                                   NO. 07-01-0298-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                   OCTOBER 14, 2003

                          ______________________________


                            SUSAN L. MILLER, APPELLANT

                                             V.

           J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES


                        _________________________________

               FROM THE 55TH DISTRICT COURT OF HARRIS COUNTY;

              NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and BOYD, S.J.1


                                         OPINION


       This appeal arises from the trial court’s dismissal, with prejudice, of a legal

malpractice suit filed by appellant Susan L. Miller (Miller) against appellees J. Mark Brewer


       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
and Brewer & Pritchard, P.C. (Brewer). The suit was dismissed because of Miller’s failure

to comply with the trial court’s order requiring arbitration of the dispute. In pursuing her

appeal, Miller presents one issue with three sub-parts. In her issue, Miller asks the overall

question whether the trial court erred as a matter of law in its dismissal of her suit because

of her failure to comply with the required arbitration. As sub-parts of that question, she

asks if appellees were able to compel arbitration pursuant to an attorney-client contract

under (a) the Texas Arbitration Act; (b) the Federal Arbitration Act; and (c) under common

law. For reasons hereinafter stated, we affirm the judgment of the trial court.


       A brief recitation of the procedural history of this appeal is necessary. Miller’s suit

against Brewer      was filed on August 24, 1999.         Her suit grew out of Brewer’s

representation of her in a federal employment discrimination suit against Meridian Bank,

Meridian Bancorp, Inc., Meridian Securities, Inc., and Meridian Capital Markets, Inc., which

had been filed in the Federal District Court for the Southern District of Texas, Houston

Division. In the suit against Brewer, Miller alleged that Brewer settled the federal case

without her knowledge, consent, or approval, failed to advise her of the settlement, and

obtained a portion of the settlement funds and applied it to Brewer’s attorney’s fees without

her knowledge.


       On October 4, 1999, Brewer responded to the suit by filing a plea in abatement, a

motion to compel arbitration, and an answer. The motion to compel arbitration was based

upon a mandatory arbitration clause contained in a written attorney-client representation



                                              2
contract between Miller and Brewer. On October 15, 1999, Miller responded by asserting

that the pages containing the arbitration clause were not in the contract when she signed

it and, in the alternative, if she had agreed to the employment contract and the arbitration

clause, her agreement was the result of fraud and fraudulent inducement. She also filed

supporting affidavits. On December 15, 1999, Brewer filed a brief and supporting affidavits

in connection with the plea in abatement and motion to compel arbitration. On December

22, 1999, after a hearing but without receiving evidence other than that contained in the

record, the trial court entered its order compelling arbitration within 60 days and abated

the case during the arbitration.


       On February 16, 2000, Miller filed a demand for arbitration with the American

Arbitration Association. On October 20, 2000, Miller filed a motion to set aside the order

compelling arbitration and for reinstatement of the case on the court’s docket. On

November 3, 2000, the trial court denied Miller’s motion to reconsider. Miller then revoked

the consent to arbitrate and sought to have the case reinstated on the trial court’s docket.

On May 3, 2001, Brewer filed a motion to dismiss the case because of the failure to

arbitrate and, on May 25, 2001, the trial court entered the dismissal order giving rise to this

appeal.


       In relevant part, the arbitration clause in question here reads:


       This agreement is subject to binding arbitration. We do not anticipate a
       dispute over our representation or related fees and expenses. However, if
       a dispute should arise, all claims, disputes, controversies, differences or


                                              3
       other matters in question arising out of our relationship to each other
       (including, but not limited to compensation for services rendered by the firm)
       shall be settled finally, completely and conclusively by arbitration in Houston,
       Harris County, Texas, in accordance with the Commercial Arbitration Rules
       of the American Arbitration Association (the “Rules”), by one or more
       arbitrators chosen in accordance with the Rules . . . .


                                         Discussion


       As we have noted, the question Miller presents for our decision is whether, as a

matter of law, the trial court erred in entering its order compelling arbitration.

Parenthetically, Miller did not request findings of fact from the trial court and does not in

this appeal challenge the trial court’s resolution of any fact questions underlying its order.

A party seeking to compel arbitration must establish the existence of an arbitration

agreement and show that the claims asserted fall within the scope of that agreement. In

re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999). Once a party

establishes a claim within the arbitration agreement, the trial court must compel arbitration

and stay its own proceedings. Id. In Texas, every reasonable presumption must be

decided in favor of arbitration. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520

(Tex. App.–Austin 1998, no pet.). If a party denies the existence of an agreement to

arbitrate, the trial court shall proceed summarily to determine the issue. See Tex. Civ.

Prac. & Rem. Code Ann. §171.021 (Vernon. Supp. 2003).


