Endura Advisory Group Ltd. v. Dominic Altomare, Josh Reneau
Opinion
ACCEPTED 04-14-00889-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/27/2015 12:12:08 PM KEITH HOTTLE CLERK
IN THE FOURTH COURT OF APPEALS AT SAN ANTONIO FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/27/2015 12:12:08 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, 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 NO. 04-14-00889-CV ENDURA ADVISORY GROUP, LTD., APPELLANT VS. DOMINIC ALTOMARE, APPELLEE
IDENTITY OF PARTIES
Party Represented By: Endura Advisory Group, Ltd., Gay Gueringer (SBN 08571400) Appellant/Intervenor Doug K. Clemons (SBN 24032083) Richie & Gueringer, P.C. 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 Dominic Altomare, Eric A. Pullen (SBN 24007881) Appellee/Plaintiff Sarah A. Reyes (SBN 24088292) Pulman, Cappuccio, Pullen, Benson & Jones, LLP 2161 N.W. Military Hwy, Suite 400 San Antonio, Texas 78213 Tel: 210-222-9494 / Fax: 210-892-1610 Email: epullen@pulmanlaw.com Email: sreyes@pulmanlaw.com Josh Reneau, Gay Gueringer (SBN 08571400) Defendant Doug K. Clemons (SBN 24032083) Richie & Gueringer, P.C. 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
Identity of Parties TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF JURISDICTION..........................................................................1 REQUEST FOR ORAL ARGUMENT ..................................................................... 1
APPELLANT’S ISSUES PRESENTED FOR REVIEW.......................................... 1 INTRODUCTION .....................................................................................................2
STATEMENT OF FACTS ........................................................................................2 SUMMARY OF THE ARGUMENT ........................................................................ 8
ARGUMENT AND AUTHORITIES .................................................................... 8 Issue No. 1: The trial court erred by denying Endura’s Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process and the Motion for Reconsideration of Denial of Its Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process. .................................. 9
A. Standard of Review .......................................................................................9 B. The Pleadings and Evidence Presented Establish that the Parties’ Dispute Arises from the Separation Agreement Therefore Triggering the Dispute Resolution Process ...................................................................10 C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare .... 11
D. The Claims Brought in the Lawsuit Fall Within the Separation Agreement Triggering the Alternative Dispute Resolution Process...........12
E. Reneau is an Agent or Representative of Endura .......................................13 F. Endura Intended for the Separation Agreement to include Reneau ........... 17 G. The Separation Agreement..........................................................................19
Appellant’s Brief Page ii Issue No. 2: Altomare failed to present or prove a defense to the enforcement of the Dispute Resolution Policy. ....................................................22
CONCLUSION ........................................................................................................23
PRAYER ..................................................................................................................23
CERTIFICATE OF COMPLIANCE .......................................................................25
CERTIFICATE OF SERVICE ................................................................................25
APPENDIX ..............................................................................................................26
Appellant’s Brief Page iii INDEX OF AUTHORITIES CASES Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 450-51 (Tex. 2011) ...............................................................................................18 Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio 2005, orig. proceeding) ...................................................................................................10 Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st Dist.] 1996, no writ) .............................................................................................17
EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) ..................................10
Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet. denied) ..................................................................................................................10
Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio 2002, no pet.) ..........................................................................................14
In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.] 2003, orig. proceeding).........................................................................13, 21 In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) .......................13, 17
In re Medallion, Ltd., 70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 2002, orig. proceeding).............................................................................10, 11, 12
In re Olshan Found. Repair Co., 328 S.W.3d 883, 893 (Tex. 2010) ......................10 Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011) ............................................................................................17 J.M. Davidson, Inc. v.
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ACCEPTED 04-14-00889-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/27/2015 12:12:08 PM KEITH HOTTLE CLERK
IN THE FOURTH COURT OF APPEALS AT SAN ANTONIO FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/27/2015 12:12:08 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, 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 NO. 04-14-00889-CV ENDURA ADVISORY GROUP, LTD., APPELLANT VS. DOMINIC ALTOMARE, APPELLEE
IDENTITY OF PARTIES
Party Represented By: Endura Advisory Group, Ltd., Gay Gueringer (SBN 08571400) Appellant/Intervenor Doug K. Clemons (SBN 24032083) Richie & Gueringer, P.C. 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 Dominic Altomare, Eric A. Pullen (SBN 24007881) Appellee/Plaintiff Sarah A. Reyes (SBN 24088292) Pulman, Cappuccio, Pullen, Benson & Jones, LLP 2161 N.W. Military Hwy, Suite 400 San Antonio, Texas 78213 Tel: 210-222-9494 / Fax: 210-892-1610 Email: epullen@pulmanlaw.com Email: sreyes@pulmanlaw.com Josh Reneau, Gay Gueringer (SBN 08571400) Defendant Doug K. Clemons (SBN 24032083) Richie & Gueringer, P.C. 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
Identity of Parties TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF JURISDICTION..........................................................................1 REQUEST FOR ORAL ARGUMENT ..................................................................... 1
APPELLANT’S ISSUES PRESENTED FOR REVIEW.......................................... 1 INTRODUCTION .....................................................................................................2
STATEMENT OF FACTS ........................................................................................2 SUMMARY OF THE ARGUMENT ........................................................................ 8
ARGUMENT AND AUTHORITIES .................................................................... 8 Issue No. 1: The trial court erred by denying Endura’s Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process and the Motion for Reconsideration of Denial of Its Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process. .................................. 9
A. Standard of Review .......................................................................................9 B. The Pleadings and Evidence Presented Establish that the Parties’ Dispute Arises from the Separation Agreement Therefore Triggering the Dispute Resolution Process ...................................................................10 C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare .... 11
D. The Claims Brought in the Lawsuit Fall Within the Separation Agreement Triggering the Alternative Dispute Resolution Process...........12
E. Reneau is an Agent or Representative of Endura .......................................13 F. Endura Intended for the Separation Agreement to include Reneau ........... 17 G. The Separation Agreement..........................................................................19
