                                                                                          ACCEPTED
                                                                                      04-15-00056-CV
                                                                          FOURTH COURT OF APPEALS
                                                                               SAN ANTONIO, TEXAS
                                                                                  6/3/2015 3:57:49 PM
                                                                                       KEITH HOTTLE
                                                                                               CLERK

                           No. 04-15-00056-CV
                             th
                 IN THE 4 DISTRICT COURT OF APPEALS
                         SAN ANTONIO, TEXAS                         FILED IN
                                                             4th COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
GARY HODGE AND                                               6/3/2015 3:57:49 PM
ROBERT HART III,                                               KEITH E. HOTTLE
                                      Appellants,                    Clerk
v.

STEPHEN KRAFT INDIVIDUALLY
AND AS MEMBER ON BEHALF OF
GRUPO HABANERO, LLC,
                          Appellees.
                     __________________

         On appeal from the 225th District Court of Bexar County, Texas

                                  __________________

                      REPLY BRIEF OF APPELLANTS
                           __________________

Respectfully submitted,

Roderick J. Regan
Attorney for Appellants
BRANSCOMB | PC
711 Navarro St., Suite 500
San Antonio, TX 78205
Phone: (210) 598-5400
Fax: (210) 598-5405
SBN: 16733040



APPELLANTS REQUEST ORAL ARGUMENT




                                           i
                       TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………….…… ii

INDEX OF AUTHORITIES ……………………………………………….. iii

REFERENCE CITATION GUIDE ………………………………………… iv

ISSUES PRESENTED AND REPLY POINTS……………………………...iv

REPLY ARGUMENT ………………………………………………………. 2

REPLY POINT I TO ISSUES I AND II: Denial of an appraisal
    clause that requires arbitration is reviewable under the
    Texas Arbitration Act………………………………………………...2

REPLY POINT II TO ISSUES III AND IV: Appellees’ have
    failed to provide the only evidence that would support
    their argument against strict compliance with the notice
    provision, i.e. their own written notice of change of address ……...5

REPLY POINT III TO ISSUE IV: No waiver of legal arguments. ……...6

PRAYER ……………………………………………………………………..7




                                     ii
                           INDEX OF AUTHORITIES
Cases:

Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996)……………...3

Crown Constr. Co. v. Huddleston, 961 S.W.2d 552 (Tex. App.—San Antonio
1997)………………………………………………………………………………..3

Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011)……………………………..2

In re Certain Underwriters at Lloyds, 2011 WL 4837869, at * 4 (Tex. App.—
Waco 2011, no pet.)………………………………………………………………..4

In re Trammell, 246 S.W.3d 815, 820 (Tex. App.—Dallas 2008, no pet.)………...4

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

Lass v. State Farm Mut. Auto Ins. Co., 2000 WL 1125287, at * 5 (Tex. App.—
Houston [14th Dist.] 2000, rev. denied)……………………………………………3

Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995)………………2

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)…………………………...2

Tex. Petrochemicals LP v. ISP Water Mgmt. Servs. LLC, 301 S.W.3d 879, 884
(Tex. App.—Beaumont 2009, no pet.)……………………………………………..2

Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448 (Tex. App.—Amarillo
1999)………………………………………………………………………………..3

Woodward v. Liberty Mut. Ins. Co., 2010 WL 1186323 (N.D. Tex. 2010) ............ 10




                                        iii
                         REFERENCE CITATION GUIDE


The Parties:

       In lieu of using the full names of the parties, this Brief may refer to the
parties as follows:

             Gary Hodge                               “Hodge” or “Appellant”

             Robert Hart III                          “Hart” or “Appellant”

             Gary Hodge and Robert Hart III           “Appellants”

             Stephen Kraft                            “Kraft” or “Appellee”

             Stephen Kraft Individually               “Appellees”
             And as member on behalf of
             Grupo Habanero, LLC

                    ISSUES PRESENTED and REPLY POINTS

ISSUE I      Whether the trial court has abused its discretion in denying
             Appellants’ Motion to Compel Appraisal based on the
             argument that a condition precedent to initiating appraisal by
             appraiser appointed by the American Arbitration Association
             has not been met.

ISSUE II     Whether Appellees’ receipt of timely notice of option election
             to repurchase membership interest satisfying the alleged
             condition precedent to initiating appraisal was established as a
             matter of law.

REPLY POINT I TO ISSUES I AND II: Denial of an appraisal clause
        that requires arbitration is reviewable under the Texas
        Arbitration Act.


                                           iv
ISSUE III   Whether strict compliance with the alleged condition precedent
            to compelling appraisal was excused.

