Jose Alfredo Zuniga v. The State of Texas--Appeal from 230th District Court of Harris County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2007 » Jose Alfredo Zuniga v. The State of Texas--Appeal from 230th District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 14-06-00406-CR

Case Date: 06/12/2007

Plaintiff: Jose Alfredo Zuniga

Defendant: The State of Texas--Appeal from 230th District Court of Harris County

Preview:Bob Chambers, et al. v. John M. O'Quinn, individually
d/b/a O'Quinn & Laminack, and John M. O'Quinn,
P.C.--Appeal from 61st District Court of Harris County
Opinion issued October 1, 2009 In The Court of Appeals For The First District of Texas ____________ NO. 01-04-
01029-CV BOB CHAMBERS, et al., Appellants1 V. JOHN O’QUINN, JOHN M. O’QUINN, P.C., and JOHN M.
O’QUINN D/B/A O’QUINN & LAMINACK, Appellees On Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 1999-58265 OPINION ON REMAND FROM THE TEXAS SUPREME COURT 1 A f ull list
of appellants appears as Appendix A to this opinion. 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. 2 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.2 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.3 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 2 I n re Chambers , cause number 14-02-00020-
CV in the Fourteenth Court of Appeals. In re Chambers , cause number 02-0154 in the Texas Supreme Court. 3 3
summary judgment in those proceedings. The arbitrator granted appellees’ summaryjudgment motion and entered an
award that appellants take nothing on their claims. Appellants filed a new lawsuit to vacate the arbitration award.4 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.5 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 4 C ause number 2005-17972 was originally
filed in the 113th District Court, Harris County, Texas, but was transferred to the 61st District Court, Harris County,
Texas. 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. 4 5
lacked appellate jurisdiction and were bound by these previous rulings denying mandamus. Id. at *2. The Texas
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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. 5 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 6 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.” 7 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
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Antonio 2003, 8 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. 9 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 10 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
attorneyclient 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, 11 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 12 federal, rather than Texas law, controls under the terms of the contract.6 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
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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 6 T exas 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 his agreement involves interstate commerce. 13 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 14 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 15 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. 16 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
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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 17 (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)). 18 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 19 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 20 overrule appellants’ first point of error. Dismissal for Want of Prosecution Appellants argue in their
second point of error that the trial court erred in dismissing their suit for want of prosecution and request that the trial
court’s dismissal be reversed. The trial court signed an order on July 21, 2004, dismissing appellants’ suit for want of
prosecution because no final arbitration hearing had commenced by July 9, 2004, as ordered. As an initial matter,
appellants claim that the trial court’s order threatening dismissal unless arbitration was commenced by July 9, 2004 was
not a notice of trial or “dispositive” setting and that the court could not dismiss until giving additional notice of
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potential dismissal with a hearing on a date certain. Appellants further claim that they were confused as to precisely
what actions had to be taken to avoid dismissal. Finally, appellants claim that they received no notice of the trial
court’s order informing them that “unless a final hearing on Plaintiff’s claims has commenced before the American
Arbitration Association on or before July 9, 2004, Plaintiff’s claims shall be DISMISSED FOR WANT OF
PROSECUTION.” Even assuming that appellants received no notice of the trial court’s intention to dismiss their suit
for want of prosecution, we hold that any such error was harmless because appellants were given an opportunity to be
