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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


                 ADRIAN CASTRO’S MERITS BRIEF
                         AND APPENDIX

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
                        IDENTITY OF PARTIES AND COUNSEL

1. Relator                                      Adrian Castro

2. Respondent                                   Judge Federico G. Hinojosa

3. Real Parties in Interest                     Paula Wyatt and Wyatt Law Firm, LTD.

4. Attorneys for Relator                        LAW OFFICES OF CRAIG S. SMITH
                                                Craig S. Smith
                                                State Bar No. 18553570
                                                14493 S.P.I.D., Ste. A; P.M.B. 240
                                                Corpus Christi, TX 78418
                                                Telephone: (361) 728-8037
                                                csslaw@stx.rr.com

                                                LAW OFFICES OF J. MITCHELL CLARK
                                                Mail Address:
                                                P.O. Box 2701
                                                Corpus Christi, Texas 78403
                                                Telephone: (361) 887-8500
                                                Facsimile: (361) 882-4500
                                                Physical Address:
                                                Frost Bank Plaza, Suite 1400
                                                Corpus Christi, Texas 78401
                                                Mitchell@txverdict.com

5. Attorneys for Real Parties in Interest
                                                HARTLINE DACUS BARGER DREYER &
                                                KERN LLP
                                                800 N. Shoreline
                                                North Tower Suite 2000
                                                Tom Hermansen
                                                Darrell Barger
                                                Brennon Gamblin
                                                Corpus Christi, TX 78401




                                            i
                                                  TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................ i
TABLE OF CONTENTS ..........................................................................................................ii
INDEX OF AUTHORITIES ................................................................................................... iii
FORWARD...............................................................................................................................vi
STATEMENT OF CASE .......................................................................................................... 1
          A. Nature of Underlying Proceeding ............................................................................. 1
          B. Respondent ................................................................................................................ 1
          C. Respondent’s Action from Which Relief is Sought ................................................. 1
          D. The Same Relief was Sought in the 13th Court......................................................... 2
STATEMENT OF JURISDICTION .................................................................................... 2
ISSUE PRESENTED ........................................................................................................... 4
STATEMENT OF FACTS................................................................................................... 4
          1. Relator Castro is badly injured and near death ......................................................... 4
          2. Lawyer Paula Wyatt runs the case ............................................................................ 4
          3. Paula Wyatt settles Castro’s case .............................................................................. 6
          4. Wyatt moved to compel arbitration, and the district judges made inconsistent
             rulings ......................................................................................................................... 7

SUMMARY OF ARGUMENT ........................................................................................... 8
ARGUMENT AND AUTHORITIES .................................................................................. 9
          A. The trial court clearly abused its discretion by refusing to proceed to trial
             because Wyatt did not prove an enforceable agreement to arbitrate .................. 9
          B. Castro should be granted extraordinary relief because the benefits of the issuing
             a writ outweigh the detriments.......................................................................... 15
CONCLUSION .................................................................................................................. 24
CERTIFICATE OF SERVICE ........................................................................................... 25


                                                                      ii
VERIFICATION......................................................................................................Attached
APPENDIX..............................................................................................................Attached
                                              INDEX OF AUTHORITIES
Cases

Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287 (1959) .................................................. 19

Archer v. Griffith, 390 S.W.2d 735 (Tex. 1964) ............................................................... 14

Bennett v. Leas, 2008 WL 2525403 (Tex. App.--Corpus Christi, 2008) (not reported)3, 22

Bradley v. McCrabb, 1843 WL 3916 (Tex. 1843) ............................................................ 16

Chambers v. O'Quinn, 305 S.W.3d 141, 150-51 (Tex. App.--Houston [1st Dist.] 2009, no
  pet.) ............................................................................................................................ 2, 22

Cohen v. Hurley, 366 U.S. 117 (1961) ........................................................................ 19, 20

Eichelberger v. Eichelberger, 582 S.W.2d 395, (Tex.1979)............................................. 20

Herider Farms–El Paso, Inc. v. Criswell, 519 S.W.2d 473 (Tex. Civ. App.—El Paso
  1975, writ ref'd n.r.e.) .................................................................................................... 13

Hexter Title & Abstract Co. v. Grievance Comm., 179 S.W.2d 946 (Tex. 1944) ............. 20

Hidalgo County Water Improvement District No. 2 v. Blalock, 301 S.W.2d 593 (1957) ... 2

Hoover Slovack, LLP. v. Walton, 206 S.W.3d 557 (Tex. 2006) ........................... 14, 15, 16

In re EPIC Holdings, 985 S.W.2d 41 (Tex. 1998) ............................................................ 16

In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) ................................................. 10

In re Godt, 28 S.W.3d 732, 738-39 (Tex. App.--Corpus Christi 2000,
   orig. proceeding) ................................................................................................... 3, 9, 22

In re Gulf Exploration, LLC, 289 S.W.3d 836 (Tex. 2009) ........................................ 11, 17

In re Hartigan, 107 S.W.3d 684, (Tex. App.--San Antonio 2003, orig. proceeding) ... 3, 22

In re McAllen Medical Center Inc., 275 S.W.3d 458, 462 (Tex. 2008) ................ 15, 20, 23

In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, (Tex.1999) ........................................ 20

                                                                    iii
In re Pham, 314 S.W.3d 520 (Tex. App.--Houston [14 Dist.]
   2010, orig. proceeding) ............................................................................................. 2, 22

In re Palacios, 221 S.W.3d 564 (Tex. 2006) .................................................................... 17

In re Premont Independent School Dist., 225 S.W.3d 329 (Tex. App.--San Antonio,
   2007) ........................................................................................................................ 17, 22

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) ..................... 16, 23

In re Villanueva, 311 S.W.3d 475 (Tex. App.--El Paso, 2009) ........................................ 22

International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963) ............... 14

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ............................................ 9

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) ................................. 13

Kennedy v. Bender, 135 S.W. 524 (Tex. 1911) ................................................................. 13

Kinzbach Tool Co. v. Corbett–Wallace Corp., 160 S.W.2d 509 (Tex. 1942) ............. 14, 15

Kutch v. Del Mar College., 831 S.W.2d 506 (Tex. App. Corpus Christi 1992, no writ) .. 20

Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998) ................................................. 3, 9, 10, 22

McKinley v. Abbot, Cause No. 10–50568; 2011 WL 2206817 (Fifth Cir. June 8, 2011) . 18

Meyer v. Cathey, 167 S.W.3d 327 (Tex. 2005) ................................................................. 13

Miller v. Brewer, 118 S.W.3d 896 (Tex. App.--Amarillo 2003, no pet.) ...................... 2, 22

Nat'l Med. Centers. v. Godbey, 924 S.W.2d 123 (Tex.1996) ............................................ 13

Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex. 1993) ....................................... 17

Simmons v. Arnium, 220 S.W. 66 (Tex. 1920) .................................................................. 11

Spangler v. Jones, 861 S.W.2d 392 (Tex. App. Dallas 1993, writ denied)....................... 13

Spevack v. Klein, 385 U.S. 511 (1967) .............................................................................. 20

Taylor v. Wilson, 180 S.W.3d 627 (Tex. App.--Houston [14th Dist.]
  2005, pet. denied) ...................................................................................................... 2, 22


                                                                   iv
Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980) ..................................... 14

Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (orig. proceeding)................................... 16

Westerman v. Mims, 227 S.W. 178 (Tex. 1921 ................................................................. 16

White v. White, 196 S.W. 508, 512 (Tex. 1917) ................................................................ 23
Statutes

TEX. CIV. PRAC. REM. CODE § 171.002(c) ................................................................. passim

TEX. CIV. PRAC. REM. CODE §171.098 (a)(1) ..................................................................... 8

TEX. GOV'T CODE § 22.002(a) (Vernon 2003). ................................................................... 2

TEX. GOV'T CODE § 22.002(b) (Vernon 2003). ............................................................... 2, 3

TEX. GOV'T CODE § 81.001. .............................................................................................. 20

Tex. Gov. Code Ann. §82.0651 (Vernon 2011) (eff. September 1, 2011) ........................ 18

TEX. PENAL; CODE ANN. 32.45. ........................................................................................ 20

TEX. PENAL; CODE ANN. 38.12(d) (Vernon 2005). ................................................. 6, 18, 21

Other

RESTATEMENT (SECOND) OF CONTRACTS § 178(1) ............................................. 16

TEX. CONST. ART. I, § 15 ................................................................................................... 23

TEX. CONST. ART. V, § 10 ................................................................................................. 23




                                                              v
                                       FORWARD


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

sequentially paginated in the bottom, right-handed corner of each page. The Appendix

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 Petition and Appendix materials

are   sworn   by   a   verification   which   appears   at   the   end   of   the   Petition.




                                              vi
                                No. 11-0193

            IN THE SUPREME COURT OF TEXAS

                    In re ADRIAN CASTRO, Relator

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


TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

                            STATEMENT OF THE CASE

A.    Nature of Underlying Proceeding.

      Plaintiff Adrian Castro is a former personal injury client of Defendant Wyatt. His

petition alleges his case was run. He sued Wyatt seeking mental anguish, equitable

remedies, punitive damages, and alleging the attorney fee contract was void as a result of

barratry. (App. Tab 5 p. 11-17). The fee contract contains an arbitration clause. Wyatt

moved to compel arbitration which was granted.

B.    Respondent.

      Respondent is the Honorable Federico Hinojosa. He was assigned by the

Honorable Manuel Banales, Presiding Administrative Judge for the Fifth Administrative

Region, to preside in this case in the 94th District Court, Nueces County, Texas.

C.    Respondent's Action from Which Relief is Sought.



PETITION FOR WRIT OF MANDAMUS
         On November 12, 2010, Respondent signed an order granting Wyatt’s motion for

reconsideration and compelling arbitration. (App. Tab 1 pp. 1-2).

D.       The same relief was sought in the 13th Court.

         Relator sought and was denied relief in the 13th Court of Appeals. (App. 10 pp. 41-

42). The Petition was filed on January 18, 2001. The justices who participated were

Valdez, Rodriguez, and Perkes. They denied relief in an unpublished order.

                           STATEMENT OF JURISDICTION

         This Court has traditional mandamus jurisdiction over this original proceeding.

TEX. GOV'T CODE § 22.002(a) (Vernon 2003). In addition, Petitioner seeks an order to

“compel a district judge to proceed to trial.” Hidalgo County Water Improvement District

No. 2 v. Blalock, 301 S.W.2d 593 (1957); TEX. GOV'T CODE § 22.002(b) (Vernon

2003).

         The question is whether a district judge may not proceed to trial and instead

compel arbitration in a case where the client sues a lawyer for mental anguish damages

and the client’s independent counsel did not advise the client and sign the arbitration

clause. Courts of Appeals are split on this issue. The First, Fourth, Seventh, and

Fourteenth Courts hold the arbitration clause may be enforced by the lawyer even though

the client’s independent counsel did not sign. In re Pham, 314 S.W.3d 520 (Tex. App.--

Houston [14 Dist.] 2010, orig. proceeding); Chambers v. O'Quinn, 305 S.W.3d 141, 150-

51 (Tex. App.--Houston [1st Dist.] 2009, no pet.); Taylor v. Wilson, 180 S.W.3d 627,

630-31 (Tex. App.--Houston [14th Dist.] 2005, pet. denied); Miller v. Brewer, 118



PETITION FOR WRIT OF MANDAMUS
S.W.3d 896, 899 (Tex. App.--Amarillo 2003, no pet.); In re Hartigan, 107 S.W.3d 684,

690-91 (Tex. App.--San Antonio 2003, orig. proceeding).

       The Thirteenth Court holds a client’s claim against a lawyer may constitute a

“claim for personal injury” and the trial court may not compel arbitration unless the

client’s independent counsel advises the client and signs. Bennett v. Leas, 2008 WL

2525403 (Tex. App.--Corpus Christi, 2008) (not reported); In re Godt, 28 S.W.3d 732,

738-39 (Tex. App.--Corpus Christi 2000, orig. proceeding); TEX. CIV. PRAC. REM. CODE

§ 171.002(c). Justice Vela dissented in Bennett.

       The correct answer is found simply by determining if the client’s pleading asserts

a personal injury claim against a lawyer such as the claim approved by this Court for

knowing DTPA violations in Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998). If

so, the lawsuit is a “claim for personal injury.” TEX. CIV. PRAC. REM. CODE §

171.002(c). Unless the client’s independent counsel advises and signs, arbitration may

not be compelled. Id. This Court has express jurisdiction to compel the district court to

proceed to trial. TEX. GOV'T CODE § 22.002(b) (Vernon 2003).

       This Court has and should exercise jurisdiction because granting relief sought in

this petition is agreeable to the principles of law, as well as equitable principles,

regulating writs, and because the relief sought is an order compelling the district judge to

proceed to trial. The dispute concerns the proper functioning of Texas courts and

equitable duties owed by lawyers to clients. The courts of appeals are split, all lower

Courts fail to properly apply Latham, and the issue is the proper construction of this



PETITION FOR WRIT OF MANDAMUS
statute. This Court should exercise its discretion and jurisdiction to determine this

petition.

                                  ISSUE PRESENTED

       Should a writ issue to compel Respondent to proceed to trial because Wyatt did

not carry her burden to prove an enforceable agreement to arbitrate and the benefits of

issuing a writ outweigh the detriments.

                              STATEMENT OF FACTS

       1.    Relator Adrian Castro is badly injured and near death.

       Adrian Castro’s life changed forever at on October 20, 2003. He was working at a

refinery with his dad, Jeronimo Castro. (App. Tab 2 p. 3). Acid and high pressure steam

blasted him. Third degree burns covered most of his body. He was blinded and in

extreme pain. (App. Tab 2 p. 3). This happened at approximately 1:00 p.m. (App. Tab 2

p. 3). Castro was rushed by ambulance to the local hospital in Port Lavaca, Texas. (App.

Tab 5 p. 9). His father was with him. (App. Tab 2 p. 3).

       Castro was near death. He was evaluated and immediately flown to the burn unit

in San Antonio. (App. Tab 2 p. 3). Jeronimo Castro went home to console his wife and

gather necessaries for their urgent trip to San Antonio. (App. Tab 3 p. 5). At about 4:00

p.m., just three hours after his son was blasted with acid and high pressure steam,

Jeronimo’s phone began ringing.

       2.    Lawyer Paula Wyatt runs the case.

       At 4:00, October 20, 2003, lawyer Paula Wyatt attempted to change her life

forever, financially. Only three hours after his son appeared mortally wounded, Wyatt’s

PETITION FOR WRIT OF MANDAMUS
case runners Frank Salazar and J. C. Gonzales began mercilessly calling Jeronimo Castro

to sign him up. (App. Tab 3 p. 5).

         Before this injury Paula Wyatt and her caserunners, Frank Salazar and J. C.

Gonzales, did not know Adrian Castro and had no connection with the Castro Family.

(App. Tab 3 p. 5). Even Wyatt admits she did not know Adrian. She claims Jeronimo

Castro called her, and she was not contacted by Adrian. (App. Tab 11, Affidavit of Paula

Wyatt, p. 43-44).

         Nevertheless, Wyatt and her caserunners relentlessly solicited Castro’s Family.

During the ride to San Antonio, Frank Salazar blasted Jeronimo with phone calls trying to

sign up Adrian’s Family. (App. Tab 3 p. 5). Their solicitation didn’t stop. It became

worse.

         When the Family arrived at the hospital in San Antonio, Jeronimo Castro was

repeatedly solicited by Paula Wyatt's caserunner. (App. Tab 3 pp. 5-6) By 10:00 p.m.,

only 7 hours after Castro was blasted by acid and steam, Paula Wyatt approached the

Family’s hotel room with two of her employees and gained access. (App. Tab 3 p. 6)

Wyatt "signed up" Jeronimo. (App. Tab 3 p. 6) He neither reads nor speaks English well,

yet Wyatt induced him to sign her contingent fee contract in English with no explanation

except she needed him to sign. (App. Tab 3 p. 6)

         The next day, Wyatt’s employee showed up at the hospital stayed a day or so

taking pictures. (App. Tab 5 p. 10) Castro eventually awoke from a drug-induced sleep.

Wyatt was by his side insisting he sign the very attorney employment agreement at issue

in this case. (App. Tab 3 p. 6 and App. Tab 2 p. 3)

PETITION FOR WRIT OF MANDAMUS
       Wyatt admits Adrian Castro did not ask to meet her or invite her into his hospital

room. (App. Tab 11, Affidavit of Paula Wyatt, p. 44). Adrian and Jeronimo Castro also

state this fact. (App. Tab 2 p. 3). Wyatt also admits this meeting occurred five days, (i.e.

less than thirty days) after Castro’s accident. These facts are undisputed.

       Wyatt admits violating the Barratry statute. TEX. PENAL; CODE ANN. 38.12(d)

(Vernon 2005). See also Wyatt’s Response To Petition For Writ of Mandamus p.1.

       The parties’ bargaining positions were far from equal at this encounter in Castro’s

hospital room. Burns covered most of his body. Castro was incapacitated by potent drugs

he needed to stay alive and suppress his pain. He was blind. (App. Tab 2 p. 3) He was

immobile, basically cornered, and could not walk away. Castro just suffered a debilitating

injury and could not possibly deal with Wyatt at arm’s length. Wyatt did not explain the

terms and conditions of her contract. (App. Tab 2 p. 3). Despite knowing all this, Wyatt

actively solicited Castro and finally succeeded. (App. Tab 5 p. 10)

       3.     Paula Wyatt settles Castro’s case.

       Wyatt sued. Under pressure from Wyatt, Castro settled. Wyatt kept $1.2 million,

and disbursed the remainder to Castro. (App. Tab 5 p. 11) The first time Castro received

a copy of Wyatt’s contingent fee contract is at settlement closing. (App. Tab 2 p. 4).

       Page 12 of the settlement, release, and indemnity agreement includes a snippet of

language saying Jeronimo and Adrian Castro are adequately represented by counsel of

their choice. (App. Tab 12 p.47) After signing documents Wyatt prepared, she gave

Castro a percentage of his settlement. This was distributed through Wyatt’s trust account.

