Reversed and Remanded and Memorandum Opinion filed October 31 , 2023.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00772

- CV

CLINTON J. POHLER , Appellant

V. CAVALRY SPV I, LLC , Appellee

On Appeal from the County Court Llano County, Texas Trial Cour t Cause No. 03030

MEMORANDUM OPINION Appellee Cavalry SPV I, LLC ( “ Cavalry ” ) sued appellant Clinton J. P ohler
in the j usti ce c ourt of Llano County, Texas, seeking to collect the ou tstanding
balance on a Cos tc o Visa credit card. After denying Po hler ’ s mot i on to compel arbitration, the j ustice c ourt signed a final judgment in Cavalry ’ s favor. Pohler appealed to the county court and reasserted his motio n to co mpel arbitration. The county court denied Poh ler ’ s motion to compel and signed a final j udgment

aw a rding Cavalry approximately $8,600 in damages.2 Pohler filed this appeal. 1 For the reasons below, we reverse the county

court ’ s final judgment and remand the case for further proceedings.

B ACKGROUND In December 2017, Pohler o pened a Costco Visa cred i t card issued by Citibank, N.A. Approximately $8,500 was owed on the card when the accou nt w as closed for nonpayment in January 2021.
Cavalry, a s assignee of Citiban k, N.A., sued Pohler in the Llano County justice court to collect the ou tstan ding debt. Cavalry also filed a business records
affidavit and accompanying documents showing (1) P ohler opened the credit card

accoun t, (2) charges were made on the account before it was closed for nonpayment, and (3) C avalry purchased ownership of the a ccount fro m Citi bank , N.A.

Pohle r filed ob jections to and a motion to strike Cavalry ’ s business records affidavit and the accompanying documents. Pohler also filed a motion to compel arbitration, citing the arbitration provision in the credit card agree ment issue d by
C i tibank, N.A

. In r elevant p art, this provision states :

PLEASE READ THI S PROVISION OF THE AGREEMENT CAREFULLY. This section provides that disputes may be resolved by binding arbitration. Arbitration replaces the right to go to court, have a jury tri a l or initiate or partici pate in a class action. In arbitration , disputes are resolved by an arbitrator, not a judg e or jury. Arbitration procedures are simpler and more limited than in court. This

1 The Supreme Court of Texas trans ferred this case from the Third Court o f Ap peals to

our cour t. See Tex. Gov ’ t Code Ann. § 73.001. In cases transferred by the high c ourt from one

cour t of appeals to another, the transferee court must dec ide th e case in accordance with the precedent of the transferor court under principles of sta re decisis if the transferee court ’ s decision otherwise would have been inconsistent with t he precedent o f th e transferor court. Tex. R. App. P. 41.3.3 arbitration provision is governed by the Fede ral Arbitr a tion Act (FAA) , and shal l be interpreted in the broad est way the law will allow. Covered c laims

• You or we may arbi trate any claim, dispute, or controversy between you and us arising out of or related to your Account, a previous related Account o r our rela t ion ship (called “ Claims ” ).

• If arbitration is chosen by any part y , neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim.
Ex cept as stated below, all Claims are subject to arbitration, no matter what lega l theory they ’ re based on or what remedy (damages , or injun ctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, o r any othe r sources of law; Claims made as counterclaims, cross
- claims, third

- party claims, interp leaders or otherwise; Claims made regarding past, present or future conduct; and Claims made independently or with other claims. This also includes Claims ma de by or a g ainst anyone connected w ith us or you or clai ming through us or you, such as a co

- applicant, Authorized User, employee, agent, represent ative or an affilia ted/parent/subsidiary company. Arbitration limits

• Individual Claims filed in small claim s court ar e not subject to arbitrat ion, as long as the matter stays in small cla ims court.

• We won ’ t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If you assert a Claim against us, we can choos e to arbit r ate, in cluding actions t o collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including C l aims to collect a debt.

