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					                             No. 09-______

             IN THE SUPREME COURT OF TEXAS

                         In re Irwin & Boesen, P.C.,

                                           Relator


            Original Proceeding from the Thirteenth Court of Appeals,
                        Corpus Christi-Edinburg, Texas,
             And the 197th District Court of Cameron County, Texas
                    {The Honorable Migdalia Lopez Presiding}


                    PETITION FOR WRIT OF MANDAMUS


THE LAW OFFICE OF                        COATS | ROSE
AUDREY MULLERT VICKNAIR

Audrey Mullert Vicknair                  Daniel F. Shank
State Bar No. 14650500                   State Bar No. 18090400
802 N. Carancahua Ste. 1350              Jerry Young
Corpus Christi, Texas 78470-0165         State Bar No. 00785301
(361) 888-8413; (361) 887-6207 fax       3 Greenway Plaza, Suite 2000
                                         Houston, Texas 77046
                                         (713) 651-0111; (713) 651-0220 fax


Attorneys for Relator Irwin & Boesen,
P.C.
                   IDENTITIES OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 52.3, Relator Irwin & Boesen, P.C. submits the
following list of the parties, their designations, and their counsel in this original
proceeding:

RELATOR:                                 IRWIN & BOESEN, P.C.

COUNSEL FOR RELATOR IN THE COURT         Audrey Mullert Vicknair
OF APPEALS                               State Bar No. 14650500
                                         LAW OFFICE OF AUDREY MULLERT VICKNAIR
                                         Frost Bank Plaza
                                         802 N. Carancahua, Ste. 1350
                                         Corpus Christi, Texas 78470-0165
                                         Tele. 361-888-8413; Fax 361-887-6207

COUNSEL FOR RELATOR IN THE TRIAL         Daniel F. Shank
COURT                                    State Bar No. 18090400
                                         Jerry Young
                                         State Bar No. 00785301
                                         COATS | ROSE
                                         3 Greenway Plaza, Suite 2000
                                         Houston, Texas 77046
                                         Tele. 713-651-0111; Fax 713-651-0220

RESPONDENT                               HON. MIGDALIA LOPEZ, 197TH DISTRICT
                                         COURT, CAMERON COUNTY, TEXAS

REAL PARTIES IN INTEREST                 TONY MARTINEZ AND LAW OFFICE OF TONY
                                         MARTINEZ, P.C.

COUNSEL FOR REAL PARTIES IN              Randolph Kimble Whittington
INTEREST IN THE COURT OF APPEALS         ATTORNEY AT LAW
AND IN THE TRIAL COURT                   State Bar No. 21404500
                                         2014 East Harrison Street
                                         Harlingen, Texas 78550
                                         Tele. 956-423-7200; Fax 956-423-7999




                                         ii
                                              TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL...................................................................ii

TABLE OF CONTENTS ...................................................................................................iii

INDEX OF AUTHORITIES ............................................................................................... v

STATEMENT OF THE CASE .........................................................................................vii

STATEMENT OF JURISDICTION ..................................................................................ix

ISSUES PRESENTED ....................................................................................................... .x

     I.       Martinez only lodged one objection to I&B’s motion to compel: that the dispute
              did not fall within the scope of the parties’ Arbitration Agreement. But a
              multitude of contracts between I&B, Martinez, and nationwide referring co-
              counsel in Fen Phen cases were incorporated into the Arbitration Agreement,
              and Martinez filed a declaratory judgment action seeking interpretation of those
              contracts. In addition all the contracts must be read together as one, such that no
              provision is rendered superfluous or an absurd result reached. Did the trial court
              abuse its discretion by finding the arbitration agreement executed by the parties
              does not govern this dispute?
     II.      Tony Martinez signed the Arbitration Agreement and thus he is bound as a
              signatory; his law firm Martinez, PC is bound as a non-signatory; to the extent
              the trial court thought signatories were an issue, the court abused its discretion
              by refusing to grant the motion to compel (the court of appeals did not reach the
              issue) (unbriefed).
STATEMENT OF FACTS.................................................................................................. 1

I.         Nationwide Co-Counsel Agreements To Handle Fen-Phen Cases............................. 1

II. Martinez Participates In Fen-Phen Litigation “Resulting In Common Benefits
     To” Claimants Covered By The Co-Counsel Agreements....................................... 3

III. Martinez And Irwin & Boesen Execute An Arbitration Agreement........................... 3

IV. Martinez Is Awarded A Common Benefit Fee, Refuses To Share, And Files
     A Dec Action............................................................................................................ 4

V. I&B's Motion To Compel Arbitration is Denied Without an Evidentiary
     Hearing ..................................................................................................................... 6

SUMMARY OF THE ARGUMENT.................................................................................. 7



                                                                iii
ARGUMENT....................................................................................................................... 8

I.    Standard of Review ...................................................................................................... 8

II. The Dispute Falls Within The Scope Of The Parties’ Arbitration Agreement ......... 11

CONCLUSION ................................................................................................................ 15

PRAYER ........................................................................................................................... 15

CERTIFICATE OF SERVICE.......................................................................................... 16

APPENDIX ....................................................................................................................... 17

