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					                                     No. 11-0193

           IN THE SUPREME COURT OF TEXAS
                    AUSTIN, TEXAS

                     In re ADRIAN CASTRO, Relator

                    From the 94th Judicial District of Nueces County, Texas
                   Cause No. 09-1908-C, Hon. Federico G. Hinojosa, assigned



                                CASTRO'S REPLY

LAW OFFICES OF CRAIG S. SMITH                   LAW OFFICES OF J. MITCHELL CLARK
Craig S. Smith                                  Mailing Address:
State Bar No. 18553570                          P.O. Box 2701
14493 S.P.I.D., Ste. A; P.M.B. 240              Corpus Christi, Texas 78403
Corpus Christi, TX 78418                        Telephone: (361) 887-8500
Telephone: (361) 728-8037                       Facsimile: (361) 882-4500
csslaw@stx.rr.com                               Physical Address:
                                                Frost Bank Plaza, Suite 1400
                                                Corpus Christi, Texas 78401
                                                mitchell@tverdict.com




                                                          Attorneys for Relator, Adrian Castro




                               Oral Argument Requested
                                                    TABLE OF CONTENTS

I. ARGUMENT AND AUTHORITIES .... .................. ... ... ......... ......... ................ ................ . 1

A. Arbitration cannot be compelled in this case .................... ....... ....... ............. .... ...... ......... 1
B. A direct conflict exists .... .. ... .... ...................... .......... .... ...... ... .. .................. .... ........ ... .... ... 5
C. This Court must eliminate barratry from our legal system ............ ................... .... ....... ... 6
D. This Court should resolve the split of authority ...... .. ..... ............ ... ........ ......... ........ ........ 7
CONCLUSION ....... .... ..... ....... .................. .... ............... .......... .... ......... ....... .......... .......... ...... 8
CERTIFICATE OF SERVICE ........... ....... .... .. ....... .. .... .................................................. ...... 9
APPENDIX .. .......... ..... ......... ... .... .......... .. ....... .......................................... ... ......... .... Attached
VERIFICATION ................ ..... ......... ... .'... ... ....... ...................................................... Attached
                                                 INDEX OF AUTHORITIES
Cases

In re Gulf Exploration, LLC, 289 S.W.3d 836 (Tex. 2009) ............................................ 5, 7

In re McAllen Medical Center Inc. , 275 S.W.3d 458, 462 (Tex. 2008) ... ...... ........ .... ... ...... 7

In re Poly-America, L.P., 262 S.W.3d 337, 354 (Tex. 2008) ............ ........ ......... ............ 5, 6

In re Southwestern Bell Telephone Co. , 35 S.W.3d 602, 605 (Tex. 2000, orig.
   proceeding) .. ........... .... ............................. ........ ..... ............ .. .... .......... .............. .... .... ......... 6

Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998) ........... ......... ... ...... ... ............. ... ..4, 6

McKinley v. Abbot, Cause No. 10-50568; 2011 WL 2206817 (Fifth Cir. June 8, 2011) ... 1

Texas Commerce Bank, N.A. v. Grizzle , 96 S.W.3d 240, 250 (Tex. 2002) .. .............. ......... 7

Statutes

TEX. CJV . PRAC . REM . CODE§ 171.002(c) ........... ........ ........ .............. .... ...... ... ........4, 5, 6, 8

Tex. Gov. Code Ann. §82.0651 (Vernon 2011) (eff. September 1, 2011) ... ............ ........... 6

Texas Penal Code 38.12(d) (Vernon 1997) .... ............ .............. ...... ... ..... .... ......................... 3
Other Authorities

38 S. TEX. L. REV. 625 , 648 (1997) .................. .. ............................................ .................. 3


                                                    FORWARD


         The Response is supported by an Appendix. The Appendix is tabbed and

sequentially paginated in the bottom, right-handed corner of each page. The Reply will be

cited by reference to the tab under which the document appears, as well as the relevant

page number(s) (i .e., App. Tab_, pp.__). The Reply and Appendix materials are sworn

by a verification which appears at the end of the Reply .




                                                            11
                                No. 11-0193

                IN THE SUPREME COURT OF TEXAS

                    In re ADRIAN CASTRO, Relator

                   From the 94 111 Judicial District ofNueces County, Texas
                                      Cause No. 09-1908-C
                                   (Hon. Federico G. Hinojosa)


TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

       Now that Wyatt's Response has been filed, this Court can readily detennine that

no meritorious legal or equitable reason prevents this Court from issuing the writ. At this

point, granting relief is purely discretionary, and the only question is whether the writ

should issue.

