                                                                             ACCEPTED
                                                                        04-14-00889-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                  1/27/2015 12:12:08 PM
                                                                          KEITH HOTTLE
                                                                                 CLERK

                        IN THE
               FOURTH COURT OF APPEALS
                   AT SAN ANTONIO                        FILED IN
                                                  4th COURT OF APPEALS
                                                   SAN ANTONIO, TEXAS
                                                 01/27/2015 12:12:08 PM
                 CAUSE NO. 04-14-00889-CV
                                                    KEITH E. HOTTLE
                                                          Clerk

             ENDURA ADVISORY GROUP, LTD.,
                     APPELLANT
                           VS.
                  DOMINIC ALTOMARE,
                      APPELLEE


    INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780
IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
 MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE,
        SITTING IN THE 57TH JUDICIAL DISTRICT COURT


    APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, BRIEF


                          RICHIE & GUERINGER, P.C.
                          GAY GUERINGER
                          State Bar No. 08571400
                          DOUG K. CLEMONS
                          State Bar No. 24032083
                          112 East Pecan Street, Suite 1420
                          San Antonio, Texas 78205
                          Tel: 210-220-1080 / Fax: 210-220-1088
                          Email: ggueringer@rg-sanantonio.com
                          Email: dclemons@rg-sanantonio.com
                          ATTORNEYS FOR APPELLANT,
                          ENDURA ADVISORY GROUP, LTD.

          APPELLANT REQUESTS ORAL ARGUMENT
                               NO. 04-14-00889-CV
            ENDURA ADVISORY GROUP, LTD., APPELLANT
                                      VS.
                    DOMINIC ALTOMARE, APPELLEE

                         IDENTITY OF PARTIES


Party                                   Represented By:
Endura Advisory Group, Ltd.,            Gay Gueringer (SBN 08571400)
   Appellant/Intervenor                 Doug K. Clemons (SBN 24032083)
                                        Richie & Gueringer, P.C.
                                        112 East Pecan Street, Suite 1420
                                        San Antonio, Texas 78205
                                        Tel: 210-220-1080 / Fax: 210-220-1088
                                        Email: ggueringer@rg-sanantonio.com
                                        Email: dclemons@rg-sanantonio.com
Dominic Altomare,                        Eric A. Pullen (SBN 24007881)
   Appellee/Plaintiff                    Sarah A. Reyes (SBN 24088292)
                                         Pulman, Cappuccio, Pullen,
                                            Benson & Jones, LLP
                                         2161 N.W. Military Hwy, Suite 400
                                         San Antonio, Texas 78213
                                         Tel: 210-222-9494 / Fax: 210-892-1610
                                         Email: epullen@pulmanlaw.com
                                         Email: sreyes@pulmanlaw.com
Josh Reneau,                            Gay Gueringer (SBN 08571400)
    Defendant                           Doug K. Clemons (SBN 24032083)
                                        Richie & Gueringer, P.C.
                                        112 East Pecan Street, Suite 1420
                                        San Antonio, Texas 78205
                                        Tel: 210-220-1080 / Fax: 210-220-1088
                                        Email: ggueringer@rg-sanantonio.com
                                        Email: dclemons@rg-sanantonio.com




                                                                    Identity of Parties
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF JURISDICTION..........................................................................1
REQUEST FOR ORAL ARGUMENT ..................................................................... 1

APPELLANT’S ISSUES PRESENTED FOR REVIEW.......................................... 1
INTRODUCTION .....................................................................................................2

STATEMENT OF FACTS ........................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................ 8

   ARGUMENT AND AUTHORITIES .................................................................... 8
   Issue No. 1: The trial court erred by denying Endura’s Motion to Compel
   Alternative Dispute Resolution Process and Motion to Abate Proceeding
   Pending Completion of the Alternative Dispute Resolution Process and the
   Motion for Reconsideration of Denial of Its Motion to Compel Alternative
   Dispute Resolution Process and Motion to Abate Proceeding Pending
   Completion of the Alternative Dispute Resolution Process. .................................. 9

       A. Standard of Review .......................................................................................9
       B. The Pleadings and Evidence Presented Establish that the Parties’
          Dispute Arises from the Separation Agreement Therefore Triggering
          the Dispute Resolution Process ...................................................................10
       C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare .... 11

       D. The Claims Brought in the Lawsuit Fall Within the Separation
          Agreement Triggering the Alternative Dispute Resolution Process...........12

       E. Reneau is an Agent or Representative of Endura .......................................13
       F. Endura Intended for the Separation Agreement to include Reneau ........... 17
       G. The Separation Agreement..........................................................................19



Appellant’s Brief                                                                                              Page ii
   Issue No. 2: Altomare failed to present or prove a defense to the
   enforcement of the Dispute Resolution Policy. ....................................................22

CONCLUSION ........................................................................................................23

PRAYER ..................................................................................................................23

CERTIFICATE OF COMPLIANCE .......................................................................25

CERTIFICATE OF SERVICE ................................................................................25

APPENDIX ..............................................................................................................26




Appellant’s Brief                                                                                                   Page iii
                                       INDEX OF AUTHORITIES
CASES
Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445,
 450-51 (Tex. 2011) ...............................................................................................18
Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio 2005,
 orig. proceeding) ...................................................................................................10
Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st
 Dist.] 1996, no writ) .............................................................................................17

EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) ..................................10

Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet.
 denied) ..................................................................................................................10

Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San
 Antonio 2002, no pet.) ..........................................................................................14

In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th
  Dist.] 2003, orig. proceeding).........................................................................13, 21
In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) .......................13, 17

In re Medallion, Ltd., 70 S.W.3d 284, 287-288 (Tex. App. – San Antonio
  2002, orig. proceeding).............................................................................10, 11, 12

In re Olshan Found. Repair Co., 328 S.W.3d 883, 893 (Tex. 2010) ......................10
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d
  323, 333 (Tex. 2011) ............................................................................................17
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) ............11, 12, 22

Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194 (Tex.
  App. – Corpus Christi 1984, no writ) ...................................................................22

Lyons v. Lindsey Morden Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App.
  – El Paso 1998, no pet.) ........................................................................................23




Appellant’s Brief                                                                                                     Page iv
Neely v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus
 Christi 1987, no writ)......................................................................................14, 16

Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).........................................10

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) .........................................10

Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 443 S.W.3d 196, 202
 (Tex. App – Corpus Christi 2013, pet. filed)........................................................10
Sendjar v. Gonzales, 520 S.W.2d 478, 481 (Tex. Civ. App. – San Antonio
  1975, no writ) .......................................................................................................14
Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. –
  Texarkana 2002, pet denied) ................................................................................14

Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler
 2000, pet. withdrawn) .....................................................................................14, 22

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

TREATISES
3 TEX. JUR. 3D Agency §50 (1996) .......................................................................22




Appellant’s Brief                                                                                                   Page v
                            STATEMENT OF THE CASE

Nature of the Case:          This is a breach of contract case triggering an arbitration
                             provision.