          A.        Trial Court Order Denying Motion to Compel Arbitration

          B.        Court of Appeals Opinion

          C.        Arbitration Agreement

          D.        Plaintiffs' First Amended Original Petition -- Exhibits at Record 2,
                    including:

               • Irwin & Boesen/Thurlow Co-Counsel Agreement (pp. 234-235)
               • EER/Thurlow Agreement Among Counsel (p. 115)
               • Martinez/Thurlow Contract, "Agreement Regarding Fen Phen Cases" (pp.
                 162-167)
               • Irwin & Boesen/Martinez Co-Counsel Agreement Regarding Fen Phen
                 Cases (pp. 168-169)
               • Irwin & Boesen/ Tony Martinez/ Euler/Vannier/Pearson/Claveran/Ash lead
                 attorney agreements (pp. 118-156)


VERIFICATION ............................................................................................................... 18




                                                                 iv
                                            INDEX OF AUTHORITIES
CASES

Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)............................................ix

Austin v. Truly, 721 S.W.2d 913
   (Tex. App.–Beaumont 1986), aff’d 744 S.W.2d 934 (Tex. 1988) .............................. 14

Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc.,
  252 F.3d 707 (4th Cir. 2001) ....................................................................................... 10

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..................................................... 10

Fort Worth Indep. Sch. Dist. v. City of Fort Worth,
   22 S.W.3d 831 (Tex. 2000) ......................................................................................... 10

Illinois Tool Works, Inc. v. Harris, 194 S.W.3d 529
    (Tex. App.--Houston [14th Dist.] 2006, no pet.) ............................................. 10, 11, 12

In re D. Wilson Constr. Co., 196 S.W.3d 774
    (Tex. 2006) (orig. proceeding)....................................................................................... 9

In re FirstMerit Bank, N.A., 52 S.W.3d 749
    (Tex. 2001) (orig. proceeding)................................................................ix, 9, 11, 13, 15

In re Irwin & Boesen, 2009 Tex. App. LEXIS 3920
    (Tex.App.--Corpus Christi-Edinburg June 2, 2009, orig. proceeding)..........viii, ix, x, 1

In re L & L Kempwood Assocs., L.L.P. v. Omega Builders, Inc.,
    9 S.W.3d 125 (Tex. 1999) (orig. proceeding) (per curiam)........................................... x

In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185
    (Tex. 2007) (orig. proceeding)......................................................................................ix

In re Next Fin’l Group, Inc., 271 S.W.3d 263
    (Tex. 2008) (orig. proceeding)..........................................................................ix, 10, 14

In re Valle Redondo, 47 S.W.3d 655
    (Tex.App.—Corpus Christi 2001, orig. proceeding)............................................. 11, 15

In re Weekley Homes, L.P., 180 S.W.3d 127
    (Tex. 2005) (orig. proceeding)..................................................................................... 11

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


                                                                 v
Milberg Factors, Inc. v. Hurwitz-Nordlicht J.V., 676 S.W.2d 613
   (Tex. App.–Austin 1984, writ ref'd n.r.e.) ................................................................... 14

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
  460 U.S. 1 (1983)........................................................................................................... 9

Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896
   (Tex. 1995) (orig. proceeding)....................................................................................... 9

Southern County Mut. Ins. v. Surety Bank, N.A.,
   270 S.W.3d 684 (Tex.App.—Fort Worth 2008, no pet.)............................................. 10

Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ.,
   489 U.S. 468 (1989)..................................................................................................... 10

RULES

TEX. CIV. STAT. art. 6132b-4.01(b) .................................................................................. 14

9 U.S.C. § 2 (2006)............................................................................................................ 10

9 U.S.C.A. § 1 et seq. (2006).............................................................................................vii




                                                               vi
                                     No. 09-______

                  IN THE SUPREME COURT OF TEXAS

                                In re Irwin & Boesen, P.C.,

                                                    Relator


                 Original Proceeding from the Thirteenth Court of Appeals,
                             Corpus Christi-Edinburg, Texas,
                  And the 197th District Court of Cameron County, Texas
                         {The Honorable Migdalia Lopez Presiding}


                          PETITION FOR WRIT OF MANDAMUS


TO THE HONORABLE SUPREME COURT OF TEXAS:

          Comes Now Relator Irwin & Boesen, P.C. (“I&B”) and files its Petition for Writ

of Mandamus, seeking to have arbitration compelled pursuant to the parties’ Agreement:

                                     STATEMENT OF THE CASE

          The trial court improvidently denied I&B’s motion to compel arbitration under the

Federal Arbitration Act,1 and the Thirteenth Court of Appeals erroneously upheld that

decision (App. A, B). The Arbitration Agreement at issue was executed by and between

Cameron County lawyer Tony Martinez and his law firm (collectively, “Martinez”) and

Colorado law firm I&B (App. C). The agreement incorporated a series of co-counsel

1
    9 U.S.C.A. § 1 et seq. (2006).


                                              vii
agreements in “Fen-Phen” personal injury cases around the country (Record 2 exhibits2,

Record 3-7). In 2007 Martinez was awarded a fee in the Fen Phen litigation that co-

counsel demanded but Martinez refused to share (Record 2 at 170-175). Martinez filed a

Declaratory Judgment Action in the 197th District Court of Cameron County, Hon.

Migdalia Lopez presiding, seeking determinations that (1) the attorney contracts did not

create a joint venture or partnership, and (2) the attorney contracts did not require

Martinez to share the fee (App. D). I&B filed a Motion to Compel Arbitration under the

FAA and the TAA (Record 8, 9). Martinez asserted only that the dispute did not fall

within the scope of the Arbitration Agreement (Record 10). Following a non-evidentiary

hearing (Record 1), I&B’s motion to compel was improvidently denied on November 21,

2008 (App. A). I&B filed a notice of appeal on December 9, 2008 and a petition for writ

of mandamus and appellant’s brief on January 12, 2009. There is no trial date in the case.