Appellant’s Brief Page ii Issue No. 2: Altomare failed to present or prove a defense to the enforcement of the Dispute Resolution Policy. ....................................................22
CONCLUSION ........................................................................................................23
PRAYER ..................................................................................................................23
CERTIFICATE OF COMPLIANCE .......................................................................25
CERTIFICATE OF SERVICE ................................................................................25
APPENDIX ..............................................................................................................26
Appellant’s Brief Page iii INDEX OF AUTHORITIES CASES Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 450-51 (Tex. 2011) ...............................................................................................18 Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio 2005, orig. proceeding) ...................................................................................................10 Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st Dist.] 1996, no writ) .............................................................................................17
EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) ..................................10
Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet. denied) ..................................................................................................................10
Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio 2002, no pet.) ..........................................................................................14
In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.] 2003, orig. proceeding).........................................................................13, 21 In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) .......................13, 17
In re Medallion, Ltd., 70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 2002, orig. proceeding).............................................................................10, 11, 12
In re Olshan Found. Repair Co., 328 S.W.3d 883, 893 (Tex. 2010) ......................10 Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011) ............................................................................................17 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) ............11, 12, 22
Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App. – Corpus Christi 1984, no writ) ...................................................................22
Lyons v. Lindsey Morden Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App. – El Paso 1998, no pet.) ........................................................................................23
Appellant’s Brief Page iv Neely v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no writ)......................................................................................14, 16
Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).........................................10
Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) .........................................10
Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 443 S.W.3d 196, 202 (Tex. App – Corpus Christi 2013, pet. filed)........................................................10 Sendjar v. Gonzales, 520 S.W.2d 478, 481 (Tex. Civ. App. – San Antonio 1975, no writ) .......................................................................................................14 Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. – Texarkana 2002, pet denied) ................................................................................14
Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler 2000, pet. withdrawn) .....................................................................................14, 22
STATUTES TEX. CIV. PRAC. REM. CODE § 171.098(a)(1) ............................................................ 1
TREATISES 3 TEX. JUR. 3D Agency §50 (1996) .......................................................................22
Appellant’s Brief Page v STATEMENT OF THE CASE
Nature of the Case: This is a breach of contract case triggering an arbitration provision.
Trial Court: The Honorable Judge Martha Tanner, Visiting Judge sitting in the 57th Judicial District, Bexar County, Texas.
Trial Court Disposition: Denial of 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. 1
STATEMENT OF JURISDICTION
This Honorable Court has jurisdiction over this interlocutory appeal pursuant
to Section 171.098 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. REM. CODE § 171.098(a)(1).
REQUEST FOR ORAL ARGUMENT
The Appellants, Endura Advisory Group, Ltd. (“Endura”), respectfully
requests oral argument. Oral discussion of the facts and the applicable precedent
would benefit the Court.
APPELLANT’S ISSUES PRESENTED FOR REVIEW
The Trial Court erred in refusing to compel the alternative dispute resolution
process because: (1) the pleadings and evidence presented show the parties’
1 For ease of reference in referring to the Reporter’s Record, the hearing conducted on October 27, 2014 will be referred to as the Oct. Reporter’s Record (“Oct. R.R.”) and the re-hearing conducted on November 7, 2014 will be referred to as the Nov. Reporter’s Record (“Nov. R.R.”).
Appellant’s Brief Page 1 dispute arises out of the Separation Agreement which triggers the Dispute
Resolution Policy contained within the Separation Agreement and (2) Dominic
Altomare (“Altomare”) failed to present or prove a defense to the enforcement of
the Dispute Resolution Policy.
INTRODUCTION
1. This is a suit for breach of contract triggering an agreement to
arbitrate. Endura and Altomare included an alternative dispute resolution process
as part of a bargained for, valid and enforceable contract governing the departure
of Altomare from Endura. Altomare’s suit against Josh Reneau (“Reneau”)
requiring Endura’s Intervention in this case fall within those claims released in the
contract and trigger the alternative dispute resolution process. The trial court
refused to compel the alternative dispute resolution process and abate the
proceeding pending completion of the alternative dispute resolution process.
Endura asks this Court to reverse the trial court and remand to compel arbitration.
STATEMENT OF FACTS
2. This case involves a dispute over real estate commissions and an
agreement to arbitrate addressed in a Separation Agreement (the “Separation
Agreement”). Endura Advisory Group, Ltd. (“Endura”) is seeking to compel
arbitration of Nick Altomare’s (“Altomare”) claims against Josh Reneau
(“Reneau”) and Endura’s claims against Altomare based on an arbitration
Appellant’s Brief Page 2 agreement contained within the Separation Agreement executed by Altomare
governing his departure from Endura and all claims released as a part of that
departure. There were two hearings in the trial court on Endura’s Motion to
Compel Arbitration. The first hearing occurred on October 27, 2014 and the re-
hearing occurred on November 7, 2014.
3. By way of background, Altomare is a real estate broker who was a
limited partner of Endura, a commercial real estate company. (C.R. Pg. 10). 2 In
August of 2013, Endura offered Altomare an opportunity to disassociate from
Endura under more beneficial terms than those required of Endura (in its Second
Amended and Restated Limited Partnership Agreement) in lieu of Endura
terminating his position as a limited partner and as an agent/independent
contractor. (C.R. Pg. 10). In order to avoid being terminated, Altomare elected to
“voluntarily” separate from Endura. (C.R. Pg. 10). On or about August 19, 2013,
Altomare executed the Separation Agreement relating to his dissociation from
Endura. (Appendix, Confidential Exhibit 1, a true and correct copy of the
Separation Agreement. 3) As part of the Separation Agreement, Altomare released
Endura and a litany of others including its agents and representatives from all
2 “C.R.” will denote the Clerk’s Record. 3 Confidential Exhibit 1 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg. 31, Line 6-Pg. 32, Line 1) but was withdrawn at the end of the hearing to preserve confidentiality (Nov. R.R. Pg 45, Line 6-17). Pursuant to the Clerk’s instructions, a true and correct copy of Confidential Exhibit 1 has been filed as part of a separate appendix.