Trial Court:                 The Honorable Judge Martha Tanner, Visiting Judge
                             sitting in the 57th Judicial District, Bexar County, Texas.

Trial Court Disposition: Denial of Motion to Compel Alternative Dispute
                         Resolution Process and Motion to Abate Proceeding
                         Pending Completion of the Alternative Dispute
                         Resolution Process and Denial of same on Motion for
                         Reconsideration. 1

                          STATEMENT OF JURISDICTION

         This Honorable Court has jurisdiction over this interlocutory appeal pursuant

to Section 171.098 of the Texas Civil Practice and Remedies Code. See TEX. CIV.

PRAC. REM. CODE § 171.098(a)(1).

                         REQUEST FOR ORAL ARGUMENT

         The Appellants, Endura Advisory Group, Ltd. (“Endura”), respectfully

requests oral argument. Oral discussion of the facts and the applicable precedent

would benefit the Court.

                    APPELLANT’S ISSUES PRESENTED FOR REVIEW

         The Trial Court erred in refusing to compel the alternative dispute resolution

process because: (1) the pleadings and evidence presented show the parties’


1
  For ease of reference in referring to the Reporter’s Record, the hearing conducted on October
27, 2014 will be referred to as the Oct. Reporter’s Record (“Oct. R.R.”) and the re-hearing
conducted on November 7, 2014 will be referred to as the Nov. Reporter’s Record (“Nov.
R.R.”).


Appellant’s Brief                                                                         Page 1
dispute arises out of the Separation Agreement which triggers the Dispute

Resolution Policy contained within the Separation Agreement and (2) Dominic

Altomare (“Altomare”) failed to present or prove a defense to the enforcement of

the Dispute Resolution Policy.

                                     INTRODUCTION

         1.         This is a suit for breach of contract triggering an agreement to

arbitrate. Endura and Altomare included an alternative dispute resolution process

as part of a bargained for, valid and enforceable contract governing the departure

of Altomare from Endura.            Altomare’s suit against Josh Reneau (“Reneau”)

requiring Endura’s Intervention in this case fall within those claims released in the

contract and trigger the alternative dispute resolution process. The trial court

refused to compel the alternative dispute resolution process and abate the

proceeding pending completion of the alternative dispute resolution process.

Endura asks this Court to reverse the trial court and remand to compel arbitration.

                                 STATEMENT OF FACTS

         2.         This case involves a dispute over real estate commissions and an

agreement to arbitrate addressed in a Separation Agreement (the “Separation

Agreement”). Endura Advisory Group, Ltd. (“Endura”) is seeking to compel

arbitration of Nick Altomare’s (“Altomare”) claims against Josh Reneau

(“Reneau”) and Endura’s claims against Altomare based on an arbitration



Appellant’s Brief                                                               Page 2
agreement contained within the Separation Agreement executed by Altomare

governing his departure from Endura and all claims released as a part of that

departure. There were two hearings in the trial court on Endura’s Motion to

Compel Arbitration. The first hearing occurred on October 27, 2014 and the re-

hearing occurred on November 7, 2014.

         3.         By way of background, Altomare is a real estate broker who was a

limited partner of Endura, a commercial real estate company. (C.R. Pg. 10). 2 In

August of 2013, Endura offered Altomare an opportunity to disassociate from

Endura under more beneficial terms than those required of Endura (in its Second

Amended and Restated Limited Partnership Agreement) in lieu of Endura

terminating his position as a limited partner and as an agent/independent

contractor. (C.R. Pg. 10). In order to avoid being terminated, Altomare elected to

“voluntarily” separate from Endura. (C.R. Pg. 10). On or about August 19, 2013,

Altomare executed the Separation Agreement relating to his dissociation from

Endura.         (Appendix, Confidential Exhibit 1, a true and correct copy of the

Separation Agreement. 3) As part of the Separation Agreement, Altomare released

Endura and a litany of others including its agents and representatives from all


2
  “C.R.” will denote the Clerk’s Record.
3
  Confidential Exhibit 1 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg. 31,
Line 6-Pg. 32, Line 1) but was withdrawn at the end of the hearing to preserve confidentiality
(Nov. R.R. Pg 45, Line 6-17). Pursuant to the Clerk’s instructions, a true and correct copy of
Confidential Exhibit 1 has been filed as part of a separate appendix.


Appellant’s Brief                                                                        Page 3
claims except certain commissions which might come due from those limited

specific transactions identified on an attached list (the “List”) to the Separation

Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 2,

paragraph 5 and attached List.) Pursuant to the terms of the Separation Agreement,

Altomare expressly represented in writing that the List encompassed all of the

pending transactions on which he was actively involved at the time of his

separation. (Appendix, Confidential Exhibit 1, Separation Agreement, pg. 2-3,

paragraph 6). If a claim for any commission was not included on the List, no

compensation would be due Altomare. But for the Separation Agreement Endura

had no obligation to pay Altomare commissions for closings occurring after he was

no longer associated with Endura.

         4.         Most importantly and at the heart of this appeal, Altomare agreed, by

way of the Separation Agreement, that a dispute between Altomare and Endura

(the Partnership), related to his association with Endura or the Separation

Agreement, which specifically include claims released as against Endura’s agents

and representatives, 4 would be resolved through the Dispute Resolution Policy set

out in the Endura Employee Handbook.                   (Appendix, Confidential Exhibit 1,

Separation Agreement, page 4, paragraph 13.) Altomare was apprised of the

4
   Paragraph 5 of the Separation Agreement is the “release of claims” paragraph and was
purposely drafted broadly to include Endura’s related entities, officers, members, partners,
limited partners, employees, directors, managers, agents, trustees, administrators, representatives,
subsidiaries, affiliates, successors and assigns.