heard on their motion to reinstate, filed after the dismissal for want of prosecution. See Franklin v. Sherman Indep.
Sch. 21 Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied). Appellants filed a “Motion for Reinstatement
and/or New Trial,” which contained arguments identical to those presented on appeal. After a full hearing on August
20, 2004, the trial court denied appellants’ motion. If a party receives the same hearing before the trial court that it
would have had before the dismissal was signed, no harmful error is committed. Id. at 403. Jimenez v. Transwestern
Property Company, 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.), also shows that any error
did not harm the appellants. In that case, the appellant was not given notice of the trial court’s intent to dismiss for
want of prosecution but was given a hearing on the motion to reinstate. Id. at 129. The court held that the hearing on
appellant’s motion to reinstate “satisfied the due process rights applicable to the dismissal of his case.” Id. Therefore,
assuming without deciding that the trial court erred in dismissing appellants’ case, we hold that such error was
harmless. Id. We overrule appellants’ second point of error. Conclusion We affirm the judgment of the trial court. 22
Tim Taft7 Justice Panel consists of Justices Keyes, Hanks, and Taft. 7 Justice Tim Taft, who retired from the First
Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was
submitted on June 23, 2009. 23 Appendix A 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.
24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. ALLEN, ANGELESTINE ALLEN, ALTON ALLEN,
BERTRAND ANDERSON, DONALD ARCLESSE, ANDRE ARCLESSE, FRANKIE ARCLESSE, CLARENCE
ARCLESSE, CLARENCE (JR.) AUGUST, ANTHONY BABERS, HENRY BABERS, ABDULAH BABERS,
RODERICK BABERS, MARIE BANKS, PARIS BELL, DOROTHY BELL, ALECIA BLACKSHEAR, JERRY
BLACKSHEAR, OLEVIA BLACKSHEAR, THELMA BOLDEN, SHERRY BOUGERE, CECILIA BOUGERE,
ROME BOUGERE, ROME (JR.) BOYD, BIRDIE BOYD, WILLIAM (JR.) BOYD, ANGELA BOYD, RODERICK
BOYD, RYAN BROADNAX, EZELL BROADNAX, IRENE BROADNAX, SHARON BROWN, CEDRIC BROWN,
LATREYA BROWN, LATANYA BRYANT, EARNESTINE BUCKNER, ARTHUR (II) BUCKNER, SANCHA
BUCKNER, ARTHUR (III) 1 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.
63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. BUCKNER, MARTHA CAMPBELL, JOHN CARMEN,
LEVON CARMEN, MARVI CARMEN, LIONEL CHAMBERS, BOB CHAMBERS, DANIEL CHAMBERS,
KEVIN D. CHAMBERS, KENNETH W. (SR.) CHAMBERS, KENNETH W. (JR.) CHAMBERS, BOBBY
CHAMBERS, SANDRA CHAMBERS, CHRISTINA CHAMBERS, COURTNEY COMEAUX, ANN GELL
COMEAUX, REV. LEARON COMEAUX, SANDRA COMEAUX, LEARON (JR.) COTTON, MARILYN DAVIS,
JAMES DAVIS, JASON DAVIS, NIKIA DAVIS, LOIS DEMBY, HERBERT DEMBY, ROSA DIXON,
LAWRENCE DUGAR, JOSEPH DUPLECHAIN, PATRICIA DUPLECHAIN, LAWRENCE ERZELL, KIRK
ETIENNE, PEARLEY ETIENNE, D. DYRON ETIENNE, ADAM ETIENNE, DEANDRA FACTOR, JERRY
FACTOR, JACQUELINE FIELDER, VIVIAN FIELDER, OTIS FOSTER, JANISHA FOSTER, RAIMON 2 79. 80.
81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109.
110. 111. 112. 113. 114. 115. 116. 117. 118. FOSTER, JANICE FREEMAN, BETTY GANTS, BARTHOLOMEW
GARDNER, ANITA GARRETT, JAMES GEORGE, KENNETH GEORGE, ALICE GIPSON, LATRICE GIPSON,
REGINALD GLOVER, PERRY GLOVER, ROSA GLOVER, TELISHA GLOVER, TRACY GRADY, WILLIAM
GREEN, LUCY GREER, VERONICA GREER, LACHEA GUILLORY, FALONIA GUILLORY, JOHN GUY, JOHN
GUY, BETTIE HAMILTON, HELEN HOLLEY, CATHRESHA JACKSON, OLETHA JOHNSON, DIMITRIA
JOHNSON, MONTIQUE JOHNSON, RUFUS JOHNSON, FERDANA JOHNSON, DOROTHY JOHNSON,
FREDDIE (JR.) JONES, DARRELL JORDAN, DARRELL JORDAN, VERNA JORDEN, BOBBY (JR.) JORDEN,
EBONY JORDEN, ROSA JORDEN, ROSALYN JORDEN, BOBBY JORDEN, BOBBY (SR.) JOSEPH, LEROY 3
119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142.
143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. KINNERSON, TERRENCE KINNEY,
DAVIS LEE, LILLYANN LEWIS, RODNEY LEWIS, RUBY LEWIS, JOHN LINER, BETTY LINER, LEON LOTT,
WILLIAM MAYS, CHERYL MAYS, TERRENCE MAYS, GREGORY MCGREW, HELEN MCGREW, JOHNNIE
MILLS, MARION MILLS, ROBRIAN MINOR, GENTRY (SR.) MINOR, HORACE MINOR, HAZEL MINOR,
TRENT MINOR, GENTRY (JR.) MINOR, MARTHA MINOR, SCHERAZADE PAGE, FRANK PICKENS,
ALFRED PICKENS, ROSHALETTE PICKENS, CONSTANCE RANDLE, DANIEL RANDLE, KIMBERLY
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RANDLE, GWEN RANDLE, ANGELA REDMOND, LILLIE REDMOND, ALBERT RICHARDSON, CYNTHIA
RICHARDSON, ROBERT ROBERTS, RODERIC ROBERTS, CREIGHTON ROBERTS, DELORES ROBERTS,
CURTIS ROBINSON, JEROME 4 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175.
176. 177. 178. 179. 180. 181. 182. 183. ROGERS, XAVIER ROSETTE, BERNISE SHAW, DEBRA SMITH,
NORLEAN STEWART, JOHN W. STEWART, NORMA STEWART, RODNEY TAYLOR, MARY THOMAS,
ELLEN THOMAS, ERICKA THOMPSON, JERRY THOMPSON, MARY E. THOMPSON, ANITRIA THOMPSON,
MARGIE WARD, CHRISTINA WARD, CLARENCE (III) WICKS, WANDA WILCOX, CHARLES WILCOX,
CHARLES D. WILCOX, LATOYA WILCOX, JOAN WILLIAMS, LOLA ANN WILLIAMS, JAMES WILSON,
THERIS WRIGHT, WILMA 5
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