Appellant’s Brief Page 3 claims except certain commissions which might come due from those limited
specific transactions identified on an attached list (the “List”) to the Separation
Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 2,
paragraph 5 and attached List.) Pursuant to the terms of the Separation Agreement,
Altomare expressly represented in writing that the List encompassed all of the
pending transactions on which he was actively involved at the time of his
separation. (Appendix, Confidential Exhibit 1, Separation Agreement, pg. 2-3,
paragraph 6). If a claim for any commission was not included on the List, no
compensation would be due Altomare. But for the Separation Agreement Endura
had no obligation to pay Altomare commissions for closings occurring after he was
no longer associated with Endura.
4. Most importantly and at the heart of this appeal, Altomare agreed, by
way of the Separation Agreement, that a dispute between Altomare and Endura
(the Partnership), related to his association with Endura or the Separation
Agreement, which specifically include claims released as against Endura’s agents
and representatives, 4 would be resolved through the Dispute Resolution Policy set
out in the Endura Employee Handbook. (Appendix, Confidential Exhibit 1,
Separation Agreement, page 4, paragraph 13.) Altomare was apprised of the
4 Paragraph 5 of the Separation Agreement is the “release of claims” paragraph and was purposely drafted broadly to include Endura’s related entities, officers, members, partners, limited partners, employees, directors, managers, agents, trustees, administrators, representatives, subsidiaries, affiliates, successors and assigns.
Appellant’s Brief Page 4 Dispute Resolution Policy contained within the Separation Agreement and
accepted it. (C.R. Pg. 20). Additionally, Altomare was represented by counsel
who negotiated the terms of the Separation Agreement and required changes to the
proposed Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 32, line 22 through
Pg. 33, line 3). The Alternative Dispute Resolution provision was a bargained for
term of the Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 17, line 7-13).
Altomare does not dispute the existence of an Alternative Dispute Resolution
provision or that it is a valid agreement to arbitrate. (Oct. R.R. Pg. 6, Line 3-7).
The Dispute Resolution Policy contained in Endura’s Employee Handbook states
in relevant part:
The Arbitration process shall be conducted under Texas Civil Practices and Remedies Code, Section 151.001 et seq. The arbitrator will meet the qualifications of a Special Judge as described in this statute and will also be impartial. This Policy is intended to be construed and subject to Texas law.
Either the employee or Endura may commence the Arbitration proceeding by giving written notice to the other party, stating that the Arbitration process is being commenced, the specific facts which give rise to the dispute, the legal basis, if any, which the notifying party is invoking to support some claim for damages or relief, the relief the notifying party is seeking and a correct address, phone number and, if available, a facsimile number and email address at which the notifying party can be reached (“Notice”). The notifying party shall file a Petition in the applicable District court, or other court of original jurisdiction, which shall be abated pending the decision by the Arbitrator.
Appellant’s Brief Page 5 (Appendix, Exhibit 2, true and correct copy of Endura Advisory Group, Ltd.’s
Dispute Resolution Policy and Procedures.); (C.R. Pg. 22-24).
5. Reneau is a licensed commercial real estate agent working for Endura.
(Nov. R.R. Pg. 23, line 3-6). At the time of the execution of the Separation
Agreement and at all times relevant to this suit, Reneau was an agent and
representative of Endura. (Nov. R.R. Pg. 13, line 10-18 and Nov. R.R. Pg. 32, line
2-18) Reneau has been an associate vice-president for Endura for the last two
years and his business cards issued by Endura reflect the title of associate vice-
president. (Nov. R.R. Pg. 13, line 19-21 and Nov. R.R. Pg. 19, line 10-12).
Reneau, as an agent for Endura, is the point of contact on all real estate listings in
which he is involved. He works exclusively for Endura. (Nov. R.R. Pg. 16, line
11-13). He is required to attend bi-weekly sales meetings and Endura pays for his
marketing of properties as well as his office space. (Nov. R.R. Pg. 16, line 14-18).
Clearly, Reneau is an agent and representative for Endura.
6. On July 28, 2014, Altomare filed suit against Reneau for breach of
contract relating to commissions on real estate transactions that Reneau had
allegedly failed to pay Altomare. (C.R. Pg. 1-4.) Importantly, the real estate
transactions on which Altomare bases his claims against Reneau were not included
on the List, meaning Altomare was not actively involved in those transactions.
(C.R. Pg. 7). On August 29, 2014, Reneau timely answered Altomare’s suit and on
Appellant’s Brief Page 6 September 19, 2014, Endura intervened in the suit asserting claims against
Altomare for breach of contract, fraud and for declaratory relief as it relates to the
Separation Agreement. (C.R. Pg. 9-17.) Also contained within Endura’s Plea in
Intervention was a section putting Altomare on notice that this dispute is required
to be submitted to a Special Judge in accordance with Endura’s Dispute Resolution
Policy. (C.R. Pg. 15.)
7. On October 16, 2014, Endura filed its Motion to Compel Alternative
Dispute Resolution Process and Motion to Abate Proceeding Pending Completion
of the Alternative Dispute Resolution Process (the “Motion”). (C.R. Pg. 18-24.)
