether the parties have agreed to arbitrate “is a question of fact to be summarily determined by the trial court,” which is reviewed under a no-evidence standard. Id. When reviewing a no-evidence point, the court considers only the evidence that supports the finding and disregards the contrary evidence. See id.

Legal conclusions, however, are subject to de novo review. See id. at 582. Thus, “[d]e novo review is appropriate when the legal interpretation of the arbitration clause, and no fact issue, is before the court.” Id. Determining whether a claim falls within the scope of an arbitration agreement involves the Trial Court’s legal interpretation of the agreement, and the Court of Appeals reviews the determination de novo. See McReynolds v. Elston, 222 S.W.3d 731, 740 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Because the Trial Court made no factual findings and no factual dispute is at issue in this appeal, the appropriate review is de novo to determine whether BCA’s claims are within the scope of the Arbitration Agreement. See Valero, 2 S.W.3d at 582.

3 Texas law permits the interlocutory appeal of an order denying a motion to compel arbitration. See Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (West 2018). Thus, the Court has jurisdiction to hear and decide this accelerated appeal pursuant to Texas Civil Practice and Remedies Code Section 171.098, and Texas Rules of Appellate Procedure 25, 26, and 28.

B. Applicable Law

1. Texas Arbitration Act Provides for Mandatory Arbitration

“A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that: (1) exists at the time of the agreement; or (2) arises between the parties after the date of the agreement.” Tex. Civ. Prac. & Rem. Code § 171.001(a)(1)-(2).

The Trial Court must order the parties to arbitrate if the application for arbitration shows the following: “(1) an agreement to arbitrate; and (2) the opposing party’s refusal to arbitrate.” Id. § 171.021(a)(1)-(2).

An order compelling arbitration must include a stay of any proceeding involving an issue subject to arbitration. See id. §§ 171.021(c), 171.025(a). “The stay applies only to the issue subject to arbitration if that issue is severable from the remainder of the proceeding.” Id. § 171.025(b).

A court may not refuse to order arbitration simply because “(1) the claim lacks merit or bona fides; or (2) the fault or ground for the claim is not shown.” Id. § 171.026.

2. Arbitration Agreements Interpreted Under Contract Principles

“An agreement to arbitrate is valid unless grounds exist at law or in equity for the revocation of any contract, such as fraud or unconscionability.” Emerald Texas, Inc. v. Peel, 920 S.W.2d 398, 402 (Tex. App.—Houston [1st Dist.] 1996, no writ)

(citing Tex. Civ. Prac. & Rem. Code § 171.001). Arbitration agreements are interpreted under general contract principles, and the best evidence of the parties’ intent is the contract itself. See id.4
3. Precedent for Decision Process—Trial Court Failed to Follow

Under Texas law, the Trial Court conducts a summary proceeding to determine the applicability of an arbitration clause based on the parties’ affidavits, pleadings, discovery, and stipulations. See In re Estate of Guerrero, 465 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

The procedure to determine the applicability of an arbitration clause is similar to a motion for partial summary judgment and is subject to the same evidentiary standards. See id. The party seeking arbitration must present summary proof that an agreement to arbitrate requires arbitration of the dispute. See id. The party resisting arbitration may then contest the opponent’s proof or present evidence supporting the elements of a defense to enforcement. See id.

“If there is a genuine question of material fact concerning the existence of the agreement, the trial court may not summarily grant or deny the motion to compel arbitration but must conduct an evidentiary hearing to resolve the disputed material facts.” Id.

4 BCA did not argue to the Trial Court that the Arbitration Agreement is unenforceable under some theory of contract defense, and in fact, no such defense could, in good faith, be asserted.

The Trial Court in this case did not conduct an evidentiary hearing, and yet it appears to have summarily—and improperly—denied Weitzel’s Motion despite the parties’ disagreement. The Trial Court did not provide a reason for its denial, but it certainly did not give the Arbitration Agreement the weight it is required under Texas law. Thus, the Trial Court erred in summarily denying Weitzel’s Motion, and in doing so before conducting an evidentiary hearing.

4. Texas Law Favors Arbitration—Doubts Regarding Scope of Agreement Resolved in Favor of Arbitration

There is a presumption favoring arbitration, which generally requires that courts resolve doubts as to the scope of the arbitration agreement in favor of coverage. See Valerus Compression Servs., LP v. Austin, 417 S.W.3d 202, 208 (Tex. App.—Houston [1st Dist.] 2013, no pet.); McReynolds, 222 S.W.3d at 740.