Parties in the court of appeals    Relator and Appellant: Irwin & Boesen, P.C.
                                   Real Parties in Interest and Appellees: Tony Martinez
                                   and Law Office of Tony Martinez, P.C.
Court of Appeals District          Thirteenth Court of Appeals, Corpus Christi-Edinburg,
                                   Texas
Court of Appeals Justices          Hon. Rogelio Valdez, C.J. (author), Linda Reyna Yañez,
                                   and Gina Benavides, J.J.
Citation   for   Court        of In re Irwin & Boesen, P.C., 2009 Tex. App. LEXIS 3920
Appeals’ opinion                 (Tex.App.—Corpus Christi-Edinburg June 2, 2009)
                                 (orig. proceeding) (App. B)
Court of Appeals disposition       Petition for writ of mandamus under Federal Arbitration
                                   Act denied; appeal under Texas Arbitration Act
                                   dismissed for want of jurisdiction.

2
 Appendix D and Record 2 are both Martinez’s First Amended Petition; Record 2 includes the
extensive exhibits attached to the Petition. References to the allegations in the Petition will be
made to Appendix D; references to the exhibits attached will be made to Record 2.


                                               viii
                                 STATEMENT OF JURISDICTION

       This Court has jurisdiction to issue writ of mandamus and compel the trial court to

order the parties to arbitration under the Federal Arbitration Act (“FAA”). In re Next

Fin’l Group, Inc., 271 S.W.3d 263, 266 (Tex. 2008) (orig. proceeding); In re Merrill

Lynch Trust Co., 235 S.W.3d 185, 188 (Tex. 2007) (orig. proceeding).

       The FAA applies to "[a] written provision in . . . a contract evidencing a

transaction involving commerce to settle by arbitration a controversy thereafter arising

out of such contract or transaction . . . ." In re Next Fin’l Group, 271 S.W.3d at 266

(quoting 9 U.S.C. § 2 (2006)). The FAA applies to all contracts “relating to” interstate

commerce.     In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) (orig.

proceeding). “[I]f the transaction affects interstate commerce ‘in fact,’ the arbitration

provision is governed by the FAA.” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.

265, 281 (1995)).

       Martinez does not dispute this Arbitration Agreement and the many contracts

incorporated within it relate to and affect, “in fact,” interstate commerce; indeed Martinez

acquiesced to the application of the FAA in the court of appeals. In re Irwin & Boesen,

2009 Tex. App. LEXIS 3920, * 5 (App. B). The Thirteenth Court properly determined

that the FAA applied, given I&B is a Colorado law firm, the Martinez parties are

residents of Cameron County, Texas, and the Fen Phen contracts incorporated into the

Arbitration Agreement were executed between attorneys around the country. Id. at **4-

5. And, the controversy derives from fees and expenses associated with the Fen Phen

MDL proceeding in Pennsylvania. Id. The FAA indisputably applies. FirstMerit Bank,


                                             ix
52 S.W.3d at 754 (loan contract between Ohio and Texas residents necessarily involved

interstate commerce); In re L & L Kempwood Assocs., L.L.P. v. Omega Builders, Inc., 9

S.W.3d 125, 127 (Tex. 1999) (orig. proceeding) (per curiam) (contract between parties

residing in different states and involving work to be performed in a third state involved

interstate commerce).

       The court of appeals was also correct that an original proceeding is the proper

vehicle for review of the trial court’s erroneous denial of I&B’s Motion to Compel

Arbitration under the FAA. In re Irwin & Boesen, 2009 Tex. App. LEXIS 3920, * 6.

However, the court of appeals improvidently denied I&B’s motion to compel arbitration,

thus placing jurisdiction over this dispute in this Court.

                                    ISSUES PRESENTED

 I.      Martinez only lodged one objection to I&B’s motion to compel: that the dispute
         did not fall within the scope of the parties’ Arbitration Agreement. But a
         multitude of contracts between I&B, Martinez, and nationwide referring co-
         counsel in Fen Phen cases were incorporated into the Arbitration Agreement,
         and Martinez filed a declaratory judgment action seeking interpretation of those
         contracts. In addition all the contracts must be read together as one, such that no
         provision is rendered superfluous or an absurd result reached. Did the trial court
         abuse its discretion by finding the arbitration agreement executed by the parties
         does not govern this dispute?
 II.     Tony Martinez signed the Arbitration Agreement and thus he is bound as a
         signatory; his law firm Martinez, PC is bound as a non-signatory; to the extent
         the trial court thought signatories were an issue, the court abused its discretion
         by refusing to grant the motion to compel (the court of appeals did not reach the
         issue) (unbriefed).




                                              x
                                STATEMENT OF FACTS3

I.     Nationwide Co-Counsel Agreements to Handle Fen-Phen Cases

       In April 2002, I&B entered into a Co-Counsel Agreement with non-party Thurlow

& Associates, P.C. to secure and represent Fen Phen claimants (Record 2 at 234-35). The

firms agreed to share attorneys fees and expenses (id.). Thurlow and I&B as lead co-

counsel entered into agreements with referring co-counsel in Iowa, Nebraska, California

and Oklahoma, dividing responsibilities and sharing fees and expenses (Record 2 at 115,

Record 3-6).