On October 27, 2014, the Honorable Judge Martha Tanner conducted a hearing
and denied Endura’s Motion indicating on the Judge’s Notes, “Court finds
insufficient evidence to determine Reneau meets any criteria in Separation
Agreement therefore motion respectfully denied.” (Visiting Judge sitting in the
57th Judicial District by assignment; C.R. Pg. 31, 49-50); (Appendix, Exhibit 3, a
true and correct copy of the Order Denying 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
signed on December 1, 2014.)
8. On October 30, 2014, Endura filed its Motion for Reconsideration of
the Honorable Martha Tanner’s denial of Endura’s Motion. (C.R. Pg. 32-39.) On
Appellant’s Brief Page 7 November 7, 2014, the Honorable Martha Tanner conducted an evidentiary
hearing and denied Endura’s Motion for Reconsideration of its Motion. (C.R. Pg.
51-52); (Appendix, Exhibit 4, a true and correct copy of the Order Denying Endura
Advisory Group, Ltd.’s Motion for Reconsideration of Denial of its Motion to
Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding
Pending Completion of the Alternative Dispute Resolution Process signed
December 1, 2014). The Motion to Compel Alternative Dispute Resolution
Process and Motion to Abate Proceeding Pending Completion of the Alternative
Dispute Resolution Process and the Motion for Reconsideration of Denial of Its
Motion to Compel Alternative Dispute Resolution Process and Motion to Abate
Proceeding Pending Completion of the Alternative Dispute Resolution Process are
sometimes collectively referred to herein as the “Motions.” Endura brings this
appeal, asking this Court to reverse the trial court’s orders denying Endura’s
Motions and remand to compel arbitration.
SUMMARY OF THE ARGUMENT
For additional consideration paid to him, Altomare executed a Separation
Agreement when he departed Endura, releasing all claims against Endura, its
agents and representatives and others, except for certain limited, pending real
estate transactions specifically identified. The Separation Agreement contains an
arbitration agreement for any claims that arise out of the Separation
Appellant’s Brief Page 8 Agreement. Altomare has now sued Josh Reneau for commissions on real estate
transactions closed and paid to Josh Reneau by and through Endura
after Altomare was no longer a broker for Endura. None of the transactions sued
upon are listed in the Separation Agreement. The evidence presented to the trial
court clearly establishes Josh Reneau is an agent or representative of Endura;
therefore, the claims brought by Altomare against Reneau were released by and
through the Separation Agreement and otherwise triggered the arbitration
agreement. Endura has established as a matter of law: (i) the existence of a valid
arbitration agreement and (ii) that claims in this lawsuit are within the scope of the
arbitration agreement. Accordingly, the trial court erred by
denying Endura’s Motion to Compel Arbitration and Motion for Reconsideration.
ARGUMENT AND AUTHORITIES
Issue No. 1: The trial court erred by denying Endura’s Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process and the Motion for Reconsideration of Denial of Its Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process.
A. Standard of Review
9. In reviewing an order denying a motion to compel arbitration under
the Texas Arbitration Act, the appellate courts apply a no-evidence standard to the
trial court’s factual determinations and a de novo standard to legal determinations.
Appellant’s Brief Page 9 Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet.
denied). Furthermore, a trial court’s interpretation concerning the scope of a
contract’s arbitration clause is a question of law reviewed under a de novo
standard. Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio
2005, orig. proceeding). In a de novo review, the trial court’s discretion is given
absolutely no deference. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
B. The Pleadings and Evidence Presented Establish that the Parties’ Dispute Arises from the Separation Agreement Therefore Triggering the Dispute Resolution Process
10. Texas jurisprudence embraces arbitration. Royston, Rayzor, Vickery
& Williams, LLP v. Lopez, 443 S.W.3d 196, 202 (Tex. App – Corpus Christi 2013,
pet. filed). Since 1846, Texas law has provided that parties to a dispute may
choose to arbitrate rather than litigate. Perry Homes v. Cull, 258 S.W.3d 580, 584
(Tex. 2008) see also EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.
1996)(Texas law has historically favored settling disputes by arbitration). The
Texas Supreme Court has recognized arbitration as a potentially efficient, cost-
effective, and speedy means of resolving disputes. See In re Olshan Found. Repair
Co., 328 S.W.3d 883, 893 (Tex. 2010). Thus, a party seeking to compel arbitration
must establish (1) an agreement by the parties to arbitrate and (2) that the claims in
the lawsuit are within the scope of the arbitration agreement. In re Medallion, Ltd.,
70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 2002, orig. proceeding). Once
Appellant’s Brief Page 10 a court finds a valid agreement to arbitrate, the burden shifts to the party opposing
arbitration to raise an affirmative defense to enforcing arbitration. See J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).
C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare
11. The Separation Agreement contains a valid agreement to arbitrate
therefore satisfying the first prong needed to compel arbitration. In re Medallion at
287-288. (C.R. Pg. 18); (Appendix, Confidential Exhibit 1, Separation Agreement,
page 4, paragraph 13.) This is not disputed by Altomare. (Oct. R.R. Pg. 6, Line 3-
7); (C.R. Pg. 43). In the Separation Agreement, Altomare agreed this procedure
governed any dispute related to his association with Endura or the Separation
Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 4,
paragraph 13.) Endura’s arbitration agreement is enforceable because the
Separation Agreement is a valid contract. See generally J.M. Davidson, Inc. v.
Webster, 128 S.W.3d at 227 (ordinary contract principals apply to agreements to
arbitrate). Additionally, the Separation Agreement was supported by mutual
consideration as stated therein. (Appendix, Confidential Exhibit 1, Separation
Agreement, page 1).
12. Furthermore, Altomare, who was represented by counsel who
negotiated Separation Agreement, accepted it. (C.R. Pg. 20); (Nov. R.R. Pg. 32,
line 22 through Pg. 33, line 3). The Alternative Dispute Resolution provision was a
Appellant’s Brief Page 11 bargained for term of the Separation Agreement and most importantly, Altomare
does not dispute that a valid Alternative Dispute Resolution agreement exists as it
relates to the Separation Agreement. (Oct. R.R. Pg. 6, Line 3-7); (C.R. Pg. 43).
