ACCEPTED
03-15-00422-CV
6850555
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/9/2015 3:18:35 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00422-CV
RECEIVED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
9/9/2015 3:18:35 PM
THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
AT AUSTIN, TEXAS
Shakeel Mustafa,
Appellant September 10, 2015
v.
Felix Rippy,
Appellee
Appealed from Cause No. 15-0708-CC4 in the
County Court at Law Number Four, Williamson County, Texas
Appellant’s Motion for Rehearing
APPELLANT REQUESTS ORAL ARGUMENT
Christopher D. Osborn
State Bar No. 24037221
Osborn Law Firm, P.C.
1019 Cecelia St.
Taylor, Texas 76574
512-275-6593
512-309-5317 fax
chris@osbornpc.com
Attorney for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . 2
ISSUES PRESENTED FOR REVIEW . . . . . . 4
STATEMENT OF FACTS . . . . . . . . 4
ARGUMENT . . . . . . . . . . 6
Issue One. This court has jurisdiction to consider the interlocutory
appeal of Appellant related to the denial of his motion to compel
arbitration pursuant to the AAA Consumer Arbitration Rules.
PRAYER . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . 11
APPENDIX . . . . . . . . . . 12
INDEX OF AUTHORITIES
Federal Code:
9 U.S.C. § 16 . . . . . . . . . 3, 4
Texas Statutes:
TEX. CIV. PRAC. & REM. CODE § 51.016 . . . . . 3, 4
TEX. CIV. PRAC. & REM. CODE § 154.027 . . . . 4
Texas Case Law:
CMH Homes v. Perez, 340 S.W.3d 448 (2011) . . . . 4
Little v. Tex. Dep't of Crim. Justice, 148 S.W.3d 374 (Tex.2004) . 4
2
ISSUES PRESENTED FOR REVIEW
Issue One. This court has jurisdiction to consider the interlocutory appeal of
Appellant related to his motion to compel arbitration pursuant to the AAA Consumer
Arbitration Rules.
STATEMENT OF FACTS
Rippy filed a collection lawsuit against Mustafa, a former client of Rippy.
Rippy’s original petition requested Mustafa be jailed for 180 days, fined up to $500,
and confined in the county jail until Mustafa paid the alleged debt. Each party
submitted motions to compel arbitration, with the difference being that Mustafa
requested the AAA Consumer Arbitration Rules be applied. The Honorable John
McMaster granted Rippy’s motion to compel arbitration and denied Mustafa’s
motion. Mustafa’s subsequent motion to stay the case pending arbitration was
granted, and the Honorable Gary Harger was appointed arbitrator with authority to
decide all questions of law and fact.
ARGUMENTS AND AUTHORITIES
Section 51.016 of the Texas Civil Practice and Remedies Code provides that
a party may appeal a judgment or interlocutory order "under the same circumstances
that an appeal from a federal district court's order or decision would be permitted by
9 U.S.C. Section 16." TEX. CIV. PRAC. & REM. CODE § 51.016. Section 16 of
the FAA provides that “(a) An appeal may be taken from (1) an order (A) refusing a
3
stay of any action under section 3 of this title, (B) denying a petition under section 4
of this title to order arbitration to proceed, (C) denying an application under section
206 of this title to compel arbitration . . . .” 9 U.S.C. § 16.
Civil Practice and Remedies Code section 51.016 expressly adopts federal
law. Thus, an interlocutory appeal is permitted only if it would be permitted under
the same circumstances in federal court under section 16. CMH Homes v. Perez, 340
S.W.3d 448-9 (2011) (citing Little v. Tex. Dep't of Crim. Justice, 148 S.W.3d 374,
381-82 (Tex.2004) (examining federal law when interpreting state statute that
incorporated federal statute)).
In this case, Appellant is not contesting the existence of an arbitral agreement.
To the contrary, Appellant is appealing the denial of his motion to compel mediation
then arbitration pursuant to the agreement and AAA Consumer Arbitration Rules.
The agreement between the parties provides “THE PARTIES AGREE TO
MEDIATE ALL SUCH DISPUTES PRIOR TO ARBITRATION.” (emphasis in
original). Appellant’s motion to the trial court requested mediation and arbitration
be initiated following the AAA Consumer Arbitration Rules, pursuant to the Federal
Arbitration Act (9 U.S.C. sec 1 et seq.) and/or pursuant to Texas Civil Practice &
Remedies Code section 154.027.