       Meanwhile thousands of Fen-Phen cases had been filed nationwide, prompting the

creation of a Multi-District Litigation construct in federal court in Pennsylvania (App. D

at 99-100). In 2002 a nationwide class settlement was negotiated, creating a “Matrix”

class that would be handled through class action settlement and an “Opt Out” class for

cases to be handled individually (App. D at 100).

       In November 2002, I&B and Thurlow executed an Amended Co-Counsel

Agreement, specifically including “Matrix” and “Opt Out” cases in all states, and noting

a fee-sharing arrangement had been entered with lawyer Tony Martinez (Record 7).

Sharing of fees and expenses were addressed pursuant to this “joint venture” (id. at p. 2).

       In July 2003, Tony Martinez and The Law Office of Tony Martinez, P.C. signed

an “Agreement Regarding Fen Phen Cases” with Thurlow under which Thurlow assigned

its interest and control in the Fen Phen cases to Martinez, PC (Record 2 at 162-67). Opt-


3
  The court of appeals properly stated the undisputed facts of the case in the “Background”
section of its opinion. In re Irwin & Boesen, 2009 Tex. App. LEXIS 3920, **1-4.


                                             1
out clients in certain states were excluded but their expenses were addressed (id. at p. 2).

All other Matrix and Opt-Out cases were included, with a fee-sharing arrangement

outlined (id. at p. 3). Martinez agreed to pay the Thurlow Group $150,000 for the

assignment, and to assume and indemnify Thurlow’s $1,624,180 outstanding debt to

medical providers (id.).

       On the same day and later, I&B and Martinez executed an “Agreement Regarding

Fen Phen Cases” under which I&B would reimburse Martinez half of both the $150,000

and the $1.6 million he agreed to pay Thurlow (Record 2 at 168-69). In exchange, the

lawyers and firms agreed to enter into a “standard co-counsel agreement” (id.). Martinez

assumed the lead counsel role and fees were to be divided equally in all cases, “Matrix”

or “Opt-out” (id.). The Agreement states,

       all amounts received by either Martinez or [Irwin & Boesen] in connection with
       the assigned cases, either “Matrix” or “Opt-Out,” after deducting all amounts due
       to referring attorneys and class counsel, shall be divided equally between Martinez
       and [Irwin & Boesen], regardless of the percentages in which such fees are
       received by each party.

(id.). In early 2004, I&B and Martinez signed “Agreements to Associate Fen Phen

Cases” with the referring co-counsel in Kansas, Iowa, Nebraska, California, and

Oklahoma, through which they associated additional counsel to handle Opt-out claims

(Record 2 at 118-156). Each contract expressly addressed fee sharing and payment of

expenses (id., all contracts at pp. 3-4). All attorneys fees were to be “collected and

processed through the Law Offices of Tony Martinez.” (id., all contracts at p. 4)




                                             2
II.    Martinez Participates in Fen-Phen Litigation “Resulting in Common Benefits
       to” Claimants Covered by the Co-Counsel Agreements

       Difficulties arose in the National Class Action Settlement, prompting a Seventh

Amendment to the Settlement (App. D at 103). In August 2004, Martinez, as lead

counsel on the aforementioned cases -- the fourth-largest block of Fen Phen cases in the

country [Record 1:38; see, Record 2 at p. 173) -- was appointed to serve on a Seventh

Amendment Liaison Committee (“SALC”) (App. D at 103). Martinez stated in his trial

court petition the SALC was a small group of attorneys who represented persons with

Category 1 and 2 Matrix Claims and who negotiated with class counsel and Wyeth for

supplemental settlement funds and an improved screening process (App. D at 103).

Martinez alleged he worked on the SALC from February 2004 through June 2005,

devoting time and more than $50,000 in out-of-pocket expenses to “duties and

responsibilities” in the SALC negotiation, approval and implementation process (id. at

104). Martinez admitted this benefited Matrix Category 1 and 2 clients: they received

“substantial additional settlement funds” (id.). Many of those clients were undisputedly

I&B/Martinez clients.

III.   Martinez and I&B Execute an Arbitration Agreement

       In May, 2006, Martinez and I&B signed the following Agreement:

                                         Agreement
       This is an agreement between Irwin & Boesen and Martinez, Barrera y Martinez:
       With regard to division and distribution of Fen-Phen litigation attorneys’ fees earned by
       the initiating and trial counsel, it is agreed that such fees will be determined and
       distributed according to the applicable contracts between the parties and neither Irwin &
       Boesen, P.C. or Martinez, Barrera y Martinez will do anything to stop or delay
       distribution of attorneys’ fees to the appropriate parties. Irwin & Boesen, P.C. and
       Martinez, Barrera y Martinez agree to divide and distribute all attorneys’ fees earned in


                                               3
       the Fen-Phen litigation, and for which they are entitled, according to the applicable
       contracts between the parties and neither shall withhold or cause delay in the distribution
       or payment of attorneys’ fees to the other.
       With regard to division of expenses regarding the Fen-Phen litigation it is agreed that the
       two parties will negotiate in good faith to resolve their differences. If such efforts fail
       then it is agreed that the matter will be submitted to mediation with a mutually agreed
       mediator or, if unable to agree then a mediator chosen by a disinterested third party.
       If such effort does not produce a resolution then the parties will submit their case to
       binding arbitration with arbitrators to be agreed upon or, if unable to do so each party
       chooses one and the arbitration service utilized will pick one of its own choosing.
       Sworn and agreed to:

       _____/s/___________________                          ___/s/____________
       Tony Martinez                                        Jon Boesen
       Martinez, Barrera y Martinez, LLP                    Irwin & Boesen, P.C.