There is no doubt the first prong to compel arbitration has been established by
Endura. See In re Medallion, Ltd., 70 S.W.3d at 287-288.
D. The Claims Brought in the Lawsuit Fall Within the Separation Agreement Triggering the Alternative Dispute Resolution Process
13. With the first prong to compel arbitration established, the analysis
shifts to whether claims brought by Altomare against Reneau and the claims
brought by Endura against Altomare are within the scope of the claims released in
the Separation Agreement giving rise to the agreement to arbitrate. See In re
Medallion, Ltd., 70 S.W.3d at 287-288. If a party seeking arbitration carries its
initial burden to prove the existence of an agreement to arbitrate, then a strong
presumption favoring arbitration arises, and the burden shifts to the party opposing
arbitration to prove an affirmative defense to the agreement. J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 227 (Tex. 2003). Additionally, if a valid arbitration
agreement exists, “courts should resolve any doubts as to the agreement’s scope,
waiver, and other issues unrelated to its validity in favor of arbitration.” Ellis v.
Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011). 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
Appellant’s Brief Page 12 provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston
[14th Dist.] 2003, orig. proceeding).
14. The pivotal question before this Court is whether or not Reneau is an
agent or representative of Endura. If the answer is yes, then this Court must
compel arbitration because the claims brought by Altomare against Reneau
implicate the Separation Agreement triggering the Alternative Dispute Resolution
Process contained therein.
E. Reneau is an Agent or Representative of Endura
15. Once an arbitration agreement is established, “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 Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006). In other words, if
Reneau’s status with Endura is susceptible to an interpretation as agent or
representative of Endura and thus covered by the scope of the release in the
Settlement Agreement, then this Court must compel arbitration.
16. The trial court erred in refusing to compel arbitration when clearly
Reneau is an agent or representative of Endura and thus the claims against him are
within the scope of the Separation Agreement therefore triggering the Alternative
Dispute Resolution Process. An “agent” is one who is authorized by a person or
entity to transact business or manage some affair for the person or entity. Neely v.
Appellant’s Brief Page 13 Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no
writ). An essential element of the principal-agency relationship is the principal’s
right to control the actions of the alleged agent. Sendjar v. Gonzales, 520 S.W.2d
478, 481 (Tex. Civ. App. – San Antonio 1975, no writ). This right includes not
only the right to assign tasks, but also the right to dictate the means and details of
the process by which the agent will accomplish the task. Townsend v. Univ. Hosp.-
Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. – Texarkana 2002, pet. denied).
The fact of agency may be established by circumstantial evidence, and proof may
be made of all the facts and circumstances that shows the relationship of the parties
and throws light upon the character of such relations. Welch v. Coca-Cola Enters.,
Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler 2000, pet. withdrawn) see also
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 and circumstantial evidence showing the relationship of the parties).
17. The evidence presented to the trial court clearly establishes that
Reneau is an agent or representative of Endura. At the hearing on Endura’s
Motion for Reconsideration, Endura called James G. Lundblad (“Lundblad”), a
principal of Endura, to testify regarding the Separation Agreement and Reneau’s
status with Endura. (Nov. R.R. Pg. 13, line 7-13). Lundblad testified
unequivocally that Reneau was Endura’s agent and representative. (Nov. R.R. Pg.
Appellant’s Brief Page 14 13, line 14-18); (Nov. R.R. Pg. 19, line 13-15); (Nov. R.R. Pg. 32, line 2-19).
Lundblad further testified that Reneau has business cards with Endura’s name on
them and when Reneau is out in the field leasing and selling properties he
represents himself to the public as working for Endura. (Nov. R.R. Pg. 13, line 19-
21). Additionally, in the transactions in which Reneau is the point of contact,
Reneau is listed on the listing agreement as “Key Agents: Josh Reneau” and his
role on these transactions is to work with the property owner as Endura’s
representative at Endura’s instruction. (Nov. R.R. Pg. 14, line 8 through Pg. 15,
line 21); (Nov. R.R. Pg. 16, line 5-10); (Nov. R.R. Pg. 32, line 2-19); (see also
Appendix, Confidential Exhibit 5, Listing Agreement5). Reneau has the authority
to enter into transactions on behalf of Endura and actively markets on behalf of
Endura to obtain listing agreements. (Nov. R.R. Pg. 19, line 16-25). Lastly,
Reneau’s compensation agreement with Endura lists him as an “Associate,” not an
independent contractor. (Nov. R.R. Pg. 19, line 10-12); (see also Appendix,
Confidential Exhibit 6, a true and correct copy of a Compensation Agreement
dated January 15, 2009 6). Clearly, Reneau is authorized by Endura to: (i) manage
5 Confidential Exhibit 5 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 14, Line 8 through Pg 15, Line 14) but was withdrawn at the end of the hearing to preserve confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and correct copy of Confidential Exhibit 5 has been filed as part of a separate appendix. 6 Confidential Exhibit 6 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 18, Line 12 through Pg 19, Line 6) but was withdrawn at the end of the hearing to preserve confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and correct copy of Confidential Exhibit 6 has been filed as part of a separate appendix.
Appellant’s Brief Page 15 transactions, such as properties for sale or lease; (ii) transact business on behalf of
Endura; (iii) interface with the public promoting Endura; and (iv) interface with
property owners on behalf of Endura, making him an agent or representative of
Endura. See Neely v. Intercity Mgmt. Corp., 732 S.W.2d at 644. Lastly, in the
eyes of Endura and its principals, Reneau is an agent or representative of Endura.