The denial of Appellant’s motion to compel arbitration constitutes an order
from which an interlocutory appeal is authorized under the FAA. 9 U.S.C. § 16.
4
Thus, Appellant requests this court reconsider its ruling that it does not have
jurisdiction to hear this interlocutory appeal. Therefore, Appellant requests the
opportunity to fully address this issue through argument to this Court.
PRAYER
For the reasons stated in this motion, Appellant asks the Court to grant this
motion for rehearing, withdraw its opinion, recognize it has jurisdiction, and allow
Appellant to fully brief this issue.
Respectfully submitted,
/s/ Chris Osborn .
Christopher Osborn
State Bar No. 24037221
Osborn Law Firm, P.C.
1019 Cecelia St.
Taylor, TX 76574
512-275-6593
512-309-5317
chris@osbornpc.com
Attorney for Appellant
5
CERTIFICATE OF COMPLIANCE
In accordance with the Texas Rules of Appellate Procedure 9.4, the
undersigned attorney of record certifies that this brief contains 14-point typeface for
the body of the document, 12-point typeface for footnotes in the brief, and contains
510 words as indicated by the word count software, excluding those words identified
as exempt from the word count under the rule and was prepared on Microsoft Word.
/s/ Chris Osborn .
Christopher Osborn
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Brief was served on Appellee, Felix Rippy, via
electronic mail before 5:00 p.m. this 9th day of September, 2015.
/s/ Chris Osborn .
Christopher Osborn
CERTIFICATE OF CONFERENCE
I certify that I contacted Appellee, Felix Rippy, via electronic mail to
felixrippy@aol.com on September 9, 2015, and he is opposed to this motion.
/s/ Chris Osborn .
Christopher Osborn
6
APPENDIX
EXHIBIT 1 – APPELLANT’S MOTION TO COMPEL ARBITRATION
PURSUANT TO THE AAA CONSUMER ARBITRATION RULES
(Exhibit 1 includes the arbitration agreement as an attachment)
APPENDIX
Cause No. 15-0708-CC4
FELIX RIPPY, § IN THE COUNTY COURT
Plaintiff §
§
v. § AT LAW NUMBER 4
§
SHAKEEL MUSTAFA, §
Defendant § WILLIAMSON COUNTY, TEXAS
DEFENDANT’S OBJECTION TO PLAINTIFF’S ASSSIGNMENT, AND
DEFENDANT’S MOTION TO COMPEL MEDIATION THEN ARBITRATION PURSUANT TO AAA
CONSUMER ARBITRATION RULES AND IN THE ALTERNATIVE MOTION TO DISMISS
1. Shakeel Mustafa, Defendant, asks the Court to refer the dispute between Rippy &
Taylor, P.C. and Shakeel Mustafa, Individually, to alternative dispute resolution (ADR) under
the authority of Texas Civil Practice & Remedies Code and pursuant to the Federal
Arbitration Act. Defendant alternatively requests that Plaintiff’s petition be dismissed for
failure to cure defects noted in Defendant’s Special Exceptions and due to the defective
purported assignment.
INTRODUCTION
2. Plaintiff, Felix Rippy, Individually, filed suit against Shakeel Mustafa. The attorney-
client agreement attached to Plaintiff’s Original Petition is between Rippy and Taylor, P.C.
and Mr. Mustafa. After Defendant filed special exceptions objecting to the case filed on behalf
of Felix Rippy, Individually, and after this Court’s order allowing Plaintiff to re-plead on June
12, 2015, the style of this case remains filed on behalf of Felix Rippy, Individually. Plaintiff
failed to cure the defects, instead alleging that all claims have been assigned to him,
individually.
Defendant’s Motion to Compel Mediation and Arbitration Pursuant to AAA Consumer Arbitration Rules
Page 1
OBJECTION TO PURPORTED ASSIGNMENT
3. Defendant objects to Plaintiff’s purported assignment of the underlying contract
from the professional corporation to himself, individually. The underlying contract, which
is attached hereto and incorporated herein as Exhibit “1” provides in paragraph five that “[a]
referral to an attorney outside the firm may require a separate contract with that attorney
and will not be done without Client’s consent.” (emphasis added). Thus, the purported
assignment here is improper because the agreement specifies that if it is to be sent “outside
the firm [Rippy & Taylor, P.C.],” it requires “the Client’s consent.”