Appellant’s Brief                                                                             Page 4
Dispute Resolution Policy contained within the Separation Agreement and

accepted it. (C.R. Pg. 20). Additionally, Altomare was represented by counsel

who negotiated the terms of the Separation Agreement and required changes to the

proposed Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 32, line 22 through

Pg. 33, line 3). The Alternative Dispute Resolution provision was a bargained for

term of the Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 17, line 7-13).

Altomare does not dispute the existence of an Alternative Dispute Resolution

provision or that it is a valid agreement to arbitrate. (Oct. R.R. Pg. 6, Line 3-7).

The Dispute Resolution Policy contained in Endura’s Employee Handbook states

in relevant part:

                    The Arbitration process shall be conducted under Texas Civil
                    Practices and Remedies Code, Section 151.001 et seq. The
                    arbitrator will meet the qualifications of a Special Judge as
                    described in this statute and will also be impartial. This Policy
                    is intended to be construed and subject to Texas law.

                    Either the employee or Endura may commence the Arbitration
                    proceeding by giving written notice to the other party, stating
                    that the Arbitration process is being commenced, the specific
                    facts which give rise to the dispute, the legal basis, if any,
                    which the notifying party is invoking to support some claim for
                    damages or relief, the relief the notifying party is seeking and a
                    correct address, phone number and, if available, a facsimile
                    number and email address at which the notifying party can be
                    reached (“Notice”). The notifying party shall file a Petition in
                    the applicable District court, or other court of original
                    jurisdiction, which shall be abated pending the decision by the
                    Arbitrator.




Appellant’s Brief                                                                        Page 5
(Appendix, Exhibit 2, true and correct copy of Endura Advisory Group, Ltd.’s

Dispute Resolution Policy and Procedures.); (C.R. Pg. 22-24).

         5.         Reneau is a licensed commercial real estate agent working for Endura.

(Nov. R.R. Pg. 23, line 3-6). At the time of the execution of the Separation

Agreement and at all times relevant to this suit, Reneau was an agent and

representative of Endura. (Nov. R.R. Pg. 13, line 10-18 and Nov. R.R. Pg. 32, line

2-18) Reneau has been an associate vice-president for Endura for the last two

years and his business cards issued by Endura reflect the title of associate vice-

president. (Nov. R.R. Pg. 13, line 19-21 and Nov. R.R. Pg. 19, line 10-12).

Reneau, as an agent for Endura, is the point of contact on all real estate listings in

which he is involved. He works exclusively for Endura. (Nov. R.R. Pg. 16, line

11-13). He is required to attend bi-weekly sales meetings and Endura pays for his

marketing of properties as well as his office space. (Nov. R.R. Pg. 16, line 14-18).

Clearly, Reneau is an agent and representative for Endura.

         6.         On July 28, 2014, Altomare filed suit against Reneau for breach of

contract relating to commissions on real estate transactions that Reneau had

allegedly failed to pay Altomare. (C.R. Pg. 1-4.) Importantly, the real estate

transactions on which Altomare bases his claims against Reneau were not included

on the List, meaning Altomare was not actively involved in those transactions.

(C.R. Pg. 7). On August 29, 2014, Reneau timely answered Altomare’s suit and on



Appellant’s Brief                                                                   Page 6
September 19, 2014, Endura intervened in the suit asserting claims against

Altomare for breach of contract, fraud and for declaratory relief as it relates to the

Separation Agreement. (C.R. Pg. 9-17.) Also contained within Endura’s Plea in

Intervention was a section putting Altomare on notice that this dispute is required

to be submitted to a Special Judge in accordance with Endura’s Dispute Resolution

Policy. (C.R. Pg. 15.)


         7.         On October 16, 2014, Endura filed its Motion to Compel Alternative

Dispute Resolution Process and Motion to Abate Proceeding Pending Completion

of the Alternative Dispute Resolution Process (the “Motion”). (C.R. Pg. 18-24.)

On October 27, 2014, the Honorable Judge Martha Tanner conducted a hearing

and denied Endura’s Motion indicating on the Judge’s Notes, “Court finds

insufficient evidence to determine Reneau meets any criteria in Separation

Agreement therefore motion respectfully denied.” (Visiting Judge sitting in the

57th Judicial District by assignment; C.R. Pg. 31, 49-50); (Appendix, Exhibit 3, a

true and correct copy of the Order Denying Endura Advisory Group, Ltd.’s Motion

to Compel Alternative Dispute Resolution Process and Motion to Abate

Proceeding Pending Completion of the Alternative Dispute Resolution Process

signed on December 1, 2014.)

         8.         On October 30, 2014, Endura filed its Motion for Reconsideration of

the Honorable Martha Tanner’s denial of Endura’s Motion. (C.R. Pg. 32-39.) On


Appellant’s Brief                                                                 Page 7
November 7, 2014, the Honorable Martha Tanner conducted an evidentiary

hearing and denied Endura’s Motion for Reconsideration of its Motion. (C.R. Pg.

51-52); (Appendix, Exhibit 4, a true and correct copy of the Order Denying Endura

Advisory Group, Ltd.’s Motion for Reconsideration of Denial of its Motion to

Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding

Pending Completion of the Alternative Dispute Resolution Process signed

December 1, 2014).       The Motion to Compel Alternative Dispute Resolution

Process and Motion to Abate Proceeding Pending Completion of the Alternative

Dispute Resolution Process and the Motion for Reconsideration of Denial of Its

Motion to Compel Alternative Dispute Resolution Process and Motion to Abate

Proceeding Pending Completion of the Alternative Dispute Resolution Process are

sometimes collectively referred to herein as the “Motions.” Endura brings this

appeal, asking this Court to reverse the trial court’s orders denying Endura’s

Motions and remand to compel arbitration.

