IN THE 

FOURTH COURT OF APPEALS

AT SAN ANTONIO

CAUSE NO. 04-14-00889-CV

ENDURA ADVISORY GROUP, LTD.,

APPELLANT

VS.

DOMINIC ALTOMARE,

APPELLEE 

INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780

IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS

MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE, 

SITTING IN THE 57TH JUDICIAL DISTRICT COURT

APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, BRIEF

RICHIE & GUERINGER, P.C.

GAY GUERINGER

State Bar No. 08571400

DOUG K. CLEMONS

State Bar No. 24032083

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Tel: 210-220-1080 / Fax: 210-220-1088 

Email: ggueringer@rg-sanantonio.com

Email: dclemons@rg-sanantonio.com 

ATTORNEYS FOR APPELLANT, 

ENDURA ADVISORY GROUP, LTD.

APPELLANT REQUESTS ORAL ARGUMENT

ACCEPTED

04-14-00889-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

1/27/2015 12:12:08 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/27/2015 12:12:08 PM KEITH E. HOTTLE Clerk
NO. 04-14-00889-CV

ENDURA ADVISORY GROUP, LTD., APPELLANT

VS.

DOMINIC ALTOMARE, APPELLEE

IDENTITY OF PARTIES

Party Represented By:

Endura Advisory Group, Ltd., 

Appellant/Intervenor

Gay Gueringer (SBN 08571400)

Doug K. Clemons (SBN 24032083)

Richie & Gueringer, P.C.

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Tel: 210-220-1080 / Fax: 210-220-1088 

Email: ggueringer@rg-sanantonio.com

Email: dclemons@rg-sanantonio.com

Dominic Altomare,

Appellee/Plaintiff

Eric A. Pullen (SBN 24007881)

Sarah A. Reyes (SBN 24088292)

Pulman, Cappuccio, Pullen, 

 Benson & Jones, LLP

2161 N.W. Military Hwy, Suite 400

San Antonio, Texas 78213

Tel: 210-222-9494 / Fax: 210-892-1610

Email: epullen@pulmanlaw.com

Email: sreyes@pulmanlaw.com

Josh Reneau, 

Defendant

Gay Gueringer (SBN 08571400)

Doug K. Clemons (SBN 24032083)

Richie & Gueringer, P.C.

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Tel: 210-220-1080 / Fax: 210-220-1088 

Email: ggueringer@rg-sanantonio.com

Email: dclemons@rg-sanantonio.com

Identity of Parties
TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF JURISDICTION..........................................................................1

REQUEST FOR ORAL ARGUMENT .....................................................................1

APPELLANT’S ISSUES PRESENTED FOR REVIEW..........................................1

INTRODUCTION .....................................................................................................2

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................8

ARGUMENT AND AUTHORITIES ....................................................................8

Issue No. 1: The trial court erred by denying Endura’s Motion to Compel 

Alternative Dispute Resolution Process and Motion to Abate Proceeding 

Pending Completion of the Alternative Dispute Resolution Process and the 

Motion for Reconsideration of Denial of Its Motion to Compel Alternative 

Dispute Resolution Process and Motion to Abate Proceeding Pending 

Completion of the Alternative Dispute Resolution Process...................................9

A. Standard of Review.......................................................................................9

B. The Pleadings and Evidence Presented Establish that the Parties’ 

Dispute Arises from the Separation Agreement Therefore Triggering 

the Dispute Resolution Process...................................................................10

C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare ....11

D. The Claims Brought in the Lawsuit Fall Within the Separation 

Agreement Triggering the Alternative Dispute Resolution Process...........12

E. Reneau is an Agent or Representative of Endura .......................................13

F. Endura Intended for the Separation Agreement to include Reneau ...........17

G. The Separation Agreement..........................................................................19

Appellant’s Brief Page ii
Issue No. 2: Altomare failed to present or prove a defense to the 

enforcement of the Dispute Resolution Policy.....................................................22

CONCLUSION........................................................................................................23

PRAYER..................................................................................................................23

CERTIFICATE OF COMPLIANCE.......................................................................25

CERTIFICATE OF SERVICE ................................................................................25

APPENDIX..............................................................................................................26

Appellant’s Brief Page iii
INDEX OF AUTHORITIES

CASES

Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 

450-51 (Tex. 2011)...............................................................................................18

Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio 2005, 

orig. proceeding)...................................................................................................10

Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st

Dist.] 1996, no writ) .............................................................................................17

EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996)..................................10

Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet. 

denied) ..................................................................................................................10

Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San 

Antonio 2002, no pet.)..........................................................................................14

In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th

Dist.] 2003, orig. proceeding).........................................................................13, 21

In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006).......................13, 17

In re Medallion, Ltd., 70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 

2002, orig. proceeding).............................................................................10, 11, 12

In re Olshan Found. Repair Co., 328 S.W.3d 883, 893 (Tex. 2010)......................10

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 

323, 333 (Tex. 2011) ............................................................................................17

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003)............11, 12, 22

Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194 (Tex. 

App. – Corpus Christi 1984, no writ)...................................................................22

Lyons v. Lindsey Morden Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App. 

– El Paso 1998, no pet.)........................................................................................23

Appellant’s Brief Page iv
Neely v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus 

Christi 1987, no writ)......................................................................................14, 16

Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).........................................10

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).........................................10

Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 443 S.W.3d 196, 202 

(Tex. App – Corpus Christi 2013, pet. filed)........................................................10

Sendjar v. Gonzales, 520 S.W.2d 478, 481 (Tex. Civ. App. – San Antonio 

1975, no writ) .......................................................................................................14

Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. –

Texarkana 2002, pet denied) ................................................................................14

Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler 

2000, pet. withdrawn).....................................................................................14, 22

STATUTES

TEX. CIV. PRAC. REM. CODE § 171.098(a)(1) ............................................................1

TREATISES

3 TEX. JUR. 3D Agency §50 (1996) .......................................................................22

Appellant’s Brief Page v
STATEMENT OF THE CASE

Nature of the Case: This is a breach of contract case triggering an arbitration 

provision.

Trial Court: The Honorable Judge Martha Tanner, Visiting Judge 

sitting in the 57th Judicial District, Bexar County, Texas.