It is undisputed the settlement, release, and indemnity agreement Adrian Castro signed

PETITION FOR WRIT OF MANDAMUS
did not also include a signature from his independent counsel. No evidence shows Wyatt

disclosed material facts to Castro, such as the $1.2 million fee was not owed because

Wyatt and her caserunners committed Barratry. These documents say the opposite: the

fee is owed.

       Castro sued Wyatt in Nueces County district court for running his case and taking

$1.2 million in fees on a barratrous contract. His live petition alleges breach of fiduciary

duty, fraud, knowing DTPA violations, and legal malpractice, all with heightened

culpability. (App. Tab 5 pp. 11-14) Castro demanded a jury and sought mental anguish,

economic damages, fee forfeiture, and punitive damages. (App. Tab 5 pp. 14-15).

       4.      Wyatt moved to compel arbitration, and the district judges made

               inconsistent rulings.

       Wyatt’s contract contains an arbitration clause that provides "all controversy and

claims arising out of the attorney/client relationship shall be submitted to arbitration."

(App. Tab 4 p. 7) This contract does not exclude from arbitration a “claim for personal

injury” caused by Wyatt’s deception of Castro. Wyatt’s contract fails to comply with

TEX. CIV. PRAC. REM. CODE § 171.002(c) (App. Tab 8 p. 39) because Castro did not have

the benefit of his own independent counsel before signing and his own independent

counsel did not sign the agreement. (App. Tab 4 p. 7, Tab 2 pp. 3-4).

       Wyatt denied the claims and moved to compel arbitration. (App. Tab 6 pp. 18-27).

The elected district judge is the Honorable Bobby Galvan. He initially compelled

arbitration. Then he reversed himself. He denied arbitration and appeared ready to



PETITION FOR WRIT OF MANDAMUS
proceed to trial. Then, without explanation, he asked the Honorable Judge Banales,

presiding judge for the Fifth Administrative Judicial Region, to assign a new judge.

       Wyatt appealed the order denying arbitration. TEX. CIV. PRAC. REM. CODE

§171.098 (a)(1). (App. Tab 9 p. 40). While this appeal was pending the Honorable Judge

Federico Hinojosa was assigned by Judge Banales. Wyatt filed a motion for

reconsideration. (App. Tab 7 pp. 28-38). Judge Hinojosa reversed Judge Galvan,

compelled arbitration, and stayed the case. (App. Tab 1 pp. 1-2). The Honorable

Thirteenth Court dismissed the appeal as moot, and denied Castro’s petition.

       Judge Hinojosa is not going to proceed to trial as required by law. He ordered

arbitration.

       It is this order Castro asks this Court to review.

                              SUMMARY OF ARGUMENT

       This is a dispute between a lawyer and client concerning mental anguish and

economic damages resulting from a lawyer’s deceit and misapplication of a $1.2m

contingent fee in a personal injury case. The client plead the agreement was procured by

barratry. The solicited fee contract was signed in the hospital days after a catastrophic

injury. It contains an arbitration clause.

       The client seeks a jury trial, and the lawyer wants arbitration. The Honorable

Bobby Galvan, ruled the clause was enforceable, then ruled it was not, and then had the

case assigned to another judge. The Honorable Fred Hinojosa was assigned. He ruled the

arbitration clause was enforceable.



PETITION FOR WRIT OF MANDAMUS
        The question is whether this district judge had a legal choice to compel arbitration

and not proceed to trial. The answer is no. Furthermore, this Court has jurisdiction to and

should issue a writ.

        Coincidentally, Judge Hinojosa authored In re Godt, 28 S.W.3d 732 (Tex. App.--

Corpus Christi 2000, no pet.). This decision holds a client’s claim against a lawyer may

be a “claim for personal injury;” thus, TEX. CIV. PRAC. REM. CODE § 171.002(c) applies

(App. Tab 8 pp. 39). This statute provides a claim for personal injury is only enforceable

if: “each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and

the agreement is signed by each party and each party’s attorney.”

        Courts of Appeals are split on this very issue. None of them are properly analyzing

the pleadings and applying Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998). This

Court should interpret §171.002(c). Furthermore, barratry is a serious problem directly

affecting our judicial system. This Court must intervene. Under these circumstances, the

benefits of mandamus greatly outweigh the detriments and this Court must issue a writ to

settle this split.

                          ARGUMENT AND AUTHORITIES

    A. The trial court clearly abused its discretion by refusing to proceed to trial because

        Wyatt did not prove an enforceable agreement to arbitrate.

    1. Adrian Castro pleads a claim against Wyatt for intentionally breaching duties and

        seeks mental anguish.

    Whether the parties have an enforceable agreement to arbitrate is a question of law

reviewed de novo. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). An

PETITION FOR WRIT OF MANDAMUS
agreement to arbitrate a claim for personal injury is only enforceable if “each party to the

claim, on the advice of counsel, agrees in writing to arbitrate; and the agreement is signed

by each party and each party’s attorney.” TEX. CIV. PRAC. REM. CODE § 171.002(c)

(App. Tab 8 p. 39). It is undisputed Wyatt did not comply with this independent counsel

requirement on any document she claims binds Adrian Castro.

   Whether a claim allegedly subject to arbitration is a “claim for personal injury,” is

determined by reviewing the petition. See In re FirstMerit Bank, N.A., 52 S.W.3d 749,

753 (Tex. 2001). Castro’s live petition is attached as Appendix Tab 5. He alleges a claim

for mental anguish arising from Wyatt’s knowing and intentionally unlawful conduct.

Causes of action include breach of fiduciary duty, knowing violations of the DTPA,

conversion, and common law fraud. No special exceptions were asserted by Wyatt to

these pleadings. Although Wyatt disputes these allegations, this Court can determine as a

matter of law for the purposes of this proceeding what Castro alleges. Id.

       Castro’s claim for personal injury is recognized by this Court. In Latham v.

Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998), this Court affirmed a claim for mental

anguish by a client against a lawyer on similar facts. That lawyer allegedly deceived the

client about whether he filed a personal injury claim for the client. Although Wyatt

expresses disagreement with Latham, or its applicability, this Court already decided

mental anguish is a remedy for this type of misconduct accompanied with heightened

culpability.

       It is undisputed Castro plead a claim for personal injury, and Wyatt did not secure

for Castro independent counsel’s advice or signature as required by law. Neither the

PETITION FOR WRIT OF MANDAMUS
instant fee contract nor any settlement document bears the signature of Castro’s

independent counsel. Wyatt did not comply with the independent counsel requirement.

TEX. CIV. PRAC. REM. CODE § 171.002(c) (App. Tab 8 p. 39).

      Wyatt did not carry her burden of proving an enforceable agreement to arbitrate.

The trial court clearly and indisputably did not have discretion to refuse to proceed to

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

      2. Acceptance of benefits is not a lawful reason for the trial court to refuse to

          proceed to trial.

      Wyatt argues Castro “ratified” the unenforceable arbitration clause by accepting

settlement funds from the tortfeasor and signing the settlement, release, and indemnity

agreement. Wyatt points to page 12 of this agreement as proving Adrian Castro agreed at

settlement he was adequately represented by counsel of his choice.

      Wyatt is not just incorrect. Her argument proves she is intentionally abusing

Castro.

      Multiples lines of reasoning show why this Court must not allow a client’s

signature on settlement documents and acceptance of settlement proceeds to bar a claim

for personal injury against a lawyer’s heightened culpable conduct. Section 171.002 does

not provide the trial court an option to ignore this statute on these circumstances. The

Legislature could have provided ratification trumps § 171.002, but did not do so. This

Court must seek meaning from the plain language of this statute, and willingly defer to

our Legislature’s decision. Simmons v. Arnim, 220 S.W. 66 (Tex. 1920). The result is

Wyatt may not claim acceptance of benefits circumvents this statute.

PETITION FOR WRIT OF MANDAMUS
       If this Court decides signing a subsequent document and acceptance of benefits

may be used in some circumstances to compel arbitration of a claim for personal injury,

this Court should require proof vindicating the independent counsel requirement. Since

Castro’s independent counsel never signed the settlement document, the honorable trial

court cannot force Castro to arbitrate.

       It might be different if circumstances changed. Let us assume Castro signed an

agreement to arbitrate a claim for personal injury but his independent counsel did not

sign. And, he later accepted benefits by signing a settlement document with his

independent counsel’s advise and signature. This scenario would present a very weak

argument for this Court to recognize a fact issue existed on the enforceability of the

initial arbitration clause. But since Castro’s independent counsel never signed any

document, Wyatt’s argument is precluded by §171.002 as a matter of law.

       Any other ruling would allow conniving tortfeasors to easily circumvent this law

simply by having the victim sign a second contract just as defective as the first and

providing some benefit. For example, a person with an advantage over another could

secure an agreement to arbitrate a claim for personal injury. That person could provide

the other valuable benefits in exchange for a second writing, and effectively negate

§171.002. This law was designed to protect all persons with a claim for personal injury

from arbitration. Wyatt’s argument would nullify this statute in many cases, and provide

trial court’s broad discretion to “find” ratification contrary to the plain language of

§171.002. This cannot be allowed without doing violence to the statute.



PETITION FOR WRIT OF MANDAMUS
       This conclusion is supported by this Court’s unwavering line of decisions holding

ratification only exists where the ratifying party is fully informed of all material facts.

Kennedy v. Bender, 135 S.W. 524 (Tex 1911). No evidence shows Wyatt fully disclosed

all material facts to Castro. Undisputed facts, which will be discussed presently, show the

opposite is true.

       Notably absent from this line of cases is a decision where this Court allowed

ratification as a defense to a lawyer sued by a client for breach of fiduciary duty and

fraud. Although this Court has never held ratification is allowed under such

circumstances, lower courts hold ratification fundamentally inconsistent with fiduciary

duties. Spangler v. Jones, 861 S.W.2d 392, 397 (Tex. App. Dallas 1993, writ denied) (en

banc) (ratification finding immaterial in light of breach of fiduciary duty finding);

Herider Farms–El Paso, Inc. v. Criswell, 519 S.W.2d 473 (Tex. Civ. App.—El Paso

1975, writ ref'd n.r.e.) (defrauding fiduciary not allowed ratification defense).

       These two decisions highlight the conflict between ratification and fiduciary

duties. Undisputed circumstances of this case show ratification is not simply an incorrect

legal argument. It demonstrates a compelling reason for this Court to act.

       Wyatt claims Castro was her client. As a matter of law, this gives rise to a

fiduciary duty. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002).

Where fiduciary relations exist, this Court exercises remarkably broad power. “Where the

underlying facts are undisputed, determination of the existence, and breach, of fiduciary

duties are questions of law, exclusively within the province of the court.” Nat'l Med.

Centers. v. Godbey, 924 S.W.2d 123, 147 (Tex.1996).” Meyer v. Cathey, 167 S.W.3d

PETITION FOR WRIT OF MANDAMUS
327, 330 (Tex. 2005). There is no clearer example than Kinzbach Tool Co. v. Corbett–

Wallace Corp., 160 S.W.2d 509 (Tex. 1942), where this Court determined every issue.

The jury’s findings, although correct, were essentially immaterial because duty and

breach were established as a matter of law by admitted circumstances.

       This Court severely scrutinizes transactions between a lawyer and client. Hoover

Slovack, LLP. v. Walton, 206 S.W.3d 557 (Tex. 2006); Archer v. Griffith, 390 S.W.2d

735 (Tex. 1964). This Court shifts the burden of proof to the lawyer to show all

transactions during the attorney/client relation were fair. International Bankers Life Ins.

Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963); Texas Bank & Trust Co. v. Moore, 595

S.W.2d 502, 508-09 (Tex. 1980); Archer, 390 S.W.2d at 739. This means Wyatt had the

burden to prove it was fair for Castro to accept her arbitration clause as part of his

settlement. In this regard, she utterly failed.

       No evidence shows Wyatt disclosed to Castro that by signing settlement

documents, he was ratifying Wyatt’s unenforceable arbitration clause. No evidence

shows Wyatt told Castro accepting benefits would leave him bereft of his sacred right to

trial by jury. No evidence shows Wyatt paid Castro any additional consideration for

supposedly ratifying her arbitration clause. No evidence shows Wyatt disclosed to Castro

he did not owe $1.2 million in legal fees because his case was run. Proof of fairness

would require at least some evidence of all these components of fairness. Lacking proof

on any of these key elements is fatal to Wyatt’s argument.

       Conclusive evidence shows Wyatt attempting to enforce an unconscionable and

legally unenforceable arbitration clause against Castro, who she claims is a former client.

PETITION FOR WRIT OF MANDAMUS
Conclusive evidence shows Wyatt claiming this client ratified this unenforceable

agreement to her benefit and his detriment simply by signing her documents and

accepting a percentage of his settlement proceeds.

       Texas law does not allow a fiduciary secret gains at the expense of a client.

Kinzbach, 160 S.W.2d at 509. See also Hoover, 206 S.W.3d at 560. This is emphatically

true where the client receives no additional consideration for the secret detriment.

According to Wyatt, she owed Castro a duty under the fee contract to pay him a

percentage of settlement proceeds. The gain she claims, i.e. Castro’s ratification of her

arbitration clause and Castro’s loss of his right to trial by jury, was not a benefit in that

transaction for which Wyatt paid additional consideration or disclosed. On these

undisputed facts, most of which are from Wyatt, this Court may determine Wyatt

breached fiduciary duties by seeking the benefit of an arbitration clause by paying Castro

a percentage Wyatt claims he was due, and without disclosing this substantial detriment

to Castro or proving she fairly compensated him for this detriment. Id.

       This Court can determine all these circumstances directly from Wyatt’s filings in

this Court.

       There is no fact issue. The trial court clearly abused its discretion by compelling

arbitration of Castro’s claims..

              B. Castro should be granted extraordinary relief because the benefits of

              issuing a writ outweigh the detriments.

       This Court should issue a writ. The standard for mandamus relief is a flexible cost

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

PETITION FOR WRIT OF MANDAMUS
(orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833 843 (Tex. 1992) (orig.

proceeding); Bradley v. McCrabb, 1843 WL 3916 (Tex. 1843) (mandamus may issue

when “other modes of redress are inadequate or tedious” or when mandamus affords “a

more complete and effectual remedy.”).

       Equitable principles are paramount when determining if the writ should issue.

Westerman v. Mims, 227 S.W. 178 (Tex. 1921); The attorney/client relation is the apex of

fiduciary relationships. No worldly relation is potentially more critical to Texans than

that with their lawyer. This is true because our society is built upon the principle that

everyone is equally subject to our many laws. These laws determine property, life itself,

and liberty, including rights as cherished as the parent/child relation. This demands

exacting standards of conduct by lawyers rigidly enforced without compromise. This

Court never hesitated to issue a writ to control and protect our legal system’s actual or

perceived integrity. In re EPIC Holdings, 985 S.W.2d 41 (Tex. 1998) (issuing a writ to

protect clients and perceived integrity of legal proceedings).

       In the absence of expressed direction from the Legislature, whether a promise or

agreement will be unenforceable on public policy grounds will be determined by

weighing the interest in enforcing agreements versus the public policy interest against

such enforcement. Hoover, 206 S.W.3d at 560-61 RESTATEMENT (SECOND) OF

CONTRACTS § 178(1) (“A promise or other term of an agreement is unenforceable on

grounds of public policy if legislation provides that it is unenforceable or the interest in

its enforcement is clearly outweighed in the circumstances by a public policy against the

PETITION FOR WRIT OF MANDAMUS
enforcement of such terms.”). In this case, not only does the Texas Legislature prohibit

the enforcement of the arbitration clause, public policy does as well.

       As discussed below, benefits weigh heavily in favor of acting. Detriments are

negligible, and to a large extent have already been incurred. Briefs are written. The

parties long ago lost the benefit of arbitration, which is prompt resolution. At this point,

the only detriment is the time and effort it will take this Honorable Court to decide this

case and issue an opinion.

       A heightened standard applies when reviewing an order compelling arbitration. In

re Gulf Exploration, LLC, 289 S.W.3d at 839(orig. proceeding); In re Palacios, 221

S.W.3d 564 (Tex. 2006); In re Premont Independent School Dist., 225 S.W.3d 329 (Tex.

App.--San Antonio, 2007) (orig. proceeding). This requires proof the trial court clearly

and indisputably erred.

       As discussed above, this honorable trial court clearly and indisputably erred. As

discussed below, substantial additional benefits exist over and above mere error

correction.

       Mandamus is largely controlled by equitable principles. Rivercenter Associates v.

Rivera, 858 S.W.2d 366, 367 (Tex. 1993). This case involves gross breaches of fiduciary

duties, misapplication of fiduciary property, fraud, and systematic illegal conduct in our

Courts. Promptly remedying this inequitable conduct in a very public jury trial is a

compelling benefit of granting this writ.

       A severe problem exists in our legal system, particularly in South Texas. The

problem is caserunning. The problem is so serious the Legislature recently created a

PETITION FOR WRIT OF MANDAMUS
statutory cause of action for aggrieved clients. TEX. GOV. CODE ANN. §82.0651 (Vernon

2011) (eff. September 1, 2011) (App. Tab 13 pp. 48-51)

       Every client whose case is run is the victim of a clear and serious breach of

fiduciary duty and risks emotional trauma, especially in the first 30 days. Harm to clients

was emphasized by the Fifth Circuit when it recently upheld a constitutional challenge to

our barratry statute. McKinley v. Abbot, Cause No. 10–50568; 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 in
       information processing 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 of time needed.

Slip Op. at *4. The Court upheld the constitutionality of TEX. PENAL CODE ANN.

38.12(d) (Vernon 2005).

       Every honest lawyer in this state is harmed by barratry because valuable personal

injury and wrongful death cases no longer walk in the door. They are solicited by

caserunners who descend on injured Texans like vultures, and extort a share of contingent

fees from unethical lawyers. This is not how our system of justice should work.

PETITION FOR WRIT OF MANDAMUS
       Barratry concentrates enormous wealth in the hands of caserunners and personal

injury lawyers willing to violate Texas law and ethics. Many of the most qualified

plaintiffs’ lawyers in our state are excluded because they refuse to participate in what is

essentially a white collar criminal enterprise. They are punished for being honest.

       By any measure of any criteria, barratry is severely harming those who this Court

is charged to protect. Helpless clients, honest lawyers, and diligent judges. The

perception of our legal system suffers, and for good reason.