                       SUMMARY OF THE ARGUMENT

         For additional consideration paid to him, Altomare executed a Separation

Agreement when he departed Endura, releasing all claims against Endura, its

agents and representatives and others, except for certain limited, pending real

estate transactions specifically identified. The Separation Agreement contains an

arbitration agreement for any claims that arise out of the Separation



Appellant’s Brief                                                           Page 8
Agreement. Altomare has now sued Josh Reneau for commissions on real estate

transactions closed and paid to Josh Reneau by and through Endura

after Altomare was no longer a broker for Endura. None of the transactions sued

upon are listed in the Separation Agreement. The evidence presented to the trial

court clearly establishes Josh Reneau is an agent or representative of Endura;

therefore, the claims brought by Altomare against Reneau were released by and

through the Separation Agreement and otherwise triggered the arbitration

agreement. Endura has established as a matter of law: (i) the existence of a valid

arbitration agreement and (ii) that claims in this lawsuit are within the scope of the

arbitration          agreement.    Accordingly,    the    trial   court    erred     by

denying Endura’s Motion to Compel Arbitration and Motion for Reconsideration.

                            ARGUMENT AND AUTHORITIES

Issue No. 1: The trial court erred by denying Endura’s Motion to Compel
             Alternative Dispute Resolution Process and Motion to Abate
             Proceeding Pending Completion of the Alternative Dispute Resolution
             Process and the Motion for Reconsideration of Denial of Its Motion to
             Compel Alternative Dispute Resolution Process and Motion to Abate
             Proceeding Pending Completion of the Alternative Dispute Resolution
             Process.

A.       Standard of Review

         9.         In reviewing an order denying a motion to compel arbitration under

the Texas Arbitration Act, the appellate courts apply a no-evidence standard to the

trial court’s factual determinations and a de novo standard to legal determinations.



Appellant’s Brief                                                                  Page 9
Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet.

denied). Furthermore, a trial court’s interpretation concerning the scope of a

contract’s arbitration clause is a question of law reviewed under a de novo

standard. Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio

2005, orig. proceeding). In a de novo review, the trial court’s discretion is given

absolutely no deference. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

B.       The Pleadings and Evidence Presented Establish that the Parties’
         Dispute Arises from the Separation Agreement Therefore Triggering
         the Dispute Resolution Process

         10.        Texas jurisprudence embraces arbitration. Royston, Rayzor, Vickery

& Williams, LLP v. Lopez, 443 S.W.3d 196, 202 (Tex. App – Corpus Christi 2013,

pet. filed). Since 1846, Texas law has provided that parties to a dispute may

choose to arbitrate rather than litigate. Perry Homes v. Cull, 258 S.W.3d 580, 584

(Tex. 2008) see also EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.

1996)(Texas law has historically favored settling disputes by arbitration). The

Texas Supreme Court has recognized arbitration as a potentially efficient, cost-

effective, and speedy means of resolving disputes. See In re Olshan Found. Repair

Co., 328 S.W.3d 883, 893 (Tex. 2010). Thus, a party seeking to compel arbitration

must establish (1) an agreement by the parties to arbitrate and (2) that the claims in

the lawsuit are within the scope of the arbitration agreement. In re Medallion, Ltd.,

70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 2002, orig. proceeding). Once



Appellant’s Brief                                                                Page 10
a court finds a valid agreement to arbitrate, the burden shifts to the party opposing

arbitration to raise an affirmative defense to enforcing arbitration.      See J.M.

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

C.       A Valid Agreement to Arbitrate Exists Between Endura and Altomare

         11.        The Separation Agreement contains a valid agreement to arbitrate

therefore satisfying the first prong needed to compel arbitration. In re Medallion at

287-288. (C.R. Pg. 18); (Appendix, Confidential Exhibit 1, Separation Agreement,

page 4, paragraph 13.) This is not disputed by Altomare. (Oct. R.R. Pg. 6, Line 3-

7); (C.R. Pg. 43). In the Separation Agreement, Altomare agreed this procedure

governed any dispute related to his association with Endura or the Separation

Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 4,

paragraph 13.) Endura’s arbitration agreement is enforceable because the

Separation Agreement is a valid contract. See generally J.M. Davidson, Inc. v.

Webster, 128 S.W.3d at 227 (ordinary contract principals apply to agreements to

arbitrate).         Additionally, the Separation Agreement was supported by mutual

consideration as stated therein. (Appendix, Confidential Exhibit 1, Separation

Agreement, page 1).

         12.        Furthermore, Altomare, who was represented by counsel who

negotiated Separation Agreement, accepted it. (C.R. Pg. 20); (Nov. R.R. Pg. 32,

line 22 through Pg. 33, line 3). The Alternative Dispute Resolution provision was a



Appellant’s Brief                                                              Page 11
bargained for term of the Separation Agreement and most importantly, Altomare

does not dispute that a valid Alternative Dispute Resolution agreement exists as it

relates to the Separation Agreement. (Oct. R.R. Pg. 6, Line 3-7); (C.R. Pg. 43).

There is no doubt the first prong to compel arbitration has been established by

Endura. See In re Medallion, Ltd., 70 S.W.3d at 287-288.

D.       The Claims Brought in the Lawsuit Fall Within the Separation
         Agreement Triggering the Alternative Dispute Resolution Process

         13.        With the first prong to compel arbitration established, the analysis

shifts to whether claims brought by Altomare against Reneau and the claims

brought by Endura against Altomare are within the scope of the claims released in

the Separation Agreement giving rise to the agreement to arbitrate. See In re

Medallion, Ltd., 70 S.W.3d at 287-288. If a party seeking arbitration carries its

initial burden to prove the existence of an agreement to arbitrate, then a strong

presumption favoring arbitration arises, and the burden shifts to the party opposing

arbitration to prove an affirmative defense to the agreement. J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 227 (Tex. 2003). Additionally, if a valid arbitration

agreement exists, “courts should resolve any doubts as to the agreement’s scope,

waiver, and other issues unrelated to its validity in favor of arbitration.” Ellis v.

Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011). To be subject to arbitration, the

“allegations need only be factually intertwined with arbitrable claims or otherwise

touch upon the subject matter of the agreement containing the arbitration

Appellant’s Brief                                                                  Page 12
provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston

[14th Dist.] 2003, orig. proceeding).

         14.        The pivotal question before this Court is whether or not Reneau is an

agent or representative of Endura. If the answer is yes, then this Court must

compel arbitration because the claims brought by Altomare against Reneau

implicate the Separation Agreement triggering the Alternative Dispute Resolution

Process contained therein.