* * * Survival an d Severability of Terms This arbitration provision shall survive changes in th is Agreement and termi nation of the Account or the relationship between you and us, including the bankruptcy of any party and an y sale o f your Account, or amounts owed on your Acc ou nt, to another person or entity.4 (emphasis in origina l). The agree ment a lso state s that (1) Citi b ank, N. A. “may assign an y or all of our rights and obligations under this Agreement to a third party ”; and (2) “Federal law and the law of South Dakota g overn the terms and enforcement of this agr eem ent. ”

The j ustic e c ourt denie d b oth of Pohler ’ s motions before si gning a final judgment in favor of Cavalry. Pohler appe aled the case to the county court of Llano County. See Tex. R. Civ. P. 506.1(a) , 506.3. At a hearing held in June 2022, Pohler reasserted his motion to strike and mo tion to compel ar bitrat ion.
After hearing argu ment from both parties, t he count y court denied Pohler ’ s motion to compe l arbitration 2 and signed a final ju dgment on Jun e 20, 2022

. On July 1 4, 2022, Cavalry filed a “ Notice of Nonsuit with Pr ej udice, ” ask i ng the county c ourt to enter a nonsuit with prejudice on all its cl aims against Pohler.
The county court signed an order gran ting Cavalry ’ s request

. But approximately
one month later, the county court sign ed an or der nunc pro tunc den ying C avalry ’ s
requ e st e d nonsuit and stating, in relevant part : On July 14, 2022, Cavalry SPV I, LL C filed its Motion for Nonsuit with Prejudice. The court initially granted the Motion for Nonsuit with Prej udice, but has since determined that it lacked the auth ority to do s o p u r suant to Texas Rule of Civi l Procedure 162. [ 3 ]

2 The t rial court did not rule on Pohler ’ s motion to strike in either a written or der or at the Ju ne 202 2 hearing.

3 Ac cording to Texas Rul e of Civil Proce dure 162, a nonsuit may be taken “ [a]t any time before the pl aintiff has introduced all of hi s evidence other than rebuttal evidence. ” See Tex. R. Civ. P. 162(a) ; se e also Hyundai Moto r Co. v. Alv ar ado , 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (“Once a judge announce s a decision that adjudicates a claim, that claim is no longer subject to the plaintiff’s righ t to nonsuit.”); In re E.H. , No. 02

- 14

- 00352

- CV, 2015 WL 4694142 , at *1 n.3 (Tex. App.

— Fo rt W orth Aug. 6, 2015 , no pet.) (mem. op.) (Father filed a notice of nonsuit two months after the final judg ment was signed; the court concluded that “[t]he nonsuit [] was ine ffective because it was not timely”); Commonwealth Land Title Ins. Co. v. N elson , 889 S .W.2d 312, 323 (Tex. Ap p.

— Houston [14th Dist.] 1994, writ denied) (the plaintiffs did not attempt to non suit until the day after the close of evidence; “[t]hus, their at tempt to non

- suit was5 Therefore, the C o urt will issue an Order Nunc Pro T u nc denying C avalry SPV I, LLC Motion for Nonsuit with Pre judice

. T h e county court instructed the parties to submit proposed findings of fa ct and
conclu s io ns of law. Cavalry filed a “ Request for Dismissa l ” stating that it “ fully
settled this matter ” with Pohler and asking the county court to dismiss the case with prejudice. The county court di d not rule on the requested dismissal. Poh ler

t imely appeale d

. A NALYSI S

Pohler raises three issues on appeal , which we conso lid ate as follows:

1. the just ice court and county court erred by denying P ohler ’ s motion to

com pel arbitration ; 4 and 2. the count y court erred by denying Poh ler ’ s ob jections to and mot ion to str ike Ca valry ’ s business records affidavit and accompanying documents. Cavalry did not file a respons ive a p pellate brief nor any other motion for rel ief in
this co urt . Because we sus tain Pohler ’ s first issue, we need not re ach his remaining issues

