                               MEMORANDUM OPINION
                                       No. 04-08-00923-CV

                         Paul MONTOYA and Levin & Hoffmann, LLP,
                                      Appellants

                                                 v.

                                      Clint M. GLENNY, II,
                                             Appellee

                    From the 285th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-10535
                           Honorable Karen H. Pozza, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: December 23, 2009

REVERSED AND REMANDED

           This case stems from an attorneys’ fee dispute between Appellant Paul Montoya’s

original attorney, Appellee Clint M. Glenny, II, and subsequently hired counsel, Appellant Levin

& Hoffman, L.L.P. (Levin) following the settlement of a personal injury claim. Based solely on

correspondence between the attorneys, the trial court granted Glenny’s motion to compel binding

arbitration. After a hearing, the arbitrator granted attorneys’ fees of forty percent of the Montoya

settlement to Glenny. On appeal, Levin argues the trial court erred in: (1) granting the motion to
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compel; and (2) failing to enter judgment in favor of Levin. Because the evidence does not

support a meeting of the minds based on either the original two letters, or the subsequent

correspondence, the trial court erred in granting the motion to compel arbitration. We, therefore,

reverse the order of the trial court and remand this cause for further proceedings consistent with

this opinion.

                                      FACTUAL BACKGROUND

        Appellant Montoya was injured in an automobile accident in March of 2006. Four days

after the accident, Montoya signed a contingent fee contract with Glenny.           According to

Montoya, by June of 2007, fifteen months after he contracted with Glenny, Montoya was

frustrated with the lack of activity on his case and terminated his agreement with Glenny.

Montoya subsequently hired attorney Rebecca Holt with Levin & Hoffmann, L.L.P. in July of

2007. Shortly thereafter, Levin initiated a lawsuit on Montoya’s behalf, exchanged discovery,

and participated in depositions. In May of 2008, Levin obtained a settlement for Montoya in the

amount of $200,000.00.

        In June of 2008, Levin notified Glenny of Montoya’s settlement and attempted to resolve

the matter of costs and attorneys’ fees. In his initial letter, Levin requested Glenny submit an

invoice for time and expenses, along with a demand for reasonable attorneys’ fees. Levin also

suggested a specific arbitrator assist in the arbitration of the attorneys’ fees.

        In response, Glenny claimed costs of $699.49 (this amount was later reduced to $99.49)

and further demanded the entire forty percent attorneys’ fees under the contract. Glenny argued

that he was discharged without cause based on his refusal to advance a loan to Montoya.

Additionally, Glenny stated that he was prepared to file a declaratory judgment in Bexar County




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to secure payment of fees, but that he would agree to a binding arbitration with the named

arbitrator “if the same could be completed within the following three weeks.” (emphasis added)

A. Correspondence Between Glenny and Levin

       Over the next month, the parties exchanged a plethora of correspondence in an attempt to

resolve their differences. A brief summary of the exchange follows:

       6/11/08        Levin to Glenny       case settled, agrees to place funds in trust;
                                            recommends attorney as arbitrator

       6/18/08        Glenny to Levin       demands 40% of gross settlement; prepared
                                            to file declaratory judgment action in Bexar
                                            County; will agree to named attorney
                                            conducting binding arbitration, if it can be
                                            completed within 3 weeks (emphasis added)

       6/19/08        Levin to Glenny       if Glenny feels the need to file declaratory
                                            judgment action, then proceed with action

       6/19/08        Glenny to Levin       inquired whether Levin will arbitrate with
                                            named attorney otherwise Glenny will file
                                            declaratory judgment action

       6/19/08        Glenny to Levin       suggesting    3   individuals   as   potential
                                            arbitrators

       6/20/08        Levin to Glenny       withdrawing named attorney as possible
                                            arbitrator and requesting suggestions from
                                            Glenny

       6/25/08        Levin to Glenny       agree to the second named attorney for
                                            nonbinding arbitration (emphasis added)

       7/1/08         Glenny to Levin       inquiring whether Levin would rather
                                            arbitrate or file breach of contract action
                                            seeking declaratory relief

