                     COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG


                     NUMBER 13-08-00701-CV

IRWIN & BOESEN, P.C.,                                     Appellant,

                                 v.

TONY MARTINEZ AND LAW OFFICES OF
TONY MARTINEZ, P.C.,                                     Appellees.


On appeal from the 197th District Court of Cameron County, Texas.


                     NUMBER 13-09-00025-CV

                   IN RE IRWIN & BOESEN, P.C.


                 On Petition for Writ of Mandamus


                   MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Yañez and Benavides
           Memorandum Opinion by Chief Justice Valdez
        Irwin & Boesen, P.C. (“Irwin”) filed a notice of appeal in cause number 13-08-00701-

CV and a petition for writ of mandamus in cause number 13-09-00025-CV seeking to

compel the trial court to grant Irwin’s motion to compel arbitration. We dismiss the appeal

and deny the petition for writ of mandamus.

                                             I. BACKGROUND

        The underlying proceeding concerns a dispute over attorney’s fees. Beginning in

approximately April 2002, Irwin and other law firms entered into agreements to represent

individual plaintiffs injured by Fen-Phen in a multi-district class action lawsuit (the “MDL”

proceeding). Tony Martinez1 entered into a co-counsel agreement with Irwin. Martinez’s

agreement with Irwin provides for the division of all amounts received as attorney’s fees

in connection with the assigned cases, either ‘Matrix’ or ‘Opt-Out,’ after deducting all

amounts due to referring attorneys and class counsel. In the MDL proceeding, Martinez

was appointed to the Seventh Amendment Liaison Committee (“SALC”) and was awarded

attorney’s fees through his work as a member of that committee.

        In May 2006, disputes arose between Martinez and Irwin, and they entered into an

agreement, which included the arbitration provision at issue in the underlying lawsuit:

        This is an agreement by and 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

        1
          The “Agreem ent Regarding Fen Phen Cases” references assignm ents to the “Law Office of Tony
Martinez, P.C.” and is signed by “Antonio Martinez, President.” The underlying lawsuit was brought by Tony
Martinez and Law Office of Tony Martinez, P.C., and they are the real parties in interest and appellees herein.
In contrast, the agreem ent containing the arbitration provision is between Irwin and “Martinez, Barrera y
Martinez,” and is signed by Tony Martinez. Based on the record before this Court, these discrepancies are
not relevant to our analysis, and we express no opinion regarding these differences.
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       parties. Irwin & Boesen, P.C. and Martinez, Barrera y Martinez agree to
       divide and distribute all attorneys’ fees earned in 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.

Subsequently, Martinez brought suit against Irwin and others seeking a declaratory

judgment that the referral agreements did not create a joint venture or partnership

relationship and that the attorney’s fees to be divided did not include any SALC Common

Benefit Fee which may have been earned by Martinez. Martinez also asked for a

temporary restraining order and injunctive relief.

       Irwin moved to compel arbitration of this lawsuit based on the foregoing arbitration

agreement. The trial court denied the motion to compel, and these parallel proceedings

ensued.

                II. FEDERAL ARBITRATION ACT OR TEXAS ARBITRATION ACT

       The trial court's order did not specify whether the arbitration agreement in this case

was governed by the Federal Arbitration Act (“FAA”) or the Texas Arbitration Act (“TAA”).

See 9 U.S.C. §§ 1-16 (1999) (FAA); TEX . CIV. PRAC . & REM . CODE ANN . §§ 171.001-.098

(Vernon 1997 & Supp. 2008) (TAA). Therefore, Irwin seeks review of the order denying

arbitration both by mandamus and interlocutory appeal. See Jack B. Anglin Co., Inc. v.

Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (providing that litigants alleging entitlement to


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arbitration under the FAA and TAA must pursue parallel proceedings).

       The FAA “extends to any contract affecting commerce, as far as the Commerce

Clause of the United States Constitution will reach.” L & L Kempwood Assocs., L.P. v.

Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d 125, 127 (Tex.

1999) (per curiam); see In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.