E.       Reneau is an Agent or Representative of Endura

         15.        Once an arbitration agreement is established, “a court should not deny

arbitration unless it can be said with positive assurance that an arbitration clause is

not susceptible of an interpretation which would cover the dispute at issue.” In re

D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006). In other words, if

Reneau’s status with Endura is susceptible to an interpretation as agent or

representative of Endura and thus covered by the scope of the release in the

Settlement Agreement, then this Court must compel arbitration.

         16.        The trial court erred in refusing to compel arbitration when clearly

Reneau is an agent or representative of Endura and thus the claims against him are

within the scope of the Separation Agreement therefore triggering the Alternative

Dispute Resolution Process. An “agent” is one who is authorized by a person or

entity to transact business or manage some affair for the person or entity. Neely v.



Appellant’s Brief                                                                   Page 13
Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no

writ). An essential element of the principal-agency relationship is the principal’s

right to control the actions of the alleged agent. Sendjar v. Gonzales, 520 S.W.2d

478, 481 (Tex. Civ. App. – San Antonio 1975, no writ). This right includes not

only the right to assign tasks, but also the right to dictate the means and details of

the process by which the agent will accomplish the task. Townsend v. Univ. Hosp.-

Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. – Texarkana 2002, pet. denied).

The fact of agency may be established by circumstantial evidence, and proof may

be made of all the facts and circumstances that shows the relationship of the parties

and throws light upon the character of such relations. Welch v. Coca-Cola Enters.,

Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler 2000, pet. withdrawn) see also

Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio

2002, no pet.)(An agency relationship may be found from underlying facts or

direct and circumstantial evidence showing the relationship of the parties).

         17.        The evidence presented to the trial court clearly establishes that

Reneau is an agent or representative of Endura. At the hearing on Endura’s

Motion for Reconsideration, Endura called James G. Lundblad (“Lundblad”), a

principal of Endura, to testify regarding the Separation Agreement and Reneau’s

status with Endura.            (Nov. R.R. Pg. 13, line 7-13).      Lundblad testified

unequivocally that Reneau was Endura’s agent and representative. (Nov. R.R. Pg.



Appellant’s Brief                                                                Page 14
13, line 14-18); (Nov. R.R. Pg. 19, line 13-15); (Nov. R.R. Pg. 32, line 2-19).

Lundblad further testified that Reneau has business cards with Endura’s name on

them and when Reneau is out in the field leasing and selling properties he

represents himself to the public as working for Endura. (Nov. R.R. Pg. 13, line 19-

21). Additionally, in the transactions in which Reneau is the point of contact,

Reneau is listed on the listing agreement as “Key Agents: Josh Reneau” and his

role on these transactions is to work with the property owner as Endura’s

representative at Endura’s instruction. (Nov. R.R. Pg. 14, line 8 through Pg. 15,

line 21); (Nov. R.R. Pg. 16, line 5-10); (Nov. R.R. Pg. 32, line 2-19); (see also

Appendix, Confidential Exhibit 5, Listing Agreement5). Reneau has the authority

to enter into transactions on behalf of Endura and actively markets on behalf of

Endura to obtain listing agreements.         (Nov. R.R. Pg. 19, line 16-25). Lastly,

Reneau’s compensation agreement with Endura lists him as an “Associate,” not an

independent contractor.      (Nov. R.R. Pg. 19, line 10-12); (see also Appendix,

Confidential Exhibit 6, a true and correct copy of a Compensation Agreement

dated January 15, 2009 6). Clearly, Reneau is authorized by Endura to: (i) manage


5
  Confidential Exhibit 5 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 14,
Line 8 through Pg 15, Line 14) but was withdrawn at the end of the hearing to preserve
confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and
correct copy of Confidential Exhibit 5 has been filed as part of a separate appendix.
6
  Confidential Exhibit 6 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 18,
Line 12 through Pg 19, Line 6) but was withdrawn at the end of the hearing to preserve
confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and
correct copy of Confidential Exhibit 6 has been filed as part of a separate appendix.


Appellant’s Brief                                                                      Page 15
transactions, such as properties for sale or lease; (ii) transact business on behalf of

Endura; (iii) interface with the public promoting Endura; and (iv) interface with

property owners on behalf of Endura, making him an agent or representative of

Endura. See Neely v. Intercity Mgmt. Corp., 732 S.W.2d at 644. Lastly, in the

eyes of Endura and its principals, Reneau is an agent or representative of Endura.

(Nov. R.R. Pg. 13, line 14-18) and (Nov. R.R. Pg. 19, line 13-15).

         18.        As it relates to Endura’s control of Reneau, Reneau does not work for

another real estate company. (Nov. R.R. Pg. 16, line 11-13). Reneau is required to

come to the office and is also required to attend sales meetings. (Nov. R.R. Pg. 16,

line 14-18). Further, Endura has authorized him to market and attempt to acquire

listings and properties to sell for and on behalf of Endura. (Nov. R.R. Pg. 16, line

19-22). Additionally, Endura directs Reneau to do “everything” he can to either

sell or lease properties for clients that have hired Endura. (Nov. R.R. Pg. 15, line

22 through Pg. 16, line 4).            On cross-examination by counsel for Altomare,

Lundblad testified that Endura instructs Reneau on how to manage and practice

business for Endura and work within the confines of what Endura expects from an

Associate further evidencing control of Reneau’s work for Endura. (Nov. R.R. Pg.

22, line 4-7). Lundblad further testified that Endura has the authority and control

over its agents, such as Reneau, to assign out tasks such as selling or leasing

properties. (Nov. R.R. Pg. 20, line 1-11). Lundblad’s testimony evidences Endura



Appellant’s Brief                                                                  Page 16
exercised control over the means of Reneau’s work and provides direction and

guidance on how it is to be accomplished thus making Reneau an agent or

representative of Endura.

         19.        As stated by the Texas Supreme Court in the In re D. Wilson Constr.

Co. case, “a court should not deny arbitration unless it can be said with positive

assurance that an arbitration clause is not susceptible of an interpretation which

would cover the dispute at issue.” In re D. Wilson Constr. Co., 196 S.W.3d at 783;

see also Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st

Dist.] 1996, no writ)(“If … the [arbitration] clause is broad, arbitration should not

be denied unless it can be said with positive assurance that the particular dispute is

not covered.”). With this liberal construction in mind, it is clear from the evidence

presented to the trial court that Reneau is an agent or representative of Endura and

the disputes are covered by the Separation Agreement, thus arbitrable.