(App. C) (emphasis added). This was the first and only contract in the long history of co-

counsel agreements in which the parties contemplated stoppage or delays in payment of

attorneys fees, or differences regarding expenses. This was also the first and only writing

to include an arbitration clause.

IV.    Martinez is Awarded a Common Benefit Fee from the SALC, Refuses to
       Share, and Files a Dec Action

       In the summer of 2007, Martinez was awarded $1.7 million in attorneys fees for

acting as lead counsel on the Matrix cases resolved by the Seventh Amendment (Record

1:40). Martinez recognizes the fee is called a “Common Benefit Fee” and asserts he was

“entitled” to it for his contribution of time and expenses on behalf of the Fen Phen clients

(App. D at 104).

       I&B and Martinez made no distinction in their contracts as to the source of the

fees they agreed “shall be divided equally.”            The fees derived from Martinez’s

negotiation of the clients’ claims in the SALC constituted, under their contracts, “all



                                                4
amounts received” “in connection with the [Fen-Phen] cases, either Matrix or Opt-Out.”

(Record 2 at 168-69) Initially, the various referring co-counsel of Martinez and I&B

wrongfully accused I&B of withholding the fee as well, suggesting that I&B, as

Martinez’s partner and co-lead-counsel in the Fen Phen cases, was complicit in

Martinez’s actions (Record 2 at 170-175). In early October 2007, these referring co-

counsel demanded their share of the fee from Martinez and I&B, citing their contracts

(id.). I&B of course was not withholding any fee, which became clear when Martinez

and Martinez, PC filed a Declaratory Judgment Action in Cameron County on October 8,

2007, naming I&B and these referring co-counsel as defendants in the case (App. D).

The referring co-counsel have all reached settlement agreements with Martinez and are

no longer parties to the suit.

       In the Dec Action, the Martinez parties admitted they were “persons interested in”

all the above Co-Counsel Agreements, “whose rights, status, or other legal relations are

affected by said agreements.” (App. D at 107) “Entering into said contracts and business

relationships constitute purposeful contacts, and the claims and subject matter of this suit

relate to and arise directly from those contracts and relationships.” (Id. at 98) Martinez

sought “to have the provisions of such agreements construed and to obtain a declaration

of the rights of Plaintiffs and the Defendants and Additional Parties, as the parties to such

agreements, specifically:”

       (i) neither the Referral Agreements, Modified Referral Agreements, Co-Counsel
       Agreement, Thurlow-Martinez Agreement and Irwin & Boesen-Martinez
       Agreement, nor any of them alone or in combination, create a joint venture or
       partnership relationship between the Defendants or the Additional Parties, or any
       of them, and Plaintiffs, or either of them;


                                             5
       (ii) the attorney’s fees to be divided between the parties to the [same]
       Agreement[s] do not include any SALC Common Benefit Fee which may have
       been earned by and which may be awarded to Plaintiff Martinez and/or Plaintiff
       Martinez, P.C.; and
       (iii) none of the Defendants or Additional Parties are entitled under any provision
       of the [same] Agreement[s] to receive or share in any portion of any SALC
       Common Benefit Fee which may have been earned by and which may be awarded
       to Plaintiff Martinez and/or Plaintiff Martinez, P.C.
(App. D at 107-108) (emphasis added). Martinez continued,

       During the period since the filing of this action, Defendant Irwin & Boesen, P.C.
       has filed a demand for arbitration against Plaintiffs with the American Arbitration
       Association in Denver, Colorado. In their demand for arbitration, nominally
       described as a dispute over expenses, Defendant Irwin & Boesen allege claims for
       attorney’s fees arising out of facts and contractual agreements identical to those
       alleged in this action and relating to which Plaintiffs seek a declaratory judgment.

(App. D at 109) (emphasis added).

V.     I&B’s Motion to Compel was Denied Without an Evidentiary Hearing

       I&B filed a Motion to Compel Arbitration under the FAA and the TAA (Record 8,

9). The Martinez parties responded, in writing, only that the Arbitration Agreement

covered Opt-out cases and not Matrix cases they say were the only cases benefited by the

SALC work (Record 10 at 298-302). No FAA defenses were lodged (id.). At the

November 2008 hearing, Martinez conceded a valid Arbitration Agreement existed, but

argued this dispute was not within its scope (Record 1:33, 62-63, 67). Martinez added an

oral argument that the Arbitration Agreement only covered disputes about expenses.

       Both parties had attached affidavits to their filings, and each lodged objections to

the other’s (Record 1:27-29 and Exhibits attached). I&B argued that if the court accepted

the late-filed Martinez affidavit, then it must accept the six affidavits attached to the I&B




                                             6
Trial Brief (Record 1:27-28). I&B repeatedly requested to put on live witnesses (id. at

28, 48, 67, 69).

       Predominantly at the urging of Martinez’s counsel (Record 1:42, 48, 70), the trial

court declined to “hear any witnesses” or to admit the affidavits attached to I&B’s Trial

Brief (id. at 69, 71). In its Order the court stated it made its decision based solely on the

pleadings and the arguments of counsel (App. A). Inexplicably, the trial court denied

I&B’s Motion to Compel (id.).