                        I. ARGUMENT AND AUTHORITIES

       A. Arbitration cannot be compelled in this case.

      Adrian Castro's live pleading alleges he suffered mental anguish because right

after he was severely injured a personal injury lawyer solicited him and then illegally

charged him a $1.2 million contingent fee. There is no question this conduct can cause

real harm.

       This point was emphasized by the Fifth Circuit when it recently upheld a

constitutional challenge to our Barratry Statute.      McKinley v. Abbot, Cause No. 10-



CASTRO'S REPLY- Page 1
50568; 2011 WL 2206817 (Fifth Cir. June 8, 2011).          The Court identified evidence

showing post-accident professional solicitation causes real harm :

      "The record contains ample evidence that the harm caused by solicitation of

      accident victims by chiropractors within the first 30 days after an accident is real.

      The state produced testimony from the Director of Enforcement at the Texas

      Board of Chiropractic Examiners that the Board had received a large number of

      complaints from accident victims concerning solicitation activities of chiropractors

      directly following the victims' automobile accidents.          Additionally, the state

      introduced anecdotal testimony from accident victims about solicitation directly

      after an automobile accident and the stress caused by those solicitations. There

      was also expert testimony about the stress disorder many people suffer for up to a

      month after a traumatic event, which can lead to cognitive dysfunctions m

      infonnation processmg and decision-making.          This is sufficient evidence to

      demonstrate that the harm is real.      And, we conclude that a rule prohibiting

      solicitation for a 30 day period materially alleviates that harm by preventing the

      harm identified by the state for the amount oftime needed." Slip Op. at *4.

      The Barratry Statute provides:

(d)    A person commits an offense if the person:

       (1)    is an attorney, chiropractor, physician, surgeon, or private investigator

              licensed to practice m this state or any person licensed, certified, or

             registered by a health care regulatory agency of this state; and




CASTRO'S REPLY- Page 2
      (2)    with the intent to obtain professional employment for the person or for

             another, provides or knowingly permits to be provided to an individual who

             has not sought the person's employment, legal representation, advice, or

             care a written communication or a solicitation, including a solicitation in

             person or by telephone, that:

             (A)    concerns an action for personal injury or wrongful death or

                    otherwise relates to an accident or disaster involving the person to

                    whom the communication or solicitation is provided or a relative of

                    that person and that was provided before the 31st day after the date

                    on which the accident or disaster occurred;

TEX. PENAL ; CODE ANN. 38.12(d) (Vernon 1997).

      In her response, Wyatt admits she personally solicited professional employment

from Adrian less than 30 days after his brush with death. During this immediate window

after a traumatic event, the Fifth Circuit recognizes, many people suffer a "stress

disorder. . . which can lead to cognitive dysfunctions in information processing and

decision-making." Wyatt took full advantage of this window of opportunity to extort an

unconscionable arbitration clause which she is asking this Court to bless. But see Ethical

Implications of Attorneys Requiring Clients to Submit Malpractice Claims to ADR, 38 S.

TEX. L. REV. 625 , 648 (1997).

      Wyatt claims Adrian's father "invited" her into Adrian' s room. Even if true, this

is not a lawful defense to Castro ' s claims because Castro was not a minor and his father




CASTRO'S REPLY- Page 3
had no authority to invite Wyatt to solicit his son. Thus, Wyatt's response practically

concedes she committed barratry.

        Even worse, it is uncontroverted Wyatt did this within days of the accident, in a

hospital room, while Castro was immobilized, in pain, blind, and drugged. Wyatt had

every advantage in the "negotiations" leading up to this contract. Castro was alone. He

could not get up and leave. If he did say no, he wouldn ' t remember. He could not

bargain fair terms. He was powerless. As a result of this contract, Wyatt claimed a $1.2

million fee, and the protection of an arbitration clause that would allow her to resolve this

case secretly, in a non-public forum , that may enable her to continue illegally soliciting

clients without the public record a jury trial entails. Astonishingly, Wyatt asks this Court

to uphold a contract she obtained under these circumstances.

        Castro suffered mental anguish when solicited by Wyatt. He also suffered mental

anguish when she illegally charged him $1.2 million. It is undisputed Castro ' s pleadings

allege a personal injury claim. Latham v. Castillo , 972 S.W.2d 66, 69-70 (Tex. 1998).

