NO. 07-01-0298-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 14, 2003
______________________________
SUSAN L. MILLER, APPELLANT
V.
J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES
_________________________________
FROM THE 55TH DISTRICT COURT OF HARRIS COUNTY;
NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and BOYD, S.J.1
OPINION
This appeal arises from the trial court’s dismissal, with prejudice, of a legal
malpractice suit filed by appellant Susan L. Miller (Miller) against appellees J. Mark Brewer
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
and Brewer & Pritchard, P.C. (Brewer). The suit was dismissed because of Miller’s failure
to comply with the trial court’s order requiring arbitration of the dispute. In pursuing her
appeal, Miller presents one issue with three sub-parts. In her issue, Miller asks the overall
question whether the trial court erred as a matter of law in its dismissal of her suit because
of her failure to comply with the required arbitration. As sub-parts of that question, she
asks if appellees were able to compel arbitration pursuant to an attorney-client contract
under (a) the Texas Arbitration Act; (b) the Federal Arbitration Act; and (c) under common
law. For reasons hereinafter stated, we affirm the judgment of the trial court.
A brief recitation of the procedural history of this appeal is necessary. Miller’s suit
against Brewer was filed on August 24, 1999. Her suit grew out of Brewer’s
representation of her in a federal employment discrimination suit against Meridian Bank,
Meridian Bancorp, Inc., Meridian Securities, Inc., and Meridian Capital Markets, Inc., which
had been filed in the Federal District Court for the Southern District of Texas, Houston
Division. In the suit against Brewer, Miller alleged that Brewer settled the federal case
without her knowledge, consent, or approval, failed to advise her of the settlement, and
obtained a portion of the settlement funds and applied it to Brewer’s attorney’s fees without
her knowledge.
On October 4, 1999, Brewer responded to the suit by filing a plea in abatement, a
motion to compel arbitration, and an answer. The motion to compel arbitration was based
upon a mandatory arbitration clause contained in a written attorney-client representation
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contract between Miller and Brewer. On October 15, 1999, Miller responded by asserting
that the pages containing the arbitration clause were not in the contract when she signed
it and, in the alternative, if she had agreed to the employment contract and the arbitration
clause, her agreement was the result of fraud and fraudulent inducement. She also filed
supporting affidavits. On December 15, 1999, Brewer filed a brief and supporting affidavits
in connection with the plea in abatement and motion to compel arbitration. On December
22, 1999, after a hearing but without receiving evidence other than that contained in the
record, the trial court entered its order compelling arbitration within 60 days and abated
the case during the arbitration.
On February 16, 2000, Miller filed a demand for arbitration with the American
Arbitration Association. On October 20, 2000, Miller filed a motion to set aside the order
compelling arbitration and for reinstatement of the case on the court’s docket. On
November 3, 2000, the trial court denied Miller’s motion to reconsider. Miller then revoked
the consent to arbitrate and sought to have the case reinstated on the trial court’s docket.
On May 3, 2001, Brewer filed a motion to dismiss the case because of the failure to
arbitrate and, on May 25, 2001, the trial court entered the dismissal order giving rise to this
appeal.
In relevant part, the arbitration clause in question here reads:
This agreement is subject to binding arbitration. We do not anticipate a
dispute over our representation or related fees and expenses. However, if
a dispute should arise, all claims, disputes, controversies, differences or
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other matters in question arising out of our relationship to each other
(including, but not limited to compensation for services rendered by the firm)
shall be settled finally, completely and conclusively by arbitration in Houston,
Harris County, Texas, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the “Rules”), by one or more
arbitrators chosen in accordance with the Rules . . . .
Discussion
As we have noted, the question Miller presents for our decision is whether, as a
matter of law, the trial court erred in entering its order compelling arbitration.
Parenthetically, Miller did not request findings of fact from the trial court and does not in
this appeal challenge the trial court’s resolution of any fact questions underlying its order.
A party seeking to compel arbitration must establish the existence of an arbitration
agreement and show that the claims asserted fall within the scope of that agreement. In
re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999). Once a party
establishes a claim within the arbitration agreement, the trial court must compel arbitration
and stay its own proceedings. Id. In Texas, every reasonable presumption must be
decided in favor of arbitration. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520
(Tex. App.–Austin 1998, no pet.). If a party denies the existence of an agreement to
arbitrate, the trial court shall proceed summarily to determine the issue. See Tex. Civ.