F.       Endura Intended for the Separation Agreement to include Reneau

         20.        The intent of the Separation Agreement was to include Reneau and,

for that matter, everyone that works with Endura. (Nov. R.R. Pg. 17, line 16-21).

The primary concern in interpreting a contract is ascertaining the true intent of the

parties. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d

323, 333 (Tex. 2011). To understand the parties’ intent the court must examine the

agreement as a whole in light of the facts and circumstances present at the time



Appellant’s Brief                                                                 Page 17
when the parties executed the agreement.       Anglo-Dutch Petrol. Int’l, Inc. v.

Greenberg Peden, P.C., 352 S.W.3d 445, 450-51 (Tex. 2011). The Separation

Agreement was intended to be broad enough to release Endura and all those who

could arguably come under the Endura umbrella from any claims by Altomare

during his tenure with Endura. This is the reason for the inclusion of broad form

language in the release paragraph of the Separation Agreement to include the

“Partnership, its related entities, officers, members, partners, limited partners,

employees, directors, managers, agents, trustees, administrators, representatives,

subsidiaries, affiliates, successors, and assigns.”   See Appendix, Confidential

Exhibit 1, Separation Agreement, page 2, paragraph 5.

         21.        At the November 7, 2014 hearing on Endura’s Motion for

Reconsideration, Lundblad testified that it was Endura’s intention to have a clean

separation from Altomare, by way of the Separation Agreement, and to get there

they paid Altomare a little more than a partner disassociating from Endura under

normal circumstances. (Nov. R.R. Pg. 17, line 7-16). Most importantly, Lundlbad

testified that the Separation Agreement was intended to encompass everyone at

Endura at the time of Altomare’s departure, which includes Reneau. (Nov. R.R.

Pg. 17, line 16-21). Furthermore, the Separation Agreement was intended to

foreclose any claims for commissions from transactions related to his tenure with

Endura (and the covered persons in the agreement) that were not disclosed by



Appellant’s Brief                                                           Page 18
Altomare [on the List] at the time of execution of the Separation Agreement.

(Nov. R.R. Pg. 17, line 22-25). The entire purpose of including the alternative

dispute resolution paragraph in the Separation Agreement was to abbreviate the

length of time that it would typically take for suits such as this one to make its way

through the judicial system that might derive from the Separation Agreement.

Accordingly, in viewing the circumstances at the time of execution as well as the

parties’ intent, the Separation Agreement was intended to protect and release

Endura, its agents, representatives and all people working under the Endura

umbrella from the very claims that Altomare now brings.

G.       The Separation Agreement

         22.        Having shown a valid agreement to arbitrate and that Reneau is an

agent or representative of Endura, and thus triggering the arbitration agreement, we

must also determine if the claims brought by Altomare against Reneau arise from

the Separation Agreement.           Altomare has asserted claims against Reneau for

breach of contract. (C.R. Pg. 2)           In his suit, Altomare alleges he is owed

commissions from real estate transactions pursuant to an unwritten “agreement”

between Altomare and Reneau to split commissions on real estate transactions they

worked on together. (C.R. Pg. 2) Assuming arguendo that Reneau and Altomare

had a prior course of dealing in which they would split certain commissions on a

case-by-case basis, the claims arising under this assumed “agreement” were



Appellant’s Brief                                                               Page 19
released when Altomare executed the Separation Agreement and did not include

these transactions on the List.

         23.        The Separation Agreement in paragraph five states in relevant part:

                    Other than to the broker’s commissions specifically indentified
                    in this letter, in addition to the terms of the Second Amended
                    and Restated Limited Partnership Agreement, you hereby
                    release any claim of any kind that relates to or involves your
                    relationship or the separation of your relationship with the
                    Partnership that you may have or acquire against the
                    Partnership, its related entities, officers, members, partners,
                    limited partners, employees, directors, managers, agents,
                    trustees,     administrators,     representatives,    subsidiaries,
                    affiliates, successors, and assigns. The claims you are agreeing
                    to release include, but are not limited to, all claims, charges,
                    complaints, liabilities, obligations, promises, agreements,
                    contracts, damages, actions, causes of action, suits, accrued
                    benefits or other liabilities of any kind or character, whether
                    known or hereafter discovered, arising from or in any way
                    connected with or related to your tenure with the
                    Partnership and your resignation from the Partnership,
                    including but not limited to . . . breach of contract. . .

(See Appendix, Confidential Exhibit 1, paragraph 5, Separation Agreement)
(Emphasis added).

Altomare submitted the List, which was comprised of all of the transactions he was

currently working on when he executed the Separation Agreement. The List was

accepted by Endura and included as part of the Separation Agreement. The real

estate transactions Altomare now sues upon were not included on the List;

therefore, to the extent any rights to commissions from Endura deals not yet earned

or ever existing between Altomare and Reneau, Altomare released his claims to all



Appellant’s Brief                                                                         Page 20
those not identified in the List. The claims brought by Endura against Altomare

are for breach of the Separation Agreement.

         24.        Most importantly and as stated above, the Separation Agreement

included an agreement to arbitrate in accordance with Endura’s Dispute Resolution

Policy. Paragraph 13 of the Separation Agreement states:

                    In the event there is a dispute between you and the Partnership
                    related to your association with the Partnership or this
                    agreement, the Dispute Resolution Policy set out in the Endura
                    Employee Handbook will be employed which is incorporated
                    herein as if fully set forth verbatim

(See Appendix, Confidential Exhibit 1, paragraph 13, Separation Agreement)

(Emphasis added).

         25.        A plain reading of paragraph 5 and paragraph 13 in the Separation

Agreement make it clear that Altomare’s claims against Reneau and Endura’s

claims against Altomare arise from and touch upon the subject matter of the

Separation Agreement and therefore triggers the Dispute Resolution Policy

incorporated into the Separation Agreement. See In re B.P. Am. Prod. Co., 97

S.W.3d at 370 (allegations need only be factually intertwined with arbitrable

claims or otherwise touch upon the subject matter of the agreement containing the

arbitration provision). Therefore, the arbitration agreement contained within the

Separation Agreement squarely encompasses the claims raised by Altomare and

the claims raised by Endura and this Court must compel arbitration.



