                               NUMBER 13-06-469-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROBERT S. BENNETT, INDIVIDUALLY
AND THE BENNETT LAW FIRM, P.C.,                                              Appellants,

                                             v.

STEPHEN T. LEAS,                                                                Appellee.


               On appeal from the County Court at Law No. 4
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
                Memorandum Opinion by Justice Yañez

       In this interlocutory appeal, appellants, Robert S. Bennett, individually, and the

Bennett Law Firm, P.C. (collectively, “Bennett”), challenge the trial court’s denial of their

request to compel arbitration in this legal malpractice action filed against Bennett by
appellee, Stephen T. Leas.1 By five issues, appellants contend the trial court erred in (1)

determining that some of the matters sought to be arbitrated fell outside the scope of the

arbitration agreement; (2) applying the “personal injury” exception to arbitration; (3) finding

that Bennett waived the arbitration provision; and (4) finding the arbitration clause

unenforceable as against public policy. We affirm.

                                                 Background

         Leas, an attorney, asked Bennett to represent him in connection with several

pending grievance matters involving Maria H. Rodriguez.2 Leas and Bennett entered into

an “Attorney Retainer Agreement” regarding the representation; the agreement contained

an arbitration clause. A few weeks later, Leas asked Bennett to represent him in several

other grievances filed against Leas by Gloria Ruel Herrera, Daniel Alvarez, and Candelaria

Reyes.3

         Bennett contends that Leas failed to timely pay his invoices for legal services, and

in December 2003, Bennett sought to initiate arbitration. In March 2004, Leas sued

Bennett, requesting a declaratory judgment that Bennett was not entitled to arbitration.

Bennett filed a plea in abatement, requesting abatement of Leas’ petition and enforcement


         1
            The Texas Arbitration Act (TAA) expressly grants interlocutory jurisdiction over denials of
applications to com pel arbitration. T EX . C IV . P RAC . & R EM . C OD E A N N . § 171.098(a)(1) (Vernon 2005); see In
re D. W ilson Constr. Co., 196 S.W .3d 774, 778-79 (Tex. 2006) (orig. proceeding) . Appellee asserts that “it
is undisputed that only the Texas Arbitration Act is applicable.” Appellants do not dispute this assertion. The
arbitration paragraph provides for arbitration “adm inistered by the Am erican Arbitration Association (AAA)”
“in accordance with the laws of the State of Texas.”

         2
         The m atters referenced in the Rodriguez “Attorney Retainer Agreem ent” are “State Bar of Texas
Grievance Matters; Appeal and Motion to Reconsider – S2080103329; Maria E. Rodriguez – Stephen T. Leas
and BODA Case No. 26618; Stephen T. Leas v. Commission for Lawyer Discipline.”

         3
         Although the record contains letters of representation and “Attorney Retainer Agreem ents” between
Bennett and Leas regarding these m atters, the agreem ents are not signed by Leas.

                                                           2
of the arbitration agreement.

        Following a hearing, the trial court signed an order abating both Leas’ lawsuit and

Bennett’s request for arbitration until the underlying grievance matters were completed.

Bennett attempted to appeal the trial court’s order; this Court dismissed the appeal for want

of jurisdiction.4 Bennett filed a petition for review with the supreme court, but shortly

thereafter, Leas advised the trial court that the underlying matters had been completed.

The trial court returned the case to its docket.

        On April 18, 2006, Bennett again requested that the trial court order arbitration.

Following a hearing, the trial court denied Bennett’s request for arbitration. The trial court

issued findings of fact and conclusions of law on September 19, 2006. The trial court’s

findings and conclusions included the following:

        1. The Plaintiff [Leas] has alleged causes of action alleging legal
        malpractice, breach of fiduciary duty, fraud and breach of contract against
        Defendant [Bennett] concerning four (4) separate and independent cases in
        which Defendant represented Plaintiff. They are known as “Rodriguez,”
        “Herrera,” “Alvarez,” and “Reyes.”

        2. There is no written agreement signed by the parties that involve any
        issues relating to the “Herrera,” “Alvarez,” and “Reyes” matters.