Prac. & Rem. Code Ann. §171.021 (Vernon. Supp. 2003).
The Texas Arbitration Act (the Act) is found in sections 171.001-171.098 of the
Texas Civil Practice & Remedies Code. Miller initially argues that a claim for legal
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malpractice is a claim for personal injury within the purview of section 171.002(a)(3). In
relevant part, that section provides that the Act does not apply to a claim for personal injury
unless each party to a claim, on the advice of counsel, agrees to arbitrate and the
agreement is signed by each party and each party’s attorney. Tex. Civ. Prac. & Rem.
Code Ann. §171.002(a) & (c) (Vernon Supp. 2003). There being no such written
agreement in this case, Miller reasons that the court’s order compelling arbitration was not
valid.
In advancing her argument, Miller relies upon the court’s decision in In re Godt, 28
S.W.3d 732 (Tex. App.–Corpus Christi 2000, no pet.). In that case, the court held that an
arbitration provision in an attorney-client fee agreement was not enforceable under section
171.003(a)(3) because the client did not act on the advice of independent counsel, nor did
independent counsel sign the agreement. Id. at 739. The Godt court’s conclusion is
bottomed on the holding in Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988), in which
the court opined that a cause of action for legal malpractice is in the nature of a tort for the
purpose of the two-year statute of limitations. En route to its conclusion, the Godt court
also noted Sample v. Freemen, 873 S.W.2d 470, 476 (Tex. App.–Beaumont 1994, writ
denied), and Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex. App.–Corpus Christi
1990, no writ), which had arrived at similar holdings. In both of those cases, the courts
cited and relied upon Willis as standing for the proposition that a legal malpractice claim
is a claim for personal injury. However, we do not read Willis as standing for that generic
proposition. Bryan Garner, in his excellent Dictionary of Modern Legal Usage, defines a
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tort as “a civil wrong; the breach of a duty that the law imposes on everyone” and goes on
to comment that that definition is “barely adequate” because “there is no common set of
traits that every tort possesses.” BRYAN GARNER, A DICTIONARY OF MODERN LEGAL
USAGE 885 (2ND ed. 1995). We do not agree that simply because a legal malpractice suit
is classified as a tort, that classification requires the conclusion that such a suit is one for
personal injury.
We also note that in its opinion, the Godt court commented on and, in reaching its
conclusion, apparently relied upon the fact that “the nature of Godt’s complained-of injury
in her malpractice claim is an action for personal injury, rather than an action for economic
or contractual losses.” Godt, 28 S.W.3d at 739. Miller’s underlying claim was for
economic losses stemming from employment discrimination rather than for personal injury.
For these reasons, we do not think the rationale of the Godt decision is applicable here.
Rather, we find the rationale used by the court in In re Hartigan, 107 S.W.3d 684
(Tex. App.–San Antonio 2003, n. pet. h.) helpful. In Hartigan, the court refused to hold that
a legal malpractice suit was per se one for personal injuries. The legal malpractice suit
involved in that matter arose out of representation in a divorce case and, the court opined
the suit was not a claim for personal injury and was not excluded from the scope of the
Texas Arbitration Act by section 171.002(a)(3). Id. at 690-91. The suit with which we are
concerned arises out of a suit for economic losses as a result of employment
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discrimination. We hold that it is not a suit for personal injuries within the purview of
section 171.002(a)(3) of the Act. Thus, the trial court did not err in entering its order
requiring arbitration.
Our holding that, under the Texas Arbitration Act, the trial court did not err in
entering its order compelling arbitration, obviates the necessity for discussion of whether
the order was permissible under the Federal Arbitration Act or under common law. In
summary, we hold the trial court did not, as a matter of law, err in ordering the parties to
submit the underlying suit to arbitration. Accordingly, Miller’s issue is overruled.
Because of Miller’s undisputed refusal to comply with that order, the trial court did
not abuse its discretion in entering its dismissal order, and the judgment of the trial court
is affirmed.
Per Curiam
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NO. 07-01-0298-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 14, 2003
______________________________
8
SUSAN L. MILLER, APPELLANT
V.
J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES
_________________________________
FROM THE 55TH DISTRICT COURT OF HARRIS COUNTY;
NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE
_______________________________
9
Before JOHNSON, C.J., and REAVIS and BOYD, S.J.2
CONCURRING OPINION
Considering the procedural posture of this case, I concur in the result, only.
Don H. Reavis
Justice
2
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex.
Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
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