.
I. Standard o f Revie w and Governing Law
Pohler represents himself pro se on appeal. A pro se litigant is he ld to the
same standards as a licensed attorney and must comp l y with all applicable rules of procedure, including appellate rul es; o t herwise, a p ro se litigant w ould be nefit from an unfair advantage over parties who are represent ed by counsel. Man sfield
S tate Bank v. Cohn , 573 S. W.2d 181, 184

- 85 (Tex . 19 78); Ratlif f v. King , No. 03

-

ineffective and the trial court erred in granting the ir mot ion” ). 4 Although the denial of a motion t o compel arbitration may be c hallenged via interlocutory appe al ( see 9 U.S.C.A. § 16 ; Tex. Civ. Prac. & Rem. Code Ann. § 51.01 6), it also may be challenged on appeal from a final judgment. See Bons mara Nat. Beef C o

. v . Hart of Tex. Cattl e Feeders , LLC , 603 S.W.3d 385, 390

- 97 (Tex. 2020).6 08

- 00424

- CV , 2009 W L 2837706, at *1 n.1 (Tex. Ap p.

— Aus tin Aug. 31, 2009, no pet.) (mem. o p.).

We review the denial of a motion to compel arbitration for an abuse of
discretion. Henry v. Cash Biz, LP , 5 51 S.W.3d 111, 115 (Tex. 2018); Mer itage Homes of Tex., LLC v. Pouye , No. 03

- 21

- 0028 1

- C V , 2023 WL 4139033, at *2 (Tex. App.

— Austin June 23, 20 23, no pet. h .) (mem. op.)

. “ We defer to the trial

court ’ s factual determinations if th ey are supported by evide nce but review its legal
determinati ons de novo

. ” Henry , 551 S.W .3d at 115.

As set out above, the credit ca rd agreement ’ s arbitration p rovisio n state s that
it is gover ned by the Federal Arbitration Act ( “ FAA ” ). “ Under the FAA, a party seeking to compel arbitration must establish the exist ence of a valid arbitration agreement and t he existence of a dispute wit hin the scop e of the agreemen t. ” B aby
Dol l s T o

pless Saloon s, Inc. v. S o tero , 642 S.W.3d 583, 585

- 86 (Tex. 2022) (per curiam) . If one p arty resists arbitration , the trial court first must determin e whether
a valid ar bitration agreement exists

— a question of law we re view de novo

. I d . at
586. Once an arbitration agreement is found to exist, doubts regarding an agreement ’ s scope are reso lved in favor of arbitrat ion b ecause there is a strong

presum ption favoring agreements to a rbitrate. Rich v. Cantilo & Bennett, L.L. P. , 492 S.W. 3d 7 55, 760 (Tex. App.

— Austin 2016, pet. denied).

“ Under the FAA, ordinary principles of state contract law d etermine whether
there is a valid agreement to arbitrat e

. ” In re Kellogg Brown & Root, I nc. , 166 S.W.3d 732, 737 (Tex. 2005) (orig . proceeding ). Th e refore, in accor dance with the credit card agreement ’ s terms , we rely on Sout h Dakot a law for this deter mination.
See id .; see a lso , e.g. , Bell

- Sparrow v. SF G*Prosc hoicebeauty , No. 18

- cv
- 06707

- Y GR , 2019 WL 1201835, at *4

- 8 (N.D. Cal. Ma r. 14, 2019) ( exam ining a

su bstanti ally similar credit card agreement issued by Citibank , N.A., th e court7 appl i ed South Dak o ta law to determine whet her the arbitration agreement was

va lid)

. W hen interpreting a co ntract, w e are guided by the langua ge the parties used
to de termine their int ention. Power s v. Powers , 974 N.W.2d 706, 713 (S.D. 2022).
We examine the contract as a whole and give words th eir plain and ordinary meaning. Id

. In sum, we interpret the con tract so as to give a reasonable and
effec tive meaning to al l its terms , with out examining any particular words or phrases in isolation. Tri

- City Assocs., L.P. v. B elmont, Inc. , 845 N.W.2d 911, 915 (S.D. 2014).

