                  NUMBER 13-11-00757-CV

                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG


ROYSTON, RAYZOR, VICKERY
& WILLIAMS, L.L.P.,                                     Appellant,

                               v.

FRANCISCO “FRANK” LOPEZ,                                Appellee.


             On appeal from the 148th District Court
                   of Nueces County, Texas.


                  NUMBER 13-12-00023-CV

  IN RE ROYSTON, RAYZOR, VICKERY & WILLIAMS, LLP

              On Petition for Writ of Mandamus


                    DISSENTING OPINION

  Before Chief Justice Valdez and Justices Benavides and Perkes
               Dissenting Opinion by Justice Perkes
       The majority opines that the arbitration agreement between Royston, Rayzor,

Vickery, & Williams, P.C. (“Royston Rayzor”) and Francisco Lopez is unconscionable. I

dissent because I do not believe that Lopez met his affirmative burden to show that the

agreement was unconscionable. Further, because the record also shows Lopez failed

to meet his burden to establish the applicability of any other affirmative defense to

arbitration, I would reverse and remand the case to the trial court for entry of an order

compelling arbitration.

       Lopez claimed only substantive unconscionability. His argument is based upon a

clause that required him to arbitrate all claims against Royston Rayzor, but Royston

Rayzor’s   fee   claims were     excluded    from   the   arbitration   agreement.    The

unconscionability of a contract is a question of law for the court. Ski River Dev., Inc. v.

McCalla, 167 S.W.3d 121, 136 (Tex. App.—Waco 2005, pet. denied).                The party

asserting unconscionability has the burden of proving both procedural and substantive

unconscionability. Id.    The grounds for substantive unconscionability must be so

shocking or gross as to compel a court to intercede. LeBlanc v. Lange, 365 S.W.3d 70,

88 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The principle involved is “one of

preventing oppression and unfair surprise and not of disturbing allocation of risks

because of superior bargaining power.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757

(Tex. 2001). The mere exclusion of claims by only one party is not the kind of shocking

unfairness required to invalidate an arbitration clause. Id. at 758; In re Peoples Choice

Home Loan, Inc., 225 S.W.3d 35, 46 (Tex. App.—El Paso 2005, orig. proceeding) (finding




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arbitration clause was not substantively unconscionable even though certain of lender’s

judicial remedies were exempt from the scope of the clause).

       Lopez presented absolutely no unconscionability evidence at the hearing. He did

not testify, submit an affidavit, or present any other evidence to the trial court. Rather, he

is arguing that the fact the arbitration agreement arose between a lawyer and prospective

client makes the contract unconscionable, at the outset. A fiduciary relationship may

arise prior to the creation of an attorney-client relationship. But, Lopez did not put on any

evidence regarding the discussions or negotiations to show what occurred here. See In

re Pham, 314 S.W.3d 520, 527 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding).

       I would hold that Lopez failed to carry his burden to prove his defense of

unconscionability, and that the trial court should have granted the relief sought by

Royston Rayzor. See In re FirstMerit Bank, N.A., 52 S.W.3d at 753–54 (“Once the trial

court concludes that the arbitration agreement encompasses the claims, and that 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”); Citigroup Global Mkts. v. Brown,

261 S.W.3d 394, 400–01 (Tex. App—Houston [14th Dist.] 2008, no pet.) (explaining the

burden of proof in presenting a defense to arbitration).

       Lopez also pleaded three other affirmative defenses to arbitration:            (1) the

arbitration clause is precluded by application of the Texas Ethics Committee’s Advisory

Opinion No. 586; (2) the arbitration agreement is illusory; and (3) his malpractice claim

against Royston Rayzor is a personal-injury claim that is not subject to arbitration unless




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the arbitration agreement complies with Texas Civil Practice and Remedies Code section

171.002.

       As recognized by the majority, Opinion No. 586 is advisory and is not legal

authority on whether an arbitration agreement between an attorney and client is

enforceable, as a matter of law. See In re Pham, 314 S.W.3d at 528; Labidi v. Sydow,

287 S.W.3d 922, 927 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In the case of In

re Pham, the Fourteenth Court of Appeals summarized its concern with using Opinion No.