        3. The Defendant, in a hearing before this Court on June 10, 2004, had
        stipulated to this Court that the “Rodriguez” contract only concerned the
        “Rodriguez” matter and no other matter.

        4. There is a written contract between the parties concerning only the
        “Rodriguez” matter that does contain an arbitration clause under the Texas
        Arbitration Act (TAA).

        5. One of the causes of action alleged by the Plaintiff concerning the
        “Rodriguez” matter is for a personal injury.


        4
         See Robert S. Bennett, Individually, et al. v. Stephen T. Leas, No. 13-04-362-CV, (Tex. App.–Corpus
Christi March 17, 2005) (per curiam ) (m em o op.)(not designated for publication).

                                                     3
      ....

      7. The contract was not signed by either party’s attorney of record.

      8. The Plaintiff was not advised in writing by the Defendant to consult an
      attorney prior to signing the agreement.

      9. The Plaintiff was not independently represented when the agreement was
      made between the parties.

      10. The arbitration clause in the ‘Rodriguez’ matter attempts to limit the
      liability of the Defendant for malpractice.

      ....

      19. The Texas Civil Practice and Remedy [sic] Code § 171.001, states that,
      for an arbitration agreement to be enforceable, that there must exist a written
      agreement to arbitrate between the parties. Therefore, there being no
      written contract with an arbitration agreement that exist[s] between the
      parties concerning the “Herrera,” “Alvarez,” and “Reyes” matters, the
      Defendant is not entitled to compel arbitration on those matters.

      20. The arbitration clause in the “Rodriguez” matter is in violation of the
      Texas Rules of Professional Conduct, Rule 1.08(g), and as such is against
      public policy and is therefore unenforceable.

      21. The Defendant has waived any right to arbitrate in the “Rodriguez”
      matter, by substantially invoking the judicial process resulting in the Plaintiff
      suffering actual prejudice.

                           Standard of Review and Applicable Law

      When reviewing by interlocutory appeal an order denying arbitration under the TAA,

we apply a de novo standard to legal determinations and a “no evidence” standard to

factual determinations.5 Under the “no evidence” standard, we view the evidence in the

light most favorable to the challenged finding and indulge every reasonable inference that




      5
          TMI, Inc. v. Brooks, 225 S.W .3d 783, 791 (Tex. App.–Houston [14th Dist.] 2007, pet. denied).

                                                    4
would support it.6 We must credit favorable evidence and disregard contrary evidence only

if a reasonable factfinder could do so.7 A legal sufficiency challenge to the findings of fact

will not be sustained if there is more than a scintilla of evidence to support the findings.8

In conducting a factual sufficiency review, appellate courts may set aside a trial court’s

finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong or unjust.9

        Under the TAA, a party seeking to compel arbitration must (1) establish the

existence of a valid, enforceable arbitration agreement and (2) show that the claims

asserted fall within the scope of that agreement.10 If the movant establishes that an

arbitration agreement governs the dispute, the burden then shifts to the party opposing

arbitration to establish a defense to the arbitration agreement.11 If the trial court concludes

the movant has met its burden and the party opposing arbitration has failed to prove its

defenses, the trial court has no discretion but to compel arbitration.12

        Although courts generally enforce arbitration agreements, a court may not order



        6
            Id. (citing City of Keller v. W ilson, 168 S.W .3d 802, 827 (Tex. 2005)).

        7
            Id.

        8
            Davey v. Shaw, 225 S.W .3d 843, 849 (Tex. App.–Dallas 2007, no pet.).

        9
            Id.

        10
          Brooks, 225 S.W .3d at 791; Cappadonna Elec. Mgmt. v. Cameron County, 180 S.W .3d 364, 370
(Tex. App.–Corpus Christi 2005, orig. proceeding) (citing In re Oakwood Mobile Homes, Inc., 987 S.W .2d 571,
573 (Tex. 1999) (orig. proceeding); In re C & H News Co., 133 S.W .3d 642, 645 (Tex. App.–Corpus Christi
2003, orig. proceeding)).