(Nov. R.R. Pg. 13, line 14-18) and (Nov. R.R. Pg. 19, line 13-15).
18. As it relates to Endura’s control of Reneau, Reneau does not work for
another real estate company. (Nov. R.R. Pg. 16, line 11-13). Reneau is required to
come to the office and is also required to attend sales meetings. (Nov. R.R. Pg. 16,
line 14-18). Further, Endura has authorized him to market and attempt to acquire
listings and properties to sell for and on behalf of Endura. (Nov. R.R. Pg. 16, line
19-22). Additionally, Endura directs Reneau to do “everything” he can to either
sell or lease properties for clients that have hired Endura. (Nov. R.R. Pg. 15, line
22 through Pg. 16, line 4). On cross-examination by counsel for Altomare,
Lundblad testified that Endura instructs Reneau on how to manage and practice
business for Endura and work within the confines of what Endura expects from an
Associate further evidencing control of Reneau’s work for Endura. (Nov. R.R. Pg.
22, line 4-7). Lundblad further testified that Endura has the authority and control
over its agents, such as Reneau, to assign out tasks such as selling or leasing
properties. (Nov. R.R. Pg. 20, line 1-11). Lundblad’s testimony evidences Endura
Appellant’s Brief Page 16 exercised control over the means of Reneau’s work and provides direction and
guidance on how it is to be accomplished thus making Reneau an agent or
representative of Endura.
19. 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 Constr. Co., 196 S.W.3d at 783;
see also Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st
Dist.] 1996, no writ)(“If … the [arbitration] clause is broad, arbitration should not
be denied unless it can be said with positive assurance that the particular dispute is
not covered.”). 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 arbitrable.
F. Endura Intended for the Separation Agreement to include Reneau
20. The intent of the Separation Agreement was to include Reneau and,
for that matter, everyone that works with Endura. (Nov. R.R. Pg. 17, line 16-21).
The primary concern in interpreting a contract is ascertaining the true intent of the
parties. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d
323, 333 (Tex. 2011). To understand the parties’ intent the court must examine the
agreement as a whole in light of the facts and circumstances present at the time
Appellant’s Brief Page 17 when the parties executed the agreement. Anglo-Dutch Petrol. Int’l, Inc. v.
Greenberg Peden, P.C., 352 S.W.3d 445, 450-51 (Tex. 2011). The Separation
Agreement was intended to be broad enough to release Endura and all those who
could arguably come under the Endura umbrella from any claims by Altomare
during his tenure with Endura. This is the reason for the inclusion of broad form
language in the release paragraph of the Separation Agreement to include the
“Partnership, its related entities, officers, members, partners, limited partners,
employees, directors, managers, agents, trustees, administrators, representatives,
subsidiaries, affiliates, successors, and assigns.” See Appendix, Confidential
Exhibit 1, Separation Agreement, page 2, paragraph 5.
21. At the November 7, 2014 hearing on Endura’s Motion for
Reconsideration, Lundblad testified that it was Endura’s intention to have a clean
separation from Altomare, by way of the Separation Agreement, and to get there
they paid Altomare a little more than a partner disassociating from Endura under
normal circumstances. (Nov. R.R. Pg. 17, line 7-16). Most importantly, Lundlbad
testified that the Separation Agreement was intended to encompass everyone at
Endura at the time of Altomare’s departure, which includes Reneau. (Nov. R.R.
Pg. 17, line 16-21). Furthermore, the Separation Agreement was intended to
foreclose any claims for commissions from transactions related to his tenure with
Endura (and the covered persons in the agreement) that were not disclosed by
Appellant’s Brief Page 18 Altomare [on the List] at the time of execution of the Separation Agreement.
(Nov. R.R. Pg. 17, line 22-25). The entire purpose of including the alternative
dispute resolution paragraph in the Separation Agreement was to abbreviate the
length of time that it would typically take for suits such as this one to make its way
through the judicial system that might derive from the Separation Agreement.
Accordingly, in viewing the circumstances at the time of execution as well as the
parties’ intent, the Separation Agreement was intended to protect and release
Endura, its agents, representatives and all people working under the Endura
umbrella from the very claims that Altomare now brings.
G. The Separation Agreement
22. Having shown a valid agreement to arbitrate and that Reneau is an
agent or representative of Endura, and thus triggering the arbitration agreement, we
must also determine if the claims brought by Altomare against Reneau arise from
the Separation Agreement. Altomare has asserted claims against Reneau for
breach of contract. (C.R. Pg. 2) In his suit, Altomare alleges he is owed
commissions from real estate transactions pursuant to an unwritten “agreement”
between Altomare and Reneau to split commissions on real estate transactions they
worked on together. (C.R. Pg. 2) Assuming arguendo that Reneau and Altomare
had a prior course of dealing in which they would split certain commissions on a
case-by-case basis, the claims arising under this assumed “agreement” were
Appellant’s Brief Page 19 released when Altomare executed the Separation Agreement and did not include
these transactions on the List.
23. The Separation Agreement in paragraph five states in relevant part:
Other than to the broker’s commissions specifically indentified in this letter, in addition to the terms of the Second Amended and Restated Limited Partnership Agreement, you hereby release any claim of any kind that relates to or involves your relationship or the separation of your relationship with the Partnership that you may have or acquire against the Partnership, its related entities, officers, members, partners, limited partners, employees, directors, managers, agents, trustees, administrators, representatives, subsidiaries, affiliates, successors, and assigns. The claims you are agreeing to release include, but are not limited to, all claims, charges, complaints, liabilities, obligations, promises, agreements, contracts, damages, actions, causes of action, suits, accrued benefits or other liabilities of any kind or character, whether known or hereafter discovered, arising from or in any way connected with or related to your tenure with the Partnership and your resignation from the Partnership, including but not limited to . . . breach of contract. . .