       In the Brooklyn ambulance chasing Judicial Inquiry decisions, the Supreme Court

recognized State Courts have broad power to stamp out precisely the barratrous conduct

described in Castro’s petition. Cohen v. Hurley, 366 U.S. 117 (1961), concerned a state

court investigation intended to “expose all the evil practices (involved in the improper

solicitation and handling of contingent-retainers in personal injury cases) with a view to

enabling this court to adopt appropriate measures to eliminate them and to discipline

those attorneys found to have engaged in them.” See also Anonymous Nos. 6 and 7 v.

Baker, 360 U.S. 287 (1959). To combat this problem, the Brooklyn Court imposed a rule

requiring personal injury contingent fee lawyers to file their contracts with the Court, and

if five or more contracts are made annually, the lawyer “must give to the court in writing

certain particulars as to how he came to be retained’ (called ‘Statements of Retainer’).”

Cohen, 366 U.S. at 119.

       On public policy grounds, the Supreme Court upheld the state court’s barratry

investigation:



PETITION FOR WRIT OF MANDAMUS
              History and policy combine to establish the presence of a substantial
       state interest in conducting an investigation of this kind. That interest is
       nothing less than the exertion of disciplinary powers which English and
       American courts (the former primarily through the Inns of Court) have for
       centuries possessed over members of the bar, incident to their broader
       responsibility for keeping the administration of justice and the standards of
       professional conduct unsullied.

Cohen, 366 U.S. at 123-24. The Cohen Court held the Fifth Amendment was not

available to the lawyer who refused to testify during this investigation. This holding, of

course, was later overruled when the Court interpreted the Fourteenth Amendment to

require states to protect rights granted in the Self Incrimination Clause. Spevack v. Klein,

385 U.S. 511 (1967). However, the Court’s holding that the court had the power and

duty to eradicate barratry stands today.

       The Texas Constitution imposes on this Court inherent power to protect the

integrity of the legal system just like the disciplinary power described in Cohen. In re

Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 769–770 (Tex. 1999) (orig. proceeding);

Eichelberger v. Eichelberger, 582 S.W.2d 395, 398–399 (Tex. 1979); Kutch v. Del Mar

College., 831 S.W.2d 506, 510–12 (Tex. App. Corpus Christi 1992, no writ). The

Legislature granted this Court express power as well. TEX. GOV'T CODE §81.001 et seq.

This dispute concerns the proper functioning of our legal system, which is one of this

Court’s most vital interests. Hexter Title & Abstract Co. v. Grievance Comm., 179

S.W.2d 946, 948 (Tex. 1944) The trial court’s order directly conflicts with this interest.

       Just as in the medical malpractice crisis, the Legislature weighed the balance for

this Court. In McAllen Medical Center, this Court intervened because the Legislature

required specific procedures in medical malpractice cases, which are usually negligence

PETITION FOR WRIT OF MANDAMUS
cases. In this case, the Legislature determined for this Court that barratry and

misapplication of fiduciary property are felonies. TEX. PENAL CODE ANN. §38.12;

§32.45. Castro alleges systematic, intentional crimes by a fiduciary concerning the proper

functioning of our legal system. By any measure, this dispute is more significant that the

medical malpractice legislation affecting a few allegedly negligent doctors, none of

whom were intentionally trying to hurt their patient.

       Considering the aggregate sum annually paid for personal injury damages, the

magnitude of this problem is at least huge. If it was a “crisis” because a few misguided

lawyers filed worthless medical malpractice cases against doctors, what term describes

barratry? In its heyday, medical malpractice was a small fraction of personal injury

litigation handled by specialists, until some incompetent lawyers began suing doctors

without science to back up their claims. Today barratry affects most personal injury

litigation, especially the most valuable cases. Since this Court was willing to intervene in

the medical malpractice arena to deal with that crisis, which merely involved negligence,

this Court should not hesitate to intervene in this crisis involving intentional criminal

misconduct by fiduciaries in our legal system.

       The solution is simple and obvious: order the honorable trial court to follow

existing law and proceed to trial. The benefits are potentially huge: a high profile jury

trial proving our legal system is perfectly capable of policing itself, and drawing even

more public attention to the fact that this Court is absolutely committed to enforcing

Texas law and protecting the integrity of our legal system—even when lower courts are



PETITION FOR WRIT OF MANDAMUS
unresponsive. The Honorable trial court’s order directly conflicts with these vital public

interests.

       Another benefit of issuing a writ is to settle the split in the lower courts. Several

courts enforce arbitration clauses in attorney fee contracts. In re Pham, 314 S.W.3d 520

(Tex. App.--Houston [14 Dist.] 2010, orig. proceeding); Chambers v. O'Quinn, 305

S.W.3d 141, 150-51 (Tex. App.--Houston [1st Dist.] 2009, no pet.); Taylor v. Wilson, 180

S.W.3d 627, 630-31 (Tex. App.--Houston [14th Dist.] 2005, pet. denied); Miller v.

Brewer, 118 S.W.3d 896, 899 (Tex. App.--Amarillo 2003, no pet.); In re Hartigan, 107

S.W.3d 684, 690-91 (Tex. App.--San Antonio 2003, orig. proceeding).

       One court does not. Bennett v. Leas, 2008 WL 2525403 (Tex. App.--Corpus

Christi, 2008) (not reported); In re Godt, 28 S.W.3d 732, 738-39 (Tex. App.--Corpus

Christi 2000, orig. proceeding).

       None of the lower Courts analyze this problem correctly. The proper methodology

is to first, determine if the pleadings assert a recognized cause of action for personal

injury. See e.g Latham. If so, determine if the independent counsel requirements in

§171.002(c) are met. At this point, resolving this split is a judicial function only this

Court can perform. This exceptional circumstance requires action. See In re Villanueva,

311 S.W.3d 475 (Tex. App.--El Paso, 2009); In re Premont Independent School Dist.,

225 S.W.3d at 331.

       Another benefit is vindicating the right to trial by jury and the statutory protection

from arbitration granted personal injury claimants. This case presents a direct conflict

between this lawyer’s claimed contractual right to arbitration, and Castro’s statutory and

PETITION FOR WRIT OF MANDAMUS
constitutional right to trial by jury. Castro’s right to avoid arbitration and proceed to trial

by jury in a claim for personal injury is the core right protected by §171.002(c). This

Court has issued writs to vindicate or negate these claimed rights, and very similar rights.

See In re McAllen Medical Center Inc., 275 S.W.3d at 466 (identifying rights this Court

has vindicated).

       Mandamus is appropriate here because the Legislature has unambiguously

outlawed arbitration of a “claim for personal injury” unless the client’s independent

counsel signs. TEX. CIV. PRAC. REM. CODE § 171.002(c) (App. Tab 8 p. 39). The trial

court’s order directly interferes with the Legislature’s directive, and there is nothing

speculative about this decision’s effect on Castro. This means Castro’s right to a jury trial

is intact, it is simply not vindicated. Two constitutional provisions protect this right, and

it “shall remain inviolate.” TEX. CONST.    ART.   I, § 15; TEX. CONST.   ART.   V, § 10. This

right has a “sacred place in English and American history.” White v. White, 108 Tex.

570, 196 S.W. 508, 512 (1917). Our Constitution authorizes the Legislature to “pass such

laws as may be needed to regulate” the right to a jury trial, and “to maintain its purity and

efficiency.” TEX. CONST.    ART.   I, § 15. Section 171.002(c) is one such law. Mandamus

will issue to protect and vindicate the right to trial by jury. In re Prudential Ins. Co. of

Am., 148 S.W.3d at 139.

       The first step to solving this problem is correctly resolving this case. The

pleadings allege Wyatt illegally solicited and intentionally deceived Castro, Wyatt

misapplied a $1.2m fee, and caused Castro mental anguish. Wyatt wants to hide this

dispute behind the veil of arbitration. Castro seeks a jury. Arbitration is not available

PETITION FOR WRIT OF MANDAMUS
because this is a “claim for personal injury” and Castro’s independent counsel did not

sign. The order compelling arbitration is unquestionably a clear abuse of discretion.

       Barratry is a problem that affects the public at large and our legal community in

particular. It is a state-wide problem that has evolved into a crisis. Mandamus must issue

because the public interest and the Legislative enactments support prompt jury resolution

of this type of dispute in public courts, not secret arbitrations. The trial court’s order

compelling arbitration enhanced Wyatt’s caserunning by concealing it from the public.

Thus, Wyatt is using our legal system to enable her barratry scheme by hiding it from

public view. The ultimate solution to barratry is by the court system doing what it does

best: enforcing existing laws.

       The laws and wrongdoing at stake are crucial and go to the heart of the legal

system. Therefore the legal system must take a special interest in correcting this

particular abuse of discretion and order the honorable trial court to proceed to a jury trial.

                                       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, and ordering this case to trial..




PETITION FOR WRIT OF MANDAMUS
                                  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 1400
                                  P.O. Box 2701
                                  Corpus Christi, Texas 78403
                                  (361) 887-8500
                                  (361) 882-4500 FAX


                                         By:     /s/

                                               J. MITCHELL CLARK
                                               State Bar No. 04283900
                                               Craig S. Smith
                                               State Bar No. 18553570

                                               ATTORNEYS FOR RELATOR

                            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 28th day of July, 2011.

VIA CMRR: 7004 1160 0000 0812 7375
Tom Hermansen
Darrell Barger
Brennon Gamblin
HARTLINE DACUS BARGER DREYER & KERN LLP
800 N. Shoreline, Suite 2000, North Tower
Corpus Christi, TX 78401
Attorneys for Real Parties in Interest

                                                       /s/
                                                 J. MITCHELL CLARK



PETITION FOR WRIT OF MANDAMUS
                                       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 the Castro Merits Brief
           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 which are based on papers filed of record in the Trial Court.

      2.       The response is accompanied by an Appendix. I have personal knowledge that the
           pleadings, motions, documents and orders contained in the Appendix are true and
           correct copies.


      Further, Affiant sayeth not.


                                                    __/s/_______________________________
                                                    J. Mitchell Clark

      Subscribed and sworn to before me this 28 day of July, 2011.



                SEAL
                                                    __/s/_______________________________
                                                    Notary Public of the State of Texas
                                 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


      APPENDIX IN SUPPORT OF ADRIAN CASTRO’S
                   MERITS BRIEF

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
                                              CONTENTS OF APPENDIX


Tab 1 Order Granting Defendants’ Motion for Reconsideration of Denial of Arbitration .............1

Tab 2 Affidavit of Adrian Castro ....................................................................................................3

Tab 3 Affidavit of Jeronimo Castro ................................................................................................5

Tab 4 Attorney/Client Contract with Arbitration Clause ................................................................7

Tab 5 Plaintiff’s Second Amended Petition ....................................................................................8

Tab 6 Defendants Motion to Stay case and Compel Arbitration ..................................................18

Tab 7 Defendants’ Motion for Reconsideration of Denial of Arbitration.....................................28

Tab 8 C.P.R.C. 171.002(c) ............................................................................................................39

Tab 9 C.P.R.C. 171.098(a)(1) .......................................................................................................40

Tab 10 Memorandum Opinion ......................................................................................................41

Tab 11 Paula Wyatt’s Affidavit ....................................................................................................43

Tab 12 Release Agreement ...........................................................................................................47

Tab 13 New Civil Barratry Statute................................................................................................48




APPENDIX IN SUPPORT ADRIAN CASTRO’S MERITS BRIEF– Page 2
TAB 1
1210112010 11:25 FAX ..
                                                                                              (il) 002




                                          CAUSE NO. 09-1908-C

         ADRIAN CASTRO                                 §         IN THE DISTRICT COURT OF
                                                       §
         vs.                                           §          NUECES COUNTY, TEXAS
                                                       §
         PAULA WYATT AND                               §
         WYATT LAW FIRM, LTD.                          §          94TH JUDICIAL DISTRICT


                           ORDER GRANTING DEFENDANTS' MOTION FOR
                          RECONSIDERATION OF DENIAL OF ARBITRATION

                On the 30th day of August, 2010, the Court heard Defendants' Motion for

         Reconsideration of Denial of Arbitration. All parties appeared at the hearing by and

         through their attorneys of record. After considering the pleadings, Defendants'
                                                                                                         i.         c.

                                                                                                                    '
         motion, Plaintiffs response, the evidence on file, and the arguments of counsel, the            l·


         Court is of the opinion that Defendants' motion should be granted in its entirety.

                The Court finds that:

                1.        Plaintiff and Defendants signed the arbitration agreement;

                2.        Plaintiff's claims are not personal injury claims;

                3.        The Texas· Arbitration Act-applies to the arbitration agreement between
                          Plaintiff and Defendants;          ·

                4.       The arbitration agreem~!lt ~twe.~n.eJ~intifland Qefendants is.valid and ..
                     ... enforcea6"1e;· --·-

                5.        The subject matter of this case is arbitrable and falls within the scope
                          of the arbitration agreement; and

                6.        Plaintiff ratified his agreement to arbitrate with Defendants by accepting
                          and retaining settlement proceeds pursuant to Plaintiff's contract with
                          Defendants.
                                                                                                              '
                                                                                                              J·"




                                                                                                              i
                 12/01/2010 11:26 FAX                                                                  !g) 003




                                IT IS, THEREFORE, ORDERED that this Court's order of January 13, 2010,

                         denying Defendant's Motion to Stay and Compel Arbitration be, and is hereby,

L ~-:'                   ·;~aeeted   aAEI set aside.

                                IT IS ORDERED that Defendants' Motion for Reconsideration of Denial of

                         Arbitration and Defendants' Motion to Stay Case and Compel Arbitration are, in all

                         things, GRANTED.

                                IT IS ORDERED that the above-styled and numbered cause is STAYED and

                         the parties are COMPELLED to arbitrate their dispute.

                                The Clerk of the Court is ORDERED to send copies of this Order to all

                         attorneys of record.

                                The Clerk of the Court is ORDERED to prepare a Supplemental Clerk's

                         Record, containing this Order, and is further ORDERED to file said Supplemental

                         Clerk's Record in the 13th Court of Appeals in Cause No. 13-10-00041-CV.

                                SIGNED on the          /;L t!   day of November, 2010.




                                                                Page -2-
         ;---.
TAB 2
                                                   Cause No.09- I 908-C

            ADRIAN CASTRO                                     §                   IN THE DISTRICT COURT
                      PLAINTIFF                               §
                                                              §
~ c·-- '
            v.                                                §                   94TH JUDICIAL DISTRICT
                                                              §
            PAULA WYATT AND                                   §
f-{J:-j
r.---.·.
            WYATT LAW FIRM, LTD                               §
                     DEFENDANTS                               s
                                                              s                 NUECESCOuNTY,TEXAS


                                          AFFIDAVIT OF ADRIAN CASTRO



                    ''My name is Adrian Castro. I am the Plaintiff in the above entitled case. I am over 21
            years of age, of sound mind and capable of making this affidavit. All of the statements contained
            herein are true and correct and within my personal knowledge."

                    "On or about October 20 2003, I was seriously injured while working at a refinery. My
 ~---   A
            father was working with me at the time. As a result of what in essence was an explosion, my
            body was coated with acid and high pressure boiling water which caused 3rd degrees bums over a
            great portion of my body, caused blindness and severe physical pain and emotiomll. suffering.
            This happened at approximately I :00 p.m. After the incident, I was taken by ambulance to the
            local hospital in Port Lavaca, Texas. My father was at the hospital as well. Shortly thereafter, I
            was taken by plane to a burn unit hospital in San Antonio. Prior to this time, me, my father,   nw·
            mother nor any member of my family of any of my friends ever heard of Paula Wyatt."            ·-

                     '·A few days after I awoke from a drug induced sleep which was used to control the
            . immense amount of pain I was .experiencing... P-aula. .Wyatt -show~d--up--at-my-hospital-room­
              seeking to have me sign a paper. Paula Wyatt was not invited me to come to my room. I never
              knew nor heard of Paula Wyatt prior to this time.      At no time did Paula Wyatt explain the
              terms and conditions of her contract to me. Paula Wyatt just kept telling me that if I did not hire
              her, my case would be lost and I would have a lot of medical bills that I would have to.pay. I         ~
              was scared after hearing this and in a lot of pain. Paula Wyatt simply asked me to sign, which I
              did. At the time of signing of the contract, I was still in a daze from the drugs I was given by the
              hospital and I was blind. My mind was in a drug induced daze and I could not comprehend
   ,·'=.;

   f-·>       things very well."

                   ·'I could not read anything because of my blindness at that time nor could I understand or
             comprehend contractual terms because of all of the drugs I had been given to control the pain.
             Paula Wyatt. never told me nor did I ever know of any arbitration clause contained in the
       contract. To this day, I do not know what arbitration is or is about. I never received a copy of
       the attorney contract until the day my case was closed. I was not represented by an attorney at
       the time I signed with Paula Wyatt."

       ·'End of Statement"




       a~Q~=C~::£~~
       Adrian Castro
       Affiant


       STATE OF TEXAS

       COUNTY OF --12"--+--~V...!:l:::"-'C::.:t!!'=--=--~-----


              On this day came before me Adrian Castro and upon being duly sworn by me stated the
       statements contained in this affidavit are true and correct and are within his personal knowledge.




            ~~{1-L-!.....!.....L..~~.u.<L---1 t2 K'- //J . 0 '"?
       -.L..~~·
       Notary Public
       State of Texas




i.--
TAB 3
                                     Cause No.09-1908-C


  ADRIAN CASTRO                                *       IN THE DISTRICT COURT
                                               *
                         PLAINTIFF             *
                                               *
  v.                                           *       941 H JUDICIAL DISTRICT
                                               *
                                               *
  PAULA WYATT AND                              *
  WYATT LAW FIRM, LTD                          *
                 DEFENDANTS                    *       NUECES COUNTY, TEXAS



                                                                                                      I
                         AFFIDAVIT OF JERONIMO CASTRO



  "My name is Jeronimo Castro. I am over 21 years of age, of sound mind and capable of
  making this affidavit. All of the statements contained herein are true and correct and
  within my personal knowledge."