        11
             McReynolds v. Elston, 222 S.W .3d 731, 739 (Tex. App.–Houston [14th Dist.] 2007, no pet.).

        12
             Id.

                                                         5
arbitration in the absence of such an agreement.13 The parties’ agreement to arbitrate

must be clear.14 If one party denies that there is a binding arbitration agreement, the trial

court may summarily decide whether to compel arbitration on the basis of uncontroverted

affidavits, pleadings, discovery, and stipulations.15 When a reviewing court is called upon

to decide whether the parties have agreed to arbitrate, it does not resolve doubts or indulge

a presumption in favor of arbitration.16 Instead, it applies standard contract principles to

determine whether a valid arbitration agreement exists.17 Whether there is an enforceable

agreement to arbitrate is a question of law and is therefore reviewed de novo.18

        Determining whether a claim falls within the scope of an arbitration agreement

involves the trial court’s legal interpretation of the agreement, and we review such

interpretations de novo.19 The burden lies with the party opposing arbitration to show that

the claims fall outside the scope of the arbitration agreement.20

        We will not find error by the trial court and are required to uphold the trial court’s




        13
             Cappadonna, 180 S.W .3d at 370 (citing Freis v. Canales, 877 S.W .2d 283, 284 (Tex. 1994)).

        14
          Id. (citing Mohamed v. Auto Nation USA Corp., 89 S.W .3d 830, 835 (Tex. App.–Houston [1st Dist.]
2002, no pet., com bined appeal & orig. proceeding)).

        15
             Id. (citing Jack B. Anglin Co. v. Tipps, 842 S.W .2d 266, 269 (Tex. 1992) (orig. proceeding)).

        16
             In re Bunzl U.S.A., Inc., 155 S.W .3d 202, 209 (Tex. App.–El Paso 2004, orig. proceeding).

        17
             Id.

        18
           D. W ilson C onstr. Co., 196 S.W .3d at 781; McReynolds, 222 S.W .3d at 739; Cappadonna, 180
S.W .3d at 370.

        19
             McReynolds, 222 S.W .3d at 740.

        20
             Id.

                                                        6
ruling if it is proper on any grounds.21

                                                  Analysis

        By their first issue, appellants contend the trial court erred in finding that the Alvarez,

Herrera, and Reyes matters are not within the scope of the arbitration agreement.

Appellants contend that the “trial court’s first, second, fourth, and nineteenth findings

and/or conclusions . . . are incorrect and should be disregarded.”22 Appellants challenge

the legal and factual sufficiency of the evidence supporting the trial court’s third

finding—that Bennett stipulated to the court that the Rodriguez contract concerned the

Rodriguez matter only.

        Appellants argue that although the arbitration agreement in the Rodriguez contract

does not mention the Alvarez, Herrera, and Reyes matters, those matters are nonetheless

covered by the arbitration clause “because they were within the attorney-client relationship

of Bennett and Leas.” According to appellants, the trial court erred in failing to give full

effect to the provision stating that arbitration was applicable to any “controversy, claim, or

dispute in the course and scope of the Attorney-Client relationship or arising out of or

relating to this Agreement . . . .”




        21
             Grand Homes 96, L.P. v. Loudermilk, 208 S.W .3d 696, 702 (Tex. App.–Fort W orth 2006, pet. filed)
(citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W .2d 35, 43, 41 (Tex. 1998) (requiring us to uphold
trial court's evidentiary ruling if it is proper on any grounds); Harwell v. State Farm Mut. Auto. Ins. Co., 896
S.W .2d 170, 173 (Tex. 1995) (holding sum m ary judgm ent m ust be upheld if it is proper on any grounds)).

        22
           In their brief, appellants refer to the trial court’s findings of fact and conclusions of law issued on
August 2, 2006 and on Septem ber 18, 2006. The court’s August 2, 2006 findings and conclusions are
included in its Septem ber 18, 2006 findings. Therefore, for ease of reference, we refer to the Septem ber 18,
2006 findings.

                                                        7
         As to the court’s third finding that Bennett stipulated at a June 10, 2004 hearing23

that the Rodriguez contract concerns only the Rodriguez matter, appellants assert that the

finding is “simply not true.” According to appellants, Bennett stipulated that “the contract

in question mentions only the Rodriguez matter and no other matters,” but made no

stipulation regarding whether the arbitration clause was broad enough to encompass the

additional matters.

