                                                                                   ACCEPTED
                                                                               13-14-00641-CV
                                                               THIRTEENTH COURT OF APPEALS
                                                                      CORPUS CHRISTI, TEXAS
                                                                          4/23/2015 5:14:13 PM
                                                                             DORIAN RAMIREZ
                                                                                        CLERK




                                                     FILED IN
                         NO. 13-14-00641-CV  13th COURT OF APPEALS
                                          CORPUS CHRISTI/EDINBURG, TEXAS
                                              4/23/2015 5:14:13 PM
__________________________________________________________________
                                               DORIAN E. RAMIREZ
                                                      Clerk
                   IN THE COURT OF APPEALS
                FOR THE 13th DISTRICT OF TEXAS
__________________________________________________________________

                        AOF SERVICES, LLC
                                                Appellant
                                  v.

                      RONALD SANTORSOLA
                                       Appellee



     ON APPEAL FROM AN INTERLOCUTORY ORDER OF THE
     2nd 25th DISTRICT COURT OF GONZALES COUNTY, TEXAS
                    TRIAL COURT NO. 25,609-CV


                REPLY BRIEF FOR THE APPELLANT
                      AOF SERVICES, LLC


                                Paul C. Allred
                                Texas Bar No. 01102000
                                8150 N. Central Expressway, Suite 700
                                Dallas, TX 75206
                                Tel (214) 448-9496
                                Fax (214) 276-1325
                                paulallred@msn.com

                                Attorney for Appellant
                                  TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE .......................................................... ii

TABLE OF AUTHORITIES ........................................................................ iii

SUMMARY OF THE ARGUMENT ........................................................... 5

ARGUMENT AND AUTHORITIES .......................................................... 6

CONCLUSION/PRAYER.............................................................................. 12

CERTIFICATE OF SERVICE ..................................................................... 13

APPENDIX…………………………………..……………………….……….14



                           CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using Microsoft

Word and contains 1,910 words, as determined by the computer software’s word-

count function, excluding the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1).




                                                       Paul C. Allred
                             TABLE OF AUTHORITIES

   CASES                                                       page

   Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez…………….…… 6, 7
   2013 Tex. App. LEXIS 7843 at *23
   (Tex. App. – Corpus Christi, June 27, 2013)

   In re Poly-America, L.P. …………………………………………………… 7
   262 S.W.3d 337, 355-56 (Tex. 2008) (orig. proceeding)

   In re Fleetwood Homes of Texas, L.P……………………………………... 7
   257 S.W.3d 692, 695 (Tex. 2008) (per curium)




APPELLANT’S REPLY BRIEF -Page 3
               SUMMARY OF APPELLANT’s REPLY ARGUMENT

         The Appellee’s arguments that the arbitration agreement is unconscionable

   because it is one sided, because it unfairly limits discovery, and because it unfairly

   splits fees, are all unsupported.

         The arbitration agreement is bilateral between the parties.

         The arbitration agreement does not unfairly limit discovery.

         And the arbitration agreement does not unfairly split fees.

         Accordingly, the evidence submitted by Appellee does not support the trial

   court’s finding that the arbitration agreement was unconscionable on any of these

   grounds. Therefore, the trial court erred in denying AOF’s Plea in Abatement and

   Motion to Compel Arbitration.

         AOF respectively requests this Court to reverse the trial court’s order

   denying AOF’s Plea in Abatement and Motion To Compel Arbitration, and render

   judgment in favor of Appellant compelling arbitration and abating pending suit

   pending resolution of the arbitration proceeding.




APPELLANT’S REPLY BRIEF -Page 4
            APPELLANT’s REPLY ARGUMENT AND AUTHORITIES


   A.    The arbitration agreement is a bilateral agreement to arbitrate that
   applies equally to AOF and Appellee
         Appellee argues that only his claims are subject to arbitration, while AOF’s

   claims are excluded.     This is contrary to the unambiguous language of the

   arbitration agreement.

         The arbitration agreement provides that:

                 “any claim, controversy, or other dispute relating to
          my employment, separation from the company, or
          following separation from the company, shall be resolved
          by arbitration.” (Apx: Exhibit A at p4)


         This agreement applies equally to employer and employee.

         The agreement has certain exceptions, but these exceptions again apply

   equally to employer and employee, and are primarily for claims subject to

   administrative procedures.

         The case Appellee relies on is wholly distinguishable and illustrates how an

   agreement that a court found is one-sided is different from the AOF arbitration

   agreement. In Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, 2013 Tex.