        Castro' s right to assert this claim is protected by the Texas constitution, as is his

right to have his claim decided by a jury. The Legislature specifically provided a claim

for personal injury is not arbitrable unless Castro' s independent counsel signs . TEX. CIV.

PRAC.   REM. CODE§ 171.002(c). Wyatt' s response does not allege Castro' s independent

counsel signed.      Therefore, undisputed facts show the trial court clearly abused its

discretion by refusing to order his case to trial.




CAST R O'S REPLY -   Page 4
       Wyatt' s principal argument is Castro cannot show mandamus relief is consistent

with In re Gulf Exploration, LLC, 289 S.W.3d 836 (Tex. 2009). Wyatt' s argument is

incorrect because the balance weighs in favor of mandamus relief in this case.

       The Legislature specifically decided in § 171.002(c) this claim is not subject to

arbitration. By compelling arbitration, the trial court frustrated this controlling statutory

imperative. In re Gulf Exploration teaches some erroneous orders compelling arbitration

are mandamusable, and some are not. Key factors absent in Gulf Exploration weigh in

favor of issuing the writ here.

       B. A direct conflict exists

       This Court granted limited relief in In re Poly-America, L.P. , 262 S.W.3d 337,

354 (Tex. 2008), because the agreement to arbitrate purported to limit statutory rights and

remedies guaranteed workers. Arbitration was used by that employer to further an illegal

scheme to negate these rights. "The arbitration agreement in this case eliminates two

types of remedies available under the anti-retaliation provisions of the Workers'

Compensation Act, prohibiting the arbitrator from ordering reinstatement or awarding

punitive damages." !d. Accordingly, this Court refused to allow enforcement of that part

of the agreement to arbitrate.

       This case is worse.        Wyatt is using arbitration to conceal foreseeable barratry

claims from the public forum uniquely capable of deterring this and making a permanent,

public record. Wyatt, who is a sophisticated, repeat player, is using arbitration to negate

this essential public safeguard.




CASTRO'S REPLY- Page 5
        Furthermore, Castro's mental anguish claim under Latham is not arbitrable. TEX.

Clv.   PRAC.   REM. CODE§ 171.002(c) (prohibiting arbitration of personal injury claims).

A direct conflict exists between Castro' s constitutional right to assert his personal injury

claim, and the putative arbitrator's lack of power to decide it. This is like In re Poly-

America, L.P. In that case arbitration was used by the employers as a tool to repeatedly

violate the worker's rights. In this case, arbitration is being used as a tool to negate

Castro's right to assert a mental anguish claim, plus, it enables Wyatt to conceal her

barratrous schemes. Both of these plaintiffs would start the arbitration with no chance of

prevailing on a key claim. That is why this Court intervened in In re Poly, and it is one

reason this Court should intervene now.

        At this juncture, the best way to resolve this conflict is to vacate the trial court's

erroneous order compelling arbitration. Otherwise, Castro will be forced to participate in

an arbitration proceeding that lacks jurisdiction over a key claim for personal injury.

        This Court recognizes appellate remedies are inadequate if the challenged

proceeding is void. See e.g. In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605

(Tex. 2000, orig. proceeding). The same rule should apply if the trial court compels

parties to attend an arbitration lacking jurisdiction.

        C. This Court must eliminate barratry from our legal system.

        A primary purpose of this Court is to ensure our legal system functions properly.

Barratry is pervasive, and severely interfering with the proper functioning of our legal

system. The problem is becoming so outrageous this session the Legislature created a

statutory cause of action to remedy barratry. Tex. Gov. Code Ann. §82.0651 (Vernon

CASTRO'S REPLY- Page 6
2011) (eff. September 1, 2011). App . Exhibit 1. The purpose of this statute is to "protect

those in need of legal services against unethical, unlawful solicitation and to provide

efficient, economical procedures to secure that protection." This statute is a declaration

ofthe public policy of this State. See Texas Commerce Bank, N.A . v. Grizzle, 96 S.W.3d

240, 250 (Tex. 2002) (public policy of Texas is reflected in its statutes). This is exactly

what happened to Castro.

       Issuing a writ to compel the trial court to proceed to trial in this barratry case

furthers the declared public policy of this state. Gulf Exploration did not involve a claim

designated by the legislature as a priority. See e.g. In re McAllen Medical Center Inc.,

275 S.W.3d 458, 462 (Tex. 2008). Sending the case to a secret arbitral forum promotes

barratry because secrecy is an essential component of the scheme. Even one published

opinion upholding jury findings of barratry will severely impede that lawyer' s ability to

commit future barratry.