Both Texas and federal courts have noted their favorable disposition toward arbitration agreements. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992); Texas Private Employment Ass’n v. Lyn-Jay Intern., Inc., 888 S.W.2d 529, 531 (Tex. App.—Houston [1st Dist.] 1994, no writ) (“Texas law favors arbitration.”). “Arbitration proceedings are so favored by Texas law that both our Constitution and statutes provide for the submission of differences to arbitration.” Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 878 (Tex. App.—Waco 1992, writ denied).

Arbitration is mandatory if an enforceable arbitration agreement exists and if

the disputed claims fall within its scope:

The courts’ role, then, is first to decide whether the parties made a valid and presently enforceable agreement to arbitrate. If they did, then the court must decide whether the present disputes fall within the scope of that agreement. If, by answering these questions, the court determines that the present disputes are in fact arbitrable under the parties’ agreement, the court must complete its role by ordering the parties to arbitration and leaving it to the arbitrators to resolve those disputes.

G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519-20 (Tex. 2015)

(internal quotations omitted).

Texas courts must resolve any doubts about an arbitration agreement’s scope

in favor of arbitration. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.

2001). Once the Trial Court determines (1) that the arbitration agreement

encompasses the claims at issue, and (2) that the party opposing arbitration has failed

to prove its defenses, the Trial Court “has no discretion but to compel arbitration and

stay its own proceedings.” See id. at 753-54.

5. Burden Is on Party Opposing Arbitration to Provide Positive Assurance that Claims are Outside the Scope of the Arbitration Agreement

A court should not deny arbitration unless it can be said with positive

assurance that an arbitration clause is not susceptible of an interpretation that would

cover the dispute at issue. See In re D. Wilson Const. Co., 196 S.W.3d 774, 783

(Tex. 2006) (internal quotations omitted); McReynolds, 222 S.W.3d at 740. The

burden is on the party opposing arbitration to show that the claims fall outside the scope of the arbitration agreement. See McReynolds, 222 S.W.3d at 740.

6. If Facts Alleged Are Related to Subject Matter of Contract with Arbitration Provision, Claims Are Arbitrable

Language in an arbitration provision requiring arbitration of any controversy or claim “arising out of or relating to” an agreement is recognized by Texas courts as “broad language favoring arbitration.” See AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195-96 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

In determining whether a claim falls within the scope of an arbitration agreement, the Court must focus on the factual allegations of the complaint rather than the legal causes of action asserted. See McReynolds, 222 S.W.3d at 740. “Claims generally are arbitrable when the facts alleged touch matters that are covered by, have a significant relationship to, are inextricably enmeshed with, or are factually intertwined with the contract that contains the arbitration provision.” Southwinds Express Constr., LLC v. D.H. Griffin of Texas, Inc., 513 S.W.3d 66, 74 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (internal quotations omitted); see AutoNation, 105 S.W.3d at 195-96 (citing Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex. App.—San Antonio 2000, no pet.)).

However, if the facts in dispute stand alone, are completely independent of the contract containing the arbitration agreement, and the claim could be maintained

without reference to the contract containing the arbitration agreement, then the claim in dispute is not subject to arbitration. See AutoNation, 105 S.W.3d at 195-96.

BCA’s claims are related to the Separation Agreement because, as admitted by BCA, and they touch upon and are intertwined with matters concerning cases addressed in the Separation Agreement. The Separation Agreement contains the broad language that courts have interpreted to favor arbitration—“[a]ll disputes arising under this Agreement shall be resolved by binding arbitration proceedings.” (1 C.R. at 49). Moreover, BCA’s claims cannot and do not “stand alone” without reference to the Separation Agreement and incorporated attachments. Thus, the Trial Court should have compelled arbitration of BCA’s claims pursuant to the Arbitration Agreement contained within the Separation Agreement.

7. If Disagreement, Later Contract Prevails

When parties enter into two agreements dealing with the same subject matter but do not specify in the agreements whether or to what extent the later agreement is intended to operate in discharge or substitution, both contracts must be interpreted together, and, to the extent they are inconsistent, the later one prevails. See Courage Co., L.L.C. v. Chemshare Corp., 93 S.W.3d 323, 333 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

Thus, to the extent the 2002 Agreement and the Separation Agreement conflict or deal with the same subject matter, and if the merger clause in the

Separation Agreement does not apply, the Separation Agreement still controls the dispute between BCA and Weitzel. Further, the 2002 Agreement contains no dispute resolution language of its own, nor does it address its applicability in the event a later agreement—touching upon the same or similar subject matter—is entered into between BCA and Weitzel. The existence of dispute resolution in the later agreement, therefore, favors arbitration, and the Trial Court erred by denying Weitzel’s Motion.