Trial Court Disposition: Denial of Motion to Compel Alternative Dispute 

Resolution Process and Motion to Abate Proceeding 

Pending Completion of the Alternative Dispute 

Resolution Process and Denial of same on Motion for 

Reconsideration.1

 

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction over this interlocutory appeal pursuant 

to Section 171.098 of the Texas Civil Practice and Remedies Code. See TEX. CIV.

PRAC. REM. CODE § 171.098(a)(1). 

REQUEST FOR ORAL ARGUMENT

The Appellants, Endura Advisory Group, Ltd. (“Endura”), respectfully 

requests oral argument. Oral discussion of the facts and the applicable precedent 

would benefit the Court.

APPELLANT’S ISSUES PRESENTED FOR REVIEW

The Trial Court erred in refusing to compel the alternative dispute resolution 

process because: (1) the pleadings and evidence presented show the parties’ 

1

 For ease of reference in referring to the Reporter’s Record, the hearing conducted on October 

27, 2014 will be referred to as the Oct. Reporter’s Record (“Oct. R.R.”) and the re-hearing 

conducted on November 7, 2014 will be referred to as the Nov. Reporter’s Record (“Nov. 

R.R.”).

Appellant’s Brief Page 1 

 
dispute arises out of the Separation Agreement which triggers the Dispute 

Resolution Policy contained within the Separation Agreement and (2) Dominic 

Altomare (“Altomare”) failed to present or prove a defense to the enforcement of 

the Dispute Resolution Policy.

INTRODUCTION

1. This is a suit for breach of contract triggering an agreement to 

arbitrate. Endura and Altomare included an alternative dispute resolution process 

as part of a bargained for, valid and enforceable contract governing the departure 

of Altomare from Endura. Altomare’s suit against Josh Reneau (“Reneau”) 

requiring Endura’s Intervention in this case fall within those claims released in the 

contract and trigger the alternative dispute resolution process. The trial court 

refused to compel the alternative dispute resolution process and abate the 

proceeding pending completion of the alternative dispute resolution process. 

Endura asks this Court to reverse the trial court and remand to compel arbitration.

STATEMENT OF FACTS

2. This case involves a dispute over real estate commissions and an 

agreement to arbitrate addressed in a Separation Agreement (the “Separation 

Agreement”). Endura Advisory Group, Ltd. (“Endura”) is seeking to compel 

arbitration of Nick Altomare’s (“Altomare”) claims against Josh Reneau 

(“Reneau”) and Endura’s claims against Altomare based on an arbitration 

Appellant’s Brief Page 2 
agreement contained within the Separation Agreement executed by Altomare 

governing his departure from Endura and all claims released as a part of that 

departure. There were two hearings in the trial court on Endura’s Motion to 

Compel Arbitration. The first hearing occurred on October 27, 2014 and the rehearing occurred on November 7, 2014. 

3. By way of background, Altomare is a real estate broker who was a 

limited partner of Endura, a commercial real estate company. (C.R. Pg. 10).2

 In 

August of 2013, Endura offered Altomare an opportunity to disassociate from 

Endura under more beneficial terms than those required of Endura (in its Second 

Amended and Restated Limited Partnership Agreement) in lieu of Endura 

terminating his position as a limited partner and as an agent/independent 

contractor. (C.R. Pg. 10). In order to avoid being terminated, Altomare elected to 

“voluntarily” separate from Endura. (C.R. Pg. 10). On or about August 19, 2013, 

Altomare executed the Separation Agreement relating to his dissociation from 

Endura. (Appendix, Confidential Exhibit 1, a true and correct copy of the 

Separation Agreement.3

) As part of the Separation Agreement, Altomare released 

Endura and a litany of others including its agents and representatives from all 

2

 “C.R.” will denote the Clerk’s Record.

3

 Confidential Exhibit 1 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg. 31, 

Line 6-Pg. 32, Line 1) but was withdrawn at the end of the hearing to preserve confidentiality

(Nov. R.R. Pg 45, Line 6-17). Pursuant to the Clerk’s instructions, a true and correct copy of 

Confidential Exhibit 1 has been filed as part of a separate appendix. 

Appellant’s Brief Page 3 

 
claims except certain commissions which might come due from those limited 

specific transactions identified on an attached list (the “List”) to the Separation 

Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 2, 

paragraph 5 and attached List.) Pursuant to the terms of the Separation Agreement, 

Altomare expressly represented in writing that the List encompassed all of the 

pending transactions on which he was actively involved at the time of his 

separation. (Appendix, Confidential Exhibit 1, Separation Agreement, pg. 2-3, 

paragraph 6). If a claim for any commission was not included on the List, no 

compensation would be due Altomare. But for the Separation Agreement Endura 

had no obligation to pay Altomare commissions for closings occurring after he was 

no longer associated with Endura.

4. Most importantly and at the heart of this appeal, Altomare agreed, by 

way of the Separation Agreement, that a dispute between Altomare and Endura 

(the Partnership), related to his association with Endura or the Separation 

Agreement, which specifically include claims released as against Endura’s agents 

and representatives,4 would be resolved through the Dispute Resolution Policy set 

out in the Endura Employee Handbook. (Appendix, Confidential Exhibit 1, 

Separation Agreement, page 4, paragraph 13.) Altomare was apprised of the 

4

 Paragraph 5 of the Separation Agreement is the “release of claims” paragraph and was 

purposely drafted broadly to include Endura’s related entities, officers, members, partners, 

limited partners, employees, directors, managers, agents, trustees, administrators, representatives, 

subsidiaries, affiliates, successors and assigns.

Appellant’s Brief Page 4 

 
Dispute Resolution Policy contained within the Separation Agreement and 

accepted it. (C.R. Pg. 20). Additionally, Altomare was represented by counsel 

who negotiated the terms of the Separation Agreement and required changes to the 

proposed Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 32, line 22 through 

Pg. 33, line 3). The Alternative Dispute Resolution provision was a bargained for 

term of the Separation Agreement. (C.R. Pg. 20); (Nov. R.R. Pg. 17, line 7-13). 

Altomare does not dispute the existence of an Alternative Dispute Resolution 

provision or that it is a valid agreement to arbitrate. (Oct. R.R. Pg. 6, Line 3-7). 