    "On or about October 20 2003, my son, Adrian Castro, was seriously injured while
    working at a refinery. I was working with him at the time. As a result of what in essence
    was an e~losion, his body was coated with acid and high pressure boiling water which
    caused 3r degrees burns over a great portion of my body, caused blindness and severe
    physical pain and emotional suffering. This happened at approximately 1:00 p.m. After
    the incident, he was taken by ambulance to the local hospital in Port Lavaca, Texas. I            '
                                                                                                      i·
    was at the hospital as well. Shortly thereafter, he was taken by plane to a burn unit
····hospital in San Antonio. Within2-hours-ofthe·accident-and-while·I-was at-home-packing·
    a suitcase to go to San Antonio to be with my son, I got an unsolicited phone call from a
    Frank Salazar. How get got my phone number I do not know. I never heard of Frank
    Salazar prior to that time. frank Salazar constantly pressured me to hire Paula Wyatt as
    my attorney. Based upon my conversation with him, it was clear to me he was working
    for Pau1a Wyatt and was trying to get me to sign an attorney contract with Paula Wyatt. I
    told Frank Salazar I was upset and concerned for my son. During my drive to San
    Antonio, he kept calling me wanting me to sign a contract with Paula Wyatt. Prior to this
    time, myself, my son, my wife nor any member of my family of any of my friends ever
    heard of Paula Wyatt."

  "Upon arriving at the hospital in San Antonio, I was approached by a man named J.C.
  Gonzales. Based on my conversation with him, it was clear to me he worked for Paula
  Wyatt and was trying to get me to sign a attorney contract with Paula Wyatt. Prior to this



                                                                                                .5"
              time, I never knew or heard of 1. C. Gonzales. My son was in a lot of pain and given
              many drugs to make him sleep and to reduce the pain. Around 10:00 p.m. that night,
              Paula Wyatt, J.C. Gonzales and Frank Salazar showed up at my motel room in San
              Antonio wanting me to sign a contract. Paula Wyatt told me it was necessary so that
              medical bills could be paid. At that time, I was distraught over my son's situation and
              scared. I signed the contract with Paula Wyatt."

              "A few.days later, my son awoke from a drug induced sleep which was used to control
              the immense amount of pain he was experiencing. Paula Wyatt showed up at his hospital
              room seeking to have Adrian sign a paper. Paula Wyatt was not invited me to come to
              his room. I never knew nor heard of Paula Wyatt prior to this time.At no time did Paula
              Wyatt explain the terms and conditions of her contract to me or Adrian. Paula Wyatt just
              kept telling Adrian that if he did not hire her, his case would be lost and he would have a
              lot of medical bills that he would have to pay. Adrian was scared after hearing this and in
              a lot of pain. At the time of signing of the contract, Adrian was still in a daze from the
              drugs he was given by the hospital and he was blind. Adrian was in a drug induced daze
              and he could not comprehend things very well. Without explanation of the paper, Paula
              Wyatt had Adrian sign it and she left"

              "The contacts by Frank Salazar, J.C. Gonzales and Paula Wyatt were unsolicited as to me
              and my Son Adrian Castro. I never contacted them nor did Adrian. He couldn't, he was
_-;.:-_-;     in the hospital and blind."

              "Prior to signing this affidavit, I had this affidavit read to me in Spanish by my son
              Adrian Castro and I understand the statements contained in this affidavit."

              "End of Statement"


               ~ · r::l.4"
            ~=-a:..::st-r-=-o--4--Ha.=-<~---------"
                                                       1   9~7-o'l
                                                               Date
                                                                                                                     i
              Affiant


              STATE OF TEXAS                                                                                         '
                                                                                                                     !"

              COUNTY OF VICTORIA

              On this day came before me Jeronimo Castro and upon being duly sworn by me in
              English and Spanish stated the statements contained in this affidavit are true and correct
              and are within his personal knowledge.
                                                                                                                     ;    .
                                                                                                                     ;


                 /1.;(1   T~ ~
              N-~o~~y~P~u-b~li~c~-=~~~~------~
                                                           I    J-7·o9
                                                                     I
                                                                                                                     i'


               State of Texas                                      Date
                                                                                              KYLE TRAVIS ROTHER
                                                                                             My Commission E~plres
                                                                                                 May 27,2013
TAB 4
                                                                                                                                                                                                   141005


                                                                                                                                              CQNTRACrOFEMPLOYME~f




          ~·                                                        . ..                          i       ·- .. -.: . -                                                         ~~
                      .
                       In
                         The nllom<sys ,.Ct"PI said cmploymml and 3JC

           ln..,6 uil nr any olh~r 2c<ion deemed npprO(InPI~ by &nomey.
                            consldo:r~tion
                                                               I
                                                                             •ulho~<C\1 rn
                                                                                   I.
                                                                                     fffcrl ,,

                                                                                   , •                 j
                                                                                                      ~ mpnuni.o:c,~~jccll? ~li~nl(s)'
                                                                                                            • ••



                                                                                                                  11
                                                                                                                                 3pproval, of cllent'5                       c~~i~ns ~·· cau~.sof ocli~n
                                                                                                                                                                                      or 10
         : in>riiUio:: such l~vl actiun ~~ nu~y be: pdvls~ble i~ lhc auumcy'~ Judgm~l, Ill m~ • \II •· ,r,"': :"eo"(•) cl:nm~. cuuscs of ~t1lc111 amllur alghts, mcll•tllllt,lhc fihug of n


                                          of suo;ll scrvi<:ts, 111~ ~nomcy's 1'<<: •lmll b~ 3 ~llll\ I'"'' '" 11\i -ll11<:e ,nd ouc .tbird I""'"'"' (33 1/l'Ytl. o! lile tolaUgross .ftn:'nunl or 1\ll
          moni<:l', inrcrts1• (lr propt;(IY rccovcr~d ilth= cfaim(s) ar ..-•u~~s of aclicm (.:le arc! 11'SOI , by ccronpronn~e s!:lllemcnl bcfur.:: sun•:: li.lcd: a~er sui\ .: filed, 1ho.
          anomey·s fee shall b¢ a •um tq\t:~llo furl)' j-1'C1'ft\ (40 %) af lho \ui3Vf'10" uf · I onruoae<, 1 ~1-es1, Qr pn>pcrty =overed. If 110 t«DVo:f)' IS obtamtd. 110 foe shall be
          payoblc tColhc ~tlomcy~-                                  I                     ;I                            ;'                                        .
                      Eacll of lit;:- und~~Si&n<'<i clicr.t(s), in F"n~ida;11ion for lhe ~n\lmcys· :tvic.a• .. h , y ~ells. conveys, gr:nn.s amlliSslgnS IO the auom~ysll~w firm"" in1Cfe$t
          l<> lM otlcnl htrti1l ondicalcd (i.o:., 8llomey's. fd:!:, e~p<IISCS «15\5, dj!b~rot.rncnls I IU ~ ach ~i : ,., claim~, t3U!oU of "'C.\.iOII... $dl\emcnt, judgmenl, mllnies. intcn:sl, or
          property rccovcrr.d or 11Xovcoy of"'balcvcr n~lut, I)'Jl• or mc:Ms.            ; !                    :ro 1
                                                                                                                        r;
                       Clh:nl{s) hereby autllome fttlOmey~ o pny all cxptnsts. ~J..,~. liens ~~ \h•'il\ea\ bills, includi~ int<=St, fo'Oal\ 1hc nmount of :1ny recovery 01' se~tlemcnt
          Jl<'rlion due clic!llt bcfon=remilling l:licnts''ponir ID $all! clicnl~.       ;
                         Any dis'o\lrsemo::nls, coSls, Ot otp<:n!ts, ju.:um:d, c;w;pended,
                                                                                              I
                                                                                              ~W.edor· .l•;•oll'.-d. h j. ·c atlO""-"/S. s..._ll be rE:paid lo ltu,•uomtyS f(<lllllht climt(s)' ponlon of
           !he m..-ovo:f)'. 1'!1e uuomeyl' ara authoti~ed 1a in1 siiC:ll c.rpcnses, idcludinP, in est. n; ~~~ ;<>-th:;;r :i'D(e anll oclusivco jed~t deem Ri!Sanablc and IIOt'C>'$'diY 10
                                                                  cur
           ~ccomplish tl>c dcVelopme.'\1 w!! sstisfoetlll)' ~lulhm onhe claim($) !.nd n•c. o 11tnm cod t~~dva,lec or incur such txpttiSC$ an bd.nlr of clicnl(s). Said ~XPtllS~ shall
           iuclude, but~ 00\ litnilcd Ia. iaJV~lil!"litJn.      mrd   I Ill! lOd~ior,. p>iVol~ lnvo1il! 1"1 li· .., ~c;an and/01 ell!""' consultal;;,t\ WilMS.'> rca, ¢001\11\alll Ccc., ScltltmCilt
           :uu1 _IliA I cx~i~ils, model~, dlasroJ.mS. phntosr1phy, copit$, cquipm:~~~ l.'~l'""l"·~. >~• 111111~.:0 t~pc. &.pcm.s :11~ includ<= inlertS1/Cllpcrol'ts c!rurtt.l by l~tding
           lnsr 1tul.:slelltflu•; oil momes bnnn"'cd b)l anol'ey• ns na:es~ry on dct.1n<tl a IJ'''il"•''~ ti llllomeys IIi ~rul Ike d~<bu~t.m.t>m, t~l• or Cllpe<\SCS lncurrm tn l11c
           dc:vctopmailand p      nTQsccalionoftllccclloals(&)'Jsests) oromus<(~) uradioll • I                            .. I
                        In ille cvtllt lh=l ar.y    di~p\ltc sris bclwc::n nttolll"))• mil cli<1•t 1      J~:oulh all     : . : n:IUiion of !lac tc~ of lbi~ agr~OJC!Il, nr rq;w'lling any pro(<$~ional
           s...rvi~es PI?Yidm b~ au~r~aeys. or rct,anlhl~ r~c paymcnl of r~, ~p):nsa ur                    •1t1~ .,~,li~dil'ns by r:lio::nl. or r~g>rding any o1h':' di,U\cd tn•llor arising o~\ of dto
           allamey-clrenl n:I1Uansh1p, tllcn any such<hspi!IC ~h•ll be submllll!d·to bltllllns             ubJII',•II<.,,Jij Nueccs Covnty, TexllS before ~n arf>ltonon pilno:l SfiO<:tc<iln d""ord•nce
           ""hb !be JWlCS •nd Prnc.durcS of lbt Amt:ricarl.r\.rbilration lmoclalioJ. 11ac ,i               :a~il/11 nr I~ luf>ilr310:1S ~S 10 Pll dlspUI~ mill!ti'S sll'll be fiaol ~rn) binding, 111<1 may
           be cnforcal by tilheF pan)- lh&uu!h Mll court of compcltlll juri<didion. B                       •·k<:lrnr, to oroitr.uc all disputes br:twa:n atlomi;JS and ~lien!, the p;rtl~ e~1 ro
           volun111,rily WiliY~< tr.eir rights 10 niDI by jury ~ardin,; any such is~l Ctknls              lr•ve loocn '! ~i~cd 10 sedc !hd udvis~ of independent counsel oftheir cfloic~ ttgonling
           \M filii mcanin_g ;and tee.~l dfttt of rhk adlitl'll(fon auccmcnt, and cli~Jis hc:r •           • aff111n  tht     iJ,ey have (lone 5o to lh~ o!~\enl IIPt tl•ey dC<he, lhatlhty "1ldcrstond the
           effect oflbis ~&"'cm<:nll<' :lthfll"U:, 11nd tbatlhll' 'lO\unt!!ri!y ll>!lkc: lbi>;~gr~\"l"'   ' rol'll·a.:D· a" '•freo will
                        The :ll!Oifii:Y may, ill hiS Sole discrl;on,      aosud~le any o~rh Bllllll1 y(rl i I tl~lj~ r'·rcscntatinn of lhc undCJSigncd ;nd/or may assii:R lhis CIISC"\0 ~ll(llhcr
t:-,-:
           ~nomey f'or pn:por.nion and litislltion.                 j                         ~                         ·~
                        THE CLIENT($) HEREBY               GRA~TS   THE ATIORNEYh A UE (t}-1 rHI:~1 CAUSE OF ACOON, and a lien 011 any                                          prooccd~    and any jtldg~lltll,_<


i. ..
                                                                                          :i
           =ovc:ml in conncc:lit-n with this c;a .. se of ac:tion ._,security rur lhe pa~'"""' of num"~s r. lmd e.<penses liS C(llltraelcd for Jag,;in.

                                                                J
                        Clicnl(~) fimbct" aclmuwledtc(s) I lhc W)'illl l..nw Fialli, l.td. (und
                                                                                                                        .~~~
                                                                                                l'i•rln~Jtwrntys, emp'k!Ycc..•, •~r.mts or rc:prt:ltnt3tivts) sboll not f;lvc any advice
                                                                                                          Is'
           or make     Ull)' reprtse.ltii!QnJ Ia the underslg~lcd •11om tu: conrcqudtc~ or      mrlr..~~· '"'Y moni~ recoven;d, if lillY, no m•llo:r liow ~J>OniMm. llic
                                                                                                           : •nd
                                                                                                          111
           undaoi&ncd a~k(lawlt!f~ 11~:~1 tile Wyall Ll"':!fiiUL Ud. h•$ infonnoli 1ft~ und 'l>i~~o'l)tli: it has no cxp<ttuc in lilX<=' mllltlr.lt 11)1: undcrsicncd DC<:ds 1o seotk advice
           from 'ttomcy.< or ~:~<peru knuwl~dg.cabt.. m
           undl>sitncd tb~ it will not ,;ivc        noy
                                                                    %'"
                                                              ;mat 3S ;\pproprialc. Sinll rty, lh~ ~ ' igt~ed :~ck~J<.wlods<S thnt \he W)'llll uw Finn. Ud. b ... informed lhc
                                                 txpcni•c 'n nor Dny pror<>'Siun:lll~dYir.c f! lltCIIIIPJ$ ~per WvCSlllltot stf;l!o:g/CS or opllans for lhe Unt(roigrted HI the- event of a
           scttlaaCD!..
                        .Aft.;
                                                                                     ;        I                     ~~
                                 invc<ti~~ting !he ffj~lcd firel.-lb~·oUomey, mily-wftl*!ralli itt ; n~· tin·,, 'if"~ /heir opinion; c:ontittll<d·prnsceution of.lb...-o;laimt/causes of.,C.Iion would
           be ~t0p1'-1~ l)ltwi!<; or urqu'!lilt.bl~ cilll~lo lhc clio::nl(s) or lhc,aqomeys. "$U'' 1(Y~'                     '1'"QITI"Yl' will z:jvc reas~lll!'ole wrinen flO lice t~ clicnl(•).
                                                    I                                         I
                                               .                                          NfTICE              I;(;Hr.tV:;.     CEI'ROCESS
                                                                                                                        ~I·
                                                1991. tile 5 ate tl~r ~ct r~uir= ~~ allowe h> '""!fY~~
                          Effteliv~: Sept~ her J,                                                                            ."lien!" nfilie ~xi:wcnce of a rfe:""''*P'V""'i· The St•lc Bar C.fTtXftl
                                                    '                                     •
                 , ,                                                                                      t                  dr
            3dPJUUS!a> the ;rtlamcy cncv;rnr::e (lfOCCSS drnjugh dtSinCI tiJCY;IIlCC JVII<CS:< I •'UGh 1hr.tn ·b;evru.ec CO.MDliSSIDn, a conmns<Jon on lawyer-discipline, and I~Offi<~
            oi Ge:tlet.li,CounscJ of the     Sm1"
                                            ~r ofTc;t:lS, A~ foCQOn m•y             iniliuiep
                                                                                         eri<"'ftl ro· ~r.r. 111.<1 ·w.q\ :aunmcy by mnlaolint; '-~Stahl ~r ofTcxa.' "' P. 0. Bo:r. 12487, C~pilol
            SUltiou,Au$tm,Te.tOIS7B7~1,(80Q
                                        2-190D.                                           • •
                                                                                              I                          ~
                                                                                                                             I
                          SIGNED tbis               '     tfay of                             !
                                                                                              l



                                                                                                                                                                                                                         1-




                                                                                                                                                                                                                     7
TAB 5
         COPY                                   Cause No.09-1908-C

         ADRIAN CASTRO,                                   §                 IN THE DISTRICT COURT
                   Plaintiff,                             §
                                                          §
         v.                                               §
                                                          §                 94 1h JUDICIAL DISTRICT
         PAULA WYATT AND                                  §
         WYATILAWFIRM, LTD                                §
                  Defendants.                             §                 NUECES COUNTY, TEXAS


                                  PLAINTIFF'S SECOND AMENDED PETITION


                  COMES NOW, Plaintiff and complains of Paula Wyatt and Wyatt Law Finn, LTD.,

         Defendants and in support would show the Court the following:

                                                     I.
                                     RULE 190 DISCOVERY CONTROL PLAN

                  l.l     Pursuant to T.R.C.P. Rule 190.1, Plaintiff alleges this case is intended to be

         conducted under Level 3.

                                                       II.
                                                     PARTIES

                  2.1     Plaintiff is an individual who is a resident of the State of Texas and resides in

··_-·,
         Victoria County, Texas.

                  2.2     Defendant Paula Wyatt is an individual who resides in Nueces County, Texas

         and conduets her law business in-Nueees County, Texas· and has·appeared· herein~
                                                                                              lj          r--.:   Ol
                  2.3     Defendant Wyatt Law Firm, LTD is a Texas Domestic Limited Padiie"! \'",\ '
                                                                                               f'T1
                                                                                               C>         Cl
                                                                                                                             o:">OC
                                                                                                                             m(J;,..
          has appeared herein.                                                                 _.::       -1      ·          ~~~':
                                                                                               :t-·
                                                                                               _, - I
                                                                                               (:.  I
                                                                                                          N                  On·•
                                                                                                                             ~-'
                                                                                                                             -lg·
                                                                                                                                      .
                                                                                               -< ~                          :<c:.:..
                                                                                               -l,
                                                                                                rr··       ~
                                                                                                                  ia         ~~=
                                                                                                                             x''' ..
                                                                                                -··
                                                                                                ,.,...,    0          ~
                                                                                                                      ....   :· ...
                                                                                                I"'·       0


          PlaintifFs Second Amended Petition
          Castro v. Wya/1
          Cause No. 09-1908-C
                                                                                                   Page I of/0
                                                        Ill.
                                                VENUE/JURISDICTION

                  3.1      The cause or causes of action accrued in whole or in part in Nueces County,

          Texas. At the time the cause of action accrued, Defendant Paula Wyatt county of residence was

          Nueces County. Texas. Defendant Wyatt Law Fitm. LTD principle place of business at the time

          the cause of action accrued was in Nueces County. Texas. Therefore, venue is proper in Nueces

          County. Texas pursuant to Tex. Civ. Prac. & Rem. Code§ 15.002(a) (I) & (2).

