Motion to Dismiss Denied; Affirmed and Majority and Dissenting Opinions

filed November 7, 2019.

In the

Fourteenth Court of Appeals

NO. 14-17-00739-CV

CENTER ROSE PARTNERS, LTD., INDIVIDUALLY AND 

DERIVATIVELY AS A MEMBER OF ROSE ACQUISITION LLC, DAVID 

FELT, NICOLE FELT, AND LLOYD HALL, Appellants

V.

JERRY W. BAILEY AND DAVID SONNIER, Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2014-32793

DISSENTING OPINION

The court’s judgment denies the motion to dismiss filed by appellees Jerry W. 

Bailey and David Sonnier. Because I would grant this motion and dismiss for want 

of jurisdiction as to appellants Center Rose Partners, Ltd., David Felt, and Nicole 

Felt, I respectfully dissent.

After Center Rose, individually and derivatively as a member of Rose 
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Acquisition LLC, filed suit against Bailey, Sonnier, and Lloyd Hall, Bailey and 

Sonnier moved to compel arbitration. In their motion to compel, Bailey and Sonnier 

alleged that Center Rose was a member of Rose Acquisition LLC and that Rose 

Acquisition was governed by a Membership Agreement signed by appellant David 

Felt for Center Rose.1 Bailey and Sonnier invoked arbitration pursuant to the 

arbitration provision contained in the Membership Agreement:

If the parties have been unable to resolve any dispute or controversy 

arising out of this Agreement, then any such dispute or controversy 

shall be settled by arbitration in Houston, Texas by a panel of three 

arbitrators in accordance with the rules of the American Arbitration 

Association, whose decisions shall be final, binding and nonappealable. The three arbitrators shall be selected pursuant to the rules 

of the American Arbitration Association from a panel of independent 

and disinterested persons with at least five years [sic] experience in 

significant corporate, business or accounting matters. The expenses of 

both parties in the arbitration, including reasonable attorneys’ fees and 

arbitration expenses, shall be paid by the prevailing party. If each party 

prevails in part, the arbitrators will determine the appropriate allocation 

of expenses among the parties. Judgement upon the award rendered by 

arbitrators may be entered in any court having jurisdiction thereof, and 

the parties consent to the jurisdiction of the Texas courts for this 

purpose.

(Emphasis added).

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After the trial court granted the motion to compel arbitration, Bailey and 

Sonnier, individually and derivatively as members of Rose Acquisition, instituted 

arbitration proceedings against Center Rose and the Felts. All these parties submitted 

to arbitration, and the arbitration panel issued its award.

1 L.J. Black for Rose Acquisition also signed the Membership Agreement, as well as 

Bailey, Black, and Black’s spouse.

2 The Regulations for Rose Acquisition contain a virtually identical arbitration provision. 

The Regulations were signed by Black, Bailey, Hall, and David Felt for Center Rose.
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After the panel issued its award, Bailey and Sonnier filed their motion to 

confirm the arbitration award in the trial court. Center Rose filed an application to 

vacate the arbitration award. The Felts filed a plea in intervention and an application 

to vacate the arbitration award.

The trial court denied Center Rose’s application. The trial court issued a final 

judgment, incorporating by reference the arbitration award and adopting all of the 

findings contained in the award. Center Rose then requested findings of fact and 

conclusions of law, moved for reconsideration of its application to vacate, and 

moved for a new trial. The Felts (as nonparties) filed a motion to modify the 

judgment. Hall filed a motion for new trial. The trial court denied Center Rose’s 

motion to reconsider and Hall’s motion for new trial, as well as the Felts’ motion to 

modify. Center Rose, the Felts, and Hall filed notices of appeal.

In their motion to dismiss, Bailey and Sonnier argued that this court lacks 

jurisdiction over Center Rose because Center Rose contractually waived the right to 

appeal. Bailey and Sonnier relied on the arbitration agreements in both the 

Membership Agreement and the Regulations,3 which were signed by Center Rose. 

According to Bailey and Sonnier, in those provisions, Center Rose expressly agreed 

that the arbitration panel’s “decisions shall be final, binding, and non-appealable.”4

I agree with Bailey and Sonnier because I believe this panel’s decision is 

controlled by Bennett v. Commission for Lawyer Discipline, 489 S.W.3d 58 (Tex. 

App.—Houston [14th Dist.] 2016, no pet). In Bennett, a client submitted a fee 

3 Bailey and Sonnier, individually and derivatively as members of Rose Acquisition, 

invoked the arbitration provision in the Regulations as the basis for their demand for arbitration 

against Center Rose and the Felts.

4 Bailey and Sonnier further argued that the Felts also were bound by the waiver based on 

their express participation in the arbitration and their exercise of rights pursuant to the arbitration 

clauses.
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dispute with his prior attorney to arbitration proceedings and prevailed. Id. at 63–64. 

The attorney retainer and dispute resolution agreement at issue included this

arbitration provision: 

Our dispute shall be determined by arbitration in Houston, Texas before 

a panel selected by, and per the rules of the Houston Bar Association 

Fee Dispute Committee, 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. The arbitration shall 

be administered by the Houston Bar Association Fee Dispute 

Committee, pursuant to its Rules and Regulations. Judgment on the 

award may be entered in any court having jurisdiction and shall include 

an award for attorney’s fees, and a premium charge if sought, along 

with any fees and expenses associated with the seeking of injunctive 

relief. . . . By the signatures on this contract, the Client and Bennett 

agree that the arbitrator’s decision in any such arbitration shall be 

binding, conclusive, and non-appealable pursuant to the Rules and 

Regulations of the Houston Bar Association Fee Dispute Committee. 

Please note that arbitration may result in the client’s waiver of 

significant rights, such as the right to a jury trial, the possible 

waiver of broad discovery, and the loss of the right to appeal.

Id. at 63 (second emphasis in orig.). 

This court—when directly faced with the issue of whether the attorney had 

contractually foreclosed bringing an appeal from the district court’s judgment 

confirming the arbitration award in favor of the client—construed the above 

language and held that the unambiguous arbitration agreement did not permit the 

appeal to an appellate court. See id. at 68–70. In doing so, we highlighted “Texas’s 

fundamental public policy in favor of a broad freedom to contract, which allows 

parties to allocate risks as they see fit as long as their agreement does not violate the 

law or public policy.” Id. at 69. 

For better or worse, I cannot conclude that “non-appealable” here means 
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something different from “non-appealable” in Bennett. For this reason, I respectfully 

dissent from this court’s denial of the motion to dismiss.

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/s/ Charles A. Spain

Justice

Panel consists of Chief Justice Frost and Justices Spain and Poissant (Spain., J., 

dissenting).

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I encourage the Supreme Court of Texas to take this or a similar case and give guidance 

to how potential parties to an arbitration can—if they so desire—unambiguously agree to foreclose 

further review of an arbitral award, whether that be to an appellate arbitral panel, to the district 

court for anything other than confirmation of the award, or to an appellate court.