                          SUMMARY OF THE ARGUMENT

       There is no dispute an enforceable FAA Arbitration Agreement exists, and the

Martinez parties do not assert the Agreement is not binding upon them.             No FAA

defenses were lodged.      Thus, the only question is whether the Agreement covers

Martinez’s trial court claims.

       Martinez’ only written objection – that the Agreement only covers Opt-out claims

and the dispute was about Matrix claims – has no basis. The Agreement is not so limited,

and the incorporated co-counsel agreements govern both types of claims. Martinez’s oral

objection that the Agreement only covers disputes about expenses and not disputes about

fees is without basis. Yet the court of appeals agreed with Martinez. The Arbitration

Agreement incorporated years of co-counsel agreements that already governed sharing of

fees and expenses. This was the first contract to contemplate delays, stoppages, or

differences, and the first contract to contain an arbitration clause. If the new Agreement

were read to simply re-state, yet again, that attorneys fees were to be shared, without

sending such a dispute to arbitration, then the entire first half of the new agreement was


                                             7
superfluous.    Language regarding delays and stoppages would have no purpose.

Contracts are not to be read to reach an absurd result. To find that, in the fourth-largest

block of Fen Phen cases in the country, disputes over expenses would be resolved

through arbitration but disputes about fees would be dragged through the court system

would be an absurd result indeed.

       Martinez also sought a declaration of the parties’ rights under the numerous

contracts incorporated into the Arbitration Agreement, including whether a partnership or

joint venture existed. A joint venture exists when, at a minimum, the parties agree to

share profits and losses. Since expenses dictate profits and losses, the assessment of

whether the parties are joint venturers fundamentally gives rise to differences about

sharing expenses. The joint venture dispute should have been compelled to arbitration.

       All doubts must be resolved in favor of arbitration. If the facts alleged in the trial

court petition have a “significant relationship to” or are “factually intertwined with” the

contract subject to arbitration, then the dispute falls within its scope. Martinez’s petition

falls squarely within the Agreement and the contracts incorporated within. The trial court

abused its discretion by refusing to compel all claims (or at a minimum the joint venture

claim) to arbitration. This petition for writ of mandamus should be granted.

                                      ARGUMENT

I.     Standard of Review

       This Court has clearly stated the analysis to be applied in original proceedings

following the denial of a motion to compel arbitration under the FAA:




                                             8
      A party seeking to compel arbitration by mandamus must first establish the
      existence of an arbitration agreement subject to the FAA. Once the movant
      establishes an agreement, the court must then determine whether the arbitration
      agreement covers the nonmovant's claims. Because state and federal policies
      continue to favor arbitration, a presumption exists favoring agreements to arbitrate
      under the FAA, and courts must resolve any doubts about an arbitration
      agreement's scope in favor of arbitration.

FirstMerit Bank, 52 S.W.3d at 753 (citations omitted). If the agreement covers the

claims alleged, then the defenses of unconscionability, duress, fraudulent inducement, or

revocation must be proven to defeat the agreement.         Id. at 756.   The trial court’s

determination of the validity of an arbitration agreement is a legal question reviewed de

novo by this Court. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig.

proceeding); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).

      Given there is no dispute a valid FAA arbitration agreement exists, and no FAA

defenses lodged to the Agreement, the only issue is whether the dispute falls within the

scope of the Agreement. The lower courts incorrectly found to the contrary.

      Federal policy favors arbitration; determining whether a dispute falls within the

scope of an arbitration agreement is analyzed accordingly. In re FirstMerit Bank, 52

S.W.3d at 753. “The policy in favor of enforcing arbitration agreements is so compelling

that a court should not deny arbitration unless it can be said with positive assurance that

an arbitration clause is not susceptible of an interpretation which would cover the dispute

in issue.” Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) (orig.

proceeding).

      The presumption in favor of arbitration attaches to the construction of the contract

language. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25


                                            9
(1983). Ambiguities with respect to the scope of the arbitration provision must be

resolved in favor of arbitration. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland

Stanford Junior Univ., 489 U.S. 468, 476 (1989). Any alleged exception to an arbitration

agreement is to be read narrowly, not broadly interpreted, “lest [the exception]

overwhelm the rule.” In re Next Fin’l Group, 271 S.W.3d at 267 (quoting Choice Hotels

Int’l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 711 (4th Cir. 2001)). “Under the

FAA's plain language, an arbitrable dispute can arise out of either the contract containing

the arbitration clause or a transaction evidenced by the contract.” In re Next Fin’l Group,

271 S.W.3d at 266 (citing 9 U.S.C. §2).

       When construing a contract, the court must determine the true intent of the parties

as expressed in the document. In re Next Fin’l Group, 271 S.W.3d at 269. But critical

here, the courts “will not adopt a construction that would lead to absurd results, render

parts of the contract superfluous, and ignore the parties' intent.” Illinois Tool Works, Inc.

v. Harris, 194 S.W.3d 529, 533 (Tex. App.--Houston [14th Dist.] 2006, no pet.); accord,

Southern County Mut. Ins. v. Surety Bank, N.A., 270 S.W.3d 684, 689 (Tex.App.—Fort

Worth 2008, no pet.) (“We will not construe contracts to produce an absurd result when a

reasonable alternative construction exists.”).

       Writings executed at different times must be considered together when they

pertain to the same transaction. City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex.

2005); Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.

2000). When “multiple agreements are executed together as part of the same transaction,

[this Court] construe[s] them in reference to one another because they are one contract.”