C. Dispute Between BCA and Weitzel Is Subject to Arbitration

1.This Case is Like McReynolds v. Elston

a. Holding in McReynolds

This case is like McReynolds v. Elston. See generally 222 S.W.3d 731. In McReynolds, the parties did not dispute the existence of an arbitration clause in the settlement agreement at issue; instead, they disagreed over whether Elston’s claims fell within the scope of the arbitration agreement. See id. at 739. McReynolds contended that Elston’s claims fell under the scope of the settlement agreement’s arbitration clause because the clause purported to cover “any dispute under this Settlement Agreement or any matter relating hereto.” See id. (internal quotations omitted).

The McReynolds Court affirmed the principle that “[t]he presumption of arbitrability is particularly applicable where the clause is broad; that is, it provides

for arbitration of any dispute arising between the parties, or any controversy or claim arising out of or relating to the contract thereof, or any controversy concerning the interpretation, performance or application of the contract.” Id. at 740 (internal quotations omitted) (citing Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 230 (Tex. App.—Houston [14th Dist.] 1993, writ denied)).

The Court held that Elston, in contending that her claims fell under a previous partnership agreement’s arbitration clause, failed to meet her burden to show that her claims fell outside the scope of the later settlement agreement’s arbitration clause. See id.

In making this ruling, the Court stated that the totality of the language in the settlement agreement indicated that it superseded the partnership agreement, at least to the extent the two agreements conflicted. See id.

b. How This Case is Similar to McReynolds

BCA, like Elston in the McReynolds case, does not deny the existence of the Arbitration Agreement.

Like the facts in McReynolds, the Separation Agreement (with the Arbitration Agreement) between BCA and Weitzel is subsequent to the 2002 Agreement that BCA contends controls (and in this case, the Separation Agreement also has a merger clause that states it controls all subsequent disputes between the parties).

Like the arbitration clause in McReynolds, the Arbitration Agreement between BCA and Weitzel is broad and covers “all disputes” related to the Separation Agreement or fee disputes between the parties, including, but not limited to, any dispute related to the 2002 Agreement.

Therefore, this Court should hold, as the Court of Appeals held in McReynolds, that the Arbitration Clause between BCA and Weitzel governs the parties’ dispute, and that the Trial Court erred in failing to order arbitration.

2. This Case also is Like Valerus Compression Services, LP v. Austin

In Valerus, Austin argued that his claims against his former partner did not fall within the scope of an arbitration provision because they were entirely governed by a separate agreement that did not include a requirement to arbitrate disputes. See Valerus, 417 S.W.3d at 211.

This Court, disagreeing with Austin, found that his claims fell within the scope of the arbitration provision because his allegations against Valerus were factually intertwined with a partnership agreement between the parties that contained an arbitration clause. See id. Specifically, Austin’s claims, which concerned the forced redemption of his partnership interest in Valerus, could not be adjudicated without reference to the partnership agreement. See id. Thus, applying the presumption in favor of arbitration, this Court held that Austin’s claims fell within the arbitration

clause in the partnership agreement despite his contention that a separate agreement prevailed. See id. at 211-12.

Similarly, BCA’s claims against Weitzel, which concern payments pursuant to shared fee arrangements, cannot be adjudicated without reference to the Separation Agreement because it provides for the disposition of shared fees collected before, during, and after Weitzel’s employment with BCA. (1 C.R. at 47-49). Specifically, BCA admits that its claims are based on what is has referred to as the “departure agreement,” denoted as the Separation Agreement in this brief: “Upon his departure, an agreement was reached (the departure agreement) between Weitzel and BCA concerning these cases, and other cases that Weitzel had responsibility over.” (1 C.R. at 16).

BCA, in an apparent attempt to avoid arbitration, backtracked to say that only the cases referenced in Exhibit 4 to the Separation Agreement are in dispute: “The Weitzel referral cases subject to the current proceedings pending before this court [sic] fall on what the Separation Agreement deems ‘Exhibit 4.’” (1 C.R. at 55).