The Dispute Resolution Policy contained in Endura’s Employee Handbook states 

in relevant part:

The Arbitration process shall be conducted under Texas Civil 

Practices and Remedies Code, Section 151.001 et seq. The 

arbitrator will meet the qualifications of a Special Judge as 

described in this statute and will also be impartial. This Policy 

is intended to be construed and subject to Texas law.

Either the employee or Endura may commence the Arbitration 

proceeding by giving written notice to the other party, stating 

that the Arbitration process is being commenced, the specific 

facts which give rise to the dispute, the legal basis, if any, 

which the notifying party is invoking to support some claim for 

damages or relief, the relief the notifying party is seeking and a 

correct address, phone number and, if available, a facsimile 

number and email address at which the notifying party can be 

reached (“Notice”). The notifying party shall file a Petition in 

the applicable District court, or other court of original 

jurisdiction, which shall be abated pending the decision by the 

Arbitrator.

 

Appellant’s Brief Page 5 
(Appendix, Exhibit 2, true and correct copy of Endura Advisory Group, Ltd.’s 

Dispute Resolution Policy and Procedures.); (C.R. Pg. 22-24).

5. Reneau is a licensed commercial real estate agent working for Endura. 

(Nov. R.R. Pg. 23, line 3-6). At the time of the execution of the Separation 

Agreement and at all times relevant to this suit, Reneau was an agent and 

representative of Endura. (Nov. R.R. Pg. 13, line 10-18 and Nov. R.R. Pg. 32, line 

2-18) Reneau has been an associate vice-president for Endura for the last two 

years and his business cards issued by Endura reflect the title of associate vicepresident. (Nov. R.R. Pg. 13, line 19-21 and Nov. R.R. Pg. 19, line 10-12). 

Reneau, as an agent for Endura, is the point of contact on all real estate listings in 

which he is involved. He works exclusively for Endura. (Nov. R.R. Pg. 16, line 

11-13). He is required to attend bi-weekly sales meetings and Endura pays for his 

marketing of properties as well as his office space. (Nov. R.R. Pg. 16, line 14-18). 

Clearly, Reneau is an agent and representative for Endura. 

6. On July 28, 2014, Altomare filed suit against Reneau for breach of 

contract relating to commissions on real estate transactions that Reneau had 

allegedly failed to pay Altomare. (C.R. Pg. 1-4.) Importantly, the real estate 

transactions on which Altomare bases his claims against Reneau were not included 

on the List, meaning Altomare was not actively involved in those transactions. 

(C.R. Pg. 7). On August 29, 2014, Reneau timely answered Altomare’s suit and on 

Appellant’s Brief Page 6 
September 19, 2014, Endura intervened in the suit asserting claims against 

Altomare for breach of contract, fraud and for declaratory relief as it relates to the 

Separation Agreement. (C.R. Pg. 9-17.) Also contained within Endura’s Plea in 

Intervention was a section putting Altomare on notice that this dispute is required 

to be submitted to a Special Judge in accordance with Endura’s Dispute Resolution 

Policy. (C.R. Pg. 15.)

7. On October 16, 2014, Endura filed its Motion to Compel Alternative 

Dispute Resolution Process and Motion to Abate Proceeding Pending Completion 

of the Alternative Dispute Resolution Process (the “Motion”). (C.R. Pg. 18-24.) 

On October 27, 2014, the Honorable Judge Martha Tanner conducted a hearing 

and denied Endura’s Motion indicating on the Judge’s Notes, “Court finds 

insufficient evidence to determine Reneau meets any criteria in Separation 

Agreement therefore motion respectfully denied.” (Visiting Judge sitting in the 

57th Judicial District by assignment; C.R. Pg. 31, 49-50); (Appendix, Exhibit 3, a 

true and correct copy of the Order Denying Endura Advisory Group, Ltd.’s Motion 

to Compel Alternative Dispute Resolution Process and Motion to Abate 

Proceeding Pending Completion of the Alternative Dispute Resolution Process

signed on December 1, 2014.) 

8. On October 30, 2014, Endura filed its Motion for Reconsideration of 

the Honorable Martha Tanner’s denial of Endura’s Motion. (C.R. Pg. 32-39.) On 

Appellant’s Brief Page 7 
November 7, 2014, the Honorable Martha Tanner conducted an evidentiary 

hearing and denied Endura’s Motion for Reconsideration of its Motion. (C.R. Pg. 

51-52); (Appendix, Exhibit 4, a true and correct copy of the Order Denying Endura 

Advisory Group, Ltd.’s Motion for Reconsideration of Denial of its Motion to 

Compel Alternative Dispute Resolution Process and Motion to Abate Proceeding 

Pending Completion of the Alternative Dispute Resolution Process signed 

December 1, 2014). The Motion to Compel Alternative Dispute Resolution 

Process and Motion to Abate Proceeding Pending Completion of the Alternative 

Dispute Resolution Process and the Motion for Reconsideration of Denial of Its 

Motion to Compel Alternative Dispute Resolution Process and Motion to Abate 

Proceeding Pending Completion of the Alternative Dispute Resolution Process are 

sometimes collectively referred to herein as the “Motions.” Endura brings this 

appeal, asking this Court to reverse the trial court’s orders denying Endura’s 

Motions and remand to compel arbitration.

SUMMARY OF THE ARGUMENT

For additional consideration paid to him, Altomare executed a Separation 

Agreement when he departed Endura, releasing all claims against Endura, its 

agents and representatives and others, except for certain limited, pending real 

estate transactions specifically identified. The Separation Agreement contains an 

arbitration agreement for any claims that arise out of the Separation 

Appellant’s Brief Page 8 
Agreement. Altomare has now sued Josh Reneau for commissions on real estate 

transactions closed and paid to Josh Reneau by and through Endura 

after Altomare was no longer a broker for Endura. None of the transactions sued 

upon are listed in the Separation Agreement. The evidence presented to the trial 

court clearly establishes Josh Reneau is an agent or representative of Endura; 

therefore, the claims brought by Altomare against Reneau were released by and 

through the Separation Agreement and otherwise triggered the arbitration 

agreement. Endura has established as a matter of law: (i) the existence of a valid 

arbitration agreement and (ii) that claims in this lawsuit are within the scope of the 

arbitration agreement. Accordingly, the trial court erred by 

denying Endura’s Motion to Compel Arbitration and Motion for Reconsideration.