                  3.2      The amount or amounts in controversy exceeds the minimal jurisdictional limits

          of this Court.

                                                           IV.
,·.:··                                                  FACTS

                  4.1      On or about Octobet· 2003, the Plaintiff was seriously injured while working at a

          refinery. His father was working with him at the time. As a result of what in essence was an

          explosion, Plaintiff's body was coated with acid and high pressw-e boiling water which caused

          3rd degrees bums over a great p01tion of his body. caused blindness and severe physical pain and

          emotional suffering. This happened at approximately I :00 p.m. After the incident. Plaintiff was

          taken by ambulance to the local hospital in Port Lavaca, Texas. His father was at the hospital as

          well.

                  4.2      Shortly thereafter, the Plaintiff was flown by plane to a burn unit in San Antonio,

          Texas. His father returned to his home to collect clothes for the trip to San Antonio. At

          approximately 4:00 p.m., just about three how-s after the incident, Plaintiff's father was called by

          an investigator of Defendants telling his father that he and the Plaintiff needed to hire Paul Wyatt

          as their attorney. Succinctly. he was soliciting an attorney agreement on behalf of the

          Defendants. Prior to that time. Plaintiff, his father. his mother or any family member or friend
~·-·.;'




          Plaintifl's Second Amended Petition
                                                                                                                     ;.
          Castro v. Wyalf
          Caztse No. 09-1908-C
                                                                                                   Page 2 ql/0




                                                                                                                 9
ever heard of Paula Wyatt. Paula Wyatt's investigator made an unsolicited and uninvited call to

solicit an attorney/client contract on behalf of Paula Wyatt. During the car trip to San Antonio,

Plaintiffs father continued to receive phone calls from Paula Wyatt's representative trying in

vain to obtain an attorney/client contract for Paula Wyatt.

        4.3     Upon arriving at the hospital in San Antonio. Plaintiffs father was again

approached by Paula Wyatt's investigator/employee determined to obtain an employment

contract for Paula Wyatt. Plaintiffs father and mother later went to a hotel in San Antonio

provided by the employer. At approximately I 0:00 p.m., some 7 hours after the incident, Paula

Wyatt showed up at the hotel along with two of her employees. It was at this meeting that Paula

Wyatt "signed up" the father and mother.       Plaintiffs father neither reads nor speaks English

well, yet Paula Wyatt had them sign an English written contract with no explanation except to

say she needed a contract signed by the Plaintiff.

        4.4     The next day. a Paula Wyatt employee showed up at the hospital and began taking

pictures and stayed a day or so more taking pictures. A few days after Plaintiff awoke from a

drug induced sleep, Paula Wyatt shows up at his hospital room seeking to have the Plaintiff sign

an attorney employment agreement. Paula Wyatt was not invited by the Plaintiff to come to his

room.

        4.5     At no time did Paula Wyatt explain the terms and conditions of her contract to the

Plaintiff. Paula Wyatt simply asked the Plaintiff to sign, which he did. At the time of signing of

the contract, Plaintiff was still in a daze from the drugs he was given by the hospital and he was   i'


blind. Despite knowing this. Paula Wyatt continued in her efforts to get Plaintiff to sign the

contract and she succeeded. Despite having violated various laws and State Bar of Texas rules

of conduct, Paula Wyatt secured a contract for attorney services. At no time prior to this event

Plaintiffs Second Amended Petition
Castro v. Wywt
Cause No. 09-/908-C
                                                                                       Page3 of/0
and at no time prior to the incident that caused Plaintiff his injuries, did Paula Wyatt and her

''investigators" ever knew or had represented the Plaintiff. Additionally, at no time had Paul

Wyatt or her ''investigators" ever knew any of Plaintiffs family members                OJ'   any friend of

Plaintiff.

            4.6       Subsequently. and under pressure from the Defendants, Plaintiff settled his claims

and paid the Defendants' attorney fees of 1.2 million dollars. At the time of closing, Plaintiff

first received his copy of the attorney contract.

            4. 7      All conditions precedent have been met or occurred. As to all counts, Plaintiff

pleads the discovery rule and fraudulent concealment.

                                                       v.
                                           COUNT ONE
                             BREACH OF FIDUCIARY DUTY/RELATIONSHIP

            5.1       Plaintiff re-incorporates by reference all statements and allegation in paragraphs

1.1 thru 4.7 as if copied verbatim herein.

            5.2       As a result of the attomey/client relationship described above, a fiduciary

relationship was created between the Plaintiff and Defendants as a matter of law. A lawyer must

conduct his or her business with inveterate honesty and loyalty, always keeping the client's best

interest in mind. The attorney-client relationship is, as a matter of law. a highly fiduciary one, in

which a client is entitled to repose the utmost trust and confidence in his attorney. In tum, an
              -.       ------ --   ....... -
attorney must display the utmost good faith in all dealings with clients.

            5.3       1n this case there was (I) the existence of a fiduciary relationship as a matter of

law between the plaintiff and the defendants; (2) a breach of the fiduciary duties accompanying

that relationship by the defendants; (3) that caused; (4) damage to the plaintiff for which he

herein now sues in an amount that exceeds the Court's minimal jurisdictional limits.

Plaint(ff's Second Amended Petition
Ca.~/1'0   v. Wya/1
Cause No. 09-1908-C
                                                                                                 Page 4 o.f/0




                                                                                                                \1
                   5.4       The attorney contingency fee contract was illegally solicited and entered into by

           the Defendants in violation of Texas law and State Bar of Texas rules of professional conduct.

           This in turn means the contract is void as a matter of law and any fees Defendants received are

           forfeited. Plaintiff seeks fee forfeiture.

                                                                   VI.
                                                        COUNT TWO
                                                   ALTERNATIVE PLEADING
                                                  DECLARATORY JUDGMENT

                   6.1       Plaintiff re-incorporates by reference all statements and allegation in paragraphs

           1.1 thru 5.4 as if copied verbatim herein.

                   6.2       Pleading in the alternative, if such be necessary, Plaintiff pleads reliefpursuant to

           the Texas Declaratory Judgment Act (DJA).
                                                                                                                            j.
                                                                                                                            !
                   6.3       The written contract illegally and unprofessionally solicited and obtain by the                !.
                                                                                                                            ~:


           Defendants is void as a matter of law.          As a result, any attorney fees paid by Plaintiff to

           Defendants are forfeited and should be returned by the Defendants. Plaintiff seeks a declaration

           to that effect.     FUither. pursuant to the DCJ, Plaintiff seeks his costs and attorney fees in

           accordance with section 37.009 DCJ.

                                                             VII.
                                                     COUNT THREE
                                                 ALTERNATIVE PLEADING                                                       i
                                                                                                                            !·
                                                  LEGAL MALPRACTICE
                                                            ·-··    --····
                   7.1       Plaintiff re-incorporates by reference all statements and allegation in paragraphs

     .-.
;-
           1.1 thru 6.3 as if copied verbatim herein.

                   7.2       Pleading in the alternative. if such be necessary, Plaintiff pleads the Defendants'

           conduct was legal malpractice and/or negligent.



           Plaintiff's Second Amended Petition
           Castro v. Wyatt
           Cause No. 09-1908-C
                                                                                                       Page 5 of/0




                                                                                                                     ')._
--?::0_
                       7.3       As a result of the conduct described above, Defendants' acts constitute legal

              malpractice and/or negligence in the handling of their duties to their client. Defendants owed a

              duty of care to Plaintiff. The failure of Defendants to recognize the legal incapacity of the

              Plaintiff at the time the contract was signed and the signing of a contract Defendants knew to be
   .---:
              void, charging inflated expenses and then collecting fees on a void contract fell significantly

              below the standard of care for an attorney. This conduct constitutes legal malpractice. Such

              conduct proximately caused damages to the Plaintiff for which he herein now sues in an amount

              in excess of this Court's minimal jurisdictional limits.


                                                                 VIII.
                                                          COUNT FOUR
                                                     ALTERNATIVE PLEADING
                                                         CONVERSION


              8.1            Plaintiff re-incorporates by reference all statements and allegation in paragraphs 1.1

                       thru 7.3 as if copied verbatim herein.

              8.2            Pleading in the alternative. if such be necessary, Plaintiff pleads the Defendants'

              conduct constitutes conversion.                                                                                    i·
                                                                                                                                 I·
              8.3         On the date of the settlement, Plaintiff was and still is the owner of the attorney fees

                    that were retained by the Defendants. Defendants had no right to the fees and should have
                                                                                                                                           [-=
                                                                                                                                 !•
           . - - --·- turned them -over-to -PlaintifE· Defendants continue -to retain the· property ·belonging to the
                                                                                                                                           ~-
                    Plaintiff. Plaintiff has made demand for return of his property, but Defendants have refused.                !-:
                                                                                                                                 i




                    The demand for was a specific. identifiable fund but was refused by Defendants.                                        r
                                                                                                                                 '
              8.4      Defendants have unlawfully and without authority assumed dominion and control over

                    PlaintifCs property described above, inconsistent and to the exclusion of Plaintiffs rights in


              Plainti./l's Second Amended Petition
              Castro 1'. Wyalf
              Cause No. 09-/908-C                                                                                                    j.·

                                                                                                              Page 6 of/0




                                                                                                                            )3
          the property. The fair market value of the property is 1.2 million dollars for which Plaintiff

          sues Defendants herein.


                                                  IX.
                                              COUNT FOUR

:
'
                                         ALTERNATIVE PLEADING
                                          VIOLATIONS OF DTPA

    9.1      Plaintiff re-incorporates by reference all statements and allegation in paragraphs 1.1 thru

    8.4 as if copied verbatim herein.

    9.2      Pleading in the alternative, if such be necessary, Plaintiff pleads the Defendants' conduct

    constitutes violations of the Texas DTPA.

    9.3      By taking and charging fees to which Defendants had no right to, Defendants' conduct

    was false, misleading and unlawful.          Defendants engaged in unconscionable conduct and

    represented that the alleged fee contract had rights and obligations which it did not have.

    Defendants further engaged in an express misrepresentation of material facts which was not

    advice, judgment or opinion as well as failing to disclose infom1ation concerning goods or

    services which was known at the time of the transaction and such failure to disclose such

    information intended to induce the Plaintiff into a transaction into which the Plaintiff would not

    have entered had the information been disclosed;

    9.4       Plaintiff was a consumer.      Defendants' conduct was committed knowingly and/or

    intentionally. As a result, Plaintiff sues for his actual damages, economic damages. Plaintiff

    also sues for mental anguish. Plaintiff sues for a trebling of his damages pursuant to the DTPA

    and his attorney fees.




    Plaintiffs Second Amended Petition
    Castro v. Wyall
    Cause No. 09-1908-C'
                                                                                               Page 7o.f/O
                                                   X.
                                          COUNT FOUR
                                       PUNITIVE DAMAGES

        10.1     Plaintiff re-incorporates by reference all statements and allegation in paragraphs

1.1 thru 9.4 as if copied verbatim herein.

         I 0.2   Defendants' conduct was intentional. willful and malicious. As a result, Plaintiff

sues for punitive damages in an amount that exceeds this Court's minimal jurisdictional limits

for which he herein now sues.

        10.3     Wyatt knowingly or intentionally secured execution of a document by deception

and misapplied fiduciary property in amounts exceeding $1500.

                                                 XI.
                                       REQUEST FOR JURY TRIAL

        11.1     Plaintiff requests a trial by jury on all issues and avers the jury fee has been paid

                                                        XII.
                                       AFFIRMATIVE DEFENSES

        12.1     In response to Defendants' Motion to Compel Arbitration, Plaintiff pleads the

following defenses as to the arbitration clause: denial of existence of an agreement, incapacity,

illegality, unconscionability, lack of knowing consent and incapacity creating lack of knowing

consent and void ab initio.

         12.2    In response to Defendants' Motion to Compel Arbitration, Plaintiff pleads the

following defenses as to the entire contract: denial of existence of an agreement, incapacity,
                                                                                                               I

illegality, unconscionability, lack of knowing consent and incapacity creating lack of knowing                 !"

consent and void ab initio.



                                                                                                               ;.·

Plaintiff'~· Second Amended Petition                                                                           I"
Castro v. Wyaff
Cause No. 09-190/l-C
                                                                                             Page8q(JO




                                                                                                         \s-
'.-:_-:~




                                                                   XIII.
                                                               PRAYER

                   WHEREFORE PREMISES CONSIDERED. Plaintiff prays that this Court order and

           award the Plaintiff the following:

                   I.        That the defendants be cited to appear and answer herein;

                   2.        Actual damages and treble damages in an amount as determined by the trier of

                             fact or court;

                   3.        Special and consequential damages in a amount as determined by the trier of fact

                             or court;

                   4.        Punitive damages in a amount as determined by the trier of fact;

                   5.        A declaration the contract is void;

                   6.        Fee forfeiture:

                   7.        Attorney fees and attorney fees on appeal;

                   8.        Pre and post judgment interest at the highest lawful rate;

                   9.        Costs of suit: and

                   10.       Such other and further relief, general and special, legal or equitable to which these

                         ·- -· Plaintiffs may show himself justly entitled to receive.




                                                                                                                     i
           Plaintiff's Second Amended l'elitlon
           Castro v. Wyatl
           Cause No. 09-1908-C
                                                                                                       Page 9 q{IO
                                         Respectfully submitted,

                                         LAW OFFICES OF J. MITCHELL CLARK
                                             Frost Bank Plaza Suite 2100
                                              P.O. Box 270 I
                                             Corpus Christi, Texas 78403
                                             (361) 887-8500
                                             (361) 882-4500 FAX

                                         LAW OFFICES OF HECTOR P. GONZALEZ
                                              3884 East Hwy 44
                                              Alice, Texas 78333
                                              (361) 668-0325
                                              (361) 668-4249 (fax)



                                         By:   _J..~-r--=-J-. H-~-EL_L_C_L~-7'--===----?
                                                        -M--"1T-C-·
                                                      State Bar No. 04283900
                                                      HECTORP.GONZALEZ
                                                      State Bar. No. 08127000

                                                      ATTORNEYS FOR PLAINTIFF



                                      CERTIFICATE OF SERVICE

        I certify that on October 21, 2010 the foregoing was sent to opposing counsel in

accordance with the Texas Rules of Civil Procedure.

VIA FACSIMILE: 361.866.8039
Tom Hermansen
Attomey for Defendants




Plaintiff's Second Amended Petition
Castro v. W,vau
Cause No. 09-/908-C
                                                                                           Page /Oof/0




                                                                                                         )7
TAB 6
         07/28/2009 09:48 FAX     3B1 884 72B1            RRVW                                                ~   001/011




                                                      Cause No. 09-1908-C

                ADRIAN CASTRO                                     §    IN THE DISTRICT COURT                                            ,.
                                                                  §
                                                                  §
                                                                  §
                 v.                                               §    94TH JUDICIAL DISTRICT                               !.~
                                                                  §
                                                                                                                            =-:
r~ 1                                                              §
                 PAULA WYATT AND WYATT LAW                        §
;~   ;           FIRM,l:fD.                                       §    NUECESCOUNTY,TEXAS

                                                                                                                            :·:
                      DEFENDANTS, PAULA WYAIT AND WYATT LAW FIRM, LTD.'S MOTION TO
                                                                                                                            :
; j                                 STAY CASE AND COMPEL ARBITRATION


                 TO THE HONORABLE JUDGE OF SAID COURT:                                                                       '·7



                         COMES NOW, Defendants, PAULA WYATI AND WYATT LAW FIRM, LTD., and                                    ~~
                                                                                                                             I

                 files its Motion to Stay Case and Compel Arbitration, and in support thereof, would respectfully            ~~              ~
                                                                                                                             r·

                 show as follow.'):

                                                                 ••
                                                   SUMMARY OF MOTION

                         On O,ctober 25, 2003, following an ncddent at      ~he   ALCOA refinery in Port Lavaca,

                 Texas, Plaint~ff e~tered into a contract for employment with Defendants, whereby Defendants

                 were to serve a.s legal counsel on Plaintiff's behalf for all personal injuries :-:ustained in the

                 course of his employment on October 20, 2003. Contained within said contrilct was a clause
                                                                                                                                  j:
                                                                                                                                  ,.
                 through which the parties agreed to submit any disputes arising out of the attorney-client
                                                                                                                                  ,.
                                                                                                                                  1-

                 relationship to binding arbitration, rather than the courts.       By and through Ibis motion,

                 Defendants seek to tmforce this agreement, and respectfully request that this court st11y the

                 above-styled case nnd compel the parties to binding arbitration.
                                                                                                                                  l·:
                                                                                                                                  ::·
        07/28/2009 09:48 FAX                 3B1 884 72B1              RRVYI                                                ~002/011




                                                                               II.
k.

                                                                  LEGAL AUTHORITY

                                In Texas, arbitration agreements are binding and enforceable, In re FirstMt'rit Bank, 52

                         S.W.3d 749, 753-754 (lex. 2001); Mohamed v. AutoNation U.S.A. Corp., No. 01-02347-CV,

                         2002 Tex..App. LEXIS 7829, at "'9·10 (Hou~ton [1st Dist.] Oct. 31, 2002, no pet. h.). In fact,

                         both Texas and Federal courts enforce a strong presumption in favor of arbitralion. Southland

                         Corporation v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Ufe of America

                         Insurance Company v. Aetna Life Insurance Company, 744 F.2d 409 (5th Cir. J 984); EZ Pawn

                         Corp. v. Mancias,      ~34   S.W.2d 87, 90-91 (Tex. 1996) (orig. proceeding).      Camel/a & Co. v.