4. Assignments should be permitted or prohibited based on the likely effect on society,
and in particular, on the legal system. Employing a public policy analysis, the majority of
courts in this country have concluded that at least some claims arising out of the attorney-
client relationship are not assignable. Vinson & Elkins v. Moran, 946 SW 2d 381 (Tex.App.
Houston [14th Dist.] 1997) (analyzing malpractice claims).
PLAINTIFF’S REQUEST FOR CONTEMPT FINDINGS SHOULD BE DISMISSED
5. Plaintiff mistakenly claims that the final decree of divorce between Mr. Mustafa and
his ex-wife constitutes a secured judgment in the amount of $17,500 against Mr. Mustafa,
individually. However, due process requires this issue to be adjudicated before it should be
treated as a violation of any court order. The phrase relied on by Plaintiff is found in the
underlying divorce decree requiring each litigant pay their own attorney’s fees, but this does
not equal language that supports a finding of contempt. The Texas Supreme Court analyzed
this issue in Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995): “A court order is
insufficient to support a judgment of contempt only if its interpretation requires inferences
or conclusions about which reasonable persons might differ.” MacCallum, 807 S.W.2d at 730.
Defendant’s Motion to Compel Mediation and Arbitration Pursuant to AAA Consumer Arbitration Rules
Page 2
The existence of reasonable alternative constructions of a court order will prevent
enforcement of the order. See, e.g., Ex parte Crawford, 684 S.W.2d 124 (Tex.App.Houston
[14th Dist.] 1984, orig. proceeding) (holding an obligor in contempt who knew with certainty
he was to pay one of two amounts of child support but ignored the order altogether). Here,
there was no order to pay a specific amount. In fact, Defendant will testify that no invoice
was ever received by him and that this suit is in retaliation for filing a grievance with the
State Bar of Texas.
PLAINTIFF’S CLAIMS SHOULD BE DISMISSED FOR FAILURE TO CURE DEFECT OF PARTIES
6. Plaintiff has not cured the defects noted in Plaintiff’s special exceptions and there
remains a defect in the parties. Plaintiff’s claim should be dismissed in its entirety without
prejudice.
MOTION TO COMPEL MEDIATION THEN ARBITRATION WITH AAA CONSUMER
ARBITRATION RULES
7. In the event the Court does not dismiss this suit, Defendant requests that the Court
order that Plaintiff follow the terms of the agreement requiring mediation. Defendant
requests that the Court order mediation pursuant to the agreement that provides “THE
PARTIES AGREE TO MEDIATE ALL SUCH DISPUTES PRIOR TO ARBITRATION.” (emphasis
in original). Defendant requests the Court order mediation pursuant to Texas Civil
Practice & Remedies Code section 154.023.
8. If mediation does not resolve the dispute, Plaintiff asks this Court to order binding
arbitration between Rippy and Taylor, P.C. and Defendant, following the AAA Consumer
Arbitration Rules, pursuant to the Federal Arbitration Act (9 U.S.C. sec 1 et seq.) and/or
pursuant to Texas Civil Practice & Remedies Code section 154.027.
Defendant’s Motion to Compel Mediation and Arbitration Pursuant to AAA Consumer Arbitration Rules
Page 3
9. This case is appropriate for referral to ADR because there is a binding arbitration
agreement between Defendant and Rippy and Taylor, P.C.
ADDITIONAL SPECIAL EXCEPTIONS
10. Defendant specially excepts to Plaintiff’s claim that “Felix Rippy … has individual
claims against Shakeel Mustafa, as well” in that there is not specificity as to the basis of these
purported claims that Plaintiff contends exist in addition to the contractual claims of Rippy
and Taylor, P.C. If there are indeed other facts or causes of action that will be asserted, the
question of whether those claims are arbitrable will require a separate inquiry because there
is no arbitration agreement between Felix Rippy, Individually, and Defendant.
CONCLUSION
For these reasons, Defendant asks the Court to dismiss this suit or render judgment
that plaintiff take nothing, assess costs and fees against plaintiff, and award all other relief to
which defendant is entitled. Defendant asks the Court to strike the defective portions of
Plaintiff’s pleading. Alternatively, Defendant asks this Court to compel mediation followed
by binding arbitration, if necessary, between Rippy and Taylor, P.C. and Defendant, following
the AAA Consumer Arbitration Rules.
RESPECTFULLY SUBMITTED,
OSBORN LAW FIRM, P.C.
By: /s Chris Osborn .