            A. Due to original impossibility
            B. Due to mutual mistake
            C. Due to Appellee’s false representation and/or concealment
               of a material fact

ISSUE IV    Whether Appellees are estopped from asserting a right to
            receive timely notice of Appellants’ exercise of their option to
            repurchase stock due to Appellees’ false representation and/or
            concealment making any exercise of notice under the strict
            contract provisions impossible.

REPLY POINT II TO ISSUES III AND IV: Appellees’ have failed to
        provide the only evidence that would support their
        argument against strict compliance with the notice
        provision, i.e. their own written notice of change of address.

REPLY POINT III TO ISSUE IV: No waiver of legal argument




                                        v
                           No. 04-15-00056-CV
                           th
                 IN THE 4 DISTRICT COURT OF APPEALS
                         SAN ANTONIO, TEXAS

GARY HODGE AND
ROBERT HART III,
                                    Appellants,
v.

STEPHEN KRAFT INDIVIDUALLY
AND AS MEMBER ON BEHALF OF
GRUPO HABANERO, LLC,
                          Appellees.
                     __________________

         On appeal from the 225th District Court of Bexar County, Texas

                                __________________

                      REPLY BRIEF OF APPELLANTS
                           __________________

TO THE HONORABLE COURT OF APPEALS:

      Appellants Gary Hodge and Robert Hart III (“Appellants”), submit this

Reply Brief. Appellants respectfully show:




                                        1
                                       REPLY ARGUMENT

POINT I           Denial of an appraisal clause that in essence requires
                  arbitration is reviewable under the Texas Arbitration Act. 1

          The appraisal provision in the Employment Contract is in essence an

arbitration provision. The scope of arbitration is broad. A strong presumption

favors arbitration, and courts resolve any doubts about an agreement’s scope,

waiver, and other issues unrelated to its validity in favor of arbitration. Ellis v.

Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011) (per curiam). Unless it can be said

with positive assurance than an arbitration clause is not susceptible to an

interpretation which would cover the dispute at issue, a court should not deny

arbitration. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995).

Whether a claim falls within the scope of an arbitration agreement includes the trial

court’s legal interpretation of the agreement and is subject to de novo review. Tex.

Petrochemicals LP v. ISP Water Mgmt. Servs. LLC, 301 S.W.3d 879, 884 (Tex.

App.—Beaumont 2009, no pet.). When reviewed de novo, appellate courts give

absolutely no deference to the trial court’s decision.” Quick v. City of Austin, 7




1
    In reply to Appellee’s Issues I and II.


                                              2
S.W.3d 109, 116 (Tex. 1998).2

       An appraisal contract provision, whether invoking an appraiser appointed by

the American Arbitration Association or not, “is in essence one requiring

arbitration.” Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448, 451 (Tex.

App.—Amarillo 1999). A party seeking arbitration must establish the existence of

an arbitration agreement, and show, that claims raised fall within the scope of the

agreement. Id. (citing Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex.

1996)). Once the party establishes a claim within the arbitration agreement, the

trial court must compel arbitration and stay its own proceedings. Id. (citing In re

Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999). Appointment of

an arbitrator to resolve a dispute over value is clearly authorized by the Texas

Arbitration Act and the appraisal requirement of a contract “are now generally

considered to be a form of arbitration.” Lass v. State Farm Mut. Auto Ins. Co.,

2000 WL 1125287, at * 5 (Tex. App.—Houston [14th Dist.] 2000, rev. denied).

       Appellees’ citation of Crown Constr. Co. vs. Huddleston, 961 S.W.2d 552

(Tex.App.—San Antonio 1997, no pet.) is misplaced. While Crown addresses the

requirements of personal delivery, it does so in a context where the address in the



2
  Thus, Appellees’ “implied finding” argument in its Issue II is moot because the decision is
reviewed de novo. Regardless, no evidence of such an “implied finding” can be found in the
record, nor did Appellees attempt to cite from the record in support of its argument.


                                             3
option agreement was correct. Crown cannot be said to stand for Appellees’

notion that personal delivery remains required where the address is wrong.

Appellees’ claim the address is wrong due to a “scrivener’s error’ but they in fact

provide no evidence whatsoever that the address in the Employment Agreement

was not what they provided for in their written approval of the Employment

Agreement. Appellees’ notion of a “scrivener’s error” is merely nothing but self-

serving surmise.