                                             10
Illinois Tool Works, 194 S.W.3d at 533. In FirstMerit Bank, involving a loan agreement

that included an arbitration clause, the loan agreement incorporated by reference the

underlying installment contract and all other loan documents. Id., 52 S.W.3d at 755. This

Court held that by incorporating those contracts, disputes arising under them – such as

the post-sale condition of the home and needed repairs – were encompassed within the

arbitration agreement. The agreement to arbitrate was not limited to disputes about

financing. Id.

       Finally, the Court is to review the factual allegations in the plaintiff’s petition to

ascertain whether they fall under the scope of the Arbitration Agreement, applying the

appropriate presumptions, and resolving all doubts, in favor of arbitration. FirstMerit

Bank, 52 S.W.3d at 754. Arbitrability of the claim is to be reviewed by looking at the

substance of the claim, not artful pleading. In re Weekley Homes, L.P., 180 S.W.3d 127,

132 (Tex. 2005) (orig. proceeding). As the appellate court below held in a different case,

“Generally, if the facts alleged ‘touch matters,’ have a ‘significant relationship’ to, are

‘inextricably enmeshed’ with, or are ‘factually intertwined’ with the contract that is

subject to the arbitration agreement, the claim will be arbitrable.” In re Valle Redondo,

47 S.W.3d 655, 662 (Tex.App.-Corpus Christi 2001, orig. proceeding). “If the facts

alleged in support of the claim stand alone, are completely independent of the contract,

and the claim could be maintained without reference to the contract, the claim is not

subject to arbitration.” Id. The court did not follow its prior holdings in this case.

II.    This Dispute Falls Within the Scope of the Parties’ Arbitration Agreement

       The Arbitration Agreement indisputably covers all cases, Matrix and Opt-Out, and


                                             11
thus Martinez’ only pleaded objection to the motion to compel had no basis (Record 10).

The Agreement nowhere limits its application, and the contracts incorporated into the

Agreement expressly govern Matrix and Opt-out cases (App. C; Record 2 exhibits,

Record 7). There was no basis on which to read the Arbitration Agreement in the limited

manner Martinez suggested. To the extent the trial court did so, it reached an absurd

result and failed to read all of the contracts together as required. Illinois Tool Works, 194

S.W.3d at 533. The court of appeals did not address the issue.

       Martinez’s oral assertion that the Arbitration Agreement applied to disputes over

expenses, and not disputes over fees, is baseless (Record 1:33, 58-59, 62-63). First, if the

parties were only agreeing in their new contract to submit disputes about expenses to

arbitration, there was no reason to include the attorneys fees language in the document:

the division of attorneys fees had already been addressed many times in the multitude of

Co-Counsel Agreements (Record 2 exhibits, Record 3-7). It cannot reasonably be stated

that these parties, who had co-counseled and joint ventured for years on this nationwide

block of Fen Phen cases, would execute yet another contract that simply stated “fees will

be paid without delay,” without more. They already contracted several times to do so.

       The new contract states, “[N]either [party] will do anything to stop or delay

distribution of attorneys’ fees to the appropriate parties. . . and neither shall withhold or

cause delay in the distribution or payment of attorneys’ fees to the other.” (App. C) It

would have served no purpose to include language that attorneys fees would be paid

without delay unless the parties contemplated a delay would occur and agreed as to how

that delay would be handled. Indeed, the balance of the new contract shows the parties


                                             12
likewise anticipated a dispute regarding the division of expenses; expense division had

also already been treated in the Co-Counsel Agreements (App. C, Record 2 exhibits,

Record 3-7). Having contemplated a delay in both the distribution of fees and the

division of expenses under the earlier contracts, the parties designated arbitration as the

most expeditious means by which to resolve those disputes in their latest agreement.

Such delays had not before been contemplated, and arbitration had not before been

identified as a means of dispute resolution. Martinez’s petition raises a dispute that

delays attorneys fee distribution; the new Agreement was triggered. To say the new

contract does not contain provisions that permit I&B to prevent the delay and quickly

resolve the dispute ignores critical portions of the contract.

       If arbitration does not apply to disputes about fees, then one-half of the arbitration

agreement -- the entire first section -- is rendered superfluous, meaningless and without

purpose. Such a result defies the laws applicable to contract construction. Reading all

the co-counsel agreements together, it would be an absurd result to find the lawyers who

amassed a nationwide block of Fen Phen cases would agree to submit disputes about

expenses to arbitration, but would litigate to judgment disputes about fees.

       In addition, given the Arbitration Agreement incorporates the myriad contracts

between the parties dictating their responsibilities for handling Fen Phen cases and how

fees and expenses will be shared accordingly (App. C), disputes arising from those

underlying agreements are incorporated into, and are covered by, the arbitration

agreement. FirstMerit Bank, 52 S.W.3d at 755. They are one contract.




                                              13
       Further, the Agreement contemplates the “case” will be submitted to arbitration,

not just a limited dispute (App. C). The Agreement should be read broadly with all

doubts resolved in favor of arbitration. In re Next Finc’l Group, 271 S.W.3d at 267.

       Finally, if the Agreement does only cover disputes about expenses, then

Martinez’s request for a declaration that the co-counsel agreements incorporated in the

Agreement did not create a joint venture or partnership relationship is arbitrable.