       7/1/08         Glenny to Levin       if unable to resolve issue, he will file suit
                                            against Montoya for breach of contract

       7/2/08         Glenny to Levin       monies will be placed in a trust pending the
                                            outcome of breach of contract and



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                                             declaratory judgment action to be filed; or
                                             can arbitrate matter

       7/3/08         Glenny to Levin        “[Y]ou have not indicated as to if you are
                                             amenable to a binding arbitration to
                                             resolve this matter. Please contact me to
                                             discuss this further.” (emphasis added)

                                  PROCEDURAL BACKGROUND

       On July 3, 2008, Levin filed suit in Bexar County District Court for the attorneys’ fees in

question. Approximately two weeks later, Glenny filed a motion to compel arbitration. Glenny

attached the first two letters exchanged between himself and Levin as proof of an arbitration

agreement. In his response, Levin attached seven additional letters discussing payment, potential

arbitrators, and possible litigation to resolve the dispute. During the August 15, 2008 hearing on

the motion to compel arbitration, Levin argued Glenny’s last letter, dated July 3, 2009, that noted

that Levin had not indicated whether he was amenable to binding arbitration, conclusively

established that the parties had not agreed to arbitration. The trial court granted the motion to

compel arbitration.

       The parties held a one-day arbitration on the merits. In his award, the arbitrator made

specific findings of fact with regard to: a viable attorney/client agreement; Glenny’s handling of

Montoya’s case; communications between Glenny and Montoya; whether Montoya terminated

Glenny for good cause; whether Levin wrongfully solicited Montoya or tortiously interfered with

the relationship between Glenny and Montoya; and declaratory relief that Glenny collect forty

percent of the settlement as attorneys’ fees and additional attorneys’ fees in the amount of

$38,065.02 (plus additional if appealed). The arbitrator also provided that Glenny take nothing

on all additional claims and appellants take nothing on all claims. The trial court denied the

appellants’ motion to vacate the arbitration award and this appeal followed.



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                               MOTION TO COMPEL ARBITRATION

        On appeal, Levin disputes Glenny’s assertion that the first two letters establish the

parties’ agreement to settle their dispute through arbitration. Specifically, Levin asserts there is

no evidence that there was a meeting of the minds; and, therefore, the trial court erred in

compelling the parties to arbitration. Although courts generally enforce arbitration agreements, a

court may not order arbitration in the absence of such an agreement. Freis v. Canales, 877

S.W.2d 283, 284 (Tex. 1994). The parties’ agreement to arbitrate must be clear. Id.; see also In

re Premont Indep. Sch. Dist., 225 S.W.3d 329, 333 (Tex. App.—San Antonio 2007, orig.

proceeding); Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 835 (Tex. App.—Houston

[1st Dist.] 2002, no pet.).

A. Standard of Review

        Whether there is an enforceable agreement to arbitrate is a question of law and is,

therefore, reviewed de novo. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003);

Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388 (Tex. App.—Houston [14th Dist.] 1998,

pet. dism’d w.o.j.).      Although the appellate courts have repeatedly expressed a strong

presumption favoring arbitration, the presumption arises only after the party seeking to compel

arbitration proves that a valid arbitration agreement exists. J.M. Davidson, 128 S.W.3d at 227;

see also In re Rolland, 96 S.W.3d 339, 345 (Tex. App.—Austin 2001, orig. proceeding) (“[N]o

presumption of arbitrability arises unless the trial court finds an enforceable arbitration

agreement.”); In re Jebbia, 26 S.W.3d 753, 757 (Tex. App.—Houston [14th Dist.] 2000, orig.

proceeding). Simply put, no presumption of favoring arbitration arises absent a court finding of

the existence of an enforceable arbitration agreement. See Jack B. Anglin Co. v. Tipps, 842

S.W.2d 266, 269 (Tex. 1992).



