Petition for Writ of Mandamus Denied and Opinion filed June 30, 2016.




                                    In The

                   Fourteenth Court of Appeals

                              NO. 14-16-00418-CV



                     IN RE COMERICA BANK, Relator


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                             190th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-55739

                       MEMORANDUM OPINION

      On or about July 19, 2000, Jimmie R. Gaidry opened an account with
Sterling Bank that in 2011 was merged into the relator Comerica Bank (Comerica).
In 2015, the real party-in-interest James Gaidry filed suit, individually and on
behalf of the estate of his now deceased mother, Jimme Gaidry, against Comerica
alleging that it negligently failed to prevent withdrawals from Jimmie Gaidry’s
bank account.

      On May 20, 2016, Comerica filed a petition for writ of mandamus in this
court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, Comerica asks this court to compel the Honorable Patricia J.
Kerrigan, presiding judge of the 190th District Court of Harris County, to vacate
the Order she signed on May 3, 2016 that compels: (1) Comerica to withdraw its
application to arbitrate the claim against it with the Judicial Arbitration and
Mediation Services, Inc. (JAMS), and (2) Comerica to arbitrate the claim against it
with the Financial Industry Regulatory Authority (FINRA) in a pending arbitration
matter between James Gaidry and TD Ameritrade. Comerica argues that both parts
of the Order constitute an abuse of discretion.

                            MANDAMUS STANDARD
      To obtain mandamus relief, a relator must show both that the trial court
clearly abused its discretion and that relator has no adequate remedy by appeal. In
re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

                                     ANALYSIS
      A. Comerica has not shown that the trial court abused its discretion by
         ordering it to withdraw its application to arbitrate with JAMS.
      First, Comerica argues that the trial court abused its discretion by ordering
Comerica to withdraw its application to arbitrate the claim against it with JAMS
because Jimmie and James Gaidry allegedly agreed to a “Business and Personal

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Deposit Account Contract” (the Contract), which states that it is effective on
March 1, 2013. The Contract requires the parties to arbitrate their disputes with
either JAMS or AAA. The arbitration provision in the Contract constitutes an
amendment because it does appear that any of the bank’s prior contracts with
depositors had an arbitration provision. James Gaidry argues that neither he nor
Jimmie agreed to this amendment.

      Parties may modify an agreement, but the new or modifying agreement must
possess the essential elements of a contract. Mandril v. Kasishke, 620 S.W.2d 238,
244 (Tex. Civ. App.—Amarillo 1981, writ ref’d n.r.e.). In particular, there must be
a meeting of the minds of the parties, and the terms of the original contract cannot
be unilaterally remade by one of the parties. Id. A party relying on a modification
has the burden proving that it was agreed to. Stowers v. Harper, 376 S.W.2d 34, 39
(Tex. Civ. App.—Tyler 1964, writ. ref'd n.r.e.).

      Section 34.302(a) of the Texas Finance Code provides that a bank and an
account holder may amend the deposit contract “by agreement or as permitted by
Subsection (b) or other law.” Tex. Fin. Code Ann. § 34.302(a) (West 2013).
Section 34.302(b) allows a bank to amend a deposit contract by mailing a written
notice of the amendment, including the text of the amendment and the effective
date, to the account holder. Id. § 34.302(b). These notice requirements must be
complied with for the amendment to be effective. See Calleja-Ahedo v. Compass
Bank, 01-15-00210-CV, 2016 WL 2342758, at *6 (Tex. App.—Houston [1st Dist.]
May 3, 2016, no. pet. h.).



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      We conclude that Comerica has not established that the trial court clearly
abused its discretion by ordering Comerica to withdraw its application to arbitrate
the claim against it with JAMS because the record contains no evidence that
Comerica mailed written notice of the amended Contract and its text to the Gaidrys
or that the Gaidrys by some other means agreed to the amended Contract with the
arbitration provision.



      B. Comerica has not shown that it lacks an adequate remedy by appeal
         for the trial court’s alleged error in compelling it to arbitrate with
         FINRA.
      Second, Comerica argues that the trial court abused its discretion by
ordering Comerica to arbitrate the claim against it in a pending arbitration matter
between James Gaidry and TD Ameritrade with FINRA because Comerica is not a
party to the arbitration agreement between the Gaidrys and TD Ameritrade that
requires arbitration with FIRA, and such arbitration agreement is not enforceable
against it under the doctrine of direct-benefits estoppel. Regardless of the merits of
these arguments, Comerica is not entitled to mandamus relief because it has not
shown that it lacks an adequate remedy by appeal for the trial court’s alleged error
of compelling it to arbitrate with FINRA. See In re Gulf Exploration, LLC, 289
S.W.3d 836, 842–43 (Tex. 2009) (orig. proceeding).

      Comerica cites Austin Commercial Contractors, L.P. v. Carter & Burgess,
Inc., 347 S.W.3d 897, 901 (Tex. App.—Dallas 2011, pet. denied) as support for its
argument that it lacks an adequate remedy by appeal. That decision does not apply

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because the record contains no evidence that the trial court denied relator any
contracted-for arbitration right, as the record did in Austin Commercial
Contractors, L.P. As discussed above, Comerica failed to prove that the amended
Contract that provides for arbitration with JAMS was agreed to by the Gaidrys.

                                 CONCLUSION
      Accordingly, we deny Comerica’s petition for writ of mandamus.


                                                  PER CURIAM


Panel consists of Justices Boyce, Christopher, and Jamison.




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