Appellant’s Brief                                                                     Page 21
Issue No. 2: Altomare failed to present or prove a defense to the enforcement of
             the Dispute Resolution Policy.

         26.        Having shown that the arbitration agreement is valid and that

Altomare’s claims are within the scope of the claims released by the Separation

Agreement giving rise to the arbitration agreement, the burden shifts to Altomare

to raise a defense to the arbitration agreement. See J.M. Davidson, Inc. 128

S.W.3d at 227. The trial court erred by refusing to compel arbitration because

Altomare failed to prove a defense to the arbitration agreement. At the November

2014 hearing on Endura’s Motion for Reconsideration of the Motion to Compel

Arbitration, the sole defense to the arbitration agreement asserted by Altomare was

that Reneau was not an agent of Endura, but an independent contractor and thus

not within the scope of the Separation Agreement. (Nov. R.R. Pg. 8, line 10-16);

(Nov. R.R. Pg. 41, line 19 through Pg. 42, line 3).

         27.        The fact of agency may be established by circumstantial evidence, and

proof may be made of all of the facts and circumstances that the shows the

relationship of the parties and throws light upon the character of such relations.

Welch v. Coca-Cola Enters., Inc., 36 S.W.3d at 540; see also 3 TEX. JUR. 3D

Agency §50 (1996). Furthermore, agency may be implied from the conduct of the

parties under the circumstances. Jorgensen v. Stuart Place Water Supply Corp.,

676 S.W.2d 191, 194 (Tex. App. – Corpus Christi 1984, no writ). One may be an

independent contractor under some circumstances yet may be an agent or

Appellant’s Brief                                                                  Page 22
employee in connection with other work or activities. Lyons v. Lindsey Morden

Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App. – El Paso 1998, no pet.).

         28.        For the reasons stated and based on the evidence set forth in

Paragraphs 17-19, it is clear Reneau’s work selling and leasing properties and

securing listing agreements for Endura is all performed as an agent or

representative of Endura; promoting Endura and only Endura.                 Therefore,

Altomare has failed to present or prove a defense to the enforcement of the Dispute

Resolution Policy.

                                     CONCLUSION

         Endura has established as a matter of law (1) the existence of a valid

agreement to arbitrate and (ii) that the claims in this lawsuit are within the scope of

the arbitration agreement. The trial court erred by failing to compel arbitration and

this Court should reverse the ruling by the trial court and remand to compel

arbitration.

                                        PRAYER

         This Court should reverse the trial court’s denial of Endura Advisory Group,

Ltd.’s Motion to Compel Alternative Dispute Resolution Process and Motion to

Abate Proceeding Pending Completion of the Alternative Dispute Resolution

Process and denial of same on Motion for Reconsideration and remand this case

back to the trial court to compel arbitration and for such other and further relief,



Appellant’s Brief                                                                Page 23
whether at law or in equity, to which Endura Advisory Group, Ltd, may be justly

entitled.

                                    Respectfully submitted,

                                    RICHIE & GUERINGER, P.C.

                                    BY: /s/ Gay Gueringer
                                       GAY GUERINGER
                                       State Bar No. 08571400
                                       DOUG K. CLEMONS
                                       State Bar No. 24032083
                                       112 East Pecan Street, Suite 1420
                                       San Antonio, Texas 78205
                                       Telephone: 210-220-1080
                                       Facsimile: 210-220-1088
                                       Email: ggueringer@rg-sanantonio.com
                                       Email: dclemons@rg-sanantonio.com
                                    ATTORNEYS FOR INTERVENOR,
                                    ENDURA ADVISORY GROUP, LTD.




Appellant’s Brief                                                         Page 24
                        CERTIFICATE OF COMPLIANCE

         Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this brief contains 5,438 words, excluding the words not included in the word

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-

generated document created in Microsoft Word, using 14-point typeface for all

text, except for footnotes which are in 12-point typeface. In making this certificate

of compliance, I am relying on the word count provided by the software used to

prepare the document.

                                         /s/ Gay Gueringer
                                         Gay Gueringer/Doug K. Clemons

                           CERTIFICATE OF SERVICE

       This is to certify that on the 27th day of January 2015, a true and correct copy
of the foregoing has been served on opposing counsel as follows:

         Via Electronic Service
         Eric A. Pullen
         Pulman, Cappuccio, Pullen, Benson & Jones, LLP
         2161 NW Military Highway, Suite 400
         San Antonio, Texas 78213


                                         /s/ Gay Gueringer
                                         Gay Gueringer/Doug K. Clemons




Appellant’s Brief                                                                Page 25
                                    NO. 04-14-00889-CV
                    ENDURA ADVISORY GROUP, LTD., APPELLANT
                                             VS.
                           DOMINIC ALTOMARE, APPELLEE

                                         APPENDIX


                                  LIST OF DOCUMENTS


Exhibit 1           CONFIDENTIAL Separation Agreement

Exhibit 2           Endura Advisory Group, Ltd.’s Dispute Resolution Policy and
                    Procedures

Exhibit 3           Order Denying Endura Advisory Group, Ltd.’s Motion to Compel
                    Alternative Dispute Resolution Process and Motion to Abate
                    Proceeding Pending Completion of the Alternative Dispute Resolution
                    Process signed December 1, 2014

Exhibit 4           Order Denying Endura Advisory Group, Ltd.’s Motion for
                    Reconsideration of Denial of its Motion to Compel Alternative
                    Dispute Resolution Process and Motion to Abate Proceeding Pending
                    Completion of the Alternative Dispute Resolution Process signed
                    December 1, 2014

Exhibit 5           CONFIDENTIAL Listing Agreement

Exhibit 6           CONFIDENTIAL Compensation Agreement




Appellant’s Brief                                                                 Page 26
                                EXHIBIT 1




                    CONFIDENTIAL SEPARATION AGREEMENT

                      FILED UNDER SEPARATE APPENDIX




Appellant’s Brief                                       Exhibit 1
Dispute Resolution Policy and
Procedures


Introduction/Overview
Unfortunately, from time to time, Endura’s Problem Resolution policy does not fully resolve a
dispute between an employee and the company. In those situations, Endura has designed this
Dispute Resolution Policy to guide resolution of any disputes between its employees and the
company.

