ACCEPTED
04-14-00889-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/9/2015 3:38:26 PM
KEITH HOTTLE
CLERK
IN THE
FOURTH COURT OF APPEALS
AT SAN ANTONIO FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
03/9/2015 3:38:26 PM
CAUSE NO. 04-14-00889-CV
KEITH E. HOTTLE
Clerk
ENDURA ADVISORY GROUP, LTD.,
APPELLANT
VS.
DOMINIC ALTOMARE,
APPELLEE
INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780
IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE,
SITTING IN THE 57TH JUDICIAL DISTRICT COURT
APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, REPLY BRIEF
RICHIE & GUERINGER, P.C.
GAY GUERINGER
State Bar No. 08571400
DOUG K. CLEMONS
State Bar No. 24032083
112 East Pecan Street, Suite 1420
San Antonio, Texas 78205
Tel: 210-220-1080 / Fax: 210-220-1088
Email: ggueringer@rg-sanantonio.com
Email: dclemons@rg-sanantonio.com
ATTORNEYS FOR APPELLANT,
ENDURA ADVISORY GROUP, LTD.
APPELLANT REQUESTS ORAL ARGUMENT
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
INDEX OF AUTHORITIES..................................................................................... ii
REPLY .......................................................................................................................1
PRAYER ....................................................................................................................8
CERTIFICATE OF COMPLIANCE .........................................................................9
CERTIFICATE OF SERVICE ..................................................................................9
i
INDEX OF AUTHORITIES
Cases
Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio
2002, no pet.) ..........................................................................................................2
Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352
S.W.3d 462, 469 (Tex. 2011) ................................................................................. 6
In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.]
2003, orig. proceeding).......................................................................................5, 7
Neely v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus
Christi 1987, no writ) .............................................................................................4
Sendjar v. Gonzales, 520 S.W.2d 478, 481 (Tex. Civ. App. – San Antonio 1975,
no writ) ...............................................................................................................4, 5
ii
CAUSE NO. 04-14-00889-CV
ENDURA ADVISORY GROUP, LTD.,
APPELLANT
VS.
DOMINIC ALTOMARE,
APPELLEE
INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780
IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE,
SITTING IN THE 57TH JUDICIAL DISTRICT COURT
APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, REPLY BRIEF
TO THE HONORABLE FOURTH COURT OF APPEALS:
COMES NOW Appellant, ENDURA ADVISORY GROUP, LTD., and files its
Reply Brief, and in support thereof would show the Court the following:
REPLY
1. Appellee has failed to overcome the mountain of evidence that Josh
Reneau (“Reneau”) is Endura Advisory Group, Ltd.’s (“Endura”) agent and
representative. James G. Lundblad (“Lundblad”), a principal of Endura, testified
unequivocally Reneau is an agent and representative of Endura. (Nov. R.R. Pg. 13,
line 14-18). Lundblad also testified that Reneau has business cards with Endura’s
name on them and when Reneau is out in the field leasing and selling properties for
Appellant’s Reply Brief 1
Endura, he represents himself to the public as working for Endura. (Nov. R.R. Pg.
13, line 19-21). Reneau also has the authority to enter into transactions on behalf of
Endura and actively markets on behalf of Endura. (Nov. R.R. Pg. 19, line 16-25).
Further evidencing agency and control, Lundblad testified to the following points:
(a) Reneau does not work for anyone other than Endura; (b) Reneau is required to
come to the office; (c) Reneau is required to attend sales meetings; (d) Reneau is
authorized by Endura to market and attempt to acquire listings and properties to
sell and lease for and on behalf of Endura; (e) Endura instructs Reneau on how to
manage and practice business for Endura and work within the confines of what
Endura expects from an Associate, and (f) Endura assigns Reneau tasks as it relates
to selling and leasing properties for Endura. (Nov. R.R. Pg. 15, line 22 through Pg.
line 22; Nov. R.R. Pg. 22, line 4-7; Nov. R.R. Pg. 20, line 1-11). In viewing the
facts and circumstances as a whole, the relationship between Endura and Reneau is
obviously one of principal and agent. See Gutierrez v. Deloitte & Touche, 100
S.W.3d 261, 271 (Tex. App. – San Antonio 2002, no pet.)(An agency relationship
may be found from underlying facts or direct circumstantial evidence showing the
relationship of the parties).