       So far, Castro has been effectively blocked for years on his efforts to secure any

relief for his mental anguish claim, and there is no end in sight. Ordering this claim to

proceed to arbitration unquestionably frustrates this policy.

       D. This Court should resolve the split of authority.

       Another factor favoring issuing a writ is the opportunity to eliminate a split of

authority among the lower courts. A primary purpose of this Court is to ensure the correct

legal principles are consistently and unifonnly applied for all litigants. Currently, an

intolerable circumstance exists. In deciding the very problem at hand, every court of

appeals is applying incorrect methodology.       The lower Courts should be reviewing

CASTRO'S REPLY- Page 7
pleadings to determine if a personal injury claim is asserted. Instead, the lower courts are

classifYing claims by type, in this case " legal malpractice," and based on this non-

statutory criteria, they are deciding whether to compel arbitration.     State wide, many

litigants with personal injury claims are being misclassified and deprived of the benefits

of § 171.002(c). This Court can easily and efficiently address this problem in this

proceeding.

                                    II. CONCLUSION

       This Court should issue its writ of mandamus directing Respondent to vacate his

November 12, 2010, Order Granting Defendant' s Motion for Reconsideration of Denial

of Arbitration in all respects.

                             Respectfully submitted,

                                   CRAIG S. SMITH
                                   14493 S.P.I.D., Ste. A; P.M.B . 240
                                   Corpus Christi, TX 78418
                                   Telephone: (361) 728-8037

                                   LAW OFFICES OF J. MITCHELL CLARK
                                   Frost Bank Plaza Suite 00
                                   P.O. Box 2701
                                   Corpus Christi, Texas 78403
                                   (361) 887-8500
                                   (361) 882-4500 FAX


                                              -
                                          By;n~~=--------------~-
                                              1. MITCHELL CLARK
                                              State Bar No. 04283900
                                              Craig S. Smith
                                              State Bar No. 18553570

                                              ATTORNEYSFORRELATOR

CASTRO'S REPLY - Page 8
                            CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the above and foregoing was sent in
the manner indicated below to the following on this the 17th day of June, 2011.

VIA CMRR: 7004 1160 0000 0812 7351
Tom Hermansen
Darrell Barger
Brennan Gamblin
HARTLINE DACUS BARGER DREYER & KERN            LLP
800 N. Shoreline, Suite 2000, North Tower
Corpus Christi, TX 78401
Attorneys for Real Parties in Interest




CASTRO'S REPLY - Page 9
                                                VERIFICATION

STATE OF TEXAS   §
                 §
COUNTY OF NUECES §
                 §

       Before me, THE UNDERSIGNED Notary Public, on this day personally appeared
J. Mitchell Clark, who being duly sworn by me deposed and said:

      1.      I am counsel of record for Adrian Castro, Relator in this Case. I am over 21
           years of age and am competent to make this verification. I have read Castro' s
           Reply to which this verification is attached, which is filed on Behalf of Adrian
           Castro, and all the factual statements contained in the response are within my
           personal knowledge and are true and correct.

      2.       The Reply is accompanied by an Appendix. I have personal knowledge that
           the Statute contained in the Appendix is true and correct copy.


      Further, Affiant sayeth not.




                                                  ~~~
                                                  · ~chell Clark                ~
                                                         11
      Subscribed and sworn to before me this 1i               day of June, 2011 .




                    MICHELE T. CLARK
                Notary Public, State ot Texas           Notary Public of the State of Texas
                  My Commission Expires
                   November 30 , 20 11




VERIFICATION- Page 1
                                     INDEX OF EXHffiiTS




EXHIBIT 1 NEW BARRATRY STATUTE ........... .......................................................... 1




INDEX OF EXHIBITS- Page 1
     By :   Duncan                                                                  S . B . No . 1716


                                        A BILL TO BE ENTITLED

 1                                             AN ACT

 2   relating to voidability of contracts procured through and liability

 3   arising     from      conduct      constituting          barratry ;     providing     a   civil

 4   penalty.

 5            BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS :

 6            SECTION 1 .        Section 82 . 065 , Government Code ,               is amended to

 7   read as follows :

 8            Sec . 82 . 065.      [CONTINGENT FEE] CONTRACT FOR LEGAL SERVICES .

 9   (a)    A contingent          fee    contract       for    legal    services      must     be    in

10   writing and signed by the attorney and client.