   App. LEXIS 7843 at *23 (Tex. App. – Corpus Christi, June 27, 2013), an attorney

   engagement agreement provided that disputes about services provided under the

APPELLANT’S REPLY BRIEF -Page 5
   agreement would be subject to arbitration but a dispute over payment of services

   would not. Id. at *2. That is two sides of the same coin, and it is thus not

   surprising that, particularly in an attorney/client agreement where a fiduciary duty

   is owed to the client, the court found this to be unfairly one-sided.

         The opposite is true here. The arbitration agreement does not provide that

   one type of claim is arbitrable for the employee but not for the employer. Thus,

   Appellee failed to meet his burden of proving that the arbitration agreement is

   substantively unconscionable.



   B.    The arbitration agreement does not unfairly limit discovery

         The arbitration agreement’s limitation on discovery is appropriate and fully

   enforceable.

         The Texas Supreme Court held that “limited discovery is one of arbitration’s

   ‘most distinctive features.’” In re Fleetwood Homes of Texas, L.P., 257 S.W.3d

   692, 695 (Tex. 2008) (per curium). The Court further noted that the argument that

   “‘streamlined’ discovery makes arbitration unconscionable would nullify almost

   all arbitration agreements. We hold that arbitration's limits on discovery for both

   parties does not make it unconscionable.” Id.

         Likewise, the Supreme Court in Poly-America held that discovery limits of


APPELLANT’S REPLY BRIEF -Page 6
   25 interrogatories and 25 requests for production in the arbitration agreement at

   issue in that case were not substantively unconscionable.

         Appellee’s so-called evidence in support of his response to the motion to

   compel in which Appellee’s counsel states that in these types of cases he sends

   “approximately 85 requests for production” and “21 interrogatories with permitted

   subparts” (see Apx: Exhibit B p1) is no evidence at all.

         Appellee fails to identify and provide specific evidence as to why the

   Appellee cannot reasonably meet his proof burden based upon the discovery that is

   provided for in the arbitration agreement.

         Appellee fails to provide specific evidence of what information Appellee

   reasonably must obtain from AOF in the additional 60 requests for production and

   the additional 7 Interrogatories that Appellee’s attorney allegedly normally serves

   in this type of case, and why that information is not otherwise reasonably

   obtainable through deposition testimony, or any other discovery that the parties

   could agree to.

         Furthermore, Appellee fails to provide any evidence that Appellee cannot

   reasonably obtain the information he needs to meet his burden of proof under the

   discovery limitations in the arbitration agreement.


APPELLANT’S REPLY BRIEF -Page 7
   C.    The fee-splitting agreement in the arbitration agreement is fair and
   reasonable

           Appellee’s argument that the arbitration agreement is substantively

   unconscionable because it requires the Appellee to pay “astronomical” arbitration

   costs is unsupported by the Espinoza affidavit.

           The Espinoza affidavit states that the arbitration of the Christine Torres v.

   Stagg Restaurants case to which the attached aribtors’ invoice is attached was for

   an arbitration that lasted only one day, stating in relevant part:

           “…The arbitration took place in San Antonio, TX in the
           spring of 2013 and lasted only one day.” (Apx: Exhibit B at
           p1)


   This statement directly conflicts with the arbitrator’s invoice which identifies

   anticipated arbitrator’s fees and costs for three days of arbitration (identified on the

   invoice as the days of 01/22/2013, 01/22/2013, and 01/23/2013), stating in relevant

   part:

           “..Your Share of the Neutral Compensation Deposit
           covering 3 days of Hearing…..7,500” (Apx: Exhibit B at p2)


           Additionally, the Invoice/Statement reflects anticipated arbitrator’s charges

   of $7,500 for 24 hours of Study.

           The Invoice/Statement attached to the Espinoza affidavit is only a cost

APPELLANT’S REPLY BRIEF -Page 8
   estimate, or a request for a deposit for a three day arbitration and a deposit for 24

   hours’ worth of “Study” by the arbitrator.

         The Invoice/Statement on its face is not a representation of the actual costs

   incurred in the arbitration of the Christine Torres v Stagg Restaurants case.

         The Espinoza affidavit states that the “Total cost for the entire arbitration,

   from start to finish, was $20,225.” This large figure is not represented on the

   attached Invoice/Statement anywhere, and based upon the Invoice/Statement it

   cannot be accurate or valid for the actual charges incurred for a one day arbitration,

   which could only reasonably be guessed at being a third of the $17,250 figure of

   the Invoice/Statement.

         There is no evidence that 24 hours of “Study” for the arbiter would be

   applicable to the arbitration of Appellee’s claim against AOF.

         Not only does the Espinoza affidavit completely misrepresent the arbitrator’s

   actual charges for a 1 day arbitration based on the attached Invoice/Statement,

   more critically it fails to ever state: a) that the arbitration of Appellee’s claims

   against AOF in this dispute will require 3 days arbitration and 24 hours of “Study”

   by the arbitrator so that an arbitrator’s fee in excess of $20,000 is reasonably

   anticipated; and b) that the Appellee will likely actually incur arbitration costs

   exceeding $5,000.