586 to assess arbitration clauses in attorney-client agreements as follows:

       We concluded in Labidi that Opinion No. 586 did not impose any restrictions
       on attorney-client arbitration clauses because (1) such opinions are
       advisory at best, (2) the commission expressly declined in the opinion to
       opine on the substantive law concerning arbitration clause enforceability,
       and (3) substantive law does not include any such restrictions . . . [W]e
       decline to impose a requirement that attorneys must in all cases fully inform
       prospective clients regarding the implications of an arbitration clause in an
       attorney-client contract.    This argument is best preserved for the
       legislature.

314 S.W.3d at 528. Any persuasive value of Opinion No. 586 in setting forth how an

arbitration agreement between an attorney and client should be approached in a given

case is nullified when, as here, there is no evidence in the record as to the client’s

sophistication, education, and experience and how the parties reached the arbitration

agreement. See OP. TEX. ETHICS COMM'N No. 586 (2008) (“The scope of the explanation

will depend on the sophistication, education and experience of the client . . . .”).

       Lopez’s argument that the arbitration agreement is unenforceable because it is

illusory also fails. As a matter of law, the arbitration agreement before the Court is not

illusory—both parties were bound to arbitrate and neither party could unilaterally alter the


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scope or applicability of the arbitration agreement. Compare In re Halliburton Co., 80

S.W.3d 566, 570 (Tex. 2002) (“Halliburton cannot avoid its promise to arbitrate by

amending the provision or terminating it altogether. Accordingly, the provision is not

illusory.”) with In re C&H News Co., 133 S.W.3d 642, 647 (Tex. App.—Corpus Christi

2003, no pet.) (concluding arbitration agreement was illusory because employer could

“unilaterally amend the types of claims subject to arbitration”).

       Finally, I would hold Lopez’s legal malpractice claim against Royston Rayzor is not

a personal-injury claim under the plain language of Texas Civil Practice and Remedies

Code section 171.002 and thus the requirements of that section are inapplicable to bar

arbitration in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.002 (a)(3),(c) (West

2011); see also In re Pham, 314 S.W.3d 525 (“legal malpractice claims do not constitute

personal injury claims for purposes of section 171.002”); Taylor v. Wilson, 180 S.W.3d

627, 632 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (Frost, J., concurring)

(demonstrating that a legal malpractice claim is not a claim for personal injury).          I

recognize this holding would conflict with this Court’s precedent that holds a

legal-malpractice claim is a personal-injury suit for purposes of section 171.002. See In

re Godt, 28 S.W.3d 732, 738–39 (Tex. App.—Corpus Christi 2000, orig. proceeding)

(holding a legal malpractice suit arising from a lawyer’s handling of a personal-injury claim

is a personal-injury claim for purposes of section 171.002); see also Bennett v. Leas, No.

13-06-469-CV, 2008 WL 2525403, at *7 (Tex. App.—Corpus Christi June 26, 2008, pet.

abated) (holding legal malpractice claim arising from lawyer’s handling of grievance

matters is a personal-injury claim for purposes of section 171.002). However, if this


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panel were to address this issue by majority opinion, I would request that this Court

consider this case en banc for the purpose of overruling In re Godt and Bennett as

incorrectly decided. See Bennett, 2008 WL 2525403, at *8 (Vela, J., dissenting) (“ . . . I

would overrule our precedent and hold that a legal malpractice claim is not a claim for

personal injury.”).

       Because Lopez did not meet his burden to establish his affirmative defenses to

arbitration, I would reverse and remand with an instruction to the trial court to grant

Royston Rayzor’s motion to compel arbitration. See TEX. R. APP. P. 43.2(d); Sidley

Austin Brown & Wood, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 862 (Tex.

App.—Dallas 2010, no pet.).


                                                GREGORY T. PERKES
                                                Justice

Delivered and filed the
27th day of June, 2013.




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