2005); see also 9 U.S.C. § 2 (2005).        “Commerce” has been broadly defined and

encompasses contracts relating to interstate commerce. See In re Gardner Zemke Co.,

978 S.W.2d 624, 626 (Tex. App.–El Paso 1998, orig. proceeding). The FAA does not

require a substantial effect on interstate commerce; rather, it requires commerce to be

involved or affected. See L & L Kempwood Assocs., L.P, 9 S.W.3d at 127.

       In the instant case, the parties to the agreement at issue are from different states.

Irwin is a Colorado law firm. Tony Martinez and his law office are from Texas. The

agreement at issue pertains to attorney’s fees and expenses relating to the Fen-Phen

litigation, which involves clients from Nebraska, Colorado, Wyoming, Oklahoma, and other

states, and the MDL proceeding in Pennsylvania. Martinez does not challenge the

application of the FAA to the Agreement. Given these facts, we conclude the agreement

at issue evidences a transaction involving commerce and is therefore subject to the FAA.

       When a trial court erroneously denies a motion to arbitrate under the FAA,

mandamus is the appropriate remedy. In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.

2002) (orig. proceeding); see 9 U.S.C.A. § 4 (2005) (providing, in part, that “[a] party

aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written

agreement for arbitration may petition . . . for an order directing that such arbitration

proceed in the manner provided for in such agreement”); Nabors Drilling USA, LP v.

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Carpenter, 198 S.W.3d 240, 246 (Tex. App.–San Antonio 2006, orig. proceeding).

Accordingly, we dismiss Irwin’s interlocutory appeal and consider the merits of its petition

for writ of mandamus.

                                  III. STANDARD OF REVIEW

       To be entitled to mandamus relief, a petitioner must show that the trial court clearly

abused its discretion and that the relator has no adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)); see In re McAllen Med. Ctr., Inc., 275

S.W.3d 458, 462 (Tex. 2008) (orig. proceeding). We may not substitute our judgment for

that of the trial court with respect to the resolution of factual issues or matters within the

trial court’s discretion. Walker, 827 S.W.2d at 839-40. The relator must show that the trial

court could reasonably have reached only one decision. Id. The reviewing court cannot

disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id.

With respect to the trial court’s decision on legal issues, our review is much less

deferential. Id. at 840. A trial court has no discretion in determining what the law is or

applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply

the law correctly will constitute an abuse of discretion. Id.

                                  IV. VALIDITY AND SCOPE

       A party seeking to compel arbitration by a writ of mandamus must (1) establish the

existence of a valid agreement to arbitrate under the FAA, and (2) show that the claims in

dispute are within the scope of the agreement. In re Kellogg Brown & Root, Inc., 166

S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). “Whether a valid arbitration agreement

exists is a legal question subject to de novo review.” In re D. Wilson Constr. Co., 196

                                              5
S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). In determining the validity of agreements

to arbitrate which are subject to the FAA, we generally apply state-law principles governing

the formation of contracts. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex.

2006) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). If the

trial court finds there is a valid agreement to arbitrate, the burden shifts to the party

opposing arbitration to prove his defenses. J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223, 227 (Tex. 2003).

       Once a valid agreement to arbitrate has been established, the court must then

determine whether the arbitration agreement covers the nonmovants’ claims. In re

FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (orig. proceeding). To determine

whether an existing arbitration agreement covers a party’s claims, a court must “focus on

the complaint’s factual allegations rather than the legal causes of action asserted.” Id. at

754. Federal policy embodied in the FAA favors agreements to arbitrate, and courts must

resolve any doubts about an arbitration agreement’s scope in favor of arbitration. Id. at

753. If the arbitration agreement encompasses the claims and the party opposing

arbitration has failed to prove its defenses, the trial court has no discretion but to compel

arbitration and stay its own proceedings. Id. at 753-54; D.R. Horton, Inc. v. Brooks, 207

S.W.3d 862, 866-67 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Feldman/Matz

Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 883 (Tex. App.–Houston

[14th Dist.] 2004, no pet.).

                               V. AGREEMENT TO ARBITRATE

       “Courts may not order parties to arbitrate unless they have agreed to do so.” In re

Golden Peanut Co., LLC, 269 S.W.3d 302, 307 (Tex. App.–Eastland 2008, orig.