ARGUMENT AND AUTHORITIES

Issue No. 1: The trial court erred by denying Endura’s Motion to Compel 

Alternative Dispute Resolution Process and Motion to Abate 

Proceeding Pending Completion of the Alternative Dispute Resolution 

Process and the Motion for Reconsideration of Denial of Its Motion to 

Compel Alternative Dispute Resolution Process and Motion to Abate 

Proceeding Pending Completion of the Alternative Dispute Resolution 

Process.

A. Standard of Review

9. In reviewing an order denying a motion to compel arbitration under 

the Texas Arbitration Act, the appellate courts apply a no-evidence standard to the 

trial court’s factual determinations and a de novo standard to legal determinations. 

Appellant’s Brief Page 9 
Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex. App. – San Antonio 2011, pet. 

denied). Furthermore, a trial court’s interpretation concerning the scope of a 

contract’s arbitration clause is a question of law reviewed under a de novo 

standard. Dell, Inc. v. Muniz, 163 S.W.3d 177, 180 (Tex. App. – San Antonio 

2005, orig. proceeding). In a de novo review, the trial court’s discretion is given 

absolutely no deference. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). 

B. The Pleadings and Evidence Presented Establish that the Parties’ 

Dispute Arises from the Separation Agreement Therefore Triggering 

the Dispute Resolution Process

10. Texas jurisprudence embraces arbitration. Royston, Rayzor, Vickery 

& Williams, LLP v. Lopez, 443 S.W.3d 196, 202 (Tex. App – Corpus Christi 2013, 

pet. filed). Since 1846, Texas law has provided that parties to a dispute may 

choose to arbitrate rather than litigate. Perry Homes v. Cull, 258 S.W.3d 580, 584 

(Tex. 2008) see also EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 

1996)(Texas law has historically favored settling disputes by arbitration). The 

Texas Supreme Court has recognized arbitration as a potentially efficient, costeffective, and speedy means of resolving disputes. See In re Olshan Found. Repair 

Co., 328 S.W.3d 883, 893 (Tex. 2010). Thus, a party seeking to compel arbitration 

must establish (1) an agreement by the parties to arbitrate and (2) that the claims in 

the lawsuit are within the scope of the arbitration agreement. In re Medallion, Ltd., 

70 S.W.3d 284, 287-288 (Tex. App. – San Antonio 2002, orig. proceeding). Once 

Appellant’s Brief Page 10
a court finds a valid agreement to arbitrate, the burden shifts to the party opposing 

arbitration to raise an affirmative defense to enforcing arbitration. See J.M. 

Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). 

C. A Valid Agreement to Arbitrate Exists Between Endura and Altomare

11. The Separation Agreement contains a valid agreement to arbitrate 

therefore satisfying the first prong needed to compel arbitration. In re Medallion at 

287-288. (C.R. Pg. 18); (Appendix, Confidential Exhibit 1, Separation Agreement, 

page 4, paragraph 13.) This is not disputed by Altomare. (Oct. R.R. Pg. 6, Line 3-

7); (C.R. Pg. 43). In the Separation Agreement, Altomare agreed this procedure 

governed any dispute related to his association with Endura or the Separation 

Agreement. (Appendix, Confidential Exhibit 1, Separation Agreement, page 4, 

paragraph 13.) Endura’s arbitration agreement is enforceable because the 

Separation Agreement is a valid contract. See generally J.M. Davidson, Inc. v. 

Webster, 128 S.W.3d at 227 (ordinary contract principals apply to agreements to 

arbitrate). Additionally, the Separation Agreement was supported by mutual 

consideration as stated therein. (Appendix, Confidential Exhibit 1, Separation 

Agreement, page 1). 

12. Furthermore, Altomare, who was represented by counsel who 

negotiated Separation Agreement, accepted it. (C.R. Pg. 20); (Nov. R.R. Pg. 32, 

line 22 through Pg. 33, line 3). The Alternative Dispute Resolution provision was a 

Appellant’s Brief Page 11
bargained for term of the Separation Agreement and most importantly, Altomare 

does not dispute that a valid Alternative Dispute Resolution agreement exists as it 

relates to the Separation Agreement. (Oct. R.R. Pg. 6, Line 3-7); (C.R. Pg. 43). 

There is no doubt the first prong to compel arbitration has been established by 

Endura. See In re Medallion, Ltd., 70 S.W.3d at 287-288. 

D. The Claims Brought in the Lawsuit Fall Within the Separation 

Agreement Triggering the Alternative Dispute Resolution Process 

13. With the first prong to compel arbitration established, the analysis 

shifts to whether claims brought by Altomare against Reneau and the claims 

brought by Endura against Altomare are within the scope of the claims released in 

the Separation Agreement giving rise to the agreement to arbitrate. See In re 

Medallion, Ltd., 70 S.W.3d at 287-288. If a party seeking arbitration carries its 

initial burden to prove the existence of an agreement to arbitrate, then a strong 

presumption favoring arbitration arises, and the burden shifts to the party opposing 

arbitration to prove an affirmative defense to the agreement. J.M. Davidson, Inc. v. 

Webster, 128 S.W.3d 223, 227 (Tex. 2003). Additionally, if a valid arbitration 

agreement exists, “courts should resolve any doubts as to the 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). To be subject to arbitration, the 

“allegations need only be factually intertwined with arbitrable claims or otherwise 

touch upon the subject matter of the agreement containing the arbitration 

Appellant’s Brief Page 12
provision.” In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston 

[14th Dist.] 2003, orig. proceeding). 

14. The pivotal question before this Court is whether or not Reneau is an 

agent or representative of Endura. If the answer is yes, then this Court must 

compel arbitration because the claims brought by Altomare against Reneau 

implicate the Separation Agreement triggering the Alternative Dispute Resolution

Process contained therein.

E. Reneau is an Agent or Representative of Endura

15. Once an arbitration agreement is established, “a court should not deny 

arbitration unless it can be said with positive assurance that an arbitration clause is 

not susceptible of an interpretation which would cover the dispute at issue.” In re 

D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006). In other words, if 

Reneau’s status with Endura is susceptible to an interpretation as agent or 

representative of Endura and thus covered by the scope of the release in the 

Settlement Agreement, then this Court must compel arbitration. 