       The Texas Arbitration Act (the Act) is found in sections 171.001-171.098 of the

Texas Civil Practice & Remedies Code. Miller initially argues that a claim for legal



                                              4
malpractice is a claim for personal injury within the purview of section 171.002(a)(3). In

relevant part, that section provides that the Act does not apply to a claim for personal injury

unless each party to a claim, on the advice of counsel, agrees to arbitrate and the

agreement is signed by each party and each party’s attorney. Tex. Civ. Prac. & Rem.

Code Ann. §171.002(a) & (c) (Vernon Supp. 2003).               There being no such written

agreement in this case, Miller reasons that the court’s order compelling arbitration was not

valid.


         In advancing her argument, Miller relies upon the court’s decision in In re Godt, 28

S.W.3d 732 (Tex. App.–Corpus Christi 2000, no pet.). In that case, the court held that an

arbitration provision in an attorney-client fee agreement was not enforceable under section

171.003(a)(3) because the client did not act on the advice of independent counsel, nor did

independent counsel sign the agreement. Id. at 739. The Godt court’s conclusion is

bottomed on the holding in Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988), in which

the court opined that a cause of action for legal malpractice is in the nature of a tort for the

purpose of the two-year statute of limitations. En route to its conclusion, the Godt court

also noted Sample v. Freemen, 873 S.W.2d 470, 476 (Tex. App.–Beaumont 1994, writ

denied), and Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex. App.–Corpus Christi

1990, no writ), which had arrived at similar holdings. In both of those cases, the courts

cited and relied upon Willis as standing for the proposition that a legal malpractice claim

is a claim for personal injury. However, we do not read Willis as standing for that generic

proposition. Bryan Garner, in his excellent Dictionary of Modern Legal Usage, defines a


                                               5
tort as “a civil wrong; the breach of a duty that the law imposes on everyone” and goes on

to comment that that definition is “barely adequate” because “there is no common set of

traits that every tort possesses.” BRYAN GARNER, A DICTIONARY OF MODERN LEGAL

USAGE 885 (2ND ed. 1995). We do not agree that simply because a legal malpractice suit

is classified as a tort, that classification requires the conclusion that such a suit is one for

personal injury.


       We also note that in its opinion, the Godt court commented on and, in reaching its

conclusion, apparently relied upon the fact that “the nature of Godt’s complained-of injury

in her malpractice claim is an action for personal injury, rather than an action for economic

or contractual losses.” Godt, 28 S.W.3d at 739. Miller’s underlying claim was for

economic losses stemming from employment discrimination rather than for personal injury.

For these reasons, we do not think the rationale of the Godt decision is applicable here.




       Rather, we find the rationale used by the court in In re Hartigan, 107 S.W.3d 684

(Tex. App.–San Antonio 2003, n. pet. h.) helpful. In Hartigan, the court refused to hold that

a legal malpractice suit was per se one for personal injuries. The legal malpractice suit

involved in that matter arose out of representation in a divorce case and, the court opined

the suit was not a claim for personal injury and was not excluded from the scope of the

Texas Arbitration Act by section 171.002(a)(3). Id. at 690-91. The suit with which we are

concerned arises out of a suit for economic losses as a result of                 employment



                                               6
discrimination. We hold that it is not a suit for personal injuries within the purview of

section 171.002(a)(3) of the Act. Thus, the trial court did not err in entering its order

requiring arbitration.


       Our holding that, under the Texas Arbitration Act, the trial court did not err in

entering its order compelling arbitration, obviates the necessity for discussion of whether

the order was permissible under the Federal Arbitration Act or under common law. In

summary, we hold the trial court did not, as a matter of law, err in ordering the parties to

submit the underlying suit to arbitration. Accordingly, Miller’s issue is overruled.


       Because of Miller’s undisputed refusal to comply with that order, the trial court did

not abuse its discretion in entering its dismissal order, and the judgment of the trial court

is affirmed.


                                                  Per Curiam




                                             7
         NO. 07-01-0298-CV




    IN THE COURT OF APPEALS




FOR THE SEVENTH DISTRICT OF TEXAS




           AT AMARILLO




             PANEL E




        OCTOBER 14, 2003




  ______________________________




                8
              SUSAN L. MILLER, APPELLANT




                          V.




J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES




           _________________________________




    FROM THE 55TH DISTRICT COURT OF HARRIS COUNTY;




   NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE




            _______________________________




                          9
Before JOHNSON, C.J., and REAVIS and BOYD, S.J.2


                                  CONCURRING OPINION




       Considering the procedural posture of this case, I concur in the result, only.




                                            Don H. Reavis
                                              Justice




       2
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex.
Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

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