                         Goodwin, 924 S.W.2d 943, 944 (Tex. 1996). TeKas' appellate courts have generally construed

                         language like 11 arising out of" or ''related lo the contract 11 broadly enough to mean that the parties

                         intended to arbitrate borh tort and contract claims. See e.g. Valero Energy Corp. v. Teco

                         Pipeline Co., 2 S.W.3d 576,591 (rex. App. ·-Houston [14th Dist.]1999, no writ) (holding both

                         tort and contract claims subject to arbitration); D. Wilson Construction Co., v, McAllen

                         Independent School Dist., 848 S.W.2d 226 (Tex. App.- Corpus Christi 1992, orig. proceeding)

                         (holding   claim~   of breach of contract subject to arbitration).

                                                                               III.

                                                                           FACTS

                                The above-styled civil maller arises from an alleged breach of fiduciar)· duly resulting

                         from an employment contract that Plaintiff entered into with the Wyatt Law Pirm, lTD.

                         Defendants were contracted to represent Plaintiff as his attorneys in any claims, cuuscs of action 1

                         or matters that arose from injuries Plaintiff sustained during an accident while working at the

                         ALCOA Refinery, outside Port Lavacu, Texas on October 20, 2003. Exhibit "J\", Contract of



     ·.-. ?".·.-.:·:.:
      07/28/2009 09:48 FAX                3S1 884 72S1             RRVY/                                                 @ 003/011




                       Employmrmt for Attorney's Services Between Adrian Castro and Paula Wya/1 and Wyall Law
:J
                       Firm, LTD. signed by Jeronimo Castro; Exhibit "B", Contract of Employmenr for Attorney's

                       Services Between Adrian Castro and Paula Wyatt and Wyatt Law Firm, LTD. stgm·d by Adrian

                       Castro.     On October 22, 2003, Plaintitl''s father, Jeronimo Castro, signed the employment

                       contract with the Defendants, which employed Defendants as Plaintiff's ofticial counsel in any

                       and all potential lawsuits arising from Plaintiff's accident. Exhibit "A ", Thrf·e days later on

                       October 25th, Plaintiff himself contracted with Defendants to represent him in any potential

                       matters arising from the underlying accident. Exhibit "B". The contract Defendants presented

                       to Plaintiff clearly states that if a dispute ever arose between the Defendants and Plaintiff, the

                       dispute would be "submitted to binding arbitration in Nueces, Texas before an arbitration panel

                       selected in accordance with the Rules and Procedures of the American Arbitration Association."

                       ld. Contained within the arbitration clause is a disclaimer which states that Plaintiff. by electing

                       to arbitrate any disputes with Defendants, thereby waives his right to a trial by jury regarding

                       any of these issues. /d. Plaintiff agreed to both of these provisions when he signtd the contract.

                                 Pursuant to the employment contracts er'llered into by Defendants, Plaintiff and his father,

                       filed suit on Plaintiff's behalf against his former employer and other defendants within months of

                       the execution of said contracts. By January 21, 2005, the underlying lawsuit was settled by the

                       parties, and a document entitled "Settlement FtUtds Distribution" was agreed to by Plaintiff _and

                       his father on January 29, 2005. After the disbursement of the l\ettlement        fund~,   the artorney-

                       client relationship between Plaintiff and Defendants ceased to exist, and Defendants have not

                       rendered any legal services since that time. Plaintiff initiated this civil matftr by fHing his

                       Original Petition on Apri122, 2009.




     ~-- -_~::   --'
07/28/2009 09:48 FAX    3Sl 884 72S1              RRVW                                                @ 004/011




                                                         IV.
                                                                                                                                       r-.
               A valid and binding agreement to submit this matter to arbitration exists between Plaintiff             ,;




       and Defendants.      Cleady Plaintiff has entered into a valid contract with a hinding and

       enforceable arbitration clause.    In Texas, there is strong public policy of upholding arbitration

       agreements and discouraging a party's attempts of circumventing such means of resolving

       claims. Wylie Independent School District v. TMC Foundations, Inc., 770 S.W.2d 19 (Tex. App.

       -Dallas 1989, writ dism'd). In detennining whether to compel this case to arbitration, this court

       must decide whether there is a valid agreement between Adrian Castro and P;1ula Wyatt and

       Wyatt Law Firm, LTD. to arbitrate this case. Should the tri11l court determine that a valid

       agreement to arbitrate does, in fact, exist, the court must compel arbitration and stay its

       proceedings. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996).             see also In re

       Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (emphasis added).

       Furthermore, in accordance with applicable Texas law, the contract document irself, which

       Plaintiff signed, continues to show that both parties consented to arbitrate any and all disputes,

        and as such, arbitration should and must be ordered in this case.
                                                                                                                            '-
                                                                                                                            l-~
                                                         v.
              l-LAINTIFF AGREED TO ARBITRATION WAIVED HIS RIGHT TO TRIAL                                                    ,,
                                                                                                                            ;_:-

       A.      Adrian Castro Agreed to Arbitration                                                                          L

               Simply put, by entering into the contract with Defendants, Plaioliff agreed lo resolve any
                                                                                                                            f'
        disputes between the parties arising out of the attorney-client relationship to arbitration. The

       employment contract entered into by the parties, states that, "Jn thtl event that any dispute arises

        between attorneys and client regarding interpretation of the terms of this agreement, <Jr regarding
                                                                                                                             :
        any professionaJ services provided by auorneys . . . or regarding any other disputed matter                                ;


                                                                                                                              ·--




                                                                                                                  ~\
07/28/2009 09:48 FAX     3S1 BB4 7281             RRVW                                                  141005/011




        arising out of the atlorney-clienL relationship, 1hen any such dispute shall be submitted to binding

        arbitration in Nueces County, Texas before an arbitration panel selected in accordance with the

        Rules and Procedures of the American Arbitration Association"               !d. (emphasis added).

        Furthennore, with regards to the contract clause dealing with arbitration, Caslro, "{has] been

        advised to seck the advise of independent counsel of their cholc.e regarding the full meaning and

        legal effect of this arbitration agreement, and clients hereby affirm that they have done so to the

        extent that they desire, that they understand the effect of this agreemen,t to arbitrate, and that

        they volllntarily make   thi~   agreement of their own free will." /d. (emphasis added). The

        subject contract was fully and clearly explained to Plaintiff prior to its execution. Plaintiff's

        agreement as ro the rernts and condilions of this contract, as evidenced by his signamre

        indicating same, is prima facie evidence that he consented to submit this case to arbitration in the

        event of a disagreement between the parties arising out of the attorney-client relationship. At no

        point prior to his signing did Plaintiff seek clarification of said contract frnm another,

        independent attorney. Had Plaintiff not agreed with any portion of the contrac( and/or desired

        not to enter into the agreement, he would not have:: signed it. Nonetheless, Plainliff did sign the::

        contract, and in doing so, consented to arbitration.

               As such, Plaintifrs agreement to arbitrate must be recognized by this Hor1orable Court as

        a binding and enforceable agreement, and, accordingly, the only action that should be taken is to

        compel arbitration, as previously agreed upon in the contract.

        ~      Adrian Castro Wajved his Right to a .lun Trial

               As set forth above, Plaintiff and Defendants, on October 25, 2003, enlered into a

        contractual agreement for Defendants' legal services following an accident that injured Plaintiff.

        Said employment contract between Plaintiff and Defendants clearly states· that any disputes that
          07/29/2009 09:4B FAX     361 BB4 7261              RRVYI                                                       ldJ 006/011




                 may develop between Plaintiff and Defendants would be submitted for arbitration. Moreover,

                 the agreement by the parties to arbitrate any disputes constitutes a voluntary waiver by the

                 parties of their right to a trial by jury. !d. The terms and stipulalions of the contract and, more

                 specifjcally, the arbitration clause are clearly stated, namely, that when PlaiJ1tiff signed the

                 empJoyment contriiCI, he consented to the aforementioned provision. Ultimatt:ly, the above-

                 styled civil matter cannot be properly prosecuted before this honorable court, a& the parties, by

                 and through their agreement, waived any right to do so, ar; per the contract             C1f   employment.

                 Plaintiff's only avenue to pursue his claims against Defendants is through binding a.l'bitration, in

                 accordance wirh the Rules and Procedures of the American Arbitration Association.

                                                                     VI.

                                       TEXAS ARBITRATION AC'f REQUIRES THIS
                                      MATTER BE STAYED PENDING ARBITRATION

:.,.,.:. __.l           In Texas, arbitration agreements which do not deal with interstate commerce. such as the

                 one before this court, are subject to governance under the Texas Arbitration Act Roehrs v. FSI

                 Holdings, Inc., 246 S.W.3d 796, 809 (Tex.App.-DaHas 2008, pel. denied). l.'ndcr the Texas

                 Arbitration Act, a court shall compel the parties to arbitration pursuant to a showing of an

                 agreement to arbitrate and a party's refusal to arbitrate. Tex. Civ. Prac. & Rem. Code§ 171.021

                 (a). An order compelling arbitration    must include a stay of any proceeding, £md a trial court
                 "shall stay a-proceeding thaf involves an   iisue-·sutije·cr to arblftaHon ii ·an oraer Ioi- ~rbitrailori or·
                 an application for that order is made under this subchapter." /d. at §171.021 (c) and §171.025(a)

                 (emphasis added).     Given the enforceable arbitration agreement between the parties in this

                 matter, arbitration is proper. As such, this court should enter an order compelling the parties to

                 arbitration and staying the above-styled civil matter pending the ou1comc or               th~   arbitration

                 proceedings.


'.·,.·r    .i
     07/28/2009 09:49 FAX          361 BB4 7261           RRVW                                                 ~007/011




                         WllEREFORE, PREMISES CONSIDEREO, Defendants PAULA WY A1T AND

                 WVAIT LAW FIRM, LTD. pray that lts Motion Stay Case and Compel Arbitration be

                 granted, that the instant lawsuit be stayed, and that the parties be compelled to arbitration, and

                 that Paula Wyatt and Wyatt Law Firm, LTD. have all further relief, at law or in (·quity, as it may
                                                                                                                          (
                 show itself justly entitled.                                                                             '


                                                              }{.espectfully submitted,

                                                              ROYSTON, RAYZOR, VICKERY & WJlliAJvfS, L.L.P.
                                                                                                                          ~~



                                                                                                                              ~-




                                                                                                                              ,.
                                                                      State Bar No. 00784311
                                                                      Robert L. Guerra, Jr.                                   !::
                                                                      State Bar No. 24036694                                  f·:




                                                                                                              =-
                                                                                                                              I
                                                                      55 Cove Circle                                          E            ?]
                                                                      Brownsville, Texas 78523-3509
                                                                      Telephone: (956) 542-4377
1•···-_.......
                                                                      Facsimile: (956) 542·4370                       ~

                                                              By~~    Will W. Pierson        •
                                                                      State Bar No. Hi003100
                                                                      1300 Frost Bank Plaza                                    ,.
                                                                      802 N. Carancahua
                                                                      Corpus Christi, Texas 78470
                                                                      (361) 884-8808 -Office                                       :.
                                                                                                                                   ,·
                                                                      (361) 884-7261 • Facsimile                                   t:




                                                           ··-··· -- ---·7\"norneyHor Deferi"diu:IIS, ·
                                                                                                                                                ~
                                                                         PAULA WYATT ANDWVATfJ..AW
                                                                         FIRM, LTD.                                                F=

                                                                                                                                   I·




                                                                                                                                   i·:


                                                                                                                                    I:
                                                                                                                                    ;
                                                                                                                                    1-.
                                                                                                                                    i""'



                                                                                                                                    ~:

  -:-: ••• .r
       07/28/2009 09:49 FAX       3S1 884 72S1          RRVW                                             ilJ008/011




                                                 CERTIFlCAIE OF SERVICE

                         I certify that a true a 4 S t copy of the foregoing document was ser\'ed on opposing
                  counsel, via Facsimile, on th      ay of July, 2009, as follows:
_I
ii,·              VIA FACSIMILE:
                  Paula A. Wyatt
                  WYATI LAW FIRM, LTD.
                  4825 Everhart Rd.
                  Corpus Christi, Texas 78411
                  Ph. (361) 857-2727
                  FaK (361) 857-8783

                  VIA FACSIMILE:
                  J. Mitchell Clark
                  Law Offices of J. Mitchell Clark
                  P.O. Box 2701
                  Corpus Christi, Texas 78403
                  Fax: (361) 882-4500

                  VIA FACSIMILE
                  Hector p_ Gonzalez
                  Law Offices of Hector P. Gonzalez
                  3884 East Hwy 44
       •r •   ~
                  AJice, Texas 78333
                  Fax: (361) 668-4249
   07/28/2009 09:49 FAX                         361 884 7281                                 RRVW                                                                                           Ia) 009/011

          JUN-0~-200~                THU 01:43PM WYATT LAW FIRM LTD                                                  FAX NO. 3818578783                                                   P. 04101


 ·- '"!STATI:.OtlTEXhS                                                         §
       INTI OF NVI:WF.S                                                        6




                noa ouomoy& ~cccpl Al(cl dmplo)'lliCnt an.S ~10 auntorj~~:d In all'cclal:lllllpnnnl••, aubjaatro client(•)' ~llPI'Il' •I, of • licnl'l clahm or C>~U!olS or n~tion or 10
 infiiW!c ~uoh 1~1111 actlan u IIIQy b~ al!vlnbtc '" rhe Bllomey'' judamonh In order 10 cnftlrce cllcnl(a)" •1-iw, ctu~u 01 ue tiou 11nd/ar rlalot~, includin~: t.hd lillng or 8
 lylo/JIIit Of a~yothcr a~lfon lkcmeii4JIIIIOJ)I'iore by ~namcy.
             111 conald~lliiiOII ot aw:h UNi(tnJ. thg at rom~·· fl:c thull b~ G8Ym oqu~lto thlny.thl'l>!: ond onc:o Lhinl pcrvootl (3~ 1/J~) ortlte IOIJI/gn:v umMnl or 1111
 mC~nlo,,  intmsl, llT f!I'DptlriY l'lleOYei'Od If lhd oiMim(o) or CDUIItl or mlon (614.) ai'III'Dtalvcd br t:cnllproanlre tenia,., lit bcrl·./11 Alllt I• Hlc:<l; of\cr «Uh I• l'llexl, ohc
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 P')'ablc Ia lhc •homeY'·
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 10 the exwm hvrtln ln~loarad (i.e,, qttomiiY'I (CCII, Clll"''"rllo 00;!151 disburremm") 11> nch a(i.,rn'• aluit'llllo CIIUSOI or DCiulll. ... ,,.,,,.,/11, juolgmoooo, mnnlu, fnto:.n:.,r, or
 mvpcrl)' rccovand or I'ICDVery Of whiiQYcr mowrt:, type or munt.
              Clii:nl(') hl:lllb)'   aulhorfze alto~ 1o jill)'   all   DllpCII8e$,   t:orl!, lien,, nr modlul bill•, lncludinll in[cno.r,   fr•·m   lh"   DfTlGU~I   gf IIJI)' r<eovery or -ol\lcii\Gnt
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  S~HDil • .r\wlln, 1'CJ!Bi 18711, (800) P32-190D.

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 07/28/2009 09:49 FAX     3S1 884 72S1         RRVW                                                                                           @010/011

        JUN-04-2009 THU 01:43PM WYATT LAW FIRM LTD                  FAX NO. 3618578783                                                        P. 03/07
                                    .   \




THI! S'o'A.Tli Ol' 'RXd
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                                                                                                                                                         C>-7
TAB 7
                                           Hartllne,Dacus.&Assoc.LLP                               361 866 8048    P.003
                                                                                                                              '>-- -;..:>
                                                                                                                        )_-



                                                   Cause No. 09-190 C

             ADRIAN CASTRO                                    §          IN THE DISTRICT COURT
                                                              §
                                                              §
                                                              §
             ~                                                §          94TI-I JUDICIAL DISTRICT.
                                                               §
                            - - - - - - - - - - - --------§-------
             PAULA WYATT AND WYATI' LAW                        §
             F~,LTD.                                           §         NUECES COUNTY, TEXAS

                         DEFENDANTS PAULA WYATT AND   ATTLAWFIRM LTD.'S
                      · MOTION FOR RECONSIDERATION OF ENIAL OF ARBITRATION
                             .     ~-

                                       '
             TO THE HONOMBLE JUDGE OF SAID COURT:

                      ·coME.NOW, Defendants, PAULA WYATT                  WYATT LAW FIRM, LTD., and file

             their Motion for Reconsideration of Denial of Arbi ation, and in support thereof, would
                       .           -
                                   ~


             respectfully show as follows:
                   •          •.   ~



                                                              I.

                                             BASIS FOR RECONSID RATION

                  ·· When parties agree to arbitrate their disputes,     itration is strongly favored. Southland
f_'-_-_,


             Corporation v... Keating, 465 U.S. 1, 104 S.Ct. 852, 9 L.Ed.2d 1 (1984); Life pf America

             Insurance Company v. Aetna Life. Insurance Company, 744 F.Zd 409 (5th Cit. 1984); EZ Pawn
       ...
              Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex. 1996 (orig. proceeding); Cantella & Co. v.

              Goodwin, 924 S.W.2d 943,944 (Tex. 1996).

                       Refusal to enforce arbitration imposes signifi ant burdens in terms of the time and

.-.:/         resources of litigation. · These a.re burdens that the     arties did not bargain for.       Therefore,

             .,arbitration agreements should be enforced. Toward t is end, the legis1ature has provided an

              interlocutory, accelerated appeal to protect the right t    arbitration. TEx. CIV. PRAC. & REM.

              CODE.    § 171.098(a)(l). Defendants, in keeping with t eir strict deadlines in that regard, have




                                                                                        ....   '
      FEB-12-2010    15:40              Hartline.Dacus.&Assoc,LLP                           361 866 8048      P.004




          perfected that appeal.       However, the appeal does n t divest this Court of jurisdiction to

          reconsider the matter and eliminate the need for appeal. "While an appeal from an interlocutory

          order is pending, the trial court retains jurisdiction of     e case and may make funher orders,

~~        including one dissolving the order appealed from .. . .''    EX. R. APP.   29.5 {emphasis added).