16. The trial court erred in refusing to compel arbitration when clearly 

Reneau is an agent or representative of Endura and thus the claims against him are 

within the scope of the Separation Agreement therefore triggering the Alternative 

Dispute Resolution Process. An “agent” is one who is authorized by a person or 

entity to transact business or manage some affair for the person or entity. Neely v. 

Appellant’s Brief Page 13
Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no 

writ). An essential element of the principal-agency relationship is the principal’s 

right to control the actions of the alleged agent. Sendjar v. Gonzales, 520 S.W.2d 

478, 481 (Tex. Civ. App. – San Antonio 1975, no writ). This right includes not 

only the right to assign tasks, but also the right to dictate the means and details of 

the process by which the agent will accomplish the task. Townsend v. Univ. Hosp.-

Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App. – Texarkana 2002, pet. denied). 

The fact of agency may be established by circumstantial evidence, and proof may 

be made of all the facts and circumstances that shows the relationship of the parties 

and throws light upon the character of such relations. Welch v. Coca-Cola Enters., 

Inc., 36 S.W.3d 532, 540 (Tex. App. – Tyler 2000, pet. withdrawn) see also

Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio 

2002, no pet.)(An agency relationship may be found from underlying facts or 

direct and circumstantial evidence showing the relationship of the parties).

17. The evidence presented to the trial court clearly establishes that 

Reneau is an agent or representative of Endura. At the hearing on Endura’s 

Motion for Reconsideration, Endura called James G. Lundblad (“Lundblad”), a 

principal of Endura, to testify regarding the Separation Agreement and Reneau’s 

status with Endura. (Nov. R.R. Pg. 13, line 7-13). Lundblad testified 

unequivocally that Reneau was Endura’s agent and representative. (Nov. R.R. Pg. 

Appellant’s Brief Page 14
13, line 14-18); (Nov. R.R. Pg. 19, line 13-15); (Nov. R.R. Pg. 32, line 2-19). 

Lundblad further testified that Reneau has business cards with Endura’s name on 

them and when Reneau is out in the field leasing and selling properties he 

represents himself to the public as working for Endura. (Nov. R.R. Pg. 13, line 19-

21). Additionally, in the transactions in which Reneau is the point of contact, 

Reneau is listed on the listing agreement as “Key Agents: Josh Reneau” and his 

role on these transactions is to work with the property owner as Endura’s 

representative at Endura’s instruction. (Nov. R.R. Pg. 14, line 8 through Pg. 15, 

line 21); (Nov. R.R. Pg. 16, line 5-10); (Nov. R.R. Pg. 32, line 2-19); (see also

Appendix, Confidential Exhibit 5, Listing Agreement5

). Reneau has the authority 

to enter into transactions on behalf of Endura and actively markets on behalf of 

Endura to obtain listing agreements. (Nov. R.R. Pg. 19, line 16-25). Lastly, 

Reneau’s compensation agreement with Endura lists him as an “Associate,” not an 

independent contractor. (Nov. R.R. Pg. 19, line 10-12); (see also Appendix, 

Confidential Exhibit 6, a true and correct copy of a Compensation Agreement 

dated January 15, 20096

). Clearly, Reneau is authorized by Endura to: (i) manage 

5

 Confidential Exhibit 5 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 14, 

Line 8 through Pg 15, Line 14) but was withdrawn at the end of the hearing to preserve 

confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and 

correct copy of Confidential Exhibit 5 has been filed as part of a separate appendix.

6

 Confidential Exhibit 6 was admitted during the November 7, 2014 hearing (Nov. R.R. Pg 18, 

Line 12 through Pg 19, Line 6) but was withdrawn at the end of the hearing to preserve 

confidentiality (Nov. R.R. Pg 45, Line 6-7). Pursuant to the Clerk’s instructions, a true and 

correct copy of Confidential Exhibit 6 has been filed as part of a separate appendix.

Appellant’s Brief Page 15

 
transactions, such as properties for sale or lease; (ii) transact business on behalf of 

Endura; (iii) interface with the public promoting Endura; and (iv) interface with 

property owners on behalf of Endura, making him an agent or representative of 

Endura. See Neely v. Intercity Mgmt. Corp., 732 S.W.2d at 644. Lastly, in the 

eyes of Endura and its principals, Reneau is an agent or representative of Endura. 

(Nov. R.R. Pg. 13, line 14-18) and (Nov. R.R. Pg. 19, line 13-15).

18. As it relates to Endura’s control of Reneau, Reneau does not work for 

another real estate company. (Nov. R.R. Pg. 16, line 11-13). Reneau is required to 

come to the office and is also required to attend sales meetings. (Nov. R.R. Pg. 16, 

line 14-18). Further, Endura has authorized him to market and attempt to acquire 

listings and properties to sell for and on behalf of Endura. (Nov. R.R. Pg. 16, line 

19-22). Additionally, Endura directs Reneau to do “everything” he can to either 

sell or lease properties for clients that have hired Endura. (Nov. R.R. Pg. 15, line 

22 through Pg. 16, line 4). On cross-examination by counsel for Altomare, 

Lundblad testified that Endura instructs Reneau on how to manage and practice 

business for Endura and work within the confines of what Endura expects from an 

Associate further evidencing control of Reneau’s work for Endura. (Nov. R.R. Pg. 

22, line 4-7). Lundblad further testified that Endura has the authority and control 

over its agents, such as Reneau, to assign out tasks such as selling or leasing 

properties. (Nov. R.R. Pg. 20, line 1-11). Lundblad’s testimony evidences Endura 

Appellant’s Brief Page 16
exercised control over the means of Reneau’s work and provides direction and 

guidance on how it is to be accomplished thus making Reneau an agent or 

representative of Endura.