II. Application

In the justice court and count y court, P ohler argued that the Citi bank, N.A.
credit card a greement entitled him to compel arbitration of his dispute with
Ca valry

. 5

We begin with the question of whether a valid arbitrati on agreement exists between the par ties

. See Baby Dol l s T o

pless S aloon s, Inc. , 642 S.W.3d at 585

- 86

. Here, t he credit card a greement ’ s arbitr ation provision is broadly w orded and applies to “ any claim, dispute, or controversy bet ween you and us arising o ut of or related to your Account , a previous relate d account or ou r relationship. ” Although

t he agreement d efines “ us ” as Cit i bank, N.A., the agreement also states that (1) Citi bank, N.A. “ may assign any or all of our rights and o bligations under thi s

5 Although Pohle r fi led a motion to compel ar bitration in the justice court, he did not re

f ile this motion in the county court. However , one of our sister courts rec ently has h e ld that , given the natu re of an appeal from justice court to county cour t, re

- f iling a motion is not necessary to preserve error. See Duchou quette v. Presti gious Pets, LLC , No. 05

- 16

- 01163

- CV, 2017 WL 5109341, at * 3

- 4 (Tex. App.

— Dallas Nov. 6, 201 7 , no p e t. ) (mem. op.) ( because “ the TCPA motion was filed in the justice court

. . . t here was no ne ed t o re
- file it in the subse quent county court appeal ” ). Moreo ver, Pohler reasserted the arguments in his motion to compel arbitration at the Jun e 20 22 county c o urt hearing , which the county court denied in an oral ruling. See Tex . R. App. P. 33.1(a).8 Agr eement to a third party ” ; (2) the a rbitration provision “ shall sur vive changes in this Agreement and termina tion of the Ac co un t or the relation ship between you
and [Citibank , N.A. ] ” ; and ( 3 ) the arbitration provision includes “ Clai ms made by

. . . a n yone c onnected with [Citi bank, N.A.]

. . . or claim in g through [Citibank , N.A.] .

. . or by someone making a cl aim through [ Ci tibank , N.A.]. ” Giving these terms their plain mea ning, we conclude that they express the parties ’ intent that the
arbitration provisio n bind Ca va l ry as assignee of Pohle r ’ s credit card account with
Ci tibank , N.A

. See Pow ers , 974 N.W.2d at 71 3 ; Tri

- City Assocs ., L.P. , 845
N.W. 2d at 915 ; see also , e.g. , Hejamadi v. Midland Funding, LLC , No. 18

- cv
1320 3 (KSH) (CLW) , 2022 WL 97024 8, at *1

- 2 , * 5 (D. N.J. Mar. 31, 2022) ( exa mi ning a su bstantially similar credit card agreement issued by Citibank , N. A.,
the cour t held that the arbitra tion provision included disputes pursued by the company that purchased ownership of cr ed it ca rd account s from Cit i bank , N.A. ). Therefore, we conc lu de that the parties are bound by a valid arbitration agreement.
See Baby Do l ls T o

ple ss Sal oon s, Inc. , 642 S .W.3d at 585

- 86

. We also conclude that the parties ’ di spute falls within th e scope of th e arbitration agreement

. Two statements in particular bea r o n this analysis:

• “ Individual c laims filed in small claims court are not subject to
a rbitra tion, as long as the matter stays in small claims court. ”

• “ You may arbitrate on an indiv idual basis Claim s brought against you, inc luding Claims to collect a debt. ”

R ead together and given their plain meaning , these statements provide tha t an individ ual ma y seek arbitratio n of a debt

- collection claim brought against him, excluding thos e claims in small claims c ourt. Pohler argue s tha t , once he appealed
his case de nov o to the county court, it was outside the scope of the “ small claims9 cou rt ” limitati on. 6 We agree.