Either way BCA frames its allegations, its claims are subject to the Arbitration Agreement. See Garg v. Pham, 485 S.W.3d 91, 103 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“A party may not attempt to avoid an arbitration clause through artful pleading.”). Whether based on the Separation Agreement (see 1 C.R. at 16), merely Exhibit 4 to the Separation Agreement (see 1 C.R. at 55), or even the 2002

Agreement, BCA’s claims are related to, or at least touch upon, the subject matter of the Separation Agreement, and the Trial Court erred by denying arbitration.

3. Weitzel Demonstrated BCA’s Claims Are Related to Separation Agreement

Weitzel demonstrated the existence of a valid arbitration agreement, and that BCA’s claims relate to a fee dispute expressly covered by, or at least related to, touched upon, or intertwined with, agreements in the Separation Agreement between BCA and Weitzel.

BCA failed to provide positive assurance that its claims against Weitzel were not governed by the Arbitration Agreement. Indeed, BCA did not offer any evidence to show that the present dispute concerns cases that were not addressed in the Separation Agreement. At the very least, BCA’s claims are “factually intertwined” with the subject matter of the Arbitration Agreement. See Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995) (finding that stock brokers’ claims for defamation and libel against their former employer related to a conspiracy to blackball them from the industry were factually intertwined with arbitrable claims because the Court broadly interpreted requirement to arbitrate claims “arising out of the employment or termination of employment” of a stock broker).

In light of the judicial requirement to broadly interpret arbitration agreements, the Trial Court erred by denying Weitzel’s Motion.

Further, if the Trial Court determined that a fact issue was raised regarding whether BCA’s claims fall within the Arbitration Agreement, it erred by failing to conduct an evidentiary hearing before denying arbitration.

4. Plain Reading Requires Arbitration

A plain reading of the documents at issue as well as the facts behind BCA’s claims against Weitzel demonstrate that arbitration is required to resolve the current dispute between BCA and Weitzel.

Examination of the 2002 Agreement and attached pages (Exhibit 4 to the Separation Agreement) shows it to be just a fee agreement. This agreement does not contain any dispute resolution language, or any other language that would somehow exempt it from the Separation Agreement entered into between BCA and Weitzel over seven years later.

The Separation Agreement does not expressly or impliedly exempt Exhibit 4 from the Arbitration Agreement. To the contrary, the Separation Agreement incorporates Exhibit 4 and states as follows: “Entire Agreement- This agreement and its exhibits constitute the entire agreement between the parties with respect to the subject matter hereof.” (1 C.R. at 48).

BCA expressly states in both its response to the Motion and in its Cross-Claim against Weitzel that its current claims against Weitzel arise out of the 2002

Agreement/Exhibit 4. Therefore, BCA’s claims against Weitzel fall within the scope of the Arbitration Agreement.

To the extent BCA now asserts that its claims against Weitzel are not based on Exhibit 4 to the Separation Agreement, BCA’s claims nevertheless are related to fee agreements between BCA and Weitzel. And since all fee sharing agreements are discussed and provided for in the Separation Agreement, any disputes or claims by BCA against Weitzel touch upon the Separation Agreement, and are subject to arbitration. Thus, the Trial Court erred when it denied Weitzel’s Motion and refused to send the parties to arbitration.

5. Trial Court Erred in Denying Arbitration

When it denied arbitration, the Trial Court erred in at least the following ways:

• In light of the overwhelming applicable precedent cited above, by failing to grant Weitzel’s Motion, sever the claims asserted by BCA against Weitzel, stay its own proceedings, and send the claims asserted by BCA against Weitzel to arbitration;

• To the extent the Trial Court found there was a conflict or a dispute regarding the applicability of the Arbitration Agreement, by failing to resolve any doubts in favor of arbitration; and

• To the extent the Trial Court found there was a conflict or a dispute regarding the applicability of the Arbitration Agreement, by failing to

order an evidentiary hearing regarding whether the Arbitration Agreement governed the claims at issue.

VIII.
PRAYER

Weitzel respectfully prays for the following relief:

1. For this Court to reverse the Trial Court’s denial of Weitzel’s Motion, and render a decision that BCA’s claims against Weitzel must be severed from the current case, stayed, and ordered to arbitration; or, in the alternative,

2. For this Court to reverse the Trial Court’s denial of Weitzel’s Motion and remand this issue back to the Trial Court for an evidentiary hearing regarding whether BCA’s claims against Weitzel should be ordered to arbitration.

3. Weitzel also prays for all other relief to which he is justly entitled.

CERTIFICATE OF COMPLIANCE

I hereby certify pursuant to Texas Rule of Appellate Procedure 9.4, this document contains 4,500 words.