(See Appendix, Confidential Exhibit 1, paragraph 5, Separation Agreement) (Emphasis added).
Altomare submitted the List, which was comprised of all of the transactions he was
currently working on when he executed the Separation Agreement. The List was
accepted by Endura and included as part of the Separation Agreement. The real
estate transactions Altomare now sues upon were not included on the List;
therefore, to the extent any rights to commissions from Endura deals not yet earned
or ever existing between Altomare and Reneau, Altomare released his claims to all
Appellant’s Brief Page 20 those not identified in the List. The claims brought by Endura against Altomare
are for breach of the Separation Agreement.
24. Most importantly and as stated above, the Separation Agreement
included an agreement to arbitrate in accordance with Endura’s Dispute Resolution
Policy. Paragraph 13 of the Separation Agreement states:
In the event there is a dispute between you and the Partnership related to your association with the Partnership or this agreement, the Dispute Resolution Policy set out in the Endura Employee Handbook will be employed which is incorporated herein as if fully set forth verbatim
(See Appendix, Confidential Exhibit 1, paragraph 13, Separation Agreement)
(Emphasis added).
25. A plain reading of paragraph 5 and paragraph 13 in the Separation
Agreement make it clear that Altomare’s claims against Reneau and Endura’s
claims against Altomare arise from and touch upon the subject matter of the
Separation Agreement and therefore triggers the Dispute Resolution Policy
incorporated into the Separation Agreement. See In re B.P. Am. Prod. Co., 97
S.W.3d at 370 (allegations need only be factually intertwined with arbitrable
claims or otherwise touch upon the subject matter of the agreement containing the
arbitration provision). Therefore, the arbitration agreement contained within the
Separation Agreement squarely encompasses the claims raised by Altomare and
the claims raised by Endura and this Court must compel arbitration.
Appellant’s Brief Page 21 Issue No. 2: Altomare failed to present or prove a defense to the enforcement of the Dispute Resolution Policy.
26. Having shown that the arbitration agreement is valid and that
Altomare’s claims are within the scope of the claims released by the Separation
Agreement giving rise to the arbitration agreement, the burden shifts to Altomare
to raise a defense to the arbitration agreement. See J.M. Davidson, Inc. 128
S.W.3d at 227. The trial court erred by refusing to compel arbitration because
Altomare failed to prove a defense to the arbitration agreement. At the November
2014 hearing on Endura’s Motion for Reconsideration of the Motion to Compel
Arbitration, the sole defense to the arbitration agreement asserted by Altomare was
that Reneau was not an agent of Endura, but an independent contractor and thus
not within the scope of the Separation Agreement. (Nov. R.R. Pg. 8, line 10-16);
(Nov. R.R. Pg. 41, line 19 through Pg. 42, line 3).
27. The fact of agency may be established by circumstantial evidence, and
proof may be made of all of the facts and circumstances that the shows the
relationship of the parties and throws light upon the character of such relations.
Welch v. Coca-Cola Enters., Inc., 36 S.W.3d at 540; see also 3 TEX. JUR. 3D
Agency §50 (1996). Furthermore, agency may be implied from the conduct of the
parties under the circumstances. Jorgensen v. Stuart Place Water Supply Corp.,
676 S.W.2d 191, 194 (Tex. App. – Corpus Christi 1984, no writ). One may be an
independent contractor under some circumstances yet may be an agent or
Appellant’s Brief Page 22 employee in connection with other work or activities. Lyons v. Lindsey Morden
Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App. – El Paso 1998, no pet.).
28. For the reasons stated and based on the evidence set forth in
Paragraphs 17-19, it is clear Reneau’s work selling and leasing properties and
securing listing agreements for Endura is all performed as an agent or
representative of Endura; promoting Endura and only Endura. Therefore,
Altomare has failed to present or prove a defense to the enforcement of the Dispute
Resolution Policy.
CONCLUSION
Endura has established as a matter of law (1) the existence of a valid
agreement to arbitrate and (ii) that the claims in this lawsuit are within the scope of
the arbitration agreement. The trial court erred by failing to compel arbitration and
this Court should reverse the ruling by the trial court and remand to compel
arbitration.
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,
Appellant’s Brief Page 23 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 Brief Page 24 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 5,438 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 27th day of January 2015, a true and correct copy of the foregoing has been served on opposing counsel as follows:
Via Electronic Service 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 Brief Page 25 NO. 04-14-00889-CV ENDURA ADVISORY GROUP, LTD., APPELLANT VS. DOMINIC ALTOMARE, APPELLEE
LIST OF DOCUMENTS
Exhibit 1 CONFIDENTIAL Separation Agreement
Exhibit 2 Endura Advisory Group, Ltd.’s Dispute Resolution Policy and Procedures
Exhibit 3 Order Denying 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 signed December 1, 2014
Exhibit 4 Order Denying Endura Advisory Group, Ltd.’s Motion for Reconsideration of Denial of its Motion to Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding Pending Completion of the Alternative Dispute Resolution Process signed December 1, 2014
Exhibit 5 CONFIDENTIAL Listing Agreement
Exhibit 6 CONFIDENTIAL Compensation Agreement
Appellant’s Brief Page 26 EXHIBIT 1
CONFIDENTIAL SEPARATION AGREEMENT
FILED UNDER SEPARATE APPENDIX
Appellant’s Brief Exhibit 1 Dispute Resolution Policy and Procedures
Introduction/Overview Unfortunately, from time to time, Endura’s Problem Resolution policy does not fully resolve a dispute between an employee and the company. In those situations, Endura has designed this Dispute Resolution Policy to guide resolution of any disputes between its employees and the company.