11            (b)    Any    [A contingent fee]           contract for        legal services is

12   voidable by the client if it is procured as a result of conduct

13   violating the laws of this state or the Texas Disciplinary Rul es of

14   Professional Conduct of the State Bar of Texas regarding barratry

15   by attorneys or other persons.

16            (c)    An attorney who was pa id or owed fees or expenses under a

17   contract that         is voided under this section may recover fees and

18   expe n ses based on a quantum meruit theory if the client does not

19   prove that the attorney committed barratry or had actual knowledge ,

20   before     undertaking        the    representatio n,            that   the     contract       was

21   procured as a result of barratry by another person .                          To recover fees

22   or expenses under this subsection , the attorney must have re p orted

23   the    misconduct      as    required    by    the       Texas    Disciplinary Rules            of

24   Professional Conduct of the State Bar of Texas , unless :



                                                    1
                                                                                  S. B . No . 1716

 1                     (1l    another         person      has     already     reported          the

 2   misconduct ; or

 3                     (2)    the    attorney reasonably believed t h at                reporting

 4   t he     misco ndu ct        would     s ub stant ially     prejudice        the    client ' s

 5   interests .

 6             SECTION 2 .        Subchapter C ,       Chapter 82,     Gover n ment Code,        is

 7   amended by adding Section 82 . 0651 to read as follows :

 8             Sec. 82 . 0651.        CIVIL       LIABILITY     FOR   PROHIBITED        BARRATRY .

 9   (a)      A cl i ent may bring an actio n to void a contract                        for   legal

10   services that was pr ocured as a result of cond u ct v i olat ing t h e laws

11   of     t his    state   or    the    Texas    Discipl in ary Rules      of    Professio na l

12   Conduct o f the State Bar of Texas regarding barratry by attor ney s o r

13   other persons .

14             (b)     A client who prevails in an action under Subsection (a)

15   shall recover from any person who committed barratry :

16                     (1l    all fees a n d expenses paid to that person under the

17   contract ;

18                     (2)    the balance of any fees and e xp enses p aid t o any

19   other person under the contract , after deduct i ng fees and ex p enses

20   awarded based on a quantum meruit theory as p rovided by Section

21   82.065(c) ;

22                     (3)    actual damages caused by the prohibited co n duct ;

23   and

24                     (4)    reasonable and n ecessar y attor n ey ' s fees.

25             (c)     A p erson who was solicited by conduct v i olating the laws

26   of     t his    state   or    t he   Texas    Discipli n ary Rules      of    Professio na l

27   Conduct of the State Bar of Texas regarding barratry by attor n eys or



                                                      2
                                                                                       S.B. No . 1716

 1   other persons , but who did not enter into a contract as a result of

 2   that   conduct,        may    file     a    civil      action     against      any     person    who

 3   committed barratry .

 4           (d)     A person who prevails in an action under Subsection (c)

 5   shall recover from each person who engaged in barratry :

 6                   ( 1)    a penalty in the amount of $10 , 000;

 7                   (2)     actual damages caused by the prohibited conduct ;

 8   and

 9                   (3)     reasonable and necessary attorney's fees .

10           (e)     This section shall be liberally construed and applied to

11   promote its under lying purposes , which are to protect those i n need

12   of legal services against unethical , unlawful solicitation and to

13   provide       efficient        and     economical         procedures        to       secure     that

14   protection .

15           (f)     The provisions of this subchapter                        are not exclusive.

16   The remedies provided in this subchapter are in addition to any

17   other procedures or remedies provided by any other law, except that

18   a   person may not           recover       damages and penalties under                  both this

19   subchapter and another law for the same act or practice .

20          SECTION 3 .           (a)     Section 82 . 065, Government Code , as amended

21   by this Act , applies only to a contract entered into on or after the

22   effective date of this Act .                  A contract entered into before the

23   effective      date     of    this     Act    is       governed    by    the     law    in    effect

24   immediately before the effective date of this Act , and that law is

25   continued in effect for that purpose.

26          (b)      Section 82.0651, Government Code, as added by this Act,

27   does   not    apply     to    prohibited       conduct       that       occurred       before    the



                                                        3
                                                                  S . B. No.   1716

1   effective   date   of    this   Act.   Prohibited   conduct   that   occurred

2   before the effective date of this Act is governed by the law that

3   applied to t he conduct         immediately before the effective date of

4   this Act , and that law is continued in effect for that purpose.

5         SECTION 4.        This Act takes effect September 1, 2011.




                                           4

				
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