      Appellees did not and cannot provide any authority supporting their

argument against appellate jurisdiction to review the trial court’s order denying

Appellants’ Motion to Compel Appraisal under the Texas Civil Practice and

Remedies Code § 171.098. To the contrary, appraisal clauses “can provide a less

expensive, more efficient alternative to litigation,” analogous to arbitration

provisions and trial courts “have no discretion to ignore a valid appraisal clause

entirely.” In re Certain Underwriters at Lloyds, 2011 WL 4837869, at * 4 (Tex.

App.—Waco 2011, no pet.) (citations omitted). Whether a claim is subject to

arbitration turns on its substance; and, parties cannot evade an arbitration clause

through artful pleading. In re Trammell, 246 S.W.3d 815, 820 (Tex. App.—Dallas

2008, no pet.). The existence of claims unrelated to the arbitrated appraisal does

not remove this case from the Court’s jurisdiction because these claims are subject



                                        4
to a finding that the membership interest in question has value and is owned by Mr.

Kraft. Appellants assert that they have validly executed the option to repurchase

the membership interest and, as such, the only dispute is the value, if the

membership interest maintains any value at all. 3 Therefore, Appellants’ Motion to

Compel Appraisal must be granted, as in essence an arbitration of value, to

determine, as a threshold issue, if Appellee’s can maintain any cause of action in

the trial court. To deny the request is an abuse of discretion and contrary to strong

policy favoring the efficient adjudication of disputes.


POINT II Appellees’ have failed to provide the only evidence that would
         support their argument against strict compliance with the notice
         provision, i.e. written notice of change of address, choosing
         instead to rely on unsupported factual representations. 4


       Appellees have failed to show, both to the trial court and now this court, the

only dispositive fact: their written notice changing the address in the Employment

Agreement. Appellees instead argue, contrary to their own demands of strict

compliance, that Appellant should not have strictly complied with Appellees’

address in the Employment Agreement. Appellees instead call for a departure




3
  In the event the membership interest has nominal value (as asserted by Appellants), Appellees’
entire case fundamentally lacks jurisdiction in the trial court.
4
  Reply to Appellees’ Issues III and IV.


                                               5
from strict compliance in regards to the place notice was to be delivered, because

they concede that their address barred Appellants from strictly complying.

          Appellee contends that “a scrivener’s” error imposed a legal burden upon

Appellants to conjure up a different address than the one Appellee specified for

himself in the Employment Agreement. Yet Appellees do not cite any legal

authority for this.         But for Appellee’s approval of a wrong address in the

Employment Contract, and his failure to designate an alternative correct address in

writing, the parties would be arbitrating the value of the membership interest and

transferring ownership—ending the dispute. Appellee should not now be heard to

require strict compliance with the language in the Employment Agreement option

as to the timing and manner of notice delivery, but yet call upon the court to excuse

strict compliance in regards to the place of delivery, and require delivery of notice

to an address not provided for in writing by Appellee.

POINT III No waiver of legal arguments. 5

           Appellees’ failure to provide evidence of written notice of change of

address, combined with Appellee’s admission that his incorrect address in the

Employment Agreement precluded Appellants’ personal delivery of the notice, are

dispositive of this appeal. Appellants’ timely delivery of notice to the address



5
    Further reply to Appellees’ Issue IV.


                                            6
specified by Appellee was all that was required to perfect exercise of the option.

                                       PRAYER


       WHEREFORE, Appellants respectfully request that this Court reverse the

trial court’s order denying Appellants’ Motion to Compel Appraisal, remand the

matter for entry of order granting Appellants’ Motion to Compel Appraisal and

grant such other and further relief to which Appellants may show itself to be justly

entitled.

                                              Respectfully submitted,



                                              Roderick J. Regan
                                              Attorney for Appellants
                                              BRANSCOMB | PC
                                              711 Navarro St., Suite 500
                                              San Antonio, TX 78205
                                              Phone: (210) 598-5400
                                              Fax: (210) 598-5405
                                              SBN: 16733040




                                          7
                       CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 2,130 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).



                                       Roderick J. Regan


                          CERTIFICATE OF SERVICE

       I hereby certify that on this 3rd day of June 2015, a true and correct copy of
the foregoing Appellant’s Reply Brief has been forwarded to the counsel below via
certified mail, return receipt requested and email pursuant to the Texas Rules of
Civil Procedure and the Texas Rules of Appellate Procedure.


Richard W. Espey
Matthew Soliday
Espey & Associates, PC
13750 San Pedro Avenue, Suite 730
San Antonio, TX 78232
Fax: (210) 404-0336
Attorneys for Appellees


                                       Roderick J. Regan




                                         8