As r elevant here, a county court “ has appellate jurisdiction in civil cases
over which the j u stice courts have origina l jurisdiction in cases in which th e judgment appea led from or the amount in controversy exceeds $250, excl usive of

cos ts. ” Tex. Gov ’ t Code A nn. § 26.042(e). Pohler ’ s appeal fro m the justice court judgment was an appeal de novo , meaning that the entire c ase is presented to the

c ounty c our t “ as if there had been no previous trial. ” Tex. R. Civ. P. 510 .10(c) ; see also, e. g. , Ma hrou v. White , No

. 03

- 22

- 00058

- CV , 2023 WL 4980971, at *5 (Tex. App.

— Austin Aug. 4, 2023, no pet. h. ) (me m . op.). “ Because of the de no vo nature of the proceeding s, a county court does not sit as a true appellate court and
does not revie w the justic e cour t ’ s decision for l egal error; instead, it tries the case for itself as if no ruling had ever been made in the j ustice court. ” Mahr ou , 2023
WL 498 0971 , at * 5. Acc ord ingly, cases appealed from the justice court (like the case here) essent ially procee d as n ew actions in the county court. See id

. Moreover, Texas statute s and prior caselaw from the A ustin Co u rt of Appeals indicate th at county courts are separate an d a part from small claims

courts. See , e.g. , Tex. Civ. Prac. & Rem. Code A nn. § 31.005 ( “ A j udgment or a
dete rmination of fact or law in a proceeding in s mall claims court or justice o f the

peace c o urt is not res judicata a nd does not constitute a basis f or est oppel by judgment in a proceeding in a county court or statutory coun t y court [.] ” ) (emp hasis added) ; Koh ler v. Chiquillo , No. 03

- 1 4

- 005 03

- CV, 2016 WL 3924430,

6 I n the justice cour t, Pohl er also argued that the “ small clai ms court ” l i mitation did not preclude arbitration because “ small claims courts ” no long er exist in Tex as following the 82n d Legislative Session. See Act of June 27, 2011, 8 2 d Le g., C.S ., ch. 3, § 5.06 (b) , 2011 Tex. Gen. Laws 5225 ( “ On the effective date o f this secti on, each small claims court under Chapter 28, Government Code, is abolished

. ” ) . Howev e r, because we conclude that Pohler was entitled to compel arbitration once the case w as appea led to county court, we need not resolve this contention.10 at * 1 (Tex. App.

— Austin July 15, 2 016, no pet. ) (mem. op.) ( stating that “ [t]his cause orig ina ted as a small

- claims

- court lawsuit ” and later was “ appeal[ed] de

n ovo t o the county court at law ” ) (emphas is added) ; Rader v. Berry , No. 03

- 11

- 00810

- CV, 2013 WL 6665075, at * 1 (Tex. App.

— Austin D ec. 11, 2013, no pet.) (m em. op.) ( “ The small claims cour t a warded [appellant] $1,250, and he appea led
to the county court

. ” ) ( empha sis added).

Rea ding the arbitrat ion provision in light of this juris pr udence , it is clear that (1) the county court cann o t be equated with a “ smal l claims court ” , and ( 2) Pohler proceeded with a new case in the county court. Therefore, the arbitration provision ’ s exclus ion of claims “ fi led in small claims court

. . . as long as the matter stays in small claim s court ” does not apply to Poh l er ’ s de novo appeal in the county court.

In sum, we conc lude that (1) a valid arbitration agreement between the

p arties exist s, and (2) the parties ’ dispute falls with in the scope of that arbitration agreement

. See Baby D olls Topless S aloo ns, Inc. , 642 S.W.3d at 5 85

- 86. Therefore, the count y court abused its discretion when it denied Poh ler ’ s motion to compel arbit ration. See Henry , 5 51 S.W.3d at 1 15

. We sustain Pohler ’ s issue challenging the denial of his motion to com pel arbitratio n.
C ONCLUSION

We reverse the county co urt ’ s Jun e 20, 2022 final judgment and remand the case to the county court for further proceedi ngs in accor dance with this opinion

.11 /s/ Mea ga n Hassan J u st ice

P an el consis t s of C hief Justic e Christopher and Just ice s Bourliot and Has san

.