2. Appellee mischaracterizes the Listing Agreement. The Listing
Agreement clearly establishes Reneau as an agent and representative of Endura.
See previously filed Appendix, Confidential Exhibit 5, Listing Agreement. In an ill
Appellant’s Reply Brief 2
fated attempt to show this Court that Reneau is an independent contractor instead
of an agent or representative of Endura, Appellee, Nick Altmore (“Altomare”)
cites the Court to the Listing Agreement admitted into evidence at the November 7,
2014 hearing. See Appendix, Confidential Exhibit 5, Listing Agreement; see also
Appellee Brief at Pg. 15. Altomare points out that Section 4.3 of the Listing
Agreement states that the Broker is acting as an independent contractor and not the
Owner’s agent; however, this section refers to the relationship between Endura (as
the Broker) and the Owner (as the property owner, Star 7 Properties, LLC,
Endura’s client). See Appendix, Confidential Exhibit 5, Listing Agreement,
Section 4.3. This section has absolutely nothing to do with the relationship
between Reneau and Endura and therefore Altomare’s argument has no merit.
3. What is telling however, is that the same Listing Agreement, under
Section 4.1 states:
4.1 Key Agents. If there are any Key Agents designated in
Paragraph 1.8, then Broker [Endura] shall assign those Key
Agents [Reneau] to be primarily responsible for performing
the duties of Broker hereunder during the entire term.
(Appendix, Confidential Exhibit 5, Listing Agreement, Pg. 3, Section 4.1.
(Emphasis added)
As per Section 4.1 of the Listing Agreement Endura unequivocally assigned
Reneau, as Key Agent for Endura under the Listing Agreement, the responsibility
of performing the duties of Endura when dealing with property owner or client.
Appellant’s Reply Brief 3
This clearly demonstrates that Endura, by naming Reneau as Key Agent, has the
right to and does exercise control over Reneau, and delegates the responsibility to
Reneau to perform Endura’s duties; not an open invitation to do whatever he
wants. In fact, Section 4.1 of the Listing Agreement directs Reneau to act on
behalf of Endura when dealing with the property owner. See Neely v. Intercity
Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no writ)(An
“agent” is one who is authorized by a person or entity to transact business or
manage some affair for the person or entity); Sendjar v. Gonzales, 520 S.W.2d
478, 481 (Tex. Civ. App. – San Antonio 1975, no writ)(An essential element of the
principal-agency relationship is the principal’s right to control the actions of the
alleged agent). The Listing Agreement is proof positive that Endura has the right
to control the actions of Reneau and Reneau is authorized by Endura to transact
business and manage Endura’s affairs as it relates to the selling or leasing of
properties, making Reneau an agent and representative of Endura.
4. A thorough review of Reneau’s Associate Compensation Agreement
further reveals that it controls Reneau by and through specific requirements for
Reneau to receive additional compensation on clients and/or deals he works on for
Endura, further evidencing control by Endura over the means and details of
Reneau’s work. Id. at page JR000011-JR000012, Article II and Article III of the
Associate Compensation Agreement. Specifically, Article II and Article III of the
Appellant’s Reply Brief 4
Associate Compensation Agreement sets forth specific criteria Reneau must satisfy
in order to receive additional compensation or referral commissions. Id. For
instance, in order for Reneau to receive an additional referral fee under Article III,
one of the criteria that must be met by Reneau is “an ability to demonstrate
continuing involvement and communication with client.” Thus, the criteria set
forth in Article II and Article III of the Associate Compensation Agreement
undeniably evidences Endura’s established criteria its Associates must meet to
achieve additional fees. See Sendjar v. Gonzales, 520 S.W.2d at 481. So, while
Endura may not choose to micromanage every aspect of how an Associate gets
there (although it could do so), it absolutely imposes controls through criteria and
requirements necessary for financial advancement.
5. The claims brought by Altomare against Reneau undoubtedly arise
from the Separation Agreement. To be subject to arbitration, the “allegations need
only be factually intertwined with arbitrable claims or otherwise touch upon the
subject matter of the agreement containing the arbitration provision. In re B.P.
Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.] 2003, orig.
proceeding). Altomare has asserted claims against Reneau for breach of contract
based on an unwritten “agreement” to split “certain” undefined, unquantified
Appellant’s Reply Brief 5
commissions on real estate transactions the two worked on together. 1 Even
assuming this “agreement” to split “certain” commissions once existed through a
course of dealing, Altomare released these claims when he executed the Separation
Agreement with Endura because Altomare did not include these transactions on the
List. Further, by and through the qualification of “certain” commissions, Altomare
raises the ambiguity of this undefined “agreement” entitling Endura’s principal,
Lundblad, to explain the reasons behind the breadth of terms used in the Separation
Agreement. (Nov. R.R. Pg. 17, line 14-25). An explanation of the intent of the
parties which does not contradict the document is exactly what the parol evidence
rule is there for. Houston Exploration Co. v. Wellington Underwriting Agencies,
Ltd., 352 S.W.3d 462, 469 (Tex. 2011)(The parol evidence rule does not prohibit
consideration of surrounding circumstances that inform, rather than vary from or
contradict, the contract text). Further, Altomare failed to object to Lundblad’s
testimony and he waived any right to now complain about it.
6. By asserting claims for breach of contract against Reneau, Altomare is
effectively asserting these claims against Endura because Reneau is Endura’s agent
and representative and was released by the execution of the Separation Agreement.
Furthermore, the claims brought by Endura against Altomare are for breach of the
Separation Agreement and are undisputedly covered by the arbitration agreement
1
We know of only four (4) so far, but Altomare has not limited his right to continue to claim
future commissions on the same “agreement.”
Appellant’s Reply Brief 6
contained within the Separation Agreement. (C.R. Pg. 9-17). Accordingly,
Altomare’s claims against Reneau and Endura’s claims against Altomare arise
from and touch upon the very subject matter of the Separation Agreement and
therefore triggers the Dispute Resolution Policy incorporated into the Separation
Agreement. See Id. at 370.
7. For the reasons stated in Endura’s Brief and herein, Altomare has
failed to overcome the overwhelming evidence that Reneau’s work selling and
leasing properties and securing listing agreements for Endura is all performed as an
agent or representative of Endura and only Endura. As stated by the Texas
Supreme Court in the In re D. Wilson Constr. Co case, “a court should not deny
arbitration unless it can be said with positive assurance that an arbitration clause is
not susceptible of an interpretation which would cover the dispute at issue”. In re
D. Wilson Const. Co., 196 S.W.3d 774, 783 (Tex. 2006). With this liberal
construction in mind, it is clear from the evidence presented to the trial court that
Reneau is an agent or representative of Endura and the disputes are covered by the
Separation Agreement, thus triggering the arbitration agreement. Therefore, the
trial court erred in denying Endura’s Motion to Compel Alternative Dispute
Resolution Process and Motion to Abate Proceeding Pending Completion of the
Alternative Dispute Resolution Process and denial of same on Motion for
Reconsideration.
Appellant’s Reply Brief 7
PRAYER
This Court should reverse the trial court’s denial of Endura Advisory Group,
Ltd.’s Motion to Compel Alternative Dispute Resolution Process and Motion to
Abate Proceeding Pending Completion of the Alternative Dispute Resolution
Process and denial of same on Motion for Reconsideration and remand this case
back to the trial court to compel arbitration and for such other and further relief,
whether at law or in equity, to which Endura Advisory Group, Ltd, may be justly
entitled.
Respectfully submitted,
RICHIE & GUERINGER, P.C.
BY: /s/ Gay Gueringer
GAY GUERINGER
State Bar No. 08571400
DOUG K. CLEMONS
State Bar No. 24032083
112 East Pecan Street, Suite 1420
San Antonio, Texas 78205
Telephone: 210-220-1080
Facsimile: 210-220-1088
Email: ggueringer@rg-sanantonio.com
Email: dclemons@rg-sanantonio.com
ATTORNEYS FOR INTERVENOR,
ENDURA ADVISORY GROUP, LTD.
Appellant’s Reply Brief 8
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this reply brief contains 1,605 words, excluding the words not included in the word
count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-
generated document created in Microsoft Word, using 14-point typeface for all
text, except for footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Gay Gueringer
Gay Gueringer/Doug K. Clemons
CERTIFICATE OF SERVICE
This is to certify that on the 9th day of March 2015, a true and correct copy
of the foregoing has been served on opposing counsel as follows:
Via Electronic Service and Facsimile
Eric A. Pullen
Pulman, Cappuccio, Pullen, Benson & Jones, LLP
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
/s/ Gay Gueringer
Gay Gueringer/Doug K. Clemons
Appellant’s Reply Brief 9