         We begin with appellants’ challenge to the legal and factual sufficiency of the

evidence supporting the court’s third finding that Bennett stipulated at the June 10, 2004

hearing that the Rodriguez contract concerns only the Rodriguez matter.24 At the hearing,

appellee and Robert Bennett provided argument and testimony:

         [Robert Bennett]: . . . To go back to testify now about these, all the cases,
         by sworn answer, Mr. Leas agrees that I was hired to represent him on the
         Rodriguez case. The Rodriguez case was where there was a signed
         contract.

               Then, as we went along in our relationship, I was also, besides the
         Rodriguez case, asked to represent him—I”ll try to get these—all four
         matters straight—Herrera, Alvarez-Reyes—I’m sorry. Herrera is the second.
         Alvarez, slash, Reyes (Alvarez/Reyes) is the third, and Cuellar is the fourth.

                 And Mr. Leas testifies that he asked me to represent him besides the
         Rodriguez matter in the other three. He states that he never objected to the
         way that those four matters were billed. He never objected to them being
         billed under one invoice number prior to the lawsuit he filed. He testifies that


         23
           The reporter’s record reflects that the hearing occurred on June 9, 2004. The hearing addressed
appellee’s plea to abate appellants’ suit for collection of attorneys’ fees pending disposition of the underlying
m atters. The hearing also addressed appellants’ m otion to transfer venue (of appellee’s m alpractice suit) and
m otion to abate (sam e) based on the arbitration agreem ent.

        24
            W e note that appellants have specifically challenged the legal and factual sufficiency of the
evidence supporting only the trial court’s third finding. W ith regard to the rem aining findings, appellants sim ply
argue, without reference to any legal or factual sufficiency standard, that this Court “should disregard” the trial
court’s findings and conclusions. Appellee does not raise any challenge as to whether appellants have
adequately briefed their issues, and we do not address the issue.

                                                         8
           he never objected to all matters being billed together. He never made a
           written request at any time that these matters be separated out. He never
           requested separate invoices. He never separated out his payments, or the
           payments that he sent were for all the works [sic] provided. And, as of today,
           he has provided no documentation to me or to the Court in any way
           contradicting our Motion to Transfer Venue.

           ....

           [Leas]: Your Honor, once again, the basis of my objection was that he’s
           [Robert Bennett] attempting to make [the Rodriguez contract] the basis of the
           agreement on several different contracts, which simply cannot be done. I
           denied that at—in No. 3, Request for Admissions there, I denied that they
           were the same terms, the oral contracts, as the written contracts.

                  Now, if, one, it be stipulated that this is25 as to the Rodriguez matter
           and the Rodriguez matter only, that’s what the contract says. But to the
           other matters, no, sir, they’re not.

           [Court]: Only—as to Rodriguez only?

           [Leas]: Right.

           [Court]: Not the other people?

           [Leas]: Right.

           [Court]: Reyes, Cuellar, and . . .

           [Leas]: Yes, Your Honor. There is no written contract on those issues.

           [Court]: Okay. Mr. Bennett?

           [Robert Bennett]: Your Honor, I accept that. I’d like to go through and make
           sure that the other requests are also either agreed or the Court takes judicial
           notice.



           25
                The record shows that the “this” referred to is a request for adm ission from appellants to Leas,
stating:

           Adm it that the last sentence of the second paragraph pf Part VIII of the contract states, ‘Our
           dispute shall be determ ined by arbitration in Houston, Texas, before a solo arbitrator, in
           accordance with the laws of the State of Texas for agreem ents m ade in and to be perform ed
           in Texas.’

                                                          9
       We conclude that appellants’ argument before the trial court is essentially the same

as their argument on appeal: that the Rodriguez contract is the only “signed contract,” but

the arbitration agreement should be construed as applicable to the additional matters

because appellee “never objected” to the matters being treated collectively for billing and

payment purposes. We also conclude that the third finding—that appellants stipulated that

the Rodriguez contract only “concerned” the Rodriguez matter—does not necessarily

preclude appellants’ argument that although the arbitration agreement specifically

pertained or “concerned” only the Rodriguez matter, it should nonetheless be interpreted

to encompass the additional matters. After reviewing the record, we conclude there is

more than a scintilla of evidence to support the trial court’s third finding.26 We also cannot

say that the third finding is so contrary to the overwhelming weight of the evidence as to

be clearly wrong or unjust.27

       We now turn to appellants’ argument that the trial court erred in finding that the

Alvarez, Herrera, and Reyes matters are not within the scope of the arbitration agreement.

Appellants argue that because the additional matters are within their attorney-client

relationship with Leas, and the agreement applies to any dispute in the course and scope

of the attorney-client relationship, the matters are subject to the arbitration agreement. We

are unpersuaded by appellants’ argument.

       The initial paragraph of the Rodriguez contract states:

       The purpose of this agreement is to set forth our understanding and
       agreement (“Agreement”), pursuant to which our law firm, THE BENNETT


       26
            See Shaw, 225 S.W .3d at 849.

       27
            See id.

                                             10
       LAW FIRM (“Firm”), has agreed to represent STEPHEN T. LEAS (“Client” or
       “you”) in the following referenced matters: State Bar of Texas Grievance
       Matters; Appeal and Motion to Reconsider – S2080103329; Maria H.
       Rodriguez – Stephen T. Leas and BODA Case No. 26618; Stephen T. Leas
       v. Commission for Lawyer Discipline (“Matters”)[.] We have, of course,
       discussed these Matters with you previously, but it is prudent that our
       understandings be documented to prevent any confusion or
       misunderstanding in the future.

Paragraph “C” in section “V” of the contract states:

       The legal fees agreed upon herein are for representation of the Client in the
       above referenced Matters and do not include Firm’s legal services in any
       other matter. In the event that representation is required in any other court
       or regarding any other matter, a new agreement must be made between the
       Firm and the Client.

Section “VIII,” entitled “Arbitration,” states, in pertinent part:

       To further clarify our agreement on arbitration, arbitration would apply to any
       controversy, claim or dispute in the course and scope of the Attorney-Client
       relationship or arising out of or relating to this Agreement or the breach,
       termination, enforcement, interpretation or validity thereof, including the
       determination of the scope or applicability of this agreement to arbitrate. Our
       dispute shall be determined by arbitration in Houston, Texas before a solo
       arbitrator, in accordance with the laws of the State of Texas for agreements
       made in and to be performed in Texas.

       “Disputes” shall include, without limitation, those involving fees, costs, billing,
       and breach of ethical or fiduciary duties.

       Appellants submitted the affidavit of Robert Bennett, which was attached to

appellants’ Plea in Abatement and Motion to Transfer Venue. In the affidavit, Bennett

states that Leas “had the Firm take on the additional cases, and representation in these

cases was undertaken on the mutual consent of both parties that the representation in all

cases would be handled per the terms of the original contract.”

       The trial court found that there was no written agreement between the parties

regarding the Herrera, Alvarez, or Reyes matters (finding number two). It also found that


                                               11
because there was no written agreement to arbitrate as to these parties, as required by

section 171.001 of the civil practice and remedies code,28 appellants were not entitled to

arbitration on those matters. We agree.

        The record contains no evidence of any written agreements to arbitrate regarding

the Herrera, Alvarez, or Reyes matters (and appellants do not contend that such written

agreements exist).          The statute does not provide that an arbitration agreement is

enforceable if it is based on the mutual verbal consent of the parties. We hold the trial

court did not err in concluding that appellants were not entitled to compel arbitration with

regard to the Herrera, Alvarez, and Reyes matters. We overrule appellants’ first issue.

                                       Personal Injury Exception

        In their second and third issues, appellants contend the trial court erred in applying

the “personal injury” exception in section 171.002(a)(3) of the civil practice and remedies

code because (1) a legal malpractice claim is not a claim for “personal injury” (second

issue), and (2) Bennett and Leas were both attorneys at the time they signed the

agreement (third issue). Appellants urge this Court to “disregard” the trial court’s fifth

through ninth findings of fact and conclusions of law.

        As appellants note, this Court has held that a claim for legal malpractice is a claim

for personal injury within the meaning of section 171.002(a) of the TAA.29 The TAA does



        28
            See T EX . C IV . P RAC . & R EM . C OD E A N N . § 171.001(a) (Vernon 2005) (providing that a written
agreem ent to arbitrate is valid and enforceable if the agreem ent is to arbitrate a controversy that: (1) exists
at the tim e of the agreem ent; or (2) arises between the parties after the date of the agreem ent).



        29
            In re Godt, 28 S.W .3d 732, 739 (Tex. App.–Corpus Christi 2000, orig. proceeding); see T EX . C IV .
P RAC . & R EM . C OD E A N N . § 171.002(a)(3) (Vernon 2005).

                                                       12
not apply to a claim for personal injury unless each party to a claim, on the advice of

counsel, agrees to arbitrate in writing, and the agreement is signed by each party and each

party’s attorney.30 The trial court found that (1) one of appellee’s claims in the Rodriguez

matter was a claim for personal injury; (2) neither party’s attorney signed the agreement;

(3) appellee was neither advised in writing to consult an attorney before signing the

agreement nor independently represented when signing the agreement.

        Although appellants urge us to “disregard” the trial court’s finding that the Rodriguez

contract was not signed by either party’s attorney of record, the record is clear that it was

not. The only signatures that appear on the contract are those of Leas and Robert

Bennett. Appellants argue that even if we find that appellee’s malpractice claim is a claim

for personal injury, the arbitration clause nonetheless complies with the TAA’s

requirements because both parties were attorneys.31 The statute, however, provides that

arbitration does not apply to personal injury claims unless “each party to the claim, on the

advice of counsel, agrees in writing to arbitrate” and “the agreement is signed by each

party and each party’s attorney.”32 The statute does not provide an exception if the parties

are attorneys.33 We hold the evidence is legally and factually sufficient to support the trial



        30
             See T EX . C IV . P RAC . & R EM . C OD E A N N . § 171.002(a)(3), (c).

        31
           Leas contends that at the tim e he signed the Rodriguez contract, he was not licensed to practice
law in the State of Texas. W e need not address this argum ent.

        32
             See id. at § 171.002(c) (em phasis added).

        33
            W e note that appellants’ argum ent— that a party m eets the requirem ent if he/she is an attorney—
is best directed to the Texas Legislature. W e also note that in this case, there is no evidence suggesting that
either party (both of whom were lawyers) was acting in his capacity as a lawyer representing him self as a
party. W e express no opinion regarding whether any such evidence could satisfy the statutory requirem ents.



                                                              13
court’s finding that “[t]he contract was not signed by either party’s attorney of record.” We

overrule appellants’ third issue. Thus, if appellee’s legal malpractice claim is a claim for

personal injury, the trial court did not err in denying arbitration because the Rodriguez

contract does not comply with section 171.002(c).

        Appellants note that since this Court’s holding in Godt, three of our sister courts

have held that a legal malpractice claim is not a claim for personal injury.34 In In re

Hartigan, the San Antonio court relied on a “plain reading of section 107.002" to conclude

that a legal malpractice claim “is not specifically prohibited from arbitration.”35 The Hartigan

court criticized our reliance on the cases cited in Godt, and argued that there is nothing in

the legislative history of section 107.002 to show that the legislature intended for the

personal injury provision to extend to legal malpractice claims.36 In Hartigan, the plaintiff’s

legal malpractice claim against her attorneys arose from her representation in a divorce

proceeding.37

        In Miller v. Brewer, the Amarillo court followed the rationale of the Hartigan court in

“refus[ing] to hold that a legal malpractice suit [is] per se one for personal injuries.”38 The

Miller court reasoned that the plaintiff’s legal malpractice claim arose “out of a suit for



        34
            See Taylor v. W ilson, 180 S.W .3d 627, 631 (Tex. App.–Houston [14th Dist.] 2005, pet. denied);
Miller v. Brewer, 118 S.W .3d 896, 898 (Tex. App.–Am arillo 2003, no pet.) (per curiam ); In re Hartigan, 107
S.W .3d 684, 690 (Tex. App.–San Antonio 2003, orig. proceeding).

        35
             In re Hartigan, 107 S.W .3d at 690.

        36
             See id.

        37
             See id. at 687.

        38
             Miller, 118 S.W .3d at 898.

                                                    14
economic losses as a result of employment discrimination,” and was therefore—like the

malpractice claim in Hartigan arising from representation in a divorce proceeding—“not a

suit for personal injuries” within the purview of the statute.39

       Finally, in Taylor v. Wilson, the Fourteenth Court of Appeals reached the same

conclusion as the Hartigan and Miller courts in holding that a legal malpractice claim is not

a claim for personal injury.40 In Wilson, the court noted that the plaintiff’s “underlying claim

was for economic losses rather than for personal injury.”41 The Wilson court also relied on

the legislative history of the TAA, which, according to the court, “reveals the legislature

intended to restrict the scope of the personal injury exception to physical personal injury.”42

       In his concurring opinion in Wilson, Justice Frost noted that “[t]he term ‘personal

injury’ has been used in both a narrow sense of ‘bodily injury’ and a broader sense,

meaning a personal wrong, including libel, slander, malicious prosecution, assault, and

false imprisonment, as well as bodily injury.”43 Justice Frost concluded that a legal

malpractice claim is not a personal-injury claim under either the narrow or broad definition

because it “does not involve bodily injury, and it does not involve injuries to rights regarding

the person.”44 Justice Frost also criticized the majority’s legislative history argument, noting



       39
            Id. at 898-99.

       40
            Taylor, 180 S.W .3d at 631.

       41
            Id. at 630.

       42
            Id.

       43
            Id. at 632 (Frost, J., concurring).

       44
            Id. at 632-33.

                                                  15
that it relies solely on a statement expressing an opinion of the author of a comment, and

is therefore, “not part of the legislative history at all.”45

        In Godt, we cited Sample v. Freeman46 and Estate of Degley v. Vega47 in support

of our holding that a legal malpractice claim is a claim for personal injury within the

meaning of section 171.001(a).48 We recognize that our sister courts have declined to

follow Godt. However, absent guidance from the supreme court on this issue, we decline

to abandon our earlier precedent.49 We conclude the trial court did not err in finding that

one of appellee’s claims in the Rodriguez matter (legal malpractice) was a claim for

personal injury. We overrule appellants’ second issue.

        Because we have determined that appellee’s legal malpractice claim is a claim for

personal injury within the meaning of section 171.001(a), and the Rodriguez contract does

not comply with the statutory requirements of section 171.001(c), we hold that the trial

court did not err in denying arbitration. Accordingly, we AFFIRM the trial court’s order



        45
          Id. at 634 (citing Robert J. Kraem er, Attorney-Client Conundrum: The Use of Arbitration Agreements
for Legal Malpractice in Texas, 33 S T . M AR Y ’S L.J. 909, 933 n.139 (2002).

        46
             Sample v. Freeman, 873 S.W .2d 470, 476 (Tex. App.–Beaum ont 1994, writ denied).

        47
             Estate of Degley v. Vega, 797 S.W .2d 299, 302-03 (Tex. App.–Corpus Christi 1990, no writ).

        48
             Godt, 28 S.W .3d at 738-39.

        49
            W e note that this issue is currently before the suprem e court. In the appellants’ brief in Chambers,
et al. v. O’Quinn, 2007 TX S. Ct. Briefs LEXIS 592, **15, appellants state:

        The Suprem e Court should exercise jurisdiction to hear and decide the m ost im portant issues
        of whether a com pulsory arbitration clause, in an attorney-client contingency fee contract
        involving a personal injury/property dam age case is enforceable, and whether, incidental to
        that overriding issue, whether the Petitioners “intentionally, voluntarily, intelligently and
        knowingly” waived their constitutional right to a trial by jury.




                                                       16
denying appellants’ request to compel arbitration.

       Because we are required to uphold the trial court’s ruling if it is proper on any

grounds,50 we need not address appellants’ remaining issues.51




                                                       LINDA REYNA YAÑEZ,
                                                       Justice



Dissenting Memorandum Opinion
by Justice Rose Vela.

Memorandum Opinion delivered and
filed this the 26th day of June, 2008.




       50
            See Loudermilk, 208 S.W .3d at 702.

       51
            See T EX . R. A PP . P. 47.1.

                                                  17
