Petition for Writ of Mandamus Denied and Opinion filed June 30, 2016.

In The

Fourteenth Court of Appeals

NO. 14-16-00418-CV

IN RE COMERICA BANK, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

190th District Court

Harris County, Texas

Trial Court Cause No. 2015-55739

MEMORANDUM OPINION

On or about July 19, 2000, Jimmie R. Gaidry opened an account with 

Sterling Bank that in 2011 was merged into the relator Comerica Bank (Comerica). 

In 2015, the real party-in-interest James Gaidry filed suit, individually and on 

behalf of the estate of his now deceased mother, Jimme Gaidry, against Comerica 
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alleging that it negligently failed to prevent withdrawals from Jimmie Gaidry’s 

bank account.

On May 20, 2016, Comerica filed a petition for writ of mandamus in this 

court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 

52. In the petition, Comerica asks this court to compel the Honorable Patricia J. 

Kerrigan, presiding judge of the 190th District Court of Harris County, to vacate 

the Order she signed on May 3, 2016 that compels: (1) Comerica to withdraw its 

application to arbitrate the claim against it with the Judicial Arbitration and 

Mediation Services, Inc. (JAMS), and (2) Comerica to arbitrate the claim against it 

with the Financial Industry Regulatory Authority (FINRA) in a pending arbitration 

matter between James Gaidry and TD Ameritrade. Comerica argues that both parts 

of the Order constitute an abuse of discretion.

MANDAMUS STANDARD 

To obtain mandamus relief, a relator must show both that the trial court 

clearly abused its discretion and that relator has no adequate remedy by appeal. In

re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

ANALYSIS

A. Comerica has not shown that the trial court abused its discretion by 

ordering it to withdraw its application to arbitrate with JAMS.

First, Comerica argues that the trial court abused its discretion by ordering 

Comerica to withdraw its application to arbitrate the claim against it with JAMS 

because Jimmie and James Gaidry allegedly agreed to a “Business and Personal 
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Deposit Account Contract” (the Contract), which states that it is effective on 

March 1, 2013. The Contract requires the parties to arbitrate their disputes with

either JAMS or AAA. The arbitration provision in the Contract constitutes an 

amendment because it does appear that any of the bank’s prior contracts with 

depositors had an arbitration provision. James Gaidry argues that neither he nor 

Jimmie agreed to this amendment.

Parties may modify an agreement, but the new or modifying agreement must 

possess the essential elements of a contract. Mandril v. Kasishke, 620 S.W.2d 238, 

244 (Tex. Civ. App.—Amarillo 1981, writ ref’d n.r.e.). In particular, there must be 

a meeting of the minds of the parties, and the terms of the original contract cannot 

be unilaterally remade by one of the parties. Id. A party relying on a modification 

has the burden proving that it was agreed to. Stowers v. Harper, 376 S.W.2d 34, 39 

(Tex. Civ. App.—Tyler 1964, writ. ref'd n.r.e.).

Section 34.302(a) of the Texas Finance Code provides that a bank and an 

account holder may amend the deposit contract “by agreement or as permitted by 

Subsection (b) or other law.” Tex. Fin. Code Ann. § 34.302(a) (West 2013). 

Section 34.302(b) allows a bank to amend a deposit contract by mailing a written 

notice of the amendment, including the text of the amendment and the effective 

date, to the account holder. Id. § 34.302(b). These notice requirements must be

complied with for the amendment to be effective. See Calleja-Ahedo v. Compass

Bank, 01-15-00210-CV, 2016 WL 2342758, at *6 (Tex. App.—Houston [1st Dist.] 

May 3, 2016, no. pet. h.).
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We conclude that Comerica has not established that the trial court clearly 

abused its discretion by ordering Comerica to withdraw its application to arbitrate 

the claim against it with JAMS because the record contains no evidence that 

Comerica mailed written notice of the amended Contract and its text to the Gaidrys 

or that the Gaidrys by some other means agreed to the amended Contract with the 

arbitration provision.

B. Comerica has not shown that it lacks an adequate remedy by appeal 

for the trial court’s alleged error in compelling it to arbitrate with 

FINRA.

Second, Comerica argues that the trial court abused its discretion by 

ordering Comerica to arbitrate the claim against it in a pending arbitration matter 

between James Gaidry and TD Ameritrade with FINRA because Comerica is not a 

party to the arbitration agreement between the Gaidrys and TD Ameritrade that 

requires arbitration with FIRA, and such arbitration agreement is not enforceable 

against it under the doctrine of direct-benefits estoppel. Regardless of the merits of 

these arguments, Comerica is not entitled to mandamus relief because it has not 

shown that it lacks an adequate remedy by appeal for the trial court’s alleged error

of compelling it to arbitrate with FINRA. See In re Gulf Exploration, LLC, 289 

S.W.3d 836, 842–43 (Tex. 2009) (orig. proceeding).

Comerica cites Austin Commercial Contractors, L.P. v. Carter & Burgess, 

Inc., 347 S.W.3d 897, 901 (Tex. App.—Dallas 2011, pet. denied) as support for its 

argument that it lacks an adequate remedy by appeal. That decision does not apply
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because the record contains no evidence that the trial court denied relator any 

contracted-for arbitration right, as the record did in Austin Commercial 

Contractors, L.P. As discussed above, Comerica failed to prove that the amended 

Contract that provides for arbitration with JAMS was agreed to by the Gaidrys.

CONCLUSION

Accordingly, we deny Comerica’s petition for writ of mandamus.

 PER CURIAM

Panel consists of Justices Boyce, Christopher, and Jamison.