——————————————
Michael Rumac

CERTIFICATE OF SERVICE

I hereby certify that on the 7th day of March, 2019, a true and correct copy of the above and foregoing document was served upon the following counsel of record via e-service and email.

Counsel for BCA

Lori K. Slocum, State Bar No. 24048597, Brent W. Coon, State Bar No. 04769750, Brent Coon and Associates, 215 Orleans street, Beaumont, Texas 77701 (409) 835-2666 (409) 883-4483 (Fax) Lori.Slocum@bcoonlaw.com

Counsel for Gallagher

L. Boyd Smith, Jr., State Bar No. 18638400, The Boyd Smith Law Firm PLLC, 2904 Sackett Street, Houston, Texas 77098 (713) 343-8899 (713) 343-9265 (Fax) bsmith@boydsmithlaw.com

Ernest W. Boyd, State Bar No. 00783694, The Butch Boyd Law Firm, 2904 Sackett Street, Houston, Texas 77098 713-589-8477 (713) 589-8563 (Fax) butchboyd@butchboydlawfirm.com

——————————————
Michael Rumac

APPENDIX

A. Order on Dennis Weitzel’s Motion to Dismiss, Motion to Compel Arbitration and Motion to Sever

B. Defendant Brent Coon and Brent Coon and Associates’ Original Cross-Claim Against Defendant Dennis Weitzel and Request for Declaratory Relief

C. Fee Agreement Between Dennis Weitzel and Brent Coon and Associates, dated November 18, 2002

D. Dennis Weitzel’s Original Answer, Affirmative Defenses, Motion to Dismiss,

Motion to Enforce Arbitration Agreement and Motion to Sever

E. Separation and Withdrawal Agreement By and Between Brent Coon and Associates and Dennis Weitzel

F. Dennis Weitzel’s Reply to Brent Coon’s Response to Motion to Enforce

Arbitration Agreement

G. Texas Civil Practice & Remedies Code §§ 171.001, 171.021, 171.025, 171.026, 171.098

03 / 26 / 2004 10 : 20 4039518075 PAGE 07

With respect to the Driskell, Newton, and Tharp cases, the fifty percent (50%)
– ,
referral fee to Dennis Weitzel includes a twenty-percent (20%) fee to
Segal, Stewart
, & Beny. It is our understanding that the twenty percent (20%) fee
Cutler, Lindsay Janes , Lindsay, Janes & Berry includes both a referral fee as well as
to Segal,
Stewart, Cutler cases, which are or will be filed , Kentucky.
fee for local counsel aide in the
in Louisville
Cases Handled by the Beaumont Office of Brent Coon & Associates
All other cases referred to Brent Coon & Associates by you are being handled by
the Beaumont office. Attached hereto is a list of those cases of which the Beaumont
office has record of you referring to Brent Coon & Associates. Noted on that list is the
group in which each case is filed. The McGee Group is filed in Holmes County,
Mississippi. The Cotton and Adams Groups are filed in Jefferson County, Texas.
The referral arrangement between Brent Coon & Associates and you on the
percent (33 1/3%) referral fee to you
attached list of cases is a thirty three and one-third .
We would request that you review the attached list for its accuracy in identifying all of
the cases that you have sent to Brent Coon & Associates and which are being handled
the Beaumont office by
.
Cases Referred to Brent Coon & Associates by , , , Downey &
Gallagher Lewis Serafm
Kim
Gallagher, Lewis, Serafin, Downey & Kim has referred cases to Brent Coon &
Associates, which were initially referred to it by you. Attached hereto is a list of cases
being handled by Brent Coon & Associates which were referred to it by Gallagher,
Lewis, Serafm, Downey & Kim.
The referral arrangement on the attached list of cases referred to Brent Coon &
Associates by Gallagher, Lewis, Serafin, Downey & Kim is a fifty percent (50%) referral
fee to Gallagher, Lewis, Serafin, Downey & Kim. Please review the attached list for its
accuracy in identifying all the cases that you referred to Gallagher, Lewis, Serafin,
Downey & Kim and that Gallagher, Lewis, Serafin, Downey & Kim in turn referred to
Brent Coon & Associates.
Future Referral of Cases by Dennis Weitzel to Brent Coon & Associates
All future cases referred to Brent Coon & Associates by you will have the
following referral arrangement.
If the case is a direct case to you, then Brent Coon & Associates will pay
a – – 1/3%).
referral fee of thirty three and percent (33
you one third

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