Procedure Where allowed by state or federal law, all disputes between an Employee and Endura, regarding Employment Related Matters, other than claims for Worker’s Compensation or Unemployment Benefits, shall be resolved solely through binding Arbitration. Arbitration is an essential element of your employment relationship and is a condition of your employment with Endura. The Arbitration process will be conducted under Texas Civil Practices and Remedies Code, Section 151.001 et seq. The arbitrator will meet the qualifications of a Special Judge as described in this statute and will also be impartial. This Policy is intended to be construed and subject to Texas law.
Either the employee or Endura may commence the Arbitration proceeding by giving written notice to the other party, stating that the Arbitration process is being commenced, the specific facts which give rise to the dispute, the legal basis, if any, which the notifying party is invoking to support some claim for damages or relief, the relief that the notifying party is seeking and a correct address, phone number and, if available, a facsimile number and email address at which the notifying party can be reached (“Notice”). The notifying party shall file a Petition in the applicable District court, or other court of original jurisdiction, which shall be abated pending the decision of the Arbitrator.
Upon receipt of a Notice commencing the Arbitration process, the receiving party shall have a period of forty-five (45) days in which to serve the notifying party with a written response to the Notice commencing the Arbitration, stating the specific facts which are asserted as a defense to the facts set forth in the Notice and any facts which the receiving party asserts that support a counter-claim, if any, by the party that received the Notice against the party that sent the Notice.
Within sixty (60) days of the commencement of the Arbitration process, Endura shall give to the Employee a statement designating the names and addresses of three (3) persons impartial to Endura and to which Endura will accept as the Arbitrator for the dispute and a date or dates, not less than thirty (30) days thereafter, when the hearing will be held. The Employee shall have fifteen (15) days in which to object, in writing to Endura, to not more than two (2) of the designated Arbitrators. If no objection is received or if less than two (2) of the Arbitrators are objected to by the Employee, Endura shall, within two (2) days of the receipt of objections from the employee, designate, in writing, the name and address of the Arbitrator that will arbitrate the dispute.
EXHIBIT 2 Timeline recap
1. Notice of Commencement of Arbitration Notice day 2. Written response from non-noticed party 45 days from Notice 3. Designation of Arbitrators by Company 60 days from Notice 4. Objection to Arbitrators by Employee 15 days 5. Notice of Arbitrators and Hearing 2 days from objection 6. Hearing 90 days from Notice
The Arbitration hearing shall be conducted at a time and place designated by the Arbitrator. The Arbitrator shall give each party at least ten (10) days written notice of the time and place of the Arbitration hearing. Either party may request one continuance of the Arbitration hearing for good cause shown to the Arbitrator. The Arbitrator shall strictly follow the time line set forth herein and the procedures mandated herein, except that the Arbitrator may delay the hearing for a period not to exceed thirty (30) days to accommodate the schedules of any party, unless the parties both agree to any extension beyond the thirty (30) day extension allowed at the discretion of the Arbitrator.
Endura shall pay the Arbitrator’s Fees and expenses charged by the Arbitrator, or for the facility at which the arbitration hearing is held. The Arbitrator shall assess all other costs and fees, including attorney’s fees as a part of the Arbitration award.
The Arbitration process, discovery and the hearing shall be conducted in compliance with the Texas Rules of Civil Procedure and the Texas Rules of Evidence. The Arbitrator shall enter his/her ruling, in writing, and shall, upon request of either party, prepare and submit findings of fact and conclusions of law to both parties. An award or ruling by the Arbitrator shall be entered as a judgment of record in the abated judicial proceeding, and shall be fully subject to appeal as if it was tried in a District Court, or any other court of original jurisdiction, outside the scope of the arbitration process.
Both Employee and Endura recognize and agree that litigation is expensive and prolonged and that both parties will benefit from the procedure in this Policy. This policy shall be broadly construed and enforced to favor the Arbitration process as an efficient and effective way of resolving disputes between the Employee and Endura. Both parties benefit from this process. It provides an efficient means for the prompt resolution of any dispute, allowing the employee a prompt resolution to the dispute and minimal loss of earnings from missed workdays and to Endura a minimal disruption in its workforce and involvement of key management time in the process. Any provision of this Policy that shall be determined to be unenforceable in any jurisdiction shall not be read or construed to prohibit or exhaust the rights of either the Employee or Company to the right to Arbitration or Waiver of the Right to Trial by Jury.
Employee and Endura hereby WAIVE ALL RIGHTS TO A TRIAL BY JURY FOR EMPLOYMENT RELATED MATTERS IN STATE OR FEDERAL COURT.
EXHIBIT 2 Endura retains the right to amend or terminate this Policy, in whole or in part, on ten (10) days written notice to Employee. However, any disputes that have been asserted, in writing, prior to the amendment or termination of this Policy, shall still be subject to resolution as set-forth in this Policy.
I hereby agree to abide by this Dispute Resolution Policy, and the related procedures, a copy of which I have received and read. I acknowledge that my agreement to be bound by this Policy is supported by good and adequate consideration.
I understand and agree that this Policy is not a contract of employment or a guarantee of employment of any specific duration.
EMPLOYEE NAME (printed): _________________________________________ EMPLOYEE SIGNATURE: _________________________________________ DATE: _________________________________________
EXHIBIT 2 EXHIBIT 3 EXHIBIT 3 EXHIBIT 4 EXHIBIT 4 EXHIBIT 5
CONFIDENTIAL LISTING AGREEMENT
FILED UNDER SEPARATE APPENDIX
Appellant’s Brief Exhibit 5 EXHIBIT 6
CONFIDENTIAL COMPENSATION AGREEMENT
FILED UNDER SEPARATE APPENDIX
Appellant’s Brief Exhibit 6
Endura Advisory Group Ltd. v. Dominic Altomare, Josh Reneau (Endura Advisory Group Ltd. v. Dominic Altomare, Josh Reneau) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.