DISSENT; and Opinion Filed August 30, 2016. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 15
- 0 0 718
- CV RSL FUNDING, LLC AND RSL SPECIAL
- IV, LIMITED PARTNERS HIP, APPELLANTS V. RICKEY NEWSOME, APPE LLEE On Appeal fr om the 193 rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC
- 14
- 14580
- L 

### DISSENT ING OPINION Before Justices Lang

- Miers, Brown, and Schenck Dissenting opinion by Justice Schenck I comme nd the majority for its fine opinion. I regret that I am unable to join it in full.
T he approved transfer agreement includes an arbitration clause which states : Disputes under this Agreement of any nature whatsoever including but not limited to those sounding in constitutional, statutory, or common law theories as to the performance of any obligations, the satisfaction of any rights, and/or the enforceability hereof , i ncluding any claims that the Assignor has breached this Agreement, shall be resolved through demand by any interested party to arbitrate the dispute under the laws of Assignee’s domicile to the maximum extent possible (including the Federal Arbitration Act which shall be controlling) . . .

. The parties hereto agree that the issue of arbit rability shall likewise be decided by the arbitrator, and not by any other person. That is , the question of whether a dispute itself is subject to arbitration shall be decided solely by the arbitrator and not, for example , by any court. In so doing the intent of the parties is to divest any and all courts of jurisdiction in disputes involving the parties, except for the confirmation of the award and enforcement thereof. The United States Supreme Court has been very clear in stating that d isputes , be they factual or legal in nature, arising out of contracts containing a n arbitration provision a re to be decided by– 2

– an arbitrator, not a court. 14 Penn Plaza LLC v. Pyett , 556 U.S. 247, 268

– 69 (2009)

. This is especially true when, as here, the parties have committed to arbitrate the question of arbitrability. First Options of Chi., Inc. v. Kaplan , 5 1 4 U.S. 938, 944 (1995). To be sure, we have not previously addressed the question of whether parties might validly agree to arbitrate a legal dispute over the effect of a prior court order. In applying the Federal Arbitration Act, however, the Supreme Court has stressed that legal disputes of all kinds are within the presumed competence of an arbitrator and should be so decided where th e parties have contracted to avoid a judicial disposition. See Pyett , 556 U.S. at 268

– 69 ; see also Rodriguez de Quijas v. Shearson/Am

. Exp ress , Inc. , 490 U.S. 477 , 481 (1989)

. The parties’ arguments here concerning whether the nunc pro tunc order is eff ective and whether the trial court’s addition al payment term properly altered the ir transfer agreement can be made to an arbitrator just as well as a court

. Likewise, any claim Newsome may have as to the delay and receipt of beneficia l payments under the transfer agreement may also be raised before

an arbitrator. As all of these claims arise either directly from the agreement or from their dispute over its proper reach, I wo u ld leave the m to their commitment to arbitrate those questions alongsid e any dispute over the proper reach of the arbitration clause

. Continuum Health Serv

. , LLC v. Cross , No. 05

- 11

- 01520

- CV, 2012 WL 5845367, at *1 (Tex. App.

— Dallas Nov. 19, 2012, no pet.) (mem. op.) ; Roe v. Ladymon , 318 S.W.3d 502, 512

– 14 (Tex. App.

— Dallas 2010, no pet.).

150718DF.P05 /David J. Schenck/ DAVID J. SCHENCK JUSTICE