     _____________Thus, (1)-.in.an_efforLto-conser:ve_judicial- reso rccs,-(2)-because-a- new-judge-is-now--

          entrusted with the enforcement of the arbitration agree ent and has not had an opportunity to

          consider the matter, (3) because, previously, there ha been insufficient consideration of the

          import of Plaintiff's pleadings vis-a-vis his affidavits,     d {4) because conflicting orders have
                                                                                        .
          been entered in this case (please see attached Appendix A for contextual timeline), it is only fit

          and proper that our new Judge be given an opportunity o consider the law and refer the case to

          arbitration as required by the fee agreement signed by_ P aintiff. Such action would eliminate the

          need for an interlocutory appeal and the delay it wil necessarily cause in resolution of the

          Plaintiff's allegations.

                                                            II.

                                             UNDERl,Yl G CASE FACTS

                  Because the allegations against Defendants ares inflammatory and because Plaintiff has

           supplied affidavits with subjective, self-serving repres ntations, it is important to keep several

           operative facts in focus.

                  October 20, 2003:        Plaintiff is injw-ed in a pl t explosion at his workplace: Alcoa.
                                           He is taken to Brook A y Medical Center for treatment. He is
                                           noted in the medical reco ds to have an alert mental status and to
                                           be responsive to questions

                  October 22, 2003:        Hospital personnel note t at Plaintiff is alert and oriented, follows
                                           commands, is cooperativ ~ and his conduct is appropriate and
                                           participative.




                                                             2
                FEB-12-2010     16:40             Hartline.Dacus.~Assoc.LLP                         361 866 8048      P.005




                          October 22, 2003:         Plaintiffs father,             Castro, signs fee agreement with
                                                    Defendants.

                          October 23,2003:          Plaintiff signs BAMC info     ed consent for blood transfusion.

                          October 25, 2003:         Dr. Christopher White not s that Plaintiff is alert and oriented and
                                                    is able to see "fuzzy" ima s. Plaintiff is encouraged to ambulate.

  ------------ ---October~5,-2003:--Plaintiffsignsfee-agre-em nt with-Defenaants~ ----------------------- -------- -- -----

                          Octobet 27, 2003:         Paula Wyatt meets with laintiff in his hospital room to go over
                                                    events of the incident. PI intiff recounts incident cogently and in
(-,,                                                detail, including that he    wearing safety glasses at the time of
                                                    the incident.

                          October 28, 2003:         Plaintiff signs informed consent for blood transfusion and
                                                    anesthesia at BAMC.

                          November 7, 2003:·        Plaintiff is discharged fro

                          November 11, 2003: Plaintiff fills out and sign patient information sheet for treatment
                                             by"opthamologist.

                          March 10, 2004:           Attorney Aubrey Flowers is brought into the case to represent
                                                    Jeronimo Castro. No omplaints are made to Mr. Flowers
                                                    regarding Defendants' c duct in obtaining the Plaintiff's fee
                                                    agreement.

                          September 8, 2004:        Plaintiff fills out and sign patient information sheet for treatment
                                                    for Dr. Arthur Medina.

                          January 20, 2005:         Plaintiff signs settlement ocuments in his case against Alcoa, as
                                                    negotiated by Defendants. Plaintiff receives substantial sum for
                                                    his injuries. Plaintiff ac owledges reviewing fee agreement at
                                                    this time. Plaintiff makes o complaint against Defendants.

                          January 21.2005:          Defendants sign off on ocuments to dismiss Plaintiff's case
                                                    against Alcoa consistent w th the settlement.

                              October 25, 2005:     TWO YEARS FROM PL INTIFF SIGNING FEE CONTRACT
                                                    WITH ARBITRATION GREEMENT with no complaint from
                                                    Plaintiff.
       .. - '
                              January 20> 2007:      TWO YEARS FROM P AINTIFF SIGNING SETTLEMENT
                                                     with no complaint from PI 'ntiff.
       [-'·




                                                                         3
                                         Hartline,Dacus.&Assoc.LLP                           361 866 8048         P.006
      FEB-12-2010     15:41
                                                                        I




                   October 25, 2007:        FOUR YEARS FROM P AINTIFF SIGNING FEE CONTRACT
                                            WITII "ARBITRATION GREEMENT with no complaint from
                                            Plaintiff.

                   January 20, 2009:        FOUR YEARS FROM LAlNTIFF SIGNING SETTLEMENT
                                            with no complaint from PI intiff.

                   April 22, 2009:          Plaintiff files Petition with first notice of claim against Defendants:
!':.;<__ - - - - - - - - - - - - - - · - - - - - - - - - - -   ---·-        ----------


                   The Arbitration Agreement. Contained within the fee agreement at issue in this case is

           the following arbitration provision:

                                 In the event that any dispute arises etween attorneys and client
                         regarding interpretation of the terms of t is agreement, or regarding
                         any professional services provided by ttorneys, or regarding the
                         payment offees. expenses or other ob/iga ions by client, o1' regarding
                         any other disputed matter arising out of th attorney-client relationship,
                         then any such dispute shall be· submitted to inding arbitration in Nueces
                         County, Texas before an· arbitration panel selected in accorda1,1ce with
                         the Rules and Procedures of the American rbitration Association. The
                         decision of the arbitrators as to all disput d matters shall be final and
                         binding, and may be enforced by either party through any court of
                         competent jurisdiction. By electing to         itrate all disputes between
                         attorneys and client, the parties elect to vol tarily waive their rights to
                         trial by jury regarding any such issues. lients have been advised to
                         seek the advice of independent counsel oft eir choice rega-rding the full
                         meaning and legal effect of this arbitration greement, and clients hereby
                         affirm that they have done so to the exte t that they desire, that they
                          understand the effect of this agreement to arbitrate, and that they
                         voluntarily make this agreement of their o      free will

            Fee agreement (emphasis added). Defendants now see to enforce this arbitration agreement

            pursuant to law.

                    Defendants have demonstrated (1) that there is           _arbitration agreement and (2) that it

            covers the claims made in the lawsuit. Therefore, enfo cement of the arbitration agreement is

            not discretionary-it is mandatory. E.g., In re Tenet He thcare, Ltd., 84 S.W.3d 760, 765 (Tex.

            App.-Houston fist Dist.) 2002, orig. proceeding); Dal as Cardiology Assoc.. P.A. v. Mallick,




                                                                4
             FEB-12-2010    15:41               Hartl!ne.Dacus.&Assoc.LLP                       361 866 8048      P.007




                978 S.W.2d 209, 212 (Tex. App.-Texarkana 1998, pet denied); Merrill Lynch, Pierce, Fenner

                & Smith v. Eddings, 838 S.W.2d 874, 878 {Tex. App.- aco 1992, writ denied).

<-:::--
                        Even whe;re     t1.   party claims that the entir     contract containlng the arbitration

                agreement is void, the law holds that it is tile arbitrator who determines whether the contract is
 ..
'- -----void-:-Henry· V;- Gonzalez,-18-S-:W~3d-684,- 691- (-Tex-;- pp;-San-Antonio-2000,-pet- dism1 d- by------ -·

                agr.) (claims of fraud go to the arbitrator); Pepe Intern tiona[ Development Co. v. Pub Brewing
r. :-:~

                Co., 915 S.W.2d 925, 930 (Tex. App.-Houston [1~ D'st.] 1996, no writ) (same); TMI, Inc. v.
                                                                         1




                Brooks, 225 S.W.3d 783, 792-93 (Tex. App.-Houston 14lh Dist.] 2007, pet. denied) (claims of

                unconscionability or fraudulent inducement go to the ar itrator); Buckeye Check Cashing, Inc., v.

                 Cardegna, 546 U.S. 440 (2006) (claims of illegality go to the arbitrator); In re FirstMerit Bank,

                 52 S.W.3d 749.-749 (Tex. 2001) (same); Women's Regi nal Healthcare, P.A. v. Fem.Partners of

                North Texas, Inc., 175 S.W.3d 365 (Tex. App.-Ho ston [1~ Dist.] 2005, no pet.) (same);
                                                                                     1




                 Service Corp. lnternat'l v. Lopez, 162 S.W. 3d 801, 8 9 (Tex. App.--Corpus Christi 2005, no

                 pet.) (claims of duress or coercion go to the arbitrator).

                                                                  III.

                                          TilE "NEGLIGENCE" CLA
                                         ALTER THE ARBITRATION

                         Godt.   There is only one way to keep this           articular claim from being referred to

                 arbitration. That is ifthe claim is construed to be a "pe onal injury" claim--one that, by statute,

                 requires independent counsel's signature. Tex. Civ.           c. & Rem. Code § 171.002(a)(3), (c).

    ,_--_-       The vast majority of courts have held client claims aga nst attorneys to be subject to arbitration

                 and not '"personal injury" claims. E.g., Taylor v. Wilso , 180 S.W.3d 627 (Tex. App.-Houston

                 [14th Dist.] 2005, pet. denied); In re Hartigan, 107 S. .3d 684, 690 (Tex. App.-San Antonio

                 2003, mandamus denied); Miller v. Brewer, 118 S.W 3d 896, 898-899 (Tex. App.-Amarillo



                                                                    5
         FEB-12-2010     15:41           Hartline.Dacus.&Assoc,LLP                          361 866 8048        P.OOB




            2003, no pet.); and Chambers v. O'Quinn, 2009 WL 3152968 (Tex. App.-Houston [Ist Dist.]

            2009, pet. filed).

                    Only the Thirteenth Court of Appeals has co-n trued a "negligence" claim against an

             attorney to be a .. personal injury" claim triggering § 1 1.002(c). In re Godt, 28 S.W.3d 732,

t- -
;?-:?-
         --738-39-(Tex:-App.=-eorpus-ehristt-2000-;-on.g-:·-pToce-- ing)-:-Because oflliis-hoiCling;-Piaintiff ____ ·-

             Castro has added a ''negligence" label to his pleading wi out any change to the substance of the
)_-
             allegations. The Court should refuse to allow this con vance to govern this case because (1) it

             is nothing more than "artful pleading" to obtain an         vantage in litig(ltion, (2) it does not

             comport with the claims made in this case, and (3) the      irteenth Court of Appeals is out of step

             with the rest of its sister courts on this issue and every ffort should be made to distinguish this

             case from Godt.

                    The Pleadings. Every one of the Plaintiff's laims has, at its roots. the concept of

             barratry-the improper solicitation of a fee contract by an attorney. Every claim of breach of

             fiduciary duty, negligence, and intentional, malicious,      d willful conduct~very request for

             relief, whether declaratory judgment, fee forfeiture, o compensatory or punitive damages-

             every one relates back to the Plaintiff's claim that his co tract was illegally solicited. The upshot

             of his claim--as alleged-is barratry. This was admitt d in Plaintiffs original response to the

             Defendants' motion to compel arbitration. "This is a cas of attorney barratry, pure and simp)e."

             Plaintiff's Response to Defendants Motion to Compel Ar itration, p. 2.

                       Because those allegations were subject to arbitrat on-pure and simple-Plaintiff tried to

             change his strategy and added claims of negligence. T is does not change the result. Simply

             calling barratry "negligence'' does not ·make it so. B      try is an intentional act defined by the




                                                               6
          FEB-12-2010    15:41             Hartline.Dacus.~Assoc.LLP                               361 866 8048        P.009
                                                                            I




             Texas Penal Code § 38.12. One does not l'negligentl " commit barratry. This is abundantly

              clear because there is no "non-negligent'' version of barr try.

                     Many courts have considered the difference be              een negligence claims and other claims

              commonly made against attorneys. The courts unanim usly conclude that legal malpractice or

          ---·~'negligence!!..refers- to· whether-the-attomey-exercised-t       at-degree- ofcare·,-skill~ and diligence as-----

              lawyers of ordinary skill and knowledge commonly pos               s and exercise. E.g., Sullivan v. Bickel

              & Brewer, 943 S.W.2d 477, 481 (Tex. App.-Dallas 1995, writ denied). So the question is

              whether the barratry claims made by Plaintiff implicat Defendants' degree of legal care, skill,

              and diligence in representing a client or whether th                are, indeed, allegations of a serious
f_,__-.


              intentional crime.

                      This Coun has the power and the responsibility to adjudicate this case according to the

              actual claims that correlate to th.e facts alleged in the pl acting and not how the Plaintiff chooses

              to label them. It is well established in Texas that claim pertaining to the alleged improper acts

              and/or omissions of a lawyer arising from the lawyer' -representation--despite the manner in

              which they are presented in a Plaintiff's pleadings- ust he an4lyzed by the trial court to

              determine their true nature_ Arnold v. University of Texas Southwestern Medical Center at

              Dallas, 279 S.W.3d 464, 470 (Tex. App.-Dallas                     009, no pet.), citing Baylor Univ. v.

              Sonnichsen,   ~21    S.W.3d 632, 636 (Tex. 2007); Ambul tory Infusion Therapy Specialist, Inc. v.

              N. Amer. Adm'rs, Inc., 262 S.W.3d 107, 112 (Tex. A p.-Houston [1st Dist.] 2008, no pet.).

              This must be done so as to prevent a complaining p                  from gaining "favorable redress under

               the law" through artful pleading. !d. Moreover, 11 Whe er allegations against a lawyer, labeled

               as breach of fiduciary duty, fraud, or some other c use of action, are actually claims for

               professional negligence or something else, is a questio of law to be determined by the court."




                                                                 7
                                            Hartline.Dacus.&Assoc.LLP                            361 866 E:l04E:l   P.UlO
';-_-.--'
            FEB-12-2010     15:42




               Murphy v. Gruber, 241 S.W.3d 689, 692 (Tex. App                Dallas 2007, pet. denied) (emphasis

               added).

                         The determination made by the trial court must be based on the substance of the facts

               pled, the contentions contained therein, the purpose of the pleadings and the remedies sought,

   \-:;:_____ rather than by the    arbi~    lab_e_l-=-_a_matter_offoliil.-=a 1xed by-E!aintiff'-to-the-elaim;-Krishnan----------- ·

                v. R(lmirez, 42 S.W.3d 205, 224 (Tex. App.-Coxpus C risti 2001, pet. denied}; see also, State

                Bar ofTex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980). Because Plaintiffs "negligence" claim

                is nothing but a contrivance to avoid arbitration, this C urt should as a matter of law disregard

                it.
                         The nffidavits. For now, we can set aside the fa t that the medical records contradict the

                Plaintiff's affidavits. He was neither blind at the time he sigl)ed the fee agreement nor in a '"drug

                induced daze." The real import· of the affidavits is tha they complain only .of the method by

                which the fee agreement was procured. It is significan that this, the only evidence offered by

                Plaintiff in opposition to the motion to compel arbitrati n, does not support any claim of legal

                malpractice or "negligence." It is crystal clear that this s not a ''negligence" case and does not

                fall within the holding in Godt.

                         The law. As noted above, there is no question th t the Thirteenth Court of Appeals is the

                only appellate jurisdiction in Texas that construes a negl gence claim against an attorney to be a

                '"personal injll-ry" claim that is exempt from arbitration if not approved by separate counsel under

                 Tex. Civ. Prac. & Rem. Code§ 171.002(c). See Godt, s pr(l. The Supreme Court of Texas has

                 not yet addressed the matter, but Defendants would note      at at least two of the cases disagreeing

                 with Godt are "pet. denied." Furthennore, at least o e Justice on the Thirteenth Court of

                 Appeals has already expressly registered displeasure wit the COurt's Godt decision and would




                                                                   8
            FEB-12-2010     15:42               Hartline.Dacus.&Assoc.LLP                        361 866 8048        P.011
                                                                         I




                 favor overruling it, bringing the Thirteenth into agree ent with its sister courts throughout the

                 state.   Bennett v. Leas, 2008 WL 2525403 (Tex.             pp.-Corpus Christi 2008, pet. abated

                 (banlauptcy stay))   (Vela~   J., dissenting).

                          The overall complaint in Godt was that the a omey bad not pursued the underlying

          ______ _]2ersona1 inj.JJrYsl_ajm_and_neglected_it untiL limitations t:hreatened-to- bar- it-when- the- attomey------

                 left the client to proceed pro se. The Corpus Christi C urt of Appeals held that the damages at

                 issue were the client's uncompensated personal inj          es in the underlying litigation.    Here,

                 however, the Plaintiff received generous compensation for his underlying injuries as a result of

                 the excellent work performed by Defendants. Plainti          agreed to his- settlement, accepted his

                 settlement, and does not complain in his pleadings oftb fairness of that settlement.

                          This case does not implicate the·underlying p       onal injury case. Instead, this case is

                 only abou~ barratry-a claim that was not a basis for th Godt decision. The Godt decision thus

                  does not mandate a finding that the "barratry" claims in    is case are, in fact, "negligence" claims


L--:;_:
                  when they are not. Neither does Godt~ require a fin ing that "barratry" claims         are, in turn,
' ·               "personal injury" claims.         Plaintiff's position req · es a stretch that is contrary to the

                  overwhelming law, which ,(1) limits "negligence" clai s to a breach of a standard of care that

                  does not apply to barratry. and (2) considers such claims against attorneys to be outside the scope

                  of a "personal injury" claim that requires additional ounsel's signature in order to enforce

                  arbitration.

                          Public Policy. This Court should not engage in laintiff's contrivances or stretching of a

                  narrow minority opinion that does not apply~ven on its own terms. Clearly, the Plaintiffs

                  request for a public forum to adjudicate this dispute is esigned to shine a light on his baseless

                  and inflammatory allegations in order to embarrass Den dants in the hope of extracting a quick




                                                                    9
                FEB-12-2010    16:42            Hartllng,Dacus.&Assoc.LLP                          361 866 8048      P.012



           -·

                   settlement. No other motive is realistic in a case whe e the Plaintiff obtained excellent legal

~                  services from the Defendants and enjoyed the fruits o that labor-in the form of a substantial

                   settlement, only to turn on his counsel long after the se ices were rendered . . . long after the

                   case was settled to his satisfaction . . . long after his    oney is spent ... and long after any

k.s:____    ---possible-statute- of.limitations-has-"expired-;-;--;-)ooking-fo more-money:-This·eourt"should-Mnre- ---- · ·
~
                   used as an instrumentality for such unjust gamesmanship

                           Conclusion. Plaintiff has contrived a "neglige e" claim in a last-ditch effort to avoid

                   arbitration. The Court, as a matter of law, has a duty t disregard that label and treat the claim

                   for what it is-barratry, pure and simple .. Without a bon fide "negligence" claim, this case must

                   be referred to arbitration. Even with the ''negligence ' claim, most judges would send it to

                   arbitration, in keeping with the majority of cases that m e no arbitration exception for this type

                   of claim. Defendants ask this-Court to evaluate the PI intiff's pleadings for what they are and

                   disregard the ''negligence" claim and send this case to      bitration as the parties-more than six

                   years ago-agreed that they would do if a dispute arose.