19. As stated by the Texas Supreme Court in the In re D. Wilson Constr. 

Co. case, “a court should not deny arbitration unless it can be said with positive 

assurance that an arbitration clause is not susceptible of an interpretation which 

would cover the dispute at issue.” In re D. Wilson Constr. Co., 196 S.W.3d at 783; 

see also Emerald Tex. Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. – Houston [1st

Dist.] 1996, no writ)(“If ... the [arbitration] clause is broad, arbitration should not 

be denied unless it can be said with positive assurance that the particular dispute is 

not covered.”). With this liberal construction in mind, it is clear from the evidence 

presented to the trial court that Reneau is an agent or representative of Endura and 

the disputes are covered by the Separation Agreement, thus arbitrable.

F. Endura Intended for the Separation Agreement to include Reneau 

20. The intent of the Separation Agreement was to include Reneau and, 

for that matter, everyone that works with Endura. (Nov. R.R. Pg. 17, line 16-21). 

The primary concern in interpreting a contract is ascertaining the true intent of the 

parties. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 

323, 333 (Tex. 2011). To understand the parties’ intent the court must examine the 

agreement as a whole in light of the facts and circumstances present at the time 

Appellant’s Brief Page 17
when the parties executed the agreement. Anglo-Dutch Petrol. Int’l, Inc. v. 

Greenberg Peden, P.C., 352 S.W.3d 445, 450-51 (Tex. 2011). The Separation 

Agreement was intended to be broad enough to release Endura and all those who 

could arguably come under the Endura umbrella from any claims by Altomare 

during his tenure with Endura. This is the reason for the inclusion of broad form 

language in the release paragraph of the Separation Agreement to include the 

“Partnership, its related entities, officers, members, partners, limited partners, 

employees, directors, managers, agents, trustees, administrators, representatives, 

subsidiaries, affiliates, successors, and assigns.” See Appendix, Confidential 

Exhibit 1, Separation Agreement, page 2, paragraph 5.

21. At the November 7, 2014 hearing on Endura’s Motion for 

Reconsideration, Lundblad testified that it was Endura’s intention to have a clean 

separation from Altomare, by way of the Separation Agreement, and to get there 

they paid Altomare a little more than a partner disassociating from Endura under 

normal circumstances. (Nov. R.R. Pg. 17, line 7-16). Most importantly, Lundlbad 

testified that the Separation Agreement was intended to encompass everyone at 

Endura at the time of Altomare’s departure, which includes Reneau. (Nov. R.R. 

Pg. 17, line 16-21). Furthermore, the Separation Agreement was intended to 

foreclose any claims for commissions from transactions related to his tenure with 

Endura (and the covered persons in the agreement) that were not disclosed by 

Appellant’s Brief Page 18
Altomare [on the List] at the time of execution of the Separation Agreement. 

(Nov. R.R. Pg. 17, line 22-25). The entire purpose of including the alternative 

dispute resolution paragraph in the Separation Agreement was to abbreviate the 

length of time that it would typically take for suits such as this one to make its way 

through the judicial system that might derive from the Separation Agreement. 

Accordingly, in viewing the circumstances at the time of execution as well as the 

parties’ intent, the Separation Agreement was intended to protect and release 

Endura, its agents, representatives and all people working under the Endura 

umbrella from the very claims that Altomare now brings.

G. The Separation Agreement

22. Having shown a valid agreement to arbitrate and that Reneau is an 

agent or representative of Endura, and thus triggering the arbitration agreement, we 

must also determine if the claims brought by Altomare against Reneau arise from 

the Separation Agreement. Altomare has asserted claims against Reneau for 

breach of contract. (C.R. Pg. 2) In his suit, Altomare alleges he is owed 

commissions from real estate transactions pursuant to an unwritten “agreement” 

between Altomare and Reneau to split commissions on real estate transactions they 

worked on together. (C.R. Pg. 2) Assuming arguendo that Reneau and Altomare 

had a prior course of dealing in which they would split certain commissions on a 

case-by-case basis, the claims arising under this assumed “agreement” were 

Appellant’s Brief Page 19
released when Altomare executed the Separation Agreement and did not include 

these transactions on the List. 

23. The Separation Agreement in paragraph five states in relevant part:

Other than to the broker’s commissions specifically indentified 

in this letter, in addition to the terms of the Second Amended 

and Restated Limited Partnership Agreement, you hereby 

release any claim of any kind that relates to or involves your 

relationship or the separation of your relationship with the 

Partnership that you may have or acquire against the 

Partnership, its related entities, officers, members, partners, 

limited partners, employees, directors, managers, agents, 

trustees, administrators, representatives, subsidiaries, 

affiliates, successors, and assigns. The claims you are agreeing 

to release include, but are not limited to, all claims, charges, 

complaints, liabilities, obligations, promises, agreements, 

contracts, damages, actions, causes of action, suits, accrued 

benefits or other liabilities of any kind or character, whether 

known or hereafter discovered, arising from or in any way 

connected with or related to your tenure with the 

Partnership and your resignation from the Partnership, 

including but not limited to . . . breach of contract. . .

(See Appendix, Confidential Exhibit 1, paragraph 5, Separation Agreement) 

(Emphasis added).

Altomare submitted the List, which was comprised of all of the transactions he was 

currently working on when he executed the Separation Agreement. The List was 

accepted by Endura and included as part of the Separation Agreement. The real 

estate transactions Altomare now sues upon were not included on the List; 

therefore, to the extent any rights to commissions from Endura deals not yet earned 

or ever existing between Altomare and Reneau, Altomare released his claims to all 

Appellant’s Brief Page 20
those not identified in the List. The claims brought by Endura against Altomare 

are for breach of the Separation Agreement. 

24. Most importantly and as stated above, the Separation Agreement 

included an agreement to arbitrate in accordance with Endura’s Dispute Resolution 

Policy. Paragraph 13 of the Separation Agreement states:

In the event there is a dispute between you and the Partnership 

related to your association with the Partnership or this 

agreement, the Dispute Resolution Policy set out in the Endura 

Employee Handbook will be employed which is incorporated 

herein as if fully set forth verbatim

(See Appendix, Confidential Exhibit 1, paragraph 13, Separation Agreement) 

(Emphasis added).