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B. Evidentiary Hearing

       In the present case, the trial court held a contested hearing. The initial issue was whether

the parties agreed to arbitrate the attorney’s fee dispute. See Id., 842 S.W.2d at 269; see also

Nabors Drilling USA, LP v. Carpenter, 198 S.W.3d 240, 246 (Tex. App.—San Antonio 2006,

orig. proceeding).   Accordingly, Glenny, the party alleging an arbitration agreement, was

required to present complete summary proof in his “case-in-chief” that there was an agreement to

arbitrate that required arbitration of the dispute. Nabors Drilling USA, 198 S.W.3d at 246; see

also In re Koch Indus., Inc., 49 S.W.3d 439, 444 (Tex. App.—San Antonio 2001, orig.

proceeding) (“The party seeking arbitration has the initial burden to present evidence of an

arbitration agreement.”); In re Jebbia, 26 S.W.3d at 757. If Glenny satisfied his burden, the trial

court was required to order the parties to arbitration and order a stay of the proceedings. See

TEX. CIV. PRAC. & REM. CODE ANN. § 171.021 (Vernon 2005). To prevent the trial court from

summarily sending the parties to arbitration, Levin was required “only to raise an issue of

material fact about a necessary element of [his] opponent’s “case in chief” or present some

evidence supporting every element of a defensive claim that there is no enforceable agreement to

arbitrate.” In re Jebbia, 26 S.W.3d at 757.

C. Requirement for a Valid Arbitration Agreement

       1. Necessary Proof

       Although an arbitration agreement need not assume any particular form, the language of

the agreement must clearly indicate an intent to arbitrate. Wachovia Sec., L.L.C. v. Emery, 186

S.W.3d 107, 113 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Coker v. Coker, 650

S.W.2d 391, 393-94 (Tex. 1983). A party seeking to compel arbitration must (1) establish the

existence of a valid arbitration agreement, and (2) show that the claims asserted are within the



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scope of the agreement. In re AdvancePCS Health L.P., 172 S.W.3d 603, 605 (Tex. 2005) (per

curiam); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). In doing so,

courts must examine the entire writing as a whole in an effort to harmonize and give effect to all

the provisions of the contract so that none will be rendered meaningless. J.M. Davidson, 128

S.W.3d at 229.

       Because Glenny sought to compel arbitration, it was his burden to prove the existence of

the arbitration agreement. See Am. Med. Tech., Inc. v. Miller, 149 S.W.3d 265, 270 (Tex.

App.—Houston [14th Dist.] 2004, no pet., combined appeal & orig. proceeding) (burden to show

existence of valid arbitration agreement on party seeking to compel arbitration); In re Koch

Indus., 49 S.W.3d at 444 (“The party seeking arbitration has the initial burden to present

evidence of an arbitration agreement.”).

       2. Law of Contracts

       Although public policy favors the submission of disputes to arbitration, arbitration is a

creature of contract, and is reviewed using contract principles. J.M. Davidson, 128 S.W.3d at

227. The parties’ agreement and intent to submit to arbitration must be unambiguous. Id.;

Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 220 (Tex. App.—Houston [1st Dist.] 1996,

orig. proceeding).   As such, an appellate court must ascertain the intent of the parties as

expressed in the instrument. J.M. Davidson, 128 S.W.3d at 229. There is no particular form or

language required for a valid arbitration agreement, but it must reflect the parties’ intent to

submit their dispute to arbitrators and to be bound by that decision. Porter & Clements, 935

S.W.2d at 220; Manes v. Dallas Baptist Coll., 638 S.W.2d 143, 145 (Tex. App.—Dallas 1982,

writ ref’d n.r.e.). Thus, the formation of a valid arbitration agreement requires: “(1) an offer; (2)

an acceptance in compliance with the terms of the offer; (3) a meeting of the minds; (4) each



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party’s consent to the terms; and (5) execution of the contract with the intent that it be mutual

and binding.” AXA Fin., Inc. v. Roberts, No. 03-07-00079-CV, 2007 WL 2403210, *6 (Tex.