Christopher D. Osborn
State Bar No. 24037221
1019 Cecelia Street
Taylor, Texas 76574
512-275-6593
512-309-5317 fax
chris@osbornpc.com
Defendant’s Motion to Compel Mediation and Arbitration Pursuant to AAA Consumer Arbitration Rules
Page 4
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing document has been served
on each attorney of record or party in accordance with the Texas Rule of Civil Procedure 21a
on this 19th day of June 2015.
/s/Chris Osborn .
Christopher D. Osborn
Felix Rippy ❒ hand-delivery
3000 Joe DiMaggio, Ste. 3
Round Rock, TX 78665 x❒ telecopy
512-310-9500
512-310-2580 fax ❒ first class mail
❒ certified mail, return receipt requested
Defendant’s Motion to Compel Mediation and Arbitration Pursuant to AAA Consumer Arbitration Rules
Page 5
ATTORNEY/CLIENT ENGAGEMENT AGREEMENT
(Hourly Basis)
2. Client, in consideration of services to be re nd e red by Attorn_>;Y to Client, retains Attorney to
represent him/her as attorney in connection with �v� s bP,,f-c (-e.. r M ( , J4v-v1'c , .., I/·()�� ( - R: /
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It is understood and a gre ed by the parties that Attorney's re prese n tation ends upon the ent y a final order �4'-1 �
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disposing of the Client's case and does 11ot i n clud e the filing of any post -t ri al motions 01· appe
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3. If, in the future, Client desi1·es Attorney to represent Clienr in any other matter, that will be the
subject of additional discussions nnd an nclditionnl engagement ngreement. Attorney's fee will include only
services in connection with the matter listed in Paragraph 2 above.
Client and Attorney agr·ee:
4. A ttorn ey will devote his professio118I abilities to the matter, stri v e to keep Client informed of
significant developments in t his case and be reasonably available to answer inquiries. Client agrees to fully
coope rate with Attorney, including but not limited to k eepi n g Attorney advised of all developments relate d
to this m a tter, informing Attorney prnrnptly of any c ha n g e in Client's a dd res s or telephone number, and
promptly responding to Artorney·s inquir ies . Where applicable, ne ith er Attorney nor Client will settl e the
case without the othe r's written a p p roval .
5. Client empowers Attorney to take all ste ps in said matter d eemed by A ttorney to be advisable. Client
understands and agrees t ha t Attorney wi 11, to the extent Attorney believes it to be reasonable, c oo pe rate with
any opposing attorney concerning set t i n gs for trial or hearing, sched uling d epositions or meet ings , and
w het h er to request or a gree to continuances or d elay s . The undersigned attorney may deem it advisable to
refer Client's case to an other attorney with in the firm of Rippy & Taylor, PC, or to an a ttorn ey outside the
firm. A referral to an attorney outside t he firm may require a separate contract with that attorney and will
not be done without Client's co11se11t.
6. C lient agrees t o compensate Attorney for his services at th te of$ SOO per hour for the
time which is devoted to Client's case wit h a m i n i mum fee of$ 3sc:io ci.e"A which sha 11 be considered
earned at the t i me Attorney commences work 011 Cl ie nt ' s case. here applicable, this minimum fee is
inten ded to c o m pen s a t e Attorney for the preparation and fi ling of initial pl ead in gs , for all o ca tin g the time
and resources of Attorney and the staff of the law firm to Client's case, for the n ature and complexity of
Client ' s case and the experience of the Attorney hand Ii rig the matter and to compensate Attorney for the
potentiality that, by accepting this employment, Attorney may also be precluded from accepting other
employment. From t i me to time it may be n e c essary for other memb ers of the law firm to assist in the
Client ' s matter, and Client agrees to c ompens at e Attorney for these services at the fol l o wi ng rates:
Page I of 3
Partner attorney: $300/hr
Legal assistant $ 75/hr
Client agrees to pay to Attorney all costs and disbursements incurred in said matter. For th e
following expenses, and no others, Attorney will charge a per case flat fee of $25.00: (I) long distance
telephone ch arges; (2) in-office photocopy ex p e nses; (3) fir s t class postage (not certified or priority maiI);
and (4) facsimile c harg es All other expenses will be bi ll ed to Clie nt in the actual amount inc urre d
. .
7. Cl ien t will pay A tto rney the sum
Agre ement .
of
A ttorney will not take any action
t Jeo�.e.