                                             6
proceeding); Belmont Constructors, Inc. v. Lyondell Petrochem. Co., 896 S.W.2d 352,

356-57 (Tex. App.–Houston [1st Dist.] 1995, no writ [appeal and orig. proceeding]); see

Freis v. Canales, 877 S.W.2d 283, 284 (Tex. 1994) (“While courts may enforce

agreements to arbitrate disputes, arbitration cannot be ordered in the absence of such an

agreement.”).   Therefore, despite strong presumptions that favor arbitration, a valid

agreement to arbitrate remains a settled, threshold requirement to obtaining relief, whether

under the TAA or the FAA. See Kellogg Brown & Root, Inc., 166 S.W.3d at 737-38 (FAA);

J.M. Davidson, Inc., 128 S.W.3d at 227 (TAA). This is so because “the purpose of the FAA

was to make arbitration agreements as enforceable as other contracts, not more so.”

Kellogg Brown & Root, Inc., 166 S.W.3d at 738 (quoting Bridas S.A.P.I.C. v. Gov't of

Turkm., 345 F.3d 347, 354 n.4 (5th Cir. 2003)).

       Under the FAA, ordinary principles of state contract law determine whether there is

a valid agreement to arbitrate. Id. at 737-38; J.M. Davidson, Inc., 128 S.W.3d at 227-28;

Halliburton Co., 80 S.W.3d at 568. In construing the agreement, our primary concern is

to ascertain and give effect to the intentions of the parties as expressed in the contract.

Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998); Aspen

Tech., Inc. v. Shasha, 253 S.W.3d 857, 861-62 (Tex. App.–Houston [14th Dist.] 2008, no

pet.). To ascertain the parties’ true intentions, we examine the entire agreement in an

effort to harmonize and give effect to all provisions of the contract so that none will be

rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647,

652 (Tex. 1999).

                                       VI. ANALYSIS

       In the instant case, Martinez contends that the underlying litigation does not fall

                                             7
within the scope of the arbitration provision at issue. We agree, and need not look outside

the contract at issue to determine that the instant dispute is not subject to arbitration. The

underlying litigation concerns the division of attorney’s fees. The first paragraph of the

agreement at issue deals solely with the division and distribution of attorney’s fees and

contains no reference to negotiation, mediation, or arbitration of any such disputes. The

second paragraph of the agreement, which requires arbitration, is expressly limited in

scope to the “division of expenses regarding the Fen-Phen litigation.” The arbitration

agreement is specifically limited in scope, and does not apply to the instant dispute. The

agreement to arbitrate disputes regarding the division of expenses does not stand alone

to create a broad agreement to arbitrate any dispute arising under the entire contract. It

must be construed in its context, and the intent of the parties should be ascertained by

according the contractual language its plain grammatical meaning. See Lyons v.

Montgomery, 701 S.W.2d 641, 643 (Tex. 1985); see In re Brookshire Bros., 198 S.W.3d

381, 386 (Tex. App.–Texarkana 2006, orig. proceeding).

       Construing the contract by its plain language, it is clear that the parties agreed to

arbitrate the division of expenses, but not attorney’s fees. In this regard, we note that the

policy favoring arbitration “cannot serve to stretch a contractual clause beyond the scope

intended by the parties.” Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 230 (Tex.

App.–Houston [14th Dist.] 1993, writ denied). The scope of the contract provision here at

issue is not reasonably debatable. As pointed out above, it is clearly limited by its plain

language. Had the parties intended to enter a broad agreement to arbitrate all disputes,

including the divisions of attorney’s fees, they could easily have done so. In this regard,

“the failure to use a standard broad form arbitration clause may be considered evidence


                                              8
that the parties intended to limit the arbitrable issues and the circumstances requiring

arbitration.” Belmont Constructors, 896 S.W.2d at 358.

                                      VII. CONCLUSION

       We dismiss Irwin’s interlocutory appeal in Cause No. 13-08-00701-CV for want of

jurisdiction. We conclude that the trial court did not err in refusing to order the underlying

matter to arbitration in Cause No. 13-09-00025-CV. Accordingly, we deny the petition for

writ of mandamus. See TEX . R. APP. P. 52.8(a).




                                                  ROGELIO VALDEZ
                                                  Chief Justice


Memorandum Opinion delivered and
filed on this the 2nd day of June, 2009.




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