App.—Austin Aug. 23, 2007, no pet.) (citing McCulley Fine Arts Gallery, Inc. v. “X” Partners,

860 S.W.2d 473, 477 (Tex. App.—El Paso 1993, no writ)). Key to this case, the formation of the

contract, requires a meeting of the minds on the contract’s essential terms. Xtria L.L.C. v. Int’l.

Ins. Alliance Inc., 286 S.W.3d 583, 596 (Tex. App.—Texarkana 2009, pet. denied); see also In

re Hawthorne Townhomes, L.P., 282 S.W.3d 131, 138 (Tex. App.—Dallas 2009, orig.

proceeding) (citing Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 346 (Tex. App.—San

Antonio 2006, pet. denied)).

       3. Analysis

       Levin argues Glenny attached only two out of almost twenty letters of correspondence as

exhibits to his motion to compel. Glenny counters that based on his filing, the burden shifted to

Levin to establish that no agreement to arbitrate existed. Glenny’s argument relies on Nabors

Drilling USA, 198 S.W.3d at 246-47, and In re Conseco Finance Servicing Corp., 19 S.W.3d

562, 569 (Tex. App.—Waco 2000, orig. proceeding), for the proposition that simply attaching a

copy of the arbitration agreement is sufficient.        However, both cases involved contracts

containing an arbitration clause and, therefore, are not pertinent to an inquiry into whether an

arbitration clause exists. The inquiry in this case is focused on the evidence of the parties’ intent

to arbitrate, which requires an examination of the correspondence between counsel.

       Contract law requires the court examine an entire writing as a whole in an effort to

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

meaningless. J. M. Davidson, 128 S.W.3d at 229; see also Kirby Highland Lakes Surgery Ctr.,

L.L.P. v. Kirby, 183 S.W.3d 891, 901 (Tex. App.—Austin 2006, orig. proceeding) (construing



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multiple documents as arbitration agreement). We “examine and consider the entire writing in

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

rendered meaningless. No single provision taken alone will be given controlling effect; rather,

all the provisions must be considered with reference to the whole instrument.” In re Jim Walter

Homes, Inc., 207 S.W.3d 888, 897 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (quoting

Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (citations

omitted)). This is true even when contracts consist of multiple documents. City of Houston v.

Clear Channel Outdoor, Inc., 233 S.W.3d 441, 445 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). Accordingly, the correspondence may be considered as a whole because it pertains to the

same transaction, even if the letters were executed at different times. See City of Keller v.

Wilson, 168 S.W.3d 802, 811 (Tex. 2005).

       After a review of the record, we conclude that the initial two letters are only part of a

series of letters that, when taken together, clearly show the parties did not agree to binding

arbitration. First, and foremost, Glenny’s alleged “acceptance” changed material elements of

Levin’s “offer.” Not only did Glenny change the type of arbitration to “binding,” but also

required the arbitration be completed within a three-week period. As this court previously held,

“[i]f the purported acceptance contains terms that materially change the offer, the acceptance is

actually a rejection and counter-offer.” Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.—San

Antonio 2001, no pet.) (“[A]ny attempt to change an offer operates as a rejection and

counteroffer.   If, however, the party who made the original offer accepts the proposed

modifications, then a binding contract exists.” (citations omitted)); see also Cessna Aircraft Co.

v. Aircraft Network, L.L.C., 213 S.W.3d 455, 466 (Tex. App.—Dallas 2006, pet. denied) (“An

acceptance must be identical to the offer, or there is no binding contract.”).         Here, the



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correspondence includes Levin’s offer of new individuals to serve as the arbitrator and an

attempt to finalize whether the parties were actually going to arbitrate. Ironically, even after the

three-week period for arbitration demanded by Glenny, the parties continued to discuss the terms

for a potential arbitration to resolve their dispute. Reviewing the correspondence as a whole, we

conclude that the parties did not reach an agreement to arbitrate their dispute.

       Accordingly, the trial court erred in granting the motion to compel arbitration, and we

reverse the order of the trial court and remand this cause for further proceedings consistent with

this opinion.


                                                   Rebecca Simmons, Justice




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