25. A plain reading of paragraph 5 and paragraph 13 in the Separation 

Agreement make it clear that Altomare’s claims against Reneau and Endura’s 

claims against Altomare arise from and touch upon the subject matter of the 

Separation Agreement and therefore triggers the Dispute Resolution Policy 

incorporated into the Separation Agreement. See In re B.P. Am. Prod. Co., 97 

S.W.3d at 370 (allegations need only be factually intertwined with arbitrable 

claims or otherwise touch upon the subject matter of the agreement containing the 

arbitration provision). Therefore, the arbitration agreement contained within the 

Separation Agreement squarely encompasses the claims raised by Altomare and 

the claims raised by Endura and this Court must compel arbitration.

Appellant’s Brief Page 21
Issue No. 2: Altomare failed to present or prove a defense to the enforcement of 

the Dispute Resolution Policy.

26. Having shown that the arbitration agreement is valid and that 

Altomare’s claims are within the scope of the claims released by the Separation 

Agreement giving rise to the arbitration agreement, the burden shifts to Altomare 

to raise a defense to the arbitration agreement. See J.M. Davidson, Inc. 128 

S.W.3d at 227. The trial court erred by refusing to compel arbitration because 

Altomare failed to prove a defense to the arbitration agreement. At the November 

2014 hearing on Endura’s Motion for Reconsideration of the Motion to Compel 

Arbitration, the sole defense to the arbitration agreement asserted by Altomare was 

that Reneau was not an agent of Endura, but an independent contractor and thus 

not within the scope of the Separation Agreement. (Nov. R.R. Pg. 8, line 10-16); 

(Nov. R.R. Pg. 41, line 19 through Pg. 42, line 3).

27. The fact of agency may be established by circumstantial evidence, and 

proof may be made of all of the facts and circumstances that the shows the 

relationship of the parties and throws light upon the character of such relations. 

Welch v. Coca-Cola Enters., Inc., 36 S.W.3d at 540; see also 3 TEX. JUR. 3D 

Agency §50 (1996). Furthermore, agency may be implied from the conduct of the 

parties under the circumstances. Jorgensen v. Stuart Place Water Supply Corp., 

676 S.W.2d 191, 194 (Tex. App. – Corpus Christi 1984, no writ). One may be an 

independent contractor under some circumstances yet may be an agent or 

Appellant’s Brief Page 22
employee in connection with other work or activities. Lyons v. Lindsey Morden 

Claims Mgmt., Inc. 985 S.W.2d 86, 90 (Tex. App. – El Paso 1998, no pet.). 

28. For the reasons stated and based on the evidence set forth in 

Paragraphs 17-19, it is clear Reneau’s work selling and leasing properties and 

securing listing agreements for Endura is all performed as an agent or 

representative of Endura; promoting Endura and only Endura. Therefore, 

Altomare has failed to present or prove a defense to the enforcement of the Dispute 

Resolution Policy.

CONCLUSION

Endura has established as a matter of law (1) the existence of a valid 

agreement to arbitrate and (ii) that the claims in this lawsuit are within the scope of 

the arbitration agreement. The trial court erred by failing to compel arbitration and 

this Court should reverse the ruling by the trial court and remand to compel 

arbitration.

PRAYER

This Court should reverse the trial court’s denial of Endura Advisory Group, 

Ltd.’s Motion to Compel Alternative Dispute Resolution Process and Motion to 

Abate Proceeding Pending Completion of the Alternative Dispute Resolution 

Process and denial of same on Motion for Reconsideration and remand this case 

back to the trial court to compel arbitration and for such other and further relief, 

Appellant’s Brief Page 23
whether at law or in equity, to which Endura Advisory Group, Ltd, may be justly 

entitled.

Respectfully submitted,

RICHIE & GUERINGER, P.C.

BY: /s/ Gay Gueringer 

GAY GUERINGER

State Bar No. 08571400

DOUG K. CLEMONS

State Bar No. 24032083

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Telephone: 210-220-1080 

Facsimile: 210-220-1088 

Email: ggueringer@rg-sanantonio.com 

Email: dclemons@rg-sanantonio.com 

ATTORNEYS FOR INTERVENOR,

ENDURA ADVISORY GROUP, LTD.

Appellant’s Brief Page 24
CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that 

this brief contains 5,438 words, excluding the words not included in the word 

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computergenerated document created in Microsoft Word, using 14-point typeface for all 

text, except for footnotes which are in 12-point typeface. In making this certificate 

of compliance, I am relying on the word count provided by the software used to 

prepare the document. 

/s/ Gay Gueringer

Gay Gueringer/Doug K. Clemons

CERTIFICATE OF SERVICE

This is to certify that on the 27th day of January 2015, a true and correct copy 

of the foregoing has been served on opposing counsel as follows:

Via Electronic Service

Eric A. Pullen

Pulman, Cappuccio, Pullen, Benson & Jones, LLP

2161 NW Military Highway, Suite 400

San Antonio, Texas 78213

/s/ Gay Gueringer

Gay Gueringer/Doug K. Clemons

Appellant’s Brief Page 25
NO. 04-14-00889-CV

ENDURA ADVISORY GROUP, LTD., APPELLANT

VS.

DOMINIC ALTOMARE, APPELLEE

APPENDIX

LIST OF DOCUMENTS

Exhibit 1 CONFIDENTIAL Separation Agreement 

Exhibit 2 Endura Advisory Group, Ltd.’s Dispute Resolution Policy and 

Procedures

Exhibit 3 Order Denying Endura Advisory Group, Ltd.’s Motion to Compel 

Alternative Dispute Resolution Process and Motion to Abate 

Proceeding Pending Completion of the Alternative Dispute Resolution 

Process signed December 1, 2014

Exhibit 4 Order Denying Endura Advisory Group, Ltd.’s Motion for 

Reconsideration of Denial of its Motion to Compel Alternative 

Dispute Resolution Process and Motion to Abate Proceeding Pending 

Completion of the Alternative Dispute Resolution Process signed 

December 1, 2014

Exhibit 5 CONFIDENTIAL Listing Agreement

Exhibit 6 CONFIDENTIAL Compensation Agreement

Appellant’s Brief Page 26
EXHIBIT 1

CONFIDENTIAL SEPARATION AGREEMENT

FILED UNDER SEPARATE APPENDIX

Appellant’s Brief Exhibit 1
Dispute Resolution Policy and 

Procedures

Introduction/Overview

Unfortunately, from time to time, Endura’s Problem Resolution policy does not fully resolve a 

dispute between an employee and the company. In those situations, Endura has designed this 

Dispute Resolution Policy to guide resolution of any disputes between its employees and the 

company.