Fundamental to a dispute about whether parties are joint venturers is a dispute about

whether parties agreed to share profits and losses, that is, expenses. Milberg Factors,

Inc. v. Hurwitz-Nordlicht J.V., 676 S.W.2d 613, 616 (Tex. App.–Austin 1984, writ ref’d

n.r.e.) (listing the four elements of a joint venture: a community of interest, an agreement

to share profits, an agreement to share losses, and a mutual right of control). “The well

settled rule of law is that, by agreeing to a joint venture . . . [the joint venturers] agree[] to

become liable for the debts incurred in the scope of the joint venture as a matter of law.”

Austin v. Truly, 721 S.W.2d 913, 920 (Tex. App.–Beaumont 1986), aff’d 744 S.W.2d 934

(Tex. 1988); see also, TEX. CIV. STAT. art. 6132b-4.01(b) (“Each partner is entitled to be

credited with an equal share of the partnership’s profits and is chargeable with a share of

the partnership’s losses . . . in proportion to the partner’s share of the profits.”)

       Accordingly, joint-venturers share expenses. Any question about whether the

parties are joint venturers is necessarily a dispute about whether each side is obligated to

pay expenses. When all presumptions and resolutions are made, as required, in favor of

arbitration, this claim for declaratory relief is covered by the Arbitration Agreement. At a

minimum, the trial court was required to order the joint venture claim to arbitration and


                                               14
stay the case.

       In sum, the facts alleged by Martinez, casting aside artful pleading, “touch matters,

have a significant relationship to, are inextricably enmeshed with, and are factually

intertwined with the contract that is subject to the arbitration agreement.” In re Valle

Redondo, 47 S.W.3d at 662. The facts do not stand alone, they are not completely

independent of the contract, and Martinez’s request for declaratory relief cannot be

maintained without reference to the contract. Id. As such, his claims are arbitrable. Id.

The trial court abused its discretion, and the court of appeals failed to follow its own

precedent, when finding otherwise.

                                           CONCLUSION

       This dispute falls within the scope of the Arbitration Agreement executed by these

parties. To find otherwise is to render one-half of this new contract meaningless. After

years of contracting, the parties contemplated in this writing, for the first time, delays,

stoppages and differences in the payment of attorneys fees and expenses. They also

contemplated, for the first time, how to resolve those delays, stoppages and differences:

with arbitration.    The trial court had no discretion but to compel these parties to

arbitration and stay the proceedings. FirstMerit Bank, 52 S.W.3d at 754. The court of

appeals improvidently held otherwise.

                                          PRAYER

       WHEREFORE, Irwin & Boesen, P.C. prays the Court to grant its Petition and

direct the trial court to order the parties and all claims, or the joint venture claim, to

arbitration and to stay the case. Relator prays for all other relief to which it is entitled.


                                               15
                                   Respectfully submitted,

                                   ____________________________
                                   Audrey Mullert Vicknair
                                   State Bar No. 14650500
                                   THE LAW OFFICE OF AUDREY MULLERT VICKNAIR
                                   802 N. Carancahua Ste. 1350
                                   Corpus Christi, TX 78401-0165

                                   Daniel F. Shank
                                   State Bar No. 18090400
                                   Jerry Young
                                   State Bar No. 00785301
                                   COATS | ROSE
                                   3 Greenway Plaza, Suite 2000
                                   Houston, Texas 77046

                                   Attorneys for Relator Irwin & Boesen, P.C.




                                   CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Petition for Writ of
Mandamus was served via U.S. Mail, in accordance with the Texas Rules of Appellate
and Civil Procedure, on those named below, on this the ___ day of June, 2009.

Hon. Migdalia Lopez
Presiding Judge, 197th District Court
Cameron County, Texas
974 E. Harrison Street
Brownsville, Texas 78520
Respondent

Randolph Kimble Whittington
Attorney at Law
2014 East Harrison Street
Harlingen, Texas 78550
Attorney for Real Parties In Interest
                                                ___________________________
                                                Audrey Mullert Vicknair



                                           16
                      No. 09-______

      IN THE SUPREME COURT OF TEXAS

                  In re Irwin & Boesen, P.C.,

                                        Relator


     Original Proceeding from the Thirteenth Court of Appeals,
                 Corpus Christi-Edinburg, Texas,
      And the 197th District Court of Cameron County, Texas
             {The Honorable Migdalia Lopez Presiding}


     APPENDIX TO PETITION FOR WRIT OF MANDAMUS



A.   Order Denying Motion to Compel Arbitration

B.   Court of Appeals Opinion

C.   Arbitration Agreement

D.   Plaintiff's First Amended Original Petition (attachments at Record 2)




                                   17
                               No. 09-______

              IN THE SUPREME COURT OF TEXAS

                          In re Irwin & Boesen, P.C.,

                                                Relator


             Original Proceeding from the Thirteenth Court of Appeals,
                         Corpus Christi-Edinburg, Texas,
              And the 197th District Court of Cameron County, Texas
                     {The Honorable Migdalia Lopez Presiding}



      STATE OF TEXAS                §

      COUNTY OF NUECES §

                                        VERIFICATION

       Comes now Audrey Mullert Vicknair, attorney of record for Relator Irwin &
Boesen in the above cause, and upon her oath states that all factual statements contained
in Relator Irwin & Boesen’s Petition for Writ of Mandamus are supported by competent
evidence in the Appendix and in the Record, both cited in the Petition.

      Further affiant sayeth not.

                                         _________________________
                                         Audrey Mullert Vicknair

Signed and sworn before me, the undersigned Notary Public, on this the _____ day of
June, 2009.


                                         ________________________
                                         Notary, State of Texas


                                           18

				
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