Procedure
Where allowed by state or federal law, all disputes between an Employee and Endura,
regarding Employment Related Matters, other than claims for Worker’s Compensation or
Unemployment Benefits, shall be resolved solely through binding Arbitration. Arbitration is an
essential element of your employment relationship and is a condition of your employment with
Endura. The Arbitration process will be conducted under Texas Civil Practices and Remedies
Code, Section 151.001 et seq. The arbitrator will meet the qualifications of a Special Judge as
described in this statute and will also be impartial. This Policy is intended to be construed and
subject to Texas law.

Either the employee or Endura may commence the Arbitration proceeding by giving written
notice to the other party, stating that the Arbitration process is being commenced, the specific
facts which give rise to the dispute, the legal basis, if any, which the notifying party is invoking to
support some claim for damages or relief, the relief that the notifying party is seeking and a
correct address, phone number and, if available, a facsimile number and email address at which
the notifying party can be reached (“Notice”). The notifying party shall file a Petition in the
applicable District court, or other court of original jurisdiction, which shall be abated pending the
decision of the Arbitrator.

Upon receipt of a Notice commencing the Arbitration process, the receiving party shall have a
period of forty-five (45) days in which to serve the notifying party with a written response to the
Notice commencing the Arbitration, stating the specific facts which are asserted as a defense to
the facts set forth in the Notice and any facts which the receiving party asserts that support a
counter-claim, if any, by the party that received the Notice against the party that sent the Notice.

Within sixty (60) days of the commencement of the Arbitration process, Endura shall give to the
Employee a statement designating the names and addresses of three (3) persons impartial to
Endura and to which Endura will accept as the Arbitrator for the dispute and a date or dates, not
less than thirty (30) days thereafter, when the hearing will be held. The Employee shall have
fifteen (15) days in which to object, in writing to Endura, to not more than two (2) of the
designated Arbitrators. If no objection is received or if less than two (2) of the Arbitrators are
objected to by the Employee, Endura shall, within two (2) days of the receipt of objections from
the employee, designate, in writing, the name and address of the Arbitrator that will arbitrate the
dispute.




                                                                                                  EXHIBIT 2
                 Timeline recap

1.     Notice of Commencement of Arbitration                      Notice day
2.     Written response from non-noticed party                    45 days from Notice
3.     Designation of Arbitrators by Company                      60 days from Notice
4.     Objection to Arbitrators by Employee                       15 days
5.     Notice of Arbitrators and Hearing                          2 days from objection
6.     Hearing                                                    90 days from Notice

The Arbitration hearing shall be conducted at a time and place designated by the Arbitrator.
The Arbitrator shall give each party at least ten (10) days written notice of the time and place of
the Arbitration hearing. Either party may request one continuance of the Arbitration hearing for
good cause shown to the Arbitrator. The Arbitrator shall strictly follow the time line set forth
herein and the procedures mandated herein, except that the Arbitrator may delay the hearing for
a period not to exceed thirty (30) days to accommodate the schedules of any party, unless the
parties both agree to any extension beyond the thirty (30) day extension allowed at the
discretion of the Arbitrator.

Endura shall pay the Arbitrator’s Fees and expenses charged by the Arbitrator, or for the facility
at which the arbitration hearing is held. The Arbitrator shall assess all other costs and fees,
including attorney’s fees as a part of the Arbitration award.

The Arbitration process, discovery and the hearing shall be conducted in compliance with the
Texas Rules of Civil Procedure and the Texas Rules of Evidence. The Arbitrator shall enter
his/her ruling, in writing, and shall, upon request of either party, prepare and submit findings of
fact and conclusions of law to both parties. An award or ruling by the Arbitrator shall be entered
as a judgment of record in the abated judicial proceeding, and shall be fully subject to appeal as
if it was tried in a District Court, or any other court of original jurisdiction, outside the scope of
the arbitration process.

Both Employee and Endura recognize and agree that litigation is expensive and prolonged and
that both parties will benefit from the procedure in this Policy. This policy shall be broadly
construed and enforced to favor the Arbitration process as an efficient and effective way of
resolving disputes between the Employee and Endura. Both parties benefit from this process.
It provides an efficient means for the prompt resolution of any dispute, allowing the employee a
prompt resolution to the dispute and minimal loss of earnings from missed workdays and to
Endura a minimal disruption in its workforce and involvement of key management time in the
process. Any provision of this Policy that shall be determined to be unenforceable in any
jurisdiction shall not be read or construed to prohibit or exhaust the rights of either the Employee
or Company to the right to Arbitration or Waiver of the Right to Trial by Jury.

Employee and Endura hereby WAIVE ALL RIGHTS TO A TRIAL BY JURY FOR
EMPLOYMENT RELATED MATTERS IN STATE OR FEDERAL COURT.




                                                                                                 EXHIBIT 2
Endura retains the right to amend or terminate this Policy, in whole or in part, on ten (10) days
written notice to Employee. However, any disputes that have been asserted, in writing, prior to
the amendment or termination of this Policy, shall still be subject to resolution as set-forth in this
Policy.

I hereby agree to abide by this Dispute Resolution Policy, and the related procedures, a copy of
which I have received and read. I acknowledge that my agreement to be bound by this Policy is
supported by good and adequate consideration.

I understand and agree that this Policy is not a contract of employment or a guarantee of
employment of any specific duration.

EMPLOYEE NAME (printed):               _________________________________________
EMPLOYEE SIGNATURE:                    _________________________________________
DATE:                                  _________________________________________




                                                                                                 EXHIBIT 2
EXHIBIT 3
EXHIBIT 3
EXHIBIT 4
EXHIBIT 4
                               EXHIBIT 5



                    CONFIDENTIAL LISTING AGREEMENT

                    FILED UNDER SEPARATE APPENDIX




Appellant’s Brief                                    Exhibit 5
                                 EXHIBIT 6

                    CONFIDENTIAL COMPENSATION AGREEMENT

                       FILED UNDER SEPARATE APPENDIX




Appellant’s Brief                                         Exhibit 6