                           WHEREFORE, PREMISES CONSIDERED, Defendants PAULA WYATT AND

                   WYATT LAW FIRM, LTD. pray that this Court vacat the order of January 13, 2010 and grant

                   Defendants' Motion to Stay Case artd 'compel Arbitrati n, and that the instant lawsuit be stayed,

                   and that the parties be compelled to arbitration, and that Paula Wyatt and Wyatt Law Firm, LTD.

                    have all further relief, at law or in equity, as they mays ow themselves justly entitled.




                                                                     10
           FEB-12-2010   15:43             Hartline.Dacus.~Assoc.LLP                              361 866 8048        P.013




                                                                        Darrell L. argcr
                                                                        State Bar o. 01733800
                                                                        BreiUlon 0 Gamblin
                                                                        State Bar o. 24050636
                                                                        HARTLI E, DACUS, BARGER,
c.·----.      ·-------- - - - - - · - - - - - - - - - - - - - - - - - - -       D - -YER-&-KERN,-t;tP;·- --- ·-------- -----'-----
                                                                        800 North horeline, Suite 2000, North Tower
                                                                        Corpus C 'sti, Texas 78401
                                                                        Telephone: (361) 866-8000
                                                                        Facsimile: (361) 866-8039

                                                                            YS FOR DEFENDANTS
                                                 CERTIFICATE OF S
                                                                                                                                     •
                     I certify that a true and correct copy of the fore oing document was served on opposing
              counsel, via Facsimile, on the __ day of February, 20 0, as follows:

              VIA FACSIMILE:
              J. Mitchell Clark
              Law Offices of J. Mitchell Clark
              P.O. Box 2701
              Corpus Christi, Texas 78403
              Fax: (361) 882-4500

              VIA FACSIMILE
              Hector P. Gonzalez
              Law Offices of Hector P. Gonzalez
              3884 East Hwy 44
              Alice, Texas 78333
              Fax: (361) 668-4249




                                                                 11
TAB 8
                                                         TX-ST-ANN
                                                         C.P.R.C. 171
                                                             171.002 (c)

:.-· -____ ----V~-T--;8;-A-;-,-Givil-Fractice.&-Remedies Code_§_l71.0_Q2__ ----------------------·--- ___ _

           Vernon's Texas Statutes and Codes Annotated Currentness
           Civil Practice and Remedies Code (Refs & Annas)       ·
           Title 7. Alternate Methods ofDispute Resolution (Refs & Annas)
           Chapter 171. General Arbitration (Refs & Annas)
            Subchapter A. General Provisions
           § 171.002. Scope of Chapter

           (a) This chapter does not apply to:

                   (1) a collective bargaining agreement between an employer and a labor union;

                  (2) an agreement for the acquisition by one or more individuals of property, services,
           money, or credit in which the total consideration to be furnished by the individual is not more
f~"        than $50,000, except as provided by Subsection (b);

~'                  (3) a claim for personal injury, except as provided by Subsection (c);

                    (4) a claim for workers' compensation benefits; or

                    (5) an agreement made before January 1, 1966.

           (b) An agreement described by Subsection (a)(2) is subject to this chapter if:

                    (1) the parties to the agreement agree in writing to arbitrate; and

                    (2) the agreement is signed by each party and each party's attorney.

           (c) A claim described by Subsection (a)(3) is subject to this chapter if:

                    (1) each party to the claim, on the advice of counsel, agrees in writing to arbitrate;
           and

                    (2) the agreement is signed by each party and each party's attorney.

           CREDIT(S)

           Amended by Acts 1997, 75th Leg., ch. 165, § 5.01, eff. Sept. 1, 1997.
TAB 9
                                                         171.098(a)(1)

               V.T.C.A., Civil Practice & Remedies Code § 171.098

                 Vemon's Texas Statutes and Codes Annotated Currentness
                 Civil Practice and Remedies Code (Refs & Annas)
           -- ---Title 7:-AJ.ternate·Methods-of:Bispute-Resolution-(Refs-&-Annos)------
                  Chapter 171. General Arbitration (Refs & Annas)
                  Subchapter D. Comt Proceedings
                 § 171.098. Appeal

               (a) A party may appeal a judgment or decree entered under this chapter or an order:

                       (1) denying an application to compel arbitration made under Section 171.021;

                       (2) granting an application to stay arbitration made under Section 171.023;

                       (3) confirming or denying confirmation of an award;

                       (4) modifying or correcting an award; or
 .- __ :
 {,




                       (5) vacating an award without directing a rehearing.

               (b) The appeal shall be taken in the mmmer and to the sa1lle extent as an appeal from an order or
               judgment in a civil action.

               CREDIT(S)

               Added by Acts 1997, 75th Leg., ch. 165, § 5.01, eff. Sept. 1, 1997.




l .   ~
TAB 10
                                NUMBER 13-11-00025-CV

                                  COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTl -EDINBURG


                                 IN RE ADRIAN CASTRO


                         On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
                                                   1
                  Per Curiam Memorandum Opinion

       Relator, Adrian Castro, filed a petition for writ of mandamus in the above cause

on January 18, 2011, seeking to compel the Honorable Federico Hinojosa, who was

assigned to hear the underlying matter in the 94th District Court of Nueces County,

Texas, to withdraw his order of November 12, 2010 compelling arbitration. The Court

requested and received a response to the petition for writ of mandamus from Paula

Wyatt and Wyatt Law Firm Ltd., the real parties in interest herein, and further received a

reply thereto from relator.
       1
          See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is
not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
~ .·~ -'




                    The Court, having examined and fully considered the petition for writ of

              mandamus, the response thereto, and relator's reply, is of the opinion that relator has

              not shown himself entitled to the relief sought.   Accordingly, the petition for writ of

              mandamus is DENIED. See TEX. R. APP. P. 52.8(a).


                                                                   PER CURIAM


              Delivered and filed the 9th
              day of February, 2011.




      j·-··




                                                            2
TAB 1
_.:.t

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                                                          CAUSE NO. 09-1908-C

                    ADRIAN CASTRO,                               §                IN THE DISTRICf COURT
                                                                 §
                                  Plaintiff                      §
                                                                 §
                    v.                                           §                94TH JUDICIAL DISTRICT
                                                                 §
                    PAULA WYATI' and                             §
                    WYATT LAWFIR.M,.LTD.                         §
                                                                 §
                                          Defendants             §                NUECES COUNTY t TEXAS

                                                  AFFIDAW OF PA'UL.A. WYATT

                    STATE OF TEXAS

                    COUNTY OP NUECES

                           BEFORE ME, the undersigned autb.ority, personally appeared Paula W~ who being· by

                    me dciy sworn~ deposed as follows:

                                   "My name :i8 Paola Wystt and I am over eighteen (18) years of agt; of sou:pd
                           mind, and am in all ways capable af making 1hi& affirumt. tire content8 of whi.ch are
                           within my personal knowledge and are true and correct
                                   "I am an attorney licen&ed to practice law in the State of Texas and did, in ::fu:ct,
                           represent Adrian ~ in hls la'wsuit styled. Adrian Cctstro v.. Alcoa Wll!ld Alumina,
                           LLC, No. 03-CV'-244, in tb.e County Court at Law No. 1, Calhmm. Cou:nty, Texas ·
                           (hereinafter referred to as
                           captioned case.
                                                         '~coa Case'}.    I am also one of the Defendants in the above-                 I
                                                                                                                                        If·
                                                                                                                                        I!
                                   "' :first learned of the incident giving rise to the Alooa Case when I received a ca1l
                           from Jeronimo Castro, :futher of Adrian Cs.Btro. At Jeronimo Castro's ~I met
                           Jeronimo on October 22, 2003 and agreed i:o represent Jeronimo. At that time. Jeronimo
                           Ca.s.tro signed a contract of representation 'that permitt-ed me to represent Jllm in the Alcoa
                           Case. A true and correct copy ofsaid contract is attached hereto as Exhibit A-1.
                                   ..After I disaussed the case with Jeronimo Castro; Jeronimo Castro expressed to
                          . me that he wanted me and my law firm to represent Adrian Castro as well. So Jeronimn
                           Castro arranged for me to visit Adrian in· the hospital.            Before Jeronimo Castro


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               volunteered information about Adrian Castro and initiated the process of introducing me
               to Ad..ria.n,. n.either l nor ml}'One in connection with me or my fum knew anyfuing about
               Adrian Castro, his injuries, or his whe:reabou:ts. I was only able to visit with Adrian.
               Castro because of Jeronimo ·Castro's expressed desires and         lo~cel    efforts to have
               Adrian Castro employ me and my law firm. I did not make arry effort to contact Adrian
               Castro independent of Jeronimo Castro's invitation.
                       "When I   was in~ to Adrian Cas1ro, he was sitl::ing on tho side of the boo
               and stood when I entered the room and shook my hand. He appeared to ma1o be ma
               very good mood, whicll he indicated had to do with his lipid improvement and tmnsfer
               out of the bmn UIIit. Adrian Castro appeared orl~ capable, and detennlned to have
               us get the investigation started~ thein.ciderd: that caused his injuries.
                                                                                                                          I
                       "When I met with Adrian Castro. he claimed to have some difficulties wrJL his
               sight, although he said be could see.          When 1 questioned Adrian Castro about hls
               condition, he aasured me that he was .fully capable of understanding the. contract and
               insisted ihat he wanted to hire.me.and my .firm. So I tead the entire. contract to him and
               explained it in detail. including 1he contir:lgency style of the fee, 1he percentnge that my
               fum would be chargin& the expenses that my fum would be incuning on his beh.alf.as
                                                               ..
               well as the method by which those expenses are reimbursed,. and the arbitration clause. A
               true an.d correct copy of my firm's contract with Adrian Castro is attached. hereto as
               Exhibit A-2. I also answered all of Adrian Castro's        qu~ons     and discussed in. great
               detail the experts we would be retruning to inspect tbe facility on his behalf. This is my
               usual and customary practice with all of my -clients so that I know that they are aware of
               what the contract involves and what myself and my firm will be doing· on their beha1t: _
                       'Thereafter, my law firm's representation of bo~ Jeronimo Castro and Adrian
               Castro proceeded quickly and efficiently. The first inspection of 1:lw site of the explosion
               was   condu~ted   on October 27, 2003---:fust. two days     ~     Adrian Castro signed :his
               contract with Defenda:nis. A true and oonect copy of Jam.es Perrin's Ietrer 1o AI.roa's
               counsel regardlng that inspccti.llll is ati:a.clLed ~to as Exhibit A~3.
                       "The initial pleading. in the Alcoa Case was .filed on November 26, 2003--just
               one month. after Adrian C-astro sign.ed his c.ont:ract wifh my law fum. A true 6Ild correct
               copy of "'Pl.ainti:ff's Original Petition with. Diswvezy and MDtion for Level 3 Discovery


                                                          2
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                 Control Plm Order'' is attached hereto as Exhibit A-4. Discovery w-aS conducted and fue
                 parties went to mediation just a year after the incident,. on October 28, 2004. Adrian
                 Castro participated fully in that med1ation. A true and. cm:i-ect copy of the letter from the
                 mediator confirming the mediation is attached hereto as Exhibit A-5.
                            '"Throughout the preparation of the case, Adrian Castro represente<lto me that he
                 was significantly injured-that his sight was 1mpaired tet the point that he could not safely
                 drive a    CHI'   IIIlli thBt his skin was.sensitive 1D sunlight and heat to 1he point.ihat he couid
                 not go outside ··without sun protection. At mediation. however, Al~ provided proofthal:
                 A.driml Castro had been driv.ing a car and ·playing golf w.ithout need of g1assres,
                 8UD.gle.sses, a .hat; or other protection from the sun.             True and conect copies of
                 photographs taken by Alcoa or its agents and presented at mediation. showiJJg Adrian
                 Castro p!.a.ying go!£ in. the hot sun are attached hereto ag collecti-ve Exln'bit A-6.
                            _"Despite Adrian Castro~s misrepresentaiion of his condition to me and Alcoa, I
                 was still able to negotiate a confidential settlement of a        sipificant S1IIIl (as indicated by
                 fue amount of the contingency fee earned by my law firm under the contmct, which
                 amom:rt was disclosed by Castro in. his Response to Dtfendanis' Mati.ou to Compel
                 Arbi1rafion).
                            "Before settling the Alcoa case, I participated in nmnerous. discussions and
                 meetiugs -with both Jeronimo Castro and Adrian Castr-o so that fuey understood. the terms
                 of settlements generally, w.hat would be required of them,. what the p~f€:ntial settlement
                 amount might ~. and bow any settlemen1 funds would be gistributed. A Settlement was
                 negotiated on behalf of both Jeronimo Castro and Adrian Castro, with both 'Castros fully
                 consenting to the terms of the settlement_ .f#Jir reading the settlement agreement and
                 indicating his cons~t. Adrian Castro signed' the settlement documents on fue Alcoa Case
                                                               .,
                 on January 20~ 2005. Adrian Castro never once complained to me about his settlement
                     and I did not learn. of any complaint he .had against me until after he :filed the above-
                     captioned lawsuit against me.»
                             Fu:rth.e:r affiant sayeth. not




                                                                  3                                                                      --.--:-:.;,.:;:~




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                SlJ.BSCRIBED AND SWORN TO BEFORE :ME, the undersigned authority, by PAULA

          WYATI on fuis the 1.k_ day of August, 2009.




                                                            NOTARY PUBLIC IN AND FOR
                                                            Tiffi STATE OF TEXAS




                                                        4
TAB 1
                                                                                       .·



                                                                      IX.
                                           DlSPUTE:S REGARDING TlUS AGREEMENT

                     If one or mpre disputes arise with regard to the interpr-elation and/or perfonnance of this

            Settlement Agreement or any of its provisions, the parties agree to attempt to resolve .sru11e with
                                                                                                                                        :_..-.-

            l~.ob.ert B.   Thontton of San Ant.onio, 'Texas, the. .med1ator who facilitated tltis settlement. If Hti gation

            is brought to construe or enforce this Sett[ement Agreerne11t, the prevailing party shall·be entitled to

            r~ov~r aJton1eys ~        fees., as well as court costs and exp:enses, including the .cost of the·mediati on.
,._
..
                                                                       X...



                      This S.etflement.Agreement contains U1e entir_e:~w:eemeilt between Plaintiff, Intervenor and

            R~l~ased       P-arties with regard t-o· the Occurrence, the Litigation and all matters set forth herein, and

             shall inw·e to. the· benefit uf eacl1 of the Releas·ed Parties. there are no -other ·understandings or

             ~gre.tmr¢nts,    verbal or otherwise, b.~tweert the parties with regard to the Occurrence,. th~ Litigation

             and -tl1e other matlets set forth herein. The. ter.ms .Of this. Settlement Agreement are -contractual and

             .riOt mere re.ci-tals.

                                                                       XI.

                                                       READING OF AGREEMFJ.<fl:

                       h1 ent'ering into this Settlement Agreement, Plaintiff and Intervenor represe.nt that Plaintiff

             aud Intervenor fully under-stand, read and comprehend th~ EJ1glish language, and that Plaintiff and
                                                                    ,.


      f.>    lntervenor have complet-ely read all tenns hereof and that ,such tet.'ln$ ar~ fully understood and

              volunt-arily accepted b,y Plaintiff and Intervenor, and that Pla\n.tiff and Intervenor               hav~     been

              adequately represflnte.d by counsel of Plaintiffs and Jntetveno.r•s- choice, and that Plaintiff and

              Intervenor have relied upon ·the legal advice of their attorneys, and that the te1ms- of this Settl.ement


                                                                         • 12


                                                                                                                                   ~l
TAB 13
     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.        [ CON'I'INGEN'I' 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 eontingent 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 Rules of

14   Professional Conduct of the State Bar of Texas regarding barratry

15   by attorneys or other persons.

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

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

18   expenses 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    representation,         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 reported

23   the. misconduct       as    required by the Texas Disciplinary Rules of

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



                                                                                                 ---~:~~~;:_;.::.,.:r=:-::l   ~-~~~t~~~-;:?::~: -:-:-:-:.:.-:----~:-:~::-::::
                                                   1                                                                          ! --·-
                                                                                                                              i

                                                                                                                              I
                                                                                                                              i:-; .._:-..,-.?t.:=o--·-:.-..·.·.
                                                                                                                                       uv
                                                                                                                              I
                                                                       S.B. No. 1716

 1                (1)    another      person      has    already      reported     the

 2   misconduct; or

 3                (2)    the attorney reasonably believed that reporting

 4   the   misconduct     would    substantially         prejudice     the    client's

 5   interests.

 6          SECTION 2.    Subchapter     c,    Chapter 82, Government 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 client may bring an action to void a contract for                   legal

10   services that was procured as a result of conduct violating the laws

11   of this state or the Texas Disciplinary Rules                   of Professional

12   Conduct of the State Bar of Texas regarding barratry by attorneys or

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                ( 1)   all fees and expenses paid to that person under the

17   contract·;

18                (2)    the balance of any fees and expenses paid to any

19   other person under the contract, after deducting fees and expenses
20   awarded based on a quantum meruit theory as provided by Section

21   82.065(c);

22                (3)    actual damages caused by the prohibited conduct;

23   and

24                (4)    reasonable and necessary attorney's fees.

25          (c)   A person 1vho was solicited by conduct violating the laws

26   of this state or      the Texas Disciplinary Rules of Professional

27   Conduct of the State Bar of Texas regarding barratry by attorneys 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 underlying purposes, which are to protect those in 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 the 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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