APPELLANT’S REPLY BRIEF -Page 9
         The Espinoza affidavit states that Appellee’s case against AOF is very

   similar to the Christine Torres v Stagg Restaurants case, which at best implies that

   it would require a 1 day arbitration, since it identifies the cases as being similar,

   and not a 3 day arbitration.

         Based on the Invoice/Statement, the arbitrator’s fees for a 1 day arbitration

   in the Christine Torres v Stagg Restaurants case could not possibly be the $20,225

   asserted in the affidavit.         The Invoice/Statement does not state what the

   arbitrator’s fees actually were for a 1 day arbitration in the Christine Torres v

   Stagg Restaurants case.

         What the Espinoza affidavit specifically states regarding the anticipated

   arbitrator’s fees is as follows:

         “If Mr. Santorsola is required to arbitrate his case through
         a similar arbitration association, the cost for the arbitration
         and litigation process will reasonably exceed $5,000, if he is
         require to pay approximately twenty percent of the costs”.
         (Apx: Exhibit B at p1)

         Espinoza’s statement in the affidavit alleges that the entire cost of the

   arbitration and litigation process will reasonably exceed $5,000, but fails to

   specifically allege what Mr. Santorsola’s portion of those costs would be.

         The affidavit fails to specifically state what Mr. Santorsola’s anticipated

   portion of the anticipated arbitrator’s fees would be.

APPELLANT’S REPLY BRIEF -Page 10
         In additional support for its argument, Appellee also submits the affidavit of

   Ronald Santorsola (Apx: Exhibit C), which states in relevant part:

         “…If it is determined that I must bring my lawsuit against
         my employer in arbitration, and risk having to pay over
         $5,000 in arbitrator fees, I will probably not continue with
         my claim. This risk is too great for me and I do not have
         that type of money…” (Apx: Exhibit C at p1)


   Santorsola’s affidavit does not state that he reasonably anticipates incurring $5,000

   in arbitrator’s fees in the arbitration of his claim against AOF.

         Neither the Espinoza nor the Santorsola affidavits state what the actual

   anticipated arbitrator’s costs Santorsola reasonably anticipates incurring would be

   for the arbitration of his claim against AOF.

         The record fails to offer any evidence of what the actual anticipated

   arbitrator’s costs Santorsola reasonably anticipates incurring would be.




APPELLANT’S REPLY BRIEF -Page 11
                                CONCLUSION/PRAYER



         For the reasons stated herein, AOF requests this Court to find that the trial

   court erred by finding that 1) the arbitration agreement is unconscionable, and 2)

   that the arbitration agreement is unenforceable.      AOF requests this Court to find

   that the trial court erred by denying the Plea in Abatement and Motion to Compel

   Arbitration.

         Accordingly, AOF respectfully requests that the order denying the Plea in

   Abatement and Motion to Compel Arbitration be reversed. In the alternative, AOF

   prays that this Court remand this cause to the trial court for further proceedings

   consistent with its opinion on the issues presented herein. AOF further requests

   that this Court award it its costs of court on appeal.

         AOF further prays for such other and further relief, both general and special,

   at law or in equity, to which it is justly entitled, and for which it will ever pray.




APPELLANT’S REPLY BRIEF -Page 12
                                   Respectfully Submitted,

                                   LAW OFFICES OF PAUL C. ALLRED




                                   Paul C. Allred
                                   State Bar Number: 001102000

                                   Campbell Centre II
                                   8150 North Central Expressway, Suite 700
                                   Dallas, Texas 75206
                                   Telephone Number (214) 449-9496
                                   Facsimile Number (214) 276-1325

                                   ATTORNEY FOR APPELLANT


                            CERTIFICATE OF SERVICE

         The undersigned attorney at law, does hereby certify that a true and correct
   copy of the foregoing attached instrument has been served upon the Appellee,
   Ronald Santorsola by and through his respective attorney of record on this the 23rd
   day of April, 2015.



                                   Paul C. Allred




APPELLANT’S REPLY BRIEF -Page 13
                                      APPENDIX



   Exhibit A: Affidavit for Admission of Business Records


   Exhibit B:   Affidavit of Javier Espinoza


   Exhibit C:   Affidavit of Ronald Santorsola




APPELLANT’S REPLY BRIEF -Page 14
 APPELLANT’s REPLY BRIEF




EXHIBIT A
 

 

 

 

 

 

 

 




    EXHIBIT A 
 APPELLANT’s REPLY BRIEF




EXHIBIT B
 APPELLANT’s REPLY BRIEF




EXHIBIT C