Procedure

Where allowed by state or federal law, all disputes between an Employee and Endura, 

regarding Employment Related Matters, other than claims for Worker’s Compensation or 

Unemployment Benefits, shall be resolved solely through binding Arbitration. Arbitration is an 

essential element of your employment relationship and is a condition of your employment with 

Endura. The Arbitration process will be conducted under Texas Civil Practices and Remedies 

Code, Section 151.001 et seq. The arbitrator will meet the qualifications of a Special Judge as 

described in this statute and will also be impartial. This Policy is intended to be construed and 

subject to Texas law. 

Either the employee or Endura may commence the Arbitration proceeding by giving written 

notice to the other party, stating that the Arbitration process is being commenced, the specific 

facts which give rise to the dispute, the legal basis, if any, which the notifying party is invoking to 

support some claim for damages or relief, the relief that the notifying party is seeking and a 

correct address, phone number and, if available, a facsimile number and email address at which 

the notifying party can be reached (“Notice”). The notifying party shall file a Petition in the 

applicable District court, or other court of original jurisdiction, which shall be abated pending the 

decision of the Arbitrator.

Upon receipt of a Notice commencing the Arbitration process, the receiving party shall have a 

period of forty-five (45) days in which to serve the notifying party with a written response to the 

Notice commencing the Arbitration, stating the specific facts which are asserted as a defense to 

the facts set forth in the Notice and any facts which the receiving party asserts that support a 

counter-claim, if any, by the party that received the Notice against the party that sent the Notice.

Within sixty (60) days of the commencement of the Arbitration process, Endura shall give to the 

Employee a statement designating the names and addresses of three (3) persons impartial to 

Endura and to which Endura will accept as the Arbitrator for the dispute and a date or dates, not 

less than thirty (30) days thereafter, when the hearing will be held. The Employee shall have 

fifteen (15) days in which to object, in writing to Endura, to not more than two (2) of the 

designated Arbitrators. If no objection is received or if less than two (2) of the Arbitrators are 

objected to by the Employee, Endura shall, within two (2) days of the receipt of objections from 

the employee, designate, in writing, the name and address of the Arbitrator that will arbitrate the 

dispute.

EXHIBIT 2
 Timeline recap

1. Notice of Commencement of Arbitration Notice day

2. Written response from non-noticed party 45 days from Notice

3. Designation of Arbitrators by Company 60 days from Notice

4. Objection to Arbitrators by Employee 15 days

5. Notice of Arbitrators and Hearing 2 days from objection

6. Hearing 90 days from Notice

The Arbitration hearing shall be conducted at a time and place designated by the Arbitrator. 

The Arbitrator shall give each party at least ten (10) days written notice of the time and place of 

the Arbitration hearing. Either party may request one continuance of the Arbitration hearing for 

good cause shown to the Arbitrator. The Arbitrator shall strictly follow the time line set forth 

herein and the procedures mandated herein, except that the Arbitrator may delay the hearing for 

a period not to exceed thirty (30) days to accommodate the schedules of any party, unless the 

parties both agree to any extension beyond the thirty (30) day extension allowed at the 

discretion of the Arbitrator.

Endura shall pay the Arbitrator’s Fees and expenses charged by the Arbitrator, or for the facility 

at which the arbitration hearing is held. The Arbitrator shall assess all other costs and fees, 

including attorney’s fees as a part of the Arbitration award. 

The Arbitration process, discovery and the hearing shall be conducted in compliance with the 

Texas Rules of Civil Procedure and the Texas Rules of Evidence. The Arbitrator shall enter 

his/her ruling, in writing, and shall, upon request of either party, prepare and submit findings of 

fact and conclusions of law to both parties. An award or ruling by the Arbitrator shall be entered 

as a judgment of record in the abated judicial proceeding, and shall be fully subject to appeal as 

if it was tried in a District Court, or any other court of original jurisdiction, outside the scope of 

the arbitration process.

Both Employee and Endura recognize and agree that litigation is expensive and prolonged and 

that both parties will benefit from the procedure in this Policy. This policy shall be broadly 

construed and enforced to favor the Arbitration process as an efficient and effective way of 

resolving disputes between the Employee and Endura. Both parties benefit from this process. 

It provides an efficient means for the prompt resolution of any dispute, allowing the employee a 

prompt resolution to the dispute and minimal loss of earnings from missed workdays and to 

Endura a minimal disruption in its workforce and involvement of key management time in the 

process. Any provision of this Policy that shall be determined to be unenforceable in any 

jurisdiction shall not be read or construed to prohibit or exhaust the rights of either the Employee 

or Company to the right to Arbitration or Waiver of the Right to Trial by Jury.

Employee and Endura hereby WAIVE ALL RIGHTS TO A TRIAL BY JURY FOR 

EMPLOYMENT RELATED MATTERS IN STATE OR FEDERAL COURT.

EXHIBIT 2
Endura retains the right to amend or terminate this Policy, in whole or in part, on ten (10) days 

written notice to Employee. However, any disputes that have been asserted, in writing, prior to 

the amendment or termination of this Policy, shall still be subject to resolution as set-forth in this 

Policy.

I hereby agree to abide by this Dispute Resolution Policy, and the related procedures, a copy of 

which I have received and read. I acknowledge that my agreement to be bound by this Policy is 

supported by good and adequate consideration. 

I understand and agree that this Policy is not a contract of employment or a guarantee of 

employment of any specific duration.

EMPLOYEE NAME (printed): _________________________________________

EMPLOYEE SIGNATURE: _________________________________________

DATE: _________________________________________

EXHIBIT 2
EXHIBIT 3
EXHIBIT 3
EXHIBIT 4
EXHIBIT 4
EXHIBIT 5

CONFIDENTIAL LISTING AGREEMENT 

FILED UNDER SEPARATE APPENDIX

Appellant’s Brief Exhibit 5
EXHIBIT 6

CONFIDENTIAL COMPENSATION AGREEMENT

FILED UNDER SEPARATE APPENDIX